Nonetheless, the court did rely upon the doctrine of laches to deny the requested relief. Pa.R.C.P. No. 1509(b) explicitly states that "[t]he objections of laches and failure to exercise or exhaust a statutory remedy may be raised by preliminary objection, answer or reply but are not waived if not pleaded." That rule, adopted in 1952, apparently is based upon the Supreme Court's decision in Grange National Bank of McKean County v. First National Bank of Bradford, 330 Pa. 1, 198 A. 321 (1938), where the Court stated, "It makes no difference that laches were not pleaded in defense. When the fact of laches appears in evidence or on the face of the bill the court may in its discretion and on its own motion deny relief upon that ground.
See also, Cities Service Oil Co. v. Puerto Rico Lighterage Co., 305 F.2d 170 (1st Cir., 1962); Intercontinental Transportation Co. v. The Tug Switcher No. 2, 221 F. Supp. 748 (D.S.D.Texas, 1963); 91 A.L.R.2d 1417. This Court has held that a court may deny relief if laches appears in the evidence or on the face of the bill or pleadings. Grange National Bank v. First National Bank of Bradford, 330 Pa. 1, 4, 198 A. 321, 323 (1938); Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966). Moreover, the defense has been held to be capable of being raised by preliminary objection.
See, Tozier v. Brown, 202 Pa. 359, 51 A. 998 (1902). While laches is an affirmative defense and ordinarily will not be applied until after full inquiry into all of the circumstances, if the fact of laches appears on the face of the pleadings, relief may be denied on this ground: Grange Nat. Bk. v. First Nat. Bk., 330 Pa. 1, 198 A. 321 (1938), and Blank Gottschall Co. v. First Nat. Bk., 355 Pa. 502, 50 A.2d 218 (1947). It is also our studied conclusion that the doctrine of laches applies in disputes of the nature presented.
Ordinarily it is a question of fact and is addressed to the sound discretion of the chancellor. Pehlert v. Neff, 152 Pa. Super. 84; Grange National Bank v. First National Bank, 330 Pa. 1; Suburban Land Co. v. Town of Billerica, 314 Mass. 184, 191. And his decision in the matter will not be reversed on appeal unless it is clearly wrong.
A plainer case for the application of the doctrine of laches could hardly be imagined. The learned court below was, therefore, warranted in dismissing the plaintiff's complaint on the additional ground of laches: see Grange National Bank of McKean County v. First National Bank of Bradford, 330 Pa. 1, 3-4, 198 A. 321. In conclusion, we cannot refrain from echoing the learned chancellor's comment that "plaintiff's charge that [the Hofmanns] were 'milking' the corporation is unrealistic and comes with ill-grace."
e of the Secretary of Mines. This issue or defense was not raised in the Commonwealth's petition to the lower court raising the question of jurisdiction, and although orally argued before the lower court, was not considered by said court to be properly before it. There are three conclusive answers to the Commonwealth's contention. First, there is no provision in the Act or in the amendment limiting the time for taking an appeal from an order of the Secretary of Mines; second, the orders or directives of the Secretary were continuing ones, and the operators were aggrieved by them up to and including the time they filed their petition; and finally, this defense raises a question not of jurisdiction but of laches. While laches can be taken advantage of by demurrer or by preliminary objections without requiring a plea or answer to bring it to the notice of the court, the laches must be clearly apparent from the bill or petition itself: West, Admrx., v. Young, 332 Pa. 248, 252, 2 A.2d 745; Grange Nat. Bank v. First Nat. Bank, 330 Pa. 1, 198 A. 321; Riley v. Boynton Coal Co., 305 Pa. 364, 370, 157 A. 794; Kinter v. Commonwealth Trust Co., 274 Pa. 436, 118 A. 392; 30 C.J.S., Equity, § 113, p. 523. No laches is apparent in plaintiff's petition in this case.
The collateral was sold on September 16, 1936. The court below appropriately quoted what this court said in Grange Nat. Bank of McKean County v. First Nat. Bk. of Bradford et al., 330 Pa. 1, 198 A. 321, as follows: "Laches bar relief in equity whenever in the chancellor's discretion a party has by his delay disentitled himself to the unusual remedies equity affords to those who deserve them: Riley v. Boynton Coal Co., 305 Pa. 362, 157 A. 794; Kinter v. Commonwealth Trust Co., 274 Pa. 436, 118 A. 392." Appellant's 7th assignment of error is based on the admission, over objection, of the testimony of Maxwell Potruch. The argument is that this witness was "a surviving party to a thing or contract in action between himself and Rupp. By reason of the bank's application of the proceeds of the collateral which is the basis of plaintiff's complaint, Maxwell Potruch's liability on these notes was terminated.
On the other hand there is evidence that plaintiffs' counsel died in January, 1937, and had to be succeeded by another; that plaintiffs were involved in other active litigation. The record will not support a finding that defendants were injured because the suit was not brought sooner, even if we should assume that plaintiffs, who deny knowledge of it, learned of defendants' claim in November, 1935. The application of the doctrine of laches is governed by a well-settled equitable principle: Grange Nat. Bk. v. First Nat. Bk., 330 Pa. 1, 3, 198 A. 321; Barnes Tucker Co. v. Bird Coal Co., 334 Pa. 324, 5 A.2d 146. In applying the rule, and after taking out, as we must, the time between October, 1931, and November, 1935, we all think it inequitable, in the circumstances, to affirm the dismissal of the bill on the ground of laches.
In Dalzell v. Lewis, supra, this court, in an opinion by Justice FRAZER, said: "While a court of equity is not bound by the statute of limitations, it will frequently adopt and apply the statute to corresponding rights and remedies as in a court of law: Hamilton v. Hamilton's Executors, 18 Pa. 20; Neely's App., 85 Pa. 387; Borland's App., 234 Pa. 280, 287 [83 A. 110]; and will refuse relief to parties who have slept upon their rights or have been negligent in asserting them: Slemmer's App., 58 Pa. 168; Halsey v. Tate, 52 Pa. 311. This is especially true where parties to a transaction are dead or cannot be found and documentary evidence has been lost or destroyed: Tozier v. Brown, 202 Pa. 359." In Grange Nat. Bk. v. First Nat. Bk., 330 Pa. 1, 3, this court, speaking through Mr. Justice DREW, said: "Laches bar relief in equity whenever in the chancellor's discretion a party has by his delay disentitled himself to the unusual remedies equity affords to those who deserve them [citing cases]. . . . Plaintiff cannot complain because it has been visited with the consequence of its inexcusable delay."
After this protracted delay, it would be unreasonable to require the defendants to make an exhaustive examination of the books and records of the company from 1904 that would obviously be required to prepare the case for trial. . . . "In the recent case of Grange National Bank of McKean County v. First Nat. Bank of Bradford, 330 Pa. 1, Mr. Justice DREW summarized the application of laches as follows: 'Laches bar relief in equity whenever in the chancellor's discretion a party has by his delay disentitled himself to the unusual remedies equity affords to those who deserve them: Riley v. Boynton Coal Co., 305 Pa. 364; Kinter v. Commonwealth Trust Co., 274 Pa. 436. Plaintiff knew of its rights in 1918; indeed, it brought an action of law to enforce them. But not until 1927 was there any resort to equity.