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

text:
    County Treasurers.
    Nov. 3, 1927.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised whether there is any inconsistency between the Act of April 27, 1927, P. L. 473, and the Act of May 6, 1927, P. L. 833, with regard to the amount of the fees which county treasurers are permitted to collect for their services in issuing dog licenses.

The Act of May 6, 1927, amends certain sections of the Act of May 11, 1921, P. L. 522. Section 3 of the Act of 1921, as amended by the Act of May 13, 1925, P. L. 641, provides that all applicants for dog licenses shall pay, in addition to the statutory license fee payable to the Commonwealth, the sum of ten cents, which shall be the county treasurer’s fee for issuing, recording and reporting the license.

Section 4 of the Act of May 6, 1927, amending section 5 of the Act of 1921, provides that, whenever the holder of a dog license shall have lost the tag issued in connection with the license, a substitute tag may be furnished upon the payment of a fee to the Commonwealth and an additional ten cents for the use of the county treasurer.

Section 11 of the Act of 1921, as last amended by the Act of May 6, 1927, provides that applicants for kennel licenses shall also pay to the county treasurer an extra ten cents as his fee for issuing, recording and reporting the license.

The Act of April 27, 1927, amends section 42 of the Act of April 15, 1834, P. L. 537, as amended by the Act of May 13, 1925, P. L. 656. As amended by the Act of 1927, section 42 of the Act of 1834 provides:

1. That county treasurers shall be the agents of the Commonwealth for collecting and transmitting money for the Commonwealth.

2. That, “except fees paid for fish, hunters’ and dog licenses, which shall be the same as now prescribed by law, namely, 10 cents for each license," the county treasurers shall he entitled to deduct from the gross amount of moneys received by them for the Commonwealth on each separate account which they are required to keep and settle, a commission, the rate of which is graduated according to the amount collected and transmitted.

3. That, out of the commissions thus authorized and the fees for issuing fish, hunters’ and dog licenses, the county treasurers shall be entitled to retain for their own use compensation in amounts equal to-20 per centum of the salaries paid them for acting as county treasurers, and, in addition thereto, amounts necessary to reimburse them for certain necessary expenses in connection with the work of collecting and transmitting State money.

There is no inconsistency whatever between the Act of 1834, as amended by the Act of April 27, 1927, and the Act of 1921, as amended by the Act of May 6, 1927, insofar as concerns the amount of the fee chargeable by county treasurers for issuing dog licenses. The amount of this fee is fixed exclusively by the Act of 1921, as amended, and is not affected by the Act of 1834, as amended. The only effect of the Act of 1834, as amended, is to require county treasurers to pay into their respective county treasuries all fees received by them for issuing dog licenses in excess of the compensation and reimbursement for expenses which the act allows them to retain out of any fees and commissions which they receive for collecting State moneys.

Prom C. P. Addams, Harrisburg, Pa.


source: Caselaw Access Project

author: Henderson, J.

license: Public Domain

text:
    Commonwealth v. Havanas.

      E. D. Brown, District Attorney, and Antonio Cavalcante, for Commonwealth.

      H. S. Dumbauld and Frank M. Lardin, for defendant.
   Henderson, J.

The defendant was tried upon an indictment containing two counts, the first charging fornication and bastardy and the second charging seduction. The jury were instructed that, under the testimony, they could not convict on the count of seduction, and as to this there is no contention. The defendant was convicted on the count charging fornication and bastardy, which charged that the defendant did have unlawful carnal connection with one Anna Zakutansky, and a male bastard child on the body of her, the said Anna Zakutansky, did then and there beget. The testimony disclosed that the child born was a female bastard child and not a male child, as alleged. The matter is now before the court on a motion in arrest of judgment, alleging as a reason in support thereof that the indictment charged that the defendant did beget a male bastard child on the body of Anna Zakutansky, when the proof is a female bastard child, and, therefore, there is a fatal variance between the allegations and the proof. At the trial of the case, the defendant’s counsel moved the court to instruct the jury that there could be no conviction of the bastardy for this reason, which motion was overruled, and the jury instructed that if they found the defendant was the father of the bastard child born to the said Anna Zakutansky, they should convict him of fornication and bastardy. No motion was made by the Commonwealth to amend the indictment.

The defendant relies in support of the motion largely upon the case of Simmons v. Com., 1 Rawle, 142, decided in 1829, wherein it is stated by Tod, J.: “But the omission of the sex of the child appears substantial error. In practice, throughout the Commonwealth, I take the precedents to be uniform. In Com v. Pintard, 1 Browne, 59, the omission was held fatal. Our method of indictment in these cases comes in lieu of the English proceedings of justices of the peace, by an order of filiation, in which the precedents invariably require the sex to be stated. In Rex v. England, 1 Stra. 503, this omission appearing, the order of the justices was reversed for that reason only. It is argued that the sex of the child is a matter wholly unconnected with the substance of the offense. Perhaps this is true. . . . Over and above the common reasons of the law requiring minuteness of description in an indictment, there seem other reasons why, in this case, the record should identify the child as accurately as may be, as it affords almost the only evidence of the relation between the child and the father; a relation which, imperfect as it is, gives some rights and imposes some restraints.”

There is nothing in the Act of March 31, 1860, § 37, P. L. 382, respecting fornication and bastardy, which requires that the sex of the child be stated in the indictment. A child thus bom is, as to the father, nullius filius, and the only duty imposed upon the putative father is the one imposed by statute, and inflicted as a punishment with a view to indemnification, and beyond this there is no reciprocal right which springs from the duty thus imposed upon him by the law: The Directors of the Poor of Bucks County v. Dungan, 64 Pa. 402. There is no statute which authorizes such a child to inherit from its putative father, or gives it any right upon his estate,- or confers any reciprocal rights on either the putative father or bastard child, except as provided in the Act of 1860, supra. It would thus appear that the reasons which existed for requiring the sex of the child to be stated in the indictment when Simons v. Com., supra, was decided have been obviated.

The defendant did not testify at the trial, and made no denial of the charge of either fornication or bastardy except by his plea of not guilty. We are unable to see how any harm will be done to him or his rights prejudiced in any manner by allowing the verdict of the jury to stand. What difference can it make to him whether it is a male or a female child he is required to support? The substance of the offense was the bastardy and not the sex of the child. Whether it is a male or a female child certainly, in this day and age, could not aid the court in rendering the proper judgment on the verdict. The defendant should not be allowed to escape on some artificial nicety, but we should look more at the substantial justice of the case: Brown v. Com., 78 Pa. 122.

Our conclusion is that on a prosecution for fornication and bastardy it is not necessary to state the sex of the child in the indictment, and, therefore, there is no fatal variance between the allegations of the indictment and the proof sufficient to justify an arrest of the judgment in this case. This conclusion is in line with the opinion by Morrison, P. J., in the case of Com. v. Christy, 11 Dist. R. 221.

Order. — Now, Jan. 24, 1927, the motion in arrest of judgment is overruled and the defendant will present himself before the court for sentence.

From Luke H. Frasher, TJniontown, Pa.


author: Per Curiam,

text:
    Kirchner’s Estate.

      Luden B. Carpenter, guardian ad litem, for Herman F. Scheurer, Jr., 'a minor grandson of testator, exceptant.

      George T. Steeley and Henry L. Schimpf, Jr., contra.
    May 25, 1928.
   Per Curiam,

The Auditing Judge has considered, the one question raised by the exceptant, and as the authorities cited by him sustain his legal conclusions, we see no need for extended elaboration. Testator’s entire residuary estate was given to his wife for life, and upon her death to two children, a son and a daughter, by name, “their heirs and assigns, share and share alike.” A further provision of the will is that if either died without issue, such an one’s share was to pass to the surviving child and to another daughter. All of these persons agreed that an award should be made to the widow, and an award was so made. Whether we hold that, after an absolute gift, a further limitation is invalid, or that death without issue meant such death in the lifetime of the legatees, is a matter of little moment, for in either event the result is the same.

Accordingly, all exceptions are dismissed and the adjudication is confirmed absolutely.

Van Dusen, J., did not sit.


author: Martin, P. J.,

text:
    Cox v. Murphy et al.
    J. D. Yarrow, for plaintiff; R. T. McCracken, for defendants.
    July 9, 1928.
   Martin, P. J.,

An action of trespass was instituted by plaintiff against defendants.

A statement of claim was filed, in which it was alleged that plaintiff was an employee of defendants, who are stevedores, and, while engaged in unloading a cargo from a vessel moored at a pier on the Delaware River, plaintiff was injured through the negligence of the superintendent employed by defendants.

A petition was filed on behalf of defendants, averring that “the alleged injuries sustained by the plaintiff, under the circumstances referred to in the statement of claim, were incurred while the plaintiff was actually engaged in the furtherance of the business or affairs of his said employers, the above-named defendants;” and that, “prior to May 6, 1926, the date upon which the alleged accident occurred, the plaintiff and defendants, by virtue of the provisions of section 302 of the Act of Assembly of June 2, 1915, P. L. 736, and the supplements and amendments thereto, had agreed to accept the provisions of article ill of the said act, under the terms of which compensation for personal injury to the plaintiff by an accident occurring in the course of his employment is to be made according to the schedule contained in said act.”

It was further averred in the petition, that, on or about May 11, 1926, the plaintiff filed a libel in personam and a citation in admiralty against the defendants and the owners of the vessel in the United States District Court, and that action was based upon the same cajise as set forth in the statement of claim filed in this case, and is still pending and undetermined. The petitioners claim’that there is no jurisdiction in the Court of Common Pleas of Philadelphia County to hear and determine this cause of action.

The present rule was granted to show cause why the question of jurisdiction of the Court of Common Pleas over the cause of action set forth in the plaintiff’s statement of claim should not be preliminarily determined.

No answer was filed to the petition.

It is averred that the plaintiff and defendants, prior to the happening of the accident, agreed to accept the provisions of article III of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, which provides in section 303 that “such agreement shall constitute an acceptance of all the provisions o± article in of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount* of compensation for any injury or death occurring in the- course of the employment, or to any method of determination thereof, other than as provided in article ill of this act. Such agreement shall bind the employer and his personal representatives, and the employee, his or her wife or husband, widow or widower, next of kin, and other dependents.”

It was held in Span v. Baizley Iron Works et al., 92 Pa. Superior Ct. 418, that the Workmen’s Compensation Law applied to injuries received by a workman engaged in repairing a vessel lying at a river pier in the harbor, and that the parties may elect to he governed by the provisions of the Workmen’s Compensation Act and not by a maritime law.

The parties to this litigation have elected to be governed by the provisions of the Workmen’s Compensation Act. They are bound by its terms; and plaintiff is not entitled to maintain the present suit, even if he is not barred by the previous proceeding upon the same claim in admiralty.

And now, to wit, July 9, 1928, the rule to show cause why the question of jurisdiction of the Court of Common Pleas over the action set forth in the plaintiff’s statement of claim should not be preliminarily determined is made absolute; and it is decreed that plaintiff is not entitled to institute or prosecute the present suit.


author: Smith, J.,

text:
    Mutual Pannonia Building and Loan Ass’n v. Lichtman.

      H. Moskowitz, for plaintiff; George II. Detweiler, for defendant.
    May 28, 1928.
   Smith, J.,

On March 15, 1926, the defendant, Harry Lichtman, being the owner of a parcel of land, gave his bond accompanying a mortgage to the plaintiff.

On June 22, 1926, Harry Lichtman et ux. conveyed this land to Henry or Harry Lichtman, and deed was properly recorded.

On June 22, 1926, Henry or Harry Lichtman conveyed the same property to Rose Lichtman. Deed was recorded.

On Dec. 30, 1926, the bond of Harry- Lichtman, dated March 15, 1926, was filed of record.

On Jan. 19, 1927, Rose Lichtman and husband conveyed this property to Benjamin Kagan. This deed was properly recorded.

On April 28, 1927, Benjamin Kagan et ux. conveyed the land to Helen V. Wilson, the petitioner and present holder, in fee.

On Dec. 30, 1927, the plaintiff entered judgment on said bond by virtue of the warrant of attorney.

On April 12, 1928, damages were assessed. On April 12, 1928, fi. fa. real estate issued.

On May 7, 1928, sheriff’s sale. After sheriff’s sale, and before confirmation of the deed, the defendant filed exceptions, asking that the sale be set aside and that the sale be declared void because there had been no condemnation or inquisition.

In the warrant of attorney attached to the bond as given by the defendant, Harry Lichtman, there was contained a waiver of condemnation and inquisition.

The principal contention of the petitioner is that, since the defendant was divested of title to the land at the time his bond was filed of record, the waiver of condemnation and inquisition therein contained was not binding upon her.

The contention of the petitioner is not sound. The grantee of real estate is bound by a waiver of condemnation and inquisition contained in a judgment. The obligation of the defendant, Harry Lichtman, was an entirety, and the warrant of attorney to confess judgment was upon the whole instrument.

In Hageman v. Salisberry, 74 Pa. 280, it is held:

“The bond contains an express waiver of inquisition and of condemnation of all real estate which may be taken in execution issued on any judgment obtained thereon. This waiver is a part of the condition. It precedes the warrant which authorizes an attorney to confess judgment. All the terms and conditions are part and parcel of one and the same instrument. The obligation is an entirety. The warrant of attorney is an authority to confess judgment upon the whole instrument. That undoubtedly means according to all of its terms, conditions and stipulations. They clearly express, and with equal force declare, the sum to be paid, the waiver of inquisition and the condemnation of the obligor’s real estate. . . .

“The waiver was part of the contract. As such, it was as obligatory upon the maker as his agreement to pay the sum therein stipulated. He was bound to the fulfilment of all its terms. . . .

“When a judgment is recovered according to the terms and conditions of a written obligation for the payment of money, and those terms and conditions expressly either limit the lien of any judgment that may be recovered upon it or which waive the benefit of all laws exempting property from levy and sale on any execution, or which waive the right of inquisition upon the delinquent’s real estate, and in the entry of the judgment this is set forth upon the docket, it must be held to be a part of the record of the judgment. Hence, it was ruled in Stanton v. White, 32 Pa. 358, that effect should be given to a stipulation in bond and warrant of attorney restricting the lien of the judgment to be entered thereon to certain designated lands. So, in a pending suit, if judgment is confessed and entered in pursuance thereof, the terms and conditions of the confession enter into and form a part of the record of the judgment, modifying and qualifying its effect.”

The petitioner, Helen V. Wilson,, purchased this real estate with knowledge and subject to the lien of the judgment containing the waiving of the condemnation and inquisition. She is, therefore, bound by this judgment.

The exceptions to the acknowledgment of the sheriff’s deed and to the delivery thereof are dismissed, and the rule granted upon the plaintiff to show cause why the sheriff’s sale held on Monday, May 7, 1928, should not be set aside and deed canceled is hereby discharged.


author: Niles, P. J.,

text:
    Commonwealth v. Heller.

      Metzger & Wickersham, for rule; Samuel Handler, contra.
   Niles, P. J.,

19th judicial district, specially presiding. — Sarah Heller, the defendant, was tried upon an indictment for misdemeanor under the Act of April 18, 1919, P. L. 70, for drawing a cheek without funds with intent to defraud.

The testimony of the prosecutor, Samuel L. Bortner, Esq., with no contradiction, was: That on Jan. 20, 1926, at his office in Philadelphia, the defendant signed and delivered to him a check on the Central Trust Company of Harrisbqrg for $117.75 for money then due him; which check he, the same day, deposited in his Philadelphia bank, and in due course it was presented at the Harrisburg Trust Company and refused for the reason that the defendant had no funds nor credit there to meet it.

The verdict of the jury found the defendant guilty, and the matter now comes up on motion in arrest of judgment and for a new trial.

The formal reasons that the verdict is against the weight of the evidence, against the law, and against the charge of the court, and that there was absence of evidence of the intent to cheat and defraud, and that the weight of the testimony clearly indicates a lack of knowledge on the part of defendant that her account was overdrawn, are not substantial. Were there nothing more before us, the motion would be refused.

To sustain a conviction of crime, the locality of the commission must be proved to have been within the jurisdiction of the court, i. e., within the County of Dauphin: Com. v. Robinson, 1 D. & C. 188.

The additional reason, that the court was without jurisdiction, is substantial.

The question was not raised at the trial. The check in controversy was made, drawn, uttered and delivered by the defendant to the prosecutor in Philadelphia on Jan. 20, 1926.

If;- at that time and place, the defendant’s intent was to defraud, knowing at that time that she had not sufficient funds in nor credit with the drawee trust company, the offense was then and there complete: Com. v. Rush and Harnett, 78 Pa. Superior Ct. 404.

This is a different situation from that ruled on in Com. v. Rogowski, 6 D. & C. 628. In that case the check alleged to be fraudulent was mailed from Philadelphia to the prosecutor in York, and the Quarter Sessions Court of York County, in an opinion by Ross, J., ruled that such delivery by mail at York was sufficient to give that court jurisdiction within the meaning of the act.

Substantially the same ruling was made by Baldrige, P. J., in the Quarter Sessions Court of Blair County in Com. v. Ballante, 2 D. & C. 538.

The facts in the case at bar, proved without contradiction at the trial, showed that the misdemeanor, if committed, was not committed in Dauphin County, and, therefore, the defendant could not properly be tried here.

And now,'to wit, May 23, 1927, the defendant’s motion in arrest of judgment and for a new trial is granted and a new trial is ordered.

From Homer L. Kreider, Harrisburg, Pa.


author: Hioks, J.,

text:
    Chroust v. Chroust.
    March 5, 1928.
   Hioks, J.,

This is a libel in divorce on the ground of desertion. The cause of divorce in the libel is stated as follows: “That on the 30th day of November, 19-25, said respondent wilfully and maliciously deserted and abandoned libellant and never since lived or cohabited with her or his wife.” A rule was issued upon the application of the libellant, praying for permission to amend the libel so as to read: “That on the 30th day of November, 1925, said respondent wilfully and maliciously deserted and abandoned libellant without reasonable or just cause, and has never since lived or cohabited with me as his wife.” No answer having been filed to the rule, it was made absolute and the amendment allowed, but no amended libel was ever filed.

The master who heard the witnesses has found from the evidence that the fact of desertion for the statutory period has been established, and, therefore, recommended that a decree should be entered. An examination of the evidence satisfies the court that a desertion which would justify the entry of a decree has been established, but the libel does not allege desertion, either substantially or actually, in the language of the Act of March 13, 1815, 6 Sm. Laws, 286.

The jurisdiction which is given to .Courts of Common Pleas in divorce cases where the ground is desertion is conferred by the Act of March 13, 1815, 1 Purd. 1230, pi. 1, which states the ground as “wilful and malicious desertion and absence from the habitation of the other without reasonable cause for and during the term and space of two years;” and the Act of April 26, 1850, 1 Purd. 1234, pi. 5, which gives jurisdiction “for the cause of wilful and malicious and continued desertion by either of the parties from the habitation of the other without reasonable cause,” etc.

The court has no jurisdiction to grant a divorce for desertion unless the desertion has been “wilful, malicious and continued ... by either of the parties from the habitation of the other without reasonable cause.” And such desertion must be persisted in “for or during the term and space of two years.” The libel before us, assuming it to have been amended as allowed by the rule granted for that purpose, does not allege the “wilful and malicious desertion and absence from the habitation.” The words “and has never since lived or cohabited with me as his wife,” set forth in the libel, are not the equivalent of “absence from the habitation.” The libel must set forth the sufficient cause for divorce. Omission to aver “absence from the habitation” is fatal, although it is shown by the proof: Stewart v. Stewart, 34 Pa. C. C. Reps. 543; Hetrick v. Hetrick, 23 Dist. R. 430; Mills v. Mills, 42 Pa. C. C. Reps. 257; Eberle v. Eberle, 13 Schuyl. Legal Rec. 161. The libel, in stating the cause for divorce, should conform to the statutory language in stating the ground for divorce: Hain v. Hain, 16 Schuyl. Legal Rec. 5; Jonas v. Jonas, 69 Pitts. L. J. 220.

No cause of action having been set out in the libel, the decree must be refused, unless the libellant may be permitted to amend her libel by setting out in proper form a cause for divorce. The amendment, if allowed, would be substantial and not merely formal in its character. In Maynard v. Maynard, 18 Dist. R. 410, it was said that the amendment of a libel which originally did not set forth a cause of action was in effect a new libel.

This proceeding has been entirely ex parte, has so proceeded that testimony has been taken, and it, together with the recommendations of the master, having been filed, it is too late now to permit an amendment of the libel in a substantial matter: Weiss v. Weiss, 16 Schuyl. Legal Rec. 162; Pierie v. Pierie, 7 Phila. 405. We are, therefore, of the opinion that the libel must be dismissed and that we cannot allow it to be amended.

The libel in divorce is dismissed, at the cost of the libellant, without prejudice to proceedings de novo.

And now, Feb. 20, 1928, an exception is allowed libellant and bill is sealed.

Prom M. M. Burke, Shenandoah, Pa.


author: Landis, P. J.

text:
    Buckwalter’s Administrator v. Shirk.

      Guy K. Bard and M. G. Schaeffer, for defendant.

      Joseph B. Wissler, for plaintiff.
   Landis, P. J.

-On Dec. 16, 1925, D. W. Buckwalter made a promissory note

to the order of The Pennsylvania Soap Company, as follows:

“$15,000.00 “Lancaster, Pa., December 16, 1925.
“Thirty......days......after date I promise to pay to the order of Pennsylvania Soap Company — No. 97091 — Dúe Jan. 15 at
The Lancaster Trust Company (
Fifteen Thousand and 00/000............................Dollars
without defalcation for value received.
“D. W. Buckwalter.
“Endorsed:
“Pennsylvania Soap Co. E. H. Martin
E. H. Martin, Pres. J. William Brown
J. William Brown, Treas. Milton E. Shirk
Calvin F. Herr.”

On or about its date, the Lancaster Trust Company discounted this note, and upon its maturity it was presented for payment, which was refused, and it was duly protested for non-payment. On Jan. 3, 1927, the plaintiff, as administrator of D. W. Buckwalter, paid the note, and it was transferred by the Lancaster Trust Company to him. He now alleges that his decedent was an accommodation maker of the note and can recover against the subsequent endorsers, of which the defendant is one.

It is pro.vided by chapter 4, section 192, of the Act of May 16, 1901, P. L. 194, that “the person ‘primarily’ liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other persons are ‘secondarily’ liable,” and by section 119, article vm, chapter 1, that “a negotiable instrument is discharged (1) by payment in due course by, or on behalf of, the principal debtor; (2) by payment in due course by the party accommodated, where the instrument is made or accepted for accommodation; ... (5) when the principal debtor becomes the holder of the instrument at or after maturity in his own right.”

In Delaware County Trust, Safe Deposit and Title Ins. Co. v. Haser, 199 Pa. 17, it was held that “the rights and liabilities of accommodation makers of negotiable instruments are fixed by the position in which their names appear on the instrument, and where a note is executed by an accommodation maker, he assumes a primary liability and makes the indebtedness his own. . . . His position on the paper determines the character of his responsibility on the note to the holder,” and that “one who signs a note as maker, although he does it merely for the accommodation of the payee or the endorser, thereby pledges himself in the situation of principal, and will not be allowed to escape the consequences of his action by subsequently alleging that he was but a surety.” See, also, Diffenbacher’s Estate, 31 Pa. Superior Ct. 35.

Upon the face of the note there was a primary liability on the part of D. W. Buckwalter. He was bound to pay the full amount to the Lancaster Trust Company, who had become the bona fide .holder of the note for value. When his administrator did so, all responsibility for it resting upon any of the intermediate parties was wiped out. The maker being first liable, and the endorsers being secondarily liable, the payment by the maker relieved the endorsers from responsibility for it. In 8 Corpus Juris, § 424, page 270, it is said: “Where the accommodation party is the acceptor of a bill of exchange, or the maker of a note, his right to be saved harmless after payment cannot be worked out by an action upon the instrument, since, in such case, payment by him extinguishes the security.” If there are legal obligations resting upon any of the parties to the note to reimburse him, the action must be upon the promise and not upon the note.

Therefore, in our opinion, the plaintiff has no right to recover from the defendant the amount of this note, and we, for this reason, enter judgment in favor of the defendant. Judgment for defendant.

From George Ross Eshleman, Lancaster, Pa.


author: Stock, J.,

text:
    Spangler’s Estate.

      Robert S. Spangler, for petition; Cochran, Williams & KaAn, contra.
    Nov. 28, 1927.
   Stock, J.,

The Commonwealth of Pennsylvania, on Aug. 17, 1927, filed its petition for an order of maintenance upon the York Trust Company, trustee, for the maintenance and support of Mary L. Erwin at the Harrisburg State Hospital.

Mary L. Erwin had been an inmate of the State hospital at Harrisburg ■from Nov. 4, 1911, to the date of her death, Jan. 1, 1927. There is a balance due and owing the Commonwealth of Pennsylvania for her maintenance of $1211.69.

The York Trust Company was, on April 4, 1892, appointed by the Orphans’ Court of York County the trustee to administer a fund created by the will of Louisa B. Spangler, deceased. The clause of the decedent’s will under which this appointment was made is as follows: “I direct the sum of $500.00 to be invested by my hereinafter named executor and the interest of said sum, less costs, taxes and expenses of said trust, shall be annually paid to my niece, Mrs. Mary Louise Albright, during her natural life, and after her death I bequeath said sum of $500.00 to her daughter, Annie Stough.”

Mary Louise Albright afterwards married and is known as Mary L. Erwin. Annie Stough afterwards married and is known as Annie Stough Rouse.

The York Trust Company filed its final account as trustee as aforesaid on June 6,1927, showing a balance on said account of $415.25.

There can be no question but that Mary L. Erwin’s interest in said trust fund terminated at her death, Jan. 1, 1927, and that the balance on the account, representing principal, vested in Annie Stough Rouse. Annie Stough Rouse is the only surviving child of Mary L. Erwin, and is liable for the maintenance of her mother at a State hospital.

Under these facts, can the Court of Common Pleas make an order upon the fiduciary for the maintenance of Mary L. Erwin at a State hospital?

The Commonwealth relies upon the Act of June 1, 1915, P. L. 661, as amended by the Act of May 10, 1921, P. L. 488, for authority for such an order. Section 4, as amended, provides as follows: “The Court of Common Pleas of the county of the residence of any inmate of any home, hospital, asylum or other institution maintained in whole or in part by the Commonwealth of Pennsylvania shall, upon the application of the Attorney-General, make an order for the payment of maintenance to the Commonwealth upon the trustee, committee, guardian or other person who has charge of the estate of any such inmate, or against the husband, wife, father, mother, child or children of any person so maintained; and any order made against the husband, wife, father, mother, child or children shall be in such amount as the court, in its discretion, deems proper, taking into consideration their ability to pay for said maintenance.”

The Commonwealth may obtain an order against the fiduciary having charge of the estate of an inmate, or against certain relatives of an inmate, including a child. But no authority is given for an order against a fiduciary having charge of a legacy distributable to a child or other relative of an inmate.

The Commonwealth, however, relies upon the joinder of Annie Stough Rouse in the petition of the Commonwealth to give' the court jurisdiction. The order, however, which is specifically prayed for is an order against the York Trust Company as trustee. That fiduciary did not join in the petition, but, on the contrary, filed an answer raising the question of jurisdiction of the court to make an order upon it. Annie Stough Rouse, by her joinder, cannot waive rights of the York Trust Company nor confer jurisdiction upon this court to adjudicate the rights of the York Trust Company where such jurisdiction did not otherwise exist.

Annie Stough Rouse, however, has submitted herself to the jurisdiction of this court, and has joined in the petition, which concludes with the general prayer, “or the court to make such other or modified order as in its judgment may be just and proper.” The court will, therefore, make an order against her in accordance with the terms of settlement set forth in the petition, and will make no order against the fiduciary.

The fiduciary, by petition, sought to transfer this proceeding to the Orphans’ Court, where jurisdiction of the fund lies. Although the Act of 1915 does not give exclusive jurisdiction to the Court of Common Pleas to make an order of maintenance for support of an inmate in a State hospital, and the Orphans’ Court has jurisdiction where the decedent is liable for the maintenance of the inmate (Harnish’s Estate, 268 Pa. 128; Geisler’s Estate, 76 Pa. Superior Ct. 560), yet in this case there is no liability for support upon the decedent, Louisa B. Spangler, but upon the legatee, Annie Stough Rouse. The Orphans’ Court has no jurisdiction of cases arising between a legatee and a stranger to the estate.

The claim of the County of York for its share of the expense incurred for the maintenance of Mary L. Erwin has no standing whatever. The want of jurisdiction to make an order against the York Trust Company in favor of the Commonwealth applies equally against the county. In addition, however, the Act of 1915 applies only in relief of the Commonwealth and not in aid of the county. An order cannot, therefore, be made in favor of the county and against Annie Stough Rouse.

In accordance with the terms set forth in the petition, the sum of $415.25, less the sum of $150, leaving a net sum of $265.25, is made the basis of this order.

And now, to wit, Nov. 28, 1927, the court makes an order upon Annie Stough Rouse, child of Mary L. Erwin, to pay the sum of $265.25 to the Commonwealth of Pennsylvania for the maintenance of the said Mary L. Erwin.


author: Furst, P. J.,

text:
    Ellenburger v. Pennsylvania Railroad Company.

      W. L. Hicks, Robert A. Owens and John G. Love, for plaintiff.

      John Blanchard, for defendant.
    Dec. 2, 1927.
   Furst, P. J.,

Six different plaintiffs have brought suits in trespass against the Pennsylvania Railroad Company to Nos. 277, 278, 279, 280, 281 and 282, September Term, 1926, to recover damages'from the Pennsylvania Railroad Company because of the alleged destruction by fire of standing timber, and in the case of J. Raymond Guyer, in No. 278, September Term, 1926, certain manufactured timber products are also included in his statement.

The defendant company operates its “Fairbrook Branch” from a station in Centre County, by that name, to Tyrone, in Blair County, which same crosses a portion of Huntingdon County.

The real estate described in these six suits is situate in Huntin-ffdcm_.County, with the exception of the Ellenberger case, No. 277, September Term, 1926, and in this case part of the real estate lies in Centre and part in Huntingdon Counties.

Each plaintiff charges the defendant company with the negligent operation and management of its property and equipment, and alleges that at about 11 o’clock A. M., on April 8, 1925, the defendant company is responsible for the setting out of ,fire at a specific point near Marengo, in Centre County, which same fire, after traveling over other property, finally resulted in damage to each plaintiff, as set forth in the several statements of claims on property in Huntingdon County.

In each case the defendant company has caused its appearance to he entered on the record de bene esse and then moves the court for a rule on the several plaintiffs to show cause why the said suits should not be quashed and the service thereof set aside and that judgments of non-suit he entered against the plaintiffs. The rules were granted and the cases argued before the late Hon. Harry Keller, and, since his death, argued before the writer of this opinion.

The defendant company has assigned the following reasons in support of its motions for non-suits:

1. Because the alleged cause of action, as averred in the plaintiff’s statement, is based upon alleged acts of negligence of the defendant, alleged to have resulted in a fire or fires extending over intervening lands in the Counties of Centre and Huntingdon, in the State of Pennsylvania, to and upon a certain tract of land claimed to be owned by the plaintiff, situate wholly in Franklin Township, in the said County of Huntingdon.

2. Because, as appears by" the plaintiff’s statement, the alleged acts of negligence of the defendant, although averred to have originated within the said County of Centre, are relevant only in so far as they extend into the said County of Huntingdon as the proximate cause in the said County of Hunting-don of the alleged injury and damage to the lands alleged to be owned by the plaintiff situate entirely within the said County of Huntingdon, and as to alleged acts of negligence thus committed in the said County of Huntingdon.

3. Because the alleged injury and damage to lands alleged to belong to the plaintiff wholly situate in. Huntingdon County is the subject of the action and the controlling feature in definingjthe causejDf .action, .and the alleged acts of negligence of the defendant áre inseparable from this subject of the cause in stating the entire cause of action, thus creating a cause of action arising relative to lands wholly situate in the said County of Huntingdon.

4. Because, for the reasons above stated, this action is.focal and not transitory, and, therefore, a suit to recover upon such cause of action is not within the jurisdiction of the Court of Common Pleas of the said County of Centre, consisting of the 49th Judicial District of Pennsylvania, and is not maintainable therein, but falls within the jurisdiction of the Court of Common Pleas of the said County of Huntingdon, part of the 20th Judicial District of Pennsylvania, and is only maintainable therein.

To which each plaintiff has answered as follows: "The above-named plaintiff, by its attorneys, appears to said rule and joins issue with the defendant in the conclusions of law as set forth in the motion for said rule and avers that the facts alleged in plaintiffs’ statement are based on two things done in several counties, and both are material or traversable, and one without the other doth not maintain the action, wherefore plaintiff may choose to bring its action in which of the counties it will, and this action having been brought in Centre County, the Court of Common Pleas of tlj,at county has full jurisdiction of the entire subject-matter of the suit.”

Counsel for the Pennsylvania Railroad Company have prepared an exhaustive brief and have analyzed the subject most thoroughly, but, like counsel for plaintiffs, are iinable_ta_cite Pennsylvania authorities to support their contention. ‘

It seems to us that the reasons for holding that actions for the recovery of damages to real estate were local and must be tried, in all cases, in the county where the real estate alleged to have been damaged was situated have lost much of their weight by the developments of the times and particularly where the real estate in question lies only a comparatively short distance across a county line.

The ease of travel, the increased facilities for travel, the fact that the population generally does travel and thus becomes familiar with the lay of the land in their own and adjoining counties; the ease with which records and papers can be transported from one county to another and that in cases of this kind if it is not a case of removing the records from “A” county to “B” county, then it is a case of taking real estate records from “B” county to “A" county; all taken together seem to overcome what fifty years or more ago were excellent reasons for insisting that such actions be tried in the county where the land was situated.

The statements of claims all allege the happening of two things, the negligent setting out of fire in one county by the defendant company and the destruction of property by that fire in another county.

To sustain the action, both material facts must be proven, and the failure to establish either allegation would result in a failure of plaintiff’s cause; therefore, the plaintiffs should be permitted to institute their proceedings in either county.

Plaintiffs rely on Bulwer’s Case, 7 Coke, 77, Eng. Reprint, 411, and we are of the opinion that this authority is applicable to the cases at bar; it has been cited in Rundle v. Delaware, etc., Canal, 21 Fed. Cases, 12, 139, as the rule in this county.

Plaintiffs also rely on the following cases: Smith v. Southern Ry. Co., 136 Ky. 162; also reported in 26 L. R. A. (N. S.) 927; Mannville Co. v. Worcester, 138 Mass. 89; Oliphant v. Smith, 3 Penrose & Watts, 180; Magee v. Railroad Co., 13 Pa. Superior Ct. 187, which seems to us sufficient authority to hold that the plaintiff has the choice of county in which he will bring his action.

And now, to wit, Dec. 2, 1927, after full consideration of the arguments and careful examination of the briefs and authorities cited, the rule is discharged, at the costs of the defendant.

From S. D. Gettig, Beliefonte, Pa.


author: Langham, P. J.,

text:
    Churchill’s Estate.

      George 3. Feit (of Peelor & Feit), for exceptant.

      William E. Pierce, for accountant.
    April 21, 1928.
   Langham, P. J.,

This case came on to be heard by hearing-in open court upon the following exceptions filed by George R. Churchill, a son and heir of Philander Churchill, deceased:

“Elizabeth H. Churchill, Administratrix of Philander Churchill, the Accountant, received and receipted for the sum of One Thousand ($1,000.00) Dollars, fire insurance on a two-story frame store building, the property of the estate of P. Churchill, deceased, which building was destroyed by fire since the death of said P. Churchill, said insurance being in the name and for the benefit of the estate of said P. Churchill, and has failed to account for the said sum of $1000.00.”

The history of this case, briefly stated, is as follows: Philander Churchill died intestate, leaving to survive him his wife, Elizabeth, and seven heirs. His estate consisted of personal property and possibly several pieces of real estate. One of the pieces of real estate had erected thereon a store building. John Churchill, one of the heirs, entered into an article of agreement with the other heirs, except George R. Churchill, for the purchase of the store property. After this agreement was entered into, John, in order to protect his six-seventh interest in this property, took out a policy of insurance in the sum of $1000, payable to himself. At about the same time, but no matter as to the exact date, George R. Churchill took out a policy of insurance in the sum of $500, payable to himself, in order to protect his interest. Some time after these policies were written, the agent of the insurance company, Mr. McQuilken, went to John Churchill and informed him that his policy was improperly written; that the policy should be written in favor of the Philander Churchill Estate, with a loss payable clause to- him (John Churchill) as his interest may appear. The change of form of policy was accordingly made as to John’s policy, but no change was made as to George’s policy. It may be that the policies were written by different agents and carried by different companies. Subsequently, a fire occurred, resulting in a total loss. George was paid for his loss direct to him in keeping with his contract of insurance. John was paid for his loss, but before the insurance company would make payment to him, the insurance company required Elizabeth Churchill, administratrix of Philander Churchill, deceased, to receipt therefor in keeping with the changed contract of insurance. She did not sign the receipt, and the insurance money was paid to John. It is admitted by except-ant and all- concerned that Elizabeth Churchill, the administratrix, did not receive any part of the insurance money. It is also admitted by all concerned that George paid the premium on his policy, and John paid the premium on his policy out of their own respective private funds.

Although the exceptions state that the “Accountant received and receipted for the sum of One Thousand ($1,000.00) Dollars, . . . the property of P. Churchill, deceased,” the fact remains that the accountant, administratrix, never did receive a single cent of the insurance money in controversy, and only receipted therefor in order that one of the heirs, John Churchill, who had an insurable interest in the destroyed property as George Churchill had an insurable interest, except that John had a greater interest than George. George had only a one-seventh interest. John had a one-seventh interest by inheritance, the same as George, and he also had another one-seventh interest which he purchased from his brother William, and had a fee title deed therefor, and, besides, had an equitable title by purchase on an article of agreement from four of the other heirs.

We are of the opinion that the policy of insurance first written, payable to John in case of loss by fire, if any, was properly written, as it was in George’s ease, for the reason that the administratrix, widow of the decedent, representing the estate of P. Churchill, had no insurable interest in the property insured. This property vested in the heirs immediately after the death of P. Churchill, the same not being needed for the payment of debts.

The fact of the policy having been erroneously changed, as we hold, and the fire loss receipted for by the administratrix in order for John to get his money, could not bind the administratrix to an accounting. It is not even claimed that the administratrix signed the check.

In our opinion, there would be as much equity in surcharging the administratrix with the amount of insurance money that George received as the amount John received. They both stood in the same relation. Both were heirs of P. Churchill. Both were protecting their own interests, and properly so. Neither of them turned the money over to their mother, the administratrix, and we are of the opinion they had no right to do so.

But it may be argued that by reason of the fire the property interest of the heirs was depreciated. Of course it was, but that is no concern of the administratrix. Neither she nor her bondsmen should be held to make good such a loss. It may be further claimed that the purchase by John on the article of agreement did not materialize; that the property eventually was purchased by another party, and John and George got all the insurance money. Of course they did, but they did not get anything they did not pay for in protection of their own interests. If John should refund anything to the four heirs who had interests not protected, that is a matter for them to settle with John. The administratrix or the bondsmen should not be held for any amount that never came into the accountant’s hands. Even if the changed form of policy was correct, that fact cannot fix liability oh the administratrix or the bondsmen, in view of the fact that the money was not paid to the administratrix. The administratrix neither solicited the insurance nor received the money as the result of the loss.

For the reasons indicated in this opinion, we will dismiss the exceptions. In a case of this character we are sitting as a court of equity, and we can see no equity in the consideration of a surcharge as contemplated by the exceptions. We think the proceeding was and is a proper one, because the question involved very properly arose and should be settled.

And now, April 21, 1928, this case came on to be heard by the taking of testimony in open court, and upon due consideration thereof, it is ordered, adjudged and decreed that the exceptions be dismissed.

From James L. Jack, Indiana, Pa.


author: Whitten, J.,

text:
    Long et al. v. Stout.

      Gregg & Gregg, for plaintiffs; Kline & Kline, for defendant.
    Oct. 14, 1927.
   Whitten, J.,

The Practice Act of May 14, 1915, P. L. 483, is not applicable to actions of ejectment.

The procedure in actions of ejectment is regulated by the Act of May 8, 1901, P. L. 142. Section 2 of the said act, as amended by the Act of June 12, 1919, P. L. 478, provides that the issue in actions of ejectment shall consist of the plaintiff’s statement and the defendant’s plea and answer. The said act also provides that: “The court may, on rule, enter such judgment on the pleadings in favor of either party as it may appear to the court the party is entitled to.”

In the instant case, the defendant did not enter a rule on the plaintiffs for judgment and presented no motion asking the court to enter judgment in his favor. Without stating any reason therefor, the learned counsel for the respective parties simply handed to the court the pleadings, together with briefs pro and con. The cause is, therefore, not before the court for adjudication: Smith v. Miller, 289 Pa. 184.

However, if the defendant had entered a rule for judgment in accordance with the said act of assembly, the court would be constrained to hold that, under the pleadings, the defendant is not entitled to judgment in his favor.

“Where a doubt exists as to a party’s right to summary judgment, it should always be resolved against entering the judgment:” Franklin Sugar Refining Co. v. Lykens Mercantile Co., 274 Pa. 206.

In their declaration filed the plaintiffs suggest James Thompson as the common source of title, and set forth an alleged copy of the will of said Thompson, wherein it appears that the plaintiffs are named as devisees of the land in dispute.

In his abstract of title the defendant denies that James Thompson is the common source of title, and also denies that the alleged copy of James Thompson’s will attached to the plaintiffs’ declaration is a true and correct copy of said will. However, the defendant in his abstract of title [answer] admits that James Thompson is the common source of title.

Looking only at the plaintiffs’ declaration, the court cannot authoritatively conclude that the plaintiffs have no title to, or right of possession of, the said land. It does not there appear that Eliza Thompson, widow of James Thompson, deceased, sold the land in question to any person. Eliza Thompson died June 14, 1925. True, the defendant in his answer avers a sale of said land by Eliza Thompson, the testator’s widow, to the defendant’s predecessors in title. However, the court upon a rule by defendant for judgment may not assume the truth of the averments contained in the defendant’s answer, unless such averments are also incorporated in the plaintiffs’ declaration.

The statute does not require the plaintiffs to file a replication to the defendant’s answer. On a rule by the defendant for judgment, the allegation of the conveyance of the land in dispute by the testator’s widow to the defendant’s predecessors in title is to be treated as a speaking demurrer: Pew v. Minor, 216 Pa. 348; Love v. Robinson, 213 Pa. 480.

In other words, the defendant merely states that he purchased the land in dispute from one who had purchased the same from Eliza Thompson, widow of James Thompson, deceased; and then, without affording the plaintiffs any opportunity of making answer thereto, asks the court summarily to enter judgment in his favor. This, the court has not the power to do.

Under the circumstances disclosed by the record, there is no question before the court for adjudication.

And now, Oct. 14, 1927, after argument by counsel and upon due consideration, it is ordered that the pleadings in this case be returned to the proper files in the prothonotary’s office, there to remain until the case shall come before the court in due course.

From William S. Rial, Greensburg, Pa.


author: Kun, J.,

text:
    Neves v. Pennsylvania Railroad Company.

      Victor Frey, for plaintiff; Francis B. Biddle, for defendant.
    July 26, 1928.
   Kun, J.,

This is a motion to take off a non-suit. The testimony may be summarized as follows:

The plaintiff, a railway postal clerk, was employed on Dec. 16, 1926, on a railway mail car on a train of the defendant bound from Cambridge, Md., to Seaford, Del. The train stopped at Federalsburg, Md., to take aboard some parcel post packages, consisting of baskets of potatoes for shipment. An employee of the defendant threw these packages up into the railway mail car from a small truck which was standing alongside the door of the car, and the plaintiff removed them from that position into racks and bins in the car. Defendant’s employee was apparently throwing the packages up into the car faster than they were being removed by the plaintiff, so that a pile of them formed. While the plaintiff was placing one of the packages weighing about seventy pounds in a bin, another package or basket which had been thrown up on the pile by defendant’s employee rolled off the pile against the feet of the plaintiff, causing him to fall and sustain injuries, to recover damages for which he filed this suit against the defendant.

Although the plaintiff claimed he had on some previous occasion asked the defendant’s employee not to throw packages into the car, there was no evidence in the case of any negligence on the part of the defendant’s employee in handling the baskets or packages in the way he did; that they were handled in any unusual manner. The train was en route, and when it stopped as indicated, the packages or baskets of potatoes were thrown into the mail ear, so far as any testimony discloses, as packages are usually thrown into mail, baggage or express cars. Accordingly, the court took the view that there was no evidence of negligence in the case and that the plaintiff’s injuries resulted from an act which was incidental to his own employment, either as a duty or because he placed himself in the position of receiving the packages as he testified he did. If, in the circumstances, the charge of negligence on the part of the defendant could on any theory be sustained, plaintiff could, nevertheless, not recover. The fact in the case must always be borne in mind that at the time of the accident -the defendant was actually helping defendant’s employee in getting the mail car loaded with parcel post packages. If it was plaintiff’s duty to receive the packages, then the toppling over of one of them which caused his injury was clearly incidental to his employment. If it was not his duty to so receive them, and he could have, so far as any duty on his part was concerned, stepped aside to a perfectly safe place in the ear until the packages had been thrown into it by the defendant’s employee, but, instead,' voluntarily joined defendant’s employee in the work of loading the car, receiving the packages as they were thrown into it, he placed himself for the time being in the relationship of a fellow-employee with the defendant’s employee, although they were not technically fellow-servants in the sense of having a common employer, and in such a situation plaintiff could not recover for any alleged negligence of such employee in connection with their joint acts: Wischam v. Rickards, 136 Pa. 109.

The plaintiff relies on some Pullman porter cases in this State and some postal clerk cases in other states. The case of Murray v. Philadelphia & Reading Ry. Co., 249 Pa. 126, indeed, “clearly laid down what is now the rule of law in Pennsylvania,” as plaintiff’s counsel properly pointed out in his brief, with reference to the status of a Pullman porter, to which the status of a railway mail clerk is argued as being analogous, “that the porter on a Pullman car which is being hauled by a railroad company, though not a railroad passenger in the ordinary meaning of the word, is yet entitled to the rights of a passenger, so far as his safe transportation is concerned.” It is the significance of the limitation “so far as his safe transportation is concerned” which is overlooked by the plaintiff. At the time of the accident plaintiff was actually helping the defendant’s employee to get the mail car loaded with parcel post packages. The accident was in no sense due to any negligence on the part of the defendant in transporting the plaintiff safely— its conceded duty. That is the distinction which must be made in this case. In Yarrington v. Delaware & Hudson Co., 143 Fed. Repr. 565, the court quoted from Chesapeake & Ohio R. R. Co. v. Patton, 23 App. D. C. 113, and in that case the court emphasizes the distinction at page 122, “that there may be risks which a postal clerk may assume, different from those of an ordinary passenger, may well be admitted; but those risks do not include acts of negligence of the railway company in the management or operation of its road.” Plaintiff also cites L. & B. Ry. Co. v. Chenewith, 52 Pa. 382, to the effect that one not an employee or trespasser on a train is entitled to the rights of a passenger, but the quotation from this ease limits this general proposition by the words “so .far as his safe transportation is concerned.” In Arrowsmith v. Nashville, 57 Fed. Repr. 165, the mail clerk was injured in the course of transportation by an act over which he had no control. The court said the railroad had contracted for the passage of mail clerks to carry them without negligence in the matter of their transportation.

In the instant ease, the matter of transportation was not at all involved. If a passenger, within the full intendment of the term — one who has bought and paid for his ticket — had put himself in the same position in which the plaintiff did in this case, to help the defendant’s employee load the mail car and had been hurt or injured in the manner in which the plaintiff was injured, such passenger would not be permitted to recover, because he would not have been injured in those circumstances by reason of any negligence of the defendant in the management or operation of the road, or because there was any failure on the part of the railroad company to transport him safely.

The situation is the same with a Pullman porter. The mere fact that he is a Pullman porter does not give him the right to recover because he is injured somewhere or somehow about the train. For instance, if he should leave his post on the Pullman car, where his duty is to assist passengers on and off with their baggage, and go to another portion of the train to help some employee of the railroad to load a ear and should be injured while so doing, he would not be entitled to recover. A postal employee is in no different position.

The proofs in the case show that plaintiff was not injured by reason of any unsafe transportation of him by the defendant or because of any negligence on its part in the management or operation of its road, but his injury was due to an accident, either incidental to the duties of his employment or because he voluntarily placed himself in the position of a fellow-employee of the defendant’s employee in helping him to load the railway mail car.

In any view of the case, the proofs do not show any cause of action against the defendant.

The motion to take off the non-suit is overruled.


text:
    Cunin v. Ehrlich et al.

      H. H. Berlin, for plaintiff; E. Booth, for defendants.
    June 27, 1928.
   Martin, P. J.,

Plaintiff made a conditional sale of machinery to defendant Maurice M. Ehrlich and delivered the machinery to him on the premises No. 139 North Third Street, rented from defendant A. C. Hering. The rent being in arrears, the constable, Jacob Werner, made a levy June 22, 1927, under authority of a landlord’s warrant signed by Hering.

Plaintiff filed a bond, and, on July 1, 1927, issued a writ of replevin. The sheriff delivered the machinery to him.

A declaration was filed averring that the machinery was in the possession of Maurice M. Ehrlich under the terms of a conditional sale agreement duly recorded in the office of the Prothonotary of Philadelphia County, and a copy was attached to the declaration; that Maurice M. Ehrlich was the lessee of the premises No. 139 North Third Street from A. C. Hering, who was duly notified and had knowledge of the fact that the machinery was the property of plaintiff and leased to Maurice M. Ehrlich; that the tenant failed to pay rent for the leased premises and distress was made upon the machinery in the possession of Maurice M. Ehrlich, who was indebted to plaintiff for rent under the terms of the conditional sale of the machinery.

An affidavit of defense and counter-claim were filed by defendant A. C. Hering. In the affidavit of defense it was denied that the defendant, Maurice M. Ehrlich, was a tenant of the premises No. 139 North Third Street, and averred that the premises were leased to Herman E. Ehrlich, trading as Print Crafters. It was denied that the landlord was notified that the goods were the property of plaintiff, but admitted that he knew they were leased.

The counter-claim recited the terms of the lease to Herman E. Ehrlich, trading as Print Crafters, averred that default had been made in the payment of rent and that a distraint was made for rent falling due May 15th and June 15,1927, and a levy on the goods on the premises for $90 rent and $21.31 costs.

An answer to the counter-claim was filed by plaintiff, averring that the machinery belonged to him and was not liable to be seized for rent by reason of the fact that the landlord had knowledge that the goods were not the property of Maurice M. Ehrlich or Herman E. Ehrlich; that other goods were returned to rightful owners by Maurice M. Ehrlich and by the constable; and that there were sufficient goods in addition to those belonging to plaintiff on the premises to pay the rent.

Defendants entered the present rule to show cause why judgment should not be entered against plaintiff for want of a sufficient reply to the counterclaim and assigned as a reason for the rule that “the reply (answer) sets forth no facts which constitute a legal defense to the counter-claim of the defendants, Hering and Werner, for rent for which distraint had been made, but merely avers that the goods replevied were not liable to distress because the defendant, Hering, the lessor, had knowledge of the fact that said goods were leased and were not the property of the lessee.”

It is not denied that the levy upon the machinery was for rent due the landlord who was the owner of the premises where the machinery was located: Pickering Co. v. Lichtenstein, 64 Pa. Superior Ct. 78.

In May, Stern & Co. v. Lintner, 67 Pa. Superior Ct. 422, 425, it was said: “Barring the goods excepted by statute, all goods upon the premises for the purposes of distress are to be considered as the tenant’s goods, although they may belong to another.”

And now, to wit, June 27, 1928, the rule for judgment for want of a sufficient reply to the counter-claim filed by defendants is made absolute.


author: Henderson, J.,

text:
    Taylor’s Estate.

      Robert J. Sterrett, for exceptions; Charles Hunsiclcer, contra.
    June 25, 1928.
   Henderson, J.,

Little need be added to the clear and convincing opinion of the Auditing Judge.

The argument in support of a violation of the rule, at least so far as the provision for the grandchildren is concerned, is based on the assumption that he did not give a life estate to the grandchildren, but gave them three different estates for years, and lasting throughout their lives, i. e., support until they reach the age of twenty-one; the whole income from twenty-one to thirty; then a gift of one-half the principal, and income on the balance for life.

The presumption is that a testator does not intend to violate the rule against perpetuities; and that presumption will operate to support a construction of a will which does not so offend: Siddall’s Estate, 180 Pa. 127; James’s Estate, 245 Pa. 118; Wickersham’s Estate, 261 Pa. 121.

The trust during minority and then until they reach the age of thirty is one continuing trust, the conditions being modified when full age is reached. If a new trust were created when they respectively reached the age of thirty, and if that trust had been for a new party, then undoubtedly, as pointed out in the adjudication, it would have been bad as a violation of the rule against perpetuities.

The argument in support of a new trust at the age of thirty is based on the fact that, after giving the grandchildren one-half of the principal upon reaching that age, the will directs as follows: “and the remaining one-half part of his, her or their share of the principal and income of the said residue and remainder of my estate, I hereby give, devise and bequeath unto the said trustee in trust to pay the net income and profits thereof to” such grandchildren.

Has the testator, by again reciting the gift in trust, created a new trust? We think not. It is just as if he had said, “upon the further trust,” &e. The elements of a trust are (1) the fund, (2) the parties, and (3) the terms thereof. The fund is the same and so are the parties; and the testator has moulded the terms to fit his conception of the necessities of minority, of the years from twenty-one to thirty, and of the years thereafter.

Had the fund been increased at the age of thirty, or new parties then introduced, a different question would have been presented.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Gest and Van Dusen, JJ., did not sit.


author: Prather, P. J.,

text:
    McCray v. Harris et al.

      W. J. Sirdevan, for plaintiff.

      Thomas & Thomas and G. W. Benedict, for defendants.
    Dec. 19, 1927.
   Prather, P. J.,

This action was begun in ejectment to recover from defendants a leasehold estate to explore for oil on twenty acres of land in Oil Creek Township, County of Crawford, and, according to the praecipe filed, excepting from the description of the said twenty acres “such part (thereof) as is within three hundred feet of a well formerly drilled on said premises.”

When this case was called for trial, counsel for plaintiff and defendants agreed to submit it upon stipulated facts as a case stated to determine the following legal question: “If the court is of the opinion that the plaintiff, George R. McCray, is vested with a good leasehold title for the purpose of operating for oil and gas in and to the land in question, then judgment to be entered in favor of the plaintiff and against the defendants for the land described in the writ, but if the court is of opinion that the said plaintiff is not vested with a good leasehold title for the purpose of operating for oil and gas, then judgment to be entered for the defendants. The costs to follow the judgment and both the plaintiff and the defendants reserving the right to take an appeal to the Supreme or Superior Court.”

In the case stated, the facts stipulated may be summarized as follows:

1. That Marvin Weed and wife, on June 20, 1905, leased to P. K. Sloan, by written indenture, 100 acres, which included the above twenty acres, for the purpose of prospecting for gas “for the term of ten years and as much longer as oil and gas is found in paying quantities.” Said lease required lessee to drill four wells upon this 100-acre lease within a specified time, which requirement was complied with and resulted in the production of oil in paying quantities from each of the four wells.

2. On or about Nov. 4, 1905, P. K. Sloan, lessee, assigned all his rights and interest in said leasehold to Elmer E. Harris, one of the defendants herein. On or about Nov. 15, 1912, the said Elmer E. Harris assigned eighty acres of this 100-acre leasehold, retaining twenty acres, comprising the leasehold here in controversy. One of the four wells hereinbefore mentioned drilled on the 100-acre lease is located on this said twenty acres. This well has at all times since its drilling in been pumped by lessee and producing oil in paying-quantities, and the royalty thereon has been regularly and continuously turned over to lessor, even at the present time. Lessee, besides drilling and operating this one well, made no other exploration for oil upon this leasehold of twenty acres until October, 1923.

3. Marvin Weed and wife, by lease dated Oct. 8, 1923, demised and let for oil and gas purposes the twenty acres of land involved in this action to the plaintiff, George R. McCray, and in said lease it is provided that “second party agrees not to drill any wells within three hundred feet of the one well that is drilled and pumping now on the said twenty acres.” Thereupon plaintiff entered upon said twenty acres for the purpose of operating for oil and gas, whereupon defendants moved a drilling outfit upon the said tract, excluded plaintiff therefrom and proceeded to drill in a second well, which is now operated for the production of oil and gas. This suit was instituted Oct. 23,1923, or fifteen days after plaintiff became lessor by said assignment.

4. Operations for oil and gas, at the present time and for a long time prior to the bringing of this action, have been prosecuted on the lands adjoining the twenty acres in question on all four sides, and oil and gas have thus been produced on adjoining leases by the use of suction pumps, resulting in reduction within said sand of the natural pressure of oil, gas and fluids contained thereunder. Quoting from the stipulated facts: “Prior to the date upon which the plaintiff obtained the lease for oil and gas purposes on the said twenty-acre tract, his lessor had requested the defendants to drill additional wells on said twenty-acre tract to protect the oil and gas under said land from being drawn out and produced by those persons operating upon the adjoining premises.”

5. At the time of the bringing of this action, defendants were in possession of the property in controversy.

6. Said lease, after providing for the drilling of the hereinbefore-mentioned four wells and specifying its tenure “for the term of ten years and as much longer as oil and gas is found in paying quantities,” provided: “And a failure to commence and complete the drilling of any well or wells, or to pay any rental hereinbefore mentioned within the time limited for the same, shall render this lease null and void, and is equal to a surrender and cancellation of the same, notwithstanding any law, usage or custom of the contrary.”

The general questions involved in the discussion of the matter submitted are forfeiture and abandonment and whether the stipulation in the case stated sustains either of these.

In general, it may be stated that all facts not contained in the case stated must be assumed not to exist and the consequences must fall on the party having the burden of proof: Addyston Pipe and Steel Co. v. City of Corry, 197 Pa. 41.

In Schuylkill County v. Shoener, 205 Pa. 592, 597, the Supreme Court held: “A case stated should contain a clear statement of the facts agreed upon which give rise to the question presented for decision, and nothing should be left to inference. In deciding the case, the court is confined to the specific facts stated. Whatever is not distinctly and expressly agreed upon will be taken not to exist, and it is error to base a judgment on facts not set forth: Ford v. Buchanan, 111 Pa. 31; Mutchler v. Easton, 148 Pa. 441; Loux v. Fox, 171 Pa. 68.”

This rule is applicable to the facts submitted in two particulars. Plaintiff must place stress upon the fact that lessor, some time prior to Oct. 8, 1923, had requested lessee to drill additional wells. This is a bald stipulation without any embellishment as to any particular time when such request was made or any assertion as to lessee’s reply thereto. Oct. 7, 1923, would satisfy the time mentioned as prior to Oct. 8, 1923. After stating that plaintiff had obtained the lease Oct. 8, 1923, the stipulation continues: “Thereupon plaintiff . . . entered upon said twenty acres.”

From these stipulations we do not know, we cannot infer, nor does it follow, that lessee defaulted after lessor requested him to drill more wells. If such request upon the part of lessor was necessary before he could declare a forfeiture, then definiteness in its averment is lacking and proof that lessee did not respond to this notice is wholly wanting. As such request could have been made on Oct. 7th, lessee’s conduct of moving his drilling outfit upon the twenty acres and proceeding to drill may have been a direct affirmative response to said request, and may have been as early as Oct. 8 or 9, 1923. It follows that such request can have no legal significance against defendant, the lessee, in support of plaintiff’s contention that the lease was either forfeited or abandoned.

Plaintiff, in his praecipe, describes the twenty-acre lease, but excepts therefrom the first well thereon, together with “such part as is within three hundred feet of a well formerly drilled on said premises.” It is to be observed that the facts submitted are entirely silent and void of any illumination as to why plaintiff adopts as the boundaries in his prsecipe a limitation of 300 feet from said well. Why not have said 3000 feet as well as 300 feet?

We have referred to the first indefinite assertion of fact and the second abstract and inferential one as abstract and inferential because not corelated with any evidential fact, stipulation or conclusion pertaining to the issue for the purpose of noting that, in our opinion, they have no significant value in support of plaintiff’s principal contention of forfeiture or abandonment.

It follows that the search for forfeiture or abandonment must be limited to the covenants in the lease, express or implied, considered with the relevant facts of a single producing oil well on a twenty-acre leasehold, operated for sixteen years and now in operation, and paying to lessor his royalty without any unheeded complaint that lessee had not- further continued his exploration, with productive oil leases on the four sides of this twenty-acre leasehold, operated and pumped by means of suction tending to reduce the pressure of oil and gases in the sands underneath said adjoining leases.

From plaintiff’s exhaustive brief, it is not quite clear whether he is stressing forfeiture or abandonment. We will proceed to the consideration of abandonment. In Aye v. Philadelphia Co., 193 Pa. 451, 456, the Supreme Court stated the law of abandonment as follows: “Abandonment is a question of fact to be determined by the acts and intentions of the parties. An unexplained cessation of operations for the period involved in this case gives rise to a fair presumption of abandonment, and standing alone and admitted would justify the court in declaring an abandonment as matter of law. But it may be capable of explanation and is, therefore, usually a question for the jury on the evidence of the acts and declarations of the parties: Stage v. Boyer, 183 Pa. 560. It should have been so left to them in this case.”

In McMillin v. Titus, 222 Pa. 500, 511, the Supreme Court said: “Abandonment ordinarily is a question' of fact to be determined by the jury under all the circumstances of the case. There must be an intention to abandon as well as an actual abandonment of the property, and usually it is necessary for the jury to determine these facts. . . . There was no testimony offered on the part of the plaintiffs in contradiction of the testimony offered by the defendant to establish the abandonment.”

We have found no authority where abandonment has been successfully urged against a mining lessee who has complied with every expressed covenant in his lease to the successful and continuous production of the mineral' explored for, and who has continuously at regular intervals and to the apparent satisfaction of his lessor paid or delivered the stipulated rent or royalty to said lessor.

We say to the apparent satisfaction of lessor advisedly, because of the facts submitted, there is lacking any definite stipulation to the contrary, and, this being true, the fact of his receipt of his share of the oil as produced during sixteen years, inclusive of the present, furnishes abundant evidence that neither he nor his lessee ever considered any part of said leasehold abandoned.

In our opinion, the essential elements of abandonment are lacking. Lessee’s continued production of oil, though from a single well, and lessor’s acquiescence in, and apparent approval of, this limited operation evidence their mutual understanding that their lease was continuing in full life.

In Highfield Co. v. Kirk, 248 Pa. 19, a proceeding in equity” wherein it was pleaded that lessee, on a thirty-five-acre leasehold, had in sixteen years drilled but one well thereon, which was operated and productive during this time, but had refused to further explore, though often requested so to do by his lessor, and the facts so pleaded were admitted by respondent, lessees, the court held that this was an abandonment of the lease, except so much thereof as was necessary for the operation of one well. The syllabus expresses the holding of the court: “Where the lessee under an oil and gas lease drilled one well and for a period of sixteen years thereafter failed to explore the premises further, and had no intention of drilling any additional wells, in a proceeding in equity to require the lessee to develop or abandon the premises, the court properly decreed that the defendants had abandoned their interest in the demised premises, except such curtilage as was necessary to operate the one well.”

Kleppner v. Lemon, 176 Pa. 502, was a proceeding in equity to compel defendant to put down wells. In this case lessee had put down a single well upon the leasehold in question, refused to drill more, but prospected on an adjoining lease within 157 feet of plaintiff’s property, securing wells thereon, and was also engaged in putting down other wells within 250 feet of plaintiff’s line. It was shown that, due to the nature of the rock, the manner of operation and the nearness of defendant’s new explorations to plaintiff’s well, oil was being drained from said lease to lessor’s detriment.

Under these facts, the Supreme Court, in affirming the judgment of the trial court, directed defendant to proceed at once to drill and operate another well on plaintiff’s land as follows: “It is further ordered that if the defendant does not within ten days after notice of this decree file in this case a declaration setting forth that he will put down another well on said land near the north end thereof and begin the same within twenty days thereafter, and prosecute the same to completion with all reasonable diligence and in good faith, his leasehold estate in said land shall be deemed to be abandoned except as to the well known as Kleppner No. 1 and a space of 300 feet around it on all sides, and the right of way, etc., incident thereto.”

The procedure and the judgment of the court in the last two authorities cited are directly in harmony with the doctrine that equity abhors a forfeiture (Brown v. Vandergrift, 80 Pa. 142), and that the law is slow to enforce a covenant of forfeiture unless such forfeiture is essential to justice. In other words, where forfeiture is invoked against a covenantor and the contract has been in good faith partly executed, and its partial performance having been acquiesced in by the covenantee for a period of years, and the forfeiture of the contract would work an injustice to the covenantor, without any essential advantage to covenantee, equity will permit and require performance, if good faith has thus far been shown, upon the part of the covenantor, rather than declare a forfeiture.

While the action before us is ejectment, it is still a procedure requiring equitable consideration: Brown v. Vandergrift, supra. A judgment in such a proceeding may be entered for defendant, without prejudice to plaintiff, to take such other action as may result in a modified judgment, to the end that lessor may declare a forfeiture and obtain possession of the leasehold: Cassell v. Crothers, 193 Pa. 359, 366, 369.

In Thompson v. Christie, 138 Pa. 230, 249, the Supreme Court, in discussing forfeiture, said: “The rule undoubtedly is that the right to declare a forfeiture must be distinctly reserved; that the proof of the happening of the event on which, the right is to be exercised must be clear; that the party entitled to do so must exercise his right promptly; and that the result of enforcing the forfeiture must not be unconscionable.”

In Craig v. Cosgrove, 277 Pa. 580, 584, the Supreme Court, speaking of the lease then under consideration, said: “Here, the lease bound the lessee as well after as before Oct. 1, 1920; it was still his duty to drill the first well, and, having entered into a contract for that purpose, thereby incurring expense and obligation, and the contract having been partly executed, the attempted exercise of the option to forfeit, made nearly three months after the alleged breach, came too late: Lynch v. Gas Co., 165 Pa. 518, 521.”

Plaintiff, in the case under consideration, seems to assume that the lease in question has become automatically forfeited because of lessee’s failure to perform its implied covenants, ignoring lessor’s conduct and disregarding the peculiar facts that contributed to or induced such non-performance. We cannot assent to this contention.

The-authorities cited, wherein judgments of forfeiture were entered, contained one of the following conditions:

1. An absolute default to comply with an express covenant or a wilful violation thereof: Kelly v. Phillips Gas and Oil Co., 262 Pa. 412.

2. Refusal to comply with a necessarily implied covenant after notice so to do: Kleppner v. Lemon, supra.

3. The happening of the condition that terminated the contract, as the drilling of a dry hole and cessation of operation: Aye v. Philadelphia Co., 193 Pa. 451, 456, supra.

4. When, in an oil lease, oil is not produced in paying quantities, that condition expressing the tenure of the lease: Cassell v. Crothers, supra.

For lessee’s mere failure to keep implied covenants, after his faithful, continuing and successful compliance with all express covenants, we have found no authority that sanctions lessor’s summary declaration of forfeiture, without previous notice of such intention in the event of such continuing failure. Especially is this doctrine of abhorrence to such forfeiture pronounced against lessor, who through a loxig period of years acquiescently receives the fruits of the covenants thus executed, and now suddenly without notice invokes a new program of performance not “nominated in the bond.”

When compliance with express covenants can be waived by covenantors merely by their conduct in relation thereto, how much more are implied ones susceptible of such waiver.

In Craig v. Cosgrove, 277 Pa. 580, 584, the Supreme Court held:

“A forfeiture clause for non-payment of rent or for failure to fulfill a covenant for drilling wells in an oil and gas lease is for the benefit of the lessor and is enforceable only at his option: see Jones v. Natural Gas Co., 146 Pa. 204; Wills v. Manufacturers Natural Gas Co., 130 Pa. 222. Such a covenant is not self-enforcing: Westmoreland Natural Gas Co. v. De Witt, 130 Pa. 236. The right to insist upon time as the essence of a contract may be waived expressly or by necessary implication: Welsh v. Dick, 236 Pa. 155; Vankirk v. Patterson, 201 Pa. 90; and see Brodsky v. Bell, 79 Pa. Superior Ct. 36; also, Pomeroy’s Specific Performance of Contracts (2nd ed.), § 394.

“As such a forfeiture clause is operative only at the option of the lessor, the lease continues a valid obligation until he declares it forfeited, and unless he acts promptly his right to do so is gone.”

Where the natural effect of lessor’s conduct is to lead lessee into the belief that lessor is satisfied with a continuing status or condition, lessor will not be allowed to enforce a forfeiture because it would be inequitable: Steiner v. Marks, 172 Pa. 400; Duffield v. Hue, 129 Pa. 94.

We are not at all ignoring the consistent authorities, McKnight v. Natural Gas Co., 146 Pa. 185, 200; Hamilton v. Foster, 272 Pa. 95; Kleppner v. Lemon, supra, and kindred ones, to the effect that an oil lease, with reference to its operation and prosecution, must be interpreted with reference to the fugacious characteristics of such fluids, whether or not such prosecution and extended exploration be covenanted in the lease. We are simply insisting that, in harmony with all the authorities, the equitable rule be applied to this attempted forfeiture.

In Venture Oil Co. v. Fretts, 152 Pa. 451, 460, discussing the estate of a lessee in an oil lease, the Supreme Court said: “The title is inchoate and for purposes of exploration only until oil is found. If it is not found, no estate vests in the lessee, and his title, whatever it is, ends when the unsuccessful search is abandoned. If oil is found, then the right to produce becomes a vested right, and the lessee will be protected in exercising it in accordance with the terms and conditions of his contract.”

In Calhoon v. Neely, 201 Pa. 97, the Supreme Court said: “A vested title cannot ordinarily be lost by abandonment in a less time than that fixed by the statute of limitations, unless there is satisfactory proof of an intention to abandon. . . . Whether there was an abandonment here, as in all similar cases, was a question of intention to be determined in the light of the conduct of the lessees.”

In Stoddard v. Emery, 128 Pa. 436, the Supreme Court held, as expressed in the syllabus: “If the parties to a demise of lands for oil and gas purposes have provided therein, by express terms, how many wells shall be put down, no implication can be raised that any greater number are to be drilled in accordance with a custom for the most effective operations.” See, also, Blair v. Peck, 1 Pennyp. 247; Janes v. Emery Oil Co., 1 Pennyp. 242.

We do not find that the doctrine laid down in the Stoddard v. Emery case has ever been expressly dissented from by our Supreme Court, while that of the last two cases was cited by the Supreme Court in Kleppner v. Lemon, supra, 511, with apparent approval.

It seems to be urged that lessor is justified in declaring a forfeiture for three reasons:

1. Lessee’s failure to continue his exploration for oil, beyond the pumping and producing of oil from one well, for a period of about sixteen years.

2. His continued failure to explore after lessor’s notice so to do.

3. The dissipation, depletion and waste of lessor’s interest due to said failure, especially as affected by the continued production and pumping of oil on leaseholds adjoining all sides of this twenty-acre lease.

We have already answered the arguments raised with reference to Nos. 1 and 2. As to No. 3, we may call attention to the fact it does not appear, and we cannot find, that the operation of leases and the production of oil from the four sides of the lease in controversy tend toward the dissipation of any oil or gas under or belonging to plaintiff’s lease. True, we have in the stipulation of facts that the operation of said adjoining leases and the manner of pumping oil therefrom tends to reduce the natural pressure of gases and fluids under said leases. But we have no facts, relating to the operations upon leases adjoining to the one in controversy, more clearly or definitely than is implied in the term “adjoining.” For all the stipulation shows, these operating wells may be a half a mile or'a mile distant from this twenty-acre lease. To find injury to plaintiff’s lease arising from such operations, based upon such indefiniteness of averment, both as to proximity and as to damage, is to find it not from facts but from merest inference.

We make the following findings:

1. That defendants have fulfilled every express covenant contained in said lease.

2. Performance of implied covenants to continue exploration for oil and putting down additional wells have been postponed and waived by common understanding between the parties.

3. Such implied covenants cannot be enforced without due and timely notice to lessees to proceed with such exploration.

4. No such notice was given in this case.

5. The right to proceed with such exploration has not been forfeited in this case.

6. The right to proceed with such exploration has not been lost by abandonment. .

It follows that judgment should be entered in this case in favor of the defendants for the twenty-acre leasehold without prejudice to the future rights of plaintiff.

Order.

Now, Dec. 19, 1927, judgment is entered in favor of defendants for the leasehold comprising the twenty acres described in plaintiff’s praecipe, and the producing well excepted from said description, together with costs, without prejudice to plaintiff to take such other action as may hereafter be required, if the law so justifies, to require defendants herein or lessee in said lease to continue said operations and explorations for the purpose of producing oil and gas, as contemplated by said lease.

Prom J. Perry Eckels, Meadville, Pa.


text:
    Smith v. Sechrist.

      Charles W. Eaby, for rule; William C. Behm, contra.
   Landis, P. J.

On Nov. 20,1925, the plaintiff commenced an action of trespass against the defendant before an alderman of the City of Lancaster to recover for certain labor and repairs to plaintiff’s automobile, rendered necessary by reason of the defendant’s running into the plaintiff’s said car. The amount claimed was $38.73, and judgment was entered in his favor for that amount. On Dee. 9, 1925, the defendant appealed, and the appeal was duly entered in this court. On Dec. 14, 1926, the plaintiff filed his statement, in which, in addition to the damages sued for, he claimed $100 for loss in the value of the machine by reason of the collision. On Dec. 22, 1926, counsel for the defendant asked for a judgment in his favor because the damages now claimed exceed the amount for which a plaintiff may sue, under the 30th section of the Act of June 14, 1923, P. L. 718, before any alderman, magistrate or justice of the peace.

Of course, no such action can be taken by this court, for, under any circumstances, I know of no warrant for it. The Act of 1923 provides:

“Section 30. . . . All civil actions for damages arising from the use and operation of any motor-vehicle may, at the discretion of the plaintiff, be brought before any alderman, magistrate or justice of the peace in the county where the alleged damages were sustained, if the plaintiff has had such damages repaired and shall produce a receipted bill for the same, properly sworn to by the party making such repairs or his agent, or said action may be brought in the Court of Common Pleas of said county and service of process in either case may be made by the sheriff of the county where the suit is brought, deputizing the sheriff of the county wherein the defendant or his registered agent resides, or where service may be had upon him under the existing laws of this Commonwealth, in like manner as process may now be served in the proper county; provided, that no action involving more than $100 shall be brought before any alderman, magistrate or justice of the peace.”

The suit in this case, as shown above, was brought for less than $100 and falls within the terms of the act. It is true that the statement makes claim for a larger sum. A recovery cannot, however, be had for the amount thus claimed. The way, as I think, to reach that difficulty is by a motion to strike it from the statement, and not by a motion for judgment for defendant.

It may be that the above-named section of the Act of 1923 is unconstitutional; but I am not at this time deciding that point. The question is not properly before us. In Campbell v. Krautheim, 4 D. & C. 577, Lewis, J., of Philadelphia, concluded that the act was not unconstitutional from any defect in its title.

The motion is dismissed.

From George Ross Eshleman, Lancaster, Pa.


author: Koch, P. J.,

text:
    Bankes v. Bankes et al.

      Joseph W. Moyer, for claimant; Henry Houck, for defendant.
    March 5, 1928.
   Koch, P. J.,

The United States Fidelity and Guarantee Company presented its petition, averring that it is a party defendant and liable for the payment of any compensation that may be awarded to William J. Bankes against Mrs. William J. Bankes; that on Dec. 2, 1927, on the petition of the said United States Fidelity and Guarantee Company, the Workmen’s Compensation Board found as a fact that the average weekly wages of the claimant at the time of his injury while in the course of his employment for Mrs. William J. Bankes were $25, and that a copy of the said order was mailed to counsel of record on Dec, 2, 1927; that on Dec. 15, 1927, the claimant filed, together with his exceptions, an appeal in the Court of Common Pleas of Schuylkill County, but did not serve on the United States Fidelity and Guarantee Company written notice thereof, setting forth the date of the appeal and the court in which the same was filed, and that the claimant has not at any time served on said United States Fidelity and Guarantee Company a written notice of any appeal to the Court of Common Pleas of Schuylkill County, or to any other court. William J. Bankes, in his answer to the petition for the rule, admits that said United States Fidelity and Guarantee Company is the insurance carrier of the defendant and is liable for the payment of any compensation awarded to William J. Bankes, and admits, also, the other facts stated in the petition of the said company, but avers that said company is not an adverse party within the meaning of the Workmen’s Compensation Law, and that it, therefore, was not entitled to said written notice.

Section 427 of the Workmen’s Compensation Law, as amended June 26, 1919, P. L. 642, 665, provides that where a party takes an appeal from any action of the board, such party “shall, at the time of taking the appeal, serve upon the adverse party written notice thereof, setting forth the date of the appeal and the court in which the same is filed, and shall file with his notice of appeal such exceptions to the action of the board as he may desire to take,” etc. This provision is mandatory and it should be followed. “In all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of assembly of this Commonwealth, the directions of the said acts shall be strictly pursued,” etc.: Section 13, Act of March 21, 1806, 4 Sm. Laws, 332. “When a statute confers a new power or right and provides a particular mode by which it may be vindicated, no other remedy than that intended by the statute may be enforced:” Turnpike Co. v. Martin, 12 Pa. 361; Moyer v. Kirby, 14 S. & R. 162; Turnpike Co. v. Brown, 2 P. & W. 462.

The claimant in this case is the husband of Elizabeth Bankes, and the Guarantee Company is named in the caption as insurance carrier; and it was upon its petition that the average weekly wages were determined. It is, therefore, an “adverse party,” and as such was entitled to notice of the appeal in accordance with the provisions of said Act of June 26, 1919. “Written notice of the appeal must be given to the adverse party or the appeal will be invalid:” Hager v. Norristown Magnesia Asbestos Co., 82 Pa. Superior Ct. 349, 351.

And now, March 5, 1928, the rule is made absolute and the appeal is quashed.

From M. M. Burke, Shenandoah, Pa.