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MCHENRY v. STAPLETON ET AL. (06/28/71)

decided: June 28, 1971.

MCHENRY
v.
STAPLETON ET AL., APPELLANTS



Appeal from decree of Court of Common Pleas of Luzerne County, March T., 1960, No. 8, in re: Mildred M. McHenry, administratrix of the estate of Lloyd A. McHenry, deceased, v. Richard M. Stapleton.

COUNSEL

Joseph Serling, for appellant.

John S. Fine, Jr., for appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: O'brien

[ 443 Pa. Page 188]

Appellants are the executrices of the Estate of Richard M. Stapleton (Stapleton). On February 3, 1960, an equity action was brought against Stapleton by appellee, administratrix of the Estate of Lloyd A. McHenry, deceased (McHenry). The complaint averred that on or about June 13, 1946, at the request of McHenry, Stapleton took legal title for and on behalf of McHenry of a certain parcel of real estate, known as 286 Main Street in the Borough of Luzerne. According to the complaint, at McHenry's direction Stapleton executed a mortgage as part of the transaction, but McHenry made all of the payments on the mortgage, paid all of the taxes on the property, and collected all the rents therefrom, all with the knowledge and consent of Stapleton. The complaint further avers that subsequent to McHenry's death, appellee, his administratrix, has continued to pay all of the taxes and to collect all of the rents and has paid the entire balance of principal and interest on the mortgage. The complaint avers that Stapleton held legal title only as trustee for McHenry, and after stating that there is information to the effect that Stapleton plans to convey the property in violation of this trust, the complaint seeks a decree ordering Stapleton to execute and deliver a deed conveying legal title to McHenry's administratrix where, according to the complaint, the equitable and beneficial title had been since McHenry's death.

Stapleton filed preliminary objections to this complaint, stating that: (1) the complaint failed to set forth facts showing how McHenry acquired his alleged equitable interest; (2) the complaint failed to set forth who provided the funds for the purchase of the property, and (3) the complaint failed to set forth the actual consideration paid for the property.

By order and opinion dated May 4, 1960, the court dismissed Stapleton's preliminary objections. In its

[ 443 Pa. Page 189]

    opinion, the court said: "As to the defendant's first preliminary objections concerning plaintiff's failure to set forth any facts showing how Lloyd A. McHenry acquired his equitable interest, we need only turn to the language of Paragraph 4 of the plaintiff's complaint, wherein plaintiff alleges: 'On or about June 13, 1946, Defendant, at the request of said Lloyd A. McHenry, took legal title for and on behalf of said Lloyd A. McHenry. . . .' This allegation is one of an express oral trust which is a matter of proof for the plaintiff at trial and although defendant evinces some concern as to the nature of the trust to wit: whether it be a resulting trust or a constructive trust, it is apparent that the plaintiff is alleging an express trust and although this may cause some concern to the defendant at this moment, it is, of course, self-evident that the plaintiff must now proceed to prove an express trust and will be precluded by his pleadings from proving anything else." (Emphasis in original.)

On May 24, 1960, Stapleton, in his answer, alleged in "New Matter" that the trust comes within the provisions of the Statute of Frauds. Appellee's reply, dated June 19, 1960, alleged that Stapleton's "New Matter" consisted of legal conclusions raising no question of fact, and further replied denying that the Statute of Frauds applied to the alleged trust. On December 23, 1966, six and one-half years after the pleadings had closed and after the case had been listed for trial in excess of twenty times, Stapleton filed a motion for judgment on the pleadings. On April 10, 1968, the court dismissed the motion for judgment on the pleadings, emphasizing in its brief opinion "that any party who . . . unduly delays in seeking his remedy, should not look to the court to summarily adjudicate his matter."

The case finally came up for trial September 30, 1968, after Stapleton's ...


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