author: Martin, P. J.,

text:
    Gordon v. People’s National Fire Insurance Co. et al.

      Fire insurance — Statement of claim — Waiver of proofs of loss — Aver-ments of.

    1. In an action on a fire insurance policy which requires proofs of loss to be furnished within sixty days after the fire, unless such time be extended in writing, an averment in the statement of claim that plaintiff was informed that there was no necessity to file a proof of loss until a settlement should be arrived at is insufficient, as such averment fails to show from whom the information was received or what representative or agent misled the plaintiff or under what authority they acted.
    2. So, also, an averment in the statement that proofs were not furnished because plaintiff had been requested by defendant not to furnish them during negotiations for settlement is insufficient, in the absence of an averment that the alleged request extended the time beyond the sixty days.
    Petitions to amend statements. C. P. No. 5, Phila. Co., March T., 1921, Nos. 4981 and 4982.

      M. G. Weinberg, for plaintiff; B. Henry, for defendants.
    Jan. 25, 1922.
   Martin, P. J.,

Suit was instituted upon policies of insurance to recover a loss caused hy fire.

Statements of claim were filed, to which copies of the policies were attached, containing a condition requiring proof of loss to be furnished the insurer.

It was averred in the statements that proof of loss was not supplied because the matter was being adjusted on behalf of defendant company by the General Adjustment Bureau, and that a number of conferences caused the delay in filing proofs of loss.

Demurrers were filed to the statements.

It was agreed by counsel that, as the facts were similar in each case, the decision of the court in the suit against the Insurance Company of North America should govern the other cases.

After argument of that case, judgment was entered for defendant, but before the entry of judgment upon the record in the other cases counsel presented a petition for leave to amend the other statements of claim to read: “The plaintiff alleges further that the matter was taken up on behalf of the defendant by the General Adjustment Bureau of the City of Philadelphia, who was taking care of the interests of the defendant company. During the month of January, 1921, the plaintiff was informed that there was no necessity to file a proof of loss until a settlement would be arrived at by and between the parties. The plaintiff alleges further that he was, therefore, misled and deceived by the defendant company through their representatives and agents, and that a proof of loss was not filed by the plaintiff until some time later. The plaintiff further avers that he did not supply a proof of loss because he had been so requested by the defendant during the negotiations of the settlement as heretofore alleged; that it was not until March 1, 1921, that he supplied the proof of loss, which showed the amount of loss to be $1922.75, that the share of the defendant company was $412.05, which proof of loss was received by the said defendant.”

Under the terms of the policies, the insured was required within sixty days after the fire, unless such time was extended in writing by the companies, to render the companies proof of loss.

The averments which he proposes to add to the statement of claim do not allege that any written extension was granted, or that a person authorized by the companies to waive this provision had done so. It is averred “that the plaintiff was informed that there was no necessity to file a proof of loss until a settlement would be arrived at by and between the parties;” but it is not stated from whom the information was received or what representatives and agents misled and deceived the plaintiff, or under what authority they acted.

In stating that he did not supply proof of loss “because he had been so requested by the defendant during the negotiations of settlement,” there is no averment that the alleged request extended the time beyond sixty days, or that it was anything other than “as heretofore alleged.”

The amendments, if allowed, taken in conjunction with the other parts of the statements of claim, would not constitute a good cause of action against defendants under the terms of the policies of insurance attached to the statements of claim. Petition refused.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    McGowan’s Estate.

      Wills — Construction—Gift of one-half of whole estate, followed by general and residuary legacies.

    1. A gift of one-half of testator’s “whole estate” refers to the net estate, that Is, what remains after payment of debts and administration expenses.
    2. When such a gift is followed by general and residuary legacies, the general legacies are payable out of the remaining one-half of the estate before the residuary estate is ascertained.
    Adjudication. Account of Continental-Equitable Title and Trust Company, executor. O. C. Phila. Co., July T., 1921, No. 623.

      James M. Dohan, for accountant and several Roman Catholic charities, legatees.

      John K. Loughlin, for Michael Cardinal Logue.

      James Fitzpatrick, for The Catholic Church Extension Society of the United States of America, legatee, and for Altar and Rosary Society of the Cathedral, legatee.
    Oct. 11, 1921.
   Henderson, J.,

The testatrix died on Dec. 27, 1920, having first made and published her last will and testament, dated Feb. 23, 1912, duly admitted to probate.. . .

The testatrix by her will gave numerous legacies, and then, by the eighth item, directed as follows:

“I give and bequeath the one-half part of my whole estate unto His Eminence Michael Cardinal Logue, or to his successor as Roman Catholic Archbishop of Armagh, Ireland, for the benefit of the Roman Catholic Irish University.”

This clause was followed by a small bequest and a residuary gift in favor of the Catholic Foreign Missionary Society.

Counsel for Cardinal Logue contends that he is entitled to one-half of the whole estate as a specific legacy, clear of debts and legacies, and that the debts and legacies are payable from the remaining half.

In Griffin’s Estate, 1 Dist. R. 316, Judge Ashman, speaking for this court, said: “It is perfectly clear, however, that a gift by a testator of all his estate cannot be specific, because the terms of the gift are in themselves general; and it is equally clear that a gift of one-half of his estate is no more specific.”

A testator may only dispose of his net estate, that is, what remains after debts and administration expenses are cared for. His whole estate is ascertained by first deducting these items.

It should be observed that the usual residuary clause follows the one we are considering. Hence, I conclude that Cardinal Logue is entitled to receive one-half of the estate after payment of debts and expenses, but clear of legacies, which will be payable out of the remaining one-half before the residuary estate is ascertained.

In Briggs v. Hosford, 22 Pickering, 288, a gift to the wife of “the one-half of all my property,” was construed to mean one-half after the payment of debts.

Reed v. Addington, 4 Vesey, Jr., 575, is to the same effect. These cases were followed in Smith v. Terry, 43 N. J. Eq. 659.

In Kline’s Appeal, 117 Pa. 139, a gift to the widow of “one-half of all the net income arising from my real estate,” was construed to mean one-half of the income from the real estate after sales made for the payment of debts. . . .

There was no objection to the account, which shows a balance of principal and income of $5626.81, of which, together with all additional income or interest on deposits to date of payment, one-half thereof (less tax) is awarded to His Eminence Michael Cardinal Logue. . . .

And now, Oct. 11, 1921, the account is confirmed nisi.


author: Hargest, P. J.,

text:
    Continental Guaranty Corporation v. Raffensperger et al.

      Replevin — Practice—Parties—Intervention by party in possession.

    The fact that the party who is actually in possession of property for the recovery of which an action of replevin has been brought was not an original defendant in the writ, does not invalidate the proceeding if the party in possession has been allowed to intervene.

      Personal property — Lease—Rights of lessee — Lien for repairs — Consent of owner.

    The lessee of an automobile cannot impose a lien upon it for repairs without the consent of the owner. Where the lessee has covenanted to keep the leased property free and clear of liens, a repairman who undertakes work at the instance and request of the lessee without the consent of the owner, cannot assert any lien on the property as against the owner.
    Replevin. Motion for judgment for want of a sufficient affidavit of defence. C. P. Dauphin Co., Sept. T., 1920, No. 727.

      George L. Reed, for plaintiff.

      W. Justin Carter, for J. L. Riggio, intervening defendant.
    No appearance for the original defendant.
    Sept. 13, 1921.
   Hargest, P. J.,

This is an action of replevin against A. T. Raffensperger & Son, the original defendants, in which action J. L. Riggio was allowed to intervene as a defendant.

The Overland Harrisburg Company, on Dec. 11, 1919, leased to A. T. Raffensperger & Son one Mack truck, and on the same day assigned and transferred its title in said lease to the plaintiff. The defendant took possession of the truck, and subsequently defaulted in the payments to be made according to said lease. During the month of May, 1920, the original defendants delivered the truck to J. L. Riggio, the intervening defendant, for repairs, and Riggio, who was conducting a general repair shop under the name of the “Sunshine Garage,” had the custody of the truck at the time the writ of replevin was issued. An affidavit of defence was filed by J. L. Riggio, and the question now before us is the sufficiency of this affidavit.

The affidavit of defence does not deny that there was a default in the payment of rentals under the lease, nor that James L. Riggio was conducting business under the name of the “Sunshine Garage.” It sets up that the truck was broken, damaged and demolished, and was unfit for use, and, while in that condition, the defendant, Raffensperger, employed the defendant, Riggio, to repair the same, and that, at the request of Raffensperger, the repairs, amounting to $771.71, were made to the truck, of which $170.95 were paid, leaving a balance due Riggio of $606.76; that Riggio held the truck in his possession to secure the balance due, and was so holding it when the action in replevin was started. It also avers that the plaintiff has failed and neglected to make Riggio an original defendant, and for that reason the whole proceeding in replevin is void. Riggio claims that he has a lien for the work and labor done upon the truck, and that the plaintiff cannot prevail in this action until the said lien has been discharged.

The questions raised, therefore, are:

1. Whether the fact that Riggio was not made an original defendant invalidates the proceeding.

2. Whether a lessee can, by agreement with a repairman, impose a lien upon leased personal property without the consent of the owner.

3. Has Riggio violated the Act of June 28, 1917, P. L. 645, in that he has conducted business under an assumed or fictitious name without filing a certificate required by that act, and, if so, is he precluded from interposing a defence in this action?

1. Riggio was allowed to intervene as defendant prior to the filing of the plaintiff’s statement of claim, which was duly served upon him and to which he has filed an affidavit of defence. His rights have been as fully protected as if he had been made an original party defendant. We know of no act of assembly, and our attention has been called to none, which would invalidate the proceeding for the failure to make him an original defendant, as alleged in the affidavit of defence.

2. Can the lessee of an automobile impose a lien upon it for repairs without the consent of the owner? There is no doubt that where an owner secures repairs upon a chattel the repairman has a lien at common law, and has the right to retain the chattel until his charges are paid: 2 Kent, 635; McSorley v. Thompson Co., 67 Pitts. L. J. 664. But this right has not been extended so as to allow a lessee, without the knowledge and consent of the owner, to impose a lien for repairs upon a chattel, which lien the owner would be required to discharge before securing possession. In the case of Stern v. Sica, 66 Pa. Superior Ct. 84, the facts are very similar to those in the case before us, and all of the questions raised in this case were considered. It was there held that “where a lease of an automobile for a certain term at a weekly rental provides that the automobile shall be returned at the termination of the lease ‘in as good condition’ as when delivered, but gives the lessee no right to impose a lien upon it for repairs, and after a period the lessee defaults in the payment of rental, a repairman who has possession of the automobile when the default occurs cannot claim a lien upon it for repairs ordered by the lessee, or withhold it from the possession of the lessor until his charges are paid.” The lease in the case at bar provides: “Any equipment, attachments, accessories or repairs placed upon said vehicle shall become a component part thereof, but the lessor shall not be obligated to pay for same unless lessor stipulates so to do in writing. Lessee shall keep said vehicle free and clear of all liens of any nature whatsoever, including State, Federal and local taxes. . . . Lessee agrees to surrender said vehicle to lessor at the expiration of this lease in as good condition as when he received it, natural wear excepted.”

We can find no distinction between the case at bar and the case of Stern v. Sica, 66 Pa. Superior Ct. 84.

It, therefore, follows that J. L. Riggio, the intervening defendant, does not have a lien upon the motor-truck for repairs made at the instance of A. T. Raffensperger & Son, the lessee, without the knowledge and consent of the owner, which he can assert against the owner, and that the affidavit of defence attempting to assert such lien is insufficient to prevent judgment or the delivery of the truck to the plaintiff.

3. In view of the conclusion that the intervening defendant has no lien which he can assert against the owner, it is unnecessary now to decide whether J. L. Riggio is precluded from interposing a defence because he was conducting business under the name of the Sunshine Garage without having registered that name in the office of the Secretary of the Commonwealth, as required by the Act of June 28, 1917, P. L. 645, as amended by Act No. 227, approved May 10, 1921.

For the reasons above stated, the affidavit of defence filed by J. L. Riggio, intervening defendant, is hereby adjudged insufficient, and judgment is directed to be entered in favor of the plaintiff and against A. T. Raffensperger & Son, defendants, and J. L. Riggio, intervening defendant.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Prather, P. J.,

text:
    Wheeler v. Payne.

      Contract — Sale — Executory contract — Delivery — Destruction of goods before delivery — Passing of title.

    Where a barn full of hay on the seller’s premises was sold under a parol agreement that the buyer was to press the hay and the seller was to board the men who did the work, and the language used could have no other meaning than that the hay was bought upon condition that, when baled, the buyer might reject that which was unsalable, title did not pass until delivery, and if the hay was destroyed by fire before delivery, the loss was that of the seller.
    Rules for new trial and for judgment n. o. v. on question reserved. C. P. Crawford Co., Sept. T., 1918, No. 107.

      Albert L. Thomas and Terrance E. Henratta, for plaintiffs.

      Frank J. Thomas and Otto Kohler, for defendant.
    April 4, 1921.
   Prather, P. J.,

This was an action brought by plaintiffs to recover the purchase price of a quantity of hay alleged to have been sold in February, 1918, to defendant, and which was consumed by fire, June 12, 1918, before it was actually delivered. Baling of this hay was begun on June 12th, and about two-thirds of it baled; the fire came that night and burned up the press and all the hay, baled and otherwise.

The bargain relied upon as constituting a sale and delivery of the hay in question, as narrated by Elmer Wheeler, plaintiff, as taken from his testimony, is: “He (defendant) told me — I says: ‘Are you about ready for that hay?’ He said, ‘yes,’ and I said: ‘Hosiers are pressing hay at $20 a ton.’ He says: ‘Is that so? — ‘Yes, sir, that is so.' He says: T can give you as much as any living man.’ I said: ‘Then you can have my hay for $20 a ton, and I will board you and you put it on the car.’ — ‘All right,’ he says.”

This he testifies took place at the house of the defendant one evening the latter part of February, 1918. He also testifies that defendant gave him a check for $100 to apply on the purchase price of this hay.

Capitola Wheeler, his wife, corroborates the testimony of her husband as to this.

All of this is flatly contradicted by five members of defendant’s family, who say that they heard the conversation had between the parties, and the subject of buying and selling hay was not mentioned.

At this point we may observe that defendant’s contention that this conversation did not take place and that he did not purchase this hay is, in our opinion, sustained by the decided weight of the evidence, which preponderance increases when the collateral and circumstantial facts are added thereto.

For this reason, a new trial should be granted, unless the legal question involved requires Judgment n. o. v. in favor of defendant.

For the purposes of this legal question we must consider the bargain made as plaintiff testifies, and then, in the light of its language and the conduct of the parties, inquire whether it is an executed contract.

(a) Does the language relied upon transfer the title to this hay from Wheeler to Payne?

(b) Was it the intention of the parties that it should?

In Woolsey v. Axton & Son, 192 Pa. 526, 530, the Supreme Court said: “They (many authorities) undoubtedly hold that a contract for the sale of a chattel may be fully executed while the actual possession remains in the vendor; but in all such cases the intention of the contracting parties, that a constructive delivery shall immediately take place, is either expressed or implied.”

We think the court’s continuing remark, “The implication from this contract and the circumstances is directly the reverse,” is quite applicable to the facts now before us.

A vendor may retain possession of a chattel for purposes of collecting payment therefor after the right to the property under the contract has passed to the vendee: Ballentine v. Robinson, 46 Pa. 177; Henderson v. Jennings, 228 Pa. 188.

“An absolute payment in cash ... is always implied when nothing is said” concerning the time or manner of making payment: Benjamin on Sales, § 706.

In our ease no agreement was made as to credit.

“No agreement having been made for a credit, it was, of course, a contract for a cash sale, and without actual delivery the property would not pass to the vendee until payment of the consideration:” Welsh v. Bell, 32 Pa. 12.

In Mitchell v. Zimmerman, 109 Pa. 183, it was held that the title to goods sold does not pass to the purchaser until the price is paid, unless payment is waived.

In Scott v. Wells, 6 W. & S. 357, Gibson, C. J., said: “Even where actual possession has not been taken, the ownership and risk pass by the contract, if nothing remains to be done to the property by the vendor (such as counting, measuring, weighing or filling up) to ascertain the number, quantity or weight. Thus, in Rugg v. Minett, 11 East. 210, turpentine had been sold at so much the hundredweight in casks, to be taken at the marked quantity, except two, out of which the others were to be filled up before delivery, and those two were sold as containing indefinite quantities. The buyer employed a person to do the filling, but before he completed it, the warehouse, with its contents, was destroyed by fire, and it was held that the property in those filled up had passed to the buyers, because nothing remained to be done to them by the vendors.”

In Winslow v. Leonard, 24 Pa. 14, the Supreme Court held: “Where the lawful form of contracting is pursued, the vesting of the title always depends upon the intention of the parties, to be derived from the contract and its circumstances.” See Com. v. Hess, 148 Pa. 98.

In Robb v. Zern, 42 Pa. Superior Ct. 182, plaintiff sold defendant three cows and three calves for $113, and received $3 hand-payment, and the purchaser directed the seller to keep the cows until he notified him to deliver them at a designated place. In the meantime, one of the cows died. Held, in an action by the seller to recover from the buyer, that the title did not pass till delivery, and seller could not recover. See, also, Brown v. Reber, 30 Pa. Superior Ct. 114.

In Gonser v. Smith, 115 Pa. 452, 460, the Supreme Court said:

“We understand that the plaintiffs were the owners of the lumber sold; that this lumber was actually manufactured and placed in separate piles; that it was selected by the defendant, and distinctly marked and designated. As the exact quantity was unknown, an estimate was made by the parties for the purposes of sale; that bills of sale were prepared by the vendee, and were signed by the vendors, in which appropriate words were used to specify and designate the subject-matter of the sale, and to perfect the sale and title to the vendee. The defendant paid the earnest-money, gave his notes for the estimated amounts, and paid them as they became due; that portions of the lumber were shipped, from time to time, on his orders, and that he exercised, and continued to exercise, unquestionable rights of ownership over the lumber up to the time it was destroyed by fire.

“What we have here stated is the substance of the findings, and an examination of the evidence satisfies us that they were warranted by the testimony. Now, if there be any doubt as to the law governing this case, it may be dissipated by reference to Winslow, Lanier & Co. v. Leonard, 24 Pa. 14, where it was held that though the right of the vendor to rescind a sale because of the failure of the vendee, or his refusal to pay, continues so long as any weighing, measuring or other thing remains to be done on his part, yet this test does not apply to the question of the vesting of the title in a case where the vendor has no cause of rescission. It is further said in this same case that where the lawful form of contracting is pursued, the vesting of the title always depends on the intention of the parties, to be derived from the contract and its circumstances, and that actual delivery, weighing and setting aside are only circumstances from which the intention may be inferred. When these undoubted rules of law are applied to the defendant’s contention, it is found to have no substantial foundation. Not only selection and marking of the lumber, but the bills of sale and the delivery of the defendant’s notes expressed the fixed intention of the parties to make the sale a present and positive one.”

In Nicholson et al. v. Taylor et al., 31 Pa. 128, the contract of sale was in writing as follows:

“Sold Messrs. R. L. and C. L. Nicholson load of Pine Creek lumber within neighborhood of 5000 feet of plank, at $15.50 and expenses, take a note at 6 months, with interest T. B. Taylor & Co.

8 mo. 11th.”

Considering whether this was a contract executory or executed, the Supreme Court said: “The oral testimony left the case just as it found it, giving nothing in regard to the intention of the parties but what was contained in it (the writing).

The Supreme Court continued:

“No intention is to be drawn from a contract but what it expresses, when ‘here is nothing else to manifest it; so that the difference of terms in stating the proposition leaves the rule the same, namely, that so long as anything remains to be done as between the vendor and the vendee, for the purpose of ascertaining the amount and price of the article, the property and risk remains in the vendor; and it is not changed. . . .

“The lumber was to be measured before the price could be ascertained, so as to give the six months’ note for the payment. This was, in point of labor as well as in other particulars, an important item of the transaction. No time was set for the measurement or for giving the note, the latter being consequent only on the former; all showing that the contract was but executory in fact and intention. The property, therefore, remained in the vendor, and the plaintiffs had no legal right to recover its value in trover.”

In Nesbit v. Burry, 25 Pa. 208, we quote from the syllabi:

“Where the parties in a sale of cattle agreed upon the terms of sale and the mode of ascertaining the weight, but the stipulated means of weighing failed, and the vendor refused to adopt other means or to carry out the contract at all, such refusal would not vest the property in the vendee.

“Nor does the payment of a part of the price aid in vesting the title in the vendee, where the quantity is to be ascertained and there is no actual delivery.

“Under such circumstances, the contract is essentially executory. . . .” See Thompson v. Franks, 37 Pa. 327; Wilson v. Wilson, 26 Pa. 393; Lester v. McDowell, 18 Pa. 91; Fee v. Emporium Lumber Co., 50 Pa. Superior Ct 557, 564; Hires Co. v. Stromeyer, 65 Pa. Superior Ct. 241, 243.

Referring again to plaintiff’s bargain with defendant as narrated by himself: “I said: ‘Mosiers are pressing hay at $20 a ton.’ He (defendant) says: T can give you as much as any living man.’ I said: ‘Then you can have my hay for $20 a ton, and I will board you, and you put in on the car.’ ‘All right,’ he says.”

In another part of his testimony he testifies that defendant was to press the hay, and that he, plaintiff, was to board the men.

The distinction between an executory and an executed contract in the sale of chattels, as reannounced in Nicholson et al. v. Taylor et al., 31 Pa. 128, and its uniform approval, taken with its peculiar facts, seems to control the question now under consideration.

All that remained to be done between vendor and vendee in the Nicholson case was to ascertain by measurement the exact amount of lumber in a “load of Pine Creek lumber,” which was already estimated at 5000 feet.

In our case the hay was to be baled and the balers fed before the number of tons could be ascertained.

Some conceded facts aid us in determining the intention of our parties and. repel the conclusion that it was mutually understood that there was an executed contract:

(a) Is it probable that an ordinarily prudent man would buy a barn of hay and permit it to stand indefinitely under the assumption and intention that such purchase was to be considered a delivery, and, therefore, that he. assumed all the risk of loss by fire?

(b) Is it probable that defendant bought this barn of hay absolutely, never having seen the hay, never having inquired concerning its quality, and, therefore, was paying $20 a ton for it, regardless of its quality?

(o) Suppose that, upon baling this hay, it was discovered that one-half or any part was found to be unsalable and unfit for use, is it contended that defendant must pay for the unmarketable as well as the marketable hay?

(d) If vendee still retained the right to reject hay unfit for the market, then he bought the hay in question reserving the right of inspection, and the sale was not absolute, but executory.

I cannot conceive of any man so devoid of business sense that he would buy a product so uncertain in quality as hay without any knowledge of its condition and without any representation as to its quality.

Assuming that defendant bought this hay, as we must under the facts we are discussing, it is unbelievable that the condition of its salability was not reserved in the minds of the parties; hence, the conclusion follows it was bought upon condition that, when baled, vendee reserved the right to reject unsalable hay. Therefore, the bargain was but executory, and the title and possession was not changed; it was held at plaintiffs’ risk and plaintiffs cannot recover. It follows that upon the rule for judgment n. o. v. and upon the point reserved, judgment should be entered for defendant.

Order.

Now, April 4, 1921, upon the question reserved, whether there is any evidence upon which plaintiffs can recover, and upon motion for judgment n. o. v., rule for judgment n. o. v. absolute, and upon the question reserved judgment is directed to be entered for defendant upon payment of the jury fee.


author: Koch, J.,

text:
    Kuyalowicz v. Schuylkill Gas and Electric Company.

      Corporations — Merger—Misnomer of defendant corporation — Statute of limitations — Amendment of record — Act of May 1, 1852.

    The plaintiff’s son was electrocuted while employed by the S. Gas and Electric Co., Nov. 15, 1919. Suit was begun Nov. 10, 1920, but on June 3, 1920, that company was merged with others into the Pennsylvania Power and Light Co. On petition to quash the writ and petition of plaintiffs to amend the record so as to correct the misnomer: Held, (1) that there was no statutory requirement that the merger agreement and the letters-patent issued therefor must be recorded in each county where the respective constituent companies theretofore operated; (2) a certified copy of the agreement of merger was competent evidence thereof under the Acts of March 31, 1823, 8 Sm. Laws, 144, and of May 3, 1909, P. L. 408; (3) the Act of April 29, 1915, P. L. 205, continues unimpaired all rights of creditors and all liens against the property of the constituent companies in cases of merger; (4) the defence of misnomer might properly be set up by a rule to quash the writ; (5) under the Act of May 4, 1852, P. L. 574, a misnomer of the defendant corporation, whose officer had been properly served with the writ, might be amended by the court so as to correct the mistake in the name of the defendant, even after the statute of limitations had run.
    Rule to quash writ and petition to amend prtecipe, etc. C. P. Schuylkill Co., Jan. T., 1921, No. 36.

      Z. F. Rynkiewicz and A. D. Knittle, for plaintiff.

      M. M. Burke and Thomas J. Perkins, for defendant.
    July 25, 1921.
   Koch, J.,

The petition of the defendant, as a basis for quashing the writ in this case, assigns four reasons, to wit:

1. The above-named defendant was not at the commencement of this suit, and is not now, located or doing business in the Borough of Shenandoah, Schuylkill County, Pa.

2. There was not in existence at the commencement of this suit, and is not now in existence, any such corporation as that named in the writ as defendant, namely, “The Schuylkill Gas and Electric Company.”

3. The return of service by the sheriff of summons issued in this suit, as follows, “Served the within writ on the Schuylkill Gas and Electric Company, a corporation, at its office in the Borough of Shenandoah, by handing a true and attested copy of said writ to P. A. McCarron, Superintendent of said Schuylkill Gas and Electric Company, and then in charge of said office, and making known to him the contents thereof personally on Nov. 23, 1920. It having first been ascertained upon inquiry that none of the executive officers of said company reside in Schuylkill County,” is not in truth and fact correct, in this, that the said the Schuylkill Gas and Electric Company was not at the time of the commencement of said suit, or at the time said service was made, in existence, and that the said P. A. McCarron, named in said return as served, was not then superintendent of the said the Schuylkill Gas and Electric Company, the defendant above named.

4. At the time of the commencement of said suit, and at the time of said service, above-named defendant was not in law or in fact in existence, in that it had some time prior thereto, to wit, on June 4, 1920, been merged with The Lehigh Valley Light and Power Company, Northern Central Gas Company, Columbia and Montour Electric Company, Northumberland County Gas and Electric Company, The Harwood Electric Company, Pennsylvania Power and Light Company and Pennsylvania Lighting Company to form Pennsylvania Power and Light Company, as appears by joint agreement of consolidation and merger between the aforesaid companies creating the said Pennsylvania Power and Light Company dated April 12, 1920, filed in the office of the Secretary of the Commonwealth on June 2, 1920, and letters-patent duly issued thereon by the Governor under date of June 4, 1920.

The said P. A. McCarron made affidavit to said petition, and therein states: “That for some time, and up to its merger on June 3, 1920, he was superintendent of the Schuylkill Gas and Electric Company,” etc.

In answer to the rule, Joseph Kuyalowicz denies the averments in the first paragraph above quoted, and avers: “That the Schuylkill Gas and Electric Company is a corporation doing business in the Borough of Shenandoah,” etc. He denies the averments set out in the second paragraph of the petition and avers: “That the Schuylkill Gas and Electric Company’s charter is on file in the office of the Recorder of Schuylkill County, and under the law had corporate existence the day that suit was commenced.” He denies the facts set forth in petitioner’s third paragraph, and avers: “That the said P. A. McCarron, named in the sheriff’s return, was, at the time of the injury inflicted forming the basis of the named suit, the superintendant of the Schuylkill Gas and Electric Company.” He further denies the averments in petitioner’s fourth paragraph, and says: “That the charter of the Pennsylvania Heat and Light Company was not recorded in the office of the Recorder of Deeds in and for Schuylkill County. That the plaintiff has no knowledge that the Schuylkill Gas and Electric Company had consolidated or merged with any one or more companies to form the Pennsylvania Heat and Light Company. That if such consolidation was in fact intended, the plaintiffs had no knowledge of the same, because on the date of entry of suit as above, and up to and including the 14th day of January, 1921, no charter of the Pennsylvania Heat and Light Company was recorded in the office of the Recorder of Deeds of Schuylkill County.”

For further answer to the petition, Kuyalowicz says:

“1. That upon the date of the negligent act which forms the basis of the said suit, the Schuylkill Gas and Electric Company was in existence, and that thereupon the right of action accrued against it, and that the law regulating the formation and control of corporations provides that it shall continue its legal existence for the purpose of preserving the right of action or debt.

“2. That no act of incorporation or consolidation or merger of corporations under the law is completed until the charter has been recorded in the office of the county wherein it is sought to transact the principal business.

“3. The petitioner’s motion and rule to quash is defective and not in accordance with the Practice Act, 1915.

“4. The non-existence of the defendant is not a reason to quash, and is a matter of substantive defence.”

Testimony was taken in open court on the part of both sides in support of and against the said rule. At the beginning thereof the defendant offered the writ to show the return of service thereto, and the plaintiff objected on the ground that the defendant has proceeded in an improper way to attack the service of the writ, saying “that the Act of 1915 has abolished all pleas in abatement and all such matters, such as this, intended to attack the writ must be raised in an affidavit of defence raising principles of law.”

Before discussing the law of this rule, we will state the facts developed by the testimony. The endorsement'of the service on the writ is as follows: “Served the within writ on the Schuylkill Gas and Electric Company, a corporation of Shenandoah, Pa., at its office in the Borough of Shenandoah, Schuylkill County, Pa., by handing a true and attested copy of said writ to P. A. McCarron, District Manager of said Schuylkill Gas and Electric Company, and then in charge of said office, and making known to him the contents thereof personally on Nov. 23, 1920. It having been ascertained upon inquiry that none of the executive officers of said company reside in Schuylkill County. So answers. Joseph Wyatt, Sheriff.”

P. A. McCarron testified that when the writ was served on him he was not in the employ of the Schuylkill Gas and Electric Company, and that the said company then had no office in Shenandoah or anywhere else to his knowledge; also that he was at that time in the employ of Pennsylvania Power and Light Company, and that he was served with the writ in its offices in Shenandoah. He testified, on cross-examination, that the Schuylkill Gas and Electric Company was in existence in November, 1919 (the time of the accident), and that he was then its district manager, with his office in the Borough of Shenandoah; that his duties in the merged company are somewhat enlarged, and that the bills are sent out in the name of Pennsylvania Power and Light Company. The assistant secretary of the Pennsylvania Power and Light Company testified that the company’s main office is in Allentown, Pa., and that the Schuylkill Gas and Electric Company, the defendant in this case, was one of the merging companies making up the Pennsylvania Power and Light Company. The copy of agreement of merger and consolidation by and between the several companies forming “The Pennsylvania Power and Light Company,” certified by the Secretary of the Commonwealth, and also the letters-patent of the Pennsylvania Power and Light Company, were received in support of the rule, but against the plaintiff’s objection, on the ground that the originals were not recorded in Schuylkill County, and that a certified copy cannot be received in evidence. Plaintiff proved that neither the agreement of merger and consolidation nor the letters-patent are recorded in Schuylkill County.

The agreement of consolidation and merger is dated April 12, 1920, the letters-patent are dated June 4, 1920, whereas the writ was issued in this case on Nov. 10, 1920, and service made on Nov. 23, 1920.

The certified copy of the agreement of merger and consolidation is admissible and made competent as evidence by the provisions of the Act of March 31, 1823, 8 Sm. Laws, 144, and by the 4th section of the Act of May 3, 1909, P. L. 408. Nor do I find anything in the statutory law of this State which requires that a joint agreement of consolidation and merger of two or more merging companies and the letters-patent which issue therefor must be recorded in each county where the respective constituent companies theretofore chiefly carried on their respective operations. By the provisions of the General Corporation Act of April 29, 1874, P. L. 73, each corporation thereinunder incorporated by the Governor of the Commonwealth is required to record its “original certificate with all its endorsements, ... in the office for the recording of deeds in and for the county where the chief operations are to be carried on, and from thenceforth the subscribers thereto, and their associates and successors, shall be a corporation for the purposes and upon the terms named in said charter.” But when corporations of the second class have been created in accordance with law and then become merged by virtue of the provisions of an act entitled “An act authorizing the merger and consolidation of certain corporations,” approved May 3, 1909, P. L. 408, and its supplements, the certificate of agreement of the merging corporations and the letters-patent for the merged companies are not required to be recorded in the respective counties where each of the several merging corporations chiefly carried on its business theretofore. In the 3rd section of the said Act of 1909, as amended on April 29, 1915, P. L. 205, 206, it is provided that: “Upon the filing of said certificates and agreement, or copy of agreement, in the office of the Secretary of the Commonwealth, and upon the issuing of new letters-patent thereon by the Governor, the said merger shall be deemed to have taken place, and the said corporations to be one corporation under the name adopted in and by said agreement, possessing all the rights, privileges and franchises theretofore vested in each of them, and all the estate and property, real and personal, and rights of action of each of said corporations shall be deemed and taken to be transferred to and vested in said new corporation without any further act or deed.” Since no further act or deed is necessary, recording of the agreement of consolidation and the letters-patent is not required.

It being evident that a misnomer exists in this case, the defendant’s remedy at common law would have been by a plea in abatement, but now, since pleas in abatement are abolished by the “Practice Act, 1915,” P. L. 483, such defence must be made in an affidavit of defence. However, defence in that manner is not necessarily exclusive. Rules in Pennsylvania have become of enlarged operation and have been allowed where at common law a plea in abatement would have been the only remedy. In Parke Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, 457, the Supreme Court, in speaking of rules, said that: “. . . the constant tendency of modern practice has been to enlarge rather than to restrict their operation.” Again: “The practice of setting aside service on rule has the sanction of precedents sufficient to save it from being pronounced irregular in cases where it reaches the desired end without inconvenience or injustice to either party. See Parke v. Commonwealth Ins. Co., 44 Pa. 422; Hagerman v. Empire Slate Co., 97 Pa. 534; Hawn v. Penna. Canal Co., 154 Pa. 455; Fulton v. Commercial Travelers Accident Ass’n, 172 Pa. 117; Bailey v. Williamsport, etc., R. R. Co., 174 Pa. 114; Platt v. Belsena Coal Mining Co., 191 Pa. 215, and Jensen v. Phila. & S. Ry. Co., 201 Pa. 603.” Therefore, we conclude that the defendant has not mistaken its remedy here.

That the Schuylkill Gas and Electric Company became merged with other corporations to form the Pennsylvania Power and Light Company on April 12, 1920, for which letters-patent were issued on June 4, 1920, is beyond question. Such merger, ipso faeto, dissolved the Schuylkill Gas and Electric Company and made it non-existent. Therefore, it became no longer suable after June 4, 1920, and the issuance of the writ in this case on Nov. 10, 1920, was improper, because there was no one who could be served with the writ: Dalmas v. Philipsburg & S. Val. R. R. Co., 254 Pa. 9. But the plaintiffs were not without ample remedy after the merger, because merger acts always provide for such contingencies. In this case the Act approved April 29, 1915, P. L. 205, which is amendatory of an act entitled “An act authorizing the merger and consolidation of certain corporations,” approved May 3, 1909, P. L. 408, applies. It, inter alia, provides that in cases of merger, “. . . all rights of creditors and all liens upon the property of each of said corporations shall continue unimpaired, limited in lien to the property affected by such liens at the time of the creation of the same, and the respective constituent corporations may be deemed to be in existence to preserve the same, and all debts not of record, duties and liabilities of each of said constituent corporations shall thenceforth attach to the said new corporation and may be enforced against it to the same extent and by the same process as if said debts, duties and liabilities had been contracted by it.” What we have thus far said indicates that the rule should be made absolute and the writ quashed.

But, since the hearing and argument upon the rule to quash, the plaintiffs have filed a petition asking us “to amend the prascipe, the summons, the writ and all other parts of the record ... by adding thereto the name of the Pennsylvania Power and Light Company, a corporation, and, if necessary, to order new service of the said subpoena and writ and the issuance of an alias writ and service thereon.” When the petition was presented in open court, counsel, who appear de bene esse in this case, made objection thereto and argument was immediately heard on the part of both sides. The plaintiffs have not yet filed a statement of their claim, but from their petition for amendment we learn that they sue as the surviving and dependent parents of Andrew Kuya-lowicz, deceased, who was electrocuted when working for the Schuylkill Gas and Electric Company on or about Nov. 15, 1919. The petition further sets forth that this action was begun within a year from the date of Andrew’s death. We quote from the petition the following as explanatory of the reason for bringing this action against the Schuylkill Gas and Electric Company, to wit:

“That at the time of commencement of said action the plaintiffs, as a matter of fact and law, mistakenly believed that the Schuylkill Gas and Electric Company was in existence, such belief being founded upon the following facts:

“a. The defendant and his attorneys negotiated with an agent for the settlement of the claim for damages arising from the negligence of the defendant, said agent in all negotiations never disclosing to the plaintiffs or their attorney that the Schuylkill Gas and Electric Company had gone out of existence.

“b. The merger of the Schuylkill Gas and Electric Company was not recorded in the office of the Recorder of Deeds of Schuylkill County.

“o. The office of the Schuylkill Gas and Electric Company at the date of the injury was identically the same as that of the merged company at the time of bringing suit.

“d. The officers in charge of the Schuylkill Gas and Electric Company at the date of the injury occupied the same office at the date of bringing suit.

“e. The name of the Schuylkill Gas and Electric Company was the name entered in the directory of the Bell Telephone Company and the United Telephone and Telegraph Company at the date of bringing suit, and all telephone calls were made in that name.”

In the petition “the plaintiffs further allege that they have no knowledge, either actual or constructive, that the Schuylkill Gas and Electric Company had lost its existence by merger with any other companies.” The sixth paragraph of the petition is as follows: “That the writ issued in the above stated case to No. 36, January Term, 1921, was served upon P. A. McCarron, who, at the time of the death of Andrew Kuyalowicz, was the district manager of the Schuylkill Gas and Electric Company, and at the time of the service of said writ occupied the same office and still had charge of the operation of the plant formerly held by the Schuylkill Gas and Electric Company.”

It is apparent that if the writ in this ease be quashed, the plaintiffs will be barred from suit by the statute of limitations. The 7th section of the Act of April 25, 1850, P. L. 569, provides: “That the provisions of an Act passed March 27, 1713, entitled ‘An act for the limitation of actions,’ shall not hereafter extend to any suit against any corporation or body politic which may have suspended business, or made any transfer or assignment in trust for creditors, or who may have at the time and after the accruing of the cause of action in any manner ceased from or suspended the ordinary business for which said corporation was created.” But it is now of no avail: Gallagher v. Silver Brook Coal Co., 10 Schuyl. Legal Rec. 247. Now, as the right, of action in these plaintiffs is barred by the statute of limitations, may they be allowed to amend the record in the manner prayed for? The 2nd section of the Act of May 4, 1852, P. L. 574, provides that: “All actions pending or hereafter to be brought in the several courts of this Commonwealth, and in all cases of judgments entered by confession, the said court shall have power in any stage of the proceedings to permit amendments by changing or adding the name or names of any party, defendant or plaintiff, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.” It must be clear now from what proceeds in this case that a “mistake . . . has been made in the name” of the real defendant in this case. In the case of Heidelberg School District v. Horst, 62 Pa. 301, Horst sued the said school district to recover $800 which he had lent to it in 1865 to pay bounties to persons volunteering in the military and naval service of the United States. An act entitled “An act relating to the payment of bounties for volunteers in the County of Lebanon,” approved Aug. 24, 1864, P. L. 1001, legalized, made valid and binding upon the respective boroughs and townships in Lebanon County “all bonds, warrants or certificates of indebtedness issued or to be issued by the corporate authorities of any borough, or by the school directors, supervisors or board of election officers of any township, . . . for the payment of bounties to persons volunteering in the military or naval service of the United States.” It will be noted that whilst the school district could create the debt, the debt became binding, not upon the school district, but upon the township, and that as the liability was thus fastened on the township, it became necessary for Horst to sue the Township of Heidelberg instead of the school district. The defendant, therefore, made a point of this fact in its requests for the court’s instructions in its charge to the jury. The narr had two counts; the first count was based on the bond which had been signed by all the school directors, and the second count was based on money lent to the school district. In charging the jury, Pearson, P. J., inter oMa, said: “The plaintiff would be entitled to recover on the second count of the narr, and the record can be so amended as to make the action against Heidelberg Township instead of the school directors thereof. It is an amendment of mere form and will be permitted by the court, and the record may be treated as amended.” In affirming the judgment of the court below, the Supreme Court, per Agnew, J., inter alia, said: “This is an attempt to impale an honest debt on the sharp points of the law, which ought not to succeed, and we think the corrective power of the court is sufficient to prevent it. The President Judge of the court below struck at the root of the chief objection when he said he would treat the action as amended and as now in the name of the Township of Heidelberg. He had abundant evidence before him to justify the amendment, and ample authority also to be found in the following cases: Barnet v. School Directors, 6 W. & S. 46; Prescott v. Burgess, etc., of Duquesne, 48 Pa. 118; Robertson & Co. v. Reed, 47 Pa. 115; Barnhill v. Haigh, 53 Pa. 165. If not entered on the record, and if necessary, the amendment can yet be made.”

After the writer had read the case just referred to in the course of an examination of the rule now pending, he withheld disposing of the rule and asked counsel on both sides, in view of the last cited decision, to argue the question of this court’s duty under the circumstances of this case — whether or not we should first amend the record so as to correct the plaintiff’s mistake and then dispose of the rule. Argument was had pursuant to the suggestion, but before the argument began the plaintiff’s counsel presented the plaintiff’s petition to amend. The defendant’s counsel had previously received a copy of the petition and were prepared to argue against it, filing with their argument a well prepared lengthy brief. We will, therefore, proceed further to consider the plaintiffs’ petition at this time.

I will state the case of Wright v. Eureka Tempered Copper Co., 206 Pa. 274, in the language of the Supreme Court, to wit: “The Eureka Tempered Copper Company is a corporation that was engaged for a number of years in business in North East, Erie County. Its property was sold by the sheriff in 1896, and since then it has not done any business, but still exists as a corporation. In December, 1896, the Eureka Tempered Copper Works was chartered, and this corporation succeeded to the business of the copper company. In 1899, the plaintiff, while in the employ of the copper works, was injured, and in 1901, three days before his right of action was barred by the statute of limitations, he brought this suit to recover damages. Through a mistake of counsel, the defendant named in the writ was the copper company instead of the copper works. The service of the writ was made on the manager of the latter corporation, but the sheriff, following the words of the writ, returned it as served on the manager of the copper company. The error in the name was not discovered by the plaintiff until a few days after the statute of limitations had barred a new action. The plaintiff then obtained a rule to show cause why the record should not be amended by striking out the word ‘company’ and inserting the word ‘works,’ and on the same day the sheriff petitioned for leave to amend his return so as to show service on the manager of the copper works.” The court below discharged the rule to amend and dismissed the sheriff’s petition. Therefore, an appeal was taken and the judgment of the court below reversed with a procedendo. The Supreme Court said: “Statutes of amendment are liberally construed to give effect to their clearly defined intent to prevent a defeat of justice through a mere mistake as to parties or the form of action. Amendments, however, will not be allowed to the prejudice of the other party, where the statute of limitations has run, by introducing a new cause of action or bringing in a new party or changing the capacity in which he is sued: Trego v. Lewis, 58 Pa. 463; Com. ex rel. v. Dillon, 81* Pa. 41; Grier v. Northern Assurance Co., 183 Pa. 334; Peterson v. Delaware River Ferry Co., 190 Pa. 364; Garmon v. Glass, 197 Pa. 101. A party whose name it is asked to amend must be in court. If the effect of the amendment will be to correct the name under which the right party was sued, it should be allowed; if its effect will be to bring a new party on the record, it should be refused after the running of the statute of limitations.” The Supreme Court filed its opinion May 18, 1903. Therefore, by its action, the plaintiff was permitted to amend more than one year after the statute of limitations barred the action. As in that case, so in this, there can be no doubt that the plaintiffs intended to bring suit against the right party, but they made a mistake in naming the right party, and that was a mistake both of law and of fact. A court has the power to correct a mistake either of law or fact: Druckenmiller v. Young, 27 Pa. 97; Cochran v. Arnold, 58 Pa. 399; Pennsylvania R. R. Co. v. Keller, 67 Pa. 300; Leonard v. Parker, 72 Pa. 236; Heslop v. Heslop, 82 Pa. 537; Holmes v. Pennsylvania R. R. Co., 220 Pa. 189, 192. In this case the right party was served, to wit, P. J. McCarron, the manager of the Pennsylvania Power and Light Company, at the company’s place of business. We can here say, as the Supreme Court said in the copper company case: The mistake in bringing the suit was in the name of the party actually summoned and not in suing the wrong party, because there was no party by the name of Schuylkill Gas and Electric Company in existence. That company died upon its merger with other corporations, and it became impossible to sue it. By making service on McCarron, the right defendant was brought into court under the wrong name. Therefore, the party whose name it is asked to amend is in court, and, as the mistake is clear, the amendment should be allowed and the rule to quash the writ discharged. The plaintiffs and their counsel intended to sue the party who is liable to the plaintiff, and that party is now, and was at the time of suing, the Pennsylvania Power and Light Company. I think the power and light company is privy to the gas and electric company, for the former clearly succeeds the latter and stands in its stead, so far as the liabilities of the latter are concerned. It has become sponsor for the gas and electric company as to all its obligations and liabilities, both by virtue of the agreement of merger and by virtue of the statutory law of this State. Therefore, I think the effect of the amendment in this case is to correct the name under which the right party was sued. It is true that the power and light company is a new corporation, but it must not be overlooked that this new corporation is bound by the agreement under which it became formed, and that, by virtue thereof, it stands in the place of and for all its several constituent parts.

In McGinnis v. Valvoline Oil Works, 251 Pa. 407, the plaintiff was injured on March 19, 1911, and brought suit to recover damages from his employer, naming it as “The Valvoline Oil Works, Limited, a corporation.” More than three and one-half years afterwards the plaintiff learned that the defendant was a partnership association and not a corporation, and moved for leave to amend by striking from its name the words “a corporation” and adding in their stead the words “a partnership association.” The court below refused the amendment. Service of the writ had been accepted by the attorneys for “The Valvoline Oil Works, Limited,” for whom the plaintiff worked and in whose services he was injured, and at that time said attorneys also represented a corporation named “The Valvoline Oil Company,” with whom the plaintiff had no connection. The Supreme Court, on Jan. 6, 1916, reversed the court below and allowed the amendment to be made, notwithstanding the statute of limitations had then barred the right of action by nearly three years, because service had been made upon the right party, but under the wrong name.

And now, July 25, 1921, the rule to quash is discharged and the plaintiff is permitted to amend by naming the defendant as “Pennsylvania Power and Light Company” and by striking from the record the name “The Schuylkill Gas and Electric Company, a corporation of Shenandoah.”

From J. O. Ulrich, Tamaqua, Pa.


author: Ryan, P. J.,

text:
    Weaver v. Henninger.

      Sheriff’s sales — Setting aside — Standing of judgment creditor as except-ant — Inadequacy of price — Insufficient advertisement.

    1. A judgment creditor, whose lien has been discharged by a sheriff’s sale, which did' not produce sufficient funds to pay his judgment, has standing to complain of an irregular sale.
    2. A sheriff’s sale will be set aside where the price was inadequate, a bond is offered for a substantial increase on resale, and the following irregularities appear in the advertisement: (a) One messuage and two tracts are described as “two certain messuages and tracts of land.” (5) It does not state whether the tracts are contiguous, (c) It does not show upon which of the two tracts the messuage is situated, (d) While the description shows each tract to be bounded by a public road, it does not show whether it is the same road in each case, or what road, (e) It does not show the location of the property except by naming the township, county and state in which it is situated.
    Rule to set aside sheriff’s sale. C. P. Bucks Co., Sept. T., 1920, No. 12.

      Boyer & Vanartsdalen, for rule; C. William Freed, contra.
    Aug. 1, 1921.
   Ryan, P. J.,

The premises of the defendant, consisting of two messuages and tracts of land, situated in the Township of Springfield, Bucks County, and containing respectively 14 acres and 124 perches and 9 acres and 78 perches, more or less, were sold by the sheriff upon a writ of venditioni exponas at public sale to the plaintiff in the writ for $250. Plaintiff’s judgment was entered upon an exemplification from the records of the Court of Common Pleas of Northampton County on March 8, 1920, for $2200 and costs. Execution was issued thereon on July 22, 1920. The first lien upon said premises was a judgment for $500, with interest, held by E. P. Wilbur Trust Company, of South Bethlehem, Pa., and entered Sept. 20, 1917, which would be discharged by the sale. The said trust company has filed exceptions to the said sale and asked that it be set aside and offered to file its bond in this court to secure a bid of $1000 upon the property, if a resale shall be ordered. The plaintiff and purchaser objects that the exceptant, although a judgment creditor, is without standing to except to said sale. The decisions cited in support of the plaintiff’s contention do not sustain it. Solomon v. Parnell, 2 Miles, 264, is not in point. It holds that, after a sheriff’s sale and an acknowledgment and delivery of a deed by the sheriff, the court cannot interfere to vacate the acknowledgment and set aside the sale at the instance of the second mortgage creditor. Wray v. Miller, 20 Pa. 111, holds that, as the inquisition is designed for the benefit of the debtor only, he may allege a want of inquisition, and that circumstances may be such as to estop the defendant in an execution from doing so, as where, as in that case, he suffers the sale to be made by the sheriff without objection, the sheriff’s deed for the property sold to be acknowledged and delivered, afterward voluntarily abandons possession to the purchaser and acquiesces in the purchaser’s title for a long period thereafter. Crawford v. Boyer, 14 Pa. 380, therein cited, is to the same effect. In Klopp v. Witmoyer, 43 Pa. 226, where a sheriff’s sale was determined to be illegal and void, but the owner afterward ratified and confirmed it, it was held that the latter’s action was “equivalent to full precedent authority.” In the preceding cases, where it is held that the defendant only can complain, it is because he only is prejudiced by what has been omitted. A judgment creditor, whose lien has been discharged by a judicial sale and who must look to the fund created thereby for payment, has such an interest in the fund as to have standing to complain of a fraudulent or irregular sale which results in the creation of a fund too small to yield enough to pay him his judgment upon distribution, although the property at a fair public sale should have brought enough. See Wilbur Trust Co. v. Allam, 5 Northamp. Co. Repr. 357.

The exceptions will be entertained and considered upon their merits. They may be grouped as follows: (1) To the acknowedgment of the sheriff’s deed; (2) to the inadequacy of the price at which the property was sold; (3) to the irregularity of the advertisement; (4) to the method of conducting the sale of the property. The acknowledgment is conceded to be irregular, and the plaintiff has filed a petition for leave to amend it. The acknowledgment was made by the sheriff on Sept. 10, 1920, three days before the return-day of the writ upon which it was sold. It is, therefore, void. In view of the conclusion that we have reached, it is not necessary to say more in this connection than that the void acknowledgment does not constitute a ground of exception by this judgment creditor. That the price at which the property was sold, $250, was a grossly inadequate one cannot be seriously disputed. The sheriff’s inquisition appraised the property at $2146, and a witness, whose deposition was taken and filed herein and who is acquainted with the premises, values them at $1500. The exceptant offers to file its bond, guaranteeing that upon a resale, if ordered, a bid of $1000 will be made for the premises. Mere inadequacy of price alone, in the absence of irregularity or fraud, will not authorize the court to set aside a sheriff’s sale: Cake v. Cake, 156 Pa. 47; Ritter v. Getz, 161 Pa. 648; Hollister v. Vanderlin, 165 Pa. 248; Fidler v. Johns, 178 Pa. 112; Media, &c., Co. v. Kelly, 185 Pa. 131. Where, however, there is gross inadequacy of price, slight irregularities will justify the court, in the exercise of its discretion, in setting the sale aside: Media, &c., Co. v. Kelly, 185 Pa. 131. In Phillips v. Wilson, 164 Pa. 350, the Supreme Court approved as within the lines of sound judicial discretion the setting aside of a sheriff’s sale of a property for $195, where the application was accompanied by an offer to bid $1500 on a resale, and it appeared that counsel for a mortgage creditor had neglected to bid under a mistaken impression that the mortgage would not be discharged. A decree setting aside a sale upon the same grounds, where a property worth at least $2500 was sold for $400, was sustained in Stroup v. Raymond, 183 Pa. 279. Insufficient advertising is an irregularity which, coupled with a sale at a grossly inadequate price, will justify the court in setting the sale aside: Thomas v. Curren, 6 W. N. C. 432; Jane v. Storm, 6 Kulp, 74; Fidelity Insurance Co. v. Wilson, 13 Montg. Co. Law Repr. 184; Houghtaling v. Megahey, 19 Dist. R. 371. The advertisement in this case describes the premises as “two certain messuages and tracts of land.” The “improvements” enumerated and described mention but one dwelling-house, one barn with frame shed attached, one chicken-house and hog-pen, and “other outbuildings.” The dimensions of the buildings named are given. A messuage is defined by Bouvier as follows: “A term used in conveyancing and nearly synonymous with dwelling-house.” In 27 Cyc., 484, it is declared to mean “a house, or in legal acceptation, dwelling-house with the adjacent buildings and curtilage; a dwelling-house with some adjacent land assigned to the use of it.” The sheriff’s advertisement here mentions two messuages, but describes but one. It does not state whether the two tracts are contiguous, or, if there is but one messuage, upon which of the two tracts it is situated. While the two tracts are described by metes and bounds and each as bounded by a public road, it does not appear whether it is the same public road in each case, or what public road. It is not sufficient to say only that these tracts of land are situated in “the Township of Springfield, County of Bucks and State of Pennsylvania.” They should be so described as to be easily and certainly identified from the description, which is its purpose. For these reasons, we conclude that the advertisement was insufficient, and the sale must be set aside. It is unnecessary to consider the other exceptions.

And now, to wit, Aug. 1, 1921, it is ordered that if the exceptant, E. P. Wilbur Trust Company, of Bethlehem, Pa., shall, within ten days from this date, file in this court its own bond in the sum of $2000, conditioned that it will assure a bid of $1000 for the said premises upon a resale of the same, the rule to show cause why the sheriff’s sale of the same on Sept. 10, 1920, should not be set aside will be made absolute, otherwise the said rule will be discharged, at the eosts of the exceptant.


author: Barber, P. J.,

text:
    Leslie v. Lehigh Valley Railroad Company.

      Workmen’s Compensation Act — Interstate commerce — Railroad car carried between points in this State over a road partly in another state.

      1. Claimant, while employed as a brakeman by the defendant company in its yards at Paekerton, Pa., fell from a car and was injured. This car was consigned to Philadelphia over a connecting road which passed through another state: Held, that he was engaged in interstate commerce, and not within the Workmen’s Compensation Act.
    2. To bring the transportation within the control of the State as part of its domestic commerce, the subject transported must be under the exclusive jurisdiction of the State during the entire voyage.
    Appeal from decision of the Workmen’s Compensation Board upon Claim Petition No. 5128. C. P. Carbon Co., Oct. T., 1918, No. 10.

      C. G. Setzer, for claimant; J. C. Loose, for defendant.
    July 12, 1921.
   Barber, P. J.,

This is an appeal by the Lehigh Valley Railroad Company, defendant, from the decision of the Workmen’s Compensation Board, filed June 12, 1918, affirming the award of the referee.

The claimant, William J. Leslie, was, on Dec. 24, 1917, employed as a brakeman by the defendant company in its yards at Paekerton, Carbon County, Pennsylvania.

Claimant, while so employed, in attempting to jump from a box-car, identified as Norfolk & Western, No. 64739, to another car upon an adjoining track, fell and sustained injuries for which he seeks compensation.

This car had been received, along with others, on the previous evening from some point in Pennsylvania on the Mahanoy & Hazleton Division pf defendant’s road, and, at the time of the accident, was attached to four or five other cars, none of which were identified, nor was the ear to which claimant attempted to step when he fell.

The destination of this Norfolk & Western car No. 64739 was the City of Philadelphia, and it was one of a train moved over defendant’s road from the Packerton yard across the Delaware River to yards at Phillipsburg, in the State of New Jersey, and there delivered to the Pennsylvania Railroad Company, by which company it was carried through the State of New Jersey for a distance not found to a point near Bristol, then across the Delaware River into Pennsylvania and on to the City of Philadelphia.

Under these facts, not disputed, defendant denies liability upon the ground that claimant, at the time of his injury, was engaged in interstate commerce. The only finding we have in relation to the nature of the employment of claimant at the time of the injury is that on the evening of Dec. 24, 1917, while engaged in handling this Norfolk & Western car No. 64739 in defendant’s yard, he fell and was injured. The award of the referee affirmed by the board must, therefore, be sustained or set aside as we determine from this single finding whether claimant was or was not engaged in interstate commerce.

The board allowed the claim, relying upon the case of Com. v. Lehigh Valley R. R. Co., 129 Pa. 308, affirmed in Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192, 36 L. ed. 672 (1892). This was a corporation tax case, and in the later case was limited to the question therein involved, and neither followed nor applied in commerce cases.

In the case of Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902), goods were shipped on a through bill of lading from Fort Smith, Arkansas, via Spiro, in the Indian Territory, to Grannis, Arkansas. The court say: “The transportation of these goods certainly went outside of Arkansas, and we are of opinion that in its aspect of commerce it was not confined within the state. . . . No one contends that the regulation could be split up according to the jurisdiction of state or territory over the track, or that both state and territory may regulate the whole rate. There can be but one rate, fixed by one authority, whether that authority be Arkansas or Congress.”

The following from the opinion of Mr. Justice Field in Pacific Coast S. S. Co. v. Railroad Commissioners, 18 Fed. Repr. 10, 13, is then quoted as disposing of the case at bar: “To bring the transportation within the control of the state as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive jurisdiction of the state:” Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902).

The opinion then continues: “There are some later decisions contrary to those last cited (giving a list). But these decisions were made simply out of deference to conclusions drawn from Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192, 36 L. ed. 672 (1892), and we are of opinion that they carry their conclusions too far. That was the case of a tax, and was distinguished expressly from an attempt by a state directly to regulate the transportation while outside its borders. And although it was intimated that, for the purposes before the court, to some extent commerce by transportation might have its character fixed by the relation between the two ends of the transit, the intimation was carefully confined to those purposes. Moreover, the tax ‘was determined in respect of receipts for the proportion of the transportation within the state.’ Such a proportioned tax had been sustained in the ease of commerce admitted to be interstate. ... We are of opinion that the language which we have quoted from Mr. Justice Field is correct.”

The case of Wilmington Transportation Co. v. Railroad Commission, 236 U. S. 151, 59 L. ed. 508 (1915), involved the right of a state to prescribe rates for transportation between two points of the same state over a course which traversed the high seas. The court sustained the right of the state, in the absence of any Federal regulations unconnected with railroad transportation, but say (236 U. S. 151, 155, 156, 59 L. ed. 517) : “There is no passage through the territory of another state; the transportation, in its entire course, is subject to a single authority — either that of Congress or that of the state — and the latter would yield to the exercise of the former. The sovereignty of no jurisdiction is encountered. . . . And the same conclusion has been reached with respect to the fixing of rates for railroad transportation which, while beginning and ending in the same state, passes through the territory of another state. The regulation of such rates cannot be ‘split up’ according to the jurisdiction of the respective states over the track; there must be one rate fixed by one authority, citing Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902).”

In Leibengood v. Missouri K. & T. R. R. C.o., 109 Pac. Repr. 988, 28 L. R. A. (N. S.) 985 (Kansas), may be found a full review of the Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192, 36 L. ed. 672 (1892), and Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902), cases, and in a note, L. R. A. 986, the editor says: -“As this is a matter on which the Supreme Court of the United States has the last word, and as this is its last utterance on the subject, it may now be laid down that transportation between points in the same state over a route, part of which is in another state, constitutes interstate commerce.” This note gives a long list of authorities following the case of Hanley v. Kansas City So. Ry. Co., and also a list of the cases in which a different conclusion was reached in deference to what was supposed to have been held in Lehigh Valley R. R. Co. v. Pennsylvania.

In Western Union Telegraph Co. v. Bolling, 120 Va. 413, 91 S. E. Repr. 154, a message was sent from one point to another in the same state, but in transmission passed over a line outside the state and required relaying. The court say (page 155 S. E. Repr.): “Since the case of Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902), there has been no dissent from the proposition that, although the point of shipment and the point of delivery are within the same state, if, during the course of transportation, property passed without the boundary of the state, such a shipment is interstate commerce.”

The above is cited in Bateman v. Western Union Telegraph Co., 93 S. E. Repr. 467 (N. C.), and in a note to the same case, reported in L. R. A., 1918 A, 803, supplementing the note in 28 L. R. A. (N. S.) 985, supra,, the editor cites and reviews the state and Federal commerce cases upon the question involved in this case.

Both the Federal Courts and our own Supreme Court have uniformly followed the case of Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902), upon the question of commerce, and the earlier case of Lehigh Valley R. R. Co. v. Pennsylvania is nowhere cited or followed as authority upon this question.

“Between Kansas City and the Joplin mining district there are three lines of railway. The Missouri Pacific between these points is wholly within the state, and the other two partly within and partly without the state, and, therefore, between the two Missouri cities of Kansas City and Joplin are doing an interstate business under the decision of Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902) St. Louis & S. F. R. R. Co. v. Hadley, 168 Fed. Repr. 317, 340.

“The shipment set forth in the bill began at Johnson, Washington County, and passed through three counties of this state, then entered the State of Oklahoma, all on complainant’s own line, and continued thereon to a point in Oklahoma, where it was turned over to a connecting line, the Kansas City Southern, and carried back into Arkansas, and on through that state to its point of destination at De Queen, Ark. That such shipment is interstate commerce is res adjudicada: Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902) St. Louis & S. F. R. R. Co. v. Allen, 181 Fed. Repr. 710, 715.

“If merchandise is consigned from one point in a state to another point in the same state, but in transit carried through a portion of another state, the transaction constitutes interstate commerce:” United States v. Erie R. R. Co., 166 Fed. Repr. 352, citing Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333 (1902); Poor v. Iowa C. Ry. Co., 155 Fed. Repr. 226.

“Objection is also made that the state courts are without jurisdiction of an action for unlawful discrimination in freight rates as to such part of the coal which was shipped plaintiff from the Pennsylvania anthracite mining regions by a route which extended for a part of the way into the State of New Jersey, the contention being that jurisdiction over such shipments is without the exclusive province of the Federal Courts. . . . This question was decided in the negative in Com. v. Lehigh Valley R. R. Co., 129 Pa. 308, and affirmed in Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192. It appears in that ease the matter objected to was taxation on transportation receipts on goods hauled between points within the State, but passing for a short distance outside the State. This case was commented on and limited in its effect by the United States Supreme Court in Hanley v. Kansas City So. Ry. Co., 187 U. S. 617. It was there pointed out that the Lehigh Valley R. R. Co. case (145 U. S. 192) was merely one of a local tax on property within the State, based on receipts from transportation wholly within the State, and without including receipts on property which passed outside its borders in the course of carriage between intrastate points. The rule laid down in the Hanley case has been followed in later cases: West Virginia Rail Co. v. Baltimore & Ohio R. R. Co., 26 I. C. C. Reps. 622; United States v. Del., Lacka. & Western R. R. Co., 152 Fed. Repr. 269. In the latter case it was held the word ‘wholly,’ as used in the provision of the Interstate Commerce Act, which declares it shall not apply to ‘transportation of property or to the receiving, storage, delivery or hauling of property wholly within one state,’ includes within the act shipments which pass outside the state in the course of their journey between points within:” Hall v. Pennsylvania R. R. Co., 257 Pa. 54, 72, 74.

Many more cases might be cited from the above, and notes upon the same, but the authorities quoted are amply sufficient under the admitted facts to sustain defendant’s contention that claimant, at the time of his injury, was engaged in interstate commerce, and that the award of the referee should be set aside.

Decree.

And now, July 12, 1921, the appeal taken and exceptions filed by defendant June 21, 1918, in the above case are sustained, the award of the referee, affirmed by the Workmen’s Compensation Board, set aside, and judgment directed to be entered in favor of the defendant.


author: Hassler, J.,

text:
    Brown v. Brown.

      Divorce — Vacation of decree — Want of jurisdiction — Collusion.
    1. A respondent who entered an appearance In divorce proceedings, though it was subsequently withdrawn, cannot have the decree set aside for lack of jurisdiction, on the ground that neither the libellant nor the respondent was a resident of the county in which the suit was brought.
    2. A respondent who entered into an agreement with the libellant not to resist the divorce cannot have the divorce set aside for collusion.
    Divorce. Rule to vacate decree. C. P. Lancaster Co., Aug. T., 1920, No. 88.

      Charles G. Baker and Byron, Long bottom & Pape, for rule.

      E. M. Gilbert, contra.
    July 2, 1921.
   Hassler, J.,

A divorce was decreed in this case on Nov. 13, 1920. On March 12, 1921, the respondent filed her petition asking that the decree be vacated and set aside and the respondent let into a defence, alleging as her reasons why this should be done, first, that the libellant was not a resident of this county at the time he filed his libel on July 16, 1920, nor at any time since then; and, second, that the divorce was obtained by collusion between herself and the libellant.

We are fully satisfied from an examination of the depositions taken on the rule granted on this petition that the libellant did not live in the County of Lancaster at the time he filed his libel nor since then. He was employed in the City of Philadelphia for many years, and resided there for seven years with the respondent on North 25th Street, and after they separated, in March, 1920, at No. 2553 Silver Street, Philadelphia. During all that time he was employed in the City of Philadelphia. He was registered in the City of Philadelphia in September,. 1920, having signed the necessary papers alleging that he was a resident of that city. He voted there in May, 1920, and in November, 1920. It does not appear that he spent any time in Lancaster at all. He was called in cross-examination, and instructed by his attorney not to answer very important questions that would have thrown light on his place of residence. He did not testify that he lived in Lancaster, but did say that he had his home at his sister’s residence, No. 317 South Queen Street. Prom these facts we are satisfied, as we have said, that he was not a resident of this county when he filed his libel, and has not been since then.

It appears, however, that a subpoena was served on the respondent, that she employed counsel, who entered an appearance for her and filed a petition asking for a bill of particulars. This was subsequently withdrawn, and libel-lant proceeded ex parte and obtained the decree complained of. The Act of March 13, 1815, § 2, 6 Sm. Laws, 286, requires the libellant to present his libel in the Court of Common Pleas of the proper county where the injured party resides. This has subsequently been amended so that it may be presented in the Court of Common Pleas of the county where the respondent resides. The respondent does not live in this county.

It has been decided, however, in Newbold’s Appeal, 2 W. N. C. 472, that if a respondent, without objection, comes into the court where the libel has been filed, even though it is not the county where the libellant or respondent resides, the court will have jurisdiction. In Nagle v. Nagle, 3 Grant, 155, the libel was filed in a county other than that wherein it should have been filed under the Act of 1815. The respondent entered an appearance and filed an answer, which was subsequently withdrawn. A decree of divorce was entered and a petition filed to vacate it on the ground of want of jurisdiction of the court. In delivering the opinion, Chief Justice Lewis said: “What is this but the trial of a local suit in the wrong county? Conceding for the argument, but without deciding the point, that the wife ought to have filed her libel for divorce in the county where her husband resides, the right of the husband to a trial in that county was a personal convenience, which he might waive. The objection touches his privileges rather than the jurisdiction of the court, for the latter extends over the subject-matter of divorces. In this case the service of the subpoena was accepted by the husband without objection, and an answer was filed denying the allegations of the libel, and praying that it may be dismissed with costs for that reason. A replication to his answer was also accepted, and issue joined upon it by the husband. In this condition the cause was continued for more than two years. When the court was about to proceed to the trial, the answer was withdrawn, and a plea to the jurisdiction was filed. The plea is not in the paper-book, and it is alleged that it has been lost. We have, therefore, no means of knowing what facts were set forth in it. If it contained nothing but an allegation that the parties resided in Berks County at the time of the injury, and that the libellant has ever since resided in Schuylkill County, it was properly overruled. After delaying her for so long a period of time, and putting her to the trouble of preparing her cause for trial in Schuylkill County, it would have been grossly unjust to turn her out of court on such an objection.”

We are of the opinion from these authorities that even though this court had no jurisdiction to have entertained the proceedings for a divorce in this case, it was given jurisdiction to decree a divorce by the respondent entering an appearance and taking part in the proceedings.

The second reason given is that the divorce was obtained by collusion between the parties. She alleges that the libellant called on her, after her attorneys had asked for a bill of particulars in the case, and told her that he wanted to obtain a divorce and would remarry her as soon as he had obtained it; that it was known that he had applied for it, and if he withdrew the proceedings he would be made an object of ridicule, and it was on that account that he desired to proceed with it to the end. Upon this representation she instructed her attorneys to withdraw their appearance and take no further action in resisting the divorce.

Section 2 of the Act of March 13, 1815, 6 Sm. Laws, 286, provides that an affidavit to the libel must show that the facts are true, and that it is not made out of levity or by collusion between the libellant and respondent. In Liem v. Liem, 5 Kulp, 178, Judge Rice decided that an order to set aside a decree in divorce should not be granted on the allegation that libellant had paid the respondent $100 on condition that she would not oppose the application for divorce nor make defence to it, unless it was shown that such collusion was made before the petition was filed. It was shown that the money was paid a considerable time after the filing of the petition. In Kuhn v. Kuhn. 65 Pitts. L. J. 398, it was decided that a divorce will not be vacated when there was an appearance by the respondent, a bill of particulars asked for, and the only allegation to set aside is that the testimony was false and perjured.

In Field v. Field, 67 Pa. Superior Ct. 355, where two applications were made to vacate a decree in divorce, Judge Williams said: “The first petition did not set up collusion, and the second clearly alleged it. But the agreement alleged by the petitioner to furnish consideration for his acquiescence in the divorce is contrary to public policy: Kilborn v. Field, 78 Pa. 194; Mathiot’s Estate, 243 Pa. 375. It is clear that petitioner was not entitled to relief even if a fraud was committed. His prayer was addressed to the conscience of a chancellor, and his petition convicts him of being a party to, and a sharer in, the results of the fraud. He does not come into court with clean hands, and is not entitled to relief: Miltimore v. Militimore, 40 Pa. 151.”

While it is true that the prayer of the petition was refused in that case, partly because of the laches of the petitioner in applying to have the decree vacated, the reasoning applies with equal force to the position of the petitioner here. She does not come into court with clean hands. She entered into an agreement which was contrary to public policy, viz., to not resist her husband’s application to obtain a divorce. We do not think, therefore, that the petitioner has shown any reason why the decree entered in this case should be opened and vacated, and we, therefore, discharge the rule to show cause why it should not be done.

On exceptions, the following opinion was filed by

Hassler, J., Oct. 8, 1921. — We are not convinced that any error was committed by us in the opinion dismissing respondent’s petition filed in this case, and, therefore, refuse to change or modify it.

The exceptions filed are dismissed.

From George Ross Eshleman, Lancaster, Pa.


text:
    Pennsylvania-New Jersey Railway Co. v. Ellin.

      Equity — Injunction—Common carriers — Competing bus line — Certificate of public convenience — Interstate commerce.

    1. The court will grant an injunction upon the petition of a street railway company to enjoin the operator of a competing bus line from operating any autobus, etc., for the transportation of passengers for hire until such operator has obtained a certificate of public convenience from the Public Service Commission.
    2. The injunction will be granted even though the defendant’s autobus line extends into an adjoining state and is engaged in interstate commerce, if there is no Federal legislation inconsistent with the granting of the same.
    Injunction. G. P. Bucks Co., April T., 1921, No. 2, in Equity.

      Harman Yerkes, for plaintiff; Gilkeson & James, for defendant.
    July 11, 1921.
   Ryan, P. J.,

The bill prays for an injunction to restrain the defendant from the operation of an autobus, taxicabs or other vehicles for the conveyance of passengers and property for hire, between a point in the Borough of Morrisville, Pennsylvania, and a point in the City of Trenton, New Jersey, in competition with the plaintiff company, until the defendant shall obtain a certificate of public convenience from the Public Service Commission of Pennsylvania. In the absence of an answer or demurrer, the bill must be taken pro confesso.

Findings of fact.

From the pleadings and the evidence before the court upon the preliminary hearing the following facts are found:

1. The plaintiff is a street railway company, chartered under the laws of the State of Pennsylvania, and operates, manages and controls a street railway for public use in the conveyance of passengers and property, a part of which extends from the intersection of Pennsylvania Avenue and Bridge Street, in the Borough of Morrisville, over and along said Bridge Street to Mill Street; thence over and along Mill Street to Trenton Avenue; thence over and along Trenton Avenue and over and along the Calhoun Street Bridge, crossing the Delaware River, to Calhoun Street, in the City of Trenton, New Jersey; thence over and along said Calhoun Street to Hanover Street, and over and along Hanover Street to its intersection with Warren Street, in said city.

2. The defendant, at the date of the filing of the bill and for a period of about two years prior thereto, operated an autobus for the conveyance of passengers, as a common carrier, for profit, from .the intersection of Pennsylvania Avenue and Bridge Street, in the Borough of Morrisville, over and along said Bridge Street to the free public bridge across the Delaware River; thence along and over the same to the City of Trenton, New Jersey, and thence by Warren Street to Front Street, and by Front Street to Broad Street, in said city.

3. In the Borough of Morrisville the defendant operates his autobus over a route parallel with that of the plaintiff company for a distance of 300 feet, to wit, from the intersection of Pennsylvania Avenue and Bridge Street, along and over Bridge Street to its intersection with Mill Street.

4. The defendant’s autobus crosses the Delaware River about one mile below the Calhoun Street Bridge, upon which the plaintiff’s cars cross.

5. The route of the defendant’s autobus terminates at a point about two-fifths of a mile from the terminus of the plaintiff company’s railway, in the City of Trenton.

6. The operation of the defendant’s autobus was in competition with the business of the plaintiff’s railway, and resulted in a substantial and continuing diminution of its income from the conveyance of passengers between the Borough of Morrisville, Pennsylvania, and the City of Trenton, New Jersey.

7. No certificate of public convenience has been issued by the Public Service Commission to the defendant.

Discussion.

It clearly appears that the defendant’s business of transporting passengers from the Borough of Morrisville, Pennsylvania, to the City of Trenton, New Jersey, is interstate commerce, conducted in competition with the business of the plaintiff company. Congress is authorized to legislate with respect to this kind of passenger transportation, but has never done so: Chambersburg, Greencastle & Waynesboro Street Ry. Co. v. Hardman, Order Public Service Commission, 9 Pa. Corp. Repr. 355. In the absence of Federal regulation, the jurisdiction of the State over traifie within its borders necessarily remains. In Franke v. Johnston Fuel Co., 70 Pa. Superior Ct. 446, the Superior Court declares: “The power of Congress to regulate commerce among the states is supreme, and as to those subjects which require a general system or community of regulation, its power is exclusive, and in subjects admitting of diversity of treatment according to the special requirements of local conditions, although the states may act within their respective jurisdiction until Congress sees fit to act, when Congress does act, the exercise of its authority overrules all conflicting state legislation. Within these limitations, however, there remains in the state a wide field for the lawful exercise of authority appropriate to territorial conditions until Congress acts, although interstate commerce may be affected. Where the subject is one peculiarly of local concern, and from its nature belongs to the class with which the state appropriately deals in making reasonable provision for local needs, it cannot be regarded as left to the unrestrained will of individuals because Congress has not acted, although it may have such relation to interstate commerce as to he within the reach of Federal power.” It follows, therefore, that the defendant’s .business of transporting passengers for hire as a common carrier, so far as it is carried on within the borders of this State, is subject to the regulation and control of the Public Service Commission of this Commonwealth, under the Public Service Company Law, and may not be engaged in by the defendant without first obtaining from the commission the certificate ¡of public convenience provided for by the statute. In Chambersburg, Greencastle & Waynesboro Street Ry. Co. v. Hardman, Order Public Service Commission, 9 Pa. Corp. Repr. 355, Ainey, chairman, says: “That law does not prohibit common carriers of passengers or property from engaging in interstate transportation, but requires, in the interest of the public welfare and safety, that those proposing to engage in it within the Commonwealth shall first secure from this commission certificates of public convenience. The commission is charged with the duty of ascertaining in each instance, before granting a certificate, that public safety, convenience, necessity and accommodation are assured, and if the applicant fails by evidence to establish his personal fitness and qualifications, the sufficiency and adequacy of his equipment, his ability to provide for public convenience and the necessity for the service, etc., his application is refused; otherwise it is granted.” Where either an individual or a corporation attempts to engage in a line of business that is subject to the regulation and control of the Public Service Commission, without first obtaining from the commission its certified approval, which is a condition precedent to the carrying on of such business required by law, he or it may be restrained by the proper Court of Common Pleas from so doing until such certificate from the commission shall be obtained. In Bethlehem City Water Co. v. Bethlehem Borough (No. 2), 253 Pa. 333, the power of the court below to restrain by injunction the defendant borough from extending its water main into a locality served by the plaintiff company until the defendant obtained from the Public Service Commission a certificate of public convenience was sustained. In Pittsburgh Rys. Co. v. Pittsburgh, 260 Pa. 424, the city was enjoined from constructing several grade crossings across the tracks of the plaintiff company until the municipality obtained a certificate of public convenience from the commission. We, therefore, reach the following

Conclusions of law.

1. The business of transporting passengers for hire, between the Borough of Morrisville, Pennsylvania, and the City of Trenton, New Jersey, as carried on by the defendant, C. B. Ellin, at the time of the granting of the preliminary injunction, is unlawful.

2. The Public Service Commission of this Commonwealth has the authority to permit the carrying on of such business by issuing to the said C. B. Ellin a certificate of public convenience.

3. In the absence of such a certificate from the Public Service Commission, this court has the power to restrain the said C. B. Ellin by injunction from engaging in and conducting the business of transporting passengers and property for hire, between the Borough of Morrisville, Pennsylvania, and the City of Trenton, New Jersey, in competition with the plaintiff, Pennsylvania-New Jersey Railway Company.

4. The plaintiff, Pennsylvania-New Jersey Railway Company, is entitled to the relief prayed for.

And now, to wit, July 11, 1921, this cause came on to be heard at this term and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows: The preliminary injunction heretofore granted herein is made permanent, and the said C. B. Ellin, the defendant, is enjoined and restrained from operating any autobus, taxicab or other vehicle for the transportation of passengers and property for hire, as a common carrier, along and over Bridge Street, in the Borough of Morrisville, Pennsylvania, and the free bridge between said borough and the City of Trenton, New Jersey, between the intersection of Pennsylvania Avenue and Bridge Street, in said Borough of Morrisville, and the line between the States of Pennsylvania and New Jersey, provided, however, that if, on application to the Public Service Commission, a certificate of public convenience shall be granted to said defendant, this injunction will be dissolved. Let the pro-thonotary enter this decree nisi and give notice to the parties or their counsel.

Prom Calvin S. Boyer, Doylestown, Pa.