Stahl v. First Pennsylvania Banking & Trust Co. ( 1963 )

Dissenting Opinion by

Mr. Justice Cohen:

After devoting nearly half of its opinion to dicta concerning the question of whether the petition states a cause of action, the majority then abandons that ground and bases its decision solely on the ground of laches—a matter not decided by the court below and only mentioned in passing by the parties on this appeal. The majority’s observations and innuendoes as to whether these funds are escheatable will serve therefore only to confuse future litigants and to cause this Court unnecessary problems when the issue is again presented. I must respectfully disassociate myself from such judicial behavior.

As for the question of laches, I disagree with the majority that the issue can be decided on the basis of appellee’s preliminary objections. We have consistently held—as the majority recognizes—that laches can be raised by preliminary objections only where it clearly appears on the face of the petition. See, e.g., Bowie Coal Company Petition, 368 Pa. 102, 108, 82 A. 2d 24, 27 (1951). But the allegations of prejudice upon which the majority relies—payment of past dividends and mergers based on these funds—do not appear in the petition but are mentioned for the first time in the preliminary objection itself. Since these factual assertions are not admitted by appellant, we have, to use the majority’s term, “a speaking demurrer” and consequently the defense of laches has been improperly raised.

Moreover, as Ave stated in Rush v. Butler Fair & Agricultural Association, 391 Pa. 181, 186-87, 137 A. 2d 245, 248 (1958), “usually the question of laches can be determined only after the court has had an opportunity to appraise the evidence and so determine whether a valid reason exists for the delay in bringing suit.” Consequently, even if the factual assertions of prejudice prove to be true, appellant should be given the opportunity to explain and defend its actions.

Accordingly, I dissent.