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ESTATE DOROTHY M. DOERR (10/31/89)

filed: October 31, 1989.

IN RE ESTATE OF DOROTHY M. DOERR, DECEASED. APPEAL OF FRANK E. DOERR


Appeal From Order Entered Docketed January 12, 1989, Court of Common Pleas Orphans Division, Allegheny County, No. 416 of 1986.

COUNSEL

Robert W. Beilstein, Pittsburgh, for appellant.

Richard W. Hosking, Pittsburgh, for Janet Kersting, participating party.

Cavanaugh, Brosky and Rowley, JJ.

Author: Cavanaugh

[ 388 Pa. Super. Page 476]

This case involves an action brought by Mellon Bank, N.A., Executor of the Estate of Dorothy M. Doerr, Deceased, to adjudicate title to personal property pursuant to 20 Pa.C.S. 711(17).*fn1 The personal property at issue is stock representing a 51% interest in Doerr Bros., Inc., which Dorothy M. Doerr, decedent, bequeathed to her daughter, Janet Doerr Kersting, appellee. Mellon Bank brought this action when appellant, Frank E. Doerr, son of decedent and brother of appellee, refused to transfer the stock so that the bank could distribute it to Mrs. Kersting according to the terms of decedent's will. The trial court entered an order vesting fee simple title to the stock in appellee. The court en banc dismissed the exceptions of appellant and this appeal follows.

Appellant and appellee are the natural children of decedent and Frank A. Doerr, Jr., as is another daughter, Dorothy K. Rothert, who was a party below but has not joined her brother in this appeal. The present dispute arose after appellant discovered that his mother's will left stock representing a 51% interest in the family company, which he presently runs, to his sister, instead of himself. Decedent had acquired essentially the same stock as a bequest from

[ 388 Pa. Super. Page 477]

    her husband, Frank A. Doerr, Jr., who died in 1971 owning more than 99% of Doerr Bros., Inc.*fn2

Decedent received the stock pursuant to an uncontested decree, dated May 2, 1973, in the Estate of Frank Doerr, Jr., No. 798 of 1971, Allegheny County Orphan's Court, which made no mention of, or provision for, a life estate. The 1973 decree also awarded to appellant stock representing a 49% interest in the company. Stock certificates evidencing ownership in each of the two legatees were issued to them. Soon thereafter, the Board of Directors of Doerr Bros., Inc, undertook a stock redemption scheme in which a similar ratio of ownership between appellant and decedent was maintained. Neither the original nor the reissued stock certificates bore any restrictive legends, nor was there any other indication that Dorothy M. Doerr's shares were being held in trust for her during her lifetime.

We agree with the trial court that laches bars appellant's present claim that his mother had only a life estate and that he possessed a remainder interest in the stock.*fn3 The application of laches depends on whether the complaining party is guilty of a want of due diligence in failing to assert his rights, which works to another's prejudice. In re Estate of Marushak, 488 Pa. 607, 413 A.2d 649 (1980); Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977).

[ 388 Pa. Super. Page 478]

Laches requires not only a passage of time, but also a resultant prejudice to the party asserting the doctrine. Young v. Hall, 421 Pa. 214, 218 A.2d 781 (1966) citing Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964). Laches is based on "some change in the condition or relations of the parties which occurs during the period the complainant unreasonably failed to act." Leedom, 473 Pa. at 201, 373 A.2d at 1333. Laches is a factual issue ...


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