author: Knight, J.,

text:
    In re North Penn Volunteer Fire Department.

      William F. Dannehower, Sr., for applicants.

      High, Dettra & Swartz, contra.
    Dec. 6, 1929.
   Knight, J.,

This is an application of a volunteer fire company for a charter.

A protest was filed and the matter was referred to a master, who- has reported in favor of granting a charter to the applicants.

The protestants have filed exceptions to practically all of the master’s findings of fact and conclusions of law; argument has been had on these exceptions and the case is now before us for decision.

The Legislature has delegated to the courts the power to grant charters to corporations of the first class, and the Act of April 29, 1874, P. L. 73, and its supplements, prescribes the method of incorporating these associations and defines the duties of the court in relation thereto.

By its terms we are required “to peruse and examine said instrument, and if the same shall be found to be in the proper form, and within the purposes named in the first class specified in the foregoing section, and shall appear lawful and not injurious to the community, he shall endorse thereon these facts, and shall order and decree thereon that the charter is approved.”

Passing for a moment the form of the present application, let us consider the purpose for which the corporation is sought to be formed. This purpose, as declared in the application, is the support and operation of fire engines and other equipment for the control of fires. This is not only a laudable purpose, sanctioned by long usage and frequent example, but is one of the purposes particularly mentioned in the Act of April 29, 1874, supra.

The purpose of the intended corporation is proper and lawful and a purpose which is beneficial and not injurious to the community.

Beyond this the applicants say we cannot go, but in this we fail to agree with them.

The Act of 1874, supra, establishes two tests for a proposed corporation of the first class. First, its purpose must fall within the purposes defined by the act; and, secondly, it must appear lawful and not injurious to the community.

By this latter requirement the Legislature certainly intended that the courts could and should inquire into the nature of the proposed corporation and the means intended to be used in accomplishing its purpose.

The purpose might be proper, but the manner of accomplishing the purpose might be unlawful or injurious to the community. We intend, therefore, to enter into the merits of this controversy, which will require a brief statement of the facts.

North Wales is unique among the boroughs of Montgomery County in one respect — for many years it has maintained a municipal fire department. The borough owns all the apparatus, pays the fire chief a small annual salary and pays the firemen selected by him an hourly compensation while actually engaged in fighting fires.

About two years ago a dispute arose between the then fire chief and the borough council over the purchase of a new piece of apparatus. This dispute culminated in the resignation of the chief and many of his men from the municipal fire department. Shortly thereafter the movement for the new fire company had its inception. While there is little doubt that the idea of a volunteer fire company had its birth in the pique, resentment and disappointment of the resigning firemen, the movement soon attracted to its support many substantial citizens of the Borough of North Wales and the surrounding townships, who have not the slightest interest in the dispute between the borough and the members of its fire department.

Petitions have been filed in support of the present application numerously signed by substantial citizens of North Wales Borough and of Lower and Upper Gwynedd and Montgomery townships.

The protestants base their objections to the grant of a new charter principally on two grounds. First, there is no necessity for a second fire company in North Wales. Second, an additional fire company, especially under present conditions, will be injurious to the community.

There may be merit in the first objection, but we cannot refuse this charter , because of lack of necessity: Deutsch-Amerikanischer Volksfest-Verein, 200 Pa. 143.

On the question of necessity, however, it may he pertinent to note that over 400 citizens of North Wales and surrounding territory, by signing thp petitions -favoring the new company, have indicated their opinion as to its necessity. It must also be borne in mind that the present North Wales Fire Company is owned and controlled by the municipality, which, with entire propriety, could confine the activities of its fire department to the borough. Such a step would leave the many valuable properties adjacent to the borough without fire protection save that afforded by the distant companies located at Lansdale and Ambler.

Will an additional fire company be injurious to the community of North Wales?

The protestants say it will for several reasons. First, they argue that it will impose an additional financial burden on the people. The new company must be supported by voluntary contributions of the public. Whatever financial burden it puts upon the citizen is a self-imposed burden. If the proposed company does not fill a need or accomplish anything for the community, the people can put a speedy end to it by withholding financial support.

It is also alleged that the record shows that the proposed fire company cannot finance its program. We are of the opinion that we cannot refuse this charter for such a reason, and we hazard the statement that three-fourths of the fire companies of Montgomery County were started in the same manner as this proposed company, so far as their financial structure is concerned.

In considering this application, we cannot weigh the chances of ultimate success or failure of the venture.

Next, the protestants contend, and this is their strongest objection, that the incorporation of the new company will be injurious to the community because the rival firemen will fight each other and not the fires.

This fear has been expressed by several welbknown and prominent citizens of North Wales who were called as witnesses by the protestants.

The master in his third and fourth conclusions of law adequately disposes of this objection when he holds that it is a legal presumption that the proposed corporation will be lawfully conducted, and the bare possibility of friction and rivalry with the North Wales Fire Department is not good ground to refuse incorporation of the new company.

As a matter of fact, we believe that the protestants are unduly apprehensive of trouble between the two fire companies.

The old days when a fire always ended in a fight are gone, and we see in Pottstown, Norristown, Jenkintown and several of our first class townships rival fire companies in close proximity cooperating in harmony against the common enemy, fire.

The protestants have offered to withdraw their objections to the petition if the applicants will agree to locate the fire company outside the borough. So far as their objections are concerned, it appears to us to make little difference which side of the borough line the fire house is located. If the borough officials can control a fire company located just outside the borough in fighting borough fires, they can equally control one situated in the borough.

The borough authorities are in command of the water supply.

The protestants object to the form of the application on the ground that the location of the proposed corporation is not set forth with sufficient particularity. The applicants now seek to amend their application so that paragraph three shall read: “The business of said corporation shall be transacted in the Borough of North Wales, Montgomery County, Pennsylvania.”

We have allowed the amendment and are now of the opinion that the location of the corporation is set forth with sufficient particularity.

The protestants except to the form and relevancy of many of the master’s findings of fact. A number of these objections are well taken, but it would serve no useful purpose in a case like this to send the report back to the master for correction in matters of form, nor do we deem it necessary to make particular findings of fact ourselves.

After going over the whole record and reading the briefs of counsel, we are of the opinion that the exceptions to the master’s report must be dismissed, the report confirmed and the application for a charter granted.

And now, Dec. 6, 1929, the exceptions filed to the master’s report are hereby overruled and the report confirmed, and the within certificate of incorporation having been on file in the office of the prothonotary of this court since July 24, 1928, and it appearing that publication of the intended application was made in the Norristown Times Herald and the Montgomery County Law Reporter as required by law, and due proof of said publication having been presented to the court, and the court having perused and examined the said application for charter and finding the same, as amended, to be in proper form and within the purposes named in the first class of corporations specified in section 2 of the Corporation Act of April 29, 1874, and supplements, and that said purposes are lawful and not injurious to the community, it is ordered and decreed that said charter be approved, and upon the recording of said charter and its endorsement and of this order in the office of the recorder of deeds in and for the County of Montgomery, which is now hereby ordered, the petitioners thereto, their associates and successors, shall henceforth be a corporation for the purposes and upon the terms and under the name therein stated.


source: Caselaw Access Project

author: Patterson, J.

license: Public Domain

text:
    Loeb v. Romano.

      U. G. Vogan, for plaintiff; Edwm-d A. Kraus, Jr., for defendant.
   Patterson, J.

Samuel McKinley, an alderman of the City of Pittsburgh, gave a judgment on May 25, 1929, against the defendant. The hour fixed for the hearing in the summons was between 9 and 10 o’clock A. M. Defendant appeared at 10 o’clock, Eastern Standard Time, and learned that judgment had been formally pronounced against him at 10 o’clock, Daylight Saving Time. The record is brought before us on certiorari, and by agreement of counsel the certificate of the alderman as to the fact of defendant’s appearance at the hour fixed upon standard time computation is made part of the record. Were it not for this stipulation, we would overrule the specification of error, but with this certificate made part of the record, it plainly appears that judgment was rendered an hour too soon to be effective. There is no such time schedule in law as “Daylight Saving.” By the Act of May 3, 1923, P. L. 129, Eastern Standard Time was established as the sole and uniform legal standard of time. A summons fixing an hour for a hearing, whether so expressing it or not, fixes it according to Eastern Standard Time. For this reason the specification of error must be sustained and the judgment reversed.

We regret that this is so, for the undenied averments of the petition to hear this matter as an emergency rule showed the defendant to be grossly in default and worthy of little or no consideration. But the record before us, as amended, shows reversible error on its face, and we cannot do otherwise.

From William J. Aiken, Pittsburgh, Pa.


author: Langham, P. J.,

text:
    Garfield Smokeless Coal Company’s Appeal.

      Ernest Stewart, for appellant; James W. Mack and Fee & Tomb, contra.
    Jan. 14, 1930.
   Langham, P. J.,

This case came on to be heard by the taking of testimony in open court, and the following undisputed facts were developed:

Appellant is the owner of a coal operation in West Wheatfield Township, and, in addition thereto, owns 539 acres of land known as the George Leuffer tract. This particular tract is separated by several miles from the appellant’s coal operation and is not a part thereof. It is claimed that it was purchased because the appellant needed for its coal operation another tract of coal owned by Leuffer, who refused to sell unless the appellant would also purchase this 539 acres. It was further claimed that the sole value of this tract was in its timber and that the timber has been sold. This appeal arises from the fact that while the Leuffer land is assessed at $15 per acre, the coal under it is separately assessed at $45 per acre, and the appeal is from the $45 per acre assessment upon the 539 acres.

The contention on the part of the appellant is that “the assessor had no right to assess the land of the Leuffer tract and the coal separately.” Following the decision of the Supreme Court in the case of City of Scranton v. Gilbert, 16 W. N. C. 28, wherein it is held, “if the title to the surface and to the coal be owned by one person, they cannot be separately valued and separately assessed,” judgment will be entered in favor of the appellant.

It is argued by appellee that the method of assessment was only to arrive at the proper valuation, but the case upon which we rely decides in effect that the assessment as made was without statutory authority, and, therefore, void. The 539 acres should have been assessed as land.

And now, Jan. 14, 1930, upon due consideration, the appeal is sustained and judgment directed to be entered in favor of the Garfield Smokeless Coal Company.

From James L. Jack, Indiana, Pa.


author: Lamorelle, P. J.,

text:
    Schultz’s Estate.

      T. B. White, for exceptant.

      Joseph J. Brown and Roberts & Montgomery, contra.
    July 9, 1930.
   Lamorelle, P. J.,

The learned Auditing Judge (the late

Judge Thompson), in the adjudication to which exceptions have been filed, has recited at length the ninth item of the will and that clause of the codicil, a proper interpretation of which determines the question now before us, so that it is unnecessary to repeat them.

He has also set forth a copy of a request and agreement submitted to another Auditing Judge at the audit of a prior account. This paper may or may not be relevant. It was not offered in evidence and, strictly speaking, is not before us, nor is the adjudication of that other judge. As, however, the Auditing’ Judg’e has read such paper into his record; as the arguments, to a great extent, are based on the meaning of that paper; and as the exceptions also treat of it, this opinion is written as if the paper, as well as the previous adjudication and opinion of the court on exceptions, had been so offered.

We may say at the outset that we all agree in Judge Thompson’s rulings, his interpretation of the will and codicil, and in the effect to be given the paper offered at a prior audit.

The question is whether the surviving husbands of the two deceased daughters take the estates, or whether the two daughters had a right to exercise the power of appointment under the will and codicil of their mother, the decedent.

The ease has been argued with great vigor and this paper has been stressed in one instance as decisive of all questions. For such reasons we deem it advisable to state the result of our further consideration, prefacing same with a few undisputed fáets.

Caroline Sophia Schultz, the decedent, died in 1923, leaving a will, dated Dec. 8, 1897, and codicil thereto, dated May 12, 1901. She was survived by two daughters, both married at the time. She bequeathed her entire residuary estate in trust for these two daughters, the net income to be paid to them for life, with sole and separate use, spendthrift clause, etc., with remainder interest to their husbands in case they died without descendants. One daughter, Emilie S. Blois, died testate Dec. 2, 1925, domiciled in Great Britain. She was survived by a husband and by no descendants. Her will was made Aug. 13, 1925, probated at her domicile and copy thereof later filed with the Register of Wills of this county. Her will does not refer to her power of appointment, but it is contended that there was a valid exercise thereof under section 11 of the Wills Act of June 7, 1917, P. L. 403. Some time thereafter, the remaining child, Eliza Freeman Cuffe, died testate, survived by a husband but by no descendants. She refers to any estate as to which she has the right of disposition.

To us it is self-evident that the attempted exercise in each case was absolutely void, for the simple reason that each of the daughters was survived by a husband, and there is nothing in the will or codicil of the original testatrix, their mother, which authorized an appointment where the husbands survived their wives.

The will of testatrix provided, in so many words, that the estate should be held in trust, and in event of the death of either of the daughters without descendants, the other daughter was to receive all the income, and in event of the death of both daughters without children, the corpus was to be paid to the husbands of the said daughters, share and share alike, if more than one, and if only one, then to such one.

In the codicil testatrix stated that she considered it desirable that she should give to each of her daughters a power of appointment in respect of the estates which they were to enjoy after her death, so that each might have the power of distributing said estate among her children or grandchildren or “ (in the event of there being no children or grandchildren or surviving husbands, as stated in said will) to and among such person or persons as she may select, in such shares and proportions as she may think proper.” Testatrix then proceeded by showing how her daughters might appoint by last will and testament in event that there were children; in event that there were no descendants; and in default of such appointment that distribution should be made according to the limitations of her will. It was not necessary, in our judgment, that testatrix should repeat in this codicil the words “surviving husbands” for the all-suifieient reason that she had already stated that what she purposed doing was in event of there being no surviving husbands. In short, the power related solely to children, descendants and other people generally. Its exercise, however, was predicated upon a condition which did not exist when and as the daughters died, because in each case the daughter was survived by a husband and her husband took absolutely under the express gift to him under the original will and codicil. And just here, it may be said, once for all: First, that issue were to take; second, in the absence of issue, surviving husbands were to take; and, third, in event of neither issue nor such husbands, a general power of appointment was conferred; and, fourth, that under no circumstances could there be' a valid exercise, therefore, should such husbands survive and there be no issue.

What, if any, effect has the paper upon which certain of counsel place so much reliance?

This paper, which was submitted to the judge who audited the previous account, was a request that he ignore the will of the original testatrix and uphold the will of the daughter, Emilie S. Blois, who was at the time deceased. This paper was executed by the husband of the deceased daughter and by the living daughter and her husband. That Auditing Judge discussed the question at some length and held that the surviving daughter was without power to make such agreement in that the trust was of a sole and separate use and spendthrift character and that she could not by anticipation give away any part or share of her income. It is here well to state that the husband of the deceased daughter under her will was to receive an annual income of £900; that under the will of the original testatrix all income passed to the surviving daughter when one or the other of them should die. The Auditing Judge further ruled that the paper submitted to him was of no legal value, in that it lacked mutuality. It applied to the will of the one daughter then deceased, but there was no provision relating to the will of the daughter then living. His rulings were upheld in an opinion of- this court filed Nov. 7, 1927. While, to a certain extent, the paper was in the nature of a family agreement, it was not signed by all parties in interest, and it was in the very teeth of the will and codicil of the original testatrix.

The purpose of this paper, of course, was to divert the estate of Caroline Sophia Schultz, and, failing in its purpose then for reasons hereinbefore set forth, it cannot now, when it is repudiated by both of the surviving husbands, be used for a purpose other than that originally intended. The husband of the daughter who died first might well be willing at that time to part with his fee simple interest, which he could not receive in possession until the death of his surviving sister-in-law, for an ijnmediate annuity of £900 a year. This sister-in-law has, however, received all income from and after the death of her sister. She has benefited by the ruling of this court on the previous account. This is another reason why the paper falls of its own weight and is not now a matter of moment in solving the question before us.

It may be added that the ultimate remaindermen under the will of the sister who died last have no standing whatever, because the paper submitted as a request at a previous audit made no mention of the will of the surviving sister, nor any provision for what should be done upon her death; it lacked mutuality because it applied to the will of one daughter and not to that of the other.

All exceptions are dismissed and the adjudication is confirmed absolutely.


author: Fleming, P. J.,

text:
    Beals v. Centre County.

      N. B. Spangler and Ivan Walker, for plaintiff.

      Arthur C. Dale and Ellis L. Orvis, for defendant.
    Jan. 14, 1930.
   Fleming, P. J.,

The jury has awarded the plaintiff the sum

of $500 as damages to her land, caused by the relocating and building of the State highway, running through Bald Eagle Valley, from Bellefonte to Tyrone. The jury also awarded the plaintiff the further sum of $161.10 as compensation for the detention of moneys found to be due her from April 1, 1925, to Sept. 19, 1929, the date of the verdict. The defendant seeks a new trial and has assigned as reasons therefor the following:

1. The verdict of the jury is excessive.

2. That the verdict of the jury was against the weight of the evidence.

3. That the item of interest in the sum of $161.10 should not have been awarded the plaintiff, for the reason that the delay in this case was caused by reason of plaintiff’s excessive demand for damages, which delay on the part of the defendant was fully justified by the award of the jury, in its award of the principal sum of the damages.

In approaching our consideration of this motion we begin with two conclusions in which we are certain all parties will agree, to wit: (1) That if the verdict of the jury was excessive, it was excessive only to the extent of the sum awarded as damages for delay in payment; and (2) that if the verdict of the jury was against the weight of the evidence, it was only against the weight of such evidence, in so far as the allowance of any compensation for delay is concerned. This brings us, therefore, to a consideration of the third reason assigned, and leaves for our discussion and determination the sole question, viz., Is the plaintiff entitled to the sum of $161.10 awarded her as compensation for delay in payment?

It appears to be a well settled rule that while interest, as such, is not allowed on damages in condemnation proceedings, it is, nevertheless, proper for the jury to consider the lapse of time between the taking of the land and the time of the trial, in making up the damages for which to render a verdict: Hewitt v. Railroad Co., 19 Pa. Superior Ct. 304; Klages v. Phila. & R. T. Co., 160 Pa. 386; Penna. S. V. R. R. Co. v. Ziemer, 124 Pa. 560. It is, further, clearly the rule that when the plaintiff by grossly excessive and unreasonable demands makes the delay of payment imperative on the part of the defendant, and thereby causes such defendant to await a verdict before making such payment, no compensation for delay can be recovered by the plaintiff.

In Richards v. Citizens Natural Gas Co., 130 Pa. 37, Justice Mitchell says: “Interest is recoverable of right, but compensation for deferred payment in torts depends on the circumstances of each case. The plaintiff may have set his damages so inordinately high as to have justified the defendant in refusing to pay, or in other ways the delay may be plaintiff’s fault. ... In such cases the jury probably would not, and certainly ought not to make the allowance.”

We must, therefore, carefully scan the circumstances of the instant case in determining the question before us. As an aid or guide therein, let us first consider what has heretofore been said in cases of like nature.

In Stevenson v. Coal Co., 203 Pa. 316, 333, Justice Dean says: “Here, the plaintiff in his statement claimed specifically for the deposit of culm and the interruption of business at mill, $75,000; then, further, for the pollution of the stream and the destruction of about twenty acres of land for agricultural purposes, $25,000, making altogether $100,000. Perhaps the mere averments in the statement would not of themselves be sufficient to warrant the belief of an extortionate demand, for it is a common practice in pleading to fix the amount claimed at a higher sum than the plaintiff is willing to accept or expects to get, but here the unconscionable demand in the statement is followed by a like demand at the trial. The two sons of plaintiff, Charles and William Stevenson, were both called by plaintiff as witnesses and each computed the damages at $100,000. So incredible was their testimony and so exorbitant the demand that the court felt compelled to instruct the jury practically to disregard both. Beyond question, the plaintiff set his demand inordinately high; defendants must resist by litigation with its consequent delays. Therefore, they were excusable in not promptly paying, and should not be subject to a penalty for non-payment. The jury should have been peremptorily instructed that, under these circumstances, damages for detention, not to exceed legal interest, should not be allowed; that they had no discretion in the matter.” In this case the jury had returned a verdict for plaintiff in the sum of $21,000.

In Pierce v. Lehigh Valley Coal Co. (No. 2), 232 Pa. 170, Justice Mestrezat says: “The facts fully warranted the court in disallowing the damages awarded for the detention of the payment of the plaintiff’s claim. As appears by the evidence and as stated by the court, the claim was for $50,000, and it was strongly insisted upon in its entirety at the trial. At no time did the plaintiff offer to reduce the claim or to accept any smaller sum than his original demand. The fact that the verdict in his favor was for only $6200 shows that the demand was excessive, extortionate and unreasonable and one which the defendant was fully warranted in contesting. The officers of the defendant company would manifestly not have been justified in paying the claim. Had they done so, they would have failed to perform their duty and would have been responsible to the company.”

In Trustees of Kingston v. Lehigh Valley Coal Co., 241 Pa. 481, Justice Elkin says: “Appellant also contends that interest should have been allowed by way of compensation for detention. The learned trial judge decided this question against the plaintiff, and very properly so. The demand was grossly excessive and unreasonable, as is shown by the verdict returned. The demand was for more than $2,000,000, while the verdict was for a little over $100,000.”

In Rea v. Pittsburg, etc., R. R. Co., 229 Pa. 106, cited by the plaintiff in support of her contention that, inasmuch as defendant failed to show an offer of settlement at any figure or any indication that reasonably lower demands would have met with payment, we find the court quoting with approval the charge of the trial judge as follows: “It is for you to say in the exercise of your sound discretion whether the parties are entitled to compensation for delay in receiving their money. That amount you may give or you may not, just as you conclude, . . . remembering that as a general principle, where there has been delay which is not the fault of the plaintiff, and he has been kept out of his money, for the time lost the jury could give compensation by way of damages. . . . When you have fixed the market value at so much a foot, compare that with Mr. Rea’s price, and if you are fairly of the opinion and come to a fair and honest conclusion that the difference between the price you fix and the valuation placed by Mr. Rea was so great that you would say that it was an extortionate demand, that it was an inordinate demand, so that the officers of the railroad company were justified in contesting, . . . then it would be your duty, and I so instruct you, to refuse to give any damages for delay in payment. . . . But if . . . this was merely an honest difference of opinion, . . . you could give compensation for delay.” In this ease plaintiff’s claim was $1,056,000. At the first trial the verdict was for $616,000 principal and $159,133.33 compensation for detention. A new trial was then granted on motion of the defendant, whereat a verdict was returned for $616,000 principal and $149,893.33 compensation for delay. The defendant company had taken actual possession of plaintiff’s lands in 1903 and had ever since (until April 5, 1909) enjoyed whatever revenues there were to be derived therefrom.

Let us consider, in the above cited cases, the relation of sums recovered to sums claimed. In Stevenson v. Coal Co., 203 Pa. 316, the recovery was 21 per cent, of the amount claimed. In Pierce v. Lehigh Valley Coal Co. (No. 2), 232 Pa. 170, the recovery was approximately 12i per cent, of the amount claimed. In Trustees of Kingston v. Lehigh Valley Coal Co., 241 Pa. 481, the recovery was but 5 per cent, of the amount claimed. In the instant case the recovery was 20 per cent, of the amount claimed, while in Rea v. Pittsburg, etc., R. R. Co., 229 Pa. 106, the recovery of principal was 581 per cent, of the amount claimed.

It is true that the record is silent as to any offer of settlement made by defendants or of any indication that defendants would have paid a lesser sum than the sum demanded. It is likewise true that the record is silent as to any offers on the part of the plaintiff or of any indication that she would have accepted a lesser sum than the sum demanded. We cannot apply an omission on the part of the defendants to the benefit of the plaintiff when the same omission occurs on the part of the plaintiff, especially since the burden was on the plaintiff to prove that which she sought to recover by a fair preponderance of the evidence. We must likewise consider that the defendant is the County of Centre, represented by a board of county commissioners, upon whom repeated demands are made for claims similar to that of the plaintiff, and who must, therefore, scrutinize more carefully than an individual, or even a private corporation, and be certain that so much of the public moneys as is paid out is but enough, and only enough, to properly reimburse any individual whose lands have been taken or who has suffered damages in any other manner. It is proper, also, that we should consider, as has been pointed out by defendant’s counsel, that the defendant herein did not actually take plaintiff’s land, nor was it per se so vested with any discretion as to where or how much of such land was to be taken. While the established rule as to compensation for delay in payment applies to defendants of this sort, it is plain from these conditions that such rule should not be construed as strictly in cases of this sort as where the defendant is an individual or a private corporation vested with full discretionary powers.

Let us now consider briefly the contentions of plaintiff and defendant as shown by the estimates of value placed upon the plaintiff’s real estate before the taking and after such.

The plaintiff herself placed the value of the property before the taking at $4000 and after the taking at $2000, thus estimating her damages at $2000. Plaintiff’s witness, Isaac Holt, fixed plaintiff’s damages at $1500; H. K. Mat-tern at $1000; Kyle Alexander at $1600; Michael Murphy at $2000; W. H. Dando at $2000; Ruben Alexander at $1300, and George Gill, an aged gentleman, after reconsidering his earlier testimony, at $2000.

The witnesses called on behalf of the defendant were Charles Meyers, who fixed plaintiff’s damages at nothing more than the actual value of the strip of land taken for the road, or, as he estimated it in dollars and cents, $400 to $500; and George Fink, who testified that plaintiff’s land was worth more after the taking than before; his estimate of the value before the taking being fixed at $1650.

It will thus be observed that the average damage claimed by plaintiff and her witnesses was $1600, while the only witness for defendant who expressed an opinion that plaintiff was damaged found such to be $500, the sum awarded by the jury.

Was this a fair difference of opinion, or was it ah exorbitant and unconscionable demand on the part of the plaintiff? In our charge to the jury we said: “Until-that value has been definitely ascertained (referring to difference in market value before and after the taking), it is called damages, not a debt due, and when ascertained it relates back to the time of the taking, and the owner is entitled to compensation for delay in payment, unless it is shown to the contrary.” Further, in the next paragraph we spoke in such a manner (now that we have considered our words) as to reasonably lead the jury to believe that they must award compensation for delay if they found for the plaintiff in any sum. Further, we did not fix the measure of such compensation as a sum “not to exceed” the legal rate of interest, but spoke as if the legal rate of interest was a fixed measure of such compensation for delay. Such was clearly error and undoubtedly prejudiced the defendant in the matter of damages for delay in payment. We should have charged more explicitly, as did the trial judge in Rea v. Pittsburg, etc., R. R. Co., 229 Pa. 166, cited by the plaintiff, thus permitting the jury to decide whether or not the demands of the plaintiff made and persisted in at the trial were so unreasonable, exorbitant and unconscionable as to justify the defendant in delaying payment.

While concluding definitely that our charge was clearly in error in failing to permit the jury to pass upon this last stated question preliminarily to awarding damages for delay in payment, and in incorrectly stating the meas-, ure of such damages to be applied, in the event the jury should so find, we are further of the opinion, in view of the cases cited above showing percentages of amounts claimed which were recovered, that were the matter to be so properly submitted and an award of compensation for delay made, that we should be compelled to render a judgment non obstante veredicto, upon a proper motion, for such sum found as compensation for delay. No good purpose will be served, therefore, at this time by the mere allowance of a new trial without conditions, thus compelling the parties litigant to again submit the matter to a jury. We shall, therefore, enter the following conditional

Decree.

And now, Jan. 14, 1930, after due consideration, the court sustains the first reason assigned by defendant for a new trial and finds the verdict of the jury to be excessive in the sum of $161.10; if the plaintiff shall, within ten days from this date, accept the sum of $500 and shall agree that judgment be entered in favor of the plaintiff and against the defendant as of the date of the verdict of the jury herein, to wit, Sept. 19, 1929, the rule for new trial shall be dismissed; otherwise to be made absolute.

From S. D. Get tig, Bellefonte, Pa.


author: Corson, J.,

text:
    Annexation of Land by Bryn Athyn Borough.

      Kisniel C. Acton and Randolph W. Childs, for Bryn Athyn Borough, except-ant.
    Nov. 25, 1929.
   Corson, J.,

Under the powers granted to boroughs under

the Act of Assembly of May 4, 1927, § 425, P. L. 519, the Borough of Bryn Athyn annexed certain portions of the Townships of Upper Moreland and Lower Moreland, this county. In accordance with section 715 of said act of assembly, an auditor was appointed. The duties of the auditor as set forth under section 717 of the said act are as follows: “The auditor shall ascertain the liabilities of the several boroughs and townships affected, the amount and value of the property owned by each, the amount and value of the property passing to and from each borough and township, and the assessed valuation of all property liable to taxation for borough or township purposes, as shown by the last assessment, and within the limits of the part annexed to or detached from said borough. He shall report the same to the court, with the form of a decree adjusting the liabilities equitably between such boroughs and townships respectively.”

The auditor filed a report and supplemental report, containing a form of decree adjusting, in the view of the auditor, the liabilities equitably between the respective townships and the borough. The auditor’s reports were confirmed nisi, and the form of decree as submitted by the auditor was entered nisi by the court. The Borough of Bryn Athyn, on June 24, 1929, filed sixteen exceptions to such decree, all of which exceptions, with the exception of the fourteenth, while stated in various ways, are based upon the failure of the auditor to consider the item of uncollected taxes as of July 11, 1928, the date of annexation, and to hear evidence as to the amount of cash on hand as of this same date.

Among the duties of the auditor as set forth in section 717, supra, is the duty to ascertain “the amount and value of the property owned by each.” The question of the construction to be placed upon the word property seems to be the question raised by fifteen of the exceptions filed.

When a portion of a township is annexed to an adjoining municipality, such portion brings with it a share in the property and liabilities of the township of which it has been a part. Such share in each would seem equitably to be in the proportion that the assessed valuation of such portion bears to the assessed valuation of the entire township. Property would seem to be any real or personal property that the township owns. This would certainly include any cash on hand at the time of the annexation. Does the annexed portion have the right to take with it its proportionate share in any uncollected township taxes? Let us approach the question from the standpoint of equity between the township and the borough. The borough cannot collect any taxes during the year of annexation from the annexed, premises. Any taxes upon such annexed portion will be collected, if at all, by the township: Witherite v. Sullivan, 17 Dist. R. 721; Badorf v. Hess, 25 Dist. R. 922. The township will have no responsibility for the annexed portion after the date of annexation. That responsibility will devolve upon the annexing borough. If all the taxes had been paid at the date of annexation, the annexed portion would take its share in any unexpended balance of such taxes held by the township at the date of annexation. If the annexed portion must pay its proportionate share of the township taxes after the date of annexation, it is entitled to its proportionate share in all such township taxes paid, without regard to what the expenditures of the township may be after the date of annexation, because, as stated, the annexed territory cannot benefit from such expenditures, and is entitled to take such share with it to the municipality of which it becomes a part: Valley Township v. Coatesville Borough, 51 Pa. Superior Ct. 186.

Counsel for the borough mentions an agreement entered into between the borough and one of the affected townships as to the disposition of certain taxes, and complains because the auditor does not incorporate such agreement into his report. We can only say that while the auditor might not have to incorporate such agreement into his report, yet, if the auditor thought that such agreement was an equitable one, he might adopt its terms and incorporate them into his form of decree. The auditor, in considering the unpaid taxes in the respective townships as of the date of annexation, such taxes having, no doubt, now been paid, might consider any necessary exonerations, or uncollectible taxes, in seeing that a fair division is made between the annexed and the remaining portion of the township.

The fourteenth exception complains of the finding of the auditor as to value of the real property owned by the Township of Upper Moreland. We feel that there was evidence from which the auditor might well find as he did. We agree with his finding on this point, and the fourteenth exception is for that reason overruled.

And now, Nov. 25, 1929, for the reasons stated, the remaining fifteen exceptions are sustained, and the proceedings are referred back to the auditor with the direction that he take further testimony as to the cash on hand and uncollected taxes of the respective townships at date of annexation, and submit a form of decree adjusting the liabilities equitably between the Borough of Bryn Athyn and the Townships of Upper Moreland and Lower Moreland in conformity with this opinion.

Prom Aaron S. Swartz, Jr., Norristown, Pa.


author: Sciinader, Special D.ep. Att’y-Gen.,

text:
    Water and Power Resources Board.
    May 12, 1930.
   Sciinader, Special D.ep. Att’y-Gen.,

We have your request to be advised regarding the extent of your board’s power in administering the provisions of the Act of June 25, 1913, P. L. 555.

You inquire specifically whether your board, in passing upon an application for a dam, is limited to the consideration of the dam from a structural or engineering standpoint; or whether broader powers are conferred upon your board by the act, making it the board’s duty to consider the effect of the proposed structure upon the regimen and use of the stream. You would like to know whether your board has the power to issue a conditional permit or disapprove an application if it is convinced that the proposed dam will injuriously affect navigation, increase the height of floods in built-up communities or be prejudicial to the best interests of the Commonwealth for reasons not actually related to the stability of the structure.

The Act of 1913 is entitled “An act providing for the regulation of dams, or other structures or obstructions, as defined herein, in, along, across or projecting into all streams and bodies of water-wholly or partly within, or forming part of the boundary of, this Commonwealth. . . .” Its 1st section defines the words “water obstruction” as including “any dam, wall, wing-wall, wharf, embankment, abutment, projection, or similar or analogous structure, or any other obstruction whatsoever, in, along, across, or projecting into any stream or body of water. . . .” “Construct” is defined as meaning “construct, erect, build, place, or deposit.”

Section 2 provides that:

“. . . it shall be unlawful for any person or persons, partnership, association, corporation, county, city, borough, town, or township to construct any dam or other water obstruction; or to make or construct, or permit to be made or constructed, any change therein or addition thereto; or to make, or permit to be made, any change in or addition to any existing water obstruction; or in any manner to change or diminish the course, current, or cross section of any stream or body of water, wholly or partly within, or forming a part of the boundary of, this Commonwealth, except the tidal waters of the Delaware River and its navigable tributaries, without the consent or permit of the Water Supply Commission of Pennsylvania, in writing, previously obtained. ...”

Section 3 requires every application for a consent or permit to be accompanied by complete maps, plans, profiles and specifications of the proposed obstruction or the changes or additions to be made therein “and such other data and information as the commission may require.”

Section 4 empowers the commission “to grant or withhold such consent or permit” and to “incorporate in and make a part of said consent or permit such conditions, regulations and restrictions as may be deemed by it advisable.” It then provides that it shall be unlawful to commence the construction of any water obstruction or any change or addition thereto “except in accordance with the terms, conditions, regulations and restrictions of such consent or permit, and such rules and regulations, with regard to said constructions, changes, or additions, as may be prescribed by the commission.” Section 7 renders it a misdemeanor for any person or entity subject to the provisions of the act to do or cause to be done, or to fail, neglect or refuse to do, or cause to be done, any act or thing contrary to the provisions of the act.

By section 202 of The Administrative Code of 1923 (Act of June 7, 1923, P. L. 498) the name of the “Water Supply Commission was changed to Water and Power Resources Board, and the board was constituted a departmental administrative board within the Department of Forests and Waters. By section 1608 of the same act it was provided that the Water and Power Resources Board should have the power and its duty should be:

“(a,) Subject to any inconsistent provisions in this act contained, to continue to exercise the powers and perform the duties by law vested in and imposed upon the Water Supply Commission of Pennsylvania with regard to:

“4. Consents or permits for the construction of dams and other water obstructions or of any change therein or addition thereto, and consents or permits for changing or diminishing the course, current, or cross section of any stream or body of water; . . .”

Section 1808 of The Administrative Code of 1929 (Act of April 9, 1929, P. L. 177), repeats in the same language the last quoted provision.

There has, therefore, been no change in the authority conferred upon your board by the Act of 1913, as the result of the passage of The Administrative Codes of 1923 and 1929. Your board has the same power and the same duties as were vested in and imposed upon the Water Supply Commission when the Act of 1913 was originally enacted.

There has been no court decision or opinion of this Department which has specifically answered the inquiry under consideration. There have, however, been several expressions of our appellate courts with reference to the effect of the Act of 1913, which indicate the judicial attitude towards its scope.

In Pennsylvania Power Co. v. Public Service Commission (No. 1), 66 Pa. Superior Ct. 448, Judge Henderson said, at page 467:

“. . . the Act of June 25, 1913, P. L. 555, regulates the construction of dams and provides that none shall be erected without the consent or permit of the Water Supply Commission in writing previously obtained. It is further provided that the commission shall have power not only to grant or withhold consent but may incorporate and make a part of said consent or permit such conditions, regulations and restrictions as may be deemed by it advisable; and no construction of such works shall be undertaken or prosecuted except in accordance with the terms, conditions, regulations and restrictions of such consent or permit and such rules and regulations with regard thereto as may be prescribed by the commission. It will be seen, therefore, that the matter of definite plans for the development of the work of a water power company is subject to the control of the Water Supply Commission, which control is to operate after the incorporation of the company and when its work is undertaken. The Public Service Commission in approving the charter did not include the approval of a plan for the development of the company’s business. It is not invested with authority to regulate the erection of dams or the development of the water power resources of the state. That is a subject over which the Water Supply Commission has jurisdiction. The suggested change in the plan as to the number of dams or the height of the dams as made to the Public Service Commission was not a matter of consequence, therefore, nor in any sense illegal. The authority of the Water Supply Commission to impose regulations and conditions to be observed by a corporation proposing to develop the water power of a stream is broad, as shown by the language of the statute. It is unnecessary to here consider its extent. It has undoubted authority to attach any of the conditions necessary to carry out the purposes of the legislation on the subject with a view to the protection of the rights of the public and of individuals or companies having vested' interests.”

The opinion of the Superior Court in this case was affirmed by the Supreme Court in a per curiam opinion at 261 Pa. 211.

In Com. v. Pennsylvania R. R. Co., 72 Pa. Superior Ct. 353, Judge Head said, at page 357:

“. . . By this we understand the learned counsel to mean that, because of the passage of the Act of 1913, giving to the Water Supply Commission of the Commonwealth certain regulatory powers over the use of the streamis of the Commonwealth and making disobedience io its orders or a violation of its provisions a misdemeanor, it is no longer possible to successfully indict a person or corporation for the creation and maintenance of a common nuisance in such streams.”

In Com. w. Pennsylvania R. R. Co., 78 Pa. Superior Ct. 389, Judge Trexler said, speaking of the Act of 1913, “The Act of 1913 is a regulatory act.”

These quotations indicate that our appellate courts have not been inclined to place a narrow construction upon the powers granted by the Act of 1913 to the Water Supply Commission and now exercisable by that commission under its new name, “The Water and Power Resources Board.”

In our judgment, there is no basis for the view that the Act of 1913 merely conferred upon your board the right to pass upon and disapprove, or approve conditionally or unconditionally, the structural and engineering features of a dam proposed to be constructed. As you point out in your letter of inquiry, there are a number of types of obstructions over which your board has jurisdiction under the act which do not involve engineering or structural questions. A fill or other form of stream encroachment is one of these. Here there is no question of safety, as far as the fill or encroachment is concerned; but the question is bound to arise whether the fill or encroachment will reduce the flood-carrying capacity of the channel or adversely affect the use of the stream for navigation or other proper purposes. Similarly, when your board is requested to pass upon the construction of a bridge across a stream, it is scarcely conceivable that the Legislature intended your board to determine whether, from an engineering standpoint, the plans for the bridge contemplated a structure safe for travel. The question which the Legislature undoubtedly intended you to consider was whether the location of the piers or other features of the bridge in the stream would be likely to cause ice jams or affect navigation, and whether the height of the bridge above the stream was sufficient not to interfere with the use of the stream for navigation, etc.

If, in considering an application for a fill or an encroachment or a bridge, your board is not confined to the study of engineering and structural features — and clearly it is not — there is no justification for holding that you are thus limited in determining whether to grant a permit for the construction of a dam in a stream. Accordingly, in our judgment, your board has authority, when considering an application for the construction of a dam, to determine whether the proposed structure will injuriously affect public or vested private rights in the stream, including the questions whether navigation, flood control and use of the stream for other legitimate purposes will be adversely affected.

Prom C. P. Addams, Harrisburg, Pa.


author: Hargest, P. J.,

text:
    Commonwealth v. Winder.

      Robert T. Fox, District Attorney, and Thomas R. Wickersham, for plaintiff.

      J. Dress Pannell and Donald K. Royal, for defendant.
    Dec. 31, 1929.
   Hargest, P. J.,

The defendant was convicted on a charge of indecent assault. At the time of the charge he was employed at the Keystone Hospital. After the jury had retired, the following note was received by the trial judge:

“Your Honor, the Judge: We have a juror on this panel who announced the moment he came into the jury room that he knew all about the case before he came into Court and that he had heard all about it at the Keystone Hospital and would sit indefinitely to find him guilty. May I ask whether this juror can serve, i. e., decide the case under these conditions. Most respectfully, Henrietta Z. Shope.”

Whereupon the trial judge had the jury brought into court, and, in the presence of counsel for the Commonwealth and for the defendant, told the jury in no uncertain terms that jurors should act upon the evidence which was submitted to them and the evidence alone, and not upon anything which was heard out of court, and that any juror who acted upon anything which was heard out of court was violating his oath. The jury then retired to further consider the case. No motion of any kind was made by counsel for the defendant. Subsequently, the verdict of guilty was rendered. A motion for a new trial is now before us, based upon the grounds: (1) That the defendant has not had a fair trial before a fair and impartial jury, and (2) that the verdict was against the evidence.

1. Two well settled principles of law are involved in the determination of this question: (a) That a defendant is entitled to a fair and impartial trial by a fair and impartial jury, and (b) that where a defendant obtains during the trial knowledge of any irregularity or misconduct on the part of a juror, it is his duty immediately to lay the matter before the trial judge and not to take his chance upon a verdict and complain thereafter. If the first of these principles controls this case, a new trial must be granted; if the second controls, it must be refused.

In 16 Corpus Juris, 1154, it is said:

“Where a juror has prejudged defendant’s guilt before hearing the sworn testimony, it cannot be said that the defendant has had a fair trial before an impartial jury, and a new trial will be granted. Usually this ground is established by proof of prior statements of the juror concerning the case, bias being deemed to be established where the juror’s declaration, on his voir dire, that he was not biased is negatived by proof of prior statements of such a character as to show a fixed opinion on the part of the juror, and which, if unknown to defendant until after verdict, will call for a new trial.”

The rule is well stated in Gulf C. & S. P. Ry. Co. v. Dickens (Texas), 118 S. W. Repr. 612, 615:

“A fair and impartial trial by a fair and impartial jury is what the law exacts, and this requirement becomes a delusion if men with bias or prejudice or preconceived ideas of the rights of one are allowed to sit in judgment on his casé.”

In Com. v. Flanagan, 7 W. & S. 415, the court discussed the distinction between prejudging and giving an opinion by a juror and said (page 422): “The distinction I take to be this: That where there is a legal adjudication of the case by the jurors prior to the trial — that is, a predetermination evinced to find a verdict, without regard to the evidence — it is a mistrial which, per se, entitles the party to another hearing; but where the evidence falls short of this, then, in addition, it is necessary to the success of the application to satisfy the court that injustice has been done by the verdict, and that another jury would find in a different way; making, of course, every reasonable allowance in favor of the party asking a new trial.”

In the case just cited the distinction between prejudging and giving an opinion is stated as follows (page 420):

“Thus, in the case of M’Causland v. Crawford [1 Yeates, 372, 378], this distinction is taken, the good sense of which is its best recommendation. ‘Prejudging and giving an opinion’ (as is there said) ‘on a statement of certain facts, are very different things. The first implies a strong disposition to favor the one side or the other; a determination to find in one way, let the evidence be what it may. The last involves the truth of certain facts and propositions in the sentiments delivered; and impressions thus made may be effaced by the production of other evidence.’ The first involves a charge of gross misbehavior, amounting to criminality, on the part of a juror who consents to serve on a jury when he must know he has precluded himself from forming a just judgment by a prejudication of the case; a determination to decide, right or wrong, in a particular way. The second, that which is natural to the human mind, to form and even to express an opinion on a supposed state of facts — an opinion only binding or influencing them, provided the case should turn out as it has been represented.”

In Com. v. Buzzard, 9 D. & C. 145, 146, Stewart, P. J., brings the sáme distinction down to date and quotes from the cases just above cited.

2. The other principle is well stated by Chief Justice von Moschzisker, in “Trial by Jury,” § 422:

“If the defendant obtains knowledge during the course of his trial of any irregularity or misconduct of the jury, which he believes will work to his prejudice, it is his duty immediately to lay the matter before the trial judge; for if, with this knowledge, he permits the case to go to a verdict, he may be held to have waived the misconduct. A party ‘is not allowed to take the chance of a favorable verdict and yet reserve the right to impeach it for known irregularities.’ The proper practice in such cases is to make a motion for the withdrawal of a juror.”

In Com. v. Clay, 56 Pa. Superior Ct. 427, 463, it is said:

“ ‘If the defendant supposed that he could not have a fair trial, he ought to have laid the matter immediately before the court and requested that the jury might be discharged. He ought not to have taken the chances of a verdict in his favor and kept his motion for a new trial in reserve:’ McCorkle v. Binns, 5 Binney, 340; Eakman v. Shaeffer, 48 Pa. 176; Com. v. Razmus, 210 Pa. 609; Nemcof v. United States, 202 Fed. Repr. 911; Com. v. Beard, 48 Pa. Superior Ct. 319. The defendants having, with knowledge, elected to take their chances with the jury, we would not now be warranted in holding the court below guilty of an abuse of discretion in refusing, upon that ground, to grant a new trial.”

See, also, Lieberman v. Colahan, 267 Pa. 102, 107; Polish Society v. Stogoski, 15 Westmoreland L. J. 167, 179; Com. v. Reber, 10 Dist. R. 683; Bentz v. South Bethlehem, 7 Northamp. Co. Repr. 107; Francis v. Philadelphia, etc., Ry. Co., 13 Montg. Co. Law Repr. 176.

In the instant case, the conduct of the juror clearly falls within the first of these legal principles. He had prejudged the case.

In many of the cases the decision largely turned upon the effect of the affidavit or manner of proof in which the defendant endeavored to show the previous prejudice, bias or incompetency of the juror, and in some of the cases the prejudice or bias was denied by the juror: Com. v. Craig, 19 Pa. Superior Ct. 81; Com. v. Thompson, 4 Phila. 215; Com. v. Stokes, 4 York Leg. Record, 187; McCorkle v. Binns, 5 Binney, 340, 347.

In the present case, however, the matter does not rest upon an affidavit. When the question of bias was put to the juror himself in open court, based upon the note hereinbefore quoted, there was no denial by the juror of the facts stated in the note. So there is no difficulty in determining the fact that the juror had prejudged the case. The juror should have disclosed his prejudice before allowing himself to be sworn (Harper v. Kean, 11 S. & R. 280; Com. v. Reber, 10 Dist. R. 683, 684), but he not only did not disclose his bias but failed to deny it when the matter was presented to him. It might be a rather violent presumption to assume that a juror in that frame of mind would change his attitude even after the court instructed him to act upon the evidence and the evidence alone. It is our custom to charge the jurors that they must act on the evidence. We are inclined to think we did so in this case before the juror made his announcement in the jury room, but we have no stenographic notes of the trial. If the juror declined to so act after being first instructed to do so, it is unlikely he would change his mind after the second instruction.

It also appears that in most of the cases the matter came to the attention of the defendant, either before or during the trial, by some method outside of the proceedings in court. Here the matter came to the attention of the defendant, as well as to the court, by the proceedings in the court itself.

The first rule of law to which we have referred is a fundamental rule for the administration of justice. The second is a rule of practice to prevent the waste of time and money in the administration of justice. Whether a new trial should be granted is a matter within the discretion of the court: Com. v. Clay, supra. We are of the opinion that the rule as to procedure should give way to the fundamental rule which goes to the heart of the impartial administration of justice. Therefore, we shall apply the first and not the second principle to which we have referred.

In coming to this conclusion we do so for the further reason that the conviction of this defendant rested upon an identification by the witness alleged bo have been assaulted, which identification, to say the least, was not particularly strong. We think there was sufficient evidence to take the case to the jury. We cannot say, as a matter of law, that the verdict was so much against the evidence, because of the weakness of that identification, that it would not otherwise have been sustained. But, under the circumstances, and also for the reason that when fundamental rules of law, which go to the root of the administration of justice, come into conflict with rules of practice, the fundamentals should be adhered to and the rules of practice give way, we shall exercise our discretion, by granting a new trial.

Now, Dec. 31, 1929, a new trial is hereby granted.

Prom Homer It. Kreider, Harrisburg, Pa.


author: Schaeffer, P. J.,

text:
    Incorporation of Laureldale Borough.

      William Abbott Witman, Jr., for petitioners.

      Joseph R. Dickinson, for exceptants.
    Dec. 6, 1929.
   Schaeffer, P. J.,

We have before us the petition of certain residents of Muhlenberg Township in this county, praying that a certain area of that township be incorporated as a borough under the provisions of the General Borough Act of May 4, 1927, P. L. 519. We have also the remonstrance or protest by certain other residents of the district against the proposed incoirporation. Several hearings have been held in court and much testimony taken.

The initial and controlling issue is whether the petition before us is an “application for incorporation . . . iii writing . . . signed by a majority of the freeholders residing- within the limits of the proposed borough:” Section 202 of the Act of 1927, supra. This is a question both of fact and of law: Wernersville Borough, 5 Berks Co. L. J. 364.

In looking at the petition itself we find that, following the recitals of the document, there are three sheets of paper attached by staples thereto at the top of the page and containing signatures of ninety-seven persons; that then follows a plot or map of the district; that after that are eight sheets of paper folded in, but in no way actually attached to, the petition itself and containing 223 signatures; and that, finally, there are eleven pages, firmly bound to the petition by staples at the top of the page and containing 308 written names. The eight pages and the eleven pages show three perforations at the left-hand margin of the sheet, but the eight pages show no marks or perforations which would indicate that they had ever been physically attached to the petition before us. The only affidavit is that of Robert W. Hiester to the effect that he is one of the signers and that the number of freeholders resident in the district does not exceed 950, of whom 605 have signed the petition.

Upon the hearings the proponents offered testimony in explanation of this state of the record. They say, in substance, that three copies of the petition were prepared and circulated by groups, the second and third copies being carbon copies of the original; that the first ninety-seven signatures were obtained upon the original petition, that the 223 persons whose signatures appear upon the eight sheets of paper signed one copy, and the 308 persons whose names appear upon the final eleven sheets signed the other copy, and that at or about the time of filing in court the sheets of signatures were detached from the copies and attached to and filed with the original. The petitioners have also offered in evidence two copies of the petition which, according to some testimony, were the two copies circulated; but although they are obviously carbon copies of some original, they are equally obviously not carbon copies of the original before us, as they do not agree precisely with that in the setting of the words.

Under the circumstances thus disclosed, we cannot say that a majority of the resident freeholders have signed the petition before us. Various canvassers have testified that the copies circulated by them were copies of the original, but their testimony upon that point is too meager and insufficient to enable us to say as a matter of law that the persons solicited by them signed the application before the court when the same testimony established as a fact that such persons did not sign that petition.

Practically the same situation arose in Rockledge Borough’s Annexation, 8 D. & C. 19. There signatures were obtained upon numerous petitions which were precisely alike and were returned to counsel after they had been signed. Counsel removed from each copy the attached sheets bearing the subscribed signatures and permanently fastened all of these to another copy of the petition which had not been circulated at all. But the late Judge Miller held that the document thus assembled could not be held to be signed at all, and cited Adams v. Woods, 19 Manitoba Rep. 285, to the effect that in order not to open the doors to fraud “the courts cannot be too careful to discourage the alteration or mutilation of documents.” For the court to have to rely upon parol testimony to establish the identity and contents of the paper signed, in a case of this kind, would establish a dangerous precedent.

This is not a case of joining and filing as one multiple petitions without mutilation or other alteration.

We can, therefore, treat the petition before us as one signed by only ninety-seven persons. As it is admitted on both sides that the total number of freeholders resident in the district is in excess of 900, it is clear that the number of actual signers of the petition before us is much less than a majority of the resident freeholders.

There is no doubt in the mind of the court that the signatures upon the various sheets are genuine and that the persons in signing indicated a desire that a borough charter be granted. Nor is this a case of fraud, actual or constructive. Nothing has been alleged and sustained by any evidence whatsoever which is indicative of bad faith or fraudulent purpose. We ground our refusal to grant the prayer of the petition solely upon the conclusion that the petition before us cannot be said to have been signed by more than ninety-seven freeholders and that admittedly that number is insufficient to give the court jurisdiction. In consequence of this conclusion, it is unnecessary to consider the expediency of the application or any other objection to the proceeding.

And now, to wit, Dec. 6, 1929, the petition is dismissed.

From Charles K. Derr, Reading, Pa.


author: Jones, J.,

text:
    Schooley & Co. v. Custern et al.

      Frank L. Pmola, for plaintiff.

      Bedford, Jones, McGuigam & Waller, for defendants.
    Jan. 30, 1930.
   Jones, J.,

The title to the property is in the name of Harry Custren, the lien is filed against Harry Custern, and petitioner seeks to strike off the lien for that reason.

We are of the opinion that the principle of idem sonans applies.

In Myer v. Fegaly, 39 Pa. 429, real estate was conveyed to “John Bubb and wife,” and payment of a judgment resisted upon the ground that the judgment was against John Bobb, and, therefore, not a lien on the property. The court held the variance immaterial, both forms having the same sound, stating: “Persons searching the judgment docket for liens ought to know the different forms in which the same name may be spelt, and to make their searches accordingly; unless, indeed, where a spelling is so entirely unusual that persons cannot be expected to think of it,” and leave is granted the plaintiff to amend the name so that the lien will appear against Harry Custren in accordance with the record title. For the reasons stated in an opinion filed in a similar case in which the same parties are involved, No. 546, May Term, 1929, the mile to strike off the mechanic’s lien is discharged.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Makx, P. J.,

text:
    Parish’s Estate.

      George B. Balmer, Zieber & Snyder and Morgan, Lewis & Bockius, for appellant.
    Patti D. Edelman, for Register of Wills.
    Dec. 28, 1929.
   Makx, P. J.,

This cause arises upon the application of the Commonwealth to dismiss the appeal of Fidelity-Philadelphia Trust Company, executor of the will of Neff E. Parish, deceased, from the appraisement of certain real estate, for inheritance tax purposes, as part of the estate of said decedent.

An appeal having been taken, a petition for a citation to show cause why the appeal should not be allowed was presented, the citation issued, the Commonwealth moved the dismissal of the appeal and citation, and the appellant filed an answer. From these pleadings we find:

1. Neff E. Parish died, a resident of Berks County, July 11, 1928.

2. Said decedent left a last will and testament, in writing, dated Jan. 19, 1921, and a codicil thereto, also in writing, of the same date, under which he did not specifically dispose of the real estate involved in this proceeding and disposed of the residue of his estate in the following terms:

“Fourth. All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath to my Trustee hereinafter named, In Trust, to invest and keep invested, and the net income and profit thereof to pay over as follows:”

3. Testator further directs as follows: ‘T direct that all taxes, Federal and State, payable by my estate or chargeable on the legacies, bequests and annuities created by this my will, shall be paid out of the residue of my estate and not by any of the beneficiaries.”

4. Said will and codicil were probated on July 26, 1928, and letters testamentary were granted to Fidelity-Philadelphia Trust Company, successor to Fidelity Trust Company, one of the executors named therein. The executors named in said will were also named and constituted trustees under the terms of said will.

5. By indenture bearing date Feb. 14, 1928, Neff E. Parish and Lillian W. Parish, his wife, conveyed to Potter P. Parish all that certain two and one-half story stone house and farm, containing 50 acres, in Oley Township, Berks County, Pennsylvania, which said deed is recorded in the office for the Recording of Deeds in Berks County in Deed Book vol. 683, page 276, the consideration named therein being $12,500.

6. By indenture bearing date Feb. 14, 1928, Neff E. Parish and Lillian W. Parish, his wife, conveyed to Potter P. Parish all that certain two and one-half story stone house and farm, containing about 190 acres, in Oley Township, Berks County, Pennsylvania, which said deed is recorded in the office for the Recording of Deeds in Berks County in Deed Book vol. 683, page 278, the consideration named therein being $19,500.

7. By indenture bearing date Feb. 14, 1928, Neff E. Parish and Lillian W. Parish, his wife, conveyed to Potter P. Parish all that certain two-story frame house, barn and farm, containing about 229 acres, in Amity Township, Berks County, Pennsylvania, which said deed is recorded in the office for the Recording of Deeds in Berks County in Deed Book vol. 683, page 2$0, the consideration named therein being $17,500.

8. Neither the executor of said will nor the grantee named in said indentures, nor any other person in interest, gave information concerning the aforesaid three tracts of real estate to the Register of Wills of Berks County pursuant to or under the provisions of section 17 of the Act of Assembly of June 20, 1919, P. L. 521, 526.

9. By appraisement dated July 9,1929, the State Inheritance Tax Appraiser for the County of Berks entered and filed an appraisement of said three tracts of real estate, for inheritance tax purposes, under the provisions of the act of assembly aforesaid, and valued said three tracts as follows :

Farm 50 acres — two and one-half story stone house, Oley Township, Berks County, Pennsylvania................. $12,500
Farm 190 acres — two and one-half story stone house, Oley Township, Berks County, Pennsylvania................. 19,500
Farm 229 acres — two-story stone house and barn, Amity Township, Berks County, Pennsylvania................. 17,500

10. On Aug. 7, 1929, Fidelity-Philadelphia Trust Company, executor of the will of Neff E. Parish, deceased, appealed to this court from the inclusion in the appraisement, for inheritance tax purposes, of the recited three tracts of real estate, and on the same day presented and had approved its bond on appeal.

11. On Aug. 27, 1929, said appellant presented its petition, praying that a citation issue, directed to the Register of Wills of Berks County, to show cause why the appeal should not be sustained and the recited appraisement made void and of no effect. A citation issued as prayed.

12. On Sept. 28, 1929, the register of wills, agent for the Commonwealth of Pennsylvania, moved that the aforesaid appeal be dismissed, and assigned the following reasons:

“1. That appellant in the above entitled appeal, Fidelity-Philadelphia Trust Company, the executor of the last will and testament of the said decedent, is and was without authority under the law to take such an appeal.

“2. That the appeal filed on the 7th day of August, 1929, from the appraisement for transfer inheritance tax in the above estate sets forth no reasons, specifications or grounds of objection to said appraisement, and is, therefore, insufficient, incomplete and not in compliance with the law.”

13. On Oct. 16, 1929, appellant filed an answer to said petition for dismissal, setting forth the following reasons in avoidance thereof:

“1. The Fidelity-Philadelphia Trust Company, as executor of the estate of Neff E. Parish, deceased, has such an interest under the will of the said decedent, a copy of which is attached hereto, marked Exhibit ‘A,’ as to enable it to appeal from the said appraisement, and is entitled to make the said appeal according to the laws of the Commonwealth of Pennsylvania.

“2. Nothing in the law of the Commonwealth of Pennsylvania requires the said appeal to contain reasons, specifications or grounds of objection.”

Discussion.

This appeal was taken under the provisions of section 13 of the Act of Assembly of June 20, 1919, P. L. 521, which provides:

“Any person not satisfied with any appraisement of the property of a resident decedent may appeal, within thirty days, to the Orphans’ Court. . . . Upon such appeal, the court may determine all questions of valuation and of the liability of the appraised estate for such tax, subject to the right of appeal to the Supreme or Superior Court.”

That this court has jurisdiction to determine the questions raised upon the appeal under the specified facts of this case seems to be settled by the decision of the Supreme Court in Connell’s Estate, 282 Pa. 555.

The Commonwealth, under the first reason set forth in its motion for a dismissal of the appeal, contends that the executor of the will of this decedent, having no interest whatsoever in real estate included in the appraisement, is without a right to appeal, and that the appeal must, consequently, fall. This position raises the question of the right to appeal. The Act of April 10, 1849, § 12, P. L. 570, provided:

“That any person or persons dissatisfied with said appraisement or assessment shall have the right to appeal within thirty days to the Register’s Court of the proper county.”

This act of assembly did not impose any duties upon executors or administrators in respect to the valuation of real estate. In construing the act, the Supreme Court, in Com. v. Coleman’s Admin’r, 52 Pa. 468, concluded (page 472):

“. . . it is impossible to see in them [the recited acts of assembly] any legislative intent to make executors and administrators parties to the proceeding.

“It is true that the tax is assessed upon the value of the estate that remains after payment of debts; that executors and administrators are the proper parties ‘to adjust and pay the debts of decedents;’ and though the personal estate is primarily the fund for payment of debts, it is also true that in Pennsylvania lands are also assets for the payment of debts. But they are not assets in the hands of administrators, nor indeed in the hands of executors, unless made so by the will of the testator, but are rather assets in the hands of the Orphans’ Court, to be ordered to sale as often and when the personal representatives can show that court that necessity to sell or mortgage them exists. Administrators do not represent the realty of the decedent. They give no bond that covers it, and though they may collect rents for it, they cannot touch it even for the payment of debts except by order of the Orphans’ Court, and then only upon giving an additional bond for the due application of the proceeds. ... It wholly belongs to the heirs to question the valuation of the real estate, and to pay the tax. They are the only parties who have a right to be ‘dissatisfied’ with the valuation of the realty, and, therefore, are the only parties who have the right of appeal.”

To the same effect are the decisions in Merkel’s Estate, 131 Pa. 584, and Morrison’s Estate, 196 Pa. 80. Since an executor has no more to do with a decedent’s realty than has an administrator, unless there is a provision in the will imposing some duty upon him in regard to it (Kelley’s Estate, 297 Pa. 17, 21), it follows that, unless, under the circumstances of this case, or some particular provision of this will, there is imposed upon the executor or trustee some duty relative to the valuation of this real estate or the payment of the tax assessed against the same, this appellant cannot be included under the classification established by the words of section 13 of the recited Act of 1919, “any person not satisfied.” Referring to the testator’s will, we find no reference to the real estate here involved. It is not specifically or impliedly mentioned. True, under an examination of the will, it might be concluded that the real estate was included in the residuary bequest and devise. This view, however, is entirely overcome by the fact that testator, in his lifetime, by his own conveyances, dated Feb. 14, 1928, presumptively delivered on that day, placed the real estate beyond his own power and, consequently, beyond the power of his last will and testament and beyond the authority of any executor or trustee appointed thereunder. Further, under the fourth item of the will, testator directs “. . . that all taxes, Federal and State, payable by my estate or chargeable on the legacies, bequests and annuities created by this my will, shall be paid out of the residue of my estate and not by any of the beneficiaries.” Again, we must conclude that the grantee under testator’s deeds was not a beneficiary contemplated by or included under the terms of said testamentary provision. In fact, we can find nothing in testator’s will in any way or to any extent imposing any duties or obligations upon the executor or trustees relative to the assessment or payment of inheritance tax. The Act of 1919 does require executors and administrators to report decedent’s real estate liable for tax. A reading of the case of Com. v. Coleman’s Admin’r, supra, page 471, shows that prior legislative enactments, in this respect, imposed similar duties upon fiduciaries, without rendering them liable for assessment or payment of tax and without making them eligible to the right of appeal.

A consideration of the rights and duties of all parties under the conveyances and of the responsibility of the executor and trustee under the will and under legislative enactments satisfies us that no duty or liability in connection with the assessment or payment of inheritance tax is imposed upon this appellant. If the conveyances executed, delivered and recorded should be set aside or avoided for fraud or other reason, and the real estate in question be brought back into the estate of this decedent, a different question would be met. Here, however, there is no suggestion of such avoidance nor any intimation of any right or estate against the conveyed fee. So long as the conveyances stand, the only person interested in the real estate conveyed is the grantee named in the conveyances. He and he alone is interested in the assessment and payment of the inheritance tax if any be found to be due against the same. There is no liability on this appellant, and, consequently, there rests in the appellant no right, as a dissatisfied party, to appeal.

Conclusion.

Our conclusion is that the appellant is without the right to appeal and that the petition of the Commonwealth, asking that the appeal be dismissed, must accordingly be sustained. This conclusion renders unnecessary a consideration of the second ground urged by the Commonwealth to this same end. The appeal of the Fidelity-Philadelphia Trust Company, executor of the will of Neff E. Parish, deceased, is accordingly dismissed, at the costs of the appellant.

From Charles K. Derr, Reading, Pa.


author: Davis, J.,

text:
    Yonker v. Yonker.

      F. I. Farley, for plaintiff; Robert F. Bonner, for defendant.
    June 30, 1930.
   Davis, J.,

The plaintiff brought this action in replevin to recover three certificates for three shares each of the stock of the Electric Storage Battery Company and two life insurance policies.

The plaintiff is an employee of the Electric Storage Battery Company. Under a plan of that organization employees were given the privilege of subscribing to a certain amount of stock at a price below the market price. In 1923 the plaintiff subscribed to his allotment of three shares of stock. The certificate for those three shares was delivered to the plaintiff in 1926. In 1924 he subscribed to three shares, the certificate for which was delivered in 1927; and in 1925 he subscribed to three shares, the certificate for which was delivered to him in 1928. The certificates were all in the name of the plaintiff. The dividends were payable to and received by the plaintiff. The certificates were deposited in a tin box which was kept in the home of the plaintiff and defendant, to which both the plaintiff and defendant had access. The key thereto was left upon the dresser in a glass dish. The plaintiff and defendant were married in 1925.

The plaintiff testified that when he received the certificate for the first three shares of stock he handed it to his wife, the defendant, told her to put it away in the box for safekeeping; that the certificate for the second three shares was also handed to the defendant by the plaintiff, who testified that he told the defendant to put the certificate away with the other. As to the third certificate, the plaintiff testified that he took it home and placed it on the sideboard, in the belief that his wife would put the certificate in the tin box with the other certificates. Sometime prior to the date when the plaintiff placed the certificate for the last three shares on the sideboard, the plaintiff and defendant had some domestic difficulty, were not on speaking terms, and they subsequently separated. At the time of the separation the plaintiff did not take the certificates of stock away from the home with him. The .defendant now claims that the certificates were given to her as a gift. The certificates were not transferred in blank, nor did the defendant make any demand at any time that the certificates be placed in her name. The defendant never asserted any title to the stock prior to the separation. The defendant testified with reference to the certificate for the first three shares: “In 1926 he brought the first three shares home, and he handed them to me, and he said, ‘here, these are yours; put them away for safekeeping,’ which I certainly did. In 1927 he brought three more shares home, and said, ‘put these away with the rest of them.’ ” In 1928 the plaintiff brought home a certificate for the last three shares, and with respect to that certificate the defendant testified: “He laid that on the buffet, and that laid there for one week until I put it away. I did not know what to do with them. We were not on speaking terms. I did not know whether I was entitled to have them. He did not tell me what I was to do with them.”

As to the two policies of insurance, there was little testimony presented. The defendant testified that the two policies had been in the box since the date of the marriage. There is no testimony whatever to sustain a verdict in favor of the defendant as to these policies.

As this is an action in replevin, the plaintiff must recover on the strength of his own title and not on the weakness of his adversary’s. The title to the certificates had never been transferred and was still in the name of the plaintiff. The physical possession of the certificates was in the plaintiff, as they were in a box which was the common property of himself and his wife.

Considering the case from the equitable viewpoint, to wit, that this was a gift inter vivos, the plaintiff has shown that he never parted with the title to, nor dominion over, the property. The failure of the defendant to take possession of the certificate for the last three shares of stock negatives her testimony that it was a gift. Nor did her testimony as to the six shares meet the proof necessary to sustain a gift inter vivos. To make a valid gift inter vivos there must be a clear, satisfactory and unmistakable intention of the giver to part with and surrender dominion over the subject of the gift, with an intention to invest the donee with the right of disposition beyond recall, accompanied by an irrevocable delivery. There is no presumption of an intention to give, and the purpose to do so, followed by an actual or constructive delivery, must be shown, and the burden of proving both of the necessary elements rests on the alleged donee. Prior to complete surrender, the donor may alter his intention and retake the subject-matter, or thereafter the donee may return it, thus releasing the right of ownership: Kaufmann’s Estate, 281 Pa. 519.

In Leadenham’s Estate, 289 Pa. 216, it was said: “The evidence of a gift inter vivos must be clear and satisfactory; that it must disclose an unmistakable intention on the part of the donor at the time to withdraw or surrender his dominion over the subject of the gift; that it must show unequivocally an intention to invest the donee with the right of disposition beyond the recall of the donor; that the gift must be completed by actual or constructive delivery beyond the power of revocation; that the intention of the donor must be made manifest and established by clear and precise evidence, and the delivery of the subject of the gift must be as complete as the circumstances permit.”

The latest decision upon this question is in Huber’s Estate, 98 Pa. Superior Ct. 563, where it was said:

“ ‘It is well settled that a valid gift of non-negotiable securities may be made by delivery of them to the donee without assignment or endorsement in writing. This principle has been applied to notes, bonds, stock and deposit certificates and life insurance policies:’ Com. v. Crompton, 137 Pa. 147. This statement has been followed in a number of cases. The matter is fully discussed with a citation of authorities by Justice Walling in Leadenham’s Estate, 289 Pa. 216. The distinction between the cases sustaining this statement and the one we are now considering is pointed out in the above case by a citation from Basket v. Hassell, 107 U. S. 602. The point which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation, and be delivered to the donee so as to vest him with an equitable title to the fund it represents and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in ease of a gift mortis causa.”

For the reasons stated at the time of the trial and here, we are of opinion that the plaintiff was entitled to binding instructions.

The motion for a new trial is overruled.