Appeal, No. 237, Jan. T., 1952, from decree of Court of Common Pleas No. 5 of Philadelphia County, June T., 1949, No. 2841, in case of Joseph Slater v. Raymond Slater, also known as Ray Slater, et ux. Decree affirmed.

Bill in equity.

The facts are stated in the opinion by ALESSANDRONI, J., of the court below, as follows:

This is a bill in equity seeking the cancellation of deeds; a declaration that defendants hold certain property as trustees; and to enjoin any dealings by defendants with respect to the title of certain property. The transactions which are the basis for this bill were said to arise during the period in which plaintiff, Joseph Slater, and defendant, Raymond Slater, also known as Ray Slater, were partners in a trucking business. The defendant, Helen Slater, is joined solely because she, with defendant Raymond Slater, holds certain property as tenants by the entireties. This is a companion bill to No. 6418, March Term, 1949, requesting a partnership accounting instituted by the same plaintiff.

The accounting requested in the above named bill was denied; Helen Slater was not named as defendant. The Chancellor found as a fact that the alleged partnership was dissolved as of October 30, 1939. This finding was sustained by the Supreme Court in Slater v. Slater, 365 Pa. 321, at 324. The question now before us is whether or not the decision in the prior bill is a bar to this bill under the principles of res judicata.

In Hochman v. Mortgage Finance Corp., et al., 289 Pa. 260, at p. 263, the Court said: "The thing which the court will consider is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties actually had an opportunity to appear and assert their rights." In that case plaintiff and others had filed a bill asking for the appointment of a receiver, which was denied. Thereafter plaintiff joined with persons other than those of the first bill and sought the same relief. In sustaining the applicability of res judicata, the court took a broad view, refusing to be bound by mere technical requirements. The application of the doctrine will not be defeated by minor differences of form, parties or allegations when these are contrived to obscure the real purpose.

In Baroutsis v. Gregory, et al., 154 Pa. Super. 136, res judicata was held to bar a second suit by plaintiff against the same defendant despite the fact that additional defendants were joined. The application of the doctrine was sustained because the pivotal issue in both cases was the same, namely, the location of the correct division line between plots of land. The same evidence offered during the first trial would have been necessary to sustain plaintiff's allegations in the second suit.

Paragraph 16 of the bill alleges that the properties in question were purchased by money obtained from partnership funds by the defendant without accounting to the plaintiff for the same. The properties were purchased on several dates between December, 1941 and June, 1946. The partnership was held to have been terminated October 30, 1939. It is clear that in order to prove the allegation of paragraph 16 plaintiff will have to establish the existence of the partnership during the period in which the properties were purchased. The continuance of the partnership after the dissolution date in 1939 was in issue in the prior proceedings. The Chancellor found against the plaintiff; plaintiff appealed to the Supreme Court, after the court en banc sustained the Chancellor, and the Chancellor's finding was again sustained. Under the well settled doctrine and purposes of res judicata this is a clear case for its application. The purpose of res judicata, namely, to put an end to litigation once the parties have had their "day in court", is a salutary one. Were it otherwise, a litigious plaintiff would be able to harass a defendant indefinitely.

In the instant case, plaintiff has had his chance to establish the continuation of the partnership after the alleged dissolution. He cannot now return, having failed, and again attempt to establish the existence of the partnership to the present. The mere addition of Helen Slater as a defendant is not sufficient to defeat the defense of res judicata. The pivotal issue will be the existence of the partnership. Since the issue in the instant case is identical with that in the companion proceedings, the prior decision is controlling.

Plaintiff contends the defendant by his action has waived the estoppel of res judicata. The argument is based on the action of the defendant in continuing to use the partnership name for the purchase of liability insurance and also in operating under the Certificate of Authorization of the Pennsylvania Public Utility Commission. Plaintiff therefore concludes that this activity amounts to a waiver; even assuming the actions of defendant amounted to a waiver, plaintiff cannot assert such because he has participated in the activity by not taking steps to prevent it. The Court said in Slater v. Slater, supra, at page 324: "However, '. . . If he [plaintiff] cannot prove his case without showing he has broken the law or participated in a fraudulent transaction, the court will not assist him." The plaintiff at all times could have and should have seen to it that the certificate and insurance were changed. In fact it must be assumed plaintiff did the same thing, i. e., continued operations under the same certificate as he now asserts that the defendant did. Having failed to do so, he cannot now argue that defendant's activity bars the application of res judicata.

Defendant has failed to sustain his request for counsel fee under Equity Rule No. 49 on the basis that ". . . the bill contains impertinent, irrelevant and scandalous matter, which was maliciously asserted for the purpose of injuring defendant", and accordingly his request will not be granted.

Decree entered dismissing bill. Plaintiff appealed.