author: Martin, P. J.,

text:
    Commonwealth v. Provident Life and Trust Co. of Phila.

      Escheat — Payment of money into State Treasury without escheat — Act of May 16,1919.

    The Act of May 16, 1919, P. L. 177, providing for the payment into the State Treasury without escheat of certain moneys and property subject to escheat, etc., is not in conflict with the State or Federal Constitution, and will be enforced on petition of the Attorney-General averring that the statutory prerequisites have been duly complied with.
    The practice under the act considered.
    Petition of the Attorney-General for payment of unclaimed moneys into the State treasury without escheat. C. P. No. 5, Phila. Co., Sept. T., 1920, No. 4578.

      Frank M. Eastman (with him Mark L. Greeley), for plaintiff.

      J. B. Townsend, Jr. (of Townsend, Elliott & Munson), for defendant.
    May 5, 1922.
   Martin, P. J.,

A petition was filed by the Attorney-General of the Commonwealth of Pennsylvania, pursuant to the Act approved May 16, 1919, P. L. 177, to procure payment into the State Treasury, to the credit of the Commonwealth without escheat, of certain unclaimed moneys held as a depository by the Provident Life and Trust Company of Philadelphia, which moneys are escheatable under the provisions of the Act approved June 7,1915, P. L. 878, and the supplements thereto, in that they consist of deposits which have neither been increased nor decreased within fourteen years prior to Jan. 1, 1920; and no interest credited to the depositors; and of certain other moneys held and possessed in a fiduciary capacity under a dry trust or under an active trust that has terminated, the beneficial owners and their whereabouts having been unknown for seven years; and of dividends declared but not paid for three or more years; also debts and interest due to creditors not paid for three years; also property held by the company for the benefit of other persons, which has been demandable for seven years, but not received by such persons.

Lists, certified to be correct by the Auditor General of the deposits and of the debts reported to him, are attached to the petition, and it is averred that he had given notice by mail and advertisement to the owners or persons entitled to claim the moneys as required by section 6 of the Act of 1915, as amended by section 3 of the Act of July 6,1917, P. L. 725, and that one year has elapsed, affording sufficient time since said notice and advertisement to enable the owners or persons interested to claim their money or property.

It is averred in the petition that the number and nature of the items of the money and property reported to the Auditor General are such that it is desirable, in the opinion of the Auditor General, that proceedings be instituted to procure the payment of the moneys into the State Treasury, to the credit of the Commonwealth without escheat, and to procure the sale of the property and payment of the proceeds into the State Treasury in conformity with the provisions of the Act approved May 16, 1919, P. L. 177, and that the Auditor General accordingly suggested to the Attorney-General that he proceed in the matter.

The petition prays that a day be set for a hearing, and notice be given the Provident Life and Trust Company; that after the hearing the court order all the unclaimed money appearing from the list attached to the petition, together with the accrued interest, to be paid into the State Treasury, to the credit of the Commonwealth, without escheat, and that the unclaimed chattels and securities appearing in the list be sold in such manner as the court may direct and the proceeds paid into the State Treasury, to the credit of the Commonwealth, except moneys, securities or chattels claimed by or paid to persons lawfully entitled thereto, or' not subject to escheat, or to the jurisdiction of the court. A list of deposits, which have neither been increased nor decreased, and interest on which has not been credited in the pass-book of the depositor for fourteen or more consecutive years; and a list of debts and interest on debts due to creditors and not paid for three or more successive years, including interest accumulated, but not paid to the beneficiaries, on funds held as trustee, guardian, committee, executor, administrator, assig-nee, receiver or other fiduciary, the principal distributive sums of which trust funds have been paid to the respective beneficiaries are attached to the petition, together with the certificate of the Auditor General.

Upon filing the petition with proof of service of a copy upon the Provident Life and Trust Company, the court fixed a date for hearing, notice of which was duly served.

The Provident Life and Trust Company of Philadelphia filed an answer, alleging that its corporate title was “The Provident Life and Trust Company of Philadelphia,” but neither admitting nor denying that the moneys specified in the petition are escheatable under the provisions of the Act of Assembly approved June 7, 1915, P. L. 878, and the supplements thereto, and praying that proof of the allegations of the petition be made, if necessary, to the proper determination of the cause. The answer neither admits nor denies that respondent held or possessed in a fiduciary capacity any moneys which are escheatable under the provisions of the Act approved June 7, 1915, P. L. 878, and the supplements thereto. It is denied that respondent has in its possession any dividends or profits declared to its stockholders or members and not paid for three years or more next preceding Jan. 1, 1920; or that there are any debts due by respondent or interest on debts to creditors not paid for a period of three years next preceding Jan. 1, 1920; or that it holds any property for the benefit of persons which has been demandable by such persons for seven or more years next preceding-Jan. 1, 1920, which has not been received by such persons, except as set forth in the reports made by respondent to the Auditor General, as required by law. Respondent admits that the moneys and property specified in the schedules to the petition annexed have been reported to the Auditor General under its proper corporate title of The Provident Life and Trust Company of Philadelphia, but neither admits nor denies that the Auditor General has given notice to the owners or persons entitled to claim the money, or that a sufficient time has elapsed since said notice and advertisement to enable the owners or persons to claim their respective moneys or property, and prays that proof of such notice be made by petitioner at the hearing of the cause. It was admitted by respondent that the exhibits annexed to the petition are true and correct reports made in pursuance of the act of assembly to the Auditor General, but respondent denies that any unclaimed chattels or securities were included in the exhibits. Respondent reserved the right to pay over to properly entitled claimants such money, securities and chattels as might appear at the hearing to have been claimed by and paid or delivered to the persons lawfully entitled thereto between the filing of the petition and the date of the hearing, and such moneys, chattels and securities as might be claimed at the hearing by the persons entitled thereto, or not subject to escheat, or to the jurisdiction of the court, and submitted itself to such order as the court might make in the premises.

The regulation of title and devolution of property within its limits, and the rules of evidence for the ascertainment of facts in its courts and the establishment of legal presumptions, are within the control and jurisdiction of the State: Cunnius v. School District, 206 Pa. 469.

The 1st section of the Act of May 16, 1919, P. L. 177, directs that, when money is held by a bank or association which is escheatable, the Auditor General shall suggest that the Attorney-General proceed to obtain the money after notice and advertisement as required by the act under which such items are escheatable, which is the Act of June 7,1915, P. L. 878, the 6th section of which, as amended by the 4th section of the Act of April 21, 1921, P. L. 223, enacts that when a deposit has been reported to the Auditor General he shall notify the person entitled thereto of such fact by letter addressed to him at his address furnished by the corporation reporting the money, if any such address is furnished in such report, and shall publish once a week for two successive weeks during the month of July in each year, in one or more general newspapers having the largest circulation published in the city or county in which the institution is located, a statement containing the name, the address, the amount of money, in whose benefit the money is held, so far as such data has been supplied to the Auditor General by the report.

In conformity with the requirements of the act, it appeared, by the uncon-tradicted statements in the petition, advertisement was duly made and a formal letter mailed by the Auditor General to each depositor where addresses were furnished, setting forth the proceedings, and calling upon the depositor to claim the deposit from the depository, which was the notice required to validate the proceeding: Institution for Savings v. Malone, 221 U. S. 660.

In Cunnius v. School District, 206 Pa. 469, 475, it was said: “The primary object is the due and orderly conservation of property for the benefit of the unknown or uncertain owner. ... If the statute . . . had vested a public administrator or other official with authority to collect and preserve the assets for the absentee exclusively, there could be no reasonable objection by the absentee, for the whole proceeding would be in his interest. ... If a fair and reasonable provision is made for protection of the owner in ease of his reappearance, the State has not exceeded its constitutional powers. . . . Temporary use is a matter clearly within the State’s power of regulation. . . . The State has power to make rules of property, and all owners are bound to conform and abide by them.”

In Com. v. Dollar Savings Bank, 259 Pa. 138, where the issue involved was the construction of the Act of April 17, 1872, P. L. 62, directing that where there has been no demand for any part of a deposit in a saving fund for thirty years, the deposit shall be paid to the State, but authorizing the depositor to recover from the State, it was held not to violate the constitutional protection by depriving the depositor of property without due process of law. It was also held that a court will never heed objections to the constitutionality of an act of assembly unless the complainants are affected by the particular feature alleged to be in conflict with the Constitution. It was stated in the opinion (page 145) : “When such property is taken in charge by the State, and the owner or his legal representatives are given an unlimited right to reclaim, with a pledge of all other unappropriated moneys in the public treasury, so far as may be necessary, to repay the amount thereof when duly proved, this is simply an exercise of authority over property actually within the jurisdiction of the State, and liable to escheat, for the due protection of all parties in interest, including the owner; and is in no sense a taking or seizing for public use within the meaning of the constitutional provisions.”

In Germantown Trust Co. v. Powell, 265 Pa. 71, it was decided that the Act of June 7, 1915, P. L. 878, providing for escheat of money on deposit, was not unconstitutional as impairing the obligation of a contract between the owner and the depository, as the statute of escheat, in effect, provides for the termination of the contract of deposit at the instance of the Commonwealth and by virtue of its sovereign power.

It was said (page 77): “There seems to be no room for doubt that the Commonwealth, by virtue of its sovereign power, may take charge of property abandoned or unclaimed for a period of time, or which has no known owner.”

And now, to wit, May 5, 1922, the cause having come on for hearing, and no one appearing to claim to be lawfully entitled thereto, and the proceeding being in conformity with the acts of assembly relating to the subject, the prayer of the petition is granted, and it is ordered and decreed that the moneys shown by the list to be on deposit in the custody of the Provident Life and Trust Company of Philadelphia, which have neither been increased or decreased, and interest on which has not been credited in the pass-book of the depositor, at his request, for fourteen or more consecutive years next preceding Jan. 1, 1917, 1918, 1919 and 1920, a schedule of which is attached to the petition filed and marked Schedule A, together with the moneys shown by Schedule C to be due to creditors and not paid for three or more successive years next preceding Jan. 1,1917, 1918, 1919 and 1920, including all interest accumulated but not paid to the beneficiaries on funds held as trustee, guardian, committee, executor, administrator, assignee, receiver or other fiduciary, not paid to the respective beneficiaries, together with interest actually accrued and payable at the date of filing the petition, be paid to the State Treasury by the Provident Life and Trust Company of Philadelphia, to the credit of the Commonwealth, without escheat.


source: Caselaw Access Project

author: Lamorelle, P. J.,

license: Public Domain

text:
    Whalen’s Estate.

      Practice, O. C. — Sale of real estate by executor — Setting aside for inadequacy of price — Exercise of power after time specified in will.

    Testatrix directed her executor to sell the real estate within one year after her death. She died April 4, 19X8. On July 26, 19X9, her executor sold the real estate in Question for ¥2900. On petition by a distributee to set the sale aside on the ground that the executor exceeded his authority in making the sale after the specified time, and that he (the distributee) had found a prospective purchaser who was willing to pay ¥3200, to which an answer was filed, averring that ¥3200 was the market value at the time of sale, and explaining the delay: Held: 1. That the executor had not exceeded his power. 2. That the sale would not be set aside for inadequacy of price. 3. That the petition should be dismissed without prejudice to the petitioner’s right to raise the question of the inadequacy of the price upon the audit of the executor’s account of the proceeds.
    Petition and answer. O. C. Phila. Co., Oct. T., 1919, No. 691.

      Aaron Trasoff, for plaintiff; Wm. Charles Brown, for defendant.
    May 23, 1922.
   Lamorelle, P. J.,

Bridget Whalen died April 4, 1918. By will made in 1914, she directed the executor therein named to sell all of her real estate, “and to divide the proceeds of such sale,” together with her personal estate, among her husband, two of her sons and two of her daughters by name, “equally share and share alike.” The sale was to be made within a period of one year after the date of her death.

On July 26, 1919, the executor sold real estate No. 5657 Boyer Street at public sale for $2800. This took place some three and a-half months after the time limit.

Some time in the year 1921, Robert Whalen, one of the sons mentioned in the will, filed the petition now before us; he prays that the sale be set aside, in that the executor exceeded his authority in the premises; alleges inadequacy of price, that a purchaser can be had who is willing to pay $3200, and further prays that the court direct the executor to sell at the latter price.

The executor does not answer, but Mary C. Delaney, the purchaser at public sale, does. She avers that the sum which she agreed to pay was the market value at the time; a willingness to settle at any time, and ascribes the delay to the inability of the executor to make title during the life of the surviving husband of testatrix; that the husband is now deceased, and that she has been informed that the executor is ready to proceed.

We find little merit in the petition. It would seem that the executor was well within his rights in selling after the year: Shalter and Ebling’s Appeal, 43 Pa. 83; Fredericks v. Kerr, 219 Pa. 365; Rieker v. Kaetz, 69 Pa. Superior Ct. 182.

If, however, the executor did exceed his authority in making sale after one year had elapsed, he could file a petition under the terms and provisions of the Revised Price Act of 1017, P. L. 388, to authorize or to confirm the sale, as made. That act, section 2 (d), confers jurisdiction “where there is a power of sale, but ... (3) the time limit for its exercise may have expired.”

We believe, in the circumstances, that substantial justice will be done by giving the present petitioner leave to offer testimony at the proper time, tending to show that the property was worth more than that for which .the executor sold it.

The petition is, therefore, dismissed, without prejudice to the right of the petitioner to present such testimony as is relevant and pertinent when the account of the executor, bringing in the proceeds of the sale, is before this court for audit.


author: Trimble, J.,

text:
    Snyder’s Estate.

      Issue devisavit vel non — Duty of executor to maintain will — Appointment of trustee by court suo motu.

    1. Where the persons appointed executors and trustees have had the will duly probated and have accepted letters testamentary, they owe a duty to the court, upon an application for an issue H&vUamt vel non on the ground of the testamentary incapacity of the testator, to produce all the relevant evidence reasonably obtainable upon his mental condition at the time of the execution of the alleged will and all the circumstances connected therewith. Hence, where on such an application the attorney for the executors, acting under instructions from his clients, refused to offer any evidence to sustain the will, the court suo motu appointed a trustee ad litem for all the trusts purporting to be created by the probated writings, and ordered a rehearing.
    2. Semble. The family of a decedent cannot, under a family agreement, strike down a valid will and administer the estate under the intestate laws.
    Petition for issue devisavit vel non. O. C. Allegheny Co., June T., 1921, No. 415.

      John C. Bane, for plaintiff; Wilson & Evans, for defendant.
    Jan. 13, 1922.
   Trimble, J.,

William P. Snyder, a prominent manufacturer of Pittsburgh, Penna., died Feb. 3,1921, at the age of sixty years. A writing signed by the decedent, purporting to be his last will and testament, dated Nov. 28, 1919, and another likewise signed by him, purporting to be a codicil thereto, dated Dec. 1, 1919, were probated together on Feb. 26, 1921, without a caveat or objection thereto. On the last mentioned date letters testamentary were granted to four executors named in said writings on their sworn petition, praying that the Register of Wills grant said letters to them. These executors are trustees virtute officii, and are his widow, Mary C. B. Snyder, his son, William P. Snyder, Jr., Henry Irwin, Jr., and George L. Collard. Charles H. McKee, the other executor, was a member of the bar of this county, but renounced his right to letters, and has since died. In order that the writings might be probated, the executors produced before the Register of Wills four witnesses, one of whom is a reputable lawyer, who was at that time practicing law in the office of Charles H. McKee, and is still a member of the bar and practicing his profession. All of these witnesses in making their formal proofs declared on their solemn oaths that the decedent was of sound mind and memory to the best of their knowledge and belief.

In these writings which were probated, the decedent bequeathed or devised, or attempted to bequeath and devise, a very large estate of the “value of several million dollars,” as is alleged in the petition hereinafter referred to. The personal property of the decedent was inventoried at $9,372,967.65. There are twenty-six pecuniary bequests amounting to $56,400, a devise of a house and lot to William Jamison, one of the witnesses to the codicil, and a bequest of all of his household furniture and fixtures, the equipment belonging to his stables and garages, and all articles of personal use and adornment to his widow, the said Mary C. B. Snyder. The others of these bequésts are distributed among servants and relatives, and included among the latter are his two grandchildren, each of whom receives $10,000. All of the residue of his estate is bequeathed and devised to his executors above named in trust, to be held by them in their custody for their management and distribution. One-third of the net income from this trust estate is given to his widow absolutely, one-third to his son absolutely, and one-third to his daughter in trust, for and during the term of their lives. There is an unlimited power of appointment given to his son, but a limited power to his daughter. The will forbids her from designating her husband as her appointee, but provides for him a sum which “will be ample and needful to afford him a sufficient competency to enable him to live in like rank and condition as at the time of his daughter’s decease;” and it further forbids him or her, or any husband she may have, from ever becoming an executor or trustee under the will.

On June 27, 1921, his said daughter, Mary Snyder Drew, appealed from the probate of these writings as the will and codicil of the decedent, and filed a petition praying that the probate be set aside and that an issue devisavit vel non be awarded to the Court of Common Pleas. In her petition she alleged as a reason for the relief prayed for, that her father was incompetent to make a will or codicil on the dates of the said waitings. Guardians ad litem were appointed for the two living grandchildren of the decedent.

The executors in their representative and individual capacities, in their answers, denied the petitioner’s allegation of incompetency in these words: “The respondents deny all the averments contained in paragraph 8 (which alleged incompetency), whether by intimation or direct averment, and especially deny that William P. Snyder, at the time of the execution of what are referred to in said petition as the paper writings admitted to probate by the Register of Wills of Allegheny County as the last will and testament of said decedent and codicil thereto, was not of sound and disposing mind, memory and understanding, and at said dates said William P. Snyder did not possess testamentary capacity necessary for the making of a valid will, and that at said dates William P. Snyder, by reason of illness, unsoundness and feebleness of mind, was wholly incapable of knowing or appreciating the nature or effect or consequences of the act of making his will, or comprehending the property he possessed, or the natural objects of his bounty, or of understanding or of comprehending the meaning, effect or consequences of the disposition of his estate purported to have been made by said paper writings, and that said paper writings are not the will of William P. Snyder.”

The respondents then prayed that the petition should be dismissed. These all and twenty-two legatees signed or joined in one answer, and William P. Snyder, Jr., made the affidavit to it and six others joined in a similar answer. The guardian ad litem, for the petitioner’s child, one of said legatees to the extent of $10,000, joined with the petitioner, alleging a greater advantage in inheriting from her if the will should be set aside.

At the trial the proponent produced the two witnesses to the will and the two to the codicil, who testified that they saw the decedent sign his name to the writings. The probate record of the signed writings as a will and codicil of the decedent were offered in evidence, and the proponent rested.

The contestant produced eighteen witnesses, and no one of them was asked any questions on cross-examination. The testimony shows that the decedent died of hardening of the arteries, after having been afflicted for several years, and that during the progress of this malady his body and mind became gradually impaired, and, in the opinion of some of the witnesses, he was not competent to make a will on Nov. 28, 1919, or a codicil on Dec. 1, 1919. After the petitioner rested, counsel for' all the respondents, except the guardian for the child of the petitioner, stated to the court as follows: “May it please your Honor, we have nothing to offer in defence, and in saying this I think I ought to say to you that in this we are acting by the direction of our clients.”

It appears from the testimony that as late as the spring of 1920 the decedent was able to travel around, going as far away from his home as Palm Beach, Florida, principally, perhaps, in his automobile, and that “he keenly realized his condition,” and that “his conduct throughout was for the purpose of keeping others from realizing what his condition was.” There is no testimony to show where the writing purporting to be a will was signed, or in what circumstances, whether it was signed in the office of Charles H. McKee, his counsel, or elsewhere, except the mere fact that he signed both papers, and this, notwithstanding the fact that at least the.four witnesses are obtainable who appeared in the register’s office and swore that he was of sound mind when he executed these written instruments. Although a man of very large business interests and extraordinarily wealthy, having stated, as he says in his probated writings, that the chief portion of his estate consisted of his interest in the Shenango Furnace Company, the pig-iron business carried on in the name of William P. Snyder & Co., and that the furnace company owns iron mines in Minnesota and is engaged in operating the same and selling a portion of its products delivered at lower lake ports, and in manufacturing the balance into pig-iron at blast furnaces which it owns at Sharpsville, Penna., and which company owns a coal mine and a coking plant in Westmoreland County, Penna., and is engaged in operating the same and in using or selling the product thereof, and which owns and operates steamships on the Great Lakes for the transportation of its ore, and also ooal, to the northwest, and that he himself owned the majority of the shares of stock of the Shenango Steamship Company, which owns steamboats on the Great Lakes for the transportation of coke, ore and coal, yet, notwithstanding all these statements by him, some of which are well known to the people of this community, not a single witness was called by the trustees, who assumed their duties prescribed by his probated writings and the law, to give the court any of the history of this man’s life at any time at all.

It may be the fact that he was incompetent, and we carefully avoid any intention of intimating otherwise in this opinion, but we feel that in justice to this man’s efforts and what he has done for the business interests of this community, his will should not be set aside on the whim of the trustees, but that it should only be done, if at all, after a careful consideration of all of the facts relating to his mental condition at the very time at which hei executed the probated writings.

When it is admitted that a man has signed a writing as his will, which has been allowed to be probated without a caveat, and letters testamentary are granted to persons who have caused the letters to be granted by a sworn petition therefor, who have begun the administration of the estate and denied the incompetency of the decedent to make a will, they owe a duty to the court to produce all of the relevant evidence reasonably obtainable which in any manner pertains to the decedent’s mental condition at the time when he signed the probated writings, and all of the circumstances connected therewith. These trustees have assumed a duty from which they cannot escape by directing their counsel not to defend the trusts which they have assumed, when it is possible for them to produce evidence which may result in what they do not want. They can be removed by this court by petition, or in certain circumstances suo motu, when they become hostile or negligent or attempt to acquire any of the trust property, as they may be when they do not meet the requirements of the statutes. As evidence of the failure of Mrs. Mary C. B. Snyder, the widow of the decedent, to perform her duties as trustee, and showing that she has become hostile to the trust, and that she has destroyed it, so far as she is able to, by taking from it some of the property included therein, we find recorded in the recorder’s office of this county her election to take against the decedent’s will dated Jan. 8, 1922, and recorded on Jan. 4, 1922, of which we take judicial notice, wherein she elects to take her share as widow of the decedent under the intestate laws of Pennsylvania, and in view of this fact, it cannot be conceived that she desires any longer to be a trustee under her husband’s probated writings if eventually they should be declared to be his will. The family of this decedent cannot agree to strike down these writings of the decedent if they amount to a valid will and codicil, and the court will prevent it. A judge “is the responsible head of his court, and if he has reason to suspect wrongs or irregularities, it is not only his right, but it is his imperative duty to see to their correction,” and the only limitation on this is that he shall proceed in an orderly manner: Stitzel’s Estate, 221 Pa. 227.

Before any decree for an issue devisavit vel non will be made, the court will suo motu appoint a trustee ad litem for all of the trusts purported to be created by the probated writings and order a rehearing of this case.

Order.

And now, Jan. 13, 1922, upon consideration of the manner in which this case was tried and the facts set forth in the foregoing statement, it is ordered, adjudged and decreed that a retrial of the issue between the petitioner and the respondents be had, and that Arthur L. Over be appointed trustee ad litem to represent the trusts under the probated writings, and George E. Alter is appointed his attorney to represent the trusts in said probated writings in said retrial, and that the executors of the will give access to the trustee and his counsel to all books and papers of every description relevant to a retrial of the issue, and aid and assist them in every lawful manner to produce witnesses and evidence before the court at a date to be fixed for retrial, in order that this case may be determined according to law.

Prom Edwin L. Mattern, Pittsburgh, Pa.


author: Beoomall, J.,

text:
    Wilson v. Emery.

      Automobiles — Parking regulations — Parking — False imprisonment — Malice.

    1. Any unlawful detention of a person is false imprisonment and imports malice. The motive of the one making the arrest is immaterial, except as affecting the amount of the damages.
    2. The head of the police department in a municipality may establish a parking regulation to prevent congestion of travel at a given location, and one violating its regulation may be arrested by an officer witnessing the act.
    3. A regulation prohibiting parking of an automobile is not violated by one stopping his car temporarily to transact business in an abutting building, but such stopping must not continue to the extent of an unreasonable obstruction to other users of the highway.
    4. Parking is an indefinite term, and whether one parked his automobile or stopped it temporarily is generally for the jury.
    5. “Parking,” in connection with the stopping of automobiles in a highway, is used in a tropical sense, and means to assemble together. A prohibition against parking is to prevent the assembly of cars for an unreasonable time, and the stopping of the first car for such time is the beginning of parking and a violation of the regulation.
    Motions by defendant for judgment non obstante veredicto and for a new trial. C. P. Delaware Co., Dec. T., 1920, No. 305.

      Fred Taylor Pusey, for motions; W. R. Fronefield, contra.
    Nov. 26, 1921.
   Beoomall, J.,

This is an action for false arrest and imprisonment. Any unlawful detention of a person is false imprisonment. The legal wrong of false imprisonment imports malice. The motive of the defendant is immaterial, except as affecting the amount of damages. On Oct. 14, 1920, the defendant arrested the plaintiff for parking his automobile on a public street. The plaintiff, a resident of the Borough of Lansdowne, came with his automobile, containing his wife and children, to a point on the south side of Baltimore Avenue within fifty feet east of Lansdowne Avenue, in the Borough of Lansdowne, and stopped opposite a drug store. His wife was at the wheel. He got out of his car and started to the drug store. The engine of his car continued to run. The defendant, a policeman of the borough, notified him that no parking was allowed at that place, and directed his attention to a sign to that effect. The plaintiff was going into the drug store to pay a bill. He replied to the officer that he was not parking, but merely stopping. The officer ordered him to move his car, which the plaintiff refused to do. Then ensued an argument, in which the plaintiff maintained he was within his rights in stopping his car for the brief purpose of a business visit to the store, and the defendant maintained that the plaintiff was violating a police regulation. The defendant then arrested the plaintiff and took him to the borough lockup, where he was confined twenty minutes and then released. The altercation between them over their respective rights attracted bystanders and was the occasion of some disorder. Whether the disorder was produced by the plaintiff or the defendant depends on which of them was in the wrong. But the arrest was not for disorderly conduct. It was for a refusal to move the car.

There was no borough regulation establishing the place in question as a no parking zone.

Although there was no borough regulation on the subject, yet we were of opinion on the trial that if the head of the police department, as a conservator of the peace, had established a regulation for the exigency of congested travel at this point to preserve the peace, and all as a temporary requirement to meet such exigency, and the plaintiff was violating that requirement, it would justify the arrest. We assimilated it to a case where there is a fire and the policemen, as a peace measure, string a rope cordon to keep the public away, and one invades this barrier, he may lawfully be arrested and restrained as committing a breach of the peace, provided the one who makes the arrest sees the act. Strickly speaking, this is not merely probable cause. It is a defence. Probable cause is no defence to false imprisonment. We called it probable cause on the trial, but this makes no difference, because we instructed the jury that if they found certain facts, which we called probable cause, existed, the verdict should be for the defendant. The facts to be found were:

1. Did the police officers of the borough establish this space in the street as a non-parking space and as a reasonable regulation for preserving good order and peace?

2. Did they put up a sign to that effect?

3. Did the plaintiff park his car in this space?

The jury were instructed that if they found all of these questions in favor of the defendant, their verdict should be for the defendant, but if they found any of these questions against the defendant, the verdict should be for the plaintiff.

The verdict was for the plaintiff, and, inasmuch as the plaintiff cíaimed only nominal damages, they assessed the damages at $1.

The jury, no doubt, found the first two questions in favor of the defendant, because they were not controverted. The third was the pivotal question in the case. Was the plaintiff parking his car or was he merely stopping. It was no doubt lawful for the plaintiff to stop his car a reasonable time to transact business with a neighboring store. To hold otherwise would derogate from the right of the storekeeper to have the public on wheels have convenient access to his store, and would derogate as well from the right of the public to exercise such right. But the exercise of such right must not continue to the extent of occasioning an unreasonable obstruction to other users of the highway. Parking, as applied in this connection, is an indefinite term. There is no certain time when the person ceases to be a legitimate stopper and begins the operation of parking. The word “parking” is here used in a tropical sense. Literally, to park is to assemble things together, and in this sense one automobile can no more park than one bird can flock. The idea of assembling inheres in the term. Still, considering the spirit and reason of the law where the term is used, the prohibition against parking automobiles is to conduce to the use of the highway by preventing the assembly of cars for an unreasonable time, and in this sense the stopping of the first car for an unreasonable time is the beginning of parking, and, therefore, inimical to the law. Further than that, even where there is no express prohibiting regulation, any use of the highway not for the purposes of travel is unlawful, qualified, of course, by such uses as have by custom received public sanction, as the occupation of trees, hitching-posts, stepping-stones, awnings, doorsteps, etc., to which may he added stopping a vehicle a reasonable time to transact business with a merchant.

We made an ineffectual effort on the trial to define the word parking, and not being satisfied with it, and seeing that it involved the question of reasonable time, we left it to the superior knowledge of the jury.

We see no reason to interfere with their conclusion.

Defendant’s motions for judgment n. o. v. and for a new trial are, therefore, refused. Prom A. B. Geary, Chester, Pa.


author: Hull, Dep. Att’y-Gen.,

text:
    City Hospital Association.

      Corporations of first class — Merger—Transfer of property and franchises to another hospital — Act of April 17, 1876.

    A corporation of the first class owning and operating a hospital has no power to sell, assign and transfer all of its property and franchises to another hospital and merge itself therein, without complying with the provisions of the Act of April 17, 1876, P. L. 30.
    Attorney-General’s Department. Opinion to Hon. Samuel S. Lewis, Auditor General.
    Jan. 6, 1922.
   Hull, Dep. Att’y-Gen.,

I have received your letter to which are attached certain papers relating to the City Hospital Association of Washington, Pa., which papers I am returning herewith.

The legislature, by Act No. 116-A, approved May 27, 1921, appropriated the sum of $10,000, or so much thereof as may be necessary, to the City Hospital, Washington, Pa., or its successor.

It appears from the papers enclosed that on July 12, 1921, at a meeting of the Board of Directors of the City Hospital, Washington, Pa., resolutions were passed providing for the sale, assignment and transfer to the Washington- Hospital of all the property, real, personal and mixed, and of all the rights, privileges and franchises of the City Hospital. Pursuant to the resolutions thus passed by the directors, a meeting of the incorporators of the City Hospital was held, and at this meeting a majority of the incorporators unanimously approved a similar resolution. Subsequently, on Nov. 15, 1921, the officers of the corporation executed a deed conveying the property and franchises of the City Hospital to the Washington Hospital, which deed was on Nov. 23, 1921, recorded in the Recorder’s Office of Washington County. The Washington Hospital now requests you to pay to it the appropriation made by Act No. 116-A, and you inquire whether this should be done.

The appropriation is made to the City Hospital “or its successor.” The question is, therefore, whether the Washington Hospital is the legal successor of the City Hospital.

Under the provisions of section 23 of the Act of April 29, 1874, P. L. 73, as amended by Act of April 17, 1876, § 5, P. L. 30, and Act of June 2, 1915, § 1, P. L. 724, when a corporation sells, assigns and disposes of or conveys to another in the manner provided for in the act its franchises and all its property, the vendor corporation ceases to exist, and the vendee corporation becomes its successor. This provision, however, is clearly applicable only to corporations of the second class, i. e., corporations for profit, and I can find no similar provision in the law relating to the sale of the property and franchises of a corporation not for profit. It appears that the only way in which such corporations may merge or consolidate so that the one may become a legal successor to the other is under the provisions of section 12 of the Act of April 17, 1876, P. L. 30, which is an amendment of section 42 of the Corporation Act of 1874. This section provides, in part, as follows: “If any two or more such corporations (corporations not for profit) shall desire to consolidate and merge with each other, or one or more within the other, upon application to the Court of Common Pleas of the county in which the corporation is situated, into which the one or more desire to merge or become consolidated with, the same proceedings shall take place as are required on an application to amend; and upon decree being made by said court, and the same being recorded in said county, upon the terms specified in said application, the said corporations, with all their rights, privileges, franchises, powers and liabilities, shall merge and be consolidated into, by the name, style and title given to the same in such decree, and upon the terms, limitations and with the powers stated and conferred in said application and decree.”

It does not appear that the directors and incorporators of the City Hospital have taken the necessary legal steps to constitute the Washington Hospital its legal successor, and, accordingly, you would not be justified in making payment of the appropriation to the Washington Hospital until this has been done.

Prom Guy H. Davies, Harrisburg, Pa.


author: Fox, J.,

text:
    Noll v. Noll.

      Divorce — Cruel and barbarous treatment — Bill of ‘particulars — Dates and places.

    In an action for divorce on the ground of cruel and barbarous treatment, the acts should be alleged with reasonable certainty as to time and place, but the exact date and place of the occurrence of each particular act need not be set forth.
    Rule for more specific bill of particulars. C. P. Dauphin Co., March T., 1921, No. 68.

      Beidleman & Hull, for rule; James G. Hate, contra.
    Jan. 3, 1922.
   Fox, J.,

On petition of the respondent, the court granted a rule upon libellant to show cause why a more specific bill of particulars should not be filed. An answer to the rule was filed, averring that the bill of particulars as filed was sufficient, and that the respondent is not entitled to have a more specific bill of particulars.

Upon examination of the bill of particulars as filed, we think it is sufficient.

The ground of divorce is cruel and barbarous treatment. The bill of particulars shows that the alleged cruel and barbarous treatment covered a long period of time. We think the respondent is quite fully supplied and informed of what she is called upon to meet at the trial of the case. Acts of cruel and barbarous treatment should be alleged with reasonable certainty as to time and place, but the exact date and place of the occurrence of each particular act need not be set forth, particularly where it is not covered by any particular time, but runs over a long period. It would be impracticable and impossible in many cases to give a specific allegation of the time and place of each particular occurrence, and should not be required: 14 Cyc., 668; 19 Corpus Juris, 111.

And now, Jan. 3, 1922, for the reasons stated, the petition is dismissed and the rule discharged.

Cf. Noll v. Noll, 30 Dist. R. 919.

Prom William Jenkins Wilcox, Harrisburg, Pa.


author: STEWART, P. J.,

text:
    Pennsylvania Utilities Co. v. Mt. Bethel Milling Co.

      Practice, J. P. — Affidavit of claim — Act of July 7, 1879.

    1. Where the record shows that summons and affidavit of claim under the Act of July 7, 1879, P. L. 191, were issued at the same time to a constable, and the record shows return of the service of the summons and affidavit of claim at the same time, there is a sufficient compliance with the act as to time.
    2. The treasurer of a corporation or the assistant treasurer may make the affidavit of claim under the act without setting forth that he is cognizant of the facts constituting the cause of action. It is to be presumed that the holder of the office is cognizant of the facts.
    3. The affidavit of claim must set forth in a concise and summary form the material facts on which the plaintiff relies for its claim.

      Certiorari to judgment of alderman. C. P. Northampton Co., Sept. T., 1921, No. 70.

      Smith, Paff & Laub, for plaintiff; George W. Geiser, Jr., for defendant.
    Oct. 3, 1921.
   STEWART, P. J.,

This is a certiorari to the judgment of an alderman. Judgment was entered for want of a sufficient affidavit of defence under the provisions of the Act of July 7,1879, P. L. 194. It has always been held upon certiorari that the provisions of the Act of 1879 must be strictly complied with. In Murdy v. McCutcheon et ux., 95 Pa. 435, the Supreme Court took jurisdiction of the case under the act, although in Huntington and Broad Top Mountain R. R. Co. v. Fluke, 32 Pa. Superior Ct. 126, President Judge Rice of the Superior Court showed that the Supreme Court had evidently overlooked the fact that they had no jurisdiction, and that the judgment of the Common Pleas was final in certiorari. In Fell v. Leach, 15 Dist. R. 223, it was held: “The Act of July 7, 1879, P. L. 194, authorizing an aider-man to render judgment for want of an affidavit of defence, provides a new remedy in derogation of the common law, its provisions must be strictly complied with, and the record must affirmatively show that they have been, otherwise the alderman is without jurisdiction.” To the same effect is Hall v. Smitheman, 26 Dist. R. 203. No case has been cited which shows a departure from what has been held in those well decided cases. Thirteen causes of demurrer were assigned. The first and second causes are to the effect that the record does not show that the affidavit of claim was filed before the summons was issued, nor that it was delivered to the constable. The record shows July 19,1921, summons and affidavit of claim issued to Harry P. Brown, constable. Then follows the return of the service of the summons and affidavit of claim by the same constable. As far as delivery is concerned, nothing could be more explicit. As to time, while the act reads: “If the plaintiff shall file, at any time before the issuing of the summons in any such case, an affidavit,” etc., yet that clause must be read in connection with the following clause which requires the alderman to make a copy of the affidavit certifying its correctness, and to deliver it to the constable, which copy must be served at the same time as the summons is served. The purpose of all those provisions is to prevent the issuing of a summons, and then, a day or two afterwards, allow an affidavit of claim to be filed, and the officer to make service of the summons at one time and the affidavit of claim at any other time. Where the record shows what is shown supra, it is in strict conformity with the act. The third cause of demurrer is that the record does not show that there was a demand for payment made before suit. That is not required, either by law or by the act. The fourth and fifth causes are to the effect that there is no averment as to whether the plaintiff and defendant are individuals, partnerships or corporations. This is not necessary. For the purpose of suit, as provided by the act of assembly, they are presumed to be corporations. The eighth cause of demurrer is, that the affidavit of claim served upon the defendant, and attached to the exception and made a part thereof, is not a duly certified copy. Overlooking the irregularity suggested by the learned counsel for the plaintiff of considering the copy served on the defendant because it might contradict the record, it seems to us the copy might be considered, if it were essential, under the authority of Minogue v. Ashland Borough, 14 Dist. R. 464, where President Judge Bechtel reviews all the authorities on the subject; nevertheless, careful inspection of the two papers shows that the difference between the two is immaterial. The alderman has certified of record that it is a true and correct copy. It, however, appears from inspection, that in the body of the original affidavit J. W. Weisel, Jr., is referred to as the treasurer of the Pennsylvania Utilities Company. When he signed it, he signed J. W. Weisel, Jr., Asst. Treasurer. The copy served omits the word “Asst.” That is the only variance, and it is an immaterial one, in our judgment, under the view which we take of the ninth cause of demurrer. The ninth cause of demurrer is, that the affidavit does not set forth that the person who made it was cognizant of the facts. The act of assembly, in the first part, refers to an affidavit which shall be made by the plaintiff. Then it contains this proviso, “provided that the affidavit required by this section may be made by the agent of the party, where such agent is cognizant of the facts constituting the cause of action,” etc. The learned counsel for the defendant contends that the treasurer of the corporation is but the agent of the corporation. It is true that it has been so held in many cases where the power of the corporation to contract or to enter into engagements is concerned, but where the corporation brings a suit such as this, the proper party to swear to the affidavit is the treasurer. In this case he really is the plaintiff. Referring to an affidavit of defence made by a manager in Andrews v. Blue Ridge Packing Co., 206 Pa. 370, Mr. Justice Mitchell said: “Tested by this standard, the first affidavit of defence was sufficient. It was made by the business manager of the defendant in positive terms. As such officer he must be presumed to be acquainted with the facts, and as he took the responsibility of swearing positively as of his own knowledge, it was unnecessary for him to set forth his information and belief: Newbold v. Pennock, 154 Pa. 591; Wolf v. Jacobs, 187 Pa. 260.” The same thought was expressed by Judge Endlich in Fire Ins. Co. v. Keller, 7 Northamp. Co. Repr. 146, as follows: “The making of the affidavit by an agent of the plaintiff is expressly permitted by the Act of 1879, and in the case of a corporation unavoidable. The recital of his office of secretary is in itself an averment that he is cognizant of the matters he deposes to, that office necessarily involving a knowledge thereof.” In Kingan Prov. Co. v. Manganiello, 20 Luzerne Legal Reg. Reps. 451, 49 Pa. C. C. Reps. 91, it was held: “In an action on book account for goods sold and delivered, affidavit to statement may be made by plaintiff’s book-keeper, who presumably has knowledge of facts, though it is not so stated in affidavit.” True, there are some authorities the other way (see Knight v. Smithson, 8 Pa. Justices’ Law Repr. 176), but we hold, after examining them, that, where the averments are direct and positive, as in this case, affidavit may be made by the treasurer or the assistant treasurer. The sixth, seventh, tenth, eleventh, twelfth and thirteen causes are to the effect that the affidavit of claim does not set forth in a concise and summary form the material facts on which the plaintiff relies for its claim. If any authorities are required as to the necessity of these requirements, they may be found in Fire Ins. Co. v. Keller, 7 Northamp. Co. Repr. 146, and Hall v. Smitheman, 26 Dist. R. 203. When the affidavit of claim is examined, it will be perceived that it is difficult to determine whether the suit was on a book account or on a contract. It is difficult to imagine a suit on a book account for the recovery of the price of electrical power. Electrical power is surely not goods. It is not merchandise. It is as difficult to define as it was difficult to answer a question asked an expert in a case before us: “What is a watt?” Suits on book accounts have a well-understood meaning: See authorities collected by President Judge Sadler in Hall v. Smitheman, 26 Dist. R. 203, and by Judge Henderson in Daniels’s Estate, 29 Dist. R. 131. If it were on a special contract, the contract should be set forth. If there was no special contract to furnish electrical power, and the same was furnished in the regular course of business, then the technical averments fitted to such cases should be used, that the prices charged are reasonable and the usual charges. In Murphy v. Taylor, 173 Pa. 317, that form was approved, and in the late case of Bethlehem Steel Co. v. Topliss, 249 Pa. 417, the contrast between the phraseology of the statement of claim and the affidavit of defence is plainly seen. The syllabus of that case is as follows: “In such case, a claim or set-off for the cost of perfecting certain materials furnished by plaintiff, which were averred to be defective, was insufficient, where, although the amount and cost of the work done, including the amounts paid for labor, etc., were set forth, it was not alleged that the charges for labor were the reasonable or usual charges, or that the prices paid for the materials represented the fair market prices thereof.” We do not think that the words “just, legal and proper charges” are equivalent to the expression insisted on by the Supreme Court. For this reason, and because the statement is not a concise and summary one, we sustain the last-mentioned causes.

And now, Oct. 3, 1921, the sixth, seventh, tenth, eleventh, twelfth and thirteenth causes of demurrer are sustained and judgment is reversed.

From Henry D. Maxwell, Easton, Pa.


author: Schaeffer, P. J.,

text:
    Koenig’s Estate.

      Wages — Preference—Decedents’ estates — Acts of April 9, 1872, June 18, 1883, and May 12,1891.

    1. The Act of April 9, 1872, P. L. 47, and its amendments of June 13, 1883, P. L. 116, and May 12, 1891, P. L. 54, provide a lien for wages to mechanics, employees, servants and others in like capacity. Where one is engaged in a business which does not confine his dealings or activities to one person or firm, but may extend to an unlimited number of persons, and receives a fixed amount from each for the services rendered, he cannot be regarded as an employee or servant within the meaning of the act.
    2. A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who in such services remains entirely under the control and direction of the latter.
    Claim for salary. O. C. Berks Co.

      Rothermel & Mauger, for claimant; E. D. Trexler, for accountant.
    Oct. 22, 1921.
   Schaeffer, P. J.,

W. W. Prutzman also presented a claim for $80 due him as “salary” for services rendered to decedent for a period of eight weeks, beginning in September, 1920, and ending Oct. 30, 1920, at $10 per week. Claimant contends that this is a preferred claim, because the amount of salary claimed is owing to him for services which, under the Act of May 12, 1891, P. L. 54, are given a preference in the distribution of decedents’ estates.

Objection has been made both to the validity of the claim and the allowance of it as a preferred claim, if it should be determined that it has been proved.

It appears that the decedent was conducting a number of moving-picture theatres during her lifetime, and that, at the time of her death, her business had dwindled down to the operation of one theatre, known as the Euclid Theatre, located in Schuylkill Haven. It was the duty of the claimant to see that this theatre was supplied with the necessary picture films. He went to Philadelphia every day and selected the features for it and for two other theatres in the city not under her control or ownership. His business was to select the picture reels for these theatres and attend to the shipment and delivery of them to the different theatres. He was known as a “booker” or “messenger,” and his duties were limited to the selection of the reels for the various theatres and seeing to their prompt shipment. He had no other connection with decedent’s business, nor did he render any service in or about the property in which said business was conducted. For booking the shows for this particular theatre, the Eucild, he received $10 per week from the decedent.

That the amount of $80 is still due and owing to the claimant by this estate seems to be established by the evidence. The check-book of the decedent shows that it was her custom to pay him weekly by check, and that the last payment made to him was sometime prior to September, 1920. One of the witnesses also testified that decedent said shortly before her death that “I must fix him up; it’s a shame, . . . and that Prutzman comes next.” This testimony, in connection with the fact that latterly decedent was unable to pay any bills and was hopelessly insolvent, as shown by the number of claims presented here and the amount for distribution, convinces us that the claim is a just one.

The objection, however, that this is not a preferred claim must be sustained. The claimant, in order to be entitled to a preference, must show that he is one of the persons, or belongs to a class, embraced within the protection of the act of assembly giving such preferences.

The Act of May 12, 1891, P. L. 54, is an amendment of the Act of June 13, 1883, P. L. 116, which was an amendment of the Act of April 9, 1872, P. L. 47, and provides as follows: “All moneys that may be due or hereafter become due for labor and services rendered by any miner or mechanic, servant girl at hotels, boarding-houses, restaurants or in private families, or any other servant and helper in and about said houses of entertainment and private families, porter, hostler or any other person employed in and about livery stables or hotels, laundryman or washer-woman, seamster or seamstress employed by merchant tailors or by any other person, milliner, dressmaker, clothier, shirtmaker or clerk employed in stores or elsewhere, hand laborer, including farm laborer or any other kind of laborer, printer, apprentice, and all other tradesmen hired for wages or salary from any person or persons, chartered company, joint stock company, limited partnership or other partnership, either as owner, lessee, contractor or under-owner, whether at so much per diem or otherwise, for any period not exceeding six months preceding the sale or transfer of the real or personal property, works, mines, manufactories, or business or other property connected therewith in carrying on the sale of said person or persons, chartered company, joint stock company, limited partnership or other partnership, by execution or otherwise, on account of the death or insolvency of such employer or employers, shall be a lien upon said real or personal property. . . .”

The said Act of 1891 does not embrace all kinds of services which may be rendered by one person to another, but confines its operation to a certain class of persons or employees enumerated therein and to their corresponding classes of employers. As was said by Mr. Chief Justice Fell in Mulholland v. Wood, Brown & Co., 166 Pa. 486: “The Act of May 12, 1891, P. L. 54, is an amendment of the Act of June 13, 1883, P. L. 116, which is an amendment of the Act of April 9, 1872, P. L. 47. Each successive act enlarges the number of persons intended to be benefited. The first act included but four classes, the second twenty-three, and the third twenty-five.”

The claimant has not clearly indicated to us the class in which he contends his ease can be included, but has made the general argument that because he received $10 per week “salary,” he must be regarded as an employee of some kind, and, consequently, is entitled to the benefits of the act.

The mere fact that claimant received a “salary” for certain services performed by him does not bring him within the meaning of the act, if he fails to show that he belongs to one of the classes of persons enumerated therein. One who claims its benefits must bring himself clearly within its terms: Carey v. Lameroux, 22 Pa. Superior Ct. 560.

We do not see how the business of a “booker” or “messenger,” which the claimant carried on and out of which his claim against this estate arose, can in any way be regarded as falling within the provisions of this act. The line of work which he performed, if it be conceded, arguendo, that he was employed by the decedent, is not covered by the language of the statute. None of the terms defining the classes of person entitled to the benefits of the act includes the business or relationship which the claimant says he sustained to the decedent. “Bookers” and “messengers” are a distinct class of employees, and are not covered by the act. When the Act of 1891 was passed, the moving-picture business was in embryo, and, consequently, the legislature could not have intended to extend the preferences to persons or a class of which it had no knowledge.

Again, this act undoubtedly contemplates that the relationship of master and servant, or employer and employee, must exist before its provisions can be invoked.

In this ease the claimant was not only booking shows and attending to the shipping of the films for the decedent’s theatre, but was also doing the same thing for two other theatres, for which he received a stipulated amount. In other words, he was not in the exclusive employ of the decedent, and dependent solely upon his employment by her for a livelihood. While it is true that in or about September, 1920, he was supplying the films for only three theatres, yet the evidence shows that at one time he had numerous theatres for which he secured the films, and that his business was that of selecting and providing films for theatres of different owners at a certain amount per week for each theatre. It seems to us that when one is engaged in a business which does not confine his dealings or activities to one person or firm, but may extend to an unlimited number of persons, and receives a fixed amount from each for the services rendered, he cannot be regarded as -an employee or servant within the meaning of the act. “A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter. The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct both what work shall he done and the manner in which it shall he done:” McColligan v. Pennsylvania R. R. Co., 214 Pa. 229, 232. The claimant was undoubtedly engaged in a distinct and independent business. The claim is not preferred, and will, therefore, prorate in the fund with the common claims.

From Wellington M. Bertolet, Reading, Pa.


author: Koch, J.,

text:
    Ambrozavage v. Michigan Fire and Marine Insurance Co.

      Insurance — Fire insurance — Proof of loss — Authority of local agent— Waiver.

    1. While an insurance company may waive a provision in a policy requiring formal proofs of loss within sixty days, such provision cannot he waived by a local agent without express authority to make such waiver.
    2. The fact that the insured gives to the local agent an unsigned inventory of the things claimed to have been lost, with their prices, is not sufficient to establish a waiver on the part of the company, if it appears that the insured furnished to the company a formal proof of loss more than sixty days after the fire.
    3. By filing a formal proof of loss after sixty days, the insured did not avail himself of an alleged waiver of formal proof. Hence, the question of the waiver by the company of formal proofs did not arise.
    Motion to strike off non-suit. C. P. Schuylkill Co., Sept. T., 1920, No. 110.

      B. A. Freiler, for plaintiff; John F. Whalen and Geo. Ellis, for defendant.
    Jan. 2, 1922.
   Koch, J.,

The defendant resided in the Borough of New Philadelphia, and took out a policy of insurance in the defendant company for $600 to cover his household goods and furniture. Later, he obtained from the company’s local agent a removal permit and moved to Port Carbon, where his insured property was destroyed by a fire which, occurred in the forenoon on Aug. 2, 1919. He claims that everything was either burnt or spoiled — he could use none of the goods. Between 3 and 4 o’clock in the afternoon of the same day he went to Mrs. Helen Bendrick, the company’s local agent who had issued the policy to him, and told her of the fire and of his loss, and she told him she would write a letter to the company. The fire occurred on a Saturday, and Mrs. Bendrick notified the company of the fire by a telegram to the general agent on the following Monday, to which she received a reply, inquiring why she had not notified the company about the removal permit. Mrs. Bendrick had been to see where the fire was on the Monday following the fire, but Ambrozavage was not then at home, so he went to see her a few days later. About two weeks after the fire, Mrs. Bendrick, in the presence of the insured and with his aid, made a list of the articles destroyed, totaling in value $647 and some cents, he stating to her the cost value of each item. The company’s adjuster, a Mr. Williams, came about the third week after the fire had occurred, went to New Philadelphia and saw Mrs. Bendrick and then went to the scene of the fire. Mrs. Bendrick did not see Mr. Williams after he went to Ambrozavage’s house, but in her first telegram she notified the company that the loss was $450. The company did not tell her to get a statement of the loss; she went of her own accord and got it, so she would have it ready when they would come again. She thought she was acting for both parties in that and did not act for any one specially. She made two copies of her original statement, or inventory and values placed thereon from information which she received from the plaintiff as to cost, but she did not keep the original; it was just a “sketch” made “on shop paper.” She made the two copies for the plaintiff, and the company was to come and get one when they would call again, hut the agent did not return. The statement had not been ready when the adjuster came; it was not made up until after he left. When she looked at the premises on the next Monday after the fire had occurred, she telegraphed to the company her own opinion of the plaintiff’s loss as $450. A. M. Waldron was the name of the general agent of the company, and he acknowledged that he had received Mrs. Bendrick’s telegram. When Williams went to Ambrozavage’s house, Ambrozavage was not home, but somebody was pointed out to Williams as Ambrozavage’s wife. Williams examined the premises, but he could not talk with the woman on account of her foreign language. He did not return afterwards, nor send any one, nor did he demand further proof of loss at any time; but the plaintiff filed a so-called proof of loss in January, 1920, more than sixty days after the fire. Williams had visited the scene of the conflagration and had been afforded every opportunity to make any examination he wished. He does not think that he told Mrs. Ambrozavage she need not call her husband, but she testified that she told him to wait until her husband came home, and that Williams asked her whether she had a paper with everything written on, and that .she did not understand what paper he was talking of, but he would not wait until her husband came home. When Williams went there to make an examination of the premises, he found fire had been in two places, one in the kitchen behind the door and one in the closet under the stairs, going upstairs. The house was not destroyed and neither of the fires could communicate with the other. He made a list of the things that were in the house on the day when he was there. The fire had been very slight in both cases, and the house was in practically the same condition as on the day of the fire, according to his idea. He did not want to see the husband; he went only to investigate the fire, and testified “it was a made fire.” The company knew nothing about the origin of the fire until he reported it. He suspected it was incendiarism, and made a report of everything he found to the company. Mr. Wilson, of the fire department of Port Carbon, was with him when he made the investigation, and the State Fire Department was also investigating this fire.

The insurance policy, inter alia, provides: “The insured shall give immediate notice in writing to this company of any loss or damage, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, furnish a complete inventory of the destroyed, damaged and undamaged property, stating the quantity and the cost of each article and the amount claimed thereon; and the insured shall, within sixty days after the fire, unless such time is extended in writing by this company, render to this company proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item and the amount and loss or damage thereto,” etc.

On cross-examination, the plaintiff admitted that he did not protect the property from further damage, nor separate the damaged and undamaged personal property, nor put it in the best possible order. From his testimony the inference is warranted that he did not concern himself at all about any of the property after the fire, and that he concerned himself only about the insurance money. Notwithstanding the fact that the policy required him to give to the company immediate notice in writing of his loss, he was not compelled to comply strictly therewith, because, by virtue of the provisions of an Act approved June 27, 1883, P. L. 165, one shall be deemed to have complied with such condition if he has furnished the company at its general office, or the company’s agent who countersigned the policy of insurance, with notice of loss within ten days from the date of the fire and a preliminary proof of loss within twenty days of the said date. The plaintiff is a foreigner, who is unable to fluently speak, or clearly understand, the English language, but Mrs. Bendrick speaks both his and the English language fluently. The policy further provides that: “No one shall have power to waive any provision or condition of this policy, excepting such as by the terms of this policy may be the subject of agreement added thereto; nor shall such provision or condition be held to be waived unless such waiver shall be in writing added thereto; nor shall any provisions or condition of this policy, or any forfeiture, be held to be waived by any requirement, act or proceeding, on the part of this company, relating to the appraisal, or to any examination herein provided for.”

Now, is the plaintiff, in view of his own conduct, followed by the conduct of the company’s local agent and its adjuster, relieved from strict compliance with the letter of the policy, and is it, under all the circumstances in the case, for a jury to say whether or not the company waived any of the conditions requiring a formal written notice of loss, signed and sworn to by the plaintiff? Inasmuch as he gave almost immediate verbal notice of the fire to the local agent on the very day of the Are and she telegraphed to the company two days afterwards, and the receipt of her telegram was acknowledged, the company had written notice of the fire in the language of Mrs. Bendrick’s telegram: Beatty v. Lycoming County Mutual Ins. Co., 66 Pa. 9, 16.

When the plaintiff later gave to Mrs. Bendrick a verbal statement, setting forth the particular things destroyed, with their cost value, and she wrote them down on a piece of “shop paper,” which she kept until it became destroyed or lost, of which she had given the plaintiff two copies, one for himself and the other to be delivered to the adjuster upon his arrival, he did not strictly comply with the terms of the policy requiring him to furnish a signed statement, sworn to by him. No statement or proof of loss got into the hands of the adjuster, or to the company, until more than sixty days after the fire, when the plaintiff furnished such a paper conformably to the requirements of the policy.

The Act of 1883 settles the question of an agent’s authority respecting notice and proof of loss, and makes such notice and proofs as effective when given to the local agent who countersigned the policy as if given directly to the company itself: Welsh v. London Assurance Corp., 151 Pa. 607, 611; Bush v. Hartford Fire Ins. Co., 222 Pa. 419. An insurance company may waive any condition in its policy by parol, although it contains a stipulation that there shall be no waiver except by an express agreement in the policy. Even a condition of non-waiver may itself be waived: Bush v. Hartford Fire Ins. Co., 222 Pa. 419, 432, 433. And “if the insured in good faith, and within the stipulated time, does what he plainly intends as a compliance with the requirement of his policy, good faith equally requires that the company shall promptly notify him of their objections, so as to give him the opportunity to obviate them; and mere silence may so mislead him, to his disadvantage, to suppose the company satisfied, as. to be of itself sufficient evidence of waiver by estoppel:” Gould v. Insurance Co., 134 Pa. 570, 588. If the proofs of loss be informal, the circumstances under which they are delivered may put upon the insurance company the duty of notifying the insured of its objections thereto, if the want of form is to be relied upon: Welsh v. London Assurance Corp., 151 Pa. 607, 616. “Silence on the part of the insurer for any considerable time after the receipt of such proofs of loss will be taken to be a waiver of the necessity for any further proof of loss, and such proofs, furnished by the insured, will be held to be a compliance with the conditions of the policy:” Bush v. Hartford Fire Ins. Co., 222 Pa. 419, 433; Wakely v. Sun Insurance Office, 246 Pa. 268, 272.

However, the covenants in a policy are mutual and compliance with them is imposed on the insured just as solemnly as it is imposed upon the insurer, and no agent of either party may waive any covenant in a policy without authority to make such waiver. It can only be done by a party to the contract or by a duly authorized representative: Hottner v. Fire Ins. Co., 31 Pa. Superior Ct. 461, 463; Kness v. Anchor Fire Ins. Co., 31 Pa. Superior Ct. 521.

Mrs. Bendrick could not waive the plaintiff’s duty to give the proofs of loss, according to the agreement in the policy. “If the insured . . . chose to rely on the voluntary promise, of the local agent as his warrant for expunging from his contract some of its important provisions, and ignoring the warnings therein given against such attempts to alter or waive the terms of the writing on which his claim is founded, he placed himself in the position described by Agnew, J., in Marland v. Insurance Co., 71 Pa. 393, thus: ‘If deceived or lulled into security, it was not by any act of the company, but by trusting to the mere opinion of one who had no authority to bind the company by any such expression:’ ” Hottner v. Fire Ins. Co., 31 Pa. Superior Ct. 461, 464. See; also, Devaney v. Northwestern Ins. Co., 64 Pa. Superior Ct. 510, 516, and Primo v. Safety Mutual Fire Ins. Co., 72 Pa. Superior Ct. 409. “Mere negotiations between the insured, who has not furnished proof of loss, and the insurance company’s adjuster, or mere expectation of a settlement without any change of position of the insured to his detriment, are not sufficient to establish waiver of proof of loss by the company:” Dunn v. Farmers’ Fire Ins. Co., 34 Pa. Superior Ct. 245. In the case of Primo v. Safety Mutual Fire Ins. Co., 72 Pa. Superior Ct. 409, the insured was a foreigner, not well acquainted with English and had very little knowledge Of business affairs. He suffered a partial loss by fire. He went to the local agent and told him, quoting his own language: “What I lost, the horses and cows and grain, and he wrote down and he said alright, you go home and do nothing until I have answer from the company, and when I have answer from the company, I will let you know.” He visited the agent several times, and the agent told him the same thing, and he did not within twenty days furnish proof of loss to the local agent as required by the Act of 1883, nor within sixty days to the company. The conduct of the agent was such as to make him believe that nothing further was required of him until the agent sent word. But the Superior Court said the plaintiff was not entitled to recover.

“Now, to constitute a waiver there should be shown some official act or declaration by the company during the currency of time dispensing with it, something from which the insured might reasonably infer that the underwriters did not mean to insist upon it. As was remarked by the present Chief Justice in Diehl v. Adams County Ins. Co., 58 Pa. 443, 452: ‘This never occurs unless intended or where the act relied on ought in equity to estop the party from denying it.’ Mere silence is not enough. Upon this question, see, also, Gould v. Insurance Co., 134 Pa. 570:” Lapcevic v. Lebanon Mutual Ins. Co., 40 Pa. Superior Ct. 294, 300. “Waiver is essentially a matter of intention and cannot arise out of acts done in ignorance of material facts:” . . . Freedman v. Fire Association, 168 Pa. 249, 253. If waiver be a matter of intention, such intention must be made to appear either directly or inferentially, and it seems to the writer that it, therefore, becomes a question for a jury when there is sufficient evidence bearing upon the question; As Mrs. Bendrick was the company’s local agent, and was given by the plaintiff, in the manner hereinbefore stated, an inventory of the things claimed by him to have been destroyed, she must be regarded as being served and furnished -with such information for and on behalf of the company, and it was her duty to make full report of the same to the company, notwithstanding the informal and insufficient way in which the inventory, or proof of loss, was prepared. If she failed to make such report, the penalty of such failure cannot be visited upon the plaintiff. The company must be regarded as in the same position as though it had received the report from Mrs. Bendrick, and, as already stated, it became the company’s duty to specify its objections, if it had any, to the report or proof of loss, such as its not being signed or sworn to, etc., as required by the terms of the policy. “The trend of our opinions has been to hold insurance companies to good faith and frankness in not concealing the ground of defence and thus misleading the insured to his disadvantage. They may remain silent exeept when it is their duty to speak, and their failure to do so would operate as an estoppel; but, having specified a ground of defence, very slight evidence has been held sufficient to establish a waiver as to other grounds:” Freedman v. Fire Association, 168 Pa. 249, 255.

The company’s real defence, as it was apparently disclosed on the trial, was incendiarism, after the adjuster had visited and examined the scene of the fire. The statement of loss made by Mrs. Bendrick is upon two detached sheets of paper, written with ink, without a caption or a signature or anything to indicate what it is intended for. But she knew, or should have known, what it was intended for. It contains about sixty items, and, without more, begins with “1 ladies sweater $4.00,” and ends with “1 table, bed-room, $5.00.” The sum total which is made up of the footings on the two different sheets containing three columns of items, and which appears on one of the sheets, is $647.85. The company, therefore, knew, or is presumed to have known, what the paper was intended' for. The statement may not have been accurate. Judged by a subsequent proof of loss attached to the affidavit of defence, it is not accurate. But inaccuracy is not fatal to a proof of loss, if it be made up by the insured to the best of his knowledge, information and belief. See Beatty v. Lycoming County Mutual Ins. Co., 66 Pa. 9, 17. But the plaintiff apparently did not rely upon the information which he had thus given to Mrs. Bendrick as sufficient, and, therefore, made out a formal proof of loss, which he signed and swore to and sent to the company more than sixty days after the fire; and if our impression of Ulysses Elgin Butter Co. v. Hartford Fire Ins. Co., 20 Pa. Superior Ct. 384, and of what is said of the case in Edelson v. Norwich Union Fire Ins. Co., 59 Pa. Superior Ct. 379, 385, be correct, the voluntary submission of proofs of loss by the plaintiff more than sixty days after the fire takes out of this case “the questions of the plaintiff’s being relieved from the duty of furnishing a proof of loss or the waiver on the part of the defendant of the necessity for the furnishing of the same.” By filing a formal proof of loss after sixty days, the plaintiff did not avail himself of any alleged waiver of formal proof: Ulysses Elgin Butter Co. v. Hartford Fire Ins. Co., 20 Pa. Superior Ct. 384, 391. And as that proof of loss was not furnished within sixty days from the date of the fire, the plaintiff was not in a position to begin this suit. Proof of loss, in some form, was a condition precedent to the plaintiff’s right to bring suit. We, therefore, think the non-suit was properly entered.

And now, Jan. 2, 1922, the motion to strike off the non-suit is overruled, and the prothonotary is directed to enter judgment in favor of the defendant upon payment of the jury fee. From M. M. Burke, Shenandoah, Pa.


author: Ryan, P. J.,

text:
    Commonwealth v. Kraus.

      Practice, J. P. and Q. S. — Prosecutions for surety of the peace — Justice’s transcript — Acts of March 18, 1909, and April 27, 1909.

    The proceedings in a prosecution for surety of the peace will be quashed where the justice’s record does not set forth that the evidence shows to the satisfaction of the justice that the prosecutor’s danger of being hurt in body and estate is actual and that the threats were made by the defendant maliciously and with intent to do harm; that the justice afforded an opportunity and suggested to the parties the propriety of compromising their differences before entering into a hearing in the case, as required by the Act of March 18, 1909, P. L. 42; and where the record shows that the recognizance was taken for appearance of the defendant to the next term of the Court of Quarter Sessions of the Peace, instead of forthwith, as required by the Act of April 27, 1909, P. L. 260.
    Motion to quash justice’s return, etc. Q. S. Bucks Co.

      Hiram H. Keller, District Attorney, for Commonwealth.

      Harmon Yerkes, for defendant.
    Jan. 2, 1922.
   Ryan, P. J.,

The transcript of the justice shows that upon July 6, 1921, he issued a warrant for the arrest of the defendant, upon an information which charged that the latter “did make certain threats to kill the affiant, his lawful wife, and that she is afraid that he will carry out his threats;” and that a hearing was held the same day, at which the witnesses for the Commonwealth named were heard as well as the defendant, who desired to be heard, and, “after being warned,” was “given an opportunity to be heard” and was sworn. The transcript further discloses the following action by the justice: “And now, to wit, July 6, 1921, the above charge is found to be sustained and the defendant is held for court. In default of bail, the defendant is committed to the Bucks County Prison. July 8, 1921, defendant released on $500 bail. July 7, 1921, transcript sent up.” The defendant moves to quash upon seven grounds. The second, third and fourth aver that the record shows that the justice did not proceed in accordance with the Act of March 18, 1909, P. L. 42, entitled “An act relating to surety of the peace, and defining procedure in such cases.” Under the provisions of this act, it is the duty of the justice, “before he binds any one over, . . . and in the meantime to keep the peace,” to “enter into a full hearing and investigation of the facts,” and to “only bind over the defendant when the evidence shows to the satisfaction of the justice that the prosecutor’s or prosecutrix’s danger of being hurt in body and estate is actual, and that the threats were made by the defendant maliciously and1 with intent to do harm.” Section 3 of the act further provides as follows: “It shall be the duty of the justice of the peace who has entertained a complaint in a surety of the peace ease to afford an opportunity and to suggest to the parties the propriety of compromising their differences before entering into a hearing.” All these matters prescribed by act are jurisdictional facts that must appear by the justice’s record to sustain his judgment. See Com. v. Keener, 30 Dist. R. 641, 50 Pa. C. C. Reps. 220. The second ground upon which the motion to quash is based avers, inter alia, that the transcript “fails to set forth the words by which the defendant is alleged to have threatened to kill his wife, and that the threats were made by the defendant maliciously and with the intent to do harm;” the third, that it “does not set forth that there was a full hearing and investigation of the facts, and that the prosecutrix’s danger of being hurt is actual and that the threats were made by the defendant maliciously and with intent to do harm, and that the prosecutrix is actually in danger of being hurt in body and estate;” and the fourth, “that the transcript fails to show that the justice of the peace afforded an opportunity and suggested to the parties the propriety of compromising their differences before entering into a hearing in the case.” These objections are well founded. In the absence of these findings and averments of jurisdictional facts, the proceedings must be quashed. Other grounds averring irregularities in the record are the first, that there is no copy of the information returned with the transcript; and the fifth, that the recognizance was taken for the appearence of the defendant to the next term of the Court of Quarter Sessions of the Peace instead of forthwith, as required by the Act of April 27, 1909, P. L. 260. These are also well founded. The sixth and seventh grounds need not be considered, in view of the conclusions above set forth.

And now, to wit, Jan. 2, 1922, the proceedings are quashed.

From Calvin S. Boyer, Doylestown, Pa.


author: A. W. Johnson, P. J.,

text:
    Spring Township Auditors’ Report.

      School law — Directors—Improper contracts — Failure to advertise bids— Surcharge — Minutes.
    1. School directors will be surcharged where they pay a bill for furnaces in excess of 5300, where the contract has not been advertised in the manner provided by the Act of May 18, 1911, P. L. 309, as amended by the Act of June 10, 1919, P. L. 889.
    2. School directors will be surcharged for a bill for coal in excess of ?100, where their minutes fail to show how each member voted on the subject.
    3. Under the Act of May 18, 1911, P. L. 309, a school director cannot receive compensation for services except as provided in the act.

      School law — Auditors—Appeal from audit — Time—Act of May 18, 1911.

    4. The filing of the report of auditors of a school district is not completed until a copy of the report is filed with the Clerk of the Court of Quarter Sessions. An appeal taken on the same day that the report is filed with the Clerk is taken in time.
    Appeal from auditors' report. C. P. Snyder Co., Oct. T., 1920, No. 70.

      J. G. Weiser, for plaintiff; C. P. Ulrich, for defendant.
    Dec. 27, 1921.
   A. W. Johnson, P. J.,

This is an appeal from the report of the auditors of Spring Township School District, Snyder County, for the fiscal year beginning the first Monday of July 1919, and ending the first Monday of July, 1920. The auditors approved the receipts and payments of the school directors, and from their report this appeal has been taken. Testimony was taken covering the items and the matters in controversy, and, after hearing arguments, the court makes the following

I.Finding of facts:

1. The School District of Spring Township is a fourth class district.

2. The School Directors of Spring Township for the fiscal year ending the first Monday of July, 1920, were Jacob A. Wagner, Aaron Moyer, Jerry Koch, Charles H. Wagner. The term of Peter Rigel, school director and appellant, ended December, 1919.

3. The auditors of Spring Township audited the finances of the Spring Township School District on July 5, 1920, and filed one copy of the report with the secretary of the school board on July 19, 1920, posted six copies in the district as required by law, and about the same time filed a copy in the office of the county commissioners instead of with the Clerk of the Quarter Sessions as regulated by law. On Sept. 6, 1920, a copy of the report was filed with the Clerk of the Quarter Sessions as required by law.

4. An appeal from the report of the auditors of Spring Township School District was filed in the Court of Quarter Sessions of Snyder County by P. F. Rigel, a citizen and taxpayer of said district, on Sept. 6, 1920, which was allowed by the Court of Common Pleas of Snyder County on Sept. 18, 1920, and filed of record to No. 70, October Term, 1920.

5. The auditors allowed in their report the sum of $332.97 “for rent and repairs” for school-houses, of which it appears the sum of $299.41 was expended on the Felker school-house and the sum of $33.56 on the other school-houses in the township. In this amount of $332.97 the sum of $13.75 was paid to Aaron Moyer, one of the school directors, for labor at Felker’s school-house, the sum of $10 to Jacob Wagner, one of the school directors, for labor and hauling at Felker’s school-house, the sum of $3 to C. H. Wagner, one of the school directors, for labor and hauling at Felker’s school-house, and the sum of $4 to Jerry Koch, one of the school directors, for shingles at Felker’s school-house.

6. The auditors allowed in their report the sum of $506.64 for “fuel and contingencies,” of which the amount of $465.65 was for fuel purchased. Of this amount the sum of $3.15 for hauling coal to Felker’s school-house was paid to Jacob A. Wagner, one of the school directors.

7. The minutes of the school board do not show how each member voted on the payment of the sum of $465.65 for fuel purchased as required by the School Code.

8. The auditors allowed in their report the sum of $570 for the purchase of three Buffalo furnaces, without submitting the contract to competitive bids.

9. When the orders were issued to members of the school board as follows: Jerry Koch, $4; C. H. Wagner, $3; Aaron Moyer, $13.75; Jacob Wagner, $3.15, Peter Rigel was not present. According to his positive testimony, he was present at the opening of the meeting, but he retired before the said orders were drawn or acted on.

From the foregoing findings of fact we arrive at the following

II. Conclusions of law:

1. The evidence does not clearly show that the repairs to the Felker schoolhouse amounted to over $300, and since we have been unable to find as a fact that the cost of the repairs to this school building exceeded $300, the school directors should not be surcharged by failing to award the work to the lowest and best bidder after due public notice.

2. The following payments to the school directors for labor and material for school buildings should not have been allowed: $13.75 to Aaron Moyer, $10 to Jacob A. Wagner, $3 to A. H. Wagner, $4 to Jerry Koch, a total of $30.75, for which the directors must be surcharged.

3. The amount of $465.65 for fuel purchased should not have been allowed, for the reason that the minutes of the school board do not show how each member voted. The school directors must, therefore, be surcharged in this amount.

4. The sum of $3.15 paid to Jacob A. Wagner for hauling coal should not have been allowed, he being a school director. The school directors must be surcharged for this amount.

5. The sum of $570 for three Buffalo furnaces should not have been allowed, for the reason that the contract for the purchase is in excess of $300. The statutory requirement for competitive bids before awarding such contract having been disregarded, the directors must be surcharged for the sum of $570 paid for the furnaces.

We have answered the requests of appellant and the requests of the school directors for findings of fact and conclusions of law, which are filed herewith and made a part of our opinion in this case.

III. Discussion.

We have tried to find a lawful escape from surcharging these school directors. We find no dishonesty on the part of any of them, but the plain letter of the law has been violated and we are unable to dose our eyes to this fact. The courts do not make the law, but declare what the law is, and the law which controls this case is too plain to be mistaken.

The law prohibits school directors from furnishing labor and materials. Section 266 of the School Code of May 18, 1911, P. L. 309, 323, provides as follows: “No school director shall, during the term for which he was elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay for services rendered to the district except as provided in this act.”

As to the item of $465.64 for fuel, section 403 of the School Code of May 18, 1911, P. L. 309, 330, provides that the minutes of the school board must show how each member voted before the board can take action on a number of subjects, among them the purchase of fuel or any supplies, where the amount involved exceeds $100.

As to the item of $570 paid for the three Buffalo furnaces, section 617 of the School Code of May 18, 1911, P. L. 309, 350, as amended by the Act of July 10, 1919, P. L. 889, applies. This section provides that “Every contract in excess of three hundred dollars ($300) made by any school district in this Commonwealth for the introduction of heating, ventilating or repair of any school building, or work upon any school property, shall be awarded to the lowest and best bidder, after due public notice has been given, upon proper terms asking for competitive bids.”

The facts as found and the law as quoted have not been seriously disputed by counsel for the school directors. The directors contend that the appeal was not taken in time, that the appeal should have been taken within thirty days after the appellant learned of the action of the auditors and after the filing of the auditors’ report with the secretary of the school board and with the county commissioners and the posting of copies in the township. But the filing of the report of the auditors was not completed until a copy of the report was filed with the Clerk of the Quarter Sessions of Snyder County on Sept. 6, 1920. The appeal was taken Sept. 6, 1920, being on the same day the filing of the report was completed according to law. The appeal was, therefore, taken in time: Section 2625 of the School Code, Act of 1911, P. L. 309; section 2626 of the School Code, Act of 1911, P. L. 309.

IV. Decree.

And now, Dec. 27, 1921, Jacob A. Wagner, C. H. Wagner, Aaron Moyer and Jerry Koch are jointly and severally surcharged as School Directors of Spring Township for the fiscal year ending the first Monday of July, 1920, in the sum of $1069.55, and judgment is directed to be entered for the said school district and against said directors in the amount of $1069.55, with costs. Upon the payments of the amount of this surcharge with costs, the school directors shall be subrogated to the rights of the school district in the three Buffalo furnaces, so that the said directors may remove said furnaces from the school-houses, and thenceforth the title to said furnaces so removed shall be in said directors so charged.