text:
    Keystone Service, Inc., v. Smith, trading as C. T. Garage.

      Henry Arronson and Simon Pearl, for plaintiff.

      Ward C. Henry, for defendant.
    Dec. 24, 1930.
   Lewis, J.,

This is an action for the recovery by the plaintiff of its Hupmobile automobile, which the sheriff found in the possession of the defendant, a garage keeper. The declaration is in the usual form, averring, in substance, the ownership by the plaintiff of the automobile in question and the detention thereof by the defendant. The amended affidavit of defense pleads a seizure of the automobile by “some of the members of the police force” of the City of Philadelphia, acting under the alleged authority of a city ordinance “duly passed by the council of said city and approved by the mayor of said city on Sept. 15, 1929 ;” that the automobile was delivered by the police department to the’ defendant and that “the removal of said motor vehicle, as aforesaid, was legal and proper, as said motor vehicle wag parked on one of the streets of the City of Philadelphia, to wit, 4th Street, in violation of the laws of the Commonwealth of Pennsylvania and the ordinances of the City of Philadelphia.” Defendant further avers that he detained the motor vehicle by reason of the failure of the plaintiff to present to him an order for delivery thereof, signed by the police authorities, and for the further reason that “plaintiff refused to pay the fair and reasonable charge for the storage of the said automobile, for which defendant had a lien against said motor vehicle under the law.”

It is to be noted preliminarily that the form of the pleading of the defendant is in violation of our Rule 15 (c), which rule is as follows:

“In all actions of replevin in which the defendant does not claim ownership of the property replevied but claims a lien upon the property or a right therein under distraint for rent, the defendant shall assert such claim in his affidavit of defense, in like manner and form as is required for counterclaims in actions of assumpsit under the Practice Act; and thereafter the same practice and procedure shall be had as in such actions, and judgment may be entered against the plaintiff for want of a reply or for an insufficient reply, as the case may require.”

This rule is identical in its language with Rule 68 of the Courts of Common Pleas Rules, which latter rule was sustained and discussed in Jackson v. Blair, Inc., 9 D. & C. 17.

The affidavit of defense denies in general terms the ownership of the vehicle by the plaintiff and demands formal proof thereof. Such a general denial is, of course, insufficient: Buehler v. U. S. Fashion Plate Co., 269 Pa. 428.

The plea in the affidavit of defense that plaintiff violated “the laws of the Commonwealth of Pennsylvania and the ordinances of the City of Philadelphia” is likewise defective. The terms of a city ordinance must be averred like any other matter of fact and they must be fully set forth, so that the court may decide upon its effect and application in any proceeding. In pleading the provisions of an ordinance, it has been held necessary that they be set up in hmc verba: Wilburn v. Derry Borough, 36 Pa. C. C. Reps. 92.

“In pleading the provisions of an ordinance, it is of course sufficient to set them out in hmc verba, and in a few decisions this has been held necessary [Wilburn v. Derry Borough, 36 Pa. C. C. Reps. 92]. ... In the absence of some statute providing otherwise, the provisions of the ordinance relied on must he set out either in totidem verbis or in substance. ... A mere reference to the number of the ordinance or a reference to the number of the ordinance and the assertion of its adoption on a certain date is insufficient:” 43 Corpus Juris, 578.

The defendant has not sought to have the police authorities or the Department of Public Safety joined as parties defendant. The question must, therefore, be disposed of as one arising simply between the plaintiff, the owner <of the automobile, and the garage keeper, and that question, as raised by this rule for judgment for want of a sufficient amended affidavit of defense, may be summarized as follows: Does a garage keeper, who, upon the order of a city policeman, receives and keeps an automobile in storage, have any claim against the owner or a lien upon the automobile for his storage charges? We do not think it necessary to discuss the effect of the ordinance of the City of Philadelphia, commonly known as the “towing ordinance,” passed by the city council and approved by the mayor on Nov. 15, 1929. It has not been properly pleaded or set forth by the defendant and, therefore, cannot be considered by the court. Assuming that the ordinance had been properly pleaded, there is nothing contained in the amended affidavit of defense from which a conclusion may be drawn that the acts prohibited in the ordinance were committed by the defendant. The sufficiency of an affidavit of defense in an action of replevin must be determined by the same rules that control in other cases where like affidavits are required. It should state frankly and fairly the facts that support the defense, not mere legal conclusions or inferences drawn from the instrument. Neither are facts set forth from which the conclusion can be drawn that the automobile in question is in custodia legis. The defendant in this case is asserting a lien in his own right. No attempt is made, even if this were legally possible, to assert a lien or a claim for and on behalf of the police authorities of the City of Philadelphia.

Is the defendant justified in asserting an alleged lien on the plaintiff’s automobile for storage charges? Our attention has not been directed to any express statute creating such a lien; no contract or agreement between the parties giving such a lien is asserted, and no reference to any legislation giving the defendant a right to assert a lien for storing or safely keeping an automobile when the same was not placed in his custody by and with the consent of the owner thereof has been pointed out to us. An examination of the authorities in the case, so far as we have been able to ascertain, reveals that the weight of opinion is that in the absence of an express statute creating such a lien or in the absence of a contract or agreement between the owner or his authorized agent and the garage keeper, the latter may not assert a lien for storing or safely keeping an automobile: Nicolette Lumber Co. v. Coal Co., 213 Pa. 379; Travelers Hotel Co. v. Yorke, 11 D. & C. 370; Saxton v. Gemehl, 72 Pa. Superior Ct. 177; Mitchell v. Standard Repair Co., 275 Pa. 328; Pollard v. Borneman, 47 S. D. 622; Lewis v. Best-By-Test Garage, 200 Iowa, 1051.

In Pollard v. Borneman, supra, a federal prohibition officer took an automobile from the owner and stored it in a garage for safe-keeping. The owner of the car demanded the same from the garage owner, who refused to deliver it without a claim check issued to the officer and in addition upon payment of the costs for storing. The owner of the car refused to comply with the demand and brought an action in replevin to recover his automobile. The court held that the garage owner acquired no valid claim against the car as against the owner thereof, and that he had no right to hold the car although the owner could not and did not present the claim check issued by the garage owner.

In our state a lien upon any goods for storage charges extends only to cases of those engaged in the business of public warehousemen. In the absence of an express contract providing for a lien for storage of automobiles, an owner of a garage does not have a right to such a lien: Mitchell v. Standard Repair Co., supra; Saxton v. Gemehl, supra. Owners of garages cannot ordinarily claim under the statute relating to warehousemen: Berry on Automobiles, § 1455.

An almost identically similar situation arose in the case of Burns Motor Co. v. Briggs, 27 Ohio App. 80. In that case a police officer in charge of traffic called the defendant garage company to take a car parked in violation of a legal ordinance off the street. The car was brought into the defendant’s garage and upon demand for its redelivery to the owner the defendant refused to surrender it unless the plaintiff paid the storage and towage charges fixed by the defendant. The court found for the plaintiff, holding that there was no statutory authorization for the assertion of a storage lien upon automobiles, and that under the circumstances the plaintiff was not bound to pay the storage and towage charges. In its opinion, the court uses the following language:

“The car was not placed in storage by the plaintiff nor by any one authorized to act for him. The police officers were not his agents and they were not acting in accordance with the terms of any state law or city ordinance and did not have authority to place or order the car to be placed in the garage of the defendant so as to bind him for the storage and towing charges. There being no contract, express or implied, existing between the plaintiff and the defendant by which the plaintiff placed the car in storage and agreed to pay the defendant therefor, the defendant in law does not have a claim against the plaintiff nor a lien upon the automobile. See Whitlock Machine Co. v. Holway, 92 Me. 414, 42 Atl. Repr. 799; Lewis v. Gray, 109 Me. 128, 83 Atl. Repr. 1; Preston v. Neale, 78 Mass. (12 Gray) 222; Coverlee v. Warner, 19 Ohio, 29, 34; Swan’s Treatise (26th ed.), page 593; 17 Ruling Case Law, ¿ 11, page 603. If it be claimed that the car was lost property, and that the finder is entitled to be indemnified by the owner for his necessary and reasonable expense, as distinguished from a lien, of course the defendant would not be entitled to recover its claim from the plaintiff, as the car was placed in storage by the finder, and such claim, if any exists, would be based upon an implied contract against the finder, and not against the true owner, to pay for the storage.”

In our case the amended affidavit of defense avers no facts disclosing a right to the possession of the automobile superior to that of the plaintiff. Under the facts pleaded, plaintiff was under no obligation to pay the storage charges of the defendant or to deliver any order for the car to the defendant as a condition precedent to the return of his own property. He did not place his car in defendant’s garage, nor did he assume any liability for its storage.

In Riekenberg v. Capitol Garage, 249 Pac. Repr. 121, a police officer arrested a person for driving an automobile while intoxicated, in violation of a city ordinance, and delivered his car to a garage man for storage. In an action brought by the owner of the automobile to recover possession thereof, it was held that the garage man did not have any lien for the storage charges.

In holding that neither the courts nor the municipal authorities can create liens in favor of third persons for storing property seized by the police authorities without express authority from the legislature so to do, we do not want to be understood as deciding that the Department of Public Safety or the Bureau of Police may not collect from the owner the reasonable cost of keeping an automobile for the time is is necessary for it to retain the same, assuming a violation of the so-called towing ordinance; nor do we intend here to rule upon the validity of that ordinance or the enforceability of the penalties provided therein. We merely determine from the pleadings that defendant has disclosed no legal right to withhold the automobile from the plaintiff. His remedy, if any, is against the Department of Public Safety or the Bureau of Police to recover his storage charges.

And now, Dec. 24, 1930, the rule entered on the defendant to show cause why judgment in replevin, for one Hupmobile sedan, model 1928, serial A-78937, motor 79630, should not be entered in favor of the plaintiff for want of a sufficient amended and substituted affidavit of defense is made absolute, without prejudice to the plaintiff’s right to proceed for the balance of his claim.


source: Caselaw Access Project

author: Gest, J.,

license: Public Domain

text:
    Greiner’s Estate.

      Charles G. Gartling, for exceptant.

      H. Lawton Bussell and George S. Bussell, contra.
    Jan. 30, 1931.
   Gest, J.,

We entirely agree with the adjudication in which the Auditing Judge dismissed the claim of Jean M. Ogilvie to the savings fund deposit in dispute, but, as the supplemental exceptions filed by her raised the question of jurisdiction which was not considered by the Auditing Judge, we deem it advisable to write an opinion which otherwise might not be necessary.

The case must be considered in the light of the facts as they existed when the decedent died. There was then on deposit with the savings fund $2360.86, which the testimony clearly showed was derived from the rents belonging to the decedent and collected for her by her agent. As the decedent was nearly ninety years of age and physically unable to visit the savings fund office, an employee of the real estate agent, after some indefinite conference with the decedent, went with Jean M. Ogilvie, her daughter, to the savings fund, where the money was deposited in the name of Jean M. Ogilvie in trust for Elizabeth Greiner. The form of the deposit seems to have originated with the agent’s employee. The deposit book remained in the custody of Gayley, the real estate agent, until the death of the decedent, when it was withdrawn by Jean M. Ogilvie and Gayley, who was the executor of the decedent, and transferred to a new account in the name of Samuel M: Gayley under the will of Elizabeth Greiner, deceased, in trust for Jean M. Ogilvie. The form of this deposit, which is open to criticism, obviously cannot affect the rights of the parties to the deposit. In his account the executor entered short the amount of the deposit, with a note that it was claimed by Jean M. Ogilvie as a gift from the decedent.

Testimony was produced by the claimant to show that the money should be awarded to her, but the strongest testimony was the declaration of the decedent that she “had money in the saving fund and if anything happens to me it is Jennie’s,” and this, if it amounts to anything, was nothing more than a testamentary gift by parol. Nor was there any substantial testimony to show a gift inter vivos. There was no transfer or delivery of the account to Mrs. Ogilvie, nor was the deposit book given to her. There was no title whatever vested in the claimant by any act of the decedent.

As we view the case, there was no substantial dispute which would require or justify the granting of an issue to the court of common pleas. The deposit in the savings fund was clearly on its face the property of the decedent under the decisions: Woodward’s Estate, 14 D. & C. 363; Gaffney’s Estate, 146 Pa. 49; Merigan v. McGonigle, 205 Pa. 321; and, there being no evidence to show that it was the property of the claimant, the executor was entitled to it and chargeable with it.

It is, therefore, apparent that the court had undoubted jurisdiction of the subject-matter of the contest. The cases cited by the learned counsel for the exceptant have no application as in Cutler’s Estate, 225 Pa. 167, where the securities which were the subject of the dispute were not in the possession of the decedent when he died and were claimed under an alleged gift inter vivos, or, as in Blaszcak’s Estate, 90 Pa. Superior Ct. 589, where the decedent in her lifetime, and over a year before her death, authorized the withdrawal of her savings bank deposits by the appellant, who actually received the money and claimed to hold it as a gift. These and other cases were recently reviewed by us in Byer’s Estate, 10 D. & C. 721, so that the exceptions do not merit further discussion.

The exceptions are dismissed and the adjudication confirmed.


author: Alessandroni, J.,

text:
    Brith Achim Building and Loan Association v. Polikoff et al.

      L. Halprin and A. A. Levinthal, for garnishee; William W. Cohan, contra.
    Dec. 15, 1930.
   Alessandroni, J.,

The motion to quash is based upon section 11 of the Act of May 20, 1921, P. L. 916, which provides: “No money or other benefit, charity, relief or aid to be paid, provided or rendered by any such society shall be liable to attachment, garnishment or other process. . . .” The answer to the petition for the rule to quash merely alleges that section 11 of the above act is unconstitutional as it violates article ill, section 7, of the Constitution of Pennsylvania.

Article III, section 7, provides that “the general assembly shall not pass any local or special law . . . granting to any corporation, association or individual any special or exclusive privilege or immunity. . . .”

It is apparent that this is the only possible provision of article III, section 7, which can apply. It is also obvious that this restricts the legislature from granting to a corporation, association or individual any special or exclusive privilege or immunity. No attempt to do this forbidden act was made by the legislature. Section 11 applies alike to all fraternal benefit organizations and is not an arbitrary or unreasonable classification. No authority has been cited by the plaintiff to support the contention raised, and we, therefore, are of the opinion that the rule to quash the attachment should be made absolute.

And now, to wit, Dec. 15, 1930, the rule to quash the attachment is made absolute.


author: Chambers, J.,

text:
    Commonwealth ex rel. Merritt v. Meneilly.
    No. 1.

      M. H. Goldstein, for Commonwealth; S. A. Schreiner, for defendant.
    April 15, 1931.
   Chambers, J.,

The defendant presented his petition, setting forth that on Sept. 2, 1930, Tony Cuccarese made an information before Ira H. Edmundson, justice of the peace of Mti Lebanon Township, this county, charging this defendant with the larceny of certain personal property consisting of red and yellow sandstone; that the stone in question had been taken by the defendant from a certain highway in said Mt. Lebanon Township known as Serpentine Drive, and delivered to a brother of the defendant, A. F. Meneilly; that the stone had been so taken and removed at the direction of A. F. Meneilly and without any knowledge on the part of the defendant that the stone so taken were the property of the said Tony Cuccarese; further alleging that the said A. F. Meneilly, on his having learned that the said Tony Cuccarese claimed to be the owner of said stone, went to the said Tony Cuccarese and made settlement with him for the value of said stone, and paid to the said Tony Cuccarese the sum of $100, whereupon the said Tony Cuccarese withdrew the information that he had made on Sept. 2, 1930, before the said Ira H. Edmundson, justice of the peace, as well as an information that he had made before the same justice against the said A. F. Meneilly, wherein the said A. F. Meneilly had been charged with receiving stolen goods, relating to the same transaction, and that the said Tony Cuccarese paid to the said justice of the peace the sum of $15 as costs upon the two informations and retained the balance of the $100, to wit, $85, as payment in full satisfaction for the stone so taken; that notwithstanding the premises on Sept. 23, 1930, Walter C. Merritt, above named relator, made an information against the said Samuel A. Meneilly before George B. Shields, justice of the peace of the Borough of Wilkinsburg, this county, charging the said Samuel A. Meneilly with larceny of the same stone, the property of Tony Cuccarese, in regard to which the defendant had already made settlement; that upon said information a hearing was held, and that, notwithstanding that at said hearing the facts set forth in the petition had been in evidence, the said justice of the peace held the defendant for court and filed a transcript with the clerk of courts at No. 5884 of the District Attorney’s Docket. The petitioner prayed the court on the matters set forth to dismiss the informations and discharge the defendant. Upon the petition so presented, the court directed a rule to issue upon the district attorney. An answer was filed by Walter C. Merritt, relator, and depositions taken. The matter is now before us for disposition.

From the depositions taken, we find the facts to be as follows: The ownership of the stone was in Tony Cuccarese; the value of said stone was less than $100; the said Tony Cuccarese acknowledges having received satisfaction for his injury and damage; after having received said satisfaction, the said Tony Cuccarese withdrew the information which he had made before Ira H. Edmundson, justice of the peace, against this defendant, as well as the said information against A. F. Meneilly, charging him with receiving stolen goods.

The Act of April 11, 1929, P. L. 514, provides in section 9 as follows:

“In all cases where a person shall, on the complaint of another, be bound by recognizance to appear, or shall, for want of security, be committed, or shall be indicted for larceny, where the value of the goods and chattels alleged to have been stolen is less than $100 ... if the party complaining shall appear before the magistrate, who may have taken recognizance or made the commitment, or before the court in whieh the indictment shall be, and acknowledged to have received satisfaction for such injury and damage, it shall be lawful for the magistrate, in his discretion, to discharge the recognizance which may have been taken for the appearance of the defendant, or, in case of committal, to discharge the prisoner, or for the court also, where such proceeding has been returned to the court, in their discretion, to order a nolle prosequi to be entered on the indictment, as the case may require, upon payment of costs.”

The purpose of this act is apparently to enable persons to make settlement of cases where the injury is rather to the individual than to the public, and to relieve the court of quarter sessions from the trial of such cases; that it would be particularly applicable to the facts in this case appears from the testimony taken on the depositions. It appears that these were stones that had been taken out of a building which had been razed. This defendant as well as his brother contend that they thought the stones were abandoned, and that as soon as they learned their mistake proceeded to make restitution. We can conceive of no situation where the act could apply with more justice than in the present case. The facts present a basis for the defendant’s claim. They were used stones taken from an old building and near the highway. If a defendant who has feloniously taken and carried away goods of a value of less than $100 may be permitted to settle his case by making satisfaction and payment to the owner, surely the defendant in this case would be permitted to do so. Tony Cuccarese, the owner of the stone, is satisfied; he has been paid in full. The justice of the peace permitted him to withdraw the informations that he had made. In our opinion, this fully ended and determined the matter. The legislature surely did not contemplate that a defendant under these circumstances could be brought to trial by any intermeddler who had no interest whatever in the transaction to harass the defendant by further criminal proceedings. To so hold would be to defeat the entire purpose of the act.

We are of opinion that the prayer of the petition should be granted.

Order.

And now, April 15, 1931, after due consideration, the rule heretofore granted is made absolute, the information dismissed and the defendant discharged. -From William J. Aiken, Pittsburgh, Pa.


text:
    Commonwealth ex rel. Merritt v. Meneilly.
    No. 2.
    April 15, 1931.
   Chambers, J.,

The defendant, Prank Meneilly, was charged with having committed the offense, of receiving stolen goods before Justice of the Peace George B. Shields, of the Borough of Wilkinsburg, this county, on an information made Sept. 23, 1930, by Walter C. Merritt, the above named relator. Prior thereto, a similar information had been made by the owner of the alleged stolen property against the said defendant, as well as an information charging Samuel Meneilly with larceny of the same property. A settlement was made of the larceny charge under authority of the Act of April 11, 1929, P. L. 514, and the above information withdrawn. That this settlement was entirely valid and legal is held in an opinion filed herewith in the case of Com. ex rel. Merritt v. Meneilly, No. 1 [15 D. & C. 15].

The defendant presents his petition, praying that the information be dismissed and that he be discharged.

The question now presented is whether the charge of receiving stolen goods against this defendant would fail by reason of the settlement of the larceny charge?

Whilst the Act of 1929, supra, does not specifically so state, the gist of the offense falls with the settlement of the larceny charge. It is true that the act of assembly does not specifically authorize a settlement of a charge of receiving stolen goods, but it would be futile to permit a settlement of a charge of larceny and still maintain a charge of receiving stolen goods concerning the same subject. The apparent purpose of the Act of 1929 was to permit settlement of cases where the wrong was rather a private than a public one, and it embraces within its provisions larceny of goods up to the value of $100, thereby relieving the court from prosecutions in such cases. To say that the principal felon could be thus, released and his statutory accomplice held to answer would seem to be absurd.

In our opinion, the evidence is entirely insufficient to warrant a conviction against the defendant and he should not be required to bear the burden of additional costs by further proceedings. Under such circumstances, we are of the opinion that the rule should be made absolute and he be discharged.

Order.

And now, April 15, 1931, after due consideration, the rule is made absolute, the information dismissed, and the defendant discharged.

ETom William J. Aiken, Pittsburgh, Pa.


author: Groff, J., Groff, J.,

text:
    Stetter et ux. v. Reliable Silk Manufacturing Company.

      Henry M. Bruner, George T. Hambright and John E. Malone, for plaintiffs.

      Harris C. Arnold and John A. Coyle, for defendant.
    July 5, 1930.
   Groff, J.,

Pleadings.

The pleadings in this case consist of a bill in equity, filed Nov. 1, 1929; an answer, filed Dec. 20, 1929, denying the allegations in the plaintiffs’ bill and setting up new matter, and a reply to the new matter alleged in defendant’s answer, filed Jan. 30, 1930. The issue raised by the pleadings is — Does the operation of the defendant’s mill constitute such a nuisance as should be restrained during the hours of rest?

Findings of fact.

1. The plaintiffs in the bill own a dwelling house known as No. 1213 Manor Street, in the Borough of Columbia, Lancaster County, Pennsylvania, erected on a lot containing in front on said Manor Street 25 feet, and extending in depth of that width, northward, 190 feet to an alley.

2. The defendant owns and operates a silk mill, located on the northeast corner of Manor and Twelfth Streets, in the said Borough of Columbia, erected on a lot immediately adjoining plaintiffs’ premises on the west, con-taming 127 feet in front on Manor Street, and extending in depth of that width, northward, 190 feet to an alley.

3. The plaintiffs’ dwelling was erected in 1895, was conveyed to the plaintiffs on July 28,1920, and has been used as a dwelling since its erection.

4. On the defendant’s lot there was erected, in 1892, a four-story brick building, 50 by 100 feet, on the northeast corner of Manor and Twelfth Streets, which has been used for manufacturing purposes since its erection, and since 1918, or before that, for the manufacture of silk.

5. The west side of the said four-story building was 84 feet from the east side of plaintiffs’ dwelling prior to 1924,

6. In 1924 the defendant erected a building 76 by 170 feet, 18 feet high, the east side of which is built on the line between the plaintiffs’ and defendant’s properties and is eight feet away from the main dwelling of the plaintiffs and slightly more from the attachment thereto in the rear, and extends entirely to the rear of plaintiffs’ property.

7. The east side of this building contains nine pilasters, or columns, filled in between with eight sections of windows, each about fourteen feet square, constructed of double-thick factory glass. In each of these sections are contained three windows, each about three and one-half feet square. They swing in or out on a horizontal rod, or fastening, placed in the main sections of the window.

8. These windows, when opened, extend over plaintiffs’ land.

9. Prior to the time of the erection of the new addition to defendant’s mill it contained 156 looms.

10. The new and the old building now contain 231 looms, 131 of which are in the new portion, and 100 of which are in the old portion, of the building.

11. These looms weigh about 500 pounds each and are operated by a one-half horsepower electric motor, the total horsepower used to operate the mill when in full operation being approximately 115.

12. Certain tests were made as to vibration, and at the time these tests were made by Harry Baylinson, the witness, and others about 25 horsepower was being used. He is an experienced silk manufacturer and says that the vibration would not be any more than a street car. We, therefore, find as a fact that there is vibration from the operation of the looms.

13. The looms are operated with two shuttles operating across the loom. These shuttles are caught in rawhide or rubber picks.

14. The shuttles are impelled to and fro by a stick which is attached to a strap to deaden the impact.

15. The 231 looms contain 462 shuttles, with 462 of these sticks impelling them to and fro.

16. These shuttles are impelled with such force that if they missed the picks they would go through a window or might kill a man if they hit him.

17. The defendant operates its mill from 7 o’clock on Monday morning continuously until noon on Saturday, that is, night and day.

18. The vibrations from defendant’s mill, when operated in full force, shake the plaintiffs’ house so that the windows, when locked, must be wedged to keep them from rattling. Fruit jars in the cellar work together and jingle, and the glassware works together in the closets and becomes cracked and marred.

19. The constant vibration and noises have impaired the nerves and health of one of the plaintiffs, Edward Stetter.

20. The noises from the silk mill can be heard in the plaintiffs’ house throughout the night, disturbing sleep and rest and affecting the nerves of the entire household.

21. The noises and vibration penetrate the plaintiffs’ house when the outside windows are closed and keep the plaintiffs from sleeping.

22. Plaintiffs were not affected by the noise, vibration or thuds from the operation of the original factory.

23. The noise from the operation of the said mill is so great that it disturbs people on the opposite side of the street when sitting on their porch.

24. The immediate section in which the plaintiffs’ house and defendant’s mill are situated is not strictly a residential section. It has the defendant’s mill and a brush factory, which is not being operated, in the immediate vicinity.

25. The buildings of the Malleable Castings Company, the hot-dog stands and the gas stations on the Lincoln Highway are in West Hempfield Township and not in this immediate vicinity.

26. The noise from the operation of defendant’s mill, so far as it affects plaintiffs, is greatly increased when the plant is operated with its windows on the east side open.

27. Public enterprises have not so far invaded this locality as substantially to interfere with its quiet and cleanliness.

Discussion.

The plaintiffs in this bill seek to restrain the defendant from operating its silk mill in a manner so as to disturb, affect and interfere with the reasonable quiet, enjoyment and comfort of the plaintiffs’ home.

It seems that prior to 1924, that is, from about 1898 or 1899, the defendant and its predecessors in title operated a silk mill on the northeast corner of Twelfth and Manor Streets, in the Borough of Columbia, Lancaster County, Pennsylvania. This mill was a four-story brick building, 50 by 100 feet in dimensions, the east side of which was 76 feet west of plaintiffs’ west line and 84 feet west of the west wall of plaintiffs’ main building.

In 1924 the defendant erected an addition to its mill, being one story high and 76 by 170 feet in dimensions, making the east side of its plant eight feet from the plaintiffs’ west wall. It increased the number of its looms from 156, which was the number in the original building, to 231, and rearranged them so that the old building now contains about 100 looms, and the new building 131 looms. These looms weigh about 500 pounds each and are each operated by a one-half horsepower electric motor. Each loom is worked with two shuttles crossing each other, caught in a pick and propelled to and fro by a stick arranged in some mechanical way. The east side of this building is composed of nine pilasters, filled in between with eight sections of windows, and each of these sections contains three windows, about three and one-half feet square, which were kept open when the necessity for ventilation existed, prior to the time of filing of this bill, and a portion of them, at least, have been open at different times since the filing of this bill.

The plaintiffs never appealed to the court for relief from the time of the construction of the new portion of the mill until the present bill in equity was filed. Just what controversy the parties may have had since the erection of the new portion of the mill does not appear in the evidence. However, some indication of it dripped into the trial or argument of the case, but we will disregard it because it has not been proven.

The first question that arose in our mind was: Are the plaintiffs estopped by lapse of time from obtaining the relief sought?

In the case of Collins v. Wayne Iron Works, 227 Pa. 326, the plaintiff erected her house in 1899 and the defendant’s plant had gone up in 1902 without protest from the plaintiff. The noise* however, had been increased in 1906 and the plaintiff filed her bill in the following December of that year. The court granted the relief prayed for.

Each case depends largely upon its own facts, and we can see no reason why, even if the plaintiffs in this case have been long suffering, they should not now, if these noises have become intolerable, be entitled to the relief sought.

In Austin v. Converse, 219 Pa. 3, 9, Mr. Chief Justice Mitchell said that where the manufacturing plant had been put in its present location in 1902, and the bill was not filed until 1906, this delay would not estop plaintiff.

We have found as a fact that the neighborhood in which plaintiffs’ property is located cannot be said to be strictly residential. On the other hand, it has not been given over to industrial purposes, there being no manufacturing plant in the vicinity except the one in question and a brush factory, some two squares away, which is not being operated.

In Tobin v. Kolb, 88 Pa. Superior Ct. 80, 83, the court, quoting from Mitchell v. Guaranty Corp. et al., 283 Pa. 361, said:

“Where business enterprises, however, have so far invaded a residential locality as to substantially interfere with its quiet and cleanliness, it can no longer be classed as residential; but the test is as to the immediate neighborhood and not remote districts. ... ‘So long as the more remote industrial developments have not destroyed the quiet and cleanliness of plaintiffs’ homes, they are entitled to protection from this immediate encroachment, which does.’ ”

This section of the Borough of Columbia, under the test thus set forth, cannot belaid to be an industrial section, and we feel that the defendant, having increased the size of its factory and brought it to within eight feet of the plaintiffs’ house, and having placed in its new factory 131 looms, has made plaintiffs miserable, uncomfortable and unhappy, and that the operation should be restrained so far as the night-time is concerned.

Judge Walling in Krocker et al. v. Westmoreland Planing Mill Co., 274 Pa. 143, 146, said:

“Noise which constitutes an annoyance to a person of ordinary sensibility to sound, so as to materially interfere with the ordinary comfort of life and to impair the reasonable enjoyment of his habitation to him, is a nuisance.”

In Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540, it is decided:

“The right of a man to use and enjoy his property is as supreme as his neighbor’s, and no artificial use of it by either can be permitted to destroy that of the other.”

In Collins v. Wayne Iron Works, 227 Pa. 326, we find in the syllabus that:

“No one is entitled to absolute quiet in the enjoyment of his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells.”

The objection in this case is not to the carrying on of the business in this particular place. Plaintiffs knew the original factory was there when they purchased their property. Seeing it there when they bought their property, they were subject to such inconveniences as then existed. Their real ground of action, however, is that since they became owners the defendant has increased the capacity of its plant and has operated it day and night in such a way as to create a nuisance. The testimony, in our mind, fully warrants such a conclusion. We have concluded that certain conditions have existed for some time past which justify plaintiffs in asking for relief.

In Scott et ux. v. Houpt, 8 Kulp, 42, it was said:

“That merely discomforting noises which arise in the ordinary prosecution of a lawful trade or calling do not amount to a nuisance which will be enjoin-able. To call for this, they must be of such a character as to inflict actual' physical injury upon the complainant or his family, as by disturbing them during the hours usually given to rest, thereby affecting their health and ordinary comfort, or must otherwise occasion some direct and sensible damage to complainant's property or its beneficial use.”

In Ladies' Decorative Art Club’s Appeal, 22 W. N. C. 75, Thayer, P. J., said in the court below:

“The law upon this subject is well settled and very plain. Where a noisy nuisance is complained of, it is a question of degree and locality. If the noise is only slight and the inconvenience merely fanciful, or such as would only be complained of by people of elegant and dainty modes of living, and inflicts no serious or substantial discomfort, a court of equity will not take cognizance of it. No one has a right to complain that his next-door neighbor plays upon the piano at reasonable hours or of the cries of children in his neighbor’s nursery, nor of any of the ordinary sounds which are commonly heard in dwelling houses. On the other hand, if unusual and disturbing noises are made, and particularly if they are regularly and persistently made, and if they are of a character to affect the comfort of a man’s household or the peace and health of his family and to destroy the comfortable enjoyment of his home, a court of equity will stretch out its strong arm to prevent the continuance of such injurious acts.” '

In Dennis v. Eckhardt, 3 Grant’s Cases, 390, it was held that “Where a lawful business is carried on at unreasonable hours, to the annoyance and discomfort of neighbors and until it becomes a nuisance, equity will interfere by injunction to restrain it.”

It will not do for the defendant here, who has increased the number of looms in its mill from 156 to 231 and who has brought 131 of those looms 76 feet nearer to the plaintiffs’ property than they were in the original mill, and who operates them practically upon the line of plaintiffs’ property, sometimes with open windows, night and day, to set up the rule of balancing equities.

It seems to us that a further discussion of this case would be futile. The facts show that the noises and vibrations have been greatly increased since the defendant built the new part of its factory; that it interferes with the rest of the plaintiffs and their family during the night; that.it has impaired the health of Mr. Stetter, one of the plaintiffs, and that it has affected the nerves of the entire household. The testimony, too, shows that the defendant’s windows, when opened, open over the land of the plaintiffs, and that when they áre open the noises and vibration are greatly increased.

Conclusions of law.

1. That the defendant’s business is a legal business.

2. That being operated in the neighborhood in which it is, during the night, disturbing the peace and comfort of, and materially interfering with and impairing the reasonable enjoyment of, its neighbor’s habitation, causing one of them to become ill, interfering with rest and affecting the nerves of plaintiffs’ household, it becomes a nuisance which should be restrained from being operated during the night between the hours of 6 P. M. and 6 A. M.

Decree nisi.

And now, July 5, 1930, it is ordered and directed that the defendant, its agents and employees, be perpetually enjoined and restrained from operating the addition to its silk mill, and the machinery therein contained, built in 1924, being 76 feet in front and extending in depth of that width northward 170 feet, adjoining plaintiffs’ property on the west, between the hours of 6 P. M. and 6 A. M.

Groff, J.,

Sept. 20, 1930. — The defendant in the above case filed exceptions to the findings and decree of the court in the above matter. The said exceptions were heard by the court in banc on Sept. 15, 1930, and, after due consideration, the exceptions are overruled and the decree is confirmed and made final. From George Ross Eshleman, Lancaster, Pa.


author: Shanaman, J.,

text:
    Bethel and Mt. Aetna Telep. & Teleg. Co. v. Eckert et al.

      Stevens & Lee, for petition; Silas R. Rothermel, contra.

    June 9, 1930.
   Shanaman, J.,

Plaintiff sued defendants in assumpsit before a justice of the peace and obtained a judgment on Nov. 12, 1928. The Act of March 20, 1810, § 4, 5 Sm. Laws, 163, provides for an appeal to the common pleas within twenty days after judgment, bail to be entered within that time, and the transcript to be filed with the prothonotary on or before the first' day of the next term after bail entered. If bail is entered on the twentieth day, the appellant may file the transcript on or before the return day next after the expiration of the twenty days: Long v. McCormick, 1 W. N. C. 134. The transcript indicates an appeal taken and bail entered on Dec. 4, 1928, the - word “November” appearing inadvertently for “December.” This was too late. Dec. 2nd was the twentieth, and, therefore, the last day on which the appeal could be taken. Had defendants done so, they could have filed the transcript on or before the next return day thereafter, i. e., on the second Monday in December. However, the transcript was not filed by them till Dec. 26th. In this second delay they were for a second time fatally tardy.

Neglect to appeal within the statutory period does not warrant the court in overruling the statute by allowing an appeal nunc pro tunc: Rudy v. Troup, 67 Pa. Superior Ct. 160. An appeal nunc pro tunc may be permitted so as to prevent injustice, when the delay appears to have been caused by the act or misadvice of the justice: Patton, Common Pleas Practice (1927), page 28. Accordingly, on Dec. 24th, defendants moved for leave to file an appeal mine pro tunc, and alleged, inter alia, that the justice had misadvised them,to the effect that they had twenty-one days within which to appeal. It may be noted that even if this were true, there is no allegation that they appeared and offered bail on the twenty-first day. Their petition was granted, to which plaintiff has filed a motion to strike off the appeal. The justice has filed an answer to the defendants’ petition, in which the justice clearly and precisely answers and denies the vague allegations of defendants’ petition. No depositions have been taken, and on the record we have no hesitation in concluding that the delay in appealing was not due to any act of the justice, and that the defendants have shown no just cause to permit their appeal nunc pro tunc.

And now, to wit, June 9, 1930, the permission granted defendants to appeal nunc pro tunc, by the order of Dec. 24, 1928, is revoked, the appeal entered is stricken off and the stay of proceedings is removed.

From Charles K. Derr, Reading, Pa.


author: Schnader, Att’y Gen.,

text:
    Commission for Revision of Township Law.
    Dec. 10, 1930.
   Schnader, Att’y Gen.,

I have your letter of Nov. 28th, inquiring whether the Auditor General and State Treasurer may lawfully approve requisitions drawn against the appropriation made by the Act of April 26, 1929, P. L. 842, for expenses incurred by the commission subsequent to Feb. 1, 1931. You particularly desire to know whether it would be lawful to pay the expenses of the commission, its secretary and clerk, in attending the convention of second class township supervisors to be held in February, 1931, and in attending sessions of the legislature for the purpose of explaining and advocating the passage of the bill or bills presented by the commission in its report to the legislature.

■In our opinion, the Commonwealth’s fiscal officers could not lawfully pay expenses incurred in either of these ways. It is the duty of the commission to make its report to the legislature not later than Feb. 1, 1931, and the submission of that report concludes the work of the commission as specified in the Act of April 26, 1929.

The commission’s only duty is to prepare legislation. It is under no duty to appear either before the legislature or before a convention of township supervisors in an effort to explain, justify or advocate the passage of the legislation proposed. If the legislature desires to impose these additional duties upon the commission, it will be in session and can supplement the Act of 1929 accordingly; but until the legislature does so, the commission cannot assume to extend its sphere of activity beyond that outlined in the Act of 1929.

From C. P. Addams, Harrisburg, Fa.


author: Heiligman, J.,

text:
    Commonwealth v. Cohen.

      John H. Maurer, Assistant District Attorney, and John Monaghan, District Attorney, for Commonwealth.

      Henry W. Braude and Aaron W. White, for defendant.
    March 27, 1931.
   Heiligman, J.,

This is an appeal from a judgment of Magistrate V. E. Fahnestock, in a summary proceeding, adjudging the defendant, Morton M. Cohen, guilty of giving false or insufficient weight, under the Act of May 11, 1911, P. L. 275, as amended, in three instances, and fining him the sum of $25 and costs in each case.

The practice upon such appeal is set forth in Com. v. Benson, 94 Pa. Superior Ct. 10. There it is stated: “If an appeal is asked for, this is directed to the Court of Quarter Sessions, and, if allowed, the case is heard de novo before a judge of that court. In such ease, the Court of Quarter Sessions does not sustain or reverse the judgment of the inferior magistrate — it does not review such judgment or the matters alleged as ground for appeal — it finds the defendant either guilty or not guilty — it either convicts or acquits him. . . . The judgment on writs of certiorari from a summary conviction before an alderman or justice of the peace is to (1) sustain or (2) set aside the judgment; on appeals from such conviction the judgment is (1) guilty or (2) not guilty; (1) conviction or (2) acquittal. It has been our practice, if the judgment of the Court of Quarter Sessions is not in substantial accordance with this well settled practice, to send the record back that a proper judgment in accordance with said practice may be entered: Com. v. Congdon, 74 Pa. Superior Ct. 285. We do not hold that any set form of judgment must be used: Com. v. Gipner, 118 Pa. 379; but the record must show a hearing by the court to which the appeal is taken and a definitive judgment by that court upon the facts and the law applicable to those facts, and not a mere review of the proceedings before the magistrate.”

Section 20 of the Act of May 10, 1927, P. L. 866, relating to appeals from summary convictions of magistrates, does not change in substance the Act of April 17, 1876, P. L. 29, as amended by the Acts of April 22, 1905, P. L. 284, and July 11, 1917, § 1, P. L. 771.

Accordingly, the case was heard de novo upon the merits before Heiligman, J., without a jury, in the court of quarter sessions. There were two- hearings, the first being held on Feb. 20, 1931, at which time testimony was heard relating to the sale, delivery and weighing of two units of coal in the home of Cecelia H. Ruoff, No. 3344 North Park Avenue, Philadelphia, on Jan. 7, 1931. The second hearing was held on Feb. 27, 1931, and testimony was heard relating to the sale, delivery and weighing of two units of coal in the home of Anna Beck, No. 3229 Oxford Street, Philadelphia, on Dec. 23, 1930. At this latter hearing it was agreed by counsel that Mrs. Pauline Mahoney would testify concerning the sale, delivery and weighing of two units of coal in her home at No. 546 East Geneva Avenue, Philadelphia, on Jan. 9, 1931.

From the testimony it appears that the defendant operated a coal yard and sold anthracite coal by the unit, each unit purporting to be 2000 pounds in weight. On three dates units of coal were delivered by the defendant and paid for as units weighing 2000 pounds each. In each instance, within two hours after the delivery of the coal, the coal was weighed by an impartial third party, who has been in the business of weighing commodities for a number of years. This person weighed the coal in each ease in small lots of less than 200 pounds each upon a standard steelyard beam scale. The result of the weighing was as follows: Cecelia H. Ruoff, No. 3344 North Park Avenue, Philadelphia, shortage of 317 pounds in two units; Anna Beck, No. 3229 Oxford Street, Philadelphia, shortage of 406 pounds in two units; Pauline Mahoney, No. 546 East Geneva Avenue, Philadelphia, shortage of 255 pounds in two units, as agreed by counsel.

There is no doubt in the court’s mind that the evidence fully indicated that there was a shortage of coal in every case, but defendant contends that since the provisions of the Act of May 11, 1911, P. L. 275, and its amendments, were not strictly followed he cannot be convicted and fined for the shortages in weight.

The Act of May 11, 1911, and its amendments provide for the appointment of inspectors of weights and measures in each county and in the cities of the second and third classes, which inspectors are to be supplied with United States standard tests of weights and measures. These tests are to be stamped or marked as being correct. The only duties and powers imposed upon the inspectors are to test weighing and measuring devices for the purpose of condemning or approving the same. Section 3 of the act as amended provides that: “Each person who shall, directly or indirectly, or by his servant or agent, or as the servant or agent of another, violate any of the provisions of this act, or give or offer to give any false or insufficient weight or measure, or use any weighing device after it shall have been condemned and before it shall have been adjusted and sealed, or obstruct or attempt to obstruct any inspector in the performance of his duty, shall, upon conviction thereof in a summary proceeding before any alderman, magistrate or justice of the peace of the proper city or county, for the first offense, be sentenced to pay a fine not to exceed twenty-five dollars.”

From the above summary of the Act of May 11,1911, as amended, it is clear that the duties of the inspectors are confined to inspecting weighing and measuring devices of persons engaged in selling commodities to the public. For the purpose of testing such devices the act requires that inspectors be supplied with United States standard tests marked as being correct for the purposes of comparison. There is no provision that these inspectors are to weigh or measure the commodities alleged to be of short weight. The act specifically makes the giving or offering to give false weight or measure illegal, without fixing methods by which such an act shall be detected and proved. In the absence of specific directions in the statute, the Commonwealth is entitled to prove violations of the act by the ordinary methods. In the case at bar, the court has accepted the Commonwealth’s evidence for what it is worth, and finds from it, after a careful scrutiny of the testimony offered by the defendant, that it is sufficient to Justify the conclusion that the defendant has given false weight or measure.

Defendant has also called the attention of the court to the Act of June 1, 1911, P. L. 533. The relevant section of that aet is section 6, which provides that: “It shall be the privilege or right of any purchaser of anthracite coal . . . before accepting the same, to have all of said coal or any load of it weighed, at his expense, at any of the weigh-stations designated under the provisions of section two of this act, provided such weigh-station is located within ten city blocks of the place of loading or of the place of delivery,of said coal. . . .” This section further provides that the driver is to be given an opportunity to notify his employer of the weighing so that the latter may be present. It is also provided that “no purchaser shall avail himself of the privileges of this act, in providing for the weighing of his coal” without first paying 50 cents a ton for the extra cartage. The final proviso is as follows: “That this method of weighing shall not be binding on any purchaser of coal if he shall not deem it convenient, satisfactory or expeditious.”

This last mentioned act is not a law governing the giving of false weights or measures. It provides, however, a preliminary method that a buyer may follow, if he so desires, preparatory to invoking the laws against the giving of short weight. The act specifically'says that it is a privilege of the buyer to have the coal weighed at a public weigh-station; it.is not mandatory upon the buyer, and the last proviso above quoted stresses this fact. Moreover, it is not to be followed if the public scales are not within ten blocks of the place of delivery. It is not difficult to discern the purpose of the act. The average householder in Philadelphia, to which this act solely applies, has no means of weighing a ton of coal in his home, and this act was in all probability designed to give such a buyer an opportunity to have the suspected coal weighed, and by an impartial third party. If the weighing showed short weight, the buyer was then prepared to invoke the laws against giving short weight. Since the aet does not bind the buyer to use the public scales, it follows that the buyer would be prepared likewise if by some other method he obtained sufficient knowledge of the short weight to establish beyond a reasonable doubt in a court of law that the weight was false.

■ In the case at bar, the buyer obtained sufficient evidence of the short weight without availing herself of the privilege granted to her under the statute in question, and since, under our interpretation of the statute, she was not obliged to comply with the statute, the defendant is still amenable to conviction and fine under the Act of May 11, 1911, and its amendments.

Sentence and order.

And now, to wit, March 27, 1931, pursuant to the opinion in the above case, the court finds Morton M. Cohen, the defendant above named, guilty of giving false and insufficient weight or measure in the sale of coal to Anna Beck on Dee. 23, 1930, within the County of Philadelphia, and the court further finds Morton M. Cohen, the defendant above named, guilty of giving false and insufficient weight or measure in the sale of coal to Cecelia H. Ruoff on Jan. 7, 1931, within the County of Philadelphia, and the court further finds Morton M. Cohen, the defendant above named, guilty of giving false and insufficient weight or measure in the sale of coal to Pauline Mahoney on Jan. 9, 1931, within the County of Philadelphia, all in violation of the Act of May 11, 1911, P. L. 275, and the amendments thereto, namely, Act of April 21, 1921, P. L. 265, and Act of July 11, 1923, P. L. 992, and he is sentenced to pay the costs of the prosecutions and to forfeit and pay a fine of $25 for each violation.

And it is further ordered and decreed that in default of the payment of said fine and costs for each violation aforesaid, the said defendant shall be committed to the Philadelphia County Prison for the term of twenty-five days on each such conviction, said terms of imprisonment to run consecutively and not concurrently.


text:
    Ehrlich v. Cohen et al. Cohen v. Cohen et al.

      Umsted & Wolfe, for plaintiff Ehrlich.

      Jacob A. Kauffman, for plaintiff Cohen.
    No appearance for garnishee.
    Dec. 1, 1930.
   Alessandroni, J.,

On May 8, 1930, George J. Cherry, garnishee, was appointed trustee in bankruptcy of the estate of David Cohen, trading as The Stag Shop, bankrupt. On the same day the plaintiff, Jacob Ehrlich, who held a judgment note with a waiver of exemption, issued an attachment sur judgment against the trustee as garnishee. On May 15, 1930, the plaintiff, Morris Cohen, holding a similar judgment note with waiver of exemption, also issued an attachment against the trustee as garnishee. The trustee did not file his bond until May 14, 1930. The bankrupt’s exemption was set aside in cash, and was so stated in the trustee’s report filed May 14, 1930. On June 4th the plaintiff, Morris Cohen, issued another attachment against the trustee as garnishee.

Both plaintiffs having taken a rule for judgment against the trustee as garnishee for $300, the amount of the exemption, and the position of the trustee being merely that of a stakeholder, counsel for the respective plaintiffs agreed to submit the matter to the decision of this court.

It is contended on behalf of Morris Cohen that George J. Cherry, trustee, was not in existence at the time the attachment was served against him, inasmuch as he had not properly qualified by filing his bond; and that a bankrupt’s exemption is not attachable until his right to the exemption has become absolute.

Neither one of these contentions is tenable. It is insisted that the trustee had no rights in the bankrupt estate until he had filed his bond. It is true that trustees under the Bankruptcy Act must file a bond before entering upon the performance of their official duties. But this rule of the Bankruptcy Act does not mean that all the trustee’s duties and rights accrue on the date that he qualifies by filing his bond. In this case, the appointment was made on May 8, 1930. The attachment on behalf of Jacob Ehrlich issued on that date. On May 14th the trustee qualified by filing his bond. It is firmly established that all of the rights, remedies and powers of a trustee are determined with reference to the conditions existing when the petition is filed. The property of the bankrupt vests in the trustee as of the date of adjudication, and is that which the bankrupt owned at the time the petition was filed. As is stated in Bailey v. Baker Ice Machine Co., 239 U. S. 268: “When not otherwise specially provided, the rights, remedies and powers of the trustee are determined with reference to the conditions existing when the petition is filed. It is then that the bankruptcy proceeding is initiated, that the hands of the bankrupt and of his creditors are stayed and that his estate passes actually or potentially into the control of the bankruptcy court. ... ‘We think that the purpose of the law was to fix the line of cleavage with reference to the condition of the bankrupt estate as of the time at which the petition was filed, and that the property which vests in the trustee at the time of adjudication is that which the bankrupt owned at the time of the filing of the petition.’ Everett v. Judson, 228 U. S. 474, 479, and see Zavelo v. Reeves, 227 U. S. 625, 631.”

As is stated in Black on Bankruptcy, page 440: “The title of the trustee takes effect from the date of adjudication of bankruptcy, and although a considerable time may perhaps elapse from that date to the date when the trustee is appointed and qualified, his title takes effect as of the earlier date by relation back.”

The rights and powers of the trustee vested in him, therefore, as of the date of the adjudication, which, of course, was prior to May 8, 1930. Thus, under the established law, it must be conceded that, on May 8, 1930, the trustee’s right of custody of the bankrupt’s exemption existed and was perfected by the subsequent filing of the bond. “Exempt property never becomes assets in the bankrupt court for administration. The title never passes. Only a qualified right of possession is in the trustee. As to property which is exempt, relating back to the adjudication, the title remains in the bankrupt and it is only to be set apart, and otherwise the trustee can exercise no right and owes no duty. It never comes into the court of bankruptcy:” First National Bank of Sayre v. Bartlett, 35 Pa. Superior Ct. 593.

The final question as to the status of the exemption before it is formally set aside' has been recently passed upon in Home Mutual Loan Ass’n v. Goldstein, 14 D. & C. 168. A similar question was there raised and the court, in an opinion in which we heartily concur, stated that the exemption is subject to the attachment sur judgment while in the hands of the trustee before it is formally set aside, since it never passes from the bankrupt nor becomes part of the assets of the estate, and the trustee has only a qualified right of possession thereto. Counsel for Morris Cohen misconceives the status of the exempt property prior to its being set aside. It is not in custodia legis, but title rests in the bankrupt with only a qualified right of possession in the trustee which is subject to attachment.

And now, to wit, Dec. 1, 1930, the rule for judgment against the garnishee is made absolute in favor of the plaintiff, Jacob Ehrlich, in the sum of $300, less $13.50 garnishee attorney’s fee. Rule for judgment on behalf of Morris Cohen is discharged.


author: Ferguson, P. J.,

text:
    Investment Finance Company v. Gimbel.

      Sloan, White <& Sloan, for claimant.

      Benjamin H. Levintow and Samuel E. Kratzok, for execution creditor.
    December 31, 1930.
   Ferguson, P. J.,

Judgment was obtained by Fannie Gimbel against Raymond M. Davis on February 28, 1929. On that day Raymond M. Davis drove an automobile to the office of the Investment Finance Company and negotiated with them for the re-financing of an encumbrance held by the Hurley Motor Company against the automobile. As a result, the Investment Finance Company ascertained the balance that was due the Hurley Motor Company, and the manager went to the office of the latter company and delivered a check to satisfy the indebtedness of Davis. The Hurley Motor Company, on the same day, marked the debt paid on the certificate of title held by Davis, opposite that part of the certificate which showed the encumbrance. Immediately thereafter Davis executed a bill of sale to the finance company and that company executed a lease back to Davis, calling for the payment of a monthly rental. During these arrangements the automobile stood at the curb outside the office of the finance company, and, upon the completion of the transaction, Davis entered his car and drove away.

The car was seized by the sheriff on an execution issued by Fannie Gimbel; the Investment Finance Company claimed ownership and an interpleader followed. Binding instructions were given for the defendant, Fannie Gimbel, in the interpleader proceedings. We think these instructions were proper. When any person purchases personal property and there is no delivery or change of possession, the title of the vendee will be postponed in favor of a subsequent bona fide purchaser or execution creditor: Clow v. Woods, 5 S. & R. 275; Bank of North America v. Penn Motor Car Co., 235 Pa. 194.

In this case the finance company never had possession of the automobile and all that took place between that company and Davis was a mere paper transaction. It necessarily follows that a creditor of Davis, whose judgment was entered on the same day, is entitled to proceed with her execution against the automobile, and judgment for plaintiff non obstante veredicto must be refused.


author: Sinkler, J.,

text:
    Sharples’s Estate.

      Smith & Strong and Robert W. Skinner, Jr., for exceptions.

      Henry B. Coxe, Jr., Edward W. Madeira and William S. Morris, contra.
    Jan. 23, 1931.
   Sinkler, J.,

The adjudication of the Auditing Judge finds that the rights of the charitable institutions cannot be determined until the death of the survivor of the three life tenants named by the testator. In his supplemental adjudication he recites that, additional appearances having been entered and briefs filed subsequent to his adjudication, confirmation was suspended in order that he might set forth his opinion more fully. There follows a thorough discussion of the question involved, and the Auditing Judge, adhering to the conclusion reached in his original adjudication, declined to pass upon the question which he finds should wait for decision until the death of the survivor of the three life tenants. The subject having been so carefully considered by the Auditing Judge and then reconsidered by him, it does not seem possible to add anything to what he has so well said.

The exceptions are dismissed and the adjudication and supplemental adjudication confirmed absolutely.


author: Cummins, J., Brownson, P. J.,

text:
    Leonard v. Leonard et al.
    No. 1.

      Hughes & McAlister, for plaintiff; Roy 1. Carson, for defendants.

      April 28, 1930.
   Cummins, J.,

Plaintiff in her bill alleges in substance that she is the lawful wife of Eli P. Leonard, one of the defendants; that her said husband willfully and without probable cause deserted her about July 17, 1'922; that her said husband is now a resident of the State of California; that from the time of said desertion he has refused and neglected to support plaintiff; that the husband defendant has a mortgage on property in this county (this county being plaintiff’s residence), which he has for the purposes of collection assigned to W. D. Allison, the other defendant, as agent for him, the said Eli P. Leonard. Plaintiff by her bill seeks a decree directing a seizure of the said property of her husband in order that it may be applied to her support, agreeable to the provisions of the Act of May 23, 1907, P. L. 227, and its amendment.

On Jan. 27, 1930, counsel for defendants entered a general appearance, and on March 5, 1930, filed a petition, under Equity Rule 29, raising the question of the court’s jurisdiction both over their person and property; and in this petition for rule also incorporated preliminary objections to the sufficiency of the cause of action alleged in plaintiff’s bill, as is authorized by Equity-Rule 48; and praying not only that the service- on them be set aside, but also that plaintiff’s bill be dismissed.

Any possible defect" which might have existed in the service upon defendants has been cured not only by the entry for them by their counsel of a general appearance (Sherer v. Bank, 33 Pa. 134; Schober v. Mather, 49 Pa. 21; Brinton v. Hogue, 172 Pa. 366, 368; Bergman v. Straus, 264 Pa. 439, 442), but as well by the filing to plaintiff’s bill what in substance, under the old practice, constituted a general demurrer to plaintiff’s cause of action: Vandersloot v. P. W. & P. Co., 259 Pa. 99, 105.

Defendants’ main contention is that the Act of May 23, 1907, P. L. 227, as amended by the Act of July 21, 1913, P. L. 867, does not authorize the seizure of a husband’s real and personal property in desertion and nonsupport cases, except where the whereabouts of the defendant are unknown, and that, as it affirmatively appears by plaintiff’s bill that the whereabouts of defendant husband are known, he being a resident of the State of California, the court, under the act, has no jurisdiction over the subject-matter involved.

Section 2 of the act, as amended, provides that “Whenever any man has heretofore separated, or hereafter shall separate, himself from his wife, without reasonable cause, or whose whereabouts are unknown, and, being of sufficient ability, has neglected or refused or shall neglect or refuse to provide suitable maintenance for his said wife, proceedings may be had against any property ... of said husband . . . ; and service upon the defendant shall be made in the manner provided in the Act of General Assembly . . . , approved the sixth day of April, 1859.” [P. L. 387.] (The act providing for service upon nonresidents.)

Defendants contend that the word “or” as used in this enactment must be construed as “and,” that a proceeding under this act only lies where a husband has deserted his wife and his whereabouts are unknown. “Or” will be construed as “and” only when it appears from the context of the statute that the legislative intention can only be given effect by so construing it: Steinruck’s Insolvency, 225 Pa. 461, 464; City of Butler v. Telephone Co., 93 Pa. Superior Ct. 533, 540; P. & L. Dig. of D., volume 20, column 35132.

The Act of April 13, 1867, P. L. 78, was passed by our legislature to compel husbands and fathers, by a quasi-criminal proceeding, to discharge their common law duty of supporting their wives and children. This act provided for relief by prosecution, whenever “ any husband . . . has or hereafter shall separate himself from his wife .... without reasonable cause, or shall neglect to maintain his wife . . .” It will be observed that under this Act of April 13, 1867, there arose two classes of cases, one in which the husband separates himself from his wife, deserting her, and the other class where the husband neglects to maintain his wife, although there has been no desertion in a legal sense: Carey v. Carey, 25 Pa. Superior Ct. 223.

The Act of May 23, 1907, which in substance is supplemental to the Act of 1867, provides for additional remedies for the first mentioned class covered by the latter act, while the amendatory Act of July 21, 1913, extended the scope of the Act of 1907 so as to bring within its provisions to a great extent the second group of these eases. This, in our opinion, is the clear purpose and intention of the Act of 1913. Certainly the legislature did not intend to give the remedy provided by this statute in cases where the whereabouts of the husband were unknown, and to withhold it merely because his residence in some foreign state was known, leaving the wife in the latter case without any remedy under the act; and for no logical reason.

The fact that this statute provides that service upon the defendant “shall” be made in the manner provided by the Act of 1859 is not inconsistent with the conclusion here reached, for the word “shall,” when used by the legislature to a court, is usually a grant of authority and means “may,” and even where intended to be mandatory is subject to the necessary limitation that there exists a proper occasion for the exercise of such power: Becker v. L. & M. St. Ry. Co., 188 Pa. 484, 495, 496; Anderson’s Appeal, 215 Pa. 119, 122.

In Duncan v. Duncan (No. 1), 265 Pa. 464, and Duncan v. Duncan (No. 2), 265 Pa. 471, the fact that the court had jurisdiction, where it appeared that the whereabouts of the defendant were not unknown but that he was a resident of the State of California, was not even questioned.

Plaintiff’s bill sets forth a good cause of action: Duncan v. Duncan, supra. The staying of foreclosure proceedings is but incidental to plaintiff’s real cause of action, the procurement of support. Desertion and nonsupport is a continuing offense; it cannot be barred by the statute of limitations: Com. v. Kerbey, 8 Dist. R. 671; Directors of the Poor of Delaware County v. Mercer, 2 Clark, 303. And equity follows the law.

And now, April 28, 1930, defendants’ rule is discharged, defendants’ preliminary objections to plaintiff’s bill are dismissed, and defendants are given ten days within which to answer, under penalty, upon failure so to do, of having the bill taken pro confesso.

Concurring opinion.

Brownson, P. J.,

April 28, 1930. — All that need be decided at the present time is the question whether the court has jurisdiction to entertain the bill filed by the plaintiff. I think such jurisdiction is conferred by section 1 of the Act of May 23, 1907, P. L. 227, as amended by the Act of April 27, 1909, P. L. 182. That section authorizes a wife from whom her husband has separated without reasonable cause, and for whom he, being of sufficient ability, has neglected or refused to provide suitable maintenance, to sue in equity for the purpose of obtaining such maintenance, and gives to the court of common pleas of the county wherein the desertion occurred or the wife is domiciled “power to entertain a bill in equity in such action, and [to] make and enforce such orders and decrees as the equities of the case demand.” See Erdner v. Erdner, 234 Pa. 500, 505, as to the purpose and scope of this section, as contrasted with the scope of section 2.

The second section of the act provides that certain specific measures of relief may be given “whenever such husband shall absent himself from the Commonwealth,” and regulates the manner of service in that event. This second section was amended in 1909 (P. L. 182), and again by the Act of July 21, 1913, P. L. 867. The amendment of 1913 drops out of this section the words “whenever such husband shall absent himself from the Commonwealth” and substitutes in their place, as a statement of the circumstances under which the relief specified in the section may be given, the following words: “Whenever any man has heretofore separated, or hereafter shall separate, himself from his wife, without reasonable cause, or whose whereabouts are unknown, and, being of sufficient ability, has neglected or refused or shall neglect or refuse to provide suitable maintenance for his said wife.” As to the effect of this amendment there has been some conflict of views in the reported cases. In Riebrich v. Riebrich, 23 Dist. R. 1001, Shafer, J., incorporated in his opinion a dictum (which was followed by Evans, J., in Carroll v. Carroll, 30 Dist. R. 1007), to the effect that the word “or” should be read “and,” with the result that the particular relief provided for by section 2 would be available only when the husband is both delinquent and residing in parts unknown. Judge Shafer, however, did not decide the question, but, leaving it open, and recognizing the possibility of another interpretation, refused the kind of relief specified in section 2 upon the ground that the equities of the particular case did “not demand any such measures.” In McIntyre v. McIntyre, 30 Dist. R. 993, Judge Shafer’s dictum was disapproved and another view as to the construction and effect of the amendment was taken; and it must, I think, be admitted by every one that if the legislature did intend to lay down the grotesque rule that the wife shall have a particular measure of. relief against her absent husband if she does not know where he is, but shall not have it if she does know, it would have been acting in an absurd way.

It is to be noted, however, that Judge Shafer, while denying the specific relief provided for in section 2, entertained the bill and granted relief, in the form of a decree for maintenance, under section 1. Upon an appeal from that decree, reported (sub. nom., Riedrich v. Riedrich) in 62 Pa. Superior Ct. 189, the decree was reversed upon the ground that the judge’s finding of the husband’s delinquency had been based upon the record of a previous divorce action which was not offered in evidence; but the appellate court sent the case back with instructions to find the facts upon evidence properly produced, “and thereupon to enter such decree as equity may require,” thus recognizing the jurisdiction to entertain the bill in a case in which the husband was in court upon a personal service. Here, the defendants are in court by a general appearance, and I think the court has jurisdiction to entertain the bill, at least for the purpose of decreeing, under section 1, that support shall be provided for the plaintiff (Erdner v. Erdner, 234 Pa. 500, 505) ; and, therefore, without undertaking to determine at the present stage of the proceeding how much further it may have power to go in the way of granting relief — e. g., whether, according to the proper interpretation of the amended section 2, it may, upon the facts of the present case, impound the husband’s property, or its proceeds, to provide a fund for maintenance during the indefinite future — I concur in the overruling of the preliminary objections to the bill and in requiring the defendants to answer the same. To what measure or measures of relief the plaintiff may be entitled can be passed upon later.

EVom Mrs. Daryle R. Heckman, Somerset, Pa.


author: Cummins, J.,

text:
    Leonard v. Leonard et al.
    No. 2.

      Hughes & McAlister, for plaintiff; Roy I. Carson, for defendants.
    Sept. 29, 1930.
   Cummins, J.,

This case comes on for final hearing, on issue joined, and from the testimony thereat adduced we make the following

Findings of fact.

1. The plaintiff, Bella Leonard, and Eli P. Leonard, one of the defendants, on Jan. 2, 1914, contracted a legal marriage, and this marriage relation still exists between them.

2. On Jan. 2, 1919, plaintiff and her said husband adopted, as their child and heir, one Martha Frances Cropp, who is now of the age of eleven years.

3. Plaintiff, on Sept. 13, 1918, acquired title from one George T. Parsons to a house and lot, situate in the Borough of West Brownsville, this county, at a consideration of $6000, $1000 of which amount she paid from cash on hand and the balance from the proceeds of a loan obtained by her from W. S. Con-well, which loan was secured by her mortgage on the aforesaid premises.

4. The aforesaid mortgage was, on April 4, 1919, sold and assigned by the mortgagee to John E. Leonard, father of plaintiff’s said husband.

5. The said John E. Leonard died during the month of February, 1921.

6. During the life of said John E. Leonard, plaintiff had paid off all of this mortgage indebtedness except $2500.

7. In the settlement of the estate of said John E. Leonard, deceased, the balance due on this mortgage, to wit, $2500, was assigned by the executrix to the defendant, Eli P. Leonard, plaintiff's husband, as a portion of the distributive share due the latter from his father’s estate.

8. At the time of the assignment of this mortgage, plaintiff, her husband, the defendant, Eli P. Leonard, and their adopted daughter were living together in the mortgaged premises, and there continued to so live, until the wife and adopted daughter were later deserted by said Eli P. Leonard.

9. The defendant, Eli P. Leonard, about June 15, 1923, without reasonable cause, separated himself from his wife, the plaintiff, which separation and desertion continues to the present time.

10. The defendant, Eli P. Leonard, in 1924, instituted in Reno, Nevada, a proceeding in divorce, wherein the cause of action averred was not alleged to have arisen in that state. Plaintiff was never a resident of and has never been in Nevada, and no personal service in said proceeding was ever had upon her. A decree in divorce was, on Sept. 26, 1924, made in said proceeding, thereby purporting to divorce the said defendant, Eli P. Leonard, from the plaintiff. The said Eli P. Leonard later married and moved to the State of California.

11. Plaintiff is now and always has been a resident of the Borough of West Brownsville, Pennsylvania, and a citizen of the Commonwealth of Pennsylvania; and since her said desertion by her husband, Eli P. Leonard, has continued to reside with their said adopted daughter in said mortgaged premises.

12. The defendant, Eli P. Leonard, is now a resident and citizen of the State of California.

13. The defendant, Eli P. Leonard, on Jan. 4, 1929, assigned to W. D. Allison, the other named defendant, the aforesaid mortgage and the indebtedness thereby secured.

14. The said W. D. Allison, through said assignment to him, acquired no legal right, title or interest in said mortgage and paid no consideration therefor, but only holds the same as trustee for the defendant, Eli P. Leonard.

it. The defendant, W. D. Allison, as trustee and agent for said Eli P. Leonard, caused to be issued on said mortgage a sci. fa. proceeding for the purpose of making collection of such amounts as are due thereon.

16. The defendant, Eli P. Leonard, has not provided for and refuses to provide for or support his said wife, the plaintiff.

17. The defendant, Eli P. Leonard, has property of a value in excess of $30,000.

18. There is no interest due on the aforesaid mortgage (Stuart v. Stuart, 182 Pa. 543).

Conclusions of law.

1. The court has jurisdiction both over the person of defendants and such of the property of Eli P. Leonard, one of the defendants, as is within. its jurisdictional limits (Duncan v. Duncan, No. 1, 265 Pa. 464).

2. The decree in divorce granted to the defendant, Eli P. Leonard, in the State of Nevada, is, in this state, of no effect and void (Duncan v. Duncan, supra).

3. The defendant, W. D. Allison, present assignee and legal holder of the mortgage in controversy, holds the same as trustee only for Eli P. Leonard, the other defendant.

4. In the absence of an express agreement to the contrary, the presumption of law is that the plaintiff was to pay no interest on the mortgage in question, and there is no evidence of any such express agreement (Stuart v. Stuart, supra),

5. The plaintiff, Bella Leonard, is entitled to a decree awarding her support from her said husband, Eli P. Leonard.

6. Unless exceptions be filed sec. reg. to this adjudication, a decree in the following form shall be entered by the prothonotary:

“And now, to wit, Sept. 29, 1930, this case came on to be heard on final hearing and was argued by counsel, whereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:
“First. That the defendant, Eli P. Leonard, pay to his wife, Bella Leonard, the plaintiff, for her support, the sum of $2000 in cash, the sum of $1000 on Oct. 1, 1931, and a similar payment annually thereafter.
“Second. That the defendant, W. D. Allison, be and he is hereby restrained and enjoined from assigning, transferring or in any manner disposing of the aforesaid mortgage or any part thereof or any moneys due thereunder, except as hereinafter ordered by the court.
“Third. That Lloyd W. Woodward is hereby appointed trustee to make collection of and liquidate the aforesaid mortgage indebtedness, with full authority to do all things necessary in connection therewith; the proceeds derived therefrom, after payment of the costs of this proceeding and the administration of this trust, to be applied on account of the payments ordered by this decree and in the order hereinabove indicated.
“Fourth. That the defendant, W. D. Allison, be and he is hereby required and directed to forthwith assign, set over and transfer the aforesaid mortgage and all moneys now due or which may hereafter become due thereunder to the said Lloyd W. Woodward, trustee aforesaid.
“Fifth. That the defendant, Eli P. Leonard, pay the costs of this proceeding. By the Court.”

Interlocutory order.

And now, to wit, Sept. 29, 1930, it is ordered that the foregoing adjudication be filed of record; that notice thereof be given by the prothonotary to counsel of record; and, if no exceptions be filed thereto sec. reg., that a final decree be entered as above indicated; and that until the filing of a final decree, the said W. D. Allison, one of the defendants above named, is hereby enjoined and restrained from assigning, transferring or in any manner disposing of the aforesaid mortgage or any part thereof or any moneys now due or which may hereafter become due thereunder.

Prom Harry D. Hamilton, Washington, Pa.


author: Boyer, J.,

text:
    Commonwealth v. Berroni.

      William R. Stuckert, for Commonwealth; John L. DuBois, for defendant.

      Sept. 2, 1930
   Boyer, J.,

This was a prosecution in a summary proceeding brought against the defendant for the violation of an ordinance of the Borough of Newtown, prohibiting the driver of any automobile from entering into an intersecting street at which there was a “stop sign” placed by the borough authorities without first stopping the car. The defendant waived a hearing before the justice of the peace and gave bail for court under the provisions of section 1212 of the Vehicle Code of May 1, 1929, P. L. 905.

The borough authorities had placed a stop sign in the bed of the street on the center line of Washington Street near its intersection with State Street. The stop sign was a metal device with an oblique face placed towards the traffic approaching the intersecting street. The device was painted red, with white letters “Stop” four and one-half inches in height. The highest point of the device was seven inches above the ground and contained at the top a red light. Any person knowing that the signal was in the street and whose view was unobstructed might see the signal at a distance of 100 feet.

From the testimony there is no serious question but what the defendant knew that the signal was there and intentionally drove past it into the intersecting street without first stopping. In fact, he probably drove past it in order to make a test of the legality of the signal.

The fact that this defendant had knowledge of the presence of the sign and its meaning and that it was placed there by the borough council under provisions of an ordinance has no bearing on the case. A law, in order to be effective, must be uniform as to all persons. An ordinance cannot be held to be effective as to those who have personal knowledge of its provisions and not effective as to those who may be in ignorance of it. If this sign was not a legal sign under the provisions of the Vehicle Code of 1929, then the defendant was not bound to obey the ordinance, even though he had knowledge of it and had been warned by the officer not to ignore it.

In the opinion of the court, this case is controlled by section 1106 of the Vehicle Code of 1929, P. L. 905, 989. This section provides in part: “Local parking and other local ordinances, rules and regulations shall not be enforceable against an alleged violator, if, at the time and place of the alleged violation, an appropriate sign, giving notice thereof, is not posted conspicuously by the municipalities making the same, at points where any highway affected thereby joins other highways.” It will be noticed that there are three main requirements as to these signs; first, that they must be “appropriate;” second, that they must give “notice thereof;” that is, notice of the ordinance, rule or regulation; and third, that the sign must be “posted conspicuously” at junctions of roads.

The sign in question may be said to have complied with the first provision, in that it was “appropriate” to the desired conduct of motorists, namely, to have all vehicles stop before entering upon the intersecting street. However, it did not comply with the other two requirements, particularly in that it did not give notice of the local ordinance or regulation. There is nothing in the sole word “Stop” to indicate to a stranger that the borough authorities have adopted an ordinance requiring all persons to stop before entering the intersecting street. The word “Stop” is frequently posted at curves and other dangerous places merely as a warning of the danger. It might be possible that the signal in question might have been placed in the street by an automobile club or other local organization or individual with the mere consent of the borough, or it might have been placed there by the police with or without express consent of the borough. In the opinion of the court, the sign placed under this ordinance should have contained some words, such as “by order of Borough Council” or “by ordinance” or something similar. There is also some question in the court’s mind whether the word “stop,” without adding “before entering,” is a sufficient notice, in view of the fact that the word “stop” is so frequently used merely to indicate danger.

Neither did this sign comply with the third requirement, in that it was not “posted conspicuously.” For the purpose of giving notice of an ordinance providing penalties for its violation, a sign set in the bed of the street, with letters only four and one-half inches high, cannot be said to have been “posted conspicuously.” Ordinarily, a motorist on approaching a comer does not-search the ground for signs, but usually looks ahead and to the right for signs, notices, direction boards, pedestrians and vehicles. Usage has designated the usual place for traffic notices on the driver’s right-hand side of the road well above the ground, somewhere near the level of the driver’s eye and line of vision. The sign in question could easily be hidden from the vision of a driver who was in a line of cars, some of the cars ahead being further to the left and close to the sign. In the opinion of the court, this sign, if approved, would in effect be little more than a trap to catch unsuspecting motorists who were strangers in that locality. Of course, such was not the intention of the borough authorities in this case.

Under these findings and this view of the law, the court finds that the sign posted at the intersection of Washington and State Streets, in the Borough of Newtown, which sign the defendant ignored, was not a legal sign as required by the provisions of section 1106 of the Vehicle Code of 1929, and, therefore, the defendant was not guilty of violating the borough ordinance and must be discharged.

Now, Sept. 2, 1929, the defendant is discharged and the costs directed to be paid by the county.

Prom Isaac J. Vanartsdalen, Doylestown, Pa.


author: Leach, J.,

text:
    Commonwealth v. Allen et al.

      Otto P. Robinson, Assistant District Attorney, for Commonwealth.

      Robert G. Coglizer, for defendant.

      Aug. 27, 1930.
   Leach, J.,

The defendants were charged by information of a state highway patrolman with unlawfully operating a Garford truck with an overload, contrary to section 903, article IX, of the Vehicle Code.

The arrest was made in South Abington Township, and the case was taken before Burgess Bunnell, of Clarks Summit Borough. A hearing was had, but no judgment entered on the transcript, although, on appeal, it was stated that the defendants had been fined $50.

The defendants move for dismissal on the ground that the offense in South Abington Township is not within the jurisdiction of the burgess of Clarks Summit Borough.

The Commonwealth contends that section 1201 of the Vehicle Code, which provides that “informations charging violations of any of the provisions of this act . . . shall be brought before the nearest available magistrate,” enlarges the jurisdiction of the burgess.

Under section 1027 of the General Borough Act of 1927, the burgess is without jurisdiction except for offenses committed within the borough.

In Clarion County it has been decided that the jurisdiction of the burgess is enlarged.

In Dauphin County, in the case of Com. v. Good, 33 Dauphin Co. Reps. 74, it was also held that jurisdiction was in the nearest available magistrate, and magistrates were cautioned to ascertain their jurisdiction before proceeding with the case. The practical difficulties with this procedure, perhaps necessitating that the magistrate should measure the distance from the offense to his office and to those of other magistrates, and discover whether or not they had been out to dinner or otherwise engaged when the officers passed by, may have been the reason for this same court coming to a different conclusion in Com. v. Marter, 13 D. & C. 688, in which it held that the act limited the jurisdiction of all other magistrates in the county and was, therefore, unconstitutional.

Following the familiar canons of construction of statutes which provide that the constitutionality of an act is presumed, and considering the old law, the mischief and the remedy, and interpreting the statute to abate the mischief and advance the remedy, we would say that there was no intention on the part of the legislature to enlarge or diminish the jurisdiction of any magistrate, with the possible exception of substituting jurisdiction under this act for the burgess or mayor in lieu of jurisdiction under an ordinance.

The mischief under the old act was that the peace officers could select favored magistrates before whom cases should be brought; also, political committees might inform certain magistrates that, as a result of the favor of the politicians, these magistrates had been selected by the Department of Highways for the trial of their cases.

We, therefore, construe the act to lay a special duty upon the peace officer to bring his case before the nearest available magistrate, and for a violation of this provision he might be subject to prosecution for false imprisonment, or to dismissal by proper authority.

The act does not purport to enlarge or diminish the jurisdiction of magistrates, save in the exception that the mayor or burgess may have jurisdiction of a case arising in his city or borough.

As the burgess of Clarks Summit was without jurisdiction of an offense committed in South Abington Township, the proceedings in this case are dismissed.

From William A. Wilcox, Scranton, Pa.


author: Sinkuer, J.,

text:
    Rainear’s Estate.

      Donoghue, Gibbons & Donoghue, for Charles Warren Rainear and Franklin R. Rainear.

      Thomas Stokes, for Charlotte A. Rainear.
    Jan. 23, 1931.
   Sinkuer, J.,

The testamentary provisions' of this decedent are contained in a will evidently prepared by one learned in the law and a codicil which equally evidently was prepared without the assistance of one experienced in such matters. The adjudication determines two questions which the Auditing Judge found were presented to him: First, whether the cash and securities directed to be passed to the widow by the terms of the codicil are to be retained by her as an absolute bequest or as security for payments directed to be made to her by the will and codicil; and, second, whether the testator’s sons have accepted the bequest of the business under the conditions stipulated by the testator. He finds that the bequest is as security for the payments and that the sons have not accepted the business. The widow excepts to both of these findings and contends that the codicil makes an absolute gift to her of the securities and money specified, and, secondly, that the sons have elected to accept the bequest and should be held to their election.

One of the exceptions filed in behalf of the sons is to the first finding of the Auditing Judge, and it is contended in their behalf that the securities specified in the codicil should be awarded to the executors as part of the principal of the estate, out of which the executors should set aside sufficient funds to assure certain payment for the widow’s benefit. Upon these points we do not feel that anything can be profitably added to what has been set forth in the accurate and careful adjudication filed by the Auditing Judge.

In behalf of the sons, exceptions have been filed which raise two other questions: First, whether the increase made by the codicil in the weekly payments to the widow was dependent upon the acceptance by the testator’s sons of the bequest of the testator’s business; and, secondly, whether the gift also made by the codicil of the testator’s building and loan association stock and maintenance of the same for the widow’s account was dependent upon the same condition.

The argument presented to us in behalf of the sons recites that these questions were raised before the Auditing Judge. The language of the codicil read in connection with the will does not support their contention. The codicil is in effect as though the testator had originally written in section (B) of article third $100 and a like substitution in respect of the building and loan association stocks. These questions are determined in the adjudication of the Auditing Judge, even though the arguments presented to him in behalf of the sons may not have been discussed at length in his adjudication. His findings in this respect are also sustained.

The exceptions are dismissed and the adjudication is confirmed absolutely.


text:
    Gable et ux. v. Golder et al.

      Fred B. Moser and George S. Russell, for plaintiff.

      William, W. Smithers and Harry S. Ambler, Jr., for defendants.

      Wayland H. Elsbree, for additional defendant.
    December 30, 1930.
   Alessandroni, J.,

A trespass action was brought by the plaintiff against Mandes Golder, trading as the Golder Construction Company, and the latter under the Act of April 10, 1929, P. L. 479, issued a writ of scire facias to join W. M. Anderson as additional defendant. The pi’secipe for the writ of scire facias recites in part that “W. M. Anderson is liable over to said defendant, is jointly or severally liable with said defendant for the cause of action declared on in said suit for the whole of any amount which may be recovered therein against said defendant ...” The affidavit of defense raises but one question of law, namely, that on the facts alleged in the said prascipe W. M. Anderson could not properly be joined as additional defendant.

It is now firmly established that the act in question permits an additional defendant to be brought into the case only where he is liable over to the original defendant or is jointly or severally liable with him on the cause of action. The facts stated by the original defendant do not comply with this requirement. The praecipe recites clearly that the injury “was caused by no act of the defendant sued, but was solely the result of the negligent act of the said W. M. Anderson, his servants and agents, in negligently permitting and allowing said sidewalk to be and remain in an unsafe and dangerous condition.” These facts allege that the sole liability for the injury was the negligence of the added defendant. We, therefore, conclude that under the act in question and our decisions, the question of law raised by the additional defendant should be decided in his favor: Vinnacombe v. Philadelphia, 297 Pa. 564; Gilkey v. Montag, 13 D. & C. 717.

And now, to wit, December SO, 1930, the questions of law raised in the affidavit of defense to the scire facias are sustained, and judgment is entered in favor of W. M. Anderson.