author: Fox, J.,

text:
    City of Chester et al. v. Woodward.

      John B. Geyer, for petition.

      Cyrus E. Woods, Attorney-General, and Boscoe B. Koch, Deputy Attorney-General, contra.
    Sept. 12, 1929.
   Fox, J.,

— The question raised by the petition and answer, which admits the facts averred in the petition, is, are bonds, commonly known as improvement bonds, issued by a city of the third class, under Act of Assembly approved May 23, 1889, art. XV, § 27, P. L. 277, for local improvements, which bonds are based solely on assessments on lands abutting on or benefited by such improvements, an incurring or increasing of indebtedness and must they be certified and submitted to the Secretary of the Department of Internal Affairs for his approval or disapproval as contemplated within the Act of March 31,1927, P. L. 91?

The Secretary of the Department of Internal Affairs, by the Attorney-General, has made a motion to dismiss the petition for reasons, in substance, that the court, under the Declaratory Judgments Act, has no jurisdiction, the petition averring no facts to indicate the existence of an actual controversy between the parties; that the said Act of March 31, 1927, P. L. 91, and its Supplemental Act approved April 11, 1929, P. L. 516, provide an adequate, complete and convenient remedy at law for the settlement of the question now disturbing the plaintiffs and that the petition merely avers a difference of opinion between the parties as to the proper construction of the said Act of 1927, and is merely a request for an advisory opinion on a question of law.

The Act of 1927, supra, requires submission of certain securities about to be issued to the Department of Internal Affairs, together with a complete and accurate copy of the proceedings, the assessed valuation of the property subject to taxation within the respective municipalities, etc., requiring that the said official of the Commonwealth within twenty days after the receipt thereof, if such proceedings are found to be in accordance with the Constitution and the law, shall approve the same, and, if not so found, shall disapprove the same and certify accordingly to the municipality. The act further provides that “any officer of such municipality who fails or refuses to certify such proceedings or facts as required by the act shall be guilty of a misdemeanor, or and upon conviction thereof, be sentenced to pay a fine of not exceeding five hundred dollars or to undergo imprisonment for a period not exceeding six months or both.”

The said Supplemental Act of 1929 provides, in section 1, that “when the proceedings for the incurring or increasing of indebtedness had by any municipality have been approved by the Department of Internal Affairs, as provided for by the act to which this is a supplement, any person interested, and any taxpayer of the municipality, may, within thirty days after such approval, appeal therefrom by petition to the Court of Common Pleas of Dauphin County;” in section 3: “The municipality, the Department of Internal Affairs, any person interested, and any taxpayer may file an answer to such petition within twenty days after the appeal is taken;” in section 4: “The court shall fix a day for hearing. At the hearing the court may hear evidence;” in section 6: “From the final decision of the Court of Common Pleas of Dauphin County, an appeal may be taken within thirty days, and not thereafter, to the Superior or Supreme Court as in other cases.” And in section 8 provision is made for an appeal by the municipality in the event of disapproval of the proceedings, etc.

The issuing of bonds by a municipality for an improvement such as the one in the instant case for the payment of work to be done is an important matter. When the work has been completed, the contractor is entitled to his prompt payment in accordance with the terms of the contract. The consequences to the mayor of the city who fails to certify the proceedings on the bonds as required to the department are serious. All of the parties have interests in the case, and there is a distinct disagreement between the plaintiffs and the defendant as to their rights, duties and legal status.

In the ease of Kariher’s Petition, 284 Pa. 455, our Chief Justice, in writing the opinion, has given an interesting historical sketch with copious references to what is commonly known as the Uniform Declaratory Judgments Act, and concludes the sketch with the words: “In our opinion, the Uniform Declaratory Judgments Act is a constitutional piece of legislation, which, within proper limits, can be made of real use.”

In the report of the Committee on Declaratory Judgments to the National Conference of Commissioners on Uniform State Laws, which prepared and promulgated this statute, and which report appears in the hand-book of the said commissioners, printed Aug. 19, 1920, amongst other things, it is said: “That the declaratory action is in effect an action for the security and protection of existing rights, privileges, powers and immunities is made evident by tracing the history and purpose of the negative form of declaratory judgment. By this action the plaintiff asks a declaration that the defendant has no right as opposed to the plaintiff’s privilege, i. e., that the plaintiff is under no duty to the defendant, or that the defendant, or that the plaintiff is under an immunity from any power of or control by (i. e., there is a disability of) the defendant. The danger of uncertainty and insecurity of rights and other jural relations against which the declaratory action was designed to guard, threatened in one of two ways — either by the defendant’s denial of well-established and well-founded rights or other legal relations, or by the defendant’s assertion of unfounded claims. It was to meet the second class of danger that the negative declaratory action was invented.”

And in the “Reasons for the Adoption” of this-Judgments Act, reprinted for the said National Conference of Commissioners, 1928, amongst other things, it is said: “The declaratory judgment allows parties who are uncertain as to their rights and duties to ask a final ruling from the court as to the legal effect of an act before they have progressed with it to the point where one has been injured.”

In the American Bar Association Journal of December, 1928, in an article by Edwin M. Borchard, Professor of Law at Yale University, on “The Supreme Court and the Declaratory Judgment,” on the latter subject he said:

“Its great advantage lies in the fact that it enables an issue to be narrowed and to be determined before breach or violence has occurred. It takes account of the fact that people may have controversies as to their legal rights under a written instrument, or otherwise, which require settlement by a court prior to the irretrievable destruction of economic and social relations consequent upon a breach or violence, and that in many cases grave doubt or uncertainty as to legal relations may disturb the social equilibrium and require prompt judicial settlement. In an economic world held together by a network of long-term contracts and governmental regulations and control, it seems crude to insist that a dispute arising between parties can only be judicially settled if one or the other acts at his peril upon his own interpretation of his rights and takes the fatal plunge. Relations once destroyed by open breach can rarely be knit together again.

“The rest of the English-speaking world and much of the Continent have long discovered that courts play an essential part in society, not merely to redress wrongs already committed or just about to be committed but to determine controversial issues by removing clouds and uncertainties from titles and from other legal relations, when a useful purpose is thereby served and the issue is finally settled.”

We make these citations as showing the purpose and spirit of the act as understood by the learned gentlemen who studied carefully and thoroughly the subject and advocated its uniform adoption throughout the states. We think application of the statute should be rather freely given. It will be far better for the people if courts will be more liberal and willing to pass upon questions presented for decision rather than to lean the other way and refuse to decide, provided the petition presents some controversy concerning present existing conditions.

Section 2 of the Act of June 18, 1923, P. L. 840, provides: “Power to Construe, etc. — Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder.”

We are of the opinion that the Instant case comes within the provisions of the foregoing section. The legal relations of the parties hereto under the Statute of 1927, supra, are disputed, and under the Act of 1923, supra, any person interested may obtain a declaration of his rights, status or other legal relations thereunder. A mayor who is advised by his lawfully constituted legal adviser and who, therefore, firmly believes that the act does not apply and that it is not his duty or right to certify, stands in a dangerous position if his adviser and he are wrong. Considerable delay may be caused in the various steps of certification and appeal as provided for in the Act of 1927, supra, and its supplement, supra. Avoidance of delay is within the spirit of the act. It is important to the many municipalities within the Commonwealth to have this controversy decided at an early date. Just now we have a similar case before us raised by another municipality for decision. We do not concur in the view that the prayer is purely for an advisory opinion; it is for more; it is, we think, for the speedy determination of a real controversy as to whether or not these improvement bonds come under the provisions of the said Act of 1927 and its supplement.

The Act of March 31, 1927, P. L. 91, is entitled “An act relating to municipal indebtedness; imposing certain powers and duties upon the Department of Internal Affairs, and the officers of counties, cities of the third class, in connection with proceedings to incur and increase indebtedness, and the establishing and maintaining of sinking funds; fixing the maximum maturity of refunding bonds, and providing penalties.”

Section 2 provides: “It shall be the duty of the Department of Internal Affairs to carefully examine all proceedings had by the several municipalities of this Commonwealth for the incurring or increasing of the indebtedness thereof, and to ascertain whether the proposed debt is within the limitations imposed by the Constitution, and whether such proceedings are in conformity with existing laws.”

The Act of May 23, 1889, P. L. 277, is an act regulating the incorporation and government of cities of the third class, and in article xv, section 27, it provides as follows: “In all contracts for improvements, the cost of which is to be paid by assessments upon the property abutting or benefited, the city may enter into an agreement with the contractor that he shall take an assignment of such assessments in payment of the amount due him under the terms of his contract, and in such case the city shall not be otherwise liable under such contract, whether such assessments are collected or not, or the city may issue improvement bonds based solely upon the assessments for any of said local improvements.”

■ Article IX, section 8, of the Constitution provides as follows: “The debt of any county, city, . . . except as herein provided, . . . shall never exceed seven per centum upon the assessed value of the taxable property therein, ... or shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property without the consent of the electors thereof at a public election in such manner as shall be provided by law. . . .”

The bonds in the instant case are about to be issued under the Act of 1889, supra, which act is still in force: York City v. Eyster, 68 Pa. Superior Ct. 104, 113.

That the instant case does not come under the constitutional provision above referred to is well settled.

In the case of Addyston Pipe and Steel Co. v. City of Corry, 197 Pa. 41, the Supreme Court, at pages 48 and 49, said: “As to the $9300 to be paid by the city out of the general sewer fund, there is nothing in the case stated to show that the amount was not then in the city treasury or payable and subsequently paid out of the current revenues. This item, therefore, did not increase the city’s indebtedness in the prohibited sense. There is no constitutional restriction on municipal expenditure, provided it is paid as it goes. What is prohibited is the incurring of debt. If the city has the money on hand or provides at the time a present means of raising it otherwise than by loan, it may contract for expenditure without restriction. In the Appeal of the City of Erie, 91 Pa. 398, Gordon, J., quoting from Grant v. City of Davenport, 36 Iowa, 396, says: ‘When a contract made by a municipal corporation pertains to its ordinary expenses and is, together with other like expenses, within the limits of its current revenues and such special taxes as it may legally and in good faith intend to levy, therefor, such contract does not constitute the incurring of indebtedness within the meaning of the constitutional provision limiting the power of municipal corporations to contract debts.’ And he adds: ‘If the contracts of municipal corporations do not overreach their current revenues, no objections can lawfully be made to them, however great the indebtedness of such municipalities may be; for in such case their engagements do not extend beyond their present means of payment, and so no debt is created.’ This is quoted with approval by our Brother Dean in Wade v. Oakmont Borough, 165 Pa. 479, 488.”

In 37 L. R. A. (N. S.) 1072, it is said: “It is well settled that contracts for local improvements, the cost .of which is to be borne wholly by the property benefited, form no part of the indebtedness of the municipality within the meaning of the debt limit provisions. Improvement bonds do not constitute indebtedness within the meaning of the Constitution, where the cost is assessed back on the property benefited, and the amounts assessed become a lien on such property, and where it is provided that the proceeds arising from the assessment shall constitute a special fund for the payment of the cost of the improvement and the bonds and certificates, and where it is required that the bonds shall bear the name of the street or alley improved or sewer constructed, and that they shall be payable out of a special fund provided for in the act, since there is no liability against the city) the city authorities being merely an agency for making and collecting the assessment, and the custodian of the fund when the assessments are collected. And street improvement warrants chargeable to, and payable out of, particular funds to be derived from local assessments at least do not create a present indebtedness against the city.”

Section 27 of the Act of 1889, supra, provides that the cost of improvements shall be paid by assessments on abutting property or property benefited by the improvement, and that the contractor may take the assignment of such assessments in payment of the amount due him or-improvement bonds based solely upon the assessments on the abutting and improved property for the improvement. There is no obligation, under the act, imposed upon the municipality to pay for such improvements. The contractor cannot look to the municipality except as an agent to assess, levy and collect from certain property owners for the work he has done; his source of payment is strictly limited to the assessments. The credit of the municipality is in nowise involved and we are unable to see that bonds issued by a municipality for such local improvements as in the instant case are an indebtedness of the municipality. The municipality is made the instrument for the division of the costs of the improvement against the certain property owners, levying the assessment on the properties, filing liens therefor, collecting the assessments of liens and paying the money over to the holder of the security. If the city fails to perform or errs in the performance of its duty thus laid upon it by the act, it is liable for its failure or error: Gable v. Altoona, 200 Pa. 15. It then would not be such an indebtedness as is contemplated in the constitutional prohibition nor in the Act of 1927, supra. It is rather a penalty for its error or negligence.

In 1 Dillon on Municipal Corporations (5th ed.), 368, the distinguished author says: “In the case of streets, sewers and other local improvements, whieh are payable from the proceeds of special assessments upon the property benefited thereby, a contract which provides that the contractor shall be paid from such assessments, that he shall have no right of recourse against the municipality or its property, or its general power of taxation, and that the only duty of the municipality shall be to levy, collect and pay over the special assessments, does not create any indebtedness on the part of the municipality within the meaning of the constitutional limitation, although the city is a party to the contract, although the money is payable through its general treasury, and although it issues certificates, warrants or bonds payable out of such special fund for the payment of the cost of the improvement. Under such a contract, no judgment in personam against the city for non-payment of the cost is justified, no charge can be enforced against its general assets, nor can a resort be had to general taxation for the purpose of satisfying the claim. When the rights of the contractor are so limited, there is no debt within the debt-limit provision of the Constitution. These principles receive their natural and logical application where the city acts as the intermediary or instrument by which the improvement is effected, merely arranging for the improvement, contracting for the work and collecting from the parties benefited the amount of the special assessment. It is eminently proper that under such circumstances the recourse of the contractor should be confined to the special assessments, because the private and local interest really dominate the general public interest of the city. But where the improvement is one which affects the welfare of the city at large and is not properly payable from a local assessment, different considerations arise.”

Wherefore, we are of the opinion that the motion to dismiss the petition for a declaratory judgment should be dismissed and that no indebtedness as contemplated by the Act of 1927, supra, exists in this case.

And now, Sept. 12, 1929, it is hereby ordered, adjudged and decreed that the motion to dismiss the petition for a declaratory judgment is overruled, that no indebtedness as contemplated by the Act of March 31, 1927, P. L. 91, exists in this case, and that the bonds issued by the City of Chester are not required to be submitted to and approved by the Department of Internal Affairs of the Commonwealth.

From Homer L. Kreider, Harrisburg» Pa. •


source: Caselaw Access Project

author: Knight, J.,

license: Public Domain

text:
    Hoffman's Petition.

      James Herbert Egan, for petitioner.

      High, Dettra & Swartz, for respondents.
    Aug. 1, 1929.
   Knight, J.,

— John H. Hoffman was duly elected tax collector of the Borough of Norristown in November, 1925. During the years 1926, 1927 and 1928 he has collected the county, school and State taxes, also the delinquent borough taxes of the Borough of Norristown.

In the year 1928, Hoffman furnished a bond in the sum of §300,000, conditioned for the faithful performance of his duties, which bond covered all taxes collected by Hoffman in that year.

According to the record now before us, Hoffman has filed no bond as yet for 1929 covering the State, county and delinquent borough taxes. He has offered to the school board a bond in the sum of $50,000, which that body declined to accept, and further refuses to deliver the duplicate for the school taxes for 1929 to him unless he furnishes a bond in the sum of $200,000. The tax collector has now obtained this rule on the school board to show cause why they should not accept a bond in the sum of $50,000 and deliver him the duplicate for the school taxes for 1929.

Section 550 of the School Code, Act of May 18, 1911, P. L. 309, provides as follows: “Every person appointed or elected a collector of school taxes in any school district of the second, third or fourth class in this Commonwealth, in addition to any bonds that he may now be required by law to give, and before receiving his tax duplicate and warrant to collect said school taxes, shall furnish to the school district a proper bond, in an amount to be fixed by the board of school directors, with such surety or sureties as it may approve, conditioned upon the faithful performance of his duties as such tax collector. In case any person elected or appointed tax collector shall fail to furnish a proper bond within fifteen days after his appointment, or notice so to do, then, in any such case, the board of school directors shall appoint another suitable person as collector of the school taxes in said district in his place and stead, who, upon giving the proper bond required by the provisions of this act, shall be the duly authorized person to collect the school taxes in said district for the ensuing school year.”

The meaning of this section is clear. It requires the collector of school taxes in second, third and fourth elass districts (Norristown falls within this designation) to furnish a proper bond in an amount to be fixed by the board of directors. The board is, therefore, vested with discretion to fix the amount of the bond, and it is only in cases of palpable and apparent abuse of this discretion that the courts may interfere.

. The duplicate for the school taxes in the school district of the Borough of Norristown for the year 1929 amounts to approximately $540,000, and we are of the opinion that the board of school directors, instead of abusing their discretion, have used good judgment and exercised a wise discretion in fixing the bond of the collector in the sum of $200,000.

This opinion could well stop here, but as there seems to be some confusion in filing bonds by tax collectors, we will give our reasons for our present action.

Taxation is as old as organized society, but for our present purpose we need go no farther back than the Act of Assembly approved June 25, 1885, P. L. 187, regulating the collection of taxes in the several boroughs and townships of the Commonwealth. Section 3 of this act provides that the tax collector shall enter into a bond to the Commonwealth in double the probable amount of taxes that will come into his hands, with at least two sufficient sureties. The bond must be approved by the Court of Quarter Sessions and filed with the clerk thereof. Section 4 of the act requires the several county, borough, township, school, poor and other authorities empowered to levy taxes to issue their respective duplicates of taxes assessed to said collector for collection. The Act approved June 6, 1893, P. L. 333, changed the term of office of the tax collectors in boroughs and townships from one to three years, requiring, however, that they should give bond annually to be approved by the court.

Next came the Act of May 8, 1909, P. L. 474, which cited the 3rd section of the Act of 1885, heretofore mentioned, for amendment in the following particulars: . . . the bond, instead of double the amount which would probably come into the collector’s hands, was reduced to not more than the amount of taxes charged and assessed on the duplicate. The collector could offer two sufficient sureties or one trust or bonding company.

Thus, the law as it stood in 1911 required the tax collector to furnish a bond in amount not more than the total of the duplicates of county, borough, township, school and other taxes placed in his hands for collection.

In 1911, the legislature passed the School Code, containing section 550, as heretofore quoted in this opinion. The School Code does not repeal the Act of 1885, supra, in so far as the latter act relates to the collection of school taxes: Black v. Duquesne Borough School District, 239 Pa. 96.

It would seem, then, that, after the enactment of the School Code, the collector of school taxes was required to file two bonds, one under the mandatory provisions of the Act of 1885, and the other under the equally mandatory requirements of the School Code: Com. v. White et al., 75 Pa. Superior Ct. 554.

It will be noted that the condition of the two bonds is somewhat different. The condition of the bond under the Act of 1885 is that the collector “shall well and truly collect and pay over or account for . . . the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him.” The condition of the bond required by the School Code is that the collector shall faithfully perform his duties as tax collector. As the School Code places other duties upon the tax collector besides the collection of taxes, some solicitors of school districts took the view that if the collector filed a substantial bond under the Act of 1885, a nominal bond to the school district would protect that municipality and comply with the law. Much doubt was cast upon this contention, however, by the opinion of the Superior Court in Com. v. White et al., supra, wherein it is said: “Under the School Code, the special bond designed to be a separate and special security for the collection of the school taxes was to be in an amount fixed by the school board and the surety or sureties thereon were to be approved by the same body.”

Indeed, it has been held in the lower courts that the sureties on the bond of the tax collector, filed under the provisions of the Act of 1893, supra, are not liable for his failure to turn over school taxes collected by him: Com. v. Klugh et al., 32 Lanc. Law Rev. 325.

Later, in the case of Com. v. White et al., supra, the Superior Court held that the sureties on a tax collector’s bond filed under the Act of 1885 were not liable for his failure to account for school taxes collected by him when said collector had not given a bond to the school district, as required by the School Code. The court in its opinion, however, states: “We are not to be understood, even by inference, as asserting that, if the tax collector had qualified as the collector of school taxes and had given the bond required by the School Code, the sureties on his general bond would be discharged from any obligation in case of a default by him in the collection of the school taxes. No such question arises upon this record.”

This unsatisfactory and uncertain state of affairs has been largely remedied by subsequent legislation.

The Township Code of July 14, 1917, P. L. 840, provides for the election of tax collectors in townships of the first and second class and prescribes the bond to be furnished by them. It is distinctly set forth in the act that this bond shall not cover the collection of school taxes, for which a special bond is given under the School Code.

The General Borough Act of May 4, 1927, § 1081, P. L. 519, provides for the election of tax collectors in boroughs and the bonds to be given by them, and specifically enacts that these bonds shall not cover the collection of school taxes, for which a separate bond is required under the school laws of the Commonwealth.

Thus, the difficulty has been cleared up with the exception of those boroughs created by special act of assembly which are excluded from the provisions of the General Borough Act of 1927 by section 106. Norristown is such a borough, as it never has accepted the provisions of the Borough Codes. In Norristown, therefore, the only safe thing for the school board to do is to require two bonds, one under the Act of 1885, as amended, and the other under the School Code.

As we view it, the bond given under the School Code is the principal and primary source of security of the school district; hence, we have held that the school board committed no breach of discretion in requiring a bond in the sum of $200,000.

As the Act of 1885, as amended by the Act of 1909, places a limit on the amount of the tax collector’s bond of not more than the combined duplicates placed in his hands for collection, discretion is lodged in the court to approve a bond in less amount. In exercising this discretion, relief may be given the tax collector of Norristown from the hardship of requiring excessive and unreasonable bonds for the collection of school taxes.

And now, Aug. 1, 1929, the rule to show cause why the amount of the bond required from the tax collector of the School District of the Borough of Norristown for the faithful performance of his duty should not be fixed at $50,000, and why said tax collector should not be furnished with the duplicate for the year 1929 upon his furnishing a bond in said sum, is hereby discharged, at the cost of the petitioner.


author: Houck, J.,

text:
    Quick v. Philadelphia & Reading Coal and Iron Company.

      P. H. Burke and M. M. Burke, for claimant.

      J. F. Whalen and George Ellis, for defendant.
    Nov. 11, 1929.
   Houck, J.,

— Fred Quick was accidently injured while in the course of his employment on Feb. 7, 1928. He died as a result of the injuries the following day. After his death, the defendant and Viola Quick entered into a compensation agreement, in which Viola Quick is named as the decedent’s widow and Clifford Quick, born June 8, 1926, is named as his son. Subsequently, the defendant filed a petition for review of the agreement, alleging that it was based upon mistake, in that Viola Quick is not the widow of Fred Quick. The referee found that Fred Quick and Viola Quick contracted a common law marriage in December, 1924; that they lived together, with the exception of one or two short periods, from that time until the decedent’s death, and that Clifford Quick was their son and lived in the decedent’s household and was supported by him until he died. Consequently, the referee dismissed the defendant’s petition for review. The defendant appealed to the Workmen’s Compensation Board, which found, impliedly at least, that the claimant was not Fred Quick’s common law wife. It affirmed the referee’s finding of fact concerning the status of Clifford Quick and set aside the agreement as to Viola Quick, and awarded compensation to Clifford Quick in accordance with the provisions of the Compensation Act. The defendant appealed to this court, alleging that the referee and the board erred in awarding compensation to Clifford Quick.

The only question involved is whether Clifford Quick, the illegitimate child of Fred Quick and Viola Ridout, is entitled to compensation as a dependent of Fred Quick. The answer to this question is to be found in section 307 (9) of the Act approved June 2, 1915, P. L. 736, which provides, inter alia: “The terms ‘child’ and ‘children’ shall include stepchildren and adopted children, and children to whom he [the employee] stood in loco parentis, if members of the decedent’s household at the time of his death, and shall include posthumous children.” The act makes no provision for the payment of compensation to illegitimate children. It does, however, provide for the payment of compensation to children to whom the employee stood in loco parentis. Therefore, if the decedent stood in loco parentis to Clifford Quick, the child is entitled to compensation, and whether legitimate or illegitimate becomes immaterial.

The proper definition of a person in loco pa/rentis to a child is a person who means to put himself in the situation of a lawful father of the child with reference to the father’s office and duty of making provision for the child: Robinson’s Estate, 35 Pa. Superior Ct. 192; Dime Trust and Safe Deposit Co. v. Philadelphia & Reading C. & I. Co., 78 Pa. Superior Ct. 124. There is competent evidence in this case that the decedent acknowledged Clifford Quick as his child, that he intended to treat him as such in all respects, and that he actually supported and maintained the child from the time of its birth until the fatal accident. Fred Quick and the claimant lived together as man and wife and the child lived with them. There can be no doubt that the employee stood in loco parentis to this child and that the child was a member of the decedent’s household at the time of his death. Consequently, the child falls within one of the classes specifically mentioned in section 307 of the Compensation Act and is entitled to compensation.

The defendant refers us to Litzinger v. State Workmen’s Insurance Fund, 2 Pa. Workmen’s Comp. Bd. Dec. 238, and McIntosh et al. v. Estate of George F. Lasher, 2 Pa. Workmen’s Comp. Bd. Dec. 279. In both of these cases the Compensation Board disallowed compensation to an illegitimate child. In the Litzinger case the child was a posthumous child, and in the McIntosh case the child was not supported by, and did not live with, its reputed father. In neither of these cases did the question of loco parentis arise. The ruling in the case at bar is in accord with Gregor v. Mountz & Co., 8 Pa. Workmen’s Comp. Bd. Dec. 202. In the last cited case the Compensation Board said: “Section 307 (7) of the Compensation Act defines ‘child’ and ‘children’ as including ‘children to whom he stood in loco parentis, if members of the decedent’s household at the time of his death.’ These children fall squarely within this definition and are entitled to the benefits of the Compensation Act. The defendant would have us qualify the clause quoted by adding thereto, ‘except illegitimate children of the decedent.’ There is no such exception in the act.” In the case now under consideration, the defendant asks that the quoted clause of the Compensation Act be qualified in the same way. Of course, there is no warrant for this. Clifford Quick was a member of the decedent’s household and the decedent stood in loco parentis to him. He is a dependent child of the decedent as the term is defined in the Compensation Act.

The defendant’s exceptions are dismissed, the action of the Workmen’s Compensation Board is affirmed, and judgment is entered against the defendant, in accordance with the award of the Workmen’s Compensation Board, in the sum of $3456.99.


author: Baird, P. J.,

text:
    Renovo Borough v. Snyder, Guardian.

      W. E. Shaffer, for plaintiff; Henry Hippie, for defendant.
    Nov. 20, 1929.
   Baird, P. J.,

— This suit is brought by the plaintiff, the Borough of Renovo, to recover from the defendant, J. Howard Snyder, guardian of William D. Roat, an incompetent, who is or has been a pauper chargeable to said borough, the moneys expended by it for his support and maintenance.

The periods covered by the claim in suit, as shown by plaintiff’s statement, are from Dee. 9, 1895, to Sept. 27, 1905, and from June 27, 1908, to May 1, 1928. The amount alleged to have been expended by the plaintiff for this purpose is $3110.10, divided as follows: For the first period, $685.20, and for the second period, $2424.90.

The only defense interposed is that so much of the claim as matured six years prior to Aug. 15, 1928, the time when the suit was brought, is barred by the Statute of Limitations.

The suit is apparently brought under the provisions of the Act of June 25, 1913, §§ 1 and 2, P. L. 564, or the re-enactment thereof, sections 1000 and 1001 of the Act of May 14, 1925, P. L. 762.

Sections 1 and 2 of the Act of June 25, 1913, supra, read as follows:

“Section 1. The real estate of any pauper shall be liable for the expense of his support, maintenance and burial incurred by any poor district, whether owned at the time such expenses were incurred or acquired thereafter.

“Section 2. The overseers or directors of the poor or the county commissioners in charge of any poor district may sue for the moneys expended by them on account of such pauper, in an action of assumpsit, in the proper court of the county; and any judgment obtained shall be a lien upon the real estate of such pauper, and be collected as other judgments are now collected.”

It is alleged that the said pauper is the owner of an undivided interest in certain real estate which he acquired by descent from his parents.

After suit brought, the plaintiff and defendant filed to the above number and term a case stated, wherein they agreed as follows:

“1. On Dec. 9, 1895, William D. Roat was committed to the State Hospital for Insane at Danville, Pa., where he remained until June 1, 1896. He was recommitted to the same institution Jan. 13, 1900, and the costs of commitment and maintenance chai'ged to the Borough of Renovo as an indigent.

“2. That on Dec. 6, 1912, the Court of Common Pleas of Clinton County directed a commission to Ralph Kisner, Esq., of Danville, Pa., to inquire whether the said William D. Roat has or has not, by reason of his lunacy, become incapable of managing his estate.

“3. That by return of the inquisition, which was approved by the Court of Common Pleas of Clinton County, Jan. 23, 1913, the said William D. Roat was declared a lunatic, and the court committed the custody and care of the person and estate of the said lunatic to Minnie D. Roat.

“4. That the said Minnie D. Roat died Jan. 11, 1924, and upon petition the court appointed W. E. Shaffer guardian; the said W. E. Shaffer failed to qualify by filing a bond; the court, on petition of the Overseers of the Borough of Renovo, on April —, 1928, appointed J. Howard Snyder guardian, who filed his bond, which was approved by the court.

“5. That on Aug. 15, 1928, the Borough of Renovo entered an action of assumpsit against J. Howard Snyder, guardian of William D. Roat, to recover for maintenance and costs of commitment of the said William D. Roat in the State Hospital at Danville, from Dec. 9, 1895, to May 1, 1928, in the amount of $3110.04, with interest.

“6. That the defendant filed an affidavit of defense and pleaded the Statute of Limitations to so much of the claim of the plaintiff as matures six years prior to Aug. 15, 1928.

“7. If the court be of the opinion that the Borough of Renovo is entitled to be reimbursed for the costs and maintenance of the said William D. Roat, a lunatic, at the State Hospital at Danville, as set forth in plaintiff’s statement of claim, regardless of the Statute of Limitations, then judgment to be entered for the plaintiff in the sum of $3110.04, with interest, but if not, then judgment to be in favor of the plaintiff for costs of maintenance from Aug. 15, 1922, in the sum of $926.58.

“The costs to follow the judgment, and either party reserving the right to sue out a writ of errror therein to the Supreme Court.”

Prior to the Act of 1913, supra, the Supreme Court had held in Directors v. Nyce, 161 Pa. 82, that under the Act of June 13, 1836, an estate acquired by a pauper after he had become a charge on the public was liable for his previous maintenance. The application of the Statute of Limitations was not passed upon by the Supreme Court in that case, the appeal having been taken by the defendant; but in the court below (13 Pa. C. C. Reps. 594) the recovery was limited to the moneys expended within six years immediately prior to the bringing of the suit. However, in 1921, the Superior Court in Re Margaret McCanna, a Lunatic, 77 Pa. Superior Ct. 1, specifically held that the Statute of Limitations may be pleaded against the poor district, as its right to recover is based upon an implied contract. The law stood as so decided by the Superior Court until 1925, when the Legislature enacted otherwise: “In all suits, claims or demands of any poor district for maintenance and support against the real or personal estate or property rights of any pauper, the Statute of Limitations shall not avail as a defense:” Section 1016 of the Act of May 14, 1925, P. L. 762.

A statute providing that specified causes of action shall not be affected by the Statute of Limitations keeps alive such causes of action as are not barred when the statute is passed (37 Corpus Juris, 696), or, as conversely stated in Davis v. Sugg, 215 Ala. 93, 109 So. Repr. 745, the repeal of a statute of limitations does not impair the bar perfected before the repeal. Relying upon these authorities, we conclude that so much of the plaintiff’s claim as matured within six years prior to May 14, 1925 (date of statute abolishing the limitations in such cases as this), and thereafter, is not barred by the Statute of Limitations. This amount, as we have computed it from the itemized statement attached to the plaintiff’s statement of claim, is $1343.67. The entry of judgment for this amount, while not, perhaps, within the strict letter of the case stated, is, we think, within its spirit and intention.

Now, Nov. 20, 1929, the prothonotary is directed to enter judgment in favor of the plaintiff and against the defendant for the sum of $1343.67, with inters est from May 1, 1928, amount to be liquidated by him.

Prom W. E. Shaffer, Lock Haven, Pa.


author: Keller, J.,

text:
    Camden County Council, Boy Scouts of America, v. Bucks County.

      George Boss, for petitioner.

      Henry A. James, County Solicitor, for respondent.
    Nov. 18, 1929.
   Keller, J.,

— This is a petition to set aside an assessment of certain real estate in Bucks County, Pennsylvania, and declare the same to be exempt from taxation upon the ground that the petitioner is an institution of public charity and that the real estate so assessed is used and owned by the petitioner solely for educational and charitable purposes.

The petitioner is a duly chartered subsidiary or branch of the national organization of Boy Scouts, known as the “Boy Scouts of America,” which was incorporated by an Act of Congress in 1916, and whose purpose is “To promote, through organization and co-operation with other agencies, the ability of boys to do things for themselves and others; to train them in scout-craft; and to teach them patriotism, courage, self-reliance and kindred virtues, using the methods which are now in common use by Boy Scouts. ... Its object and purpose being solely of a benevolent character and not for pecuniary profit to its members.” The membership of the Boy Scouts is unrestricted and is open to all boys, regardless of race, color or religion.

The petitioner is a county council known as the “Camden County Council, Boy Scouts of America,” and as such is a corporation organized and existing under the laws of the State of New Jersey, pursuant to the provisions of an act of legislature of said state, entitled “An Act to Incorporate Associations Not for Pecuniary Profit,” and the acts amendatory thereof and supplemental thereto. The objects for which the council was established, as set forth irf the certificate of incorporation, are to supervise the work and promote the general welfare of the Boy Scout movement within Camden County, New Jersey, under the direction and co-operation of the National Council of the Boy Scouts of America, and for this purpose it is authorized to own real estate for the purposes of the corporation. It is directly affiliated with and cannot operate without the official sanction of the National Council of the Boy Scouts of America.

The petitioning council consists of a number of Scout Troops with headquarters and local meeting-places in Camden County, New Jersey. In addition, it owns a tract of land known as “Pennington Island,” containing 37 acres, 31 perches of land, more or less, located in the upper Delaware River and forming a part of the Township of Tinicum, County of Bucks and State of Pennsylvania, where the combined clubs of the Camden County Council maintain a camp during the summer months. This camp is equipped with sleeping cabins, dining hall, assembly hall, workshop and other buildings, all of which are necessary and used exclusively for the purpose of the Boy Scouts. It is maintained solely by voluntary contributions, the only income being from board received from the boys while at the camp, at the rate of $7 a week, which is admittedly below cost, and the organization does not derive any profit out of the camp nor from any other source whatsoever, and the entire revenue derived from this property is applied to the support of the camp and equipment and to the necessary repairs thereof, and to increase the efficiency and facilities thereof, and for no other purpose. It is this property located in Bucks County which the petitioner seeks to have exempted from taxation.

Under the Act of May 24, 1923, P. L. 438; any corporation incorporated under the laws of another state may take, by conveyance or otherwise, such real estate and rights and interest therein in Pennsylvania as may be necessary and proper for the exercise of such of its corporate purposes as may be lawful under the Constitution and laws of Pennsylvania to exercise in this State.

It is not seriously disputed that the petitioner is an institution of purely public charity, within the meaning of section 1, article IX, of the Constitution of Pennsylvania, and the Act of April 29, 1874, P. L. 73, and the supplements thereto, as interpreted by the Superior Court in Lancaster County v. Y. W. C. A. of Lancaster, 92 Pa. Superior Ct. 514, and cases therein cited.

The more important question is whether the petitioner, being a foreign corporation, may claim the benefit of this exempting statute. We are unable to find any precedents in our State, but we are of the opinion that it is the use to which an institution or organization is put that determines its immunity from taxation, rather than the source of its corporate existence. Exemption of charitable, educational and religious institutions from taxation may include foreign corporations, unless the terms of the exempting statute are such as to exclude foreign corporations: 37 Cyc., 926.

In a New Jersey case, where a Pennsylvania corporation sought exemption from taxation in New Jersey upon the ground that the land and buildings were used exclusively for charitable purposes, the court (Garrison, J.), in setting the assessment aside, said: “The circumstances that the legal title is in a trustee, and that the cestui que trust owes its corporate existence to the laws of a sister state, do not militate against the general policy of our State embodied in the act referred to:” Litz et al. v. Johnston, 65 N. J. L. 169; 46 Atl. Repr. 776; Congregation of St. Vincent de Paul v. Brakely, 67 N. J. L. 176; 50 Atl. Repr. 589.

We fail to find anything in our acts of assembly restricting the benefits of the exemption from taxation provisions as affecting charitable institutions to Pennsylvania corporations, and being satisfied that the petitioning council is an institution, educational in its purpose and charitable in its character, and as such comes within the provisions of our exemption statutes, we are of the opinion that the assessment must be set aside, and, therefore, decree that the tract of land mentioned in the petition known as “Pennington Island” is exempt from taxation, so long as it is being used by the petitioner solely for educational and charitable purposes.

From Calvin S. Boyer, Doylestown, Pa.


text:
    Producers Coal and Coke Company v. Moyer.

      Frank P. Barnhart and H. L. Walters, for plaintiffs.

      Scheeline & Smith, for defendant.
    Oct. 11, 1929.
   Chase, P. J., 46th judicial district, specially presiding,

— The plaintiffs bring an action of assumpsit to recover for coal alleged to have been sold and delivered to the defendant. The defendant, in reply, sets up set-off to the claim, alleging that the defendant purchased two cars of coal and consigned the same to H. C. Butterbaugh Company, Ponda, New York; that when the said cars were en route, the plaintiff, representing that it had authority in the premises, induced the carrier, the Pennsylvania Railroad Company, to reconsign the said two cars of coal; that such reconsignment was made for the benefit of the plaintiff; that the fair market value of the coal illegally taken was $441, and this set-off in this action is claimed under an implied contract to pay for the same.

The plaintiffs file a statutory demurrer alleging that the set-off or counterclaim cannot be set up in this action as against the plaintiffs’ claim, inasmuch as the alleged set-off grows out of a separate and distinct transaction, which in no way bears any relation to the transaction out of which the plaintiffs’ demands grew, and that it being a separate and distinct transaction and the alleged set-off being the result of a tortious act of the plaintiff, the set-off cannot be permitted.

Upon the other hand, the defendant contends that, although the act on which the set-off was based was the result of the tortious conduct of the plaintiffs, the property having been seized and disposed of, the defendant would have the right to waive the tort and sue in an action of assumpsit under an implied contract to pay for the property alleged to have been wrongfully taken.

It is a well-established principle that set-off will not be permitted in an action of assumpsit for a tortious act, unless the alleged set-off grows out of the contract or obligation on which the plaintiff alleges the right to recover. It is not contended by the defendant in this proceeding that that is not the law. However, it is contended that where a set-off is claimed, growing out of a separate and distinct transaction from that on which the plaintiff bases his rights of recovery, if the alleged set-off is the result of a tortious act wherein the tort could be waived and the defendant could sue in assumpsit on an implied contract, the law will permit the setting up of the set-off or counterclaim. It is a well-recognized principle of the law, which needs no authority, that where it is possible, as between litigants, to have their differences adjudicated in a single action, the same should be done in order to avoid a multiplicity of actions.

In disposing of the issue raised in the demurrer, it first must be determined whether, under the facts as alleged, the defendant could sue in assumpsit for the two cars of coal alleged to have been wrongfully taken. In the case of Deysher v. Triebel, 64 Pa. 383, Mr. Justice Sharswood uses the following language, quoting from Mr. Leigh: “Where the defendant has received goods wrongfully, a contract for the purchase will be inferred and the plaintiff may waive the tort and recover the amount in an action for goods sold and delivered.” Still further, it has been said that if the goods were of such a character that the defendant, after conveying them to his own use, had consumed them, a plaintiff might maintain an action of assumpsit for the price. And further, it appears that where one has voluntarily put himself in the attitude of one who has acquired the lawful title to the property by purchase, there is no reason why the law should not thereupon raise a promise on his part to pay for it. And it seems that where the right to sue in assumpsit lies by waiver of the tort, the same could be set up in set-off or counter-claim, if the damages were capable of liquidation. In the case of Groetzinger v. Latimer, 146 Pa. 632, the court, quoting from Justice Woodward in the case of Ahl v. Rhoads, 84 Pa. 319, says: “It was said by Justice Woodward ‘the right of a defendant may be regarded as established to set off against a plaintiff’s demand any damage capable of liquidation and for which an independent action ex contractu could be maintained. This may be stated as a general result of the authorities extending especially from Nickle v. Baldwin, 4 W. & S. 290, to Hunt v. Gilmore, 59 Pa. 450.'”

We would gather from these authorities that where the tort may be waived and action brought in assumpsit, the cause would be permitted to be set up as a set-off or counter-claim, if the damages were capable of liquidation. In the case of Hunt v. Gilmore, 59 Pa. 450, 454, Justice Sharswood, speaking for the court, says: “I think it clearly settled by this array of authorities (citing the authorities therein) that unliquidated damages arising from a breach of contract can always be set off when they are capable of liquidation by the application of any known measure or standard.” In the matter before the court it seems that the measui-e of damages is readily susceptible of liquidation in the alleged set-off, it being the market value of the coal alleged to have been wrongfully taken. We are, therefore, of the opinion that, under the law, the set-off herein alleged is permissible under the authorities, and the court will rhake the following order:

Now, Oct. 11,1929, the demurrer to the set-off or counter-claim by the plaintiff is dismissed and the plaintiff is ordered and directed to file an answer to the same within twenty days from the date of this order. Exceptions fioted and bill sealed to the plaintiff.

From John M. Urey, Clearfield, Pa.


author: Lewis, J.,

text:
    Katz v. David Fine Building and Loan Association.

      Hymen Schwartz, for plaintiff; A. M. Roth, for defendant.
    Feb. 18, 1930.
   Lewis, J.,

— This is a rule for judgment for want of a sufficient affidavit of defense. In his statement of claim the plaintiff avers that on April 10, 1929, he gave to the defendant building and loan association written notice of a desire to withdraw from the building and loan association, and that since that time he has been unable to receive payment of the moneys invested by him with the defendant association.

As a defense to plaintiff's claim, it is averred that on April 10, 1929, the building association “had insufficient assets to repay its stockholders the full paid-in value of their stock, and it is- unable at the present time to state the value of the stock, in view of the fact that the assets of the association have been rapidly depreciating from month to month.”

A statement of assets and liabilities is attached to one of the affidavits filed.

Our statutes permit any stockholder wishing to withdraw to do so by giving thirty days’ notice of his intention, whereupon he becomes entitled to receive the amount paid in by him and such proportion of the profits as the by-laws may determine, less all fines and charges. They also provide that at no time should any more than one-half of the funds in the treasury of the corporation be applicable to the demands of the withdrawing stockholders without the consent of the board of directors: McGovern v. Cosmopolitan S. & L. Ass’n, 44 Pa. Superior Ct. 212.

It has been held that a building association cannot ordinarily set up its lack of funds as a defense to a claim by a withdrawing member (Second National Loan and Homestead Ass’n v. Hubley, 34 Legal Intell. 6; Beethoven B. & L. Ass’n v. Weber, 5 Atl. Repr. 235; United States B. & L. Ass’n v. Silverman, 85 Pa. 394), and if the association be solvent, it must pay him in his turn, assuming that other members gave notice of intention to withdraw.

In speaking of the position of a withdrawing member, Mr. Justice Sterrett (in United States B. & L. Ass’n v. Silverman, supra) says: “While in a qualified sense withdrawing stockholders may be considered creditors of the association, their rights, as against those with whom they have been associated, are very different from those of general creditors whose claims are based wholly on outside transactions. If the association has been prosperous, they have a right, under certain limitations and restrictions, to demand and receive their proportionate share of the accumulated fund, but if bad investments have been made, or losses have been sustained before actual withdrawal, they must bear their just proportion thereof. That right, as was held in United States B. & L. Ass’n v. Silverman, 85 Pa. 394, may be enforced by appropriate proceedings at law. But the right of withdrawal and the extent to which it may be exercised presupposes that at least a relative proportion of the assets will remain for the benefit of those who continue to be active members of the association. When a building association has failed to fulfill the object of its creation, and has become hopelessly insolvent, it cannot be justly or equitably wound up on any other principle than that above suggested. After expenses incident to the administration of its assets are deducted, the general creditors, if any, should be first paid in full, and the residue of the fund should be distributed pro rata among those whose claims are based upon stock of the association, whether they have withdrawn and hold orders for the withdrawal value thereof or not. Both classes are equally meritorious, and in marshaling the assets, neither is entitled to priority over the other. The claims of each are based upon their relation to the association as members thereof.”

In the case of Andrews v. Roanoke Building Ass’n and Investment Co., &8 Ya. 445, the court said: “The position occupied by a withdrawing member of a building association is not very clearly defined by the authorities. It is said that he is not in all respects a creditor, for if that were so, he might get judgment, issue an execution, acquire a lien upon real estate, and subject the personalty of the association to the prejudice of other creditors. He is no longer a member of the association, so far as his rights to participate in its management and control are concerned. ... A member of such an association must, upon withdrawal, retain some relationship to the company, growing out of his membership, other than that of creditor. It seems to us that by so much as he falls short of being clothed with the rights of a creditor, by so much there must remain in him the residuum of his rights as a member.”

The fundamental idea governing the right of withdrawal is that it is subject to the condition that the association is solvent. If it were otherwise, stockholders could at their will successively take out their investment and desert what would at once become a failing enterprise, and those remaining would have to bear thé brunt of what ought to be a joint misfortune: Aldrich v. Gray, 147 Fed. Repr. 453.

As was said in Chapman v. Young, 65 Ill. App. 131: “The right of withdrawal, which is a peculiar feature of such institutions [building associations], is not conferred upon a member for the purpose of enabling him to escape his just proportionate responsibility for losses incurred by an insolvent association, but for the purpose of securing to each member the privilege of withdrawing his proportionate share of the accumulated funds. . . . No one could contend [that] the right could be exercised after an association has been judicially declared insolvent and a receiver appointed, for the condition of insolvency is incompatible with the right of any member to withdraw his contribution to the general fund until his proportion of the losses has been ascertained and adjusted. In our view, it is equally unreasonable to insist [that] a member, who, prior to such declaration of insolvency, but while the condition of insolvency in fact existed, gave notice of his intention to withdraw, should be deemed by the courts entitled to receive from the receiver out of the general funds more than his just proportion of the assets of the society. In such cases, the basis of distribution is not that provided by the by-laws in the regular course of business of a solvent society, but the principles of equity and mutuality must prevail and control. The by-laws of an association are enacted for the government of a solvent, going association, and of necessity must cease to have operation or effect when the association is no longer able to continue the transaction of the business it was created to transact."

Mr. Endlieh, in his Law of Building Associations (page 92), says: “Accordingly, it has been decided in Pennsylvania that the fact of insolvency of an association negatives the right of any one to obtain a priority over his fellows by giving notice of withdrawal. ‘The right of withdrawal presupposes that at least a relative proportion of the assets will remain for the benefit of those who continue to be active members of the association.’ Whilst, therefore, it has been held that members who had given notice to withdraw and whose notices had matured before the society’s insolvency was manifest or declared, were entitled to stand upon their rights as withdrawing members, even to the detriment of those who had not withdrawn or whose notices had matured; the better and more logical doctrine would seem to be that the existence of a state of insolvency at the time of the giving of the withdrawal notice, ascertained at any time before actual payment of the claim, renders the notice abortive and destroys the right to withdraw or to claim any benefit under the notice already given.”

We think it unreasonable to suppose that the right of withdrawal can be intended to be given where there is insolvency or that it can logically be contended that one set of members are to be permitted to escape from liability at the expense of another set of members.

What is insolvency as applied to corporations of the character we are here discussing? Generally, corporations are held to be insolvent when their assets are insufficient to pay their creditors, exclusive of stock subscriptions. But building and loan associations are in a class by themselves, inasmuch as they are said to be insolvent when they cannot, besides paying their general creditors, pay back to their stockholders the amount of their contribution, dollar for dollar: Kurtz v. Bubeck, 39 Pa. Superior Ct. 370; Endlich on Building and Loan Associations (2nd ed.), § 511.

The defense to which exception is taken avers facts which seem to bring it clearly within the definition of insolvency. Then, too, a mass of involved figures are set forth which, on a mere cursory examination, disclose a deficiency of assets to satisfy the claims of stockholders, in view of the fact that the funds of the building association have been invested in mortgages secured on real estate, the value of which is “indeterminate,” and that the ultimate net value of defendant building association assets will depend upon a market for real estate and the capacity of the mortgagors whose mortgages are now held by the defendant to pay off their mortgage loans. Reference to the figures submitted in the affidavit of defense also discloses that they are at most tentative and in the nature of an appraisal of some of the real estate and securities held by the association, which figures are undoubtedly liable to further reduction, depending upon the liquidation of the securities and values of the estate held by the association.

Counsel for the plaintiff at the argument conceded that from the facts pleaded plaintiff was not entitled to recover the full amount of money that he had paid in, but he urged this court to examine in detail the large number of complicated facts and figures set out in the affidavit of defense and to mathematically solve the loss in percentage, if any, that the plaintiff would suffer and give him judgment for the difference. We think that the court should not be called upon on pleadings alone to marshal the various items of assets and liabilities and consider the case from an accountant’s or bookkeeper’s point of view for the purpose of determining what action will best serve the interests of the parties and of the public.

The large number of suits begun against building and loan associations by stockholders desiring to withdraw prior to the maturity of their shares has created a situation comparable to a run on a banking institution. Most of these building associations are utterly unable to- meet the demands of withdrawing stockholders. To restrain the precipitate enforcement of such claims by the courts' control of the execution, as suggested by some cases, furnishes only a partial and makeshift sort of remedy. It merely puts the court in the position of supervising the internal affairs of each building association and determining a large number of questions prior to the time of granting permission, if any, for execution. These matters should be worked out by a receivership or liquidation under the supervision of persons thoroughly familiar with the problems. The large number of actions begun against building associations is undermining the credit of these associations, confidence of stockholders in the officers and directors has been lost, and there has been brought about a condition of insolvency, of forced liquidation, of sacrifice of assets and a severe loss to a large number of persons, most of them of small means, who for years have regarded these associations as a means of investment and have used them to acquire homes and in certain cases a small competence, all of whom can ill-afford to bear the burden. In a great many instances the avalanche of withdrawals and applications for them have been without any just cause or useful purpose; if they go on unchecked, they are bound to destroy a great number of these savings institutions wherein the assets, as they must be in building associations, are not in a liquid state to meet the immediate demands of those desiring to withdraw. A more comprehensive inquiry into the facts than is presented by the pleadings in the case ought to be had in order to justly determine the rights of the parties.

The rule for judgment is discharged.


author: Van Dusen, J.,

text:
    Whiteside’s Estate.

      Arthur Hagen Miller, for exceptions; Theodore F. Jenkins, contra.
    Feb. 21, 1930.
   Van Dusen, J.,

None of the arguments made by the except-ants are convincing that this case is an exception to the general rule (prior to the Act of June 29, 1923, P. L. 914) that heirs or next of kin of the testator to whom gifts are made in a will are to be ascertained as of his death, though possession is postponed to admit of an intermediate estate and though the person who is next of kin also takes the intermediate estate. See Tatham’s Estate, 250 Pa. 269.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.


author: Wickersham, J.,

text:
    Snyder v. Lewis, Secretary of the Commonwealth.

      R. A. Freiler, James Gallagher, Man-tin F. Duffy and Scott S. Leiby, for plaintiff.

      William A. Sehnader, Special Deputy Attorney-General, and Cyrus E. Woods, Attorney-General, for defendant.
    Oct. 14, 1929.
   Wickersham, J.,

— On petition of the plaintiff setting forth, inter alia, the facts which we shall hereinafter state and praying for a writ of mandamus in the alternative form, a writ was awarded by this court. The defendant filed an answer.

It appears from the pleadings that at a primary election held on Sept. 17, 1929, Harry 0. Bechtel, Esq., Pottsville, Schuylkill County, was nominated as the Democratic candidate for Judge of the Court of Common Pleas of the 21st Judicial District. On Oct. 2, 1929, Mr. Bechtel filed in the office of the Secretary of the Commonwealth his withdrawal as a candidate for judge in accordance with the provisions of the Act of April 18, 1923, P. L. 67. This action on the part of Mr. Bechtel left the Democratic Party of Schuylkill County without a candidate for judge at the forthcoming municipal election to be held Nov. 5th.

On Oct. 2, 1929', the Executive Committee of the Democratic Party of Schuylkill County, acting in accordance with the rules of the party, selected as the substituted nominee of that party for the office of Judge of the Court of Common Pleas for the 21st Judicial District the plaintiff, Charles A. Snyder. On the same day, Mr. Snyder presented to the defendant for filing in the office of the Secretary of the Commonwealth a substituted nomination paper in due form, reciting the above facts. The Secretary of the Commonwealth refused to receive the paper, on the ground that the statutory period within which substituted nomination papers may be filed had elapsed and that, therefore, it was too late to file such papers.

The purpose of the present proceeding is, therefore, to have the court reverse the action of the Secretary of the Commonwealth and compel him to receive and file substituted nomination papers naming Mr. Snyder as the Democratic candidate for Judge of the Court of Common Pleas of the 21st Judicial District.

This case came on to be heard before the full court sitting in banc, and after mature deliberation and a full consideration of the facts appearing of record in this case and the law applying thereto, an order was filed refusing to grant a peremptory mandamus and dismissing the proceedings, at which time we announced that an opinion would be filed giving our reasons for the conclusions reached and the order made, which we now proceed to do.

Counsel for the plaintiff ask us to so interpret the Acts of June 10, 1893, P. L. 419, May 20, 1921, P. L. 958, and April 18, 1923, P. L. 67, as to validate the nomination papers filed by Mr. Snyder and to declare under the law that the said substituted nomination papers could be filed by him at any time within twenty-five days prior to the municipal election to be held Nov. 5, 1929. This we think we cannot do.

It is admitted that if the court shall follow the directions prescribed by the Act of 1921, the substituted nomination papers of Mr. Snyder have not been filed in time. It is contended that the question for this court to determine is whether or not the Act of 1921 is applicable to the case at hand.

The Act of 1893 covered fully the filing of substituted nomination papers, both in the case of the withdrawal of a candidate who had been regularly nominated and in the case of the death of a candidate. In either of these events, the act specified how the substituted nomination should be made and provided that the substituted nomination papers might be filed at any time prior to the election.

The Act of 1921 expressly excludes from its effect substituted nominations in cases in which a vacancy has been caused by death. It applies, however, to all cases of withdrawals. It expressly repeals all acts and parts of acts inconsistent therewith. The effect of the said act was, therefore, to repeal that part of the Act of 1893 which provided that substituted nomination papers might be filed at any time before election day in cases in which candidates formally withdraw after their nomination.

If the plaintiff, therefore, is entitled to any relief in this proceeding, it is because of a change in the law effected by the Act of 1923, which amends section 7 of the Act of 1893, and provides:

“Any person whose name has been presented as a candidate for the oifice of Presidential Elector, Member of the House of Representatives of the United States, or for any State office, including those of Judges, Senators, and Representatives, may cause his name to be withdrawn from nomination by request in writing, signed by him and acknowledged before an officer qualified to take acknowledgments of deeds, and filed in the office of the Secretary of the Commonwealth at least fifty days previous to the day of the general election, and at least twenty-five days previous to the day of the municipal election, and all candidates for other offices, with the county commissioners of the respective counties at least twenty-five days previous to the day of the election; and no name so withdrawn shall be printed upon the ballots.

“Where any office not in court of record shall for any cause become vacant after the time for making nominations for such office shall have elapsed, or when a writ for a special election to supply a vacancy shall direct such election to be held at a date which would prevent the making of nominations in time to comply with section five of this act, nominations for the office to be filled may still be made in accordance with sections two and three of this act, but in other respects the provisions of section twelve of this act shall apply to such nominations.”

This act does not contain a repealing clause.

It will be observed the Act of 1923 does not deal with the filling of vacancies by withdrawal. It does not, therefore, deal with the same subject-matter as that with which the Act of 1921 deals, and cannot be regarded as repealing by implication the Act of 1921.

Even if the Act of 1923 could be regarded as repealing by implication the Act of 1921, the Act of 1893, in so far as it deals with the filing of substituted nomination papers to fill vacancies caused by withdrawal, has been repealed; and the proposition is too well settled to require the citation of authority that the repeal of a repealing act does not revive the act first repealed.

If there is such an incongruity between the Act of 1923 and prior legislation relating to elections as to require the courts to intervene under principles stated in plaintiff’s brief, we ought to decline to recognize the Act of 1923, which is responsible for the incongruity. We cannot ignore the Act of 1921, nor can we restore to effectiveness the Act of 1893, in so far as it was repealed by the Act of 1921.

We feel this is a legislative and not a judicial question. We must assume the Legislature had knowledge of the Act of 1921 when the Act of 1923 was passed, and if it was the legislative intent to repeal said act or modify it, they could easily have said so. The Legislature having failed to specifically repeal or modify the Act of 1921, the courts are powerless to do what the Legislature has declined to do. We are not justified in refusing to recognize any act of assembly, the meaning of which is perfectly clear, simply because the Legislature by passing the act created a situation which we believe ought not to exist. The correction of such a situation is a matter for the Legislature and not for the courts.

The Legislature having provided by the Act of May 20, 1921, P. L. 958, “that certificates of nomination and nomination papers to fill vacancies caused by the withdrawal of candidates nominated at primary elections or by nomination papers shall be filed as follows: Those to be filed with the Secretary of the Commonwealth shall be filed at least thirty-five days before the day of election . . . ; Provided, that this act shall not apply to vacancies caused by the death of candidates nor to special elections,” the court is powerless by a judicial act to modify this law so clearly stated. For these reasons, we refused to make the writ of alternative mandamus peremptory, and we directed that the proceeding be dismissed, at the cost of the plaintiff.

Prom Homer L. Kreider, Harrisburg', Pa.


author: MacDade, J.,

text:
    Veratti v. Salvatore et al.

      J. De Haven Ledward, for plaintiff; Morris W. Green, for defendant.
    Nov. 12, 1929.
   MacDade, J.,

— On March 12, 1929, the plaintiff, Tony Veratti, instituted suit before Thomas C. Berry, alderman, in the City of Chester. At the time of hearing, the constable, being sworn, stated that he served the defendants, and manner of the service was set down by the alderman in his docket as follows:

“Samuel L. Wheaton, Constable, being duly sworn, saith he served the within writ of summons March 8, 1929, upon Nich Salvatore and Frank Tenaglio, the within named Defendants, by handing true and attested copies thereof to Nick Salvatore personally at their place of business, No. 109 Wayne Ave., Springfield, Delaware County, Pennsylvania.”

The record further shows that neither party appeared and that judgment was entered against both defendants, even though defendant, Frank Tenaglio, had never been served or had notice of the suit.

Subsequently, the plaintiff issued an attachment, attaching funds in the hands of B. J. Diggins which were due to Frank Tenaglio. This attachment did not issue, however, until Aug. 15, 1929, at which time the defendant, Frank Tenaglio, was apprised for the first time that there was a judgment in favor of the plaintiff against him.

He immediately filed his petition for certiorari; the same was allowed and a transcript of the proceedings before the said alderman was subsequently lodged with this court, whereupon the defendant, Frank Tenaglio, filed his exceptions to the record and judgment, alleging that the alderman had no jurisdiction to enter judgment against him, and assigned as a reason therefor the following:

“1. The record shows that the justice of the peace had no jurisdiction by reason of the fact that service of the summons in this case is defective, in that it attempts to state that the defendant, Frank Tenaglio, was served with a true and attested copy of the summons by handing a true and attested copy of the original summons to Nick Salvatore, a man at his place of business, without stating that the said Nick Salvatore was his agent, partner or the person for the time being in charge thereof, and without stating that any attempt was made to serve the defendant, Frank Tenaglio, at his residence, or that any inquiry was made at said place of business as to defendant’s residence, in accordance with the acts of assembly in such cases made and provided.”

Question involved.

1. Did the justice of the peace have jurisdiction over the defendant, Frank Tenaglio, to enter judgment against him?

Discussion.

The Act of July 9, 1901, par. 16, P. L. 619, provides: “Writs issued by any magistrate, justice of the peace or alderman shall be served in the county wherein they are issued, by the constable or other officer therein to whom given for service, in the same manner and with like effect as similar writs are served by the sheriff when directed to him by the proper court; and in cases within the jurisdiction of such magistrate, justice of the peace or alderman, a constable or other officer of any county of the Commonwealth, authorized to serve writs therein, may be deputized to make the service, in whole or in part, in cases where the sheriff of another county might be deputized as herein-before set forth.”

Therefore, any other service other than that specified by the act is invalid. Where service cannot be had upon a defendant personally, the act provides the following methods for services:

“By handing a true and attested copy thereof to an adult member of his family, at his dwelling-house; or by handing a true and attested copy thereof, at his place of residence, to an adult member of the family with which he resides; or by handing a true and attested copy thereof, at his place of residence, to the manager or clerk of the hotel, inn, apartment-house, boarding-place or other place of lodging at which he resides; or by handing a true and attested copy thereof, at his place of business, to his agent, partner or the person for the time being in charge thereof, if, upon inquiry thereat, his residence in the county is not ascertained, or if for any cause an attempt to serve at his residence has failed.”

Nowhere in the return does it appear that the constable complied with any of the methods set forth by the act.

He did not leave it at the defendant’s, Frank Tenaglio’s, residence, nor did he comply with section “E” of the act. The defendants are not sued as partners, so that no judgment can lie against him as to assets of a partnership. From the return, we can readily see that the constable attempted to serve him in compliance with section “E” of the act, but the actual service is invalid. It does not state that he handed a true and attested copy to Frank Tenaglio’s partner or to any one in charge of Frank Tenaglio’s place of business, or that he inquired at his place of business as to the defendant’s, Frank Tenaglio’s, residence in the county. Nor does it state that any attempt to serve him at his residence had failed.

It has been held in numerous cases that where the sheriff served an individual by means of the substituted service as provided by clause “E” of the Act of July 9, 1901, § 1, P. L. 614, the writ must show that the requirements of the act were strictly complied with, and, unless the writ does show a strict compliance, the service is invalid and should be stricken off: O’Brien v. Bartlett, Hayward & Co., 12 Dist. R. 746; American Hotel Supply Co. v. Bryant, 19 Dist. R. 702; Lay v. Levering, 20 Dist. R. 1093.

This rule has been reiterated and affirmed by our Superior Court in the case of Shamokin Lumber and Con. Co. v. Line Mt. Coal Co., 85 Pa. Superior Ct. 222.

A certiorari issued after the expiration of twenty days, as in the instant case, is good if the judgment of the justice be void on its face, as in Montgomery v. Souder, 18 Lanc. Law Rev. 185; Worst v. Souder, 8 Lanc. Law Rev. 187, being cases in which the magistrate had no jurisdiction.

Therefore, in view of the above conclusion, we make the following

Order.

And now, Nov. 12, 1929, the above matter coming on to be heard by the court in bane, after due consideration thereof, the court doth order and decree that the exception to the judgment entered by Alderman Thomas C. Berry in the above cause in favor of Tony Veratti and against Frank Tenaglio be and is hereby sustained and the said judgment be and is hereby declared null and void. Prom William R. Toal, Media, Pa.


author: Fleming, P. J.,

text:
    Commonwealth v. Letterman.

      A. C. Dale, for rule; John G. Love, District Attorney, for Commonwealth.
    Aug. 8, 1929.
   Fleming, P. J.,

— The defendant seeks a new trial, having been convicted of the crime of fornication and bastardy. The defense offered at the trial was an alibi, the defendant contending that on Jan. 7 and Jan. 8, 1928, when the prosecutrix alleged that he was with her in a hunting camp in the Seven Mountains, this county, he was actually at his home in Milesburg. The defense was somewhat unusual, in that it was sought to be proven, without any show of hesitation, that it was the defendant’s brother, and not he, who was present at the time the prosecutrix became pregnant and who was responsible for her condition. The brother was present in court, testified in behalf of the plaintiff, making admissions which, had they been believed by the jury, would have definitely convicted him of the crime, and sitting at the counsel table throughout a major portion of the trial. The family resemblance appearing between the two brothers was used in the cross-examination of the prosecutrix in an endeavor to weaken her testimony, but she was unshaken in that it was the defendant, and not his brother, who had had sexual intercourse with her and who is the father of her child.

It was testified at the trial that other parties present at the hunting camp on the date when the alleged act of intercourse was had, by means of which the prosecutrix became pregnant with child, were Dorothy Tressler, now under commitment by our Juvenile Court of Quarter Sessions to Sleighton Farm, and one “Red” Sheckler, now serving a sentence in the county prison for enticement of a female minor child. Sheckler quite brazenly related in open court the things which took place in the hunting camp and testified that it was defendant’s brother and not the defendant who was in the company of the prosecutrix on the night in question. The Tressler girl did not appear at the trial. The defendant had, however, previous to the trial, obtained an order of court permitting the Tressler girl to be brought from Sleighton Farm, provided he, the defendant, would advance the sum necessary to keep the county free from expense incident to such trip. • The funds not being advanced by the defendant and the Commonwealth then making no request that she be produced at the trial, the Tressler girl did not appear.

Following the conviction of the defendant and when the present motion was first called for argument, counsel for defendant argued that it was a case of mistaken identity and that the Tressler girl would testify unequivocally that it was defendant’s brother and not the defendant who was in the company of the prosecutrix at the hunting camp on the date specified. We, at that time, said that we would cause the Tressler girl to be brought here and that, if she testified in the manner indicated, we would not only allow a new trial but we would recommend the entry of a nol. pros, in this action against this defendant.

When the Tressler girl was produced before us, however, she was confronted with both the defendant and his brother and asked by us to designate which of the two had been in company with the prosecutrix, Sheckler and herself, on Jan. 7 and Jan. 8, 1928, at the hunting camp. Quite frankly, and without hesitation, she designated the defendant in answer thereto, and denied that defendant’s brother had been there. Then, for the first time, the allegation of after-discovered evidence was made and, by the grace of the Commonwealth, which waived all requireriients as to time, additional testimony was taken before a notary, and which, by agreement, has been made a part of the record, and is now before us for consideration.

The additional witnesses offered are the two sisters of the defendant, the father of the defendant and Dr. J. C. Rogers, the physician in attendance upon the prosecutrix at the birth of her child. The testimony of the two sisters and the father is to the effect that defendant was at his home on the dates specified and could not, therefore, be at the hunting camp where the act of intercourse is alleged to have taken place. The testimony of Dr. Rogers is concerned with the admission of the prosecutrix to the hospital and the consequent conversation as to who should pay the bill and to the conduct of the defendant after trial and conviction, when the doctor’s bill was presented to him. The doctor also advances his opinion as to the innocence of the defendant, formed from his observations and defendant’s denial when asked to pay his bill. The doctor’s testimony is practically all hearsay evidence and would be inadmissible were a new trial to be granted.

In Com. v. Williams, 2 Ashm. (Pa.) 69-76, following Moore v. Philadelphia Bank, 5 S. & R. 41, the court says, in speaking of motions for a new trial: “Motions of this kind . . . are to be received with caution, because there are few cases tried in which something new may not be hunted, and because it tends very much to perjury to admit new evidences after the party who has lost the verdict has had an opportunity of discovering his adversary’s strength and his own weakness.”

The defendant, at the trial, elected to offer an alibi as his defense. Where a defendant sets up an alibi as a defense, the burden of proving his alibi to the satisfaction of the jury is upon him. This alibi need not be proven beyond a reasonable doubt. It is sufficient if the testimony in support of such a defense raises a reasonable doubt in the mind of the jury: Clark v. Com., 123 Pa. 555. This defendant produced witnesses at the trial in an attempt to show that he was not present at the hunting camp on the dates named. The purpose of this sort of a defense is not to convince the jury of his distance from the scene of the crime, or of his non-participation in it, but to prevent the jury’s being convinced by the Commonwealth that he was present at the scene of the crime and participated in it. It is but an element in any defendant’s purpose of raising the reasonable doubt sufficient to acquit. In this purpose the defendant did not succeed, as the jury found him guilty.

Was the testimony of the sisters and the father actually after-discovered and such as could not have been previously discovered by diligent investigation? Would the proposed testimony be sufficient to change the verdict, or, if heard by the jury, have,been of such weight as to cause the court to set aside a verdict of guilty if the jury so found? Unless the court is satisfied that affirmative answers must be given to all these questions, the,new trial must be refused: Com. v. Albert, 16 Dist. R. 759; Goldstein v. East Fallowfield Township, 43 Pa. Superior Ct. 158; Com. v. Austin, 8 Berks Co. L. J. 78.

Of the fact that such proposed evidence is after-discovered and could not have been produced at the trial, the court is not convinced. According to the testimony of both of defendant’s sisters, they were in the court-room at the time of the trial. The father was at his home in Milesburg, a short distance from the county-seat, and defendant was residing with him immediately before and at the time of the trial. With an alibi contemplated, there is no reason why this testimony could not have been produced. Further, the testimony sought to be offered comes from defendant’s own family and would be received with caution and carry less weight than that of the supposedly disinterested witnesses who did actually testify at the trial. There is no reason to suppose that it would change the verdict. It is definitely certain that it is not of sufficient weight to cause the court, were it to be heard by a jury and a verdict of guilty found, to set aside such verdict. These conclusions as to the weight of the proposed evidence are fully borne out by the fact that the defendant, in attempting an alibi, would have had the jury infer that it was his brother, and not he, who is guilty of the crime charged. The witnesses now offered seek to have it appear that, while defendant was at home on the dates with which we are concerned, his brother was absent, thus again pointing their finger of guilt to the brother, who, although resident with the defendant and his father, and who, although in close contact with his sisters, has not stepped forward to relieve this unfortunate prosecutrix or her child in any way.

The testimony sought to be adduced as after-discovered evidence is but cumulative, and corroborative merely of other testimony actually offered: Com. v. Flanagan, 7 W. & S. 415; Mellinger v. Pennsylvania R. R. Co., 229 Pa. 122; Com. v. Glotstein, 26 Lanc. Law Rev. 165; Com. v. Yocum, 12 Dauphin Co. Reps. 292.

We have already stated that the testimony of Dr. Rogers appears to be purely hearsay and would be inadmissible were a new trial to be had. The conversation which the doctor had with the brother of the prosecutrix has no materiality, and the doctor’s observations of the defendant and the defendant’s statements to the doctor after conviction likewise have no evidential value.

We are fully convinced, beyond a shadow of a doubt, that defendant has had a fair trial and has been accorded every opportunity since his trial to convince the court that it was his brother and not he who accompanied the prosecutrix to the hunting camp and there had intercourse with her, resulting in the birth of a child. He relied strongly upon the anticipated testimony of Dorothy Tressler, whose testimony was plain and convincing against him. The so-called after-discovered evidence has not measured up in any way to the standards required for the granting of a new trial. His guilt has been more than well established, and he should pay his debt to society.

And now, Aug. 8, 1929, motion for new trial is discharged and defendant is directed to appear in court on Monday, Aug. 19, 1929, for sentence.

From S. D. Gettig, Bellefonte, Pa.