author: Stewart, P. J.,

text:
    Commonwealth v. Washington Township et al.

      Constitutional laiv — Piiblic Service Commission Act of July 26, 1913— Suits by the Commonwealth — Grade crossing — Procedure■—Road laiv.

    1. The Public Service Commission Act of July 26, 1913, P. D. 1374, is constitutional.
    2. Where a complaint has been filed with the Public Service Commission by the State Highway Department, alleging that a grade crossing should be abolished, and a hearing is had on the complaint, of which due notice was given to a township in which the grade crossing was located, and the commission assesses the costs of the proceeding among the State Highway Department, the county and the township, and thereafter due notice of the assessment is given to the township, the liability of the township is fixed, and subsequently the township cannot object that it should have been made a formal party to the suit.
    3. The Public Service Commission Act having conferred certain powers on the Public Service Commission, it has authority, under the police power, to abolish a grade crossing and compel a township to pay its share of the expense thereof, inasmuch as a township is merely a' subdivision of the Commonwealth.
    4. The Public Service Commission Act gives a right to any party affected to intervene, or to apply for a rehearing, or to appeal, and the remedies therein contained must be followed.
    5. Suits should be brought against a township, and not against its supervisors.
    Rule for judgment for want of sufficient affidavit of defense. C. P. Northampton Co., Nov. T., 1926, No. 106.

      George W. Woodruff, Attorney-General, and Charles P. Maxwell, for complainant.

      Kent & Rockwell, for defendants.
    Oct. 24, 1927.
   Stewart, P. J.,

This is a rule for judgment for want of a sufficient affidavit of defense. Although the suit was brought against a municipality, an agreement was filed, signed by the Deputy Attorney-General of the Commonwealth and the Supervisors of the Township of Washington, wherein it was agreed “that the same be submitted for the opinion of the court upon a rule for judgment for want of a sufficient affidavit of defense, the affidavit of defense heretofore filed in the said suit to be regarded by the court in every respect as if said Township of Washington (Northampton County), Jacob O. Fuls, Alvin Klein and Charles L. Brodt, supervisors, had been required by law to file the same or as if there were no exemption from the obligation of filing an affidavit of defense in the said suit.” The affidavit of defense therein referred to raised certain questions of law and set out certain facts which the defendants conceived to be a defense. If we understand the matter, the procedure was a friendly effort to obtain the opinion of the court upon the liability of a township under the facts set forth in the pleadings. We have not thought it proper or found it necessary to apply technical rules to the affidavit of defense. The first position taken by the defendants is that the suit was improperly brought by the Commonwealth. The Acts of April 7, 1870, § 3, P. L. 57, June 1, 1907, P. L. 383, and June 7, 1915, P. L. 876, contain ample authority for the Commonwealth, by the Attorney-General, to institute this suit and to his claim of 5 per cent, commissions. The proceedings in this case were instituted under the Public Service Commission Act of July 26, 1913, P. L. 1374, and its supplements. That the act is a proper exercise of the police power of the State and is constitutional appears from the discussions in many cases, two of which may be referred to, Relief Electric Light, Heat and Power Co.’s Petition, 63 Pa. Superior Ct. 1, and Com. ex rel. Attorney-General v. Benn, 284 Pa. 421. In the latter case, the syllabus is: “A Public Service Commission is an administrative arm- of the legislature, for the services performed by it are predominately legislative in nature. . . . The Public Service Commission is not a ‘court of record’ within the meaning of the Constitution of Pennsylvania.” The opinion of Mr. Chief Justice Mosehzisker, while the question involved in that case is an entirely different one from the present question, nevertheless shows the power of the Public Service Commission, and that its orders, when properly made, have the force and effect of acts of the legislature. The question in the present case, therefore, is what was done by the Public Service Commission and did it act lawfully? In the statement of claim it is alleged that on March 7,-1918, the State Highway Department filed a complaint with the Public Service Commission, alleging that a certain grade crossing, where a State highway crosses the tracks of the Delaware, Lackawanna & Western Railroad in the Township of Washington, was dangerous and should be abolished. The railroad company filed an answer, admitting that the crossing was dangerous. Defendants herein were not made parties to the proceedings, but due notice of the time and place of the hearing before the Public Service Commission in the matter of the said complaint was given to the township supervisors. The third paragraph of the statement of claim avers that: “On April 1, 1918, due notice of the time and place of the hearing before the said Public Service Commission in the matter of the said complaint was given to the Supervisors of said Washington Township by the said Public Service Commission.” The twenty-fourth paragraph of the affidavit of defense avers that: “The defendant admits the allegations in paragraph 3 of the complaint, but denies that such notice made the defendant a party to the proceeding inaugurated by said complaint, and the defendant further denies that notice of a hearing before a complainant and a respondent under Rule 2 of the Public Service Commission, as said rule was in force and effect at that time, made the defendant herein such a party to the said proceeding that an order could be made against it.” Defendants contend that, admitting that they had notice of the hearing, they were never parties to the record and that a mere notice could not make them parties. The defendants set forth in their affidavit of defense the rules that were in force in 1918 as Exhibit “C,” and contend that there is nothing in those rules that would compel the Township of Washington to take any part in the proceedings, and defendant further calls attention to the fact that on Feb. 28, 1921, the commission adopted the following rule, which is Exhibit “D:” “Whenever complaint is made that any grade crossing is dangerous and should be abolished, or that any overhead crossing, subway or underpass is dangerous or inadequate and requires reconstruction, relocation, alteration or abolition, the township, borough or city and the county concerned shall be named as parties; and shall be given due notice by the secretary of all hearings of such complaint.” It is not contended that this last-quoted rule applies to the present proceeding, but the argument is that its adoption shows that the Public Service Commission woke up to the fact that the method employed in the present procedure was illegal. No aid in the solution of this present matter can be gotten from the adoption of the rule of Feb. 28, 1921. We must consider the matter as it stood in 1918. The Public Service Commission was given certain powers by the Act of 1913, supra, and all persons, including the Township of Washington, defendant herein, are presumed to know what those powers were. In Paradise Township v. Public Service Commission, 75 Pa. Superior Ct. 208, the syllabus is: “A township in which is located a bridge carrying a state highway Over the tracks of a railroad company which has been declared dangerous by the Public Service Commission and ordered to be changed, is a ‘municipal corporation concerned,’ within the meaning of the Public Service Company Law. The Public Service Commission in such case has authority to require the township to pay a portion of the cost of the alteration and relocation of the crossing.” In his opinion, Linn, J., refers to the power of the commission as follows: “The general assembly declared that '. . . to the end, intent and purpose that accidents may be prevented and the safety of the public promoted,’ P. L. 1409, the commission should have ‘exclusive power to determine, order and prescribe in accordance with plans and specifications to be approved by it, the just and reasonable manner, including the particular point of crossing ... in which any public highway may be constructed across the tracks or other facilities of any railroad corporation or street railway corporation, at grade, or above or below grade, . . .’ P. L. 1409. It was given ‘exclusive power ... to order any crossing aforesaid now existing or hereafter constructed at grade, or at the same or different levels, to be relocated or altered or to be abolished, . . .’ P. L. 1409. The act provides that ‘. . . the expense ■of the said construction, relocation, alteration or abolition of any such crossing shall be borne and paid as hereinafter provided by the public service company or companies, or municipal corporations concerned, or,by the Commonwealth, either severally or in such proper proportions as the commission may, after due notice and hearing, in due course determine, unless the said proportions are mutually agreed upon and paid by those interested as aforesaid,’ P. L. 1410. ‘The term ‘municipal corporation’ as used in this act shall include all . . . townships, . . .’ P. L. 1376.” That case has been followed in a number of cases: Erie R. R. Co. v. Public Service Commission, 76 Pa. Superior Ct. 170, affirmed in 271 Pa. 409; Salem Township v. Public Service Commission, 76 Pa. Superior Ct. 374; and Marcus Hook Borough v. Public Service Commission, 87 Pa. Superior Ct. 210. In Knoll v. Harborcreek Township, etc., 86 Pa. Superior Ct. 423, where a grade crossing was abolished and a subway ■constructed, Trexler, J., said: “The Commonwealth may escape liability, but it may also assume it or impose it on the public service corporations or political subdivisions interested. There is nothing in the Constitution to prevent this.” He then quoted from the act itself, and said: “Here is a legislative act which fixes a method whereby the cost of eliminating grade crossings shall be apportioned and the commission is designated to carry out the details of the scheme. The counties and townships are subdivisions of the State, are agencies of the government, and, barring constitutional prohibitions, are entirely subject to legislative control. When such apportionment is made, the extent of the liability is fixed.” In Erie R. R. Co. v. Public Service Commission, 271 Pa. 409, the syllabus is: “Under the Act of July 26, 1913, P. L. 1374, as amended by the Act of July 17, 1917, P. L. 1025, in a proceeding to abolish a grade crossing, the Public Service Commission may order the municipality to pay the railroad company certain fixed sums and the latter to do the work, furnish the material and bear the remaining expense necessary for the elimination of the crossing. The only requirement is that the order be just and reasonable. The law does not require the total expense to be prorated among the respective parties upon a percentage basis. The authority to abolish grade crossings is founded upon the police power of the State to protect life and property.” It is perfectly plain, therefore, that the Public Service Commission had the power to abolish the grade crossing complained of and to impose 10 per cent, of the costs on this township. It is a question of power to impose the costs on the railroad company, or on the Commonwealth, or on the township after due notice of the hearing of the complaint. In the original act, in article 5, section 26, it is provided that “the commission may make such rules and regulations, not inconsistent with the law, as may be necessary or proper in the exercise of its powers or for the performance of its duties.” Again, it is provided in article 6, section 1, that “The commission shall be governed by such rules, not inconsistent with this act, as shall be adopted and prescribed by the commission.” Article 6, section 10, provides that the commission shall make a written finding, and section 13 provides that every final order of the commission shall be served upon each public service company affected thereby, and, further: “A certified copy of said order shall be mailed by registered mail to all other parties to the proceedings in which such order is issued, or their respective attorneys; but the failure of any public service company or of any party to the proceedings to receive such copy shall not prevent the said order from being conclusive and taking effect on the date specified therein, in accordance with its terms.” Section 14 gives the right to any party affected by the finding to apply for a rehearing, and the Acts of June 3, 1915, P. L. 779, and July 11,1917, P. L. 808, give a party a right to appeal within thirty days. In the present case, the record shows that the Public Service Commission, on June 10,1918, made a final order and by the terms of this order abolished the grade crossing, and by the terms of the order imposed 10 per cent, of the costs on the Township of Washington, defendant herein. On June 11, 1918, a certified copy of the said order was sent by registered mail to the Supervisors of the Township of Washington. The record also shows that the order of June 10, 1918, was amended by an order made May 26,1919, and that a certified copy of said amended order was also sent to the Supervisors of the Township of Washington by registered mail. The record also shows that after the township had neglected to pay its proportion of the bill for the cost of abolishing the grade crossing, on April 14, 1925, the Public Service Commission made an order directing the township to pay the Department of Highways the sum of $2779.36, and that on April 17, 1925, a certified copy of the last-mentioned order was sent to the supervisors. That item constituted the proportioned cost of the abolition of the grade crossing to be paid by the defendants. The record also shows that on Feb. 8, 1922, notice was given to the supervisors of said township of a hearing before the Public Service Commission upon the question of damages for the taking of land for the right-of-way for the new road. That hearing was not had, and, on July 11, 1922, notice of a hearing to be had on July 19, 1922, was given to the supervisors of said township. On Aug. 21, 1922, the Public Service Commission made an order, ordering the Township of Washington to pay to the County of Northampton $82.50, and, on Sept. 6, 1922, a certified copy of that order was sent by registered mail to the Supervisors of the Township of Washington. The receipt of all the above-mentioned certified copies of orders by the supervisors is admitted, except the affidavit of defense contains no reference at all to paragraph 9 of the statement, which alleges that a certified copy of the order of June 10, 1918, was mailed to the supervisors.

It cannot be doubted but what the defendants had full notice of every step in this procedure. Their entire reliance is based on the fact that the township technically was not a party to the proceedings. Where liability is imposed by an act of assembly such as we have in the present case, and where the Public Service Commission acted in strict compliance with all the terms of the law, the Township of Washington cannot escape payment of its debts. As we have shown above, they had notice of the procedure. The law gave them an opportunity to intervene, and if they were dissatisfied with the award, they had a right to appeal to the Superior Court, but they did absolutely nothing in the matter. We have not taken into consideration at all either the fact set forth in the affidavit of defense, that they were without counsel for a part of the time, nor that their counsel, when they did appear, only appeared for a special purpose, and that their appearance was not a general but a special one. Neither of these considerations affects the principle applicable to this case. It is also sought to interpose as a defense to the present proceeding that the original complaint proposed to eliminate a grade crossing 3000 feet south of the Martin’s Creek Junction, but that the Public Service Commission undertook to eliminate, at the expense of the Township of Washington, three grade crossings for the benefit of the railroad company. It is, perhaps, unfortunate that there was any reference in the pleadings made to the three additional crossings. We find in the affidavit of defense the answer of the railroad company, Exhibit “A.” In section E of that answer they aver that those three crossings should be abolished, but they say nothing about connecting the expense with that of the crossing which was 3000 feet south of the Martin’s Creek Junction. The Public Service Commission, in its report of June 10, 1918, by way of recital, referred to these three other grade crossings as follows: “In connection with this improvement, but not a part of this complaint, it is proper to state that at a point about 1000 feet north of the proposed crossing of the highway under the railroad, a township highway intersecting the State highway also crosses this railroad at grade, and, continuing northward within a distance of 3000 feet, crosses another branch of respondent’s line, running to Bath, twice, and thence continues on to Ackermanville. The respondent railroad company has made arrangements whereby this township highway is to be relocated and connected with the proposed relocated State highway, just north of the point where it crosses underneath the railroad at Pen Argyl Creek, thereby abolishing three grade crossings. The entire cost of the relocation of this township highway, including the reconstruction thereof and the payment of all damages to private property owners, has been assumed by the railroad company.” It would seem as if that question would be sufficient to eliminate those three grade crossings from the present suit, but the record further shows (see Exhibit “B” of defendants’ affidavit of defense) that the railroad company proceeded to have those three grade crossings eliminated in a separate proceeding, and the Public Service Commission, by an order made June 1, 1920, ordered their abolition at the cost and expense of the railroad company.

It plainly appears from the affidavit of defense that neither of the items for which the present suit is brought had any connection with the cost or expense of abolishing the three additional grade crossings. Again, it is contended that if the orders of the Public Service Commission are sustained, the township will have to raise money by a new method of taxation, contrary to the Constitution. The authorities quoted above amply demonstrate that townships are not distinct entities. They are the mere agents of the State, and are in all respects subject to the superior rights of the Commonwealth. As Judge Trexler said in Knoll v. Harborcreek Township, supra: “The Commonwealth may escape liability, but it may also assume it or impose it on . . . political subdivisions interested.” Again, he said: “When such apportionment is made, the extent of the liability is fixed.” A township has no vested rights in its revenues or funds. As agents of the State, they are mere collecting agents, and must respond when their liability is fixed. The same question arose in the case of State of Maryland v. Baltimore & Ohio R. R. Co., 3 Howard, 534. The syllabus of that case is as follows: “The State of Maryland, in 1836, passed a law directing a subscription of $3,000,000 to be made to the capital stock of the Baltimore and Ohio Railroad Company, with the following proviso: ‘That if the said company shall not locate the said road in the manner provided for in this act, then, and in that case, they shall forfeit $1,000,000 to the State of Maryland for the use of Washington County.’ In March, 1841, the State passed another act repealing so much of the prior act as made it the duty of the company to construct the road by the route therein prescribed, remitting and releasing the penalty, and directing the discontinuance of any suit brought to recover the same. The proviso was a measure of State policy, which it had a right to change if the policy was afterwards discovered to be erroneous, and neither the commissioners, nor the county, nor any one of its citizens acquired any separate or private interest under it which could be maintained in a court of justice.” In the brief for the plaintiff in error, the following quotation is interesting: “The county enjoyed great advantages before the construction of this road. One of the greatest thoroughfares in the country (the great national road) passed for fifty miles through her territory. Twenty four-horse stage coaches filled with passengers daily passed over the road, and it was constantly lined with immense wagon-teams, traveling to and from the great west. All these people and horses had to be fed. It was a most profitable market for our farmers. Houses were built all along the road to accommodate the custom. It is now all gone. The farmers lose the profits of their provender and marketing; the whole country feels the depression; and the houses which were a few years ago comfortable inns and profitable to their proprietors are going to decay, a dead loss. The million we seek to recover can never indemnify the county for the injury she has sustained.” Mr. Chief Justice Taney, in an elaborate opinion, held that there was no contract entered into and that no constitutional provision was violated. See, also, opinion of Mr. Chief Justice Fuller in Essex Public Road Board v. Skinkle, 140 U. S. 334, to same effect. These authorities conclusively show that there was no taking of the township’s property by the apportionment of the damages in this case and no constitutional rights of the defendant have been violated. Throughout this opinion we have spoken of “defendants,” and while the point was not raised, we think it was unnecessary to make the supervisors parties or to substitute a new supervisor when one died, as was done herein. The Act of April 15, 1834, § 3, P. L. 538, is as follows: “To sue and be sued as such by the corporate name of the county of -, or the township of -, as the case may be.” Section 1395 of “The General Township Act” of July 14, 1917, P. L. 840, provides: “In all suits against a township, process shall be served upon, and defense made by, the township commissioners or supervisors.” That act merely refers to the service of process. Suits should be brought as heretofore. This suit should be brought against the township, not against the supervisors, and judgment will only be entered against the former in this proceeding.

And now, Oct. 24, 1927, the defendants’ questions of law are all overruled, and judgment is entered in favor of the plaintiff and against the Township of Washington for want of a sufficient affidavit of defense for the sum of $3799.81.

From Henry D. Maxwell, Easton, Pa.


source: Caselaw Access Project

author: Stock, J.,

license: Public Domain

text:
    Wolf v. Dietz.

      Foreign attachment — Residence of defendant — Temporary absence.

    1. Foreign attachment is a remedy against debtors who are absent and nonresident.
    2. Mere absence of a debtor from this State while engaged in business will not render his property liable to foreign attachment, unless it appears from the circumstances that his removal from the Commonwealth was with an intention of remaining and obtaining a residence.
    3. A resident of the Commonwealth who sold his home and took up his residence with his daughter in the same town, where he kept his personal belongings in a room reserved for him, and subsequently worked in different states and was on his way by automobile to his home with his daughter at the time a foreign attachment was issued, is not subject to such attachment.
    4. A rule to quash a writ of foreign attachment is the remedy for defects or irregularities appearing on the face of the record; but this remedy may be used to attack the jurisdiction of the court where the want of jurisdiction is shown by depositions.
    Rule to show cause why writ of foreign attachment should not be quashed. C. P. York Co., April T., 1926, No. 178.

      J. E. Small, for rule; S. B. Meisenhelder, contra.
    Oct. 24, 1927.
   Stock, J.,

On March 25, 1926, plaintiff issued a writ of foreign attachment against defendant, attaching certain property of the defendant in the hands of Chauney Strong and summoning him as garnishee. Subsequently, a rule was granted on plaintiff to show cause why the writ of foreign attachment should not be quashed. Depositions were taken in support of said rule. The depositions established these facts:

Defendant, H. S. Dietz, was born in York County and lived in s'aid county during his entire life. In September, 1925, defendant sold his home, in the Borough of Hallam, York County, and took up his residence with his daughter, in said Borough of Hallam. At the time he moved to his daughter’s residence he took with him his bed, clothes, trunk, papers and other personal belongings. After remaining there three weeks, he went to Florida to hunt employment. After working in Florida at different places, he returned to his home in Hallam the latter part of March, 1926. At the time the writ of foreign attachment was issued he was on his way home from Florida, returning by automobile. Subsequently, defendant worked in New York City and in Philadelphia, returning each time to his daughter’s home in Hallam. During all of this time he kept his personal belongings at his daughter’s home in a room reserved for him.

Defendant, H. S. Dietz, was a resident of this county at the time the writ was issued.

Foreign attachment is a remedy against debtors who are absent and nonresident. Mere absence of a debtor from this State while engaged in business will not render his property liable to foreign attachment, unless it appears from the circumstances that his removal from the Commonwealth was with an intention of remaining and obtaining a residence: Fuller v. Bryan, 20 Pa. 144. His residence in this State continues until he has obtained another place of abode with the intention of remaining in it: Reed’s Appeal, 71 Pa. 378.

A rule to quash a writ of foreign attachment is the remedy for defects or irregularities appearing on the face of the record: Steel v. Goodwin, 113 Pa. 288. But this remedy has been used to attack the jurisdiction of the court where the fact of want of jurisdiction was established by depositions; as where a defendant was within the county at the time the writ was issued: Holland v. White, 120 Pa. 228.

And now, to wit, Oct. 24, 1927, rule to show cause why the writ of foreign attachment should not be quashed is made absolute, and the writ is quashed, ■at the costs of the plaintiff. From Richard E. Cochran, York, Pa.


author: Geoff, J.,

text:
    Commonwealth v. Moore.

      Common scold — Variance between complaint and indictment.

    1. The offense of being a common scold does not consist of a single act or a number of single acts, but is an habitual course of conduct. The element of continuity is essential. Therefore, an indictment for being a common scold cannot be founded on a complaint which alleges' individual acts of misconduct on the street without any continuity.
    2. An information must contain the essential elements of the offense set forth in the indictment.
    Indictment for being a common scold. Motion to quash indictment. Q. S. Lancaster Co., Nov. Sess., 1927, No. 5.

      Oliver 'S. Schaeffer, for motion.

      S. V. Hosterman, Assistant District Attorney, contra.
    Dec. 31, 1927.
   Geoff, J.,

This is a motion to quash an indictment found against Ethel Moore in the Court of Quarter Sessions of Lancaster County, charging her with being a common scold.

The offense of being a common scold does not consist of a single act, or a number of single acts, but in habitual course of conduct. Therefore, the element of continuity is essential, and there must be a habit or practice of scolding: Com. v. Foley, 99 Mass. 497.

She, through her attorney, files a motion to quash on the ground, among others, that the indictment in this case does not conform with the complaint and return and there is a variance in substance between the indictment and the information. The indictment purports to set forth the offense of a common scold, whereas the complaint charges the defendant, at most, with only disorderly conduct.

An examination of the complaint shows that it alleges individual acts of misconduct on the street, without any continuity whatsoever, thereby failing to set out the necessary elements to constitute a common scold.

“It is well settled that the information must contain all the essential elements of the offense, or an indictment based upon it will be quashed, even though such indictment does contain them:” Com. v. Loreman, 46 Pa. C. C. Reps. 252; Com. v. Hastings, 43 Pa. C. C. Reps. 332.

We feel that here the complaint does not sufficiently inform the defendant that she may be put on trial for the crime charged in the indictment, and we, therefore, believe that the motion to quash should be sustained, and the indictment is quashed.

Prom George Ross Eshleman, Lancaster, Pa.


author: Lamorelle, P. J., Henderson, J.,

text:
    Graham’s Estate.

      Wills — Trusts—Stock — Extraordinary stock dividends — Distribution — Effect of death of one of life-tenants before distribution.

    1. Where shares of stock included in a trust fund are increased after the death of testator and one of the life-tenants, by the issue of a special stock dividend of a merged company, without decreasing the value of the original shares as compared
    ' with their value at testator’s death, such special dividend is to be treated as income and distributed among those entitled thereto at the time the dividends were declared to the exclusion of the personal representative of the deceased life-tenant.
    2. It is immaterial that a portion of the earnings from which the stock dividend was declared may have accrued prior to the death of the deceased life-tenant, since the earnings or surplus belong to the corporation until distributed to the stockholders in the form of dividends, and it is the date of such distribution which must control. <
    Exceptions to adjudication. 0. C. Phila. Co., April T., 1900, No. 186.
    Thompson, J., Auditing Judge.— . . . This trust arose under the will and codicils of testator, who died Dec. 21, 1898, whereby he gave the residue of his estate to the Philadelphia Trust, Safe Deposit and Insurance Company as trustee, to pay the net income to be derived therefrom, three-fourths to his niece, Henrietta H. Dunne, during life, and upon her death, in case, she left no children or descendants her surviving — which event happened — (and certain provisions which could not take effect because of prior deaths), to pay the same to his nephew, John S. G. Dunne, and his grandnieces, Essie H. Dunne, afterwards Klink, Dorothy G. Dunne, afterwards Artis, and Henrietta Cherry, afterwards Barr, during life; and one-twelfth each of said net ’ income to said S. G. Dunne, and two-twelfths to Henrietta H. Dunne or her appointees after her decease, for his grandnieces, Essie H. Dunne and Dorothy G. Dunne, during life, with provisions to take effect upon the deaths of the persons entitled to said three-twelfths, not now'necessary to recite; and with limitation over of principal upon the death of all the life-tenants in equal shares to the Old Ladies’ Home at Wissinoming, the Home for Aged Couples and the Home of the Merciful Savior for Crippled Children. . . .
    Henrietta H. Dunne died Nov. 27, 1923, unmarried and without issue, leaving a will upon which letters testamentary issued to the Philadelphia Trust Company, executor, and whereby she gave the residue of her estate one-half to her brother, John S. G. Dunne, and one-fourth each to her nieces, Essie H. Klink and Dorothy G. Artis. She did not, however, appoint a trustee or caretaker for Essie H. Klink or Dorothy G. Artis, but, by decree of this court of Feb. 28, 1924, Granville Klink was appointed trustee or caretaker for them.
    John S. G. Dunne, Essie H. Klink, Dorothy Artis and Henrietta Barr are still living.
    The Philadelphia Trust, Safe Deposit and Insurance Company, afterwards the Philadelphia Trust Company, on July 10, 1926, became merged with the Fidelity Trust Company under the name of the Fidelity-Philadelphia Trust Company, by which the present account is filed. And the account is filed to have determined the disposition of 150 shares of the capital stock of said Fidelity-Philadelphia Trust Company set forth in the account as follows:
    “1926, July 28, Surrendered 100 shares, Philadelphia Trust Company (par 100) under Plan of Consolidation with Fidelity Trust Company. Received 150 shares of Fidelity-Philadelphia Trust Company (par 100).”
    It appeared that the Philadelphia Trust Company, having an outstanding capital of $1,000,000, divided into 10,000 shares, par $100, with a surplus of $5,000,000 and undivided profits of $1,212,079.48, and the Fidelity Trust Company, with an outstanding capital of $5,200,000, divided into 52,000 shares, par $100, with a surplus of $16,000,000 and undivided profits of $2,128,510.86, desired to become consolidated into one corporation, so that “all the property” — capital assets, surplus and undivided profits — “rights, franchises and privileges vested in each of said corporations” should be transferred to and vested in said new and consolidated corporation to be known as “The Fidelity-Philadelphia Trust Company, and entered into a joint agreement of consolidation which was to become effective only after the stockholders of the Philadelphia Trust Company should have duly authorized an increase of its capital stock from $1,000,000 to $1,500,000 — an increase of 5000 shares of $100 par; that the capital stock of the new corporation should be $6,700,000, divided into 67,000 shares of the par value of $100 each — $500,000, or 5000 shares in excess of the then outstanding capital of the two corporations; and that the surplus and undivided profits of the new corporation” should be “equal to the aggregate amount of the surplus and undivided profits of the constituent companies, as above set forth, less the sum of $500,000 applied to the increased capital stock to be issued” under the agreement; and then the stockholders of the Philadelphia Trust Company were to receive one and one-half shares of the new stock for each share of the stock then outstanding, and the stockholders of the Fidelity Trust Company one share of new stock for each share outstanding.
    As the ratio of surplus to capital of the Philadelphia Trust Company was greater than that of the Fidelity Trust; Company, it is clear that had the capital of the new corporation remained the same as the combined capital of the two corporations, and all the property of both corporations transferred to the new corporation, and each shareholder of the new corporations only received share for share, the shareholders of the Philadelphia Trust Company would have had the short end of the bargain. This was adjusted by the proposed increase of the capital stock of the Philadelphia Trust Company by $500,000 and the proposed reduction of the combined surplus and undivided profits by $500,000.
    It was expressly stipulated that the merger should not take effect until the shareholders of the Philadelphia Trust Company had authorized this increase in its capital stock and approved the consolidation agreement.
    Accordingly, on June 30, 1926, the stockholders of the Philadelphia Trust Company authorized an increase of $500,000 in its capital stock and approved the agreement of consolidation; and, as appears from the stipulation of facts, the Philadelphia Trust Company, on its books, transferred $500,000 from undivided profits to capital account. No new certificates by the Philadelphia Trust Company were actually issued, or intended to be issued, and no further action in that direction was taken by the Philadelphia Trust Company.
    On July 10, 1926, the property of the two companies as thus reconstituted was merged, and the capital stock of the two corporations issued as agreed— one share to each holder of a share of the Fidelity Trust Company, and one and a-half shares to each holder of a share of the Philadelphia Trust Company. By this process, the accountant surrendered 100 shares of Philadelphia Trust Company stock to the new corporation and received 150 shares of the Fidelity-Philadelphia Trust Company. It is under these facts that the question of the character of the additional half share in the new corporation issued to each holder of a share in the Philadelphia Trust Company, and the proper distribution of the excess of fifty shares accounted for, has arisen.

      As defined by Bouvier, Third Revision Rawle, 898, “Dividend, as confined to corporations, is that portion of the profits and surplus funds of'the corporation which has actually been set aside by a valid resolution of the board of directors, or by the shareholders, at a corporate meeting for distribution among the shareholders according to their respective interests, in such sense as to become segregated from the property of the corporation and to become the property of the shareholders distributively. . . . Where stockholders, including directors, met and agreed to a division of profits, but without formally declaring a dividend, their action was equivalent to such declaration: Spencer v. Lowe, 198 Fed. Repr. 961. The earnings of the corporation are part of the corporate property, and, until separated from the general mass, the interest of the stockholders therein passes with the transfer of the stock. ... By the declaration of the dividend, however, the earnings to the extent declared are separated from the general mass, and are appropriated to the then stockholders, who become creditors to the corporation for the amount of the dividend. The earnings represented by the dividend, although the fruit of the general property of the company, are no longer represented by the stock, but become a debt of the company to the individual, who, at the time of the declaration of the dividend, was the owner of the stock:” Ibid., 900.
    It is conceded that if the Philadelphia Trust Company had actually issued the stock representing the increased capital authorized by its stockholders, no question could arise. But, “in a court of equity, as the Orphans’ Court is within the sphere of its jurisdiction, substance is never sacrificed to form:” McKeown’s Estate, 263 Pa. 84; and equity considers that as done which ought to have been done, and would have been done in the present case if the usual and parliamentary methods of business had been followed.
    It must not be overlooked that the stockholders of the Philadelphia Trust Company, on June 30, 1926, not only authorized the increase of its capital stock, but approved and adopted the consolidation agreement. That agreement clearly contemplated the withdrawal of $500,000 from surplus and undivided profits of the Philadelphia Trust Company before the merger took place, by providing that the surplus and undivided profits of the new company should be, not the whole amount of surplus and undivided profits of the constituent companies, but that amount, “less the sum of $500,000 applied to the increased capital stock to be issued hereunder.” Was not this $500,000 assets of the Philadelphia Trust Company segregated from its profits to justify the increase of its capital? It no longer, then, belonged to the Philadelphia Trust Company, but its shareholders; and the short-cut method pursued by the parties to the consolidation could not deprive those shareholders of it. It is a debt of the Philadelphia Trust Company to its shareholders to be paid by the Fidelity-Philadelphia Trust Company in its stock, and was so paid by the issue of the additional half share with each share to the holders of the original stock of the Philadelphia Trust Company.
    Against this view, Goldsmith v. Swift, 35 Hun (N. Y.) 32 (Supreme Ct. Reps.), is cited on behalf of the remaindermen. But there, as here, the trustee, held 100 shares of stock; he also held scrip for 80 per cent, of the capital, representing earnings of his company applied to capital improvements (which was construed as income, and thus in line with our cases), and received twenty-seven additional shares of the new company to equalize the values of the merged company. In the present case there was no stock issued for the purpose of equalizing the value of the interests of the stockholders in the new company. That equalization has been accomplished by the increase in the stock of the Philadelphia Trust Company and the reduction of the combined- surplus and undivided profits because appropriated by the Philadelphia Trust Company to said increase.
    I, therefore, hold that fifty shares of Fidelity Trust Company stock contained in the account must be considered as an extraordinary dividend out of earnings and distributable according to the rules laid down in our cases from Earp’s Appeal, 28 Pa. 368, to Waterman’s Estate, 279 Pa. 491.
    There was no evidence submitted of intrinsic value of the various stocks at the respective dates above given; the only values furnished are book values, which, for the purposes of this adjudication and in the absence of testimony showing that such book values are in excess of intrinsic value, I assume are the actual values of the respective stocks at the dates stated.
    The book value of a share of the Philadelphia Trust, Safe Deposit and Insurance Company as of Dec. 31, 1898, the date nearest to the death of the testator, Dec. 21, 1898, was $354.054212.
    On Nov. 27, 1923, the date of death of Henrietta H. Dunne, $663.507869.
    On July 10, 1926, prior to capital rearrangement, $739.173195.
    And after the transfer of $500,000 from surplus to capital (assuming this to mean the value of a share in the increased capital of the Philadelphia Trust Company) was $492.78213.
    After the merger, the book value of a share in the consolidated company, Fidelity-Philadelphia Trust Company, was $472.94445.
    It, therefore, appears that, in lieu of 100 shares of the Philadelphia Trust Company at $354.054212 per share, the accountant now holds 150 shares of stock of the Fidelity-Philadelphia Trust Company at $472.94445 per share, an increase in value of $118.89033 per share, and I, accordingly, find that said fifty shares are income accrued to this estate on June 30, 1926.
    Who, then, is entitled to this income?
    Henrietta H. Dunne died Nov. 27, 1923, and the action of the Philadelphia Trust Company, above referred to, was not had until June 30, 1926, and the merger of the two companies not actually effected until July 10, 1926. On the ground that part of the profits of the Philadelphia Trust Company transferred to capital was earnings since the death of testator, it is plain, on behalf of her estate, that part of the fifty shares should be awarded to that estate. On the other hand, the life-tenants succeeding to income on her death and who are still living claim all the shares as income accrued to the estate at that time; while the remaindermen claim all the shares on the theory that the 150 shares of Fidelity-Philadelphia Trust Company were received by the accountant merely as an exchange for the 100 shares of the Philadelphia Trust Company held by the estate before the merger.
    The last contention may be dismissed for the reasons already given for holding such shares as dividend. Whether there is only one life-tenant or successive life-tenants, the decisions clearly are that the ultimate remainder-man is entitled but to the estate of testator as of the time of death, with only such accretions incident thereto as are not subject to the equitable principles in the cases cited.
    In Flaceus’s Estate, 283 Pa. 185 (194), Mr. Justice Simpson said: “In other jurisdictions many and varied are the methods applied in the distribution of extraordinary corporate dividends under such circumstances; but in this State we have long since abandoned the technical rules applied elsewhere, and distribute such dividends, if declared out of profits, whether they be cash, scrip or stock (Smith’s Estate, 140 Pa. 344, 352; Stokes’s Estate, No. 1, 240 Pa. 277, 280-1), according to equitable principles, allotting to corpus so much of them as is necessary to make good any reduction of actual value from that which existed at the time the trust was created and giving the balance to those entitled to the accruing income. Prom Earp’s Appeal, 28 Pá. 368, to Waterman’s Estate, 279 Pa. 491, we have steadily adhered to this rule, which, in principle, is as applicable to every case where one gets the corpus at a given date, and another the income pending final distribution, as it is to the ordinary case of life-tenants and remaindermen. In each the same reason exists for refusing to give the first taker the income which had accrued on the stock prior to the creation of the trust, or to the remainderman that which had accrued after its creation; and this, as stated, is true whether the gift in remainder is specific, demonstrative or general.”
    And in McKeown’s Estate, 263 Pa. 78, the same learned Justice announced as the settled law of this State that “an extraordinary corporate dividend is presumptively payable to the party entitled to the income at the time the dividend was declared; but this presumption must yield to proof of the fact, and if it appears that by such dividend the corporate assets are reduced below their value at the time the trust began, the principal must be made good before anything is awarded to income.”
    As the fifty shares in question have been held an extraordinary dividend, and its declaration has not diminished the value of testator’s estate as of the time of his death, it is clear that, in the present case, there are no facts to which the presumption can yield. The surplus of a corporation until it is distributed by proper corporate action belongs to the corporation, and until such time no right to distribution accrued to the stockholder, and, consequently, does not accrue under his will to a deceased life-tenant. Connolly’s Estate, No. 1, 198 Pa. 137, distinctly holds that the rights of a life-tenant are “no greateer than the testator’s in his lifetime, and as he could not have compelled a distribution of the surplus profits in dividends, she could not; and as she could not obtain them in her lifetime, surely her personal representatives after her death cannot, neither from the corporation nor the legatees in remainder.”
    Connolly’s Estate was followed by this court in Crosman’s Estate, 14 Dist. R. 40, where President Judge Hanna held that an extraordinary dividend is payable to parties entitled to the income of the trust estate at the time it was declared, and not apportionable. See, also, Engel’s Estate, April Term, 1895, No. 570; Thompson’s Estate, 6 D. & C. 503, under the Act of 1917.
    However, in Simpson’s Estate, 23 Dist. R. 27, where there had been a succession of prior extraordinary dividends, of which admittedly the life-tenant had not received her proper share, a dividend declared after the life-tenant’s death was apportioned, President Judge Dallett, whose adjudication was confirmed by the court, saying: “Whether, when applied, the rule (of such apportionment) will work satisfactorily in all eases remains to be determined. It would seem to the Auditing Judge to eliminate the possibility of any enhancement in the value of principal (which might, nevertheless, be altogether wiped out) and to necessitate distribution back over perhaps many years and to the estates of cestuis que trustent long since dead.”
    In all these cases there was but one life interest.
    But in Willeox’s Estate, 66 Pa. Superior Ct. 182, an apportionment between the estate of a deceased life-tenant and succeeding life-tenants was permitted because all parties agreed to it. Judge Porter, however, said: “This principle (of apportionment) being conceded by the learned counsel for both appellant and appellee, we have not deemed it necessary to consider or discuss its soundness.” And, further (as bearing on the question of elimination of “the possibility of any enhancement in the value of principal”), “the increase oí the (ordinary) dividends may cause an actual increase in the value of the stock, even though no undivided profits be added to the surplus, and such an increase in value belongs to the principal of the trust estate, and must go to those who take in remainder: Connolly’s Estate, 198 Pa. 137; Graham’s Estate, 198 Pa. 216.”
    Life-tenants taking after a precedent life estate are as really legatees in remainder upon the expiration of that estate as are the ultimate remainderman, taking upon the expiration of all the precedent estates. Blackstone defines a remainder as an estate limited to take effect and be enjoyed after another estate is determined: 2 Bl. Comm., 163. “An estate in lands, tenements or hereditaments in such-interest as the tenant has therein:” 2 Bl. Comm., 103.
    The settled policy of the law is to give to every beneficiary under a will exactly what the testator gives; and as the fifty shares in question are, as heretofore found, to be regarded as income accrued during the present life tenancy, irrespective of when the profits accrued to the corporation, so they accrued since testator’s death, it would, in my opinion, be doing violence to testator’s express wishes to give any portion thereof either to the equitable life-tenant, who died before its accrual, or to the remaindermen, who are only entitled to the estate as it existed at testator’s death, with whatever accretions thereto there may be when the trust ends.
    It may be of interest, too, to note that on the face of the records of the Philadelphia Trust Company the amount of the increased capital was charged against undivided profits, and that the undivided profits at that time were $1,212,079.48. It does not appear whether any of these undivided profits were earned in the lifetime of Henrietta H. Dunne. If not, the case would seem to fall within Waterman’s Estate, 279 Pa. 491.
    For the reasons given, I award said fifty shares to the persons who, on June 30, 1926, were entitled to income. The account shows debit items of principal of personal estate — the 150 shares of Fidelity-Philadelphia Trust Company stock being carried short — of $149,334.36, and contains credit items of $113.14, leaving a balance of $149,221.22. And also shows a balance of principal of proceeds of sale of real estate of $8661.71; total, $157,882.93.
    As, under this adjudication, the estate, instead of 100 shares of stock of the Philadelphia Trust Company, now holds 100 shares of Fidelity-Philadelphia Trust Company as part of the principal, the said shares will be appraised and the above balance, as affected by said appraisement, composed as indicated in the account, is awarded to the accountant as trustee for John S. G. Dunne, Essie H. Klink, Dorothy G. Artis and Henrietta Barr, upon the uses and trusts declared by the will of the testator.
    The account also shows a balance of income of $190,275.71, to which add fifty shares of capital stock of the Fidelity-Philadelphia Trust Company, $-, making a total of $-, which, less commissions due accountant at 3 per cent, on said Fidelity-Philadelphia Trust Company stock, and together with all additional income or interest on deposit to date of payment, is awarded to be distributed to the parties entitled to income in the proportions directed by the will as construed by this adjudication; the award of any unpaid income to Henrietta H. Dunne, under the terms of this adjudication, to be paid to the executor of her will; the award to Essie H. Klink of her original share of income to be paid to her guardian; the award of that accruing to her on the falling in of the life estate of Henrietta H. Dunne to be paid to her directly, unless the guardianship extends to her entire estate; and all awards to be subject to any payments heretofore made on account of distribution.

      Counsel will prepare a schedule of distribution in duplicate, and certify to its correctness in conformity herewith, which, when approved by the Auditing Judge, will be annexed hereto and form part hereof. ...
    And now, Jan. 26, 1928, the account is confirmed nisi.

    J. H. Shoemaker, for exceptant.

      Charles Myers (Barnes, Biddle & Morris with him), contra.
    June 29, 1928.
   Lamorelle, P. J.,

A majority of the court are of opinion that exceptions 1, 2 and 4, which go to the award of all income, result of an extraordinary dividend, which dividend the Auditing Judge awarded to the present cestui que trust to the exclusion of a former cestui que trust (now deceased), should be dismissed for the reasons given by the Auditing Judge in his adjudication.

We are of opinion that exception 3, which reads as follows: “The learned Auditing Judge erred in finding that it does not appear whether any of the undivided profits of the Philadelphia Trust Company were earned in the lifetime of Henrietta H. Dunne, deceased,” is irrelevant, in view of the findings of fact and conclusions of law in such adjudication, because, in dismissing the other three exceptions, we necessarily determine that the former cestui que trust is entitled to no part of the dividend, irrespective of when it, of any part of it, was earned.

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

Henderson, J.,

dissenting. — I must dissent from the action of the majority. The facts relating to these dividends are readily ascertainable and a court of equity should do only one thing — apportion the dividend among those entitled thereto. In Miller’s Estate, January Term, 1909, No. 65, I had a similar question before me, and apportioned the dividend among those entitled, and as no exceptions were filed, the question did not come before the court in banc. I will quote from that adjudication:

“It will be observed that at the time of the death of the widow, March 31, 1919, the surplus of the company was $2,583,950.40, almost enough to pay the stock dividend of $3,000,000. It should further be observed that the earnings, after the death of the widow, were more than sufficient to pay the stock dividend. The question is, therefore, presented for determination, should this stock dividend be awarded to the life-tenants as of the date of its declaration, or should it be apportioned between the life-tenants as of the date of the death of the widow and the present life-tenants in the proportion which the whole surplus bears to the surplus existing at the date of the death of the widow and the surplus earned from that date down to the declaration of the dividend bear to one another. If the dividend is to be apportioned among the succeeding life-tenants as of the date of the death of the widow, two-thirds of the portion payable to the life-tenants as of that date would be awarded to the estate of the widow, and would thence pass to the three daughters alone, and the remaining one-third of this portion would pass under this testator’s will equally to the four children — the three daughters and the son; and then that part of the dividend apportioned to the period after the death of the widow would pass equally to the four children. In other words, if the dividend is to be apportioned, the widow’s estate would be entitled to two-thirds (that being her share of the income under the will) of $6,491496.99 $3,000,000 of the dividend of 4446 shares. On the other hand, if this extraordinary stock dividend is not to be apportioned between the succeeding life-tenants, then it would all be awarded to the present life-tenants — the four children. The question now raised — of apportioning an extraordinary stock dividend, payable out of surplus, among succeeding life-tenants — appears largely as one of first impression. ... Of the surplus of over $6,700,000 to the credit of the company on the date of the dividend, over $2,500,000 was earned before the death of the widow on March 31, 1919. Had that amount been earned in the lifetime of the testator and divided after his death, there can be no doubt but that it would have been awarded to the trustee as corpus. If the amount earned in the lifetime of the widow had been dividéd, there is equally no doubt that it would have been awarded to her. If the dividend had been declared one year after her death, wholly of the accumulated earnings in her lifetime, I can see no reason why they should not be awarded to her personal representative. . . . Turning now to the will of the testator, we find that two-thirds of the profits of his estate were given to the widow for life, and the question recurs, shall we go back of the form of the distribution of profits by this corporation, grasp the real facts, and award them to the parties entitled thereto under the will at the time they were earned? There is only one answer a court of equity can make, the one ordered by this adjudication. . . . The stock dividend of 4446 shares of the American Laundry Machinery Company, together with any cash dividends that may have been declared on those shares, is awarded to Mary Miller (the deceased widow), Emma Miller Wood, Caroline H. Miller, Charles J. Miller, and the Land Title and Trust Company, guardians of the estates of Katherine May Sauter and William V. Sauter, Jr., minors, in the proportions directed by this adjudication, the award to Mary Miller to be paid to her personal representative.”

I would follow the same procedure in the instant case.

Van Dusen, J., did not sit.


author: Kun, J.,

text:
    Dalton v. Gray Line Motor Tours.

      Workmen’s compensation — Injury from assault because of employment and not for personal reasons.

      An employee of a motor bus company, engaged to solicit passengers in a certain locality, is entitled to compensation for injuries sustained in a sudden quarrel which arose, concerning the solicitation of certain passengers, between himself and another employee engaged in the same work, the violence in such case having been directed against claimant as an employee or because of his employment and not because of reasons personal to himself.
    Appeal from Workmen’s Compensation Board. C. P. No. 1, Phila. Co., Dec. T., 1927, No. 10809.

      Todd Daniel, for plaintiff; Louis Wagner, for defendant.
    June 5, 1928.
   Kun, J.,

This is an appeal from the affirmance by the Workmen’s Compensation Board of the disallowance by the referee of claimant’s petition for compensation. The defendant conducts sight-seeing busses in Philadelphia. The claimant was in the employ of the defendant on July 13, 1926, as a solicitor of passengers for its sight-seeing busses, his post being around the front of the Keith’s Theatre Building on Chestnut Street below Twelfth Street. Defendant had another solicitor, Heaton, whose post was in the next block west, around the front of the Adelphia Hotel, on Chestnut Street, between Twelfth and Thirteenth Streets.

Heaton had solicited two passengers for the nine o’clock bus on the day mentioned, and ran ahead of them towards Keith’s Theatre Building, whence the busses started out to get them on the bus, but it had left. Returning towards his post, Heaton saw the claimant, Dalton, selling two tickets to his prospects in front of a store three buildings west of the Keith’s Theatre Building. After the tickets had been sold, the claimant, Dalton, returned to his post in front of Keith’s Theatre, where Heaton told Dalton the prospects were his, and he, Dalton, should not have sold them the tickets. Dalton told Heaton not to worry about it; that he would give him the commission that night. Heaton replied that he was not complaining about the commission, but about the interference with his work. Heaton thereupon started back towards the Adelphia Hotel, and when he got a short distance west of Keith’s Theatre he met another employee, one Redman, and engaged him in conversation. The claimant, Dalton, in passing, then stopped and said to Heaton, “What are you doing, belly-aching about that?” Heaton replied, “That is all right.” Then Dalton remarked that if he, Heaton, wanted to say anything more about it that they go around in an alley. Heaton said, “Let’s go.” Claimant, Dalton, touched Heaton on the arm, but did not raise his arm to strike him. Heaton thereupon struck claimant, Dalton, a blow in the right eye, as a result of which it was necessary to remove it. The whole occurrence took place in several minutes.

The Workmen’s Compensation Board was undoubtedly correct in its first finding that the point on Chestnut Street where the occurrence took place was undoubtedly premises to Dalton while he was soliciting business or looking for prospects on behalf of the defendant. The duties of the defendant’s solicitors, the claimant, Dalton, and his fellow-employee, Heaton, were to more or less cruise in and around their respective stations on the same street, and their posts were so close to one another that, in the usual and natural course of their employment, they would, as they did, come in contact with one another in the prosecution of their duties, and because they were employed, not on a salary, but on a commission basis, the very nature and circumstances of their employment was likely to produce the kind of contention between them which might result, as it did, in open conflict, and in this instance of very serious consequences to the claimant.

The board stated: “Had Heaton, when Dalton was passing by on this mission, assaulted him because of this ticket transaction, the injury received would have come within the provisions of the Compensation Act,” adding: “Dalton took himself out of the course of his employment at the moment he used offensive language to Heaton, in taking him by the elbow made a technical assault, and is, therefore, in violation of the law as well.”

In this we think the board erred. It is clear to the court that the assault on the claimant by his fellow-employee followed the dispute about “the ticket transaction,” and as it is conceded that the place where the injury was inflicted was premises of the defendant, it seems quite clear that it is compensable, even though the claimant was not at the time furthering his employers’ business, if, nevertheless, the violence was directed against him as an employee or because of his employment.

The court has been unable to find any evidence in the case to justify the finding of the board that the claimant violated the law, such as, within the meaning of the term as it has been interpreted, would deprive him of compensation.

The case narrows down to the question whether the facts in it bring it within the exclusive provision of section 301 of the Workmen’s Compensation Act, that compensable injuries “shall not include an injury caused by an act of a third person, intended to injure an employee because of reasons personal to him and not directed against him as an employee or because of his employment.” There is nothing in the case to indicate that Dalton was injured because of personal reasons on the part of Heaton disconnected from their employment. The evidence fails to disclose any personal enmity on the part of Heaton against Dalton. The altercation between them arose from the sale of tickets for and on behalf of the defendant, which was their common employment, the circumstances of their employment being such, as has already been indicated, as to provoke just such disputes.

The burden rested on the defendant to show the claim came within the exception to liability as defined by the act, and that the injury resulted from an attack arising from personal difficulties between the parties. The defendant in this case failed in any sense to meet that burden.

The recent case of Meucci v. Gallatin Coal Co., 279 Pa. 184, in which compensation was awarded for the loss of an eye, resulting from an altercation between the claimant there and his foreman, is ample authority for awarding compensation to the claimant in this case.

It is to be noted that in the case cited the first blow was .struck by the claimant, whereas in the instant case, according to defendant’s evidence, the claimant simply touched or took hold of Heaton’s elbow, without raising his arm to strike him. In other words, in no sense did the claimant strike a blow. It cannot be said, therefore, that because the claimant, Dalton, merely touched Heaton’s arm, he committed a violation of the law, such as to deprive him of compensation.

A violation of law, such as will deprive a claimant of compensation, must be some act amounting to a grievous battery, commission or attempt to commit a felony (Curran v. Vang Construction Co., 286 Pa. 245; McDevitt v. Checker Cab Co., 288 Pa. 394), or the violation of some statutory provision relating to the employment, though only a misdemeanor (Pokis v. Buck Run Coal Co., 286 Pa. 52), and in such a case the evidence to refute the claim should at least approximate that required in criminal cases: Labuck v. Mill Creek Coal Co., 292 Pa. 284.

The defendant has utterly failed to show the claim came within the exceptions to liability as defined by the act, nor could it very well under the practically admitted facts in the case.

The action of the Workmen’s Compensation Board in disallowing the claimant’s petition for compensation is reversed, and the board is directed to allow the claimant, Dalton, such compensation as he may be entitled to receive under the Workmen’s Compensation Act.


author: Landis, P. J.,

text:
    Scalatis and Calogeros v. Cargas.

      Judgment — Motions to strike off and open.

    1. A judgment will not be stricken off because of a mere clerical error in giving the street number of a property for the rent of which it was given.
    2. A judgment will not be stricken off for a reason first advanced in the defendant’s brief and not assigned in the petition.
    3. The court can treat a motion to strike off a judgment as an application to open it.
    Rule to strike off judgment. C. P. Lancaster Co., April T., 1927, No. 405.

      William C. Rehm, for rule; J. Farr el Garvey, contra.
    Oct. 8, 1927.
   Landis, P. J.,

On April 25, 1924, the plaintiff leased to the defendant “the rear part of storeroom at No. 60 N. Queen St., Lancaster, Pa.” A further provision was that the said Spyro G. Cargas agreed “to renovate said rear room at his own expense and the said Spyro G. Cargas to have the use of the pressing-machine now located there, with privilege of purchasing same at any time during the term of this lease or any renewal thereof.” The lease was to run from May 1, 1924, for a term of twenty-three months, the, lessee to pay the sum of $1150 in monthly payments of $50 each. Cargas was to pay for all repairs to the pressing-machine. On May 28, 1927, the lease was entered in this court as a judgment for $750, to April Term, 1927, No. 405, and on the same day the plaintiff caused execution thereon, to be issued to August Term, 1927, No. 46. Under this execution, the personal property of the defendant was levied upon by the sheriff. On Sept. 6, 1927, the defendant presented his petition, asking that this judgment should be stricken off, and that is the question now before us.

The defendant in his petition avers that he entered into possession of the premises, being the rear room of No. 60 North Queen Street, Lancaster, Pa., pursuant to the lease, on May 1, 1924; that, under it, he was entitled to the use of a modern pressing-machine; that he was refused the use of this machine, and, when he complained, he was notified to move; that he paid all the rent due under the lease, and vacated the premises on Nov. 30, 1924.

From the depositions, it appears that almost immediately after the defendant moved into the premises, trouble arose concerning the pressing-machine. The plaintiffs claimed that Cargas could buy it, but he had no right to use it, unless he bought it. They were wrong in this regard, and were so told by Mr. Eaby, their then attorney. The defendant testifies that the plaintiffs ordered him out of the premises — kicked him out — and that he paid all of the rent due and left on Nov. 30, 1924. The plaintiffs admit that he paid all of the rent which became due while he was there, but they deny that they prevented him from using the pressing-machine, and also deny that they told him to vacate. It is denied that, after he left, a shoemaker occupied the premises for a short time, and Cargas says they carried on the cleaning and pressing business there after he left. Cargas is corroborated by his sister. It seems strange that the plaintiffs should wait for two and a-half years after the defendant admittedly vacated before they entered up the lease.

The affidavit accompanying the entry of the judgment reads that “Peter Scalatis and Paul Galogeros . . . are the lessors and have been the lessors from Jan. 1, 1924, of all that certain storeroom situated in the rear of the first floor of premises No. 660 North Queen Street, Lancaster, Pa.; that Spyro G. Cargas was the tenant of said storeroom, having occupied the same by virtue of the attached lease. . . .” The lease shows that the premises were numbered No. 60 North Queen Street, and not No. 660. It was merely a clerical error, which is of no consequence. Courts do not strike off judgments for such causes, and, outside of this reason, none of any importance are assigned for the striking off of the judgment.

In the defendant’s brief it is claimed that the prothonotary had no right to enter the judgment, as the plaintiffs did not comply with the Act of March 31, 1915, P. L. 39 (see Deibert v. Rhodes, 40 Lanc. Law Rev. 553). No such reason is assigned in the petition, and it follows that that question is not properly before the court.

It, however, has been decided that the court can treat such a motion as an application to open the judgment and let the defendant into a defense, if the facts warrant such action on the part of the court. We think that in the present case this should be done.

Therefore, the rule to show cause why the judgment should not be stricken off is discharged as such; but it is now considered as a rule to open the judgment and let the defendant into a defense, and as such the rule is made absolute and the defendant is now permitted to make a defense.

Rule to open judgment made absolute.

From George Ross Bshleman, Lancaster, Pa.


author: Berger, J.,

text:
    Lewis v. Adamson, Controller.

      Public officers — Viewers—Increase in salary — Constitutional law.

    A viewer is a public officer, and his compensation cannot be increased after his appointment or election.
    Petition for alternative mandamus. C. P. Schuylkill Co., July T., 1927, No. 780.

      J. E. Sones, for petitioner; Henry Houch, for respondent.
    Nov. 28, 1927.
   Berger, J.,

In this petition for a writ of alternative mandamus against William R. Adamson, county controller, all irregularities in pleading have been waived by the parties, and it has been agreed in writing that the sole question to be determined is whether the plaintiff, a member of the Board of Viewers of Schuylkill County, duly appointed by the court on Jan. 4, 1926, agreeably to the Act of June 23, 1911, P. L. 1123, and its supplements, is entitled to the per diem, compensation and mileage, as each was increased after his appointment over the compensation fixed by the Amend-atory Act of June 5, 1919, P. L. 393, by the Supplemental Act of March 29, 1927 (No. 50), P. L. 72, reading as follows:

“Section 1. Be it enacted, etc., That each member of the board of viewers, in counties of the fourth class, appointed pursuant to the provisions of the act of assembly of which this is a supplement, shall hereafter receive and be paid, out of the treasury of the proper county, the sum of ten (10) cents per mile for each mile actually and necessarily traveled by him in the performance of the duties of his office, and each member of the said board of viewers shall receive and be paid, out of the treasury of the proper county, the sum of twelve dollars ($12.00) per day for each day actually and necessarily spent by him in the performance of the duties of his office. The same shall be paid monthly, under such conditions as to verification of time of employment as may be prescribed by the rules and regulations which shall be made in that behalf by the courts of the respective counties.”

The Act of 1911 provides for a permanent board of view to be appointed by the court in counties of the fourth class, consisting of not less than three nor more than nine members, from which the court shall appoint three, one of whom shall be learned in the law, on presentation of a petition praying the appointment of viewers, reviewers or' re-reviewers, or of a jury of view, or of a road jury, or of commissioners of view, or of any person or body, under any designation, for the purpose of viewing, laying out, opening, grading, altering, widening, vacating or constructing of roads, streets, highways, sewers or bridges; or for the assessment of damages and benefits occasioned by such laying out, opening, grading, altering, widening, vacating and constructing of roads, streets, highways, sewers or bridges; or occasioned by an appropriation of land by municipalities and of other corporations having the power of eminent domain. It further provides that records filed by any board of view shall have the same force and effect as records filed under laws then existing, by viewers, reviewers, re-reviewers, or juries of view, or road juries, or commissioners of view, and for appeals from the action of any board of view, and exceptions thereto. Each member of the board of viewers must be at least twenty-five years of age, a freeholder and qualified elector of the county in which he is appointed, with five years’ residence therein immediately prior to his appointment, and must not be engaged in any other public employment of profit. Upon ceasing to have any of these qualifications, the office of any such viewer becomes vacant immediately. Viewers are appointed for a term of three years, and when vacancies occur, they are filled by appointment of the court in order that the board of view may be a continuous body, and [the viewers] are entitled to a compensation fixed by law, payable out of the county treasury. This detailed reference to the Act of 1911 is made for the purpose of showing the duties of viewers in order to lay ground for determining whether or not they are public officers.

The defendant has refused to pay the viewers the increased compensation fixed by the Act of 1927, because of his contention that that increase, if allowed to viewers appointed prior to the passage of the act, would be viola-tive of article ill, section 13, of the Constitution of Pennsylvania, providing as follows: “No law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.” In Lehman v. Northumberland County Comm’rs, 87 Pa. Superior Ct. 440, it was held that a person appointed as a viewer to inspect a bridge, pursuant to section 39 of the Act of June 13, 1836, P. L. 551, and injured in the discharge of his duties as a viewer, was not an employee of the county so as to confer upon him the benefits of the Workmen’s Compensation Act, but that he was a public officer. Section 39 of the Act of 1836 provides for the appointment of six fit persons by the Court of Quarter Sessions for the inspection of every bridge erected by the county commissioners, who shall make report (i§§ 40-41) to the court either approving or disapproving of the bridge, and if disapproving thereof, report also what deduction, in their judgment, ought to be made from the contract price, whereupon, by subsequent proceedings in court, the amount to be paid by the county commissioners to the contractor for the erection of the bridge is determined. In the case just cited, the Court of Quarter Sessions of Northumberland County, upon a petition to appoint suitable persons to inspect a county bridge upon its completion, appointed three viewers to perform that duty, and evidently selected them from a board of view created under the Act of 1911, pursuant to the language contained in section 5 thereof, authorizing the appointment “of any person or body, under any designation, for the purpose of viewing . . . bridges.” In our opinion, therefore, the case of Lehman v. Northumberland County Comm’rs determined that a viewer is a public officer. Moreover, members of the board of view fall within the definition of a public officer as defined in Com. ex rel. v. Moore, 71 Pa. Superior Ct. 365, 368, thus: “Where the duties of the office are to be exercised for the benefit of the public for a stipulated compensation to be paid by the public, where the term is defined and the tenure certain, and where the powers, duties and emoluments become vested in a successor when the office becomes vacant, it can confidently be affirmed that the occupant of the place is a public officer within the meaning of the Constitution.” See, also, Dewey v. Luzerne County, 74 Pa. Superior Ct. 300; Richie v. Philadelphia, 225 Pa. 511; Com. ex rel. v. Likeley, 267 Pa. 310; Tucker’s Appeal, 271 Pa. 462; Com. v. Kelley, 19 Schuyl. Legal Rec. 266. Therefore, payment to the plaintiff of the bill presented to the county controller for his approval June 23, 1927, for compensation for his services as a viewer at the rates fixed by the Act of March 29, 1927, is prohibited by the constitutional provision against the increase of a public officer’s salary after his appointment or election.

The petition is dismissed at the cost of the petitioner, and writ of alternative mandamus (if the rule to show cause heretofore issued can be so regarded) is hereby quashed and superseded.

From M. M. Burke, Shenandoah, Pa.


author: Schaeffer, P. J.,

text:
    Greenwich Township Auditors’ Report.

      Public officers — Township treasurer — Township secretary — Compensation — Act of July 11¡., 1917..

    As the Act of July 14, ¿017, P. L. 840, provides that the combined amount of salaries paid to the secretary and the treasurer of a township of the second class shall not exceed 2 per cent, of the money paid out by the treasurer, the supervisors cannot fix a rate of 2 per cent, as the salary of the treasurer and a like amount as the salary of the secretary; if they do so, the court will reduce the amount to 1 per cent, for each.
    Appeals from accounts of township supervisors and auditors’ report confirming said accounts. C. P. Berks Co., Jan. T., 1926, Nos. 57, 58 and 156.

      George W. Manderbach, for appellant; George Eves, for Supervisors.
    Nov. 12, 1927.
   Schaeffer, P. J.,

These are three appeals by Charles P. Rothermel, a resident and taxpayer of Greenwich Township, this county, from the accounts of the supervisors of said township and the report of the auditors confirming said accounts for the years 1919-1920, 1921-1922 and 1922-1923.

The specific items to which the appellant excepts are those claiming and allowing credit each year for salary paid to the secretary and treasurer of the Board of Supervisors. In each instance these credits allowed are for salaries paid to the secretary equal to 2 per centum of the money paid out by the treasurer and for a like amount paid as salary to the treasurer.

The Act of July 14, 1917, § 286, P. L. 840, which governs the case at hand, is as follows:

“Section 286.' The township treasurer of townships of second class shall receive, as- compensation for his services, a certain percentage on all moneys received and paid by him, which rate shall be settled by the supervisors of the township, with the approbation of the township auditors.
“In no case shall the combined amount paid to the secretary and treasurer exceed 2 per centum of the money paid out by the treasurer, except when the amount would be less than ten dollars ($10.00).”

This statutory provision is clear and unambiguous. It means just what it says: In re Manor Township Auditor’s Report, 37 Lanc. Law Rev. 167. We must assume that the supervisors, with the approbation of the auditors, fixed the salaries of both secretary and treasurer at 2 per centum each of the amount paid out by the treasurer. That is clearly in violation of the statute, but does indicate that the supervisors and auditors intended that the salary of the secretary and of the treasurer should be equal in amount. Accordingly, a salary equal to 1 per centum of the moneys paid out by the treasurer will be allowed to each.

And now, to wit, Nov. 12, 1927, the appeals in each of the above cases are sustained, and the secretary and the treasurer are surcharged a sum equal to one-half the salaries received by each, to wit, the sum of $89.12 each for the year 1919-1920, the sum of $126.46 each for the year 1921-1922, and the sum of $89.51 each for the year 1922-1923.

From Charles K. Derr, Reading, Pa.