No. 2422 October Term, 1977, Appeal from Order of the Court of Common Pleas, Berks County, entered August 5, 1977, at No. 4016, 1975. Civil Action, Equity.
Craig S. Boyd, Boyertown, for appellants.
John C. Bradley, Jr., Reading, for appellees.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price and Van der Voort, JJ., dissent. Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 287]
This is an appeal from the entry of a non-suit by the Chancellor following the close of appellants' case in chief. This resulted, of course, in the dismissal of appellants' Complaint in Equity.
In granting the non-suit, the Chancellor found that appellants' complaint and the relief sought were barred by the equitable doctrine of laches. The Chancellor concluded: "The doctrine of laches should be pursued diligently when the failure of a plaintiff (the appellants herein) to exercise his rights has resulted in prejudice to the defendant (the appellees herein). This is just such a case" (T. 73a).
Thereafter, appellants filed timely exceptions to the Chancellor's opinion (sic, adjudication) which were argued before a court en banc. The court en banc opined:
[ 259 Pa. Super. Page 288]
We have reviewed the record and have concluded that, under the circumstances of this case, McConnells are guilty of want of due diligence in failing to submit their complaints against Wells prior to Wells' death, the hurricane of 1972, the break in the raceway and the vesting of the interest of the Butlers. In brief, there is no merit in the plaintiffs' exceptions.
It is from the court en banc's refusal of appellants' exceptions that the instant appeal has been taken.
We disagree with the action of the court en banc and order that the non-suit be taken off and the hearing be ...