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BEAVER ET AL. v. PENNTECH PAPER CO. (07/02/73)

decided: July 2, 1973.

BEAVER ET AL., APPELLANTS,
v.
PENNTECH PAPER CO.



Appeal from decree of Court of Common Pleas of Elk County, Feb. T., 1972, No. 1, in case of James J. Beaver, Ritta Beaver and Virginia Beaver v. Penntech Paper Co., et al.

COUNSEL

M. Bruce McCullough, with him R. A. King, Rex Rowland, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellants.

Norbert J. Pontzer, with him Pontzer & Pontzer, for appellee, Penntech Paper Co.

Anthony B. Trambley, for appellee, Borough of Johnsonburg, et al.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 452 Pa. Page 543]

Appellants in the instant case are children of Antoinette Beaver, who, prior to 1969, was the sole owner of two dwellings located in Johnsonburg, Pennsylvania. In 1966, the mother of appellants filed an appeal to the Court of Common Pleas of Elk County from the issuance of a building permit granted to Penntech Paper Co. (Penntech), formerly the New York & Pennsylvania Company. This appeal was sustained and the permit issued to Penntech was revoked. However, after some modifications, a second permit was issued to Penntech. After Penntech started operations pursuant to this permit, in 1967, appellants' mother filed an action in equity seeking an injunction and damages against Penntech for an alleged nuisance. The action proceeded

[ 452 Pa. Page 544]

    until March 4, 1969, when Penntech's attorney made a motion for a compulsory non-suit by reason of the failure of counsel to appear on behalf of Antoinette Beaver. The motion was denied and the case was continued until further notice. In April of 1971, appellants' mother died and the case remains continued. In 1972, the children of Antoinette Beaver, as her heirs at law, filed an action in equity in the Court of Common Pleas, Civil Division, of Elk County, against Penntech, the former members of the zoning board and the Borough of Johnsonburg. The complaint alleged that Penntech was operating a nuisance in violation of the Johnsonburg Zoning Ordinance and that the borough and the former members of the zoning board were negligent in permitting Penntech's illegal operations. The complaint sought to enjoin Penntech's operations and sought compensation for the damage done to appellants' property.

All appellees filed separate preliminary objections, alleging, inter alia, laches, and all preliminary objections were sustained.

In Young v. Hall, 421 Pa. 214, 216, 218 A.2d 781 (1966), we stated: "Laches requires not only a passage of time, but also a resultant prejudice to the party asserting the doctrine. . . ."

Penntech offered no proof of prejudice. When laches is raised by preliminary objections, a complaint should be dismissed only when the issue is clear and free from doubt. See Rush v. Butler Fair & Agr. Assn., 391 Pa. 181, 137 A.2d 245 (1958). Consequently, we believe it was error to grant Penntech's preliminary objections on the grounds of laches.

Penntech also alleged, in its preliminary objections, that the suit filed by appellants was barred due to the fact that a prior action was pending covering the same issues raised by appellants in the present action. While it ...


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