text:
    Commonwealth v. Albright.

      Karl E. Richards, Assistant District Attorney, for Commonwealth.

      Thomas D. Caldwell, for defendant.
    Dec. 22, 1930.
   Wickersham, J.,

This defendant was indicted !'to the numbers and session above stated, charging him with an attempt to commit burglary; he was convicted. Thereafter he moved for a new trial, alleging the verdict was against the law and against the weight of the evidence. These objections were not pressed at the argument of this motion before the court in banc.

The third reason alleged for a new trial was: “The identity of the fingerprints having been offered in evidence, and this being uncorroborated by any other evidence identifying the defendant as the one who committed the crime, the jury’s verdict of guilty was unwarranted.”

The testimony was taken stenographically by the court reporter, from which it appears that on May 3,1930, the home of John Grove and his wife, at No. 2804 Walnut Street, sometimes known as Main Street, in Penbrook, was broken into and an attempt made to steal property therefrom between the hours of 7.30 and 10.30 P. M. Entrance to the building was gained by breaking a small pane of glass near the doorknob of the rear door, and the'glass broken in this manner was piled up on a small pile in the vestibule between the door above mentioned and the outside of the house, behind a carton. The glass in question, together with other glass in the door, was washed and cleaned at 3 P. M. on the date of the crime. These facts are not in controversy.

Upon examination of the broken glass, a fingerprint was discovered, although it was not at the time known whose fingerprint it was. The glass was carefully preserved, and several weeks later, when the defendant was arrested on another charge, his fingerprints were taken, with his consent. Upon examination of his fingerprints and the fingerprint on the glass, it was discovered that one fingerprint of the defendant was identical with the fingerprint on the glass in twenty-two particulars. This was established by the expert testimony of William P. Hoffman, a member of the State Police, acting as Chief of the Pennsylvania State Bureau of Criminal Identification. He was admitted as an expert without objection on the part of the defendant. It was also admitted by counsel for the defendant that two others experts whom the Commonwealth was prepared to produce would testify to the same effect as Mr. Hoffman. In addition, Mrs. Mary Vuchity testified that she saw the defendant passing the house of Mr. John Grove and his wife on the evening the crime was committed.

Mr. Hoffman testified that his work consists of classification and comparison of fingerprints; the supervision of filing of all data concerning crimes and criminals. He testified that he studied under Deputy Commissioner Four-rot and Captain Golden, who successively had charge of the New York City Identification Bureau, which was the first inaugurated in the United States; that he also studied under Mr. Bateman and with Mr. Steinberg, of Washington, and he studied all of the books that can be found in English on the subject, including some translations from foreign languages; and, in addition, he has had the benefit of the amount of work handled in the State Police Bureau, and that he has classified and compared in the past ten years approximately fifty to sixty thousand sets of fingerprints. After cross-examining the witness as to his learning as an expert, counsel for the defendant raised no objection to his qualification-. This witness testified with great particularity to the several steps pursued in order to make a comparison between the fingerprint on the glass taken from Mr. Grove’s house and the acknowledged fingerprints of the defendant. In answer to the following question of the court: “. . . In your opinion, was it the same finger that made the print on Exhibit No. 5 that also made the print on Exhibit No. 6?” the witness replied: “It is the same finger.”

On cross-examination by counsel for the defendant, this question was asked: “. . . Now, Mr. Hoffman, finger-printing is not an exact science, is it?” to which the witness replied: “It is so considered.”

The question being'further pressed, the witness testified: “There is the same possibility of two fingerprints being the same as there is of two trees having the limbs and branches in the same relative position, due to the fact that each individual finger has from 60 to 80 or more of these characteristics that we have described, 22 in this particular print, and that you cannot get those characteristics in the same relative position in a print of two fingers any more than you can find limbs and branches of two trees in the same position if you were to hunt all over the world.”

In answer to the further question, “You say you cannot find it; you might find it; you don’t know that?” the witness stated: “It is an axiom that nature never created two things alike.”

In answer to the question of the court: “Has anybody else ever found that?” the witness stated: “I have never heard of it, your Honor.”

The question being pressed by counsel for the defendant as to whether by any chance there are fingers which have the same characteristics, the witness replied: “I know only from La Carte’s lifetime study of fingerprints, and he is a famous. French mathematician, and he stated it is not, that there is not one possibility in the figure of 2, followed by sixty naughts, which I cannot pronounce — the figure 2 followed by sixty naughts — he said in that number there is not one possibility of finding two fingerprints alike.”

In our charge to the jury we laid these matters before them with great particularity, dwelling at some length on the question of reasonable doubt. To this charge no exception was urged by counsel for the defendant at the oral argument.

It will be noted that the conviction of the defendant rested largely on the uncorroborated testimony of the fingerprint expert and the photographs of the fingerprints themselves. The júry had before them Exhibits 5 and 6, being enlarged photographs of the fingerprint found upon the glass taken from the Grove house, and the fingerprints acknowledged by the defendant to be his. Aside from the testimony of the expert that the fingerprints were identical in twenty-two respects, the jury could judge that for themselves by comparison of the two.

That expert testimony may be considered by the jury as part of the evidence in the case, the weight of which is for the jury, has been determined in many Pennsylvania cases: Pannell v. Com., 86 Pa. 260; Johnson v. Com., 115 Pa. 369, 384; Wells v. Leek, 151 Pa. 431, 438; Bollinger v. Gallagher, 170 Pa. 84, and Com. v. Shults, 221 Pa. 466.

A history of the use of fingerprints will, we think, prove enlightening. We find fingerprints have been used as a means of identification in China, Japan, India and Egypt for a great many years. It seems to be well settled, both in England and in this country, that evidence of the correspondence of fingerprint impressions for the purpose of identification, when introduced by qualified fingerprint experts, is admissible in criminal cases; the weight and value of such testimony being for the jury: Moon v. State, 22 Arizona, 48, 198 Pac. Repr. 288.

The historical facts and the more recent legal decisions upon the subject are collated in a very able opinion handed down by Wadhams, J., in the case of People v. Sallow, 100 Misc. Rep. 447, 165 N. Y. Supp. 915, 925, from which we quote the following:

“. . . The first recorded fingerprints were used as a manual seal, to give a personal mark of authenticity to documents. Such prints are found in the Assyrian clay tablets in the British Museum. Fingerprints were first used to record the identity of individuals officially by Sir William Herschel, in Bengal, to check forgeries by natives in India in 1858. C. Ainsworth Mitchell, in ‘Science and the Criminal,’ 1911, page 51. Fingerprint records have been constantly used as a basis of information for the courts since Sir Francis Galton proved that the papillary ridges which cover the inner surface of the hands and the soles of the feet form patterns, the main details of which remain the same from the sixth month of the embryonic period until decomposition sets in after death, and Sir Edward Henry, the head of the Metropolitan Police Force of London, formulated a practical system of classification, subsequently simplified by an Argentine named Vucetich. ... It is claimed that by means of fingerprints the metropolitan police force of London during the thirteen years from 1901 to 1914 have made over 103,000 identifications, and the magistrates’ courts of New York City during the four years from 1911 to 1915 have made 31,000 identifications, without errror. . . .

“It was held in 1909 by the Lord Chief Justice of England that the court may accept the evidence of fingerprints, though it be the sole ground of identification: Castleton’s Case, 3 Crim. App. 74. In People v. Jennings, 252 Ill. 534, 549, 96 N. E. Repr. 1077, 1082, 43 L. R. A. (N. S.) 1206, Mr. Chief Justice Carter, in holding such evidence admissible, states that ‘there is a scientific basis for the system of fingerprint identification, and that the courts are justified in admitting this class of evidence; that this method of identification is in such general and common use that the courts cannot refuse to take judicial cognizance of it.’ ” See, also, the leading case of People v. Roach, 215 N. Y. 592, 604, 109 N. E. Repr. 618, 623.

In People v. Jennings, supra, Chief Justice Carter, of the Supreme Court of Illinois, after referring to the authorities on fingerprints, has this to say (see page 1081) :

“. . . These authorities state that this system of identification is of very ancient origin, having been used in Egypt when the impression of the monarch’s thumb was used as his sign manual; that it has been used in the courts of India for many years and more recently in the courts of several European countries; that in recent years its use has become very general by the police departments of the large cities of this country and Europe; that the great success of the system in England, where it has been used since 1891 in thousands of cases without error, caused the sending of an investigating commission from the United States, on whose favorable report a bureau was established by the United States Government in the war and other departments.”

Mr. J. Edgar Hoover now has charge of the Criminal Identification Bureau of the United States Department of Justice. In an article prepared by him for the November, 1929, issue of “The Annals of the American Academy of Political and Social Science,” Mr. Hoover states:

“. . . History is replete with references to prove that even in ancient times man was aware of the peculiar permanent lineations described by the ridges of the fingertips. On the face of a cliff in Nova Scotia, for instance, can be found an Indian carving of the outline of a hand with ridges and patterns clearly but crudely marked. So, also, the Chinese had used the impression of the thumb as a counter-signature, and, according to Sir William Herschel, had even applied the idea to bank notes by placing a thumb impression partly on the counterfoil and partly on the note itself so that its genuineness might be easily established. . . .

“The first known scientific observation on finger ridges was made in 1686 by Malpighi, the father of the science of histology and a professor of anatomy at the University of Bologna, who tersely alluded to the ridges which ‘describe different patterns.’ . . .

“It remained for Doctor Henry Faulds, an English authority on the subject of fiactylography, to write the first article on the practical use of fingerprints for the identification of criminals. In 1880, Doctor Faulds, who was connected at that time with the Tsukiji Hospital at Tokyo, Japan, conducted experiments which definitely established that the varieties of individual fingerprint patterns were very great; that the patterns remained constant throughout life; and that even after the removal of ridges by the use of pumice stone and acid the patterns invariably grew out again ‘with unimpeachable fidelity’ to their originals.”

Mr. Hoover states that in the National Division of Identification and Information in the United States Department of Justice they have approximately 2,400,000 cards now on file, totaling nearly 24,000,000 individual fingers. -, /

Evi^eiúe.

‘The weight to be given to the question of identity of a prisoner with the person committing a crime, as presented by the comparison of such person’s fingerprints with fingerprints found at the scene of the crime, is a question for the jury. Such evidence is suificient to support a conviction: Underhill’s Criminal Evidence (3rd ed.), § 815, citing many authorities, among them being an Allahabad (India) case, apparently unreported but referred to in Emperor v. Sahdeo, 3 Nagpur, 1,14, where it appeared the accused, a Kayesth, had left a thumbprint in blood on a lotah found near the body of a man he was accused of having murdered. He pleaded an oMbi; and the Sessions Judge disposed of it in these words:

“In this land of lies, an ounce of good circumstance is worth many pounds of oral evidence, and even, if, instead of two, two hundred Kayesths swore they had sat in a circle round the accused from 6 P. M. to 6 A. M., it would be nothing in my mind compared with the unexplained bloody thumbprint.”

The High Court, in confirming the sentence of death passed in the case, referred to the thumbprint as “evidence upon which we can safely rely,” and added it was “conclusive of the presence of the appellant” at the scene of the murder.

Underhill also refers — see note, page 1126 — to Castleton’s Case, 3 Crim. App. (Eng.) 74, a burglary case, in which it appeared that the only evidence against defendant was that of fingerprints upon a candle left behind. An appeal was taken from a refusal of the trial judge to grant leave to appeal against a conviction. The Lord Chief Justice spoke as follows:

“We are clearly of opinion that this application must be dismissed. The suggestion has been made that these fingerprints may have been put there by some one else, but that suggestion was disposed of by the jury, who decided upon the evidence before them. Our attention has been drawn to the photographs of the impressions of the fingerprints. Looking at the middle finger particularly, as well as to the index finger of the right hand, we agree with the evidence of the expert at the trial.”

At the trial of the instant case we left the question of the credibility of the expert witness, Hoffman, to the jury, and we think their verdict of guilty clearly determines that they believed the testimony of the expert witness, Hoffman, and so believing, it conclusively follows that the defendant was the person who entered the house of the Groves on the night in question with an attempt to steal.

It was further urged upon us that the defendant ought not to have been convicted, and the conviction ought not to stand on the uncorroborated testimony of the fingerprint evidence. There was some corroboration, however, as the defendant was seen in the vicinity the evening the crime was committed; and there is authority for such conviction in the instant case.

In the case of Parker v. The King, 14 C. L. R. (Australia) 681, 3 British Ruling Cases, 68, it was held:

“Where it is proved that a erime has been committed, resemblance of fingerprints may of itself, in connection with other circumstances, be sufficient evidence of the identity of an accused person with the person who committed the crime charged.”

Writing the opinion of the High Court of Australia, it was said by Griffith, C. J.:

“. . . We are asked to allow the point to be argued whether, when evidence of fingerprints is the only evidence of identity, it is sufficient to support a conviction. Leave is asked in the hope that the rule may be laid down that it is not. Signatures have been accepted as evidence of identity as long as they have been used. The fact of the individuality of the corrugations of the skin on the fingers of the human hand is now so generally recognized as to require very little, if any, evidence of it, although it seems to be still the practice to offer some expert evidence on the point. A fingerprint is, therefore, in reality an unforgeable signature. [Italics ours.] That is now recognized in a large part of the world, and in some parts has, I think, been recognized for many centuries. It is certainly now generally recognized in England and other parts of the English dominions. If that is so, there is in this case evidence that the prisoner’s signature was found in the place which was broken into, and was found under such circumstances that it could only have been impressed at the time when the crime was committed. It is impossible under those circumstances to say there was no evidence to go to the jury.”

We think the last quoted case is controlling in the instant case. We are impressed with its reasoning. There is in the instant case evidence that the prisoner’s “unforgeable signature” was found in the place which was broken into and was found under such circumstances that it could only have been impressed at the time the crime was committed. The window in this door had been washed by Mrs. Grove at 3 o’clock in the afternoon, and had not been touched by either herself or her husband after that time. The defendant’s “unforgeable signature” was found on a piece of broken glass taken from the door by means of which he unlocked it on the inside and entered the house. We think.the evidence was sufficient to support the conviction and the motion for a new trial is, therefore, overruled:' The district attorney is directed to call the defendant for sentence. /

From ■ Homer I/. - Kr&iderrFEarrisbur g-, Pa.


source: Caselaw Access Project

author: Appel, P. J.,

license: Public Domain

text:
    Ellwerth’s Estate.

      Guy K. Bard, for exceptions; Charles W. Baby, contra.
    Oct. 16, 1930.
   Appel, P. J.,

Exception is filed to the adjudication in this estate because the claim of the undertaker who buried Eliza E. Ellwerth, widow of the decedent, was not allowed. This is a hard case, and if there could be found any legal authority to sustain this claim the court would very willingly direct its payment.

John E. Ellwerth died July 1, 1.925, leaving a last will, the material parts of which are as follows:

“Item: I give, devise and bequeath the income of my entire Estate, Real, Personal and mixed, unto my dear Wife, Eliza A. Ellwerth for and during the term of her natural life. . . .

“I order and direct that if the income from my Estate is not sufficient for the comfortable maintenance of my wife, my Executor, Charles R. Cooper, shall pay from the principal of my estate a sum to be added to the income to make a sum sufficient for the comfortable support and maintenance of my wife.”

At the death of his widow testator gave a number of legacies to various persons and the residue to other persons, some of whom are now living in distant lands. The principal of the estate for distribution amounts to nearly $10,000, and yet it seems none of it may be lawfully used to pay the funeral expenses of his widow, who died five years after her husband.

It is contended by counsel for exceptant that the item of testator’s will above quoted giving the executor power to use of the principal of the estate for the “comfortable support and maintenance of my wife” is sufficient authority for the payment of her funeral expenses. This contention cannot be sustained. Just how money expended for the-widow’s funeral expenses can contribute to her “comfortable support and maintenance” has not been shown. She enjoyed the income from his estate as long as she lived. Testator made no provision for the payment of her funeral expenses after she died. There is no authority under the will to deplete the estate for this purpose. In the absence of such authority the claim must be disallowed.

Exceptions dismissed and adjudication confirmed absolutely.

Prom George Ross Eshleman, Lancaster, Fa.


author: Alessandroni, J.,

text:
    Philadelphia School District et al. v. Nardizzi et al.

      David L. German, Jr., for plaintiffs.

      Byron, Longbottom, Pape & O’Brien and Charles L. Smyth, for defendants.
    Dec. 3, 1930.
   Alessandroni, J.,

Quirino Nardizzi entered into a contract with the School District of Philadelphia for the erection of new walls and fences at the Germantown High School in accordance with specifications. The bond was filed by Quirino Nardizzi, principal, and the National Surety Company of New York, surety, in the sum of $4600. Quirino Nardizzi having defaulted, this suit was brought by Bernard McCabe and Thomas McCabe, copartners, trading as Rock Hill Quarry, as the use-plaintiff of the School District of Philadelphia. The defendant, National Surety Company, petitioned for a rule to interplead and for leave to pay the obligation of the bond into court. The rule to interplead was dismissed and leave was granted the petitioners to pay the sum of $4600, less $230 counsel fee, into court to be distributed by an auditor pro rata to the parties entitled to receive it.

An auditor was appointed; testimony was taken by him and a report filed of record. Exceptions were filed to conclusions of law set forth therein, which exceptions were dismissed by the auditor. These questions have now been raised by the plaintiff in the exceptions filed in this court.

The bond was conditioned as follows:

“Now the condition of this obligation is such, That if the said Quirino Nardizzi shall and will promptly pay or cause to be paid to any and all persons any and all sum or sums of money which may be due for labor or materials or both furnished, done, performed or supplied upon, in or about the said buildings or work, provided that proof satisfactory to the Secretary of the Board of Public Education shall be furnished that written notice of the delivery of the material or the labor performed shall have been given to the principal or surety therein within ninety days thereof, and will and shall comply with all the provisions of Rule in of The Board of Public Education and the provisions of the School Code, approved May 18, 1911; then this Obligation to be null and void; otherwise, to be and remain in full force and virtue.

“It being understood and agreed that no suit shall be brought upon this Bond after the expiration of 2 years from the date hereof.”

Some of the laborers and materialmen who presented claims had not complied with some of the conditions of the bond, and the exceptant, who is also a materialman, contends that a failure to comply with any one of the conditions of the bond precludes such a creditor from sharing in the fund paid into court.

The auditor found in his conclusions of law as follows:

1. No claimant is barred from recovery against the fund for failure to have instituted suit on the bond within two years of the making thereof.

2. No claimant is barred from recovery against the fund for failure to have given proof of notice satisfactory to the Secretary of the Board of Public Education of the performance of the labor or delivery of the materials within ninety days thereof.

3. No claimant is barred from recovery against the fund for failure to have complied with Rule in of the Board of Public Education relative to the institution of suit on the bond.

The propriety of these findings is the sole question at issue. The exceptant has withdrawn his exceptions to the auditor’s allowance of the claims of the laborers as follows: 45th, 46th, 47th, 48th, 49th, 50th, 51st, 52nd, 53rd, 54th and 55th conclusions of law.

It is first contended that the condition of the bond that no suit can be brought thereon after two years from the date thereof precludes allowance of those claims in which that condition was not met. The bond was dated Sept. 13, 1927. On Oct. 22, 1928, the President Judge of this court granted the surety company’s petition for leave to pay the sum of $4600, less counsel fee and costs, into court. On Oct. 26, 1928, this order was amended so as to release and discharge the surety company of all liability upon the bond. Under these circumstances, the institution of any suit on the bond would be of no consequence and would constitute a superfluous and wholly useless gesture. The fund had been paid into court within the two years and distribution pro rata by an auditor to the parties entitled to receive it was ordered. Several of the creditors intervened within the two-year period, moreover, and this is equivalent to the institution of suit. In so far as those creditors are concerned who did not intervene, we are of the opinion that after the payment of the fund into court the institution of suit would be of no legal consequence, and, hence, not necessary. The fund was ordered to be distributed to those legally entitled thereto, and the two-year limitation not having run at the time the fund was paid into court, this condition was nullified. Moreover, we are of the opinion that this condition as to time was created solely as an affirmative defense to protect the surety company, and for reasons which will be fully discussed in this opinion the exceptant cannot avail himself of it.

It is next contended by the exceptant that failure to comply with the condition of the bond that “proof satisfactory to the Secretary of the Board of Public Education shall be furnished that written notice of the delivery of the material or the labor performed shall have been given to the principal or surety therein within ninety days thereof” precludes those creditors who have not met this condition from sharing in the fund. The basis of this contention rests on the theory that the exceptant, as one of the beneficiaries under the bond, has the right to set up as against other beneficiaries any defense which the surety might have made. We cannot agree with this contention. The condition stipulated in the bond as a prerequisite to the right to collect thereunder was included in the bond in order to protect the surety. The payment of the money into court absolved the surety from any further claims that might be made against it, and the court ordered that the fund be distributed pro rata to those entitled thereto. The obligee of the bond, The School District of Philadelphia, is merely a use-plaintiff for the benefit of the materialmen and laborers who performed labor and supplied materials to the contractor under the original contract. The conditions, in our opinion, were inserted for the protection of the surety and The School District of Philadelphia, but not for the protection of laborers or materialmen. In fact, the conditions are imposed against laborers and materialmen and in favor of the surety and the school district.

A review of the decisions dealing with this problem in Pennsylvania fully supports this view. In fact, in 32 Cyc. 149, it is stated that “defenses do not operate in favor of a surety which are personal to the principal or to a co-surety. Matters personal to a surety may be set up by him in his defense, although they are not available to the principal . . .” With even more reason, it may be asserted that defenses in favor of a surety do not operate in favor of one of the beneficiaries under the bond as against other beneficiaries. The conditions of the bond being created in favor of the surety company and the school district are personal to them and are not available in favor of one beneficiary as against another. In White v. Turner, 217 Pa. 25, the contractors for a school building gave to a subcontractor an order on the school board which was accepted. The contractors subsequently became bankrupt and their trustee demanded the money payable by the school board as against the subcontractor. The board paid the money into court and the trustee endeavored to set up as against the subcontractors defenses of consideration and of a new ultra vires contract of the board. The Supreme Court, in a per curiam opinion, ruled that as the board, by payment into court, had declined to raise questions between itself and the subcontractors the trustee was not in a position to do so. Certainly, a trustee for the contractor has higher rights than other subcontractors.

In Pennsylvania R. R. Co. v. Wolfe, 203 Pa. 269, a question arose as to who was the proper beneficiary in a relief association. The relief association paid the money into court and one beneficiary tried to set up as against another beneficiary the fact that the latter had not complied with the rules of the relief association. The court stated that while the association could insist on its legal rights under the rules, by paying the money into court it withdraws from the contest and waives its rights, and the defenses which it might have had are not available in favor of one of the beneficiaries. While this view has not been considered as being valid to its fullest significance (Grant v. Faires, 253 Pa. 232), it still applies where no vested legal rights are impaired, as here.

In Sanes’s Estate, 91 Pa. Superior Ct. 466, the original beneficiary of the life insurance policy was the insured’s estate. The deceased forwarded to the company a request to change the beneficiary so as to name his sister, but failed to comply with the requirements of the insurance company for a change of beneficiary. In a dispute between the estate and the sister the court ruled in favor of the sister, stating: “When the formalities relative .to a change of beneficiary prescribed by the policy have not been observed, there is a clear distinction between the rights of the company and those of the original beneficiary. This distinction is thus stated by Judge Rice in Earner v. Lyter, supra: ‘As to the right to object to an attempted change of beneficiary upon the ground that all the formalities prescribed by the policy have not been observed, a distinction is r.eeognized between the company and the beneficiary originally named in the policy. Without undertaking to state a general rule that will apply to all cases, we think it safe to say that where the provision as to such formalities is exclusively for the benefit of the company, and the company, waiving its right to raise the objection, takes the position of a stakeholder, such noncompliance is not necessarily fatal to the claim of the new beneficiary in an issue between him and the original beneficiary who was a mere volunteer.’ ”

In the case at bar a similar situation has arisen, and we are of the opinion that the formalities which were created in favor of the surety company can only be insisted upon by the surety and not by one of the beneficiaries under the policy.

In so far as the school district is concerned, it must be remembered that the obligation was that of Nardizzi and the surety company and not that of the school district. No obligation on the part of the school district appears, and in fact no interest of the school district has been set forth by any of the parties in the case. It, therefore, cannot be averred that a failure to comply with this condition would prejudice the school district in any way.

The final argument of the exceptant is that the failure of some of the creditors to comply with Rule ill of the School Board of Philadelphia precludes them from sharing in the fund. That rule provides that a bond shall be furnished by contractors with sufficient surety, conditioned on the payment of all sums supplied in or about the work, “provided that proof satisfactory to the Secretary of the Board of Public Education shall be furnished that written notice of the delivery of the material or the labor performed shall have been given to the principal or surety therein within ninety days thereof.” It further pi’ovided, upon the furnishing of an affidavit that the work and labor had been done and payment not made, a claimant should be furnished with a certified copy of the contract or bond and authorized to institute suit in the name of the school district, provided that the school district is put to no expense and is indemnified against costs, and provided that no suit shall be brought upon the bond after two years from its date. It can be seen that this rule really constitutes the conditions which were imposed in the bond itself and which conditions have been heretofore discussed. The only other stipulation contained therein was as to the procedure of a claimant in instituting suit, and the purpose of this was to indemnify the school district against any expense of costs involved. In accordance with the views expressed above, the institution of suit after the money had been paid into court was needless, and, therefore, the interest of the school board in relieving itself against costs was satisfied. Any further interest lies only in the surety, and the reasons for refusing to permit one beneficiary to set up a failure to comply with some of the conditions of the bond as against other beneficiaries have been fully discussed in this opinion.

While the auditor makes much of the fact that the bond only requires the contractor, himself, to comply with Rule in of the school board (in a grammatical sense), we have considered the matter with a view to its substantive aspects. We are of the opinion that with the exception of the provision in Rule III to indemnify the school board against costs, that rule was designed for the protection of-the surety, and, therefore, is subject to the same considerations as those previously considered in discussing the conditions of the bond.

The entire fund due on the bond was paid into court for distribution pro rata amongst the parties legally entitled thereto, who unquestionably are those who furnished labor and materials for the operation. All considerations of equity and justice require that all the members of this particular class who contributed their labor or their merchandise should be treated alike. We have found no case in equity where a failure to meet the mere formal requirements intended to protect the obligor have been invoked in favor of those beneficiaries who have complied with the formalities as against those who have not so complied, where the obligor himself has not sought to raise the question. In fact, the surety in this case, as the assignee of some of the claimants, is endeavoring to share with the other claimants.

For the foregoing reasons, therefore, we are of the opinion that the exceptions to the auditor’s refusal to sustain exceptions to the auditor’s report should be dismissed.

And now, to wit, Dec. 3, 1930, the exceptions to the auditor’s refusal to sustain plaintiffs’ exceptions to the 1st, 2nd, 3rd, 4th, 5th, 10th, 11th, 12th, 13th, 14th, 15th, 23rd, 24th, 27th, 30th, 31st, 34th, 38th, 43rd and 44th conclusions of law as set forth in the auditor’s report are dismissed and distribution ordered in accordance with the auditor’s report.


author: Van Dusen, J.,

text:
    Mayer’s Estate.

      J. Lee Patton, for exceptions; Pierce Archer, Jr., contra.
    Nov. 7, 1930.
   Van Dusen, J.,

After giving money legacies and disposing of the residue, the will declares: “It is my intention to dispose by this will of all property of every kind and description over which I have or may have the power to dispose by will, whether by appointment or otherwise.” There is nothing to limit this general direction, and the appointed estate is available for all the purposes of the will.

But it is not available for all the purposes of decedent’s estate, for there is no direction to pay debts; and without such direction, linked specially or generally to the appointment, debts can be paid only from testatrix’s own property. There is, therefore, no blending with her estate generally: Haven’s Estate, 5 D. & C. 494; Hagen’s Estate, 285 Pa. 326. The Hagen case is thus explained in Valentine’s Estate, 297 Pa. 99: “In Hagen’s Estate, 285 Pa. 326, 329, where the testator disposed of his own possessions and of two other estates over which he had power of appointment, we, in effect, treated the absence of a testamentary provision for the payment of his debts as the equivalent of a direction to liquidate them out of decedent’s individual estate, and the fixing of that source of payment as sufficient to prevent a blending such as would make the appointed estates, — disposed of in common with testator’s own possessions, — subject to inheritance tax.”

In Valentine’s Estate there was a direction to pay debts; but as the exercise of the power applied only to the residuary clause, the appointed estate was not available to pay debts, and the same result was arrived at, to wit, that there was no blending; the court saying (page 104) that the principle of McCord’s Estate, 276 Pa. 459, is not to be stretched. The court further said (page 102) : “The court below correctly decided that testatrix, in exercising the power of appointment, intended only that the estate thus disposed of should follow the same channels of distribution as marked out for her individual estate, and blended the two only to this extent and solely for this purpose; that, in view of the provision for the payment of debts, the will contained no sufficient evidence of a purpose to blend the two estates for all purposes; and that a blending to any extent less than this is insufficient to make the appointed estate liable to the tax here sought to be imposed.”

The exceptions are dismissed, the appeal is sustained, the assessment of additional transfer inheritance tax in the sum of $6832.61 is set aside, and the record remitted to the register of wills.


author: Lewis, J.,

text:
    Sork et al. v. C. Trevor Dunham, Inc.

      Henry Sork, for plaintiffs; G. J. Edwards, Jr., for defendant.
    Oct. 29, 1930.
   Lewis, J.,

Plaintiffs brought this action in assumpsit on April 21, 1930, by the issuance of a summons which was duly served upon the defendant on April 23, 1930. On July 31, 1930, as disclosed by the docket entries, plaintiffs filed a bill, as of the same term and number, praying for discovery and for information alleged to be required by them in the preparation of the statement of claim. Plaintiffs at the same time filed certain interrogatories addressed to the defendant. On Aug. 5, 1930, at the instance of the defendant, a judgment of non pros, was entered by the clerk for failure to file a statement of claim within thirty days after notice so to do, given in pursuance to the rules of court, and on Aug. 12, 1930, defendant filed certain preliminary objections to the plaintiffs’ bill in equity. The matter comes before us upon the preliminary objections to the equity proceedings, as well as on the application of the plaintiffs to strike off the judgment of non pros. entered.

The two questions for determination are: (1) Is the plaintiffs’ bill in equity a proper method of procedure? . (2) Assuming plaintiffs have mistaken their remedy, did the bill filed nevertheless have the effect of a stay of the proceedings at law; and, further, should plaintiffs, under the circumstances, be relieved from the penalty of the non pros, and the judgment be stricken off?

The Act of Feb. 27, 1798, 3 Sm. Laws, 303, providing that the “several Courts of Common Pleas in this state shall have power, in any action depending before them, on motion, and upon good and sufficient cause shewn, by affidavit or affirmation, and due notice thereof being given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue,” contemplates the production of documents at the trial only: 1 Troubat & Haly’s Prac., 510; Raub v. Van Horn, 133 Pa. 573; Happersett v. Eaton, 20 Dist. R. 501.

The Act of June 16, 1836, P. L. 784, relied upon by counsel for plaintiffs in his argument, while conferring equity powers upon the courts, expressly preserves the rights which existed at common law, so far as the production of papers is concerned.

It has frequently been held that where the defendant has in his possession papers or documents, the inspection of which is necessary in order to enable plaintiff to declare, the court will grant a rule upon defendant to produce the same in open court for that purpose. This is not a case which can be reached by the ordinary equitable remedy of discovery: Murphy v. Morris, 2 Miles, 60; Boyce v. Super, 35 W. N. C. 339; Simmons v. Hoffman, 6 Dist. R. 218.

As was said by Mr. Justice Fell in Holland v. Hallahan, 211 Pa. 223, 227: “In this case there was no right to an account and the right to discovery failed. It is only where jurisdiction has properly attached for some purpose that a court of equity will retain it and dispose of connected topics of dispute. The plaintiff’s demand is simply for salary based on commission on sales, and his remdy at law is adequate. The ascertainment of the amount of sales and of the amount to which he is entitled on a fixed commission does not involve the examination of intricate and complicated accounts, and under our practice he can obtain any information necessary to enable him to prepare for trial and properly to present his case: Arrott v. Pratt, 2 Wharton, 566; Murphy v. Morris, 2 Miles, 60;” Drape v. Coleman, 233 Pa. 585; Noble v. Western Pennsylvania Natural Gas Co., 255 Pa. 512; Williams v. Finlaw, 292 Pa. 244. In Murphy v. Morris, supra,, the plaintiff presented a petition setting forth that he had brought suit against the defendant upon an agreement, in pursuance of the terms of which the defendant owed him $1800; that the agreement was reduced to writing and duly executed, but that he had been given no duplicate or copy; that he believed the defendant to have the original agreement, and that his counsel told him an inspection of said agreement was necessary to enable him to declare. The plaintiff’s rule on the defendant to produce the original agreement was made absolute by the court. In that case Judge Stroud held that “where the defendant has in his possession a paper or document, the inspection of which is necessary to enable the plaintiff to declare, the court will grant a rule on the defendant to produce the same in open court for that purpose.” In elucidating the same principle in 1 Greenleaf on Evidence (15th ed.), § 559, the learned author said: “The courts of common law may also make an order for the inspection of writings in the possession of one party to a suit in favor of the other.”

In Simmons v. Hoffman, supra, Judge Arnold made absolute a rule taken on the defendant to produce certain letters for the inspection of the plaintiff, holding that “original letters written by the plaintiff to defendant and received by him,- of which plaintiff neglected to keep copies, may be directed to be submitted to the plaintiff for inspection and taking copies, it being established to the satisfaction of the court that an inspection of such letters is necessary to enable plaintiff to prepare his statement.”

In Patton’s Pennsylvania Practice, 485 (citing Murphy v. Morris, supra), it is said: “When the plaintiff requires a paper in the possession of the defendant to aid him in drawing his statement, and not with a view to evidence on the trial, the court will grant a rule upon petition, setting forth the facts under oath, if no counter-affidavit is filed denying the facts, to compel the defendant to produce the same in open court for that purpose.”

It is clear, therefore, from an examination and study of the authorities that plaintiffs have mistaken the procedure for obtaining the relief sought.

It is undoubted that the rule of court providing for a non pros, for failure to file a statement within thirty days is within the rule-making power of the court. The basis, however, for the enforcement of the rule is the presumption that the plaintiff has no cause of action, else he would proceed with his action: Waring Bros. & Co. v. Penna. R. R. Co., 176 Pa. 172 (1896).

Prior to the entry of the judgment of non pros, on Aug. 5, 19'30, there had been filed of record in this proceeding a bill of complaint, wherein the plaintiffs gave their reasons for their inability to prepare and file their statement of claim, and sought certain information required by them for that purpose. The plaintiffs proceeded with the cause.

In Craig v. Barclay, 48 Pa. 202, an appeal was taken from a judgment of a justice of the peace. No stamp was affixed to the certificate of the justice. In consequence of this, a motion to quash the appeal for want of the United States revenue stamp on the certificate was filed. While the motion was pending, a judgment of non pros, was entered against the plaintiff under a rule of court which provided for the entry of a non pros, by the prothonotary unless a declaration be filed in twelve months from the institution of the action. Strong, J., speaking for the Supreme Court, held that the motion to quash, having been filed more than a year after the filing of the appeal, came too late, and the motion was stricken off. It is further held that “the court erred in giving a judgment of non pros, and in refusing to take it off on the application of the plaintiff. . . . The judgment of non pros, was entered, while the rule to show cause why the appeal should not be dismissed was pending. That rule necessarily suspended all proceedings in the case. Until it was disposed of, nothing else could be done. Certainly, the plaintiff could not be required to declare, for a declaration would have been a waiver of any objection to the sufficiency or regularity of the appeal.”

In our case the plaintiffs could not comply with the strict wording of the rule relative to the filing of their statement of claim, inasmuch as there appeared upon the record itself the reasons for their inability so to do.

The controlling principle of the wide discretion allowed to the courts over the application of their own rules “has been often announced by our Supreme Court, and is plainly stated by Sterrett, C. J., in Carpet Co. v. Latimer, 165 Pa. 617, in the following language: ‘We have no doubt as to the correctness of the learned judge’s construction of the rule in this case; but if we had, it would require much more than that to justify our interference. As has been frequently said, every court is the best judge of its own rules, and this court will not reverse for any construction unless it is manifestly erroneous and injurious’ . . .” Livingston v. Kerbaugh, 30 Pa. Superior Ct. 534.

Under the facts in this ease it would be clearly inequitable to penalize the plaintiffs by a strict application of the penalty provided by the rule of court, to wit, the entry of a judgment of non pros.

For the reasons herein set forth, (a) the preliminary objections filed by the defendant to the bill are sustained and the bill is dismissed; (b) the rule to strike off the judgment of non pros, is made absolute, with leave to the plaintiffs, within ten days, to proceed in accordance with the views expressed in this opinion.


author: Groff, J.,

text:
    Pennsylvania Door and Sash Co. v. Fassnacht Estate et al.

      Amos E. Burkholder, for rule; K. L. Shirk and Paul A. Mueller, contra.
    Sept. 20, 1930.
   Groff, J.,

On June 28, 1930, Landis, P. J., of this court, granted a rule to show cause why the execution issued on the above entitled judgment should not be stayed, the levy to remain a lien only on personal property acquired since the death of the decedent.

Section 15, paragraph (k), of the Fiduciaries Act of June 7, 1917, P. L. 447, 479, says:

“In every case of an execution against the executors or administrators of a decedent, whether founded upon a judgment obtained against such decedent in his lifetime or upon a judgment obtained against them in their representative character, if it shall be made to appear, to the satisfaction of the court issuing such execution, that there is reason to believe that the personal assets and the rents of real estate are insufficient to pay all just demands upon the estate, such court shall thereupon stay all proceedings upon such execution until the executors or administrators shall have made application to the proper orphans’ court for the sale of the real estate of the decedent, or for the apportionment of the assets, or both, as the case may require.”

These judgments are entered against the said decedent’s estate, and, in our opinion, must be considered to have been obtained against his representatives in their representative capacity.

This rule is not a rule to open a judgment, but only a rule to stay an execution.

The act of assembly makes no distinction between property acquired during the decedent’s lifetime or property acquired after his death by his representatives. The only thing in which we are concerned is their reason to believe that the personal assets and rents of real estate are insufficient to pay all just demands upon the estate. It is alleged in the petition that the personal property and rents are insufficient to pay all just demands upon the estate. This is admitted in the answer, and a stipulation having been filed, and that fact neither having been affirmed nor denied, we take it as being true.

We have nothing to do with the validity of the judgment or the right of the decedent’s representatives to contract the same.

It seems to us that only one course is left open to us, if we respect the above referred to paragraph of section 15 of the Fiduciaries Act of 1917, and that is to stay all proceedings upon said execution until the decedent’s representatives shall have made application to the proper Orphans’ Court to sell, or have sold, the decedent’s personal property.

The rule to stay the execution, for the reasons herein stated, is made absolute, the levy to remain a lien until the estate is adjudicated by the Orphans’ Court. Rule made absolute.

From George Ross Eshleman, Lancaster, Pa.


author: Biddle, P. J.,

text:
    Bricker et al. v. Brougher et al.

      East, Brinton & Templeton, for plaintiffs.

      Gilmer, Faller & Young, for defendants.
    July 29, 1930.
   Biddle, P. J.,

This is a proceeding in ejectment to recover a tract of land situated in the Borough of Mechanicsburg and to recover mesne profits for the detention thereof. The plaintiffs and defendants both claim under Eliza B. Brougher, the plaintiffs being the heirs-at-law of Eliza B. Brougher and the defendants devisees and next of kin of Miles Brougher, the husband of Eliza B. Brougher.

Under the pleadings and the admissions of the plaintiffs, conceding that the averments of defendants’ plea and answer are correct, it appears that Eliza B. Brougher, being seized in her demesne as of fee of the tract of land in question, died intestate April 15, 1913, without issue, leaving to survive her her husband, Miles Brougher, and certain collateral heirs-at-law.

Subsequent to the death of Eliza B. Brougher, her surviving husband, Miles Brougher, procured the appraisement of the real estate in question under a claim to the $5000 to which he alleged he was entitled under the provisions of the Act of April 1, 1909, P. L. 87; the appraisement in question being made on April 29,1913, the real estate in question being therein appraised at $1800, and the appraisement was confirmed nisi on April 29,1913, and it is recorded in this county in the Widows’ Appraisement Docket “H,” page 131. The appraisement was confirmed absolutely on July 29,1913.

Miles Brougher had possession of the real' estate in question up until the time of his death, and the defendants claim it under his will as his devisees and heirs-at-law.

Admittedly, if the appraisement and confirmation in question vested the fee to the land in question in Miles Brougher, the plaintiffs have no valid claim thereto. On the other hand, if that appraisement and confirmation, with the subsequent legislation upon which the defendants rely, namely, the Act of July 18, 1917, P. L. 1067, were ineffective to vest the remainder in fee in Miles Brougher, then the present plaintiffs are the real owners of the land in question, and they are entitled to a judgment for it and for mesne profits for its detention.

The contention of the plaintiffs is that under the legislation in force at the death of Eliza B. Brougher, her husband, Miles Brougher, took his life estate by the curtesy in the real estate and that the remainder in fee passed to the collateral heirs-at-law of Eliza B. Brougher, and that nothing that appears either of record or in the pleadings since that time served to divest this title. We think this position is well taken. It is true that Miles Brougher claimed the property under what he thought to be his rights under the Act of 1909, supra, that an appraisement of it was made, duly filed in court, confirmed nisi, and subsequently confirmed absolutely by the court. But as the court was without jurisdiction either to order this appraisement or to confirm it, no title whatever could pass by its action: Ellermeyer’s Estate, 255 Pa. 610.

It is argued by the learned counsel for the defendants that the legislature, by the passage of the Act of July 18,1917, P. L. 1067, overruled the decision of the Supreme Court in Ellermeyer’s Estate. But if this was the intention of the legislature, that body was without the power to effect what was in their minds. Undoubtedly the legislature might change the law from what it was as construed by the Supreme Court, but that change would not have the effect of in any manner altering or overruling the former decision of the Supreme Court. The plaintiffs contend that the act in question was intended merely to correct procedural defects in former proceedings; hut with this contention we are unable to agree. We think that the contention of the learned counsel for the defendants that by this enactment the legislature intended to confirm to surviving husbands lands that had been appraised to them, as in the instant case, in order that their title might be full and complete, is correct. That they had the power to do this in all cases arising thereafter, we have no doubt; and we have equally no doubt that they had no power to make such legislation retroactive. Under the law as it stood at the time of Eliza B. Brougher’s death, her husband was entitled to his life estate by the curtesy in all of her real estate; and as she died intestate and without issue, at his death her collateral heirs-at-law were entitled to it, and the remainder in fee vested in them upon her death. This being the case, the legislature was without power thereafter to take this property from them and to transfer it to Miles Brougher or to any one claiming through him: Palairet’s Appeal, 67 Pa. 479; Hegarty’s Appeal, 75 Pa. 503; Elder v. Elder, 256 Pa. 139.

To meet this obstacle to their claim, the learned counsel for the defendants contend that the confirmation of the appraisement by the Orphans’ Court of this county in 1913 was a judgment in rem, and, as such, conclusive on all the world and not open to collateral attack. That such a judgment is a judgment in rem we think may he admitted, and that the effect of a valid judgment in rem is not open to attack, such as is made here, may also, we think, be admitted; but in this contention the learned counsel for the defendants overlooked the fact that in order that these principles may apply it is necessary that the judgment in question should not on its face be a nullity. If it is, the principles cited cannot be applied. And some of the authorities cited in the brief of the learned counsel for the defendants clearly recognize this distinction, the Superior Court saying: “If it [the absence of jurisdictional facts] appears on the face of the proceedings ... it may be conceded that the decree confirming the appraisement would be void for want of jurisdiction and that the objection might be raised [collaterally]:” Greenawalt’s Estate, 16 Pa. Superior Ct. 263, 266; Scott’s Estate, 18 Pa. Superior Ct. 375, 377.

The proceedings in this case show that an appraisement was made in 1913 of the real estate of a deceased wife to a surviving husband. Under the law as it stood at that time, as we have seen, the court was without jurisdiction either to order or confirm the appraisement. The proceeding was, therefore, void on its face, and was without effect as against any person lawfully claiming any portion of the land. It follows that, in the present instance, judgment on the pleadings must be entered in favor of the plaintiffs.

The plaintiffs have also claimed mesne profits for the detention of the land, and the defendants in their plea and answer state that its net income from the death of Miles Brougher on March 4, 1929, to the time of swearing to the plea and answer on April 17, 1930, was $98.15. The plaintiffs have admitted that these estimates also are correct. Allowing for the additional time since the execution of the affidavit to the date of the filing of this order at the same rate, we find that, as of July 29,1930, the plaintiffs would be entitled to mesne profits in the aggregate sum of $122.69.

And now, July 29,1930, it is directed that judgment be entered on the pleadings in favor of the plaintiffs and against the defendants for the real estate described in the writ, and that a judgment shall also be entered in favor of the plaintiffs and against the defendants for mesne profits to this date for $122.69, with costs. From Francis B. Sellers, Carlisle, Pa.


author: MacDade, J.,

text:
    Folcroft Borough v. Lenhart.
    No. 1.

      Harold L. Ervin, borough solicitor, for plaintiff.

      Clement E. McGovern and William J. MacCarter, Jr., for defendant.
    April 5, 1930.
   MacDade, J.,

A municipal lien was filed on Feb. 3, 1927, by the plaintiff against the defendant for one-half interest in and right of user of a sewer constructed by the Borough of Glenolden, acquisition thereof being obtained by purchase by the plaintiff under the Act of May 14,1915, P. L. 312, as amended by the Act of July 6, 1917, P. L. 704, in the 15th section of which it is provided: “Whenever any borough has constructed, wholly or partially, any sewer or sewer system or has acquired the same at public expense, the council of such borough may provide by ordinance for the collection of an annual rental or charge for the use of such sewer or sewer system from the owners of property served by it. Such council may, at their discretion, in lieu of such annual rental or charge, provide for the payment by the owners of a fixed sum,” and which section further provides: “Such annual rental or charge, or such fixed sum, shall be authorized and collected as provided by general ordinances, and when so levied and charged shall be a lien on'the properties charged,” and under Ordinance No. 43 of the plaintiff, the title of which is set forth in the lien.

It appears, therefore, that the Borough of Folcroft, plaintiff herein, acquired one-half interest in a sewer from the Borough of Glenolden; that it provided by ordinance for the payment of a fixed sum in lieu of an annual rental, as provided by the Act of 1917, supra; that it assessed the “fixed sum” against the property served by the sewer by Ordinance of Oct. 18, 1926, and provided for the collection of the amount of the assessment by the filing of liens. It appears from the record that the claim was filed within six months of the “acquisition” of the sewer.

The sewer in question, prior to the year 1926, was maintained by the Borough of Glenolden in a public highway known as Primos Avenue or Oak Lane. The boundary line separating the Borough of Folcroft from the Borough of Glenolden lies in the bed of the said public highway. Negotiations were instituted by the Borough of Folcroft looking to the acquisition by purchase of a one-half interest in and right of user of the sewer constructed by the Borough of Glenolden. The borough engineer determined the cost of the acquisition of the sewer and the proportionate amount thereof to be borne by each of the properties served thereby. On Oct. 18, 1926, the Borough of Folcroft enacted an ordinance, No. 43, purchased a one-half interest in said sewer for the sum of $1676.16, therein expressed, and the cost thereof was assessed against the premises served by the sewer. Prior to the expiration of the period of six months after the acquisition of the sewer, liens were filed against three premises, the owners of which had not paid the amount of the assessment. One of the said liens was filed against the premises of the defendant above named.

The claimant in the above entitled case caused to be issued a writ of scire facias upon the municipal lien filed herein. The defendant filed an affidavit of defense in the nature of a demurrer, which is as follows:

“1. Said lien shows on its face that it was not filed within six months after the completion of the work, as required by the Act of May 16, 1923, P. L. 207, and by the Act of May 14, 1915, P. L. 312, their respective supplements and amendments, under which it is filed.

“2. Said lien shows on its face that it was not filed within six months after the completion of the improvement, as required by the Act of 1923, P. L. 207, and by the Act of 1915, P. L. 312, their supplements and amendments, under which it is filed.

“3. Said lien was filed without authority of law, in that the Act of 1915, P. L. 312, as amended, does not authorize or permit filing of such lien for the adoption of the sewer of another municipality by a borough and assessment therefor by the front-foot method.”

The filing of a demurrer admits all the relevant facts properly pleaded: Com. v. Walter, 86 Pa. 15; Wildee v. McKee, 111 Pa. 335; Keefer v. The Lancaster, &c., Journal, 6 D. & C. 73.

It is then to be assumed that the defendant admits the truth of the statements contained in the writ of scire facias and the municipal lien upon which it is based.

We have inspected the municipal lien and it seems to conform strietly to the Act of Assembly of May 16, 1923, P. L. 207, and with the provisions of other acts of assembly in such case made and provided. Indeed, it must so conform: Philadelphia v. Richards, 124 Pa. 303, which holds that a lien upon a municipal claim, being of purely statutory creation, if the claim does not aver upon its face all the facts necessary to sustain its validity, it may be summarily stricken off on motion.

Therefore, in conclusion, we shall consider seriatim the exceptions filed as aforesaid.

1. The defendant contends that the lien shows on its face that it was not filed within six months after the “completion of the work.” Reference to the lien discloses in the 5th paragraph thereof that “The date of the acquisition of the said sewer for which this claim is filed is October 18, 1926.” And, further, “the assessment having been made after the acquisition of the improvement.” The notation of the prothonotary as to the date of filing endorsed upon the claim shows conclusively that the claim was filed within six months thereafter.

2. That it shows on its face that it was not filed within six months of the “completion of the improvement.”

We answer this as we have the first exception.

3. The defendant’s contention- is directed to the authority of a municipality to file a lien for the adoption of the sewer of another municipality and the assessment therefor by the front-foot method. However true this may be when stated in the language of the defendant, it will be seen from reading the averments in the claim filed that the lien is sought not for the adoption of a sewer, but for the acquisition of a one-half interest and right of user in a sewer.

As we have said heretofore and we now reiterate, the Borough of Folcroft, by its Ordinance No. 43, the title of which is set forth in the 4th paragraph of the claim, authorized the acquisition of a one-half interest in a certain sewer owned by the Borough of Glenolden, and provided for the assessment of the cost thereof. The authority for the borough to assess the cost of the acquisition of the said sewer upon the abutting properties is found in an amendment to the Act of May 14, 1915, P. L. 312, approved July 6, 1917, P. L. 704, in the 15th section thereof, supra.

We, therefore, conclude that the said Borough of Folcroft has fully complied with the requirements of the Borough Code of 1915, as amended by the Act of July 6, 1917, P. L. 704, and conformed to the procedure as set forth in the Municipal Lien Act of May 16, 1923, P. L. 207.

These exceptions should be dismissed and the defendant compelled to file an affidavit of defense upon the merits, and in order to carry into effect our determination herein, we make the following

Order.

And now, April 5, 1930, the matter of an affidavit of defense in lieu of demurrer coming on to be heard by the court in banc, by oral argument and briefs, after due consideration, the court doth order and decree that the exceptions filed be and they are hereby dismissed, the questions of law raised are not sustained, and the defendant be and he is hereby directed and ordered to file his affidavit of defense to the said municipal lien within fifteen days from notice of this order, or judgment see. reff. et sec. leg.

From 'William B. Toal, Media, Pa.


author: MaoDade, J.,

text:
    Folcroft Borough v. Lenhart.
    No. 2.

      Lutz, Ervin, Reeser & Fronefield, for plaintiff.

      William J. MacCarter, Jr., for defendant.

      C. Wilfred Conard, for additional defendants.
    July 19, 1930.
   MaoDade, J.,

A municipal lien was filed on Feb. 3, 1927, by the plaintiff against the defendant for use of one-half interest in and right of user of a sewer constructed by the Borough of Glenolden, acquisition thereof being obtained by purchase by the plaintiffs from the said borough, the said acquisition being in accordance with the provisions of the Act of Assembly of May 14,1915, P. L. 312, as amended by the Act of July 6; 1917, P. L. 704.

By ordinance, the plaintiff provided for the payment of a fixed sum by the defendant for use of the sewer, along whose property the same was constructed and maintained, in lieu of an annual rent, as provided by said Act of 1917.

Hence the filing of this claim or lien by the plaintiff against the defendant and the premises therein referred to for the lump sum of $729.47.

This claim for assessment was filed against the following described premises:

“The description of the property against which this claim is filed is as follows : Situate on the northeasterly side of Primos Avenue, Folcroft, Delaware County, Pennsylvania, at the distance of 125 feet southeast of the Darby and Chester Pike, containing in front on Primos Avenue 574.16 feet and extending in depth on the northwesterly line thereof 115 feet and on the southeasterly line 125 feet, and is for the cost of acquiring from the Borough of Glenolden a one-half interest in the sanitary sewer, and the right to use the same, laid in front of and adjacent to the property hereinbefore described, the name of the owner or reputed owner being James F. Lenhart, the defendant aforesaid.”

On May 14, 1927, the plaintiff released from its lien certain parts of the property, upon the request of the defendant, in consideration of the sum of $32, together with interest thereon and costs; on June 14, 1927, additional property was released for the sum of $72, and, again, on Aug. 11, 1927, another release under similar circumstances of other parts of the property for the sum of $264, totaling a payment by the defendant of approximately one-half of the entire sum claimed for assessment.

Subject to the filing of this claim for assessment, the plaintiff, on Dec. 7, 1929, and after two of the above payments by the defendant on account of the lien as filed, issued a writ of scire facias, to which the defendant replied by filing an affidavit of defense in the nature of a demurrer. Whereupon we filed an opinion on April 5, 1930, wherein we dismissed the exceptions, did not sustain the questions of law raised by defendant to declare the lien void, and ordered and directed that an affidavit of defense be filed within fifteen days: Folcroft Borough v. Lenhart (No. 1), 14 D. & C. 532.

The affidavit of defense was filed April 15, 1930, as directed.

The plaintiff has moved for judgment for want of a sufficient affidavit of defense.

The above motion for judgment is not being pressed before us to a decision at this time, awaiting the judgment of the court in proceedings to bring in additional defendants.

On April 22, 1930, the defendant filed a prascipe for a scire facias to bring upon the record additional defendants, the said Peter Arrighi and his wife, who has since died, presumably under the Act of April 10, 1929, P. L. 479, alleging that these additional defendants are liable over to him and/or severally liable with him for the cause of action declared on in this case, to the extent of the whole of the amount which may be recovered therein against him for the reason that said additional defendants, or either of them, are parties to a certain oral agreement between said additional defendants and the claimant, the Borough of Folcroft, wherein said borough agreed not to lien the property herein concerned in consideration of certain work done by said additional defendants, or either of them, which said work was performed by said additional defendants; and the said agreement enures to the benefit of the defendant named herein by virtue of an oral agreement or assignment, and of a certain written agreement between the said defendant, James F. Lenhart, and the said additional defendants, Peter Arrighi and Mary L. M. Arrighi, his wife, on or about July 6, 1925.

By suggestion upon record on June 25, 1930, of the death of Mary L. M. Arrighi, the said Peter Arrighi and the Fidelity-Philadelphia Trust Company are suggested as executors of her estate and to be substituted in her place and stead.

On May 23, 1930, an answer was filed to plaintiff’s petition for rule for judgment and no new matters were set up, except to say (1) that the defendant denies that the claim for assessment is a proceeding in rem, but that it is that and also in personam, and (2) that the assessment has not been made equitably. This answer is practically a reiteration of his averments in the affidavit of defense.

To the scire facias to bring upon the record additional defendants, the latter filed an affidavit of defense raising questions of law on May 26, 1930, in which they set up the following:

“1. The sd. fa. does not set forth any facts by, reason of which the additional defendants are liable over to the original defendant upon the cause of action set forth in the statement of claim filed in the original action.

“2. The sd. fa. sets forth no facts by virtue of which the additional defendants are severally liable with the defendant upon the cause of action set forth in the statement of claim.

“3. The sd. fa. sets up an agreement which might be a defense for the defendant to the original action, but does not make the additional defendants liable to the original defendant or severally with the original defendant upon the cause of action set forth in the statement of claim.

“4. The sd. fa. avers an agreement with the borough claimant, by virtue of which the claimant might be barred from maintaining its claim as set forth in the lien, but it wholly fails to set forth any claim of the borough against the additional defendants, or either of them, or any claim upon which the added defendants, or either of them, might be liable over to the defendant, Lenhart, in event of a recovery by the claimant against him.

“5. The sd. fa. is for other reasons insufficient at law.

“6. The additional defendants, therefore, respectfully request the court to hear and dispose of the questions of law so raised in accordance with the provisions of section 20 of the Practice Act of 1915, and aver that said affidavit of defense is not filed for the purpose of delay.”

Therefore, we really have before us an action upon a municipal lien, brought before us by an affidavit of defense in the nature of a demurrer to a writ of sdre fados under the Act of April 10, 1929, P. L. 479, issued by the defendant, James P. Lenhart, to bring the Arrighis upon the record as additional defendants.

The defendant, in bringing in these additional defendants by sdre fados, averred in the writ that Peter Arrighi and Mary L. M. Arrighi, his wife, are liable over to him, the said James F. Lenhart, the defendant, “and/or severally liable with him for the cause of action declared on in this case, to the extent of the whole amount which may be recovered therein against him for the reason that said additional defendants, or either of them, are parties to a certain oral agreement between said additional defendants and the claimant, the Borough of Folcroft, wherein said borough agreed not to lien the property herein concerned in consideration of certain work done by said additional defendants, or either of them, which said work was performed by said additional defendants named herein by virtue of an oral agreement or assignment, and of a certain written agreement between the said defendant, James F. Lenhart and the said additional defendants, Peter Arrighi and Mary L. M. Arrighi, his wife, on or about July 6, 1925.”

To this averment of the writ the additional defendants filed the affidavit of defense raising questions of law now before us.

The first question to be considered is one of pleading. The writ avers only that the additional defendants are liable for the assessment which the plaintiff is endeavoring to recover from the defendant, to the extent of the whole of the amount of the claim, because the plaintiff had certain work done by the additional defendants and agreed as compensation therefor not to file this particular lien against the property now or while owned by the defendant, and which agreement the latter claims enures to him by reason of a collateral oral agreement or assignment between him and the additional defendants dated July 6, 1925, but of which agreement no copy is before us or made part of the pleadings, as the Practice Act of 1915 requires. It is an integral part of the defense set up by the defendant that he owes the plaintiff nothing, and as it is basically fundamental, the defendant has irretrievably lost out in this respect. But overlooking this defect, arguendo, how, then, can this defendant maintain a right of action over against these additional defendants?

The writ of scire facias is in the nature of an action in assumpsit, and like a statement of claim to which it is declared to be analogous, must disclose the facts upon which the action over is founded: Vinnacombe v. Philadelphia et al., 297 Pa. 564, reaffirmed in First National Bank of Pittsburgh v. Baird, 300 Pa. 92.

This being so, any right of action over must depend upon the existence of a right of contribution between them. In such a case, therefore, the writ of scire facias, which must be self-sustaining and must disclose the essentials of a cause of action, should set forth, first, that both defendants and additional defendants were liable; and, second, that their joint liability occurred under such circumstances as to give rise to contribution between them under the principles laid down in the case of Goldman v. Mitchell-Fletcher Co., 292 Pa. 354.

If either of these averments is lacking, the writ fails to show a cause of action by the one against the other. In the writ before us, both are wanting: Cohen v. Philadelphia Rural Transit Co., 13 D. & C. 465.

On the contrary, it would appear from the averment of the writ that these additional defendants alone were liable and that the defendant was not even a privy to the contract except by legal implication by reason of being the assignee of an alleged oral contract between the additional defendants and the plaintiff or of a written agreement between defendant and the additional defendants.

If there is only liability to the plaintiff because of the latter’s relation with the additional defendants, and it is the latter’s liability, then no verdict could be rendered against the defendant and no action over could lie in his favor against the additional defendants, for it is only in the event of recovery by the plaintiff against an original defendant that an action lies against an additional defendant: Vinnacombe v. Philadelphia et al., supra.

Upon the pleadings, therefore, the affidavit of defense filed by these additional defendants is sufficient. The original suit and the sci. fa. proceedings are independent of each other and the plaintiff in this suit can never recover against these additional defendants, for it must pursue the original suit to a finality and against the defendant alone, and, therefore, it logically constrains us to hold that in action of assumpsit only those who are jointly liable and between whom a right of contribution exists can be brought in under the act.

In this discussion we have assumed that the scire facias sets forth facts by reason of which these additional defendants are liable over to the original defendant upon the cause of action set forth in the claim for assessment or lien filed. Certainly, if there should be a recovery against the original defendant, where does it appear in the pleadings that these additional defendants would be liable over and compelled to make any contribution to the original defendant? We fail to find such, and there are no facts stated by virtue of which the additional defendants are severally liable with the defendant upon the cause of action in the case at bar.

While the affidavit of defense to the scire facias sets up an agreement which might be a defense for the defendant to the original action, yet it does not make the additional defendants liable to the original defendant upon the cause of action set up in the scire facias, which writ or petition for such avers an agreement between the plaintiff (Borough of Folcroft), by virtue of which the plaintiff may be barred from maintaining its claim, as set forth in the lien, but it wholly fails to set forth any claim of the borough against the additional defendants, or either of them, or any claim upon which the added defendants, or either of them, might be liable over to the defendant, Lenhart, in the event of a recovery by the plaintiff (claimant) against him.

And now, July 19, 1930, for the aforesaid reasons, after due consideration, the court doth order and decree that the affidavit of defense raising questions of law in the proceeding between the original defendant, James F. Lenhart, and the additional defendants, Peter Arrighi, and the said Peter Arrighi and the Fidelity-Philadelphia Trust Company, executors of the estate of Mary L. M. Arrighi, deceased, be and it is hereby adjudged sufficient, and judgment is now entered in favor of the additional defendants as aforesaid.

From William R. Toal, Media, Pa.


author: MoKhnexck, J.,

text:
    Sabo v. Springfield Coal Corporation.

      Walter E. Glass, for appellant; Francis E. Dunn, for appellee.
    May 27, 1930.
   MoKhnexck, J.,

The case comes into this court upon an appeal from a decision of the Workmen’s Compensation Board affirming the findings of fact and conclusions of law and the order made by the referee.

Claimant, a coal miner, was injured while working for defendant company and received full compensation for total disability at the rate of $15 per week. On Nov. 28, 1928, claimant returned to work for the same employer, at a different employment, that of greasing cars and helping'the blacksmith. For this work he received 391 cents per hour. On this job he worked for about four months.

Beginning May 16, 1929, claimant reentered the mines as a coal miner and earned about $25 per week. Due to his injury he was not able to work every day at mining coal.

He then petitioned to have the final receipt set aside and the agreement reinstated and modified to provide for compensation for partial disability.

Upon hearing, the referee found as a fact that claimant was suffering a partial disability of about 50 per cent, and that such disability existed from Nov. 28, 1928, up to and including June 5, 1929, when the disability ceased.

The referee made an order allowing compensation from Nov. 28, 1928, to June 5, 1929, a period of twenty-seven weeks, at the rate of $7.50 per week, which is 60 per cent, of the maximum allowable for partial disability.

The agreed weekly wages of the claimant amounted to $49.44 at the time of his injury. After claimant returned to work and during the period for which he claims partial disability his earnings were not more than $25 per week, or a difference of $24.56 per week.

We believe the referee erred in computing the amount of weekly compensation due the claimant. Section 309 of article III of the Compensation Act, as amended by the Act of June 26, 1919, §3, P. L. 642, provides as follows: “The term wages . . . shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident.”

The Act of April 13, 1927, .§ 1, P. L. 186, provides as follows: “For disability partial in character (except the particular cases mentioned in clause c), sixty-five per centum of the difference between the wages of the injured employee, as defined in section 309, and the earning power of the employee thereafter; but such compensation shall not be more than fifteen dollars per week.”

The amount of compensation is not determined by the percentage of disability, which in this case was 50 per cent. The plain meaning of the act is that the employee is entitled to 65 per cent, of the difference between his wages at the time of the accident, which were $49.44 per week, and his earning power thereafter, which was $25 per week. Exactly calculated, 65 per cent, of the difference between $49.44 and $25 is $15.96. The Compensation Act limits compensation for partial disability to $15 per week, and the claimant cannot receive more. The order of the referee should have provided for compensation for partial disability at the rate of $15 per week, beginning Nov. 28, 1928, and ending June 5, 1929, a period of twenty-seven weeks, or a total amount of $405.

The fifth exception is sustained, and we, therefore, remit the record to the Workmen’s Compensation Board for proceedings in accordance with this opinion.

From Henry W. Storey, Jr.. Johnstown, Pa.


author: Houck, J.,

text:
    Maguire v. Kirchner et al., County Commissioners.

      H. O. Bechtel and M. M. Burke, for plaintiff; C. E. Berger, for defendants.
    May 19, 1930.
   Houck, J.,

The plaintiff petitioned for an alternative writ of mandamus, alleging that the county controller, by direction of defendants, duly advertised for sealed proposals or bids for the construction of a concrete bridge in West Penn Township, this county; that plaintiff presented his bid on said bridge in the sum of $7800, which complied in all respects with the advertisement and defendants’ instructions governing bids, together with a certified check in the required amount; that plaintiff’s bid was the lowest bid presented, the next being the bid of John N. Meek in the sum of $7930; that plaintiff notified defendants, both by parol and in writing, that he was ready to accept and execute the contract to construct said bridge and to furnish good and sufficient bond for faithful performance of the contract; that defendants willfully and unlawfully set aside and refused to accept and approve plaintiff’s said bid, and willfully and unlawfully refused to award the contract to plaintiff, and willfully and unlawfully awarded the contract to John N. Meek for the said sum of $7930; that before executing a contract the said John N. Meek withdrew his bid and refused to accept the contract; that defendants concurred in this withdrawal and are now willfully and unlawfully readvertising for bids for the same bridge upon the same specifications; that plaintiff’s bid and certified check are still in possession of defendants and of the county controller, and that defendants still refuse to award the contract to plaintiff, he being still ready to accept and execute said contract; that plaintiff has already constructed several bridges for the County of Schuylkill and for defendants, all of which were approved and accepted; that the refusal of defendants to award said contract to plaintiff was unwarranted, willful and unlawful; that it is defendants’ duty, under the law, to award said contract to the plaintiff as an entirely responsible bidder and the lowest bidder; and that defendants’ refusal to award the contract to plaintiff is an injustice to the taxpayers of Schuylkill County and a willful and extravagant expenditure of the public funds. On this petition an alternative writ of mandamus was issued, directing defendants to show cause why they should not accept and approve the bid or proposal of plaintiff and award to him the contract for constructing said bridge.

Prior to the return day, defendants moved to quash the writ for the following reasons: (1) The petition is not verified as required by section 2 of the Act of June 8, 1893, P. L. 345; (2) plaintiff’s petition does not show a clear legal right vested in him to the performance of the matters contained in the writ; (3) defendants are not charged with an abuse of their official discretion; and (4) plaintiff’s petition does not allege that defendants have acted dishonestly or fraudulently in refusing to award the contract to plaintiff on his bid.

The motion to quash raises the questions whether the writ was issued improvidently and whether the petition presents the substance of a case for mandamus; in other words, whether the petition is self-sustaining. A motion to quash the writ is the proper method for raising these questions: Boyle v. Lansford School District, 8 Dist. R. 436; Lehigh-Coplay Water Co. v. Coplay Borough et al., 11 Dist. R. 602; Williams v. Burgess of Uniontown, 24 Dist. R. 658; Mayes et al. v. Warsaw Township School Directors, 12 D. & C. 340. The applicable rule is that the petition for the alternative writ of mandamus should set forth all the facts specifically which, if true, would entitle the relator to the relief sought and which must show a clear prima, facia right to the mandamus.

The petition alleges that plaintiff is a responsible bidder and that his bid was the lowest. It also states that defendants “willfully and unlawfully set aside and refused to accept and approve petitioner’s said bid and willfully and unlawfully refused to award the contract for said bridge to petitioner.” The averment that defendants acted willfully and unlawfully states a conclusion of law, and the only basis in fact for this conclusion contained in the petition is that defendants failed to award the contract to the lowest responsible bidder. In other words, so far as the allegations in the petition are concerned, the petition can mean only that defendants’ act was unlawful because they did not award the contract to the lowest responsible bidder. There is no allegation of fraud, bad faith, collusion or dishonesty. Hence, the case narrows down to the question whether a mandamus may issue compelling defendants to award the contract to the lowest responsible bidder in the absence of any allegation of fraud or dishonesty.

Section 704 of the General County Law approved May 2, 1929, P. L. 1278, requires county commissioners to award contracts for the building of bridges to the lowest responsible bidder. In this respect the act is identical in terminology with a great variety of enactments governing the award of municipal contracts. Precisely similar statutes have been repeatedly construed and the controlling legal principles have been firmly settled by a long line of decisions beginning as early as 1876. The statute, in question imposes not merely a ministerial duty upon the county commissioners, but duties and powers which are deliberative and discretionary. The petition in the case at bar does not allege that defendants failed to exercise their discretion nor that they abused their discretion. In fact, the averments of the petition show that discretion must have been exercised because the contract was actually awarded to another bidder. Such being the case, plaintiff has no right to relief by mandamus. “For it is settled beyond controversy that where the complaint is against a person or body that has a discretionary or deliberative function to exercise, and that person or body has exercised that function, according to the best of his or its judgment, the writ of mandamus will not be granted to compel the undoing of that which has been done: Griffith v. Cochran, 5 Binn. 87; Com. ex rel. Watt v. Perkins, 7 Barr, 42;” Com. ex rel. Snyder et al. v. Mitchell et al., 82 Pa. 343, 360. Other illustrations of the rule may be found in Douglass et al. v. Com. ex rel. Senior, 108 Pa. 559; American Pavement Co. v. Wagner, 139 Pa. 623; Hibbs et al. v. Arensberg et al., 276 Pa. 24; Homan v. Mackey et al., 295 Pa. 82.

In Com. ex rel. Snyder v. Mitchell, supra, the court found that the relators, whose bid was the lowest, were responsible in all points into which the city had a right to inquire. Even in the face of these findings it was held that the writ of mandamus did not lie because the duty imposed upon the respondents was deliberative and discretionary. In addition to this, the court said, at page 350: “There is another aspect of this case, and which is quite as fatal to the right of the relátors as that just discussed. It is a well-established rule that he who sues for the writ of mandamus must have some well-defined right to enforce which is specific, complete and legal and for which there is no other specific legal remedy, and the right which he claims must be independent of that which he holds in common with the public at large: Heffner v. Com., 4 Casey, 108. But Snyder & Co. had no such right as above stated. By their bid they proposed to contract for certain work; their bid was not accepted. It was a mere proposal that bound neither party, and as it never was consummated by a contract, the city acquired no right against the relators nor they against the city. Snyder & Co. are wanting in a specific remedy only because they have failed to establish a legal right.” This comment applies with equal force to the case at bar and constitutes an additional reason for quashing the writ.

We are of the opinion that the writ must be quashed since the petition does not state the substance of a case for mandamus. It would avail nothing to proceed to hearing because, were every fact in the petition established, plaintiff would still be without a remedy by mandamus.

And now, May 19, 1930, the alternative writ of mandamus, heretofore issued, is quashed, at the cost of plaintiff.


text:
    Nicholson’s Estate.

      J. Lee Patton, for exceptions; E, Spencer Miller, contra.
    Nov. 7, 1930.
   Van Dusen, J.,

Is the appointed estate available for all the purposes of the decedent’s estate — debts, money legacies and residue?

The preamble recites a purpose to exercise all powers of appointment; and then follows a direction to pay debts. The appointed estate may be used, therefore, to pay debts; in which respect the case is like Com. v. Morris, 287 Pa. 61. It is not so much the order of the clauses as the declaration that the exercise of the power applies to the whole will. In Valentine’s Estate, 297 Pa. 99, the power was exercised only in the residuary clause with respect to the residuary estate. There was nothing else to the will except a direction to pay debts; but as the exercise of the power in the residuary clause necessarily was not to be linked to the direction to pay debts, the appointed estate could not be used for that purpose.

The residuary clause in the present will repeats the reference to the power which is contained in the preamble (like Winsor’s Estate, 11 D. & C. 423), and there can be no question that the appointed estate is available for the purposes of that clause.

Is the appointed estate available to pay money legacies? On the general language of the will, yes; for the reference to the power occurs in a preamble which seems to apply to the whole will. But there is a special clause, paragraph 15, which recites: “Lest on a sale of my securities many of which are depreciated at the present time through temporary causes, a sacrifice should occur” — and directs that “all my securities which can be applied to these legacies” shall be appraised, and the legacies shall be scaled pro rata, with the option to legatees to take securities on account at the appraisement. The Hearing Judge thought that this confined the money legatees to testatrix’s own securities and excluded them from the appointed estate, and we agree with him. The securities of the appointed estate are not “my securities;” they are not in the testatrix’s possession, and their identity may not even be known to her.

The question first put above must be answered in the negative. The exceptions are dismissed, the appeal is sustained, and the record remitted to the register of wills for proper action in the premises.


author: Jones, J.,

text:
    Urbanus v. Turowskl.

      Charles M. Bowman, for plaintiff; John J. Aponick, for defendant.
    Jan. 11, 1930.
   Jones, J.,

This is a suit in assumpsit to recover the value of certain merchandise of the kind and for the prices set forth in a copy of the book account attached to plaintiff’s statement, which discloses that the first item is a debit balance on merchandise of $419‘.73. Then follows an itemized account of articles delivered afterwards and the price charged, and a balance due for which suit is instituted.

This statement is wholly defective and insufficient. Defendant is entitled to be informed of the item of $419.73, balance on merchandise. This item is not sufficiently specific to inform the defendant and to call upon him for an affidavit of defense. Therefore, the rule is made absolute and plaintiff is directed to file a more specific statement as herein suggested.

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