author: Kun, J.,

text:
    Speier v. Michelson.

      Charles A. Wolfe and W. W. Montgomery, Jr., for plaintiff.

      David Malis, for defendant.
    Oct. 18, 1930.
   Kun, J.,

The plaintiff and the defendant in this ease are owners of premises Nos. 4813-15 North Broad Street, in the City of Philadelphia. A mortgage of $15,000 against the premises fell due and payment was demanded by the mortgagee. Defendant was unable to put up his entire one-half portion, and the plaintiff advanced to him the sum of $5000 in cash to enable him to do so, to repay which the defendant, on Jan. 18, 1930, executed his promissory note in the usual form to the order of the plaintiff, payable six months after that date. The note was not paid when it fell due and plaintiff filed this suit thereon.

By the affidavit of defense filed the allegation that on Jan. 18, 1930, defendant for a good and valuable consideration made and delivered the note to the plaintiff admitted. The defense set up is that on Jan. 16, 1930, that is, two days prior to the execution of the note, it was orally agreed between the parties that the note was to be paid out of the proceeds (presumably the defendant’s share of the proceeds, although not so stated) received from the sale of the premises Nos. 4813-15 North Broad Street, which had been sold by the parties to one Moore on March 6, 1928, nearly two years before; that by written agreement between the sellers and the purchaser the time for settlement had on Jan. 13, 1930, been extended for a period (apparently a further period) of six months.

The affidavit of defense further sets up that the settlement for the premises was not made at the extended time; that negotiations are in progress for a further extension, although the parties have come to no agreement about it; and, further, that the defendant was not to be called upon to pay the note for $5000 unless the purchaser, Moore, would definitely and finally give written notice to plaintiff and defendant that he would not make settlement for the premises. This is a palpably insufficient defense. Under its averments the note might never fall due, because Moore might never settle and yet might never give written notice that he would not do so;_ that is, he might abandon the whole thing, which he probably has, considering the lapse of time since the agreement of sale was made, now going on three years. It may be added parenthetically that it is a matter of common knowledge that there has been a marked depression in the real estate market, so there is little or no likelihood that any purchaser would settle at this time for properties bought at 1928 prices.

However that may be, the affidavit of defense alleges no fraud, accident or mistake in the execution of the promissory note in suit, and could not very well do so, since the note was given by the defendant for the identical amount of cash advanced by the plaintiff to the defendant, to wit, the sum of $5000. It is not even alleged by defendant that he was induced to sign the note under the alleged arrangements referred to, nor could it in reason be so alleged, because it could be more properly said that plaintiff was induced to put up the $5000 cash by defendant agreeing to repay it to him in six months, the evidence of which agreement on his part was his promissory note in suit. Moreover, it could not be very well alleged that it was a contemporaneous inducing agreement, because, under the pleadings, the note in suit was executed on Jan. 18, 1930, which is admitted by the affidavit of defense, whereas the alleged arrangements for the payment of the note, contrary to its terms, was made two days prior thereto, Jan. 16, 1930. On this ground alone the defense could be held to be insufficient: Williams et al. v. Notopolos, 259 Pa. 469, in which case it is also stated, page 474: “There was no allegation that anything was left out of the lease by fraud, accident or mistake, and in the absence of such an averment, the terms of a written instrument are not to be varied by setting up a parol agreement, even though it was contemporaneous with the execution of the written document: General Motors Truck Co. v. Philadelphia Paving Co., 248 Pa. 499; First National Bank of Shickshinny v. Tustin, 246 Pa. 151; Crelier v. Mackey, 243 Pa. 363.” Under this late expression of the law on the subject, in the absence of any averment of fraud, accident or mistake, the alleged parol agreement could not be allowed to vary the plain terms of the written instrument of liability, in this case a promissory note in the usual form, even were the parol agreement alleged to have been made contemporaneously with the execution of the note: Citizens National Bank v. Wisecarver, 300 Pa. 60. The case before the court might be disposed of on what has already been stated. However, because of the frequency with which such defenses as were set up here are interposed, delaying palpably just claims, it is deemed advisable to add some further views of the court on the subject.

From the earliest times in our jurisprudence, equitable principles have been followed in our courts of law. That is, equity has been applied at law. It has been under this influence that alleged oral understandings in connection with writings have been permitted to be shown on the underlying theory that some fraud had been practiced or through accident or mistake the alleged oral agreements had been omitted from the writings, or, as it has been characterized in other cases, the writing was executed under some inducing contemporaneous oral agreement, which is but another way of saying that fraud was practiced. Now, in some of the earlier cases the mere violation of some promise to do something in connection with the matter in the future was held to be a sufficient fraud to permit the alleged oral understandings to be shown. These rulings, no doubt, followed upon the. conclusions by the courts that some sort of fraud had in fact been practiced in those cases and it became necessary to use certain expressions of the law to justify the rulings. It became apparent to our appellate courts as our law developed that too wide a latitude had been allowed in some instances in the application of the parol evidence rule, so that it became necessary to considerably restrict the application of it as indicated by the quotation from Williams v. Notopolos, noted above. Some of the older cases cited by the defendant are explainable as coming under our earlier theory of the law on the subject. The most recent case cited by the defendant, Keller v. Cohen, 217 Pa. 522, is entirely inapplicable to the case before the court because in that case there was a collateral agreement in writing between the parties, providing for the payment of certain notes out of a particular fund. Manifestly, the parties could so agree in writing, but the maker of a note could not set up such an agreement by parol, in the absence of an averment of fraud, accident or mistake and setting out what the fraud, accident or mistake was. Indeed, in one of the older cases, Homewood People’s Bank v. Heckert, 207 Pa. 231, in which a somewhat similar defense was attempted, that is, that the note in suit was not to be paid excepting out of the proceeds of the sale of certain buildings and was to be renewed from time to time until sufficient sales were made to pay the notes, it was said (page 232) : “Admit all the facts set out in the affidavit, they only amount to proof of an oral agreement flatly contradicting the written instrument. Fraud, accident or mistake could not be averred on such an agreement, in the face of the absolute written agreement to pay a fixed sum on a day certain. At the very most, it amounts only to a parol promise of further time indulgence to the debtor by the creditor. As said by Sharswood, J., in Heist v. Hart, 73 Pa. 286, ‘such parol agreement though made at the time is inadmissible in evidence to vary the effect of the written contract.’ ”

There has unquestionably been a decided tendency in the more recent cases to uphold to a greater extent the dignity and integrity of written contracts, asid it is more marked where the integrity of such a frequently used instrument as a promissory note is involved. Of course, fraud can always be shown to vitiate a contract, but it must be fraud in connection with the very execution of the writing.

As stated in the late case of United States National Bank v. Evans, 296 Pa. 541, 550: “A breach of faith, or of an agreement, regarding the doing or refraining from doing something in the future is no fraud of the kind that will admit of parol testimony to vary its terms, and it is no defense that the defendants signed their names to the obligation for the unconditional payment of money with the understanding that there will in no event be any liability on their part to pay: Fidelity T. & T. Co. v. Garland, 291 Pa. 297. Thus, a promise that the note should be paid from dividends which might accrue is no defense (Fuller v. Law, 207 Pa. 101), or from the proceeds of buildings which were to be erected: Homewood People’s Bank v. Heckert, 207 Pa. 231.”

While the defendant endeavored to bring his case within the authorities which permit under some circumstances proof of oral contemporaneous agreement providing for payment of the note from a certain fund, he failed because the affidavit does not aver such fund existed or was to be created by means over which the promisor had control, in which situation the fund existing or so raised would first have to be exhausted: Second National Bank v. Yeager, 268 Pa. 167. It may be added that in such a restricted situation there would have to be quite specific averments as to the existence of the fund or as to when and how the fund was to be raised and the means that the promisor had for raising them.

It is doubtful whether the defense set up by the defendant would have been sufficient even under the earlier cases, certainly not under Homewood Peoples Bank v. Heckert, supra,. It is clear to the court that it is insufficient under the law on the subject as it has been laid down for us by the more recent cases, some of which have been cited, and of which the following additional ones may be noted: Evans v. Edelstein, 276 Pa. 516; First National Bank v. Baer, 277 Pa. 184; Gianni v. Russell & Co., 281 Pa. 320; First National Bank of Hooversville v. Sagerson, 283 Pa, 406; Fidelity T. & T. Co. v. Garland, 291 Pa. 297.

The rule for judgment for insufficient affidavit of defense was properly made absolute.


source: Caselaw Access Project

author: Alessandroni, J.,

license: Public Domain

text:
    Krein v. Fairmount Park Guard Pension Fund Association. Concannon v. Fairmount Park Guard Pension Fund Ass’n.

      Albert L. Moise, for plaintiff; Theo. S. Paul, for defendant.
    July 17, 1930.
   Alessandroni, J.,

The plaintiff’s (Krein’s) statement of claim averred that the defendant was a corporation for the purpose of accumulating a fund contributed by its members and other sources in order that pensions might be paid to its members in accordance with the by-laws of the defendant duly approved by the Commissioners of Fairmount Park; that membership is limited to the Fairmount Park guards; that he was required to join the defendant association immediately upon becoming a member of the Fairmount Park guard and was required to pay one day’s pay per month to the defendant association or else be subject to suspension from his employment; that he resigned on July 4, 1929, at which time he had paid $330 into the defendant association, which he now seeks to recover.

The plaintiff, Concannon, in his statement of claim averred substantially the same facts, except that he was discharged and had paid into the defendant association the sum of $234 up to the time of his discharge in August, 1927, which he seeks to recover.

The defendant filed an affidavit of defense raising questions of law as to the sufficiency of the statements of claim. Copies of the by-laws of the Fair-mount Park Pension Fund Association were attached to and made a part of the statements of claim.

The by-laws of the defendant association provide that pensions may be awarded to (1) any member permanently incapacitated by reason of injuries received while in the actual discharge of his duties; (2) any member permanently incapacitated after ten years of service from discharging his duties for any cause other than that enumerated in (1) ; (3) any member who has served twenty years and been honorably discharged; (4) any member who has served twenty years and attained the age of fifty may voluntarily become a pensioner; (5) the widow of any member permanently incapacitated in the discharge of his duties; (6) the children of such deceased member under fourteen years of age; (7) dependent parents of such deceased member, provided no widow or children are drawing the pension. Various sums are awarded to the beneficiaries outlined above according to their qualification. There is no provision for the repayment of money paid into the association by members upon their discharge or resignation.

The by-laws of the defendant association, which was not organized for profit, clearly confer no right upon members under circumstances such as these to a return of payments made by them. During the time that he was employed he and his family were entitled to the benefits and pensions as outlined in the by-laws. It is immaterial that he did not actually receive monetary benefits. The mere fact that he and his family were entitled to the various sums set forth should certain contingencies occur is sufficient and ample consideration for the payments made. A comparison of the pensions to be awarded with the amounts to be paid clearly indicates that the defendant association could not exist if it was compelled to refund all payments made in situations such as this.

The plaintiff fully contracted to be bound by the by-laws of the defendant association, and these do not grant him the right of refund. In these cases the payments made were compulsory, and it was so stated in the plaintiffs’ statement of claim. The authorities clearly indicate that in situations such as these the employee has no claim except upon the happening of the contingencies that entitle him to the benefits or pensions provided by the regulations of the corporation: Clarke v. Reis, 87 Cal. 543; Pennie v. Reis, 132 U. S. 464; also, see note in 54 A. L. R. 943, in which it is stated that there is no fixed right in such a fund if part of the funds are derived by compulsory payments of the employees, citing Pennie v. Reis, supra; Griffith v. Rudolph, 298 Fed. Repr. 672; Ryan v. Foreman, 262 Ill. 175.

It is stated in 21 Ruling Case Law, 243, that “by the great weight of authority the fact that a pensioner has made such compulsory contribution does not give him a vested right in the pension.” In 43 Corpus Juris, 814, the law is stated: “But officers who have m> claim on a fund except upon the happening of a certain event are not entitled to the return of the amount contributed by them to the fund, where they are discharged from the force before the happening of the prescribed event.”

The plaintiffs have sought to amend their statement of claim so as to bring their status under the Act of May 20, 1915, P. L. 568, as amended by the Act of July 5, 1917, P. L. 689, which requires cities of the first class to create a pension fund for “employees of said cities, and of all county or other public employees, if any, paid by appropriation of the city councils thereof, and out of the city treasury thereof. . . .” The act also provides for repayment of the amount contributed upon termination of the employment. This amendment, however, does not validate the plaintiffs’ claims. That act applies only to pension funds created by cities of the first class. The fund herein involved is controlled by a separate corporation, subject only to the control of the Commissioners of Fairmount Park, who, under the authorities, constitute a separate and independent government body which is not answerable to the city nor subject to its control: Philadelphia v. Spangler, 9 D. & C. 577, and the authorities cited therein.

And now, to wit, July 17, 1930, the affidavits of defense raising questions of law are sustained, and judgment in each case entered for the defendant.


author: Lewis, J.,

text:
    The Pennsylvania Company for Insurances on Lives and Granting Annuities v. Stern.

      Saul, Ewing, Remick & Saul, for plaintiff.

      David S. Malis, for defendant.
    July 25, 1930.
   Lewis, J.,

The affidavit of defense alleges payment to the payee of the check. This defense could not be effective as against a holder in due course, but would be entirely valid against one holding as agent or trustee for the payee. Defendant asserts unreservedly that plaintiff’s role in the transaction was simply that of an agent for collection. The usual banking practice of crediting uncollected items to the depositor’s account, while reserving the right to charge back if the item is dishonored, would seem to be inconsistent with the theory of a purchaser of the item for value. In Bank of Wesleyville v. Rose, 85 Pa. Superior Ct. 52, 57, the language of the court is as follows: “It is familiar law that ‘when a bank credits a customer with the amount of a-check, endorsed by him in blank, deposited in his account, the bank does not in the absence of a special agreement, from this fact standing alone become a holder of the paper for value; the title to the check remains in the depositor.’ ” When such paper is dishonored, the hank may charge it back to the depositor without taking the steps necessary to hold him as an indorser. “The relation arising from such a transaction, as between the bank and the depositor, is that the former becomes the agent of the latter for the purpose of collection:” National Bank of Phœnixville v. Bonsor, 38 Pa. Superior Ct. 275, 280; First National Bank of Clarion v. Gregg, 79 Pa. 384; Mechanics Bank v. Earp, 4 Rawle, 384; Hazlett v. Commercial National Bank, 132 Pa. 118; Rapp v. National Security Bank, 136 Pa. 426.

It is true that, under certain circumstances, advances made upon the faith of items in the course of collection may raise a lien upon the paper involved. Under the Act of May 16, 1901, § 27, P. L. 194, this lien then constitutes the holder a holder for value to the extent of his lien: National Bank of Phœnixville v. Bonsor, 38 Pa. Superior Ct. 275, 280.

The courts have, however, been quick to scrutinize transactions which purported to raise a lien of this character: Jones & Co. v. Milliken & Son, 41 Pa. 252, 255; Hackett v. Reynolds, Lamberton & Co., 114 Pa. 328. In the latter case, the court said (page 334) : “We cannot consent to the doctrine that a mere usage and course of dealing between banks, in the transmitting of bills and notes for collection by which they mutually credit the avails in account to overbalances due, can without more, deprive a third person, the real owner of the notes or bills of his rights.”

Hence, to justify a summary judgment, the statement of claim should present a set of facts which not only takes the trahsaction clearly out of the ordinary course of banking practice, as contemplated in Bank of Wesleyville v. Rose, supra, but should show that the alleged purchase for value does not rest on “a mere usage and course of dealing between banks” as distinguished from advances actually made on the faith of the paper.

Mutual Trust Co. v. Huhn, 269 Pa. 348, presents a set of facts closely analogous to the present situation. In discharging a rule for judgment, the following opinion was filed and on appeal was affirmed per curiam: “Their affidavit, however, alleges that they have a set-off which would be available against the claim upon their check, if the action upon it were brought in the name of Danser & Co., the payees.....While this may not be a valid defense as against an ordinary endorsee even when he has acquired the instrument sued upon after payment thereof was refused and he had notice of its dishonor, such a defence is good against one who holds it merely as agent or trustee for the payee. This is the character imputed to the plaintiff by the defendants. The affidavit of defense plainly alleges that the Mutual Trust Company gave no credits or other valuable consideration to Danser & Co. for the defendants’ check and that the check was received and is held by it merely for collection for the account of that firm.”

In the instant case, as in Mutual Trust Co. v. Huhn, supra, “While the affidavit contains much that is irrelevant and that could not be admitted in evidence at trial, it raises material questions of fact that must be settled by a jury before a final disposition of the case can be made.”

The rule for judgment is, therefore, discharged.


author: Clark, P. J.,

text:
    Hunt’s Estate.

      Marsh & Eaton, for accountants; Bernard T. Foley, for beneficiary.
    April 19, 1930.
   Clark, P. J.,

D. W. Hunt, the testator, died Feb. 2, 1915. His will bears date of Dec. 3, 1913. Paul W. McKay and Ritchie T. Marsh were named by the testator as executors and trustees. They qualified and have been acting as such, and filed an account Jan. 10, 1930, as trustees for Alice Evangeline Hunt, a minor, now over eighteen years old. She was born July 6, 1910, and will have attained her majority July 6, 1931. She has chosen a guardian, Benjamin G. Ackerly, and he has been appointed as such and filed his bond.

The testator’s will provides, inter alia, as follows:

“Item: Out of the money and securities on hand or the proceeds derived from the sale of my real estate, I direct my said executors to invest ten thousand ($10,000.00) dollars thereof in bonds of the United States Government and to pay the interest or income therefrom or so much thereof as may be necessary for her support and education, to my grand-daughter, Alice Evangeline Hunt, said payments to be made at such times and in such amounts as in the judgment of my executors she may require, until the said Alice Evangeline Hunt arrives at the age of twenty-one years, or to her guardian if she has chosen one, when she arrives at the age of eighteen years. Upon the arrival of my grand-daughter, Alice Evangeline Hunt, at the full age of twenty-one years, my said executors shall pay to her the principal of said Ten Thousand ($10,000.00) Dollars, and any accrued interest that they may have on hand or to her guardian, if she has chosen one, when she arrives at the age of eighteen years.

“In the event that my grand-daughter, Alice Evangeline Hunt, dies before arriving at the age of twenty-one years leaving issue, the legacy herein bequeathed to her shall be paid to said issue, but in the event of her death without issue, then this legacy shall not vest but shall fall into my residuary estate.”

There survives the testator a son, Reed T. Hunt, and a granddaughter, Alice Evangeline Hunt, who lives with her father, the said Reed T. Hunt, who supports his daughter, the legatee. There has not been any request for a part of the income from the legacy for her support and education, except for a piano, which was furnished at a cost of $375.

The account shows that the $10,000 legacy has increased to $16,702.58, which, less the administration expenses, cost of piano and commission, totaling $1274.13, leaves a balance on hand of $15,428.45.

There were not any exceptions or criticisms of the account, and it is approved.

The important question to be determined is, shall the trustees retain the balance now in their custody or pay it over to the guardian of Alice Evangeline Hunt?

In the first place, the fiduciaries, in their discretion, may pay out of the income at such times and such amounts as their judgment determines, until she arrives at the age of twenty-one, to the proper parties for the support and education of Alice Evangeline Hunt, or if she arrives at the age of eighteen and chooses a guardian, which she has done, and the fiduciaries conclude that a necessity exists for a payment for the purposes designated, they can make such payment to the guardian for these purposes, but the determination as to the necessity is by the will conferred upon them, and the initiative is vested in them until the beneficiary arrives at the age of twenty-one, if she so long lives.

A testamentary trust is created and the bequest to this granddaughter is a conditional one; she takes it if she lives until she is twenty-óne, but if she dies before that time and leaves issue, it goes to such issue. If her death occurs before she is twenty-one and she leaves no issue, then it falls into the residuary estate. The final distribution of the fund cannot now be made by the fiduciaries; they must wait until the time set for distribution expires or death occurs and there is not any surviving issue. These contingencies must be considered and cannot be safely eliminated; the legatee or issue or the residuary estate may ultimately be the recipient of the testator’s expressed provisions, which must be followed.

We cannot interfere with the trustees’ discretion unless there has been a manifest abuse of it. There has not been any abuse, and we cannot re-write the will and terminate their duties.

We find that the testator’s intent was to allow his fiduciaries to administer his estate as we have outlined it and that they should continue to do so as heretofore.

And now, to wit, April 19, 1930, it is adjudicated, ordered and decreed that the account is approved and that the fiduciaries retain the funds in their hands and proceed to the settlement of them in accordance with the provisions of the will and with the foregoing opinion.

Prom Otto Herbst, Erie, Pa.


author: Morrow, J.,

text:
    Commonwealth v. Scott.

      3. B. Adams, District Attorney, and A. E. Jones, Assistant District Attorney, for Commonwealth.

      W. C. McKean, for defendant.
    June 17, 1930.
   Morrow, J.,

The defendant, John L. Scott, was charged with the murder of Emma Hertzog. On being arraigned he pleaded guilty of the murder whereof he stood indicted, leaving it to the court to determine the degree of the crime, and the punishment, under section 74 of the Act of: March 31, 1860, P. L. 382, and section 75 of said act as amended May 14, 1925, P. L. 759. We proceeded, by examination of witnesses, to determine the degree of the crime. Much testimony was taken; that on behalf of the defendant being for the purpose of showing that he was of such mentality as to be guilty of murder in the second degree, but not of murder in the first degree. This will be considered hereinafter. Counsel for the defendant did not call the defendant as a witness in his own behalf and offered no testimony touching' upon the killing. Consequently, the testimony introduced by the Commonwealth concerning the murder and as to the actions and statements of the defendant thereafter stands uncontradicted and undisputed. It may not be incumbent on us to discuss the evidence: Com. v. Paul, 289 Pa. 452. However, we will make mention of important parts thereof before stating, our conclusion.

Mrs. Emma Hertzog was a woman about seventy-seven years of age. Her husband had died a year or two prior to her death. They had lived for many years on a small farm in Springhill Township, Fayette County, and she had continued on the farm after her husband’s death. The defendant, a single man, about forty-six years of age, was a nephew of Mrs. Hertzog, the son of a sister of hers. Much of the time during the last thirty years or longer he made his home with Mr. and Mrs. Hertzog. After Mr. Hertzog’s death he continued making his home with his aunt. Just prior to her murder she had made arrangements to move from the farm to Point Marion. The defendant was not to move with her. She had her household goods and furniture that she intended to take packed and wrapped ready for moving, and had arranged with a truckman living at Gans Station, a half mile away, to come on the morning of Oct. 19, 1929, and move her and her belongings to her new home in Point Marion. He was in his truck at his garage shortly after seven o’clock that morning, ready to start to Mrs. Hertzog’s, when the defendant came up and told him she didn’t want to move that day, but would sometime the next week. The defendant seemed natural and there was nothing about his appearance or conduct to arouse any suspicion that he was deceiving. The defendant then went from the garage to where Charles Conn was about to begin husking corn in a field by the road, one-fourth mile away, in the direction of the Hertzog home. This was before eight o’clock in the morning. He volunteered to help Mr. Conn husk corn, stating that he did not have anything to do. Mx*. Conn thought nothing of this, as the defendant had before helped him and other neighbors with their farm work. They husked corn until about ten o’clock in the forenoon, when they took the corn to Mr. Conn’s home, near Gans Station, unharnessed the horses and the defendant left, accepting no pay for his work. Mr. Conn asked him to have dinner, but he declined, stating he would eat sometime when he could eat more. During all the time the defendant was with Mr. Conn he never mentioned Mrs. Hertzog. He then went to the Burchinal store, opposite the station at Gans, and was around the store and station for perhaps two hours, waiting, ostensibly, for the local freight train on which he was expecting some roofing material for Andrew Hertzog, who lived near. None came on the train and he went to Andrew Hertzog’s, repaired some fence and left about three o’clock in the afternoon. Up to this time no one noticed anything unusual in the defendant’s appearance or actions. A half hour later he appeared at the Ruble home, located some six hundred feet east of the home of Mrs. Hertzog. The Paul Conn home is about the same distance west of her home, and is nearer Gans Station. These houses are the two closest to Mrs. Hertzog’s. At the Ruble home he inquired for Mrs. Ruble, who was away. Her daughter, Nancy, a young lady, was there. He said to her, “Emma is dead,” adding that he had found her on the floor dead. She asked him if he wanted her to go down, and he replied that he did not, that he would get Mrs. Conn. He then went to the Paul Conn home and made the same report to Mrs. Conn, who went with him at once to the Hertzog home and saw Mrs. Hertzog lying dead on the kitchen floor. She was lying on her stomach, with the right side of her face on the floor and her hands underneath her body. There was about a teaspoonful of blood on the floor underneath her head. This had come from her ear. Mrs. Conn and the defendant picked up Mrs. Hertzog and laid her on a bed in the adjoining room. The body was then cold and stiff. She did not suspicion that Mrs. Hertzog had been murdered, nor did the other neighbors who soon came in. It seems to have been assumed that she died of a stroke or heart trouble. The undertaker was called and the body was taken to his morgue at Smithfield. Mrs. Conn stayed and cleaned the blood from the kitchen floor, started the fire and prepared supper for the defendant. She left while he was eating, he remaining there alone.

The undertaker called the coroner, who came that evening and with him was the county detective. His examination disclosed marks of violence on the body of the deceased. He found a discoloration under the left eye, as though the eye had been blackened; a bruise on the right cheek; a bruise on each arm, the one on the left showing five distinct marks, indicating it had been made by a grip of the hand, the marks being of the four fingers and thumb; and on the neck were two marks or grooves. One was a deep groove on the front of the neck below the chin, extending from ear to ear. It was a deep groove in the skin and muscle of the neck. The other was parallel therewith, but not deep. The coroner found some rope in the kitchen, on the stairway, that fitted perfectly in the deeper groove. It was small rope, such as had been used in binding the carpets, which were ready for moving. The cause of death was strangulation.

The county detective and the coroner found the defendant at the Ruble home that night. He affected innocence, stating that Mrs. Hertzog had intended moving that morning, but complained of feeling ill and asked him to notify the man who was to do the moving that she would like to postpone it until sometime the following week; that he did so, then assisted Mr. Conn for two or three hours at corn husking; after this, waited at the station for the train, expecting some roofing for the A. J. Hertzog barn, and, none being put off at the station, he went on up to the A. J. Hertzog farm, repaired a fence and gathered some chestnuts, which he brought down to the house, and, after talking a short time to a man there, went back to the home of the deceased, arriving there about three-thirty. On going into the house he discovered Mrs. Hertzog lying on the floor and immediately went to the Ruble home and the Conn home, giving notice of her death. He said she had had trouble with her heart, and it was a case, so far as he could see, of being heart trouble.

The defendant accompanied these officers back to the morgue. He there saw the rope fitted into the groove on the neck of the deceased, and then said: “It looks like murder, all right,” repeating this statement a little later in the automobile, before they left Smithfield, and inquired in substance whether it would be possible for tramps or bums to have come along there and attacked the old lady for her money. This was on Saturday night, Oct. 19th. The county detective kept him in his custody while continuing his investigation. Sunday night he accused the defendant of the crime, but he denied it. The defendant was then taken to the state police headquarters at Greensburg and on Monday evening he made a statement admitting guilt, which he substantially repeated the following night after being brought back to the county detective’s office. This latter statement was introduced in evidence after the stenographer who wrote and transcribed it, and the four officers who were present when it was made and who witnessed the defendant’s signature thereto, had all testified that it was voluntarily made by the defendant. Before making this statement the officers had taken him out to the home of the deceased, where he showed them how Mrs. Hertzog came to her death, his statements then being in line with his written statement made later that night, as aforesaid, but not at the same length, so far as the evidence discloses.

In this written statement he says that he got up on the morning of Oct. 19, 1929, about five-thirty, had breakfast prepared by Mrs. Hertzog, after which they got to quarreling, she running after him and making fun of him; that she got the poker after him and threatened to kill him, and he choked her a little, she having a handkerchief around her neck, which he grabbed and choked her, and she began coughing and coughed until she died; that she went down on her knees coughing and was strangled to death, but that he did not intend to kill her; that he did not know how she got the discoloration below the left eye and the bruise under the right; that he didn’t think he hit her; that he threw the handkerchief into the fire in the stove, then went and stopped the drayman from coming, not wanting him to find the body. His recital in this statement of his subsequent actions is the same as given previously to the county detective and hereinbefore noted.

The defendant did not go on the witness-stand and deny any of the testimony against him. Must we accept as true that part of his final statement that he choked the deceased to death by grabbing and twisting a handkerchief that was around her neck, doing this after she had assaulted him with a poker? In this statement, aside from his plea, he in effect admits having made prior false statements to the officers. “The fabrication of false and contradictory accounts by an accused criminal, for the sake of diverting inquiry or casting off suspicion, is a circumstance always indicatory of guilt:” Com. v. Spardute, 278 Pa. 37, 43. His latter statement ranks no higher than his former. Neither was given in court under oath. It may contain self-serving matter, or fabrications, as well as did the former. “It is not to be supposed that all parts of a confesson are entitled to equal credit. The jury may believe that part which charges the prisoner and reject that part which is in his favor, if they see sufficient grounds for so doing:” Com. v. Rush, 277 Pa. 419, 423. What the jury may do, the court may do when acting in place of the jury. We do not give credence to the defendant’s statement that he acted in self-defense. He was an able-bodied man, forty-six years old, and the deceased was an old woman, some seventy-seven years of age. The groove in the muscle of her neck, into which the rope found near by made a perfect fit, and the fact that it is not reasonable to believe that a handkerchief would have made such a groove, and a smaller one parallel to it, together with the further fact that no handkerchief was found, all lead to the conclusion that the defendant strangled the deceased till she died with a rope wrapped twice about her neck and drawn very tight and so held, or tied and left there, for a sufficient length of time to make these lasting indentations in the flesh. The only other satisfactory explanation of the two marks on her neck is that two pieces of rope were used, instead of one piece wrapped twice around the neck. Either view negatives the idea that the defendant did not intend her death: Com. v. Millien, 291 Pa. 291. The burning of the handkerchief, if he did burn it, which is not to be credited, would in itself be a circumstance from which guilt might be inferred: Com. v. Jones, 297 Pa. 326, 333. Any such burning must have immediately followed the killing. There -was no fire in the stove when the body was found. It may be suggested that a motive for the killing was not shown. This was not essential. The murder is admitted. However, it does appear that the defendant had made his home with the deceased for many years. She was moving away to a new home, not taking him along. Resentment for what one believes is less than his due may be a motivating impulse toward vengeance.

In the picture shown by the Commonwealth’s evidence and the defendant’s plea appears the defendant cool and calm within a few minutes after having murdered his old aunt, deliberately falsifying in order to deceive and prevent the discovery of her dead body; within an hour or two he is working unconcernedly with a neighbor in a field close by the scene of his crime; he is associating with others as usual later in the day, then gives notice to his neighbors that he had discovered his aunt lying dead in her home, planting in their minds the idea that she died of heart trouble; he assists in placing her dead body on the bed, standing about as the undertaker comes and takes away the body, then quietly eats his evening meal alone in the kitchen where that morning he had strangled to death the one who had cooked for him for years; he attempts to deceive the officers and make them believe the death was natural, and when shown evidence to the contrary, suggests that a tramp might have attacked the old lady for her money; he denies guilt when accused of the murder a day later, and maintains his innocence for two days or longer under rigid examination by experienced officers, and then finally makes a confession, in which he attempts to excuse himself on the plea that the old lady — a woman seventy-seven years of age — had attacked him with a poker by the breakfast table in the kitchen, a room having at least three exits, and that he choked her by grabbing a handkerchief she was wearing about her neck, not explaining how her eye was blackened. The defendant, when arraigned in open court, said that he was guilty of murder, and, upon being confronted with this picture of unusual coolness, cunning and deceit, he had nothing to say. in extenuation.

We find beyond a reasonable doubt, under all the evidence in the case, that the defendant is guilty of wilful, deliberate and premeditated killing, that is, of murder in the first degree, unless the evidence introduced by the defense relative to the mentality of the defendant warrants us in reducing the grade of his offense to murder in the second degree.

Counsel for the defendant called Dr. Edward E. Mayer, a specialist in mental and nervous diseases, and offered to prove by him that the mental condition of the defendant at the time of the offense charged in the indictment and for many years prior thereto was “such as to preclude a condition of mind showing cool premeditation or accurate contemplation of a malicious act or to contemplate and frame a specific intent to take life with a full and conscious knowledge of his purpose so to do.” He stated that this was for the purpose, not of excusing or avoiding all amenability for the crime charged in the indictment, but to establish under the plea entered in this case and under all the evidence submitted that the grade of the offense arises no higher than that of murder of the second degree. Objection was made to the admission of the testimony. Having in mind the fact that there was an admission of guilt to the extent of second degree murder, we suggested that insanity was either a complete defense or none at all, but that we would hear the testimony, particularly in view of the fact that it was our duty to fix the punishment. For this reason, the admission of the testimony was proper: Com. v. Parker et al., 294 Pa. 144. It remains to consider whether the testimony given can, under the law of this State, have the effect suggested in the above entitled statement of the purpose for which it was offered.

The testimony of Dr. Mayer was that the defendant was a mental defective, but not insane; that, medically speaking, he had no insanity, but was feeble-minded; that is, inherently defective. He stated that there are three grades of feeble-mindedness — the high grade, a middle grade and a low grade. Below the last mentioned grade comes the imbecile and below the imbecile is the idiot. By use of the Stanford revision intelligence tests he found that the defendant was a middle grade feeble-minded person. Using the fifteen years’ level for maturity, he got an intelligence quotient for the defendant of sixty, indicating that under these tests he was 60 per cent, up to normal, or on the nine-year-old level, which he stated to be the level of the middle grade feeble-minded person, the person who can do ordinary work and who will get along in the ordinary run of things, but cannot do things with reflection, with the judgment of a matured person. It follows, according to the doctor’s testimony, that such a person would not have the full understanding of right and wrong that a matured person should have and would not understand the consequences or the full intent of his act as a matured person should do. As respects the defendant, he stated that he regarded him as unable to comprehend to the full extent the significance of his acts; and, further, that, in his judgment, the defendant’s condition of mind would remain throughout life as it then was. In corroboration of the opinion of Dr. Mayer, a number of witnesses were called, neighbors, relatives and others, and their testimony for the most part was in line with his opinion that the defendant did not possess normal intelligence, or was feeble-minded. One testified, however, that, in his judgment, the defendant had the mind of a normal man. Evidence was also introduced on behalf of the defendant that, prior to this offense, he had borne a good reputation.

It is contended by counsel for the defense that the defendant is not so insane as to be irresponsible for crime under the test of insanity in force in Pennsylvania, and so is guilty of murder in the second degree, but is suffering from such mental disorder or feebleness of mind as to render him incapable of the “premeditation” or “deliberation” required to constitute murder in the first degree. In support of this proposition, one case cited is People v. Moran (1928), 249 N. Y. 179, wherein the New York Court of Appeals said: “Feebleness of mind or will, even though not so extreme as to justify a finding that the defendant is irresponsible, may properly be considered by the triers of the facts in determining whether a homicide has been committed with a deliberate and premeditated design to kill, and thus may be effective to reduce the grade of the offense.” If this is the law in Pennsylvania, then the defendant’s evidence was properly admitted for the purpose offered as above stated, and it would remain for us to determine whether this evidence, considering also that of the Commonwealth, should be given the effect urged; that is, whether it is effective to reduce the grade of the offense to murder of the second degree. A comprehensive brief has been submitted, setting forth reasons why we should hold that the doctrine stated in the Moran case is controlling in the case at bar. Cases from other jurisdictions in line -with this case are also cited and considered, among which we note: Anderson v. State (1876), 43 Conn. 514; Hempton v. State (1901), 111 Wis. 127; and Hopt v. People (1881), 104 U. S. 631. Emphasis is also laid on the reasoning in the dissenting opinions in two New Jersey cases: State v. Martin (1925), 102 N. J. L. 388; and State v. Noel (1926), 102 N. J. L. 659. These cases and many others are considered in a learned discussion covering the proposition now under consideration, entitled “Partial Insanity and Criminal Intent,” by Henry Weihofen, Esq., published in Illinois Law Review, issue of January, 1930. It is there pointed out that the rule that feeble-mindedness may be considered in determining whether a defendant had the specific criminal intent required by the crime charged has not been adopted in more than five states, Connecticut, Utah, Rhode Island, Wisconsin and New York. In Pennsylvania the Supreme Court, in Com. v. Wireback, 190 Pa. 138, 147, has declared: “The moral guilt of one man, by reason of vicious training or inferiority of intellectual power, may be less than that of another, but the law takes no note of this in fixing responsibility for crime; nor dare it do so, if society is to be protected. ... (p. 152). From the very nature of the mental disease, there can be no grading of it by degrees so as to accord with a degree in crime. To say that a man is insane to an extent which incapacitates him from fully forming an intent to take life, yet enables him to fully and maliciously form an intent to do great bodily harm without a purpose to take life, is absurd, for the one involves the same test of responsibility as the other — the ability to distinguish between right and wrong. Either the offense of defendant is wholly excused, because the jury is satisfied by the preponderance of evidence of his irresponsibility, or he is guilty, because the evidence fails to so satisfy them. See, also, Com. v. Barner, 199 Pa. 335, holding that there is no middle ground which the law recognizes; and Com. v. Cavalier, 284 Pa. 311, 320. “No halfway house exists, in a ease of this sort, between murder in the first and any minor degree of that crime. Defendant, if sane, ‘could coolly deliberate said murder;’ if insane, he could neither deliberate nor premeditate, and, consequently, was guiltless of the crime charged, and of any degree of that crime:” State v. Halloway (Mo.), 56 S. W. Repr. 734. See, also, Com. v. Cooper (Mass.), 106 N. E. Repr. 545. We find our Legislature recognizing quite recently (Act of April 27, 1927, P. L. 431, 433) that one mentally defective may be convicted of murder in the first degree. It is there provided in substance that persons mentally defective and undergoing prison sentences, except upon conviction for murder in the first degree, may be transferred to institutions for mental defectives. It may be suggested that since there are other kinds of first degree murder than that involving the deliberation and premeditation now being considered, for instance, murder committed in the perpetration of arson, therefore, it was of these other kinds of first degree murder that it was contemplated mental defectives might be convicted. But the doctrine urged would seem logically and necessarily to extend to other mental elements than deliberation and premeditation, and one charged with murder committed in the perpetration of arson could show his feeble-mindedness to negative the specific intent required to constitute the crime of arson. As tersely stated in the article in Illinois Law Review, supra (page 525): “It [the doctrine of reduced responsibility] says that defendants too weak mentally to have the specific intent required for the crime must be acquitted of that crime, and convicted, if at all, in a lower degree. But if he is also incapable of the intent required by the lower degree of the crime, or if there is no lower degree, then he must be acquitted entirely. But this would set up a new test of insanity as a defense to crime.” In Com. v. Trippi (Mass., 1929), 167 N. E. Repr. 354, a prosecution for murder, a psychiatrist was asked as to his opinion regarding the mental age of the defendant, on the ground that his mental age was such that he was incapable of premeditation and deliberation. It was held, on appeal, that the answer was properly excluded, the court stating: “Criminal responsibility does not depend upon the mental age of the defendant nor upon the question whether the mind of the prisoner is above or below that of the ideal or of the average or of the normal man, but upon the question whether the defendant knows the difference between right and wrong, can understand the relation which he bears to others and which others bear to him, and has knowledge of the nature of his act so as to be able to perceive its true character and consequences to himself and to others. Constitutional or other inferiority is not the test of criminal responsibility.”

Counsel for the defendant strenuously urges, in line with the dissenting opinions in the two New Jersey cases above cited, that the same reasoning making intoxication effective to reduce the grade of murder from the first to the second, degree makes feeble-mindedness or mental defectiveness not amounting to irresponsibility likewise effective. This proposition may be logical, but, in our view of the matter, has not been adopted in Pennsylvania. As stated in the majority opinion in one of the New Jersey cases just referred to, State v. Noel, 133 Atl. Repr. 274: “There are many rules of law which are not perhaps logical. They can, from the standpoint of logic, be successfully attacked; yet many of these laws have remained unaltered by statute or decision because they have stood the test of practical trial. Our courts are not schools of logic. They administer the law and the law should not be changed because a case arises in which its application to the facts appears to result oppressively. In every jurisdiction in which the rule that one who consciously commits a crime and knows the difference at the time of its commission between right and wrong has been impaired, personal security and property rights have suffered.” In this opinion appears comment not wholly inapplicable to the testimony and argument on behalf of the defendant in the case at bar, to wit, that the argument advanced to dethrone the test of insanity adopted by the courts of that state years ago is that during these years the science of medicine has advanced and those devoting themselves to the study of mental diseases have increased in wisdom and learning to the point that they have demonstrated that the test so long adhered to is obsolete and for it should be substituted either the rule of irresistible impulse or that of permitting the jury to pass upon the question as to whether the defendant is affected mentally, and, if so, either to acquit him or reduce the grade of the crime to murder in the second degree. This argument was not convincing, the former test of sanity being reaffirmed, not because of its antiquity but because it was believed the best yet promulgated. It is apparent that one who is a mental defective, who has criminal tendencies, and who has committed what would be unquestionably first degree murder were he normal, is a lasting social menace. His condition is unlike that produced by intoxication, which is only temporary. All such should be permanently confined either in prison or in a hospital unless other legislative provision shall be made for their permanent confinement. It would seem that the protection of human society should be the controlling idea in dealing with them. Acceptance here of the doctrine of reduced responsibility, as in intoxication cases, urged by the defense, means that after a period of years any such defendant surviving at the expiration of sentence for second degree murder will be turned loose on society. It may be logical, as aforesaid, to do so, but not practical, nor would it be an act of kindness to him.

It is our opinion that under the law of this state the testimony introduced on behalf of the defendant may not be considered for the purpose of reducing the grade of his offense from murder in the first degree to murder in the second degree, and that it is not effective for that purpose. In determining the penalty as between death and life imprisonment, we do consider it effective in leading to the conclusion that the lesser penalty should be fixed.

Some little time after the testimony was taken in this case, but before we had our opinion thereon and our determination written, the warden of the county jail where the defendant is confined made application to us under section 308 of the Act of July 11, 1923, P. L. 998, setting forth in substance that since the testimony had been taken the defendant had developed a serious mental illness necessitating that he be cared for in a hospital for mental diseases. As required by the law aforesaid, we forthwith ordered an inquiry by a commission, appointing two qualified local physicians and a lawyer on the commission. This commission heard considerable evidence as well as the statement of the defendant’s counsel, and has now handed us a copy of all the evidence taken, together with a written report of its finding, the evidence taken being made a part of the report. The commission concludes that the defendant is now insane and is a person of criminal tendencies. What the commission means by the word “insane” is not explained. A definition of the word as used before the commission by the defendant’s counsel appears in his statement thus: “I do say there is an organic affection of his brain which has affected his mental faculties, and that by reason thereof he is insane.” Much of the testimony before the commission is directly in line with that offered on behalf of the defendant in court. We will direct that this testimony and report be filed. The law authorizing this proceeding contains a provision to the effect that we may, in our discretion, summon other witnesses and secure further evidence, and after we have become- satisfied that the defendant is insane and have ordered his removal to a hospital, then if he has been arraigned, or is being tried, proceedings against him shall be stayed until his recovery. We do not construe this to mean that we may not at this time file our opinion and finding on the evidence taken and concluded several weeks before the request aforesaid for the appointment of a commission was made. The determination of the degree of crime must be made by the-judge who saw and heard the witnesses: Com. v. Staush, 256 Pa. 620. Therefore, considering the uncertainties of life, delayed filing of such determination, in a situation as here presented, could not have been in contemplation in the adoption of the provision above mentioned relative to stay of proceedings. Under the opposite construction the possibility of a situation arising not conducive to justice is apparent. A defendant actually guilty of first degree murder might become in such mental condition after his confession in court and the taking of testimony to determine his degree of guilt, but before the filing by the court of its determination, that in proceedings under this law he would be committed to a hospital for insane criminals. After a period of years he might recover and be returned to the prison from which he was removed for the disposition of the charge against him. The judge who saw and heard the witnesses might not be in office. His determination would not appear. The testimony taken before him could not be used by the court as then constituted in making a determination: Com. v. Staush, supra. It would be necessary to take the testimony again. Important witnesses might be gone. As we view the matter, it is our duty to file at this time our opinion on the evidence taken before us and our determination of the degree of the defendant’s crime and punishment.

Decree.

And now, June 17, 1930, after the examination of witnesses and hearing had in due form of law and upon due consideration, it is now, in open court, the defendant, John L. Scott, and his counsel being present, adjudged and determined that the crime, and the degree of the crime, whereof the said John L. Scott is convicted by Ms own confession, is murder of the first degree, and the penalty fixed is imprisonment for life.

From Luke H. Frasher, Unicmtown, Pa.


author: Copeland, P. J.,

text:
    Kessler et al. v. Erie City.

      Charles A. Mertens, for plaintiffs; J. B. Held, City Solicitor, for defendant.
    March 1, 1930.
   Copeland, P. J.,

10th judicial district, specially presiding,

Findings of fact.

1. The defendant, City of Erie, is a city of the third class.

2. The plaintiffs, C. H. Kessler, G. Daniel Baldwin, S. C. Ostrow, A. P. Weschler and B. Emerman, are owners of real estate in said city subject to the payment of local taxes.

3. The year 1927 was the year of triennial assessment of property in the City of Erie; the assessment was made by the duly qualified and acting assessor, and certified to the board of revision of taxes and appeals in December, 1927.

4. On April 24, 1928, the Board of Revision of Taxes and Appeals of the City of Erie, by unanimous vote, passed the following resolution:

“Resolved, That the City Assessor of the City of Erie, Pennsylvania, be. and he is hereby ordered and directed to correct any and all errors which may have been made in making any triennial assessment, to revise, equalize and alter such unequal assessments, if any exist, in the City of Erie, in order to effect an equitable assessment of all properties by increasing or decreasing the valuation either in individual cases or by wards or parts of wards or the entire city.”

5. Pursuant thereto, John Pokorski, the duly qualified and acting assessor of the City of Erie, revised the assessment of all properties within the city, totaling approximately $8000. This revision resulted in his handing in a report to the board of revision of taxes and appeals changing the assessment of approximately 400 properties, many of the valuations being raised and some lowered.

6. In. August, 1928, the changes in the 1927 assessment were reported by the assessor to the board of revision of taxes and appeals, and the 1927 assessment was thereafter revised, equalized and altered by that board.

7. The board of revision of taxes and appeals held public hearings — -appeal meetings — during October and November, 1928, and all parties whose assessments were changed had legal notice thereof.

8. All the plaintiffs appeared at the appeal meetings, either in person or by attorney, and were heard.

9. The taxes for the City of Erie for the year 1929 are based upon the 1927 triennial assessment as revised, equalized and altered by the board of revision of taxes and appeals.

Conclusions of law.

1. That the board of revision of taxes and appeals did not exceed its authority in revising, equalizing and altering during the year 1928 the 1927 triennial assessment made and certified by the city assessor.

2. That the resolution passed on April 24, 1928, by the board of revision of taxes and appeals, requiring the city assessor to correct, revise, equalize and alter the 1927 triennial assessment, was within the power and scope of its authority.

3. The report of the city assessor, made pursuant to the resolution of April 24, 1928, became the official act of the board of revision of taxes and appeals after it received the same and heard and passed upon the appeals.

4. That the bill should be dismissed at the cost of the plaintiffs.

Opinion.

This matter comes before the court on a bill in equity and answers thereto. The plaintiffs, residents and taxpayers of the City of Erie, allege that by its action in fixing the valuation or assessments of property in the city upon which the 1929 taxes are laid, it has committed an illegal act. This is denied by the City of Erie, defendant. A reading of the pleadings gives us no information as to why the plaintiffs bring this action, as there is no averment that they or any other person is injured by the act complained of. The testimony, however, discloses that the valuation or assessment of the properties of plaintiffs was raised, and, consequently, their taxes for the year 1929 would be higher than they would have been if the board of revision of taxes and appeals had not taken this action. This is why they complain.

Numerous technical reasons have been advanced why plaintiffs’ bill should be dismissed. Some of these reasons seem to us to have merit. We shall, however, pass them by and dispose of the matter on its merits.

A triennial assessment of property in the City of Erie, a city of the third class, was made in the year 1927 and certified in December of that year to the board of revision of taxes and appeals. The taxes for the year 1928 were laid and levied upon this assessment. This assessment, as a whole, did not meet with the approval of the board of revision of taxes and appeals. So on April 24, 1928, it passed the following resolution:

“Resolved, That the City Assessor of the City of Erie, Pennsylvania, be and he is hereby ordered and directed to correct any and all errors which may have been made in making the triennial assessment, to revise, equalize and alter such unequal assessments, if any exist, in the City of Erie, in order to effect an equitable assessment of all properties by increasing or decreasing the valuation either in individual cases or by wards or parts of wards or the entire city.”

The City Assessor, John Pokorski, aided by his assistants, pursuant to this resolution, thereafter went over the whole of the 1927 assessments, made corrections, alterations, revisions and equalizations, and reported the result of his labors to the board of revision of taxes and appeals in August, 1928.

A list of all the property affected by this change, giving the 1927 assessment, as it was originally certified, and the assessment as fixed for the taxes for the year 1929, and reflecting the gain or loss, is included in the testimony from pages 14 to 22, inclusive. We understand there are about 400 properties listed therein. Some of the valuations are lowered; most of them, however, are raised. The owners of all properties, the assessment of which was changed, were given an opportunity to be heard and public hearings were held by the board of revision of taxes and appeals at various times during October and November, 1928. The plaintiffs all appeared, either in person or by attorney, and were heard. The plaintiffs contend that this action of the board of revision of taxes and appeals was illegal and pray:

“First. That all assessments made by the City Assessor of the City of Erie, Pennsylvania, under and in pursuance of the resolution passed by the Board of Revision of Taxes and Appeals, on April 24, 1928, be declared illegal and void.

“Second. That the City of Erie be restrained from collecting any taxes on any assessment made by the City Assessor of the City of Erie, Pennsylvania, under and in pursuance of the resolution of the Board of Revision of Taxes and Appeals passed April 24, 1928.

“Third. Such other and equitable relief as to your Honorable Court may seem necessary.”

This brings us to the real controversy. Did the board of revision of taxes and appeals have the right to alter, revise and equalize assessments in the year 1928, and if it had this right, was its procedure legal? The law governing the assessment of property in a third class city is found in the Act of June 27, 1913, art. xv, P. L. 568 (Clark Act). It will not be necessary for us for the purpose of this case to consider the whole of that article; section 14 thereof deals with the powers and duties of the board of revision of taxes and appeals. It is as follows:

“The mayor and council of each city of the third class shall constitute a board of revision of taxes and appeals. The said council acting as a board of revision may, in any year other than a triennial year, if they shall deem a new assessment necessary, on or before the first day of May, issue their precept to the city assessor requiring him to make out and return a full, just, and equal assessment of property within the city, or such parts thereof as the said board of revision may deem advisable; and they shall take and receive the triennial and yearly assessment as returned by the city assessor, and shall have power and authority to revise, equalize, or alter such assessments, in any and every year, by increasing or reducing the valuation either in individual cases or by wards, or parts of wards, and to add to the assessment book, and to the duplicate thereof in the hands of the city treasurer, any property or the occupation of any person subject to taxation omitted therefrom, and any real estate in such city which has been exempt from taxation, and has ceased to be occupied and used for the purpose or purposes which entitle it to such exemption, as taxable for the portion of the year commencing at the time when the right to exemption ceases, and such real estate shall thereupon become subject to taxation, at the rats fixed for the year, for the proportionate part of the year during which it is not entitled to exemption; and it shall be their duty to rectify all errors, and, when deemed necessary, they may require the attendance of the assessor and assista/nt assessors, or any of them, or; other citizens, before them for examination on oath or affirmation, either singly or together; and they shall hear and determine all appeals by taxpayers from the assessments made by the city assessor, at such time and place as they may prescribe, at least five days’ printed or written notice of which shall be given. . . . The said board shall complete their labors, and the hearing and determination of all appeals, on or before the first day of December in each year; after which the assessment shall be copied, by wards, into duplicate for the use of the city; and the assessment, so corrected and copied, shall be and remain a lawful assessment for the purpose of city taxation until altered as provided by this act. The decision of the board shall be subject to an appeal to the Court of Common Pleas wherein such city is situated, in accordance with the existing laws, whose decision shall be final, and, if the appeal to the court shall be groundless, the appellant shall pay the costs of the appeal.”

Under this act, the board might do one of two things in a year other than a triennial assessment year. First, it might require the city assessor “to make out and return a full, just and equal assessment of property within the city, or such parts thereof as said board of revision of taxes and appeals may deem advisable;” or, second, it might “revise, equalize or alter such assessments in any and every year by increasing or reducing the valuation either in individual cases or by wards or parts of wards.”

Let us turn to the resolution of April 24, 1928, for the purpose of ascertaining what was required. This resolution does not require a new assessment. It requires that a correction shall be made of any errors in the triennial assessment, and that unequal assessments therein be revised, equalized and altered, to the end that an equitable assessment of all properties be made by increasing or decreasing the valuation, either in individual cases or by wards or parts of wards or the entire city. The board did not require a new assessment, and the 1927 triennial assessment stands as the assessment in the City of Erie at the time the bill was filed.

The board had the power and authority during the year 1928 to revise, equalize and alter the 1927 triennial assessment. Having this right, what means might it use in carrying out the authority vested in it? The members of this board must secure information from some source in order to qualify them to perform their duty. The valuation of property for taxing purposes is not an easy matter. They should secure all the help within their power in order that they may deal justly and equitably. The act further states, “when deemed necessary, they [the board] may require the attendance of the assessor and assistant assessors, or any of them, or other citizens, before them for examination on oath or affirmation, either singly or together.” The board believed that there were inequalities in the assessment. It wished the advice and experience of the city assessor in assisting it in revising, equalizing and altering the triennial assessment made by him. It had the authority to require him to make a new assessment, but it only requested his assistance in correcting, revising, equalizing and altering the assessment already made. It had the power and authority to call him before the board, swear him and hear his recommendations. This would probably have been a long and tedious procedure. It passed the resolution of April 24, 1928, and thereby requested him to submit his recommendations in writing. These recommendations are the subject of this controversy. The board thereafter acted upon these recommendations. It was not compelled to accept them, and it held hearings throughout the months of October and November for the purpose of listening to the objections of any person whose property valuation was affected by this recommendation. After these hearings, the triennial assessment of 1927 was revised, equalized and altered. The plaintiffs had a right to appeal to the Court of Common Pleas from the decision of the. board in fixing the values of their properties. They have not done so. Instead, they have elected to attack the legality of the action of the board.

We believe the same principle is here involved as that found in the case of Rees v. The City of Erie, 243 Pa. 189, decided by the Supreme Court on Jan. 5, 1914. The Act of May 23, 1889, P. L. 277, as amended by section 3 of the Act of May 23, 1895, P. L. 118, at that time governed the acts of the board. That act, in so far as the powers of the board are concerned, is the same as the act now in force, viz., the board “shall have power and authority to revise, equalize or alter such assessments in any and every year by increasing or reducing the valuations, either in individual cases or by wards or parts of wards.”

Benson, J., in the above case, in- an opinion adopted by the Supreme Court, says in part:

“Evidently the Act of 1865 clothed the board of revision with the power of raising or lowering the assessment returned by the assessors for two purposes only, that of correction and equalization; but the Act of 1895 gives additional power and authority to the board of revision of taxes and appeals. Under this act they may increase or reduce the assessment, not only for the purpose of revision and equalization, but also for the purpose of altering and changing the assessments; nor are they limited by the words of the act to any particular purpose in exercising their power and authority to alter the valuations returned, and as tending to show that they have authority to raise assessments on their own motion, the act provides that it shall be their duty to give five days’ written or printed notice to every taxable of any increase or addition to the valuation assessed against him by the board of city assessors. We, therefore, hold that an appeal is not necessary in order to give the board of revision of taxes and appeals jurisdiction in revising, equalizing or altering the valuations by increasing or reducing the same.”

We adopt the following excerpt from the opinion of the court in the case of Rees v. City of Erie, supra:

“Uniformity of valuation for tax purposes is a mandate of the fundamental law of the State, and we think that, under the Act of 1895, the board of revision of taxes and appeals is charged with the duty of so revising, equalizing or altering the assessments returned by the board of assessors as to accomplish that end. Nothing is shown in the evidence to show us that they have failed to do their duty, and the basis or standard of valuations to be adopted by them for the purpose of securing uniformity lies in their good judgment.

“There is no good reason why they should not, in a proper case, take as the standard of valuation the higher ratio fixed by the assessors on certain property and increase the assessments on others in order to make all uniform, if in their opinion such action would secure more substantial justice to the municipality and the taxables.

“In the case at bar, some assessments were left unchanged, others lowered and others raised, and in this we think they are acting within the scope of their authority.

“They had the power to adopt any assessment of the assessors on any particular taxable for the standard of value and increase or reduce others so as to secure uniformity, and if they have failed in any case, the remedy is by appeal to the Court of Common Pleas, as provided by law.”

Equality in bearing the expense of government is always to be sought. The Act of 1895 and the Act of 1913 make provision for correcting errors in judgment not only in triennial years but in every year. A board of revision of taxes and appeals is provided. It learns that correction and equalization of the 1927 assessments are desirable. It proceeds to act. There is no method of procedure prescribed by law. It calls upon the city assessor for assistance. A change of some valuations is made; all parties aifected are given an opportunity to be heard. The plaintiffs are heard. The board renders its decision, from which plaintiffs had a right to appeal if they were injured. They do not appeal, but attack the legality of the procedure. The plaintiffs do not allege either in their bill or in their testimony that injustice has been done them. They do not allege that the board failed to do its duty. They complain only because the city assessor took part in the altering, equalizing and revising of the taxes. The presumption of the law is that the board of the revision of taxes and appeals performed its duties: Clark v. Burschell, 220 Pa. 435.

We do not think plaintiffs’ position is well taken, and accordingly order and decree as follows:

And now, March 1, 1930, after hearing and after argument of counsel, the bill of complaint is dismissed, at the cost of the plaintiffs.

Prom Otto Herbst, Erie, Pa.


author: Schnadee, Special Dep. Att’y-Gen.,

text:
    Collection of Fines and Penalties.
    June 8, 1930.
   Schnadee, Special Dep. Att’y-Gen.,

We have your request to be advised with respect to the circumstances under which fines and penalties imposed by the courts, including courts not of record, are collectible and payable by your department into the State Treasury.

Your inquiry arises because the Controller of the City of Philadelphia has challenged your right to collect from Philadelphia magistrates fines and pen-allies imposed by them. You desire advice respecting this particular situation and also regarding the collection of fines and penalties in general.

A constitutional provision and an old statute have a very definite bearing upon the question in hand.

Article V, section 13, of the Constitution provides that “All fees, fines and penalties in said courts shall be paid into the county treasury.” The section of the Constitution immediately preceding this quotation relates to the organization and powers of the magistrates’ courts in Philadelphia; and the Supreme Court, in Com. v. McGuirk, 78 Pa. 298, construed article v, section 13, as applying only to fees, fines and penalties collected in the Philadelphia magistrates’ courts. A similar decision had been rendered by Judge Thayer in Com. ex rel. Levis v. Randall, 2 W. N. C. 210.

Two conclusions necessarily follow. Pees, fines and penalties collected by magistrates in Philadelphia must be paid into the county treasury, no matter what provision the legislature may have attempted to make to the contrary-in the statute imposing the fines or penalties, or authorizing the collection of fees. The legislature cannot override a constitutional mandate. This is the first conclusion. The second is equally clear, namely, that the constitutional provision does not have any bearing whatsoever upon the disposition of fees, fines and penalties collected by aldermen or justices of the peace outside of Philadelphia, or collected by courts of record, either in Philadelphia or elsewhere. With respect to all fees, fines and penalties collected by officers other than magistrates in Philadelphia, the legislature may validly provide what disposition thereof shall be made.

The statutory provision to which we referred is section 78 of the Act of March 31, 1860, P. L. 427, which is still in force and provides that:

“All fines imposed upon any party, by any court of criminal jurisdiction, shall be decreed to be paid to the Commonwealth; but the same shall be collected and received, for the use of the respective counties in which such fines shall have been imposed as aforesaid, as is now directed by law.”

This provision was construed by the Supreme Court in Jefferson County v. Reitz, 56 Pa. 44, in which the court took the view that the Act of 1860 “would doubtless be the rule in regard to any new penalties by fine not otherwise distributed by law.”

Accordingly, under this act, as construed by the Supreme Court, it is clear that after the legislature has imposed fines collectible by courts of criminal jurisdiction, such fines are payable into the respective county treasuries, unless the legislature has specifically otherwise provided by general act subsequent to 1860, or in the acts providing for the imposition of the penalties. It is also clear that the Act of 1860 does not cover the case of penalties collectible through the civil as distinguished from the criminal courts.

We, therefore, advise you that in the collection of fines and penalties, your department must be guided by the following principles:

1. In Philadelphia, if fines or penalties are collected by magistrates, your department does not have either the power or the duty to demand that they be turned over to you for payment into the State Treasury. Such fines and penalties are clearly payable to the County of Philadelphia. However, we desire to point out, parenthetically, that magistrates may collect fines and penalties only if and when the legislature has expressly given them jurisdiction to do so. Otherwise, they can merely hold the defendants for trial in the Quarter Sessions or other criminal courts of record.

2. On the other hand, fines and penalties collected by the courts of record in Philadelphia are payable into the State Treasury through your department, if there is legislation distinctly providing that the fines shall be paid into the State Treasury.

3. Outside of Philadelphia, your department has authority to collect for payment into the State Treasury any fines or penalties, whether imposed by courts of record or courts not of record, in all cases in which the legislature has provided that such fines and penalties shall be paid into the State Treasury. However, in the absence of specific direction to this effect, the fines and penalties are payable into the respective county treasuries, if they were collected by the criminal as distinguished from the civil courts.

4. In all cases in which fines and penalties are collected by administrative agencies of the state government without any specific direction by the legislature as to the disposition to be made of the moneys collected, it is the duty of your department to collect the amounts of the fines and penalties and pay them into the State Treasury.

5. Whenever penalties are imposed by law and the collection thereof is committed to either the Department of Justice or any other administrative agency of the state government and such penalties are collected by civil suit, the amounts recovered are payable into the State Treasury, whether or not the act imposing the penalties specifically so provides. There is neither constitutional nor statutory provision to the contrary, and the rule which prevails in the absence of specific direction to the contrary is that moneys collected by a state department, with or without the aid of the civil courts, is payable into the State Treasury.

From C. P. Addams, Harrisburg, Pa.


author: O’Hara, Dep. Att’y-Gen.,

text:
    Voting Machines.
    Aug. 11, 1930.
   O’Hara, Dep. Att’y-Gen.,

We have your communication of July 28, 1930, wherein you state that complaint has been made to you that the Shoup voting machine, heretofore approved by the Secretary of the Commonwealth under and pursuant to the provisions of the Act of April 18, 1929, P. L. 549, and used in the primary election of May 20, 1930, in Philadelphia, improperly registered votes which apparently had not been cast by any voter, and in which you submit for our opinion the following questions:

“Where it is shown that a certified or approved voting machine is susceptible of fraud or error which impairs its accuracy, efficiency, or capacity, may the Secretary of the Commonwealth invalidate temporarily the certificate of approval issued to the manufacturer of such voting machine pending determination of the allegation or complaint against the machine?

“Where it is shown that a voting machine so certified and approved is actually susceptible of fraud or error and that its accuracy, efficiency, or capacity, is or has been impaired, may the Secretary of the Commonwealth revoke and invalidate permanently the certificate of approval heretofore issued for such machine?”

The Act of April 18, 1929, P. L. 549, provides:

“Section 6. (o) No kind of voting machine not so approved shall be used at any election.

“(d) When a machine has been so approved, no improvement or change that does not impair its accuracy, efficiency, or capacity, shall render necessary a reexamination or reapproval of the machine, or of its kind.”

“Section 7. (e) It shall preclude each voter from voting for any candidate, or upon any question, for whom or upon which he is not entitled to vote, and from voting for more persons for any office than he is entitled to vote for, and from voting for any candidate for the same office or upon any question more than once, except in districts and for offices where cumulative voting is authorized by law.”

If the complaint above noted is due to defect in mechanical device and not to defect acquired by use of the machine, it would appear either that there has been a change in the machine since its approval, or that the machine does not meet the requirements of the Act of April 18, 1929, P. L. 549, and, if sustained by proper evidence, that such change or defect in the mechanical device impairs its accuracy, efficiency or capacity.

If there has been a change in the mechanical device after its approval, the act of assembly specifically recognizes the necessity for reexamination and reapproval of the machine, and in the absence of statutory designation of the procedure by which such reexamination may be accomplished, the Secretary of the Commonwealth may initiate such reexamination upon complaint of an elector of the Commonwealth under oath filed with him, alleging such change and accompanied by the statutory fee or a bond, with surety approved by him as to sufficiency and amount (which amount should not exceed double the fee for an initial examination), to secure the payment of the cost of such examination.

If upon such reexamination the machine is found to have been changed in device so as to impair its accuracy, efficiency or capacity, the Secretary of the Commonwealth may refuse to approve the machine as changed and may cancel the existing approval, notifying the several county commissioners of the substitution, so that the county commissioners may take proper steps for the withdrawal of the machines and protect the county against loss incurred through delivery of the substituted device.

If, on the other hand, no change in device in such approved machine is claimed, the legislature has unfortunately failed to provide any method by which the Secretary of the Commonwealth can require a reexamination and review the approval which he has given. This is a serious defect in the Voting Machine Act, but it is a defect which can, be remedied only by legislative action. We are, therefore, obliged to advise you that there is no procedure under which the Secretary of the Commonwealth’s approval of the voting machine once given can be revoked, so long as the machine supplied by the manufacturer is identical in mechanism with the machine which he has approved.

From C. P. Addams, Harrisburg, Pa.


author: Ferguson, P. J.,

text:
    Shure v. Goodinate Company, Inc.

      M. E. Cohen, Simon Pearl and Henry Arronson, for plaintiff.

      R. T. McCracken and B. A. Illoway, for defendant.
    Oct. 24, 1930.
   Ferguson, P. J.,

Plaintiff and defendant entered into an agreement for arbitration. Among other things, it was provided that should an award be made by the board of arbitration to the party of the first part the party of the second part was to immediately conform thereto, and upon failure to comply with the award, any attorney might immediately appear for the party of the second part and therein confess judgment against the party of the second part for the amount of the award.

A confession of judgment was filed on May 27, 1930, signed by an attorney-at-law appearing for the defendant, in which it was recited that an award by the board of arbitration had been made in favor of plaintiff in the sum of $17,500, and, in pursuance of the warrant contained in the agreement of arbitration, judgment was confessed against defendant in that sum. This confession recited the clause of the agreement containing the warrant and also the language of the award. Attached to the confession was a copy of the original agreement and an averment that after notice of the award defendant had failed to make payment.

A rule has been taken to strike off the judgment, and, in our opinion, the rule must be discharged. It was argued that the agreement did not provide for an amicable action and confession of judgment, and, hence, no judgment could be entered by confession. We do not agree with this contention. The defendant could have confessed judgment itself, and what it could do itself it could authorize its agent to do. In this case it specially authorized any attorney to confess judgment for it. It was not necessary for an amicable action or for an adverse action. A confession of judgment could be entered without either. Had the document containing the warrant shown on its face a sum certain to be due, the prothonotary could have entered judgment. The confession was made by an attorney-at-law. It is presumed that he has a right to appear for any person whom he undertakes to represent: Danville R. R. Co. v. Rhodes, 180 Pa. 157. When he shows his warrant, the only matter for inquiry is whether or not that warrant is sufficient to justify his act. The language of the warrant authorizes any attorney immediately to appear for the defendant and confess judgment. It is true this language does not indicate in what forum the attorney is to appear, but since the confession authorized the entry of judgment, the presumption is that the judgment was to be entered in a court having jurisdiction. In Cooper v. Shaver, 101 Pa. 547, a warrant very similar to the one before us was considered, and it was held that a judgment entered on such a warrant could not be attacked for irregularity. In that case it was held that the authority was given to an attorney-at-law, although the word “attorney” only was used and the document indicated no court in which the judgment was to be entered.

The rule to strike off the judgment is discharged.