Opinion
Submitted October 3, 1950.
November 13, 1950.
Equity — Pleadings — Scandalous matter — Laches.
1. In a proceeding in equity, an order sustaining preliminary objections to the bill on the grounds that it contained impertinent and scandalous averments and disclosed laches was affirmed on appeal. [602-5] Attorneys — Pleadings — Statements in — Responsibility for.
2. The language in a pleading is the language of the attorney who draws it, and he cannot evade responsibility for it by quibbling as to his personal good intentions. [603]
Before DREW, C. J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeal, No. 76, March T., 1950, from order of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 2033, in case of C. V. Keefer, also known as Clifton V. Keefer v. John C. McGinnis, also known as John Charles McGinnis et ux. Order affirmed.
Bill in equity.
The facts are stated in the opinion per curiam of the court below, PATTERSON, THOMPSON and O'TOOLE, JJ., as follows:
Preliminary objections are raised to complainant's bill. The three objections raised are: (1) That the bill reveals gross laches on the part of complainant; (2) that the bill contains impertinent, irrelevant and scandalous matter; and (3) that the bill is verbose, repetitious, confusing, inconsistent, and so general in character as to render it impossible to make a responsive or adequate answer.
We are quite in accord with defendants in their objections to the language, tenor and effect of the bill. It concerns the conduct of defendant as a practicing lawyer for many years in good repute with the bench and bar and the community in which he lives. He is accused of having repeatedly lied, cheated, defrauded, and deliberately contrived by devious and deceptive measures to misappropriate plaintiff's property, taking advantage of his position as counsel. It is iterated and reiterated that in violation of his professional trust he secretly and with "cunning calculation and fraudulent plan in mind" and with "deliberate intention to fraudulently cheat the complainant", gave false advice and mortgaged and conveyed property owned by complainant. These averments are repeated without any circumstances to warrant such conclusion. It is of no avail for counsel to argue orally that he was without personal animus. The substance of an equitable cause of action lies in the knowledge of the client, but the language of the pleadings is the language of the pleader himself. The client trusts the lawyer to phrase the facts with legal precision and exactitude and with a definite regard for the proprieties. The pleader cannot evade responsibility by quibbling as to his personal good intentions. We deem the bill as a whole so replete with impertinent and scandalous averments as to warrant the penalty of having it stricken.
There are more cogent reasons, however, for its dismissal. Laches is patent in the bill itself. After recital of defendants' alleged fraudulent procurement of a mortgage in May 1928, the complainant avers that "three months thereafter the defendant" with "devious, calculated threats" began to press foreclosure. On January 8, 1929, complainant executed certain assignments to defendant. On August 15, 1929, complainant alleges defendant procured a deed from him by false pretenses and promises. There is a conflicting and confusing paragraph as to the acquisition of a mortgage against complainant at a discount on or about September 3, 1931. In paragraph 23 complainant says he quite by "incident" (sic) came into the knowledge of the foregoing transaction and went immediately to defendant to demand an explanation, which defendant refused.
We are not unmindful of the rule that laches is not measured by statute of limitation or by time alone. It depends wholly on whether plaintiff under the circumstances is chargeable with want of due diligence in failing to institute proceedings. Penna. State Board etc. v. Schireson, 360 Pa. 129, 131-132; Leseman-Frederick Co. v. Diebold, 359 Pa. 89, 92; Lutherland, Inc. v. Dahlen, 357 Pa. 143, 157; First National Bank v. Lytle Coal Co. et al., 332 Pa. 394, 396.
There are no facts or circumstances in the instant case which explain complainant's delay for twenty-one years, nor any suggestion of fraud, deception or concealment which might excuse such delay. In fact, from three months after the inception of the deal, if the averments of complainant's bill are to be believed, he had the right to discharge defendant as his counsel. The time elapsing between the original transaction and the institution of legal proceedings operates in favor of defendant's innocence and against the imputation of fraud.
Of like effect is the bar of the limitation of five years contained in the Act of 1856, P. L. 532, Sec. 6 (12 PS Sec. 83). This Act is a statute of repose to assure certainty of title. Johnson v. Hobensack, 318 Pa. 305, 310. Where, as here, fraud is alleged, the trust is barred within five years of the discovery of the fraud, or the time when by the exercise of reasonable diligence, it should have been discovered. The allegation that the "fraud was `just recently discovered' cannot excuse the failure" to act. Connell v. Commonwealth Trust Co., 312 Pa. 33, 35; Ross v. Suburban Counties Realty Corp., 356 Pa. 126, 129.
It is to be noted that the complainant's bill makes no offer to reimburse the defendant for money he has admittedly expended but only asks that defendant be declared the trustee ex maleficio and to reconvey the property involved to complainant. He who comes into equity must do equity, and it is important in such a bill as this to offer reimbursement to defendant if it should so develop that he is entitled to reimbursement. Stimson v. Stimson, 346 Pa. 68, 71.
It may be noted that complainant has filed an anomalous pleading in answer to the preliminary objections which he calls a replication. We know of no procedural authority for such a pleading and have treated it in this opinion as surplusage.
Plaintiff appealed.
Louis V. Barach, for appellant.
James H. Grail, Joseph F. Weis and Alexander P. Lindsey, for appellees.
Order affirmed on the opinion of the learned court below.