Finally, the allegation of the wife's counsel that she never received an accounting of her half interest in a $ 25,000 wedding gift is specifically refuted by the sworn statement of the husband that the $ 25,000 was expended for the purchase of a home and other domestic expenses with the balance partially placed in investments by the wife and partially deposited in her bank account, both of which assets at their 1950 value were included in the Schedule of Assets attached to the property settlement agreement. Plaintiff has alleged no facts anywhere in these proceedings which contradict these statements. The Schedule of Assets attached to the property settlement agreement fairly represented the total assets of the plaintiff in 1950. Consequently, there can be no genuine issue of fact as to any misrepresentation of the wife's property at the time of the agreement.
It may appear that the above discussion rests heavily on the defendant's answers to interrogatories and fails to give adequate consideration to the allegations of the plaintiff's complaint. This reliance is justified however under amended Fed.R.Civ.P. 56 governing summary judgment which states in part:
'* * * When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'
In his sworn answers to interrogatories (which the amended Rule specifically allows the court to consider in passing on a motion for summary judgment), defendant has set forth specific facts refuting the allegations of plaintiff in her complaint. Plaintiff has chosen to rest her case on the general allegations of her complaint and the affidavit of her counsel which, for the most part, is not based on personal knowledge as required by Rule 56. In these circumstances the court is justified in granting the motion for summary judgment.
Plaintiff raises one other contention in her motion for reargument which merits discussion. She contends that the Statute of Limitations or laches does not bar her action because the defendant in 1960 fraudulently concealed from her counsel facts which were necessary to properly prepare the complaint in this action. It is true that where '* * * through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the limitation of the action * * *.' Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). But such deliberate concealment of facts only tolls the statute if '* * * the plaintiff could not through the use of reasonable diligence have ascertained these facts * * *.' Schaffer v. Larzelere, supra 410 Pa. at 406, 189 A.2d at 270. The refusal to let plaintiff's counsel examine the books and records of defendant's companies in 1960 and the ambiguous and perhaps not completely truthful use of the words 'employed' and 'employee' in defendant's 1960 statement concerning plaintiff's duties in defendant's companies prior to 1950, apparently increased the burden of investigation that plaintiff's counsel felt obliged to perform, but they certainly did not cause plaintiff or her counsel to 'relax their vigilance or deviate from their right of inquiry.' The real cause of the bar of the Statute of Limitations or laches here is not the alleged activity of the defendant, but the plaintiff's lack of 'reasonable diligence' in waiting until 1960 to engage her present counsel.
AND NOW, this 23rd day of September, 1963, plaintiff's motion for reargument is denied.
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