text:
    Matthew Faloon et al. v. Hannah Simshauser et al.

      Filed at Springfield

      October 31, 1889.

    1. Limitations—adverse possession—so as to avail under the statute. A possession of land, in order to be adverse, need not be under any muniment of title. Adverse possession is a possession inconsistent with the right of the true owner, and depends upon the intention with which it is taken and held; and an actual occupancy of land by one, accompanied by acts of ownership inconsistent with the fact of ownership in another, is presumptively adverse possession.
    2. It is not essential to an adverse possession that there should be proof of oral declarations of claim of title made by the party in possession of land, but it is sufficient if it appear that he so acted as to clearly indicate that he did claim title.
    3. Same—adverse possession—continuity in several—parol evidence. A deed is not necessary to transfer the possession of land held adversely to the owner, and where land is held adversely by different occupants, and one succeeds to the possession of another, the identity and continuity of their possession, in order to make the period required to bar the owner, may be shown by parol evidence.
    4. Same—bar of the statute—“a sword as well as a shield." While the Statute of Limitations does not have the effect to transfer the title of the true owner, it does transfer his right to the possession to the party in adverse possession for the required period. When the bar has been completed, the owner can neither usé his title for the puiqiose of a recovery nor as a defense, until he shall have destroyed the bar by purchase, limitation or otherwise.
    5. Where both the right of entry and the right of action are lost by operation of the statute, the party in adverse possession is conclusively presumed to be the owner, and to be vested with the title, and such title cart not be cut off and destroyed by the act of the holder of the former title in regaining possession by the commission of a tort, and, while so in tortious possession, conveying to a third party who has no-notice of the adverse title, the holder of which has been wrongfully and temporarily dispossessed.
    6. Where land has been held under a claim to the fee for the time-prescribed by the Statute of Limitations, and an entry is made by a party who has the written title, such party may be dispossessed by an ejectment suit brought by him who has so held and claimed.

      7. Conveyances—description of grantees. While it is necessary that all the grantees should be sufficiently described in a deed, yet that rule does not require such parties should be designated by the usual method of giving their names in full, and any other description will suffice yhich will distinguish them from all others, as, where one is described by his office, or by his relation to other persons.
    8. So where a deed of land is made to a woman by her name, and “her children,” she, and her children living at the time of the execution and delivery of the deed, will take as tenants in common, but a child born thereafter will take nothing. In the case of a grant of an immediate estate in possession, the grantee must be in esse, and a deed of that kind may be avoided by showing the grantee came into being subsequent to the delivery of the deed.
    ■ 9. Practice'IN the Supreme Court—reversal as to one of several plaintiffs in ejectment. In ejectment by several plaintiffs, the findings and judgments in respect to the interests of the several plaintiffs are several and distinct, and if erroneous as to only one of the plaintiffs recovering, the entire judgment will not be reversed, but only that which is erroneous.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Thomas F. Tipton, pro se, and for the appellant Matthew Faloon:
    The plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of the defendant’s.
    The plaintiffs can not recover, for the reason that they failed to show a legal title in themselves at the commencement of the suit. Pitkin v. Yaw, 13 Ill. 251.
    To make a disseizin effectual to give title under it to a second disseizor, it must appear that the latter holds the estate under the first disseizor, so that the disseizin of the one may be connected with that of the other. Separate disseizins do not aid one another. Sawyer v. Kendall, 10 Cush. 244; Potts v. Gilbert, 3 Wash. C. C. 479; Ward, v. Bartholomew, 6 Pick. 409; Allen v. Holton, 20 id. 458; Melvin v. Proprietors, 5 Metc. 15.
    The appellees claim by virtue of twenty years’ possession, against Jesse Adams. Tipton claims by deed from Jesse Adams to Faloon, and from Faloon to himself. That the claimed possession was not adverse to Adams, see Ward v. Bartholomew, 6 Pick. 409; Allen v. Holton, 20 id. 458; Melvin v. Proprietors, 5 Metc. 15; Wade v. Lindsey, 6 id. 407.
    In Melvin v. Proprietors, supra, the court say: “For it is a principle well established, that when several persons enter on land in succession, the several possessions can not be taken so as to make a continuity of possession, unless there is a privity of estate. Whenever one, acquires possession, the right of the true owner is restored, and the entry afterward by another dis-seizor constitutes a new. disseizin.” See, also, Brant v. Ogden, 1 Johns. 158; Dow v. Campbell, 10 id. 475; Jackson v. Lomac, 9 Cow. 658; Allen v. Holton, 20 Pick. 425.
    In Wade v. Lindsey, 9 Metc. 407, it is held, “that where several persons, without privity of estate,' successively enter on land as disseizins, their several possessions can not be tacked so as to make a continuity of disseizins.” See, also, San Francisco v. Fulde, 36 Cal. 349; 2 Smith’s Lead. Cases, (5th Am. ed.) 265 ; Harland v. Brown, 4 Ind. 143 ; Johnson v. Nash, 15 Texas, 422; Doe v. Barnard, 13 Q. B. 945; Ward v. Bartholomew, 6 Pick. 415.
    In order to give title under the Statute of Limitations, the possession of the plaintiff can not be tacked to that of a former possession, under whom the plaintiff does not show title. Schrack v. Zubler, 34 Pa. St. 38; Austin v. Railroad Co. 45 Vt. 215 ; Doswell v. DeLalansey, 20 How. 32; Sedgwick’s Wait on Trial of Title to Land, 738, 739; Tyler on Ejectment, 915 ; King v. Smith, 1 Rice, 10; Mazick v. Nite, 3 Brev. 151; Melites v. McAliby, Cheevy, 200; Simpson v. Downing, 23 Wend. 316 ; 3 Washb. 145.
    Where a party claims to have had adverse possession for twenty years, in order to avail of such possession he must show that he, and those under whom he claims, have had actual possession for twenty years. Clark v. Lyon, 45 Ill. 388; Pfirshing v. Falsh, 87 id. 260.

      Adverse possession must be hostile in its inception, and must be clearly and positively proved. Bryan v. East St.Louis, 12 Bradw. 390; Truesdale v. Ford, 37 Ill. 210; Keys v. Test, 33 id. 316 ; Strong v. Shea, 83 id. 575.
    When the apparent possession of land is consistent with the title appearing of record, it is not the duty of the purchaser to make any inquiry about the title beyond what the records show. Smith v. Youle, 31 Cal. 180.
    Possession referred to record title: Wade on Notice, 297; Plumer v. Robertson, 6 S. & R. 179 ; Palmer v. Bates, 22 Minn. 532; Great Falls Co. v. Worster, 15 N. H. 412; Woods v. Passman, 7 Watts, 382; Cerpman v. Baccastow, 84 Pa. St. 363; Smith v. Youle, 31 Cal. 180.
    Messrs. Williams & Capen, for the appellees:
    That the adverse possession of Withers and his grantees gives title that can be asserted in an action of ejectment, is familiar law. McDuffee v. Sinnott, 119 Ill. 449; Jacobs v. Rice, 33 id. 369 ; Hubbard, v. Kiddo, 87 id. 578; Riverside Co. v. Townshend, 120 id. 9.
    By the deed from Mrs. Withers, Hannah Simshauser and her children living at the time, took with her as tenants in common. 13 Shars. & Budd’s L. C. 52; Coke on Littleton, 9 a; 2 Jarman on Wills, 224; Wild’s case, 6 Coke, 27; Parkman v. Bowdoin, 1 Sumn. 366.
    A deed is not necessary to transfer the possession of land held adversely to the owner. Weber v. Anderson, 73 Ill. 439; Schneider v. Botsch, 90 id. 577.
    That twenty years’ adverse possession gives a perfect title, see Kerr v. Hitt, 75 Ill. 51; Hubbard v. Stearns, 86 id. 35; James v. Railroad Co. 91 id. 554.
   Mr. Justice Baker

delivered the opinion of the Court :

This was ejectment, against the appellants, Matthew Faloon and Thomas F. Tipton. The premises in controversy were a strip of ground, beginning at the south-west corner of lot 1, in White’s addition to the town (now city) of Bloomington, and running thence north to the north line of said lot, thence west twenty-nine feet, thence south to the north line of Grove street, and thence east twenty-nine feet to the place of beginning. The appellant Tipton exhibited at the trial a title in himself, through mesne conveyance, from the government of the United States. The important matter in controversy is, whether his right of possession has been barred, in respect to the rights of appellees, by the operation of the Statute of Limitations, which tolls, after twenty years of adverse possession, the right of action for the recovery of lands, and the right to make an entry thereon.

Lot 6 in Gridley's addition to Bloomington lies west of lot 1 in White’s addition to Bloomington, and this strip of ground now in question, twenty-nine feet wide, lies between them. In 1852, one Jesse Adams was in possession, under paramount title, of the east half of lot 6, of fifty-six feet off of the west side of lot 1, and of the strip of twenty-nine feet, and fenced all these pieces of land in one inclosure, and erected a bricki house on the strip in dispute, that being about the center of the combined premises. He remained in possession until September 7, 1858, when he executed a deed to Allen Withers, in which the premises conveyed were described as the east half of lot 6, in Gridley’s addition, and fifty-six feet off of the west side of lot 1, in White’s addition, and put said Withers in possession of the house and of the whole of the premises. Withers retained possession of the entire enclosure, occupying it by his 'tenants, and claiming to be the owner of it all, until his death, in 186é. He left a will, by which he devised his whole estate to his wife, Sarah B. Withers. Mrs. Withers occupied the entire premises, by her tenants, she claiming to be the owner of the same, until August 8,1871, when she conveyed, by deed, to “Hannah Simshauser and her children, * * * and their heirs and assigns.” This deed also described the premises conveyed, as the east half of lot 6, in Gridley’s addition, and fifty-six feet off of the west side of lot 1, in White’s addition. Mrs. Withers put her grantees into possession. Mrs. Withers states in her testimony that the house and premises were occupied by a tenant when she made the deed; that she turned over the lease to Mrs. Simshauser; that the latter collected rent from the tenant therein; that Mrs. Simshauser rented the place for two or three years, until the house was torn down, and that the Simshauers then rented the land for a garden, or something of that kind; that Mr. Funk had a garden there and paid the taxes.

It seems, from the evidence, that the house having become somewhat dilapidated, Philip Simshauser, husband of Hannah Simshauser, had it torn down about 1874.' The husband, in his testimony, in response to a question as to what his wife and children did with the house after Mrs. Withers deeded it to them, answered: “We had it about two years, and we had so much bother about tenants paying the rent, and it wanted fixing up, so after we looked it over I tore it down.” He also states, that after the house, was torn down his boys took the matter out of his hands, and had the premises rented out for a garden, and that nobody except them (the Simshausers) were in possession of or made any claim to the premises until the claim made by appellant Faloon, in 1885.

We think it evident from this testimony, that whatever possession Philip may have had, or authority he may have exercised in respect to the house and the land connected therewith, was merely in behalf of his wife and children, and in assertion of their claims of title, and in conformity with their relative interests as supposed to be fixed by the deed they held, and in no sense under claim of a personal and individual right in himself. It is also manifest that the consecutive possessions of the strip of ground twenty-nine feet wide, held by Mr. Withers, Mrs. Withers and the grantees in the conveyance of August 8, 1871, were supposed to be under and by virtue of the deeds made by Adams and by Mrs. Withers, respectively.

Appellant Tipton’s title is derived through a quitclaim deed for the twenty-nine feet, dated October 4,1876, made by Jesse Adams to appellant Faloon, and a warranty deed from Faloon to himself, dated April 15, 1887. A possession of land, in order to be adverse, need not be under any muniment of title. Adverse possession is a possession inconsistent with the right of the true owner, and depends upon the intention with which it is taken and held; and an actual occupancy of land by one, accompanied by acts of ownership inconsistent with the fact of ownership in another, is presumptively adverse possession. The possession of Allen Withers and that of his devisee, Sarah B. Withers, were very plainly adverse, in respect to the twenty-nine feet, to the title of Jesse Adams, under which appellants claim, and these possessions continued from September 7, 1858, to August 8, 1871, a period of twelve years and eleven months. So, also, the possession of appellees, under their deed from Mrs. Withers, was manifestly adverse to the title of which appellants seek to avail themselves, and it extended from August 8,1871, until some time in the year 1885, a period of almost or quite fourteen years. It is not essential there should be proof of oral declarations of claim of title made by appellees, but it is sufficient if it appears they so acted as to clearly indicate that they did claim title.. (James v. Indianapolis and St. Louis Railroad Co. 91 Ill. 554.) It follows, that if these possessions can be tacked together, there is an adverse possession shown in this case of some twenty-seven years, and the bar of the statute against the title of appellants, even though it be the true title, is complete, and became absolute in September, 1878.

Appellants urge, however, that where several persons, without privity of estate, successively enter on land as disseizins, their several possessions can not be tacked so as to make a continuity of disseizins, and that in order to give a right to •the bar under the Statute of Limitations, a party seeking to avail of such right must show privity of éstate with the prior disseizors by purchase and conveyance of disseizin. It is a ■sufficient answer to this claim, and to the authorities cited, to show it is essential to establish by a deed that appellees are connected with the adverse possessions of Allen and Sarah B. Withers, to say that the question is not an open one in this State, and that, the rule> having been years ago determined otherwise by this court, and it being a rule of property upon which many titles may depend, such former ruling will be adhered to without any re-examination of the conflicting authorities in respect thereto. ■ In Weber v. Anderson, 73 Ill. 439, it was held, that a deed is not' necessary to transfer the possession of land held adversely to the owner, and that where land is held adversely by different occupants, and one succeeds to the possession of another, the identity and continuity of their possession, in order to make the period required to bar the owner, may be shown by parol evidence. See, also, Schneider v. Botsch, 90 Ill. 577, and other cases there cited.

Appellant Tipton further insists he is an innocent purchaser for'value from a person in possession having the legal title of record, and should be protected as such. Waiving the contention made by appellees, that this claim is wholly-unsustained by the facts, it would seem that even if it has a sufficient basis in the evidence, yet it can not here prevail. While the Statute of Limitations does not have the effect to transfer the title of the true owner, it does transfer his right of possession .to the .party in adverse possession for the required period. In Hinchman v. Whetstone, 23 Ill. 185, this court said: “Where the ■statute has tolled both the right of entry and the right of action, the remedy of the owner is gone, and he is precluded from asserting his right or setting up his title against the party relying upon the statutory bar.” And further said: “As against such occupant and those claiming under him he can neither use his title for the purpose of recovery or defense until he shall have destroyed the bar,, by purchase, limitation, or some other mode equally effectual.”

When both the right of entry and the right of action are lost, then, by operation of the statute, the party in adverse possession is conclusively presumed to be the owner, and to be vested with title, and such title can not be cut off and destroyed by the act of the holder of the former title in regaining possession by the commission of a tort, and, while so in tortious possession, conveying to a third party who has no notice of the adverse title, the holder of which has been wrongfully and •temporarily dispossessed. The right of possession which once was in the former owner having been transferred by the statute to the new and adverse owner, such former owner is powerless to convey to the purchaser from him a right of possession which he himself does not have. The appellant Faloon took possession after the rendition of judgment in the first ejectment suit, hereafter mentioned, but he was not put in possession by any writ of possession issued upon such judgment. In Riverside Co. v. Townshend, 120 Ill. 9, this court held, that when a plaintiff in ejectment shows an adverse possession for twenty years, so that the entry is barred, he is entitled to recover, even against a defendant whose possession for a less period is lawful, and quoted with approval the language from Angelí on Limitations, (sec. 381,) that “it is also unquestionable, that where land has been held, under a claim to the fee, for the time prescribed by the statute, and an entry is made . by a party who has the written title, such party may be dispossessed by an ejectment brought by him who has so held and claimed.”

The declaration filed in.this case contains ten counts. In the first count, Hannah Simshauser, Philip Simshauser, Allen W. Simshauser, Lawrence Simshauser, Benjamin F. Sims-hauser, Peter P. Simshauser, Mary Belle Simshauser, Sarah W. Simshauser and Henrietta Simshauser claim the whole of the premises in fee. In the second count, Hannah Simshauser-claims an undivided one-eighth part of said premises, and in the third, fourth, fifth, sixth, seventh, eighth, ninth and tenth counts, respectively, Allen W., Lawrence, Benjamin F., Peter P., Mary Belle, Sarah W., Henrietta and Clarence Simshauser, each, respectively, claims an undivided one-eighth part of said premises. It seems, from the evidence, that in 1885 the appellant Faloon commenced ejectment for the recovery of the premises in dispute, against one Funk, who had rented them from Benjamin F. Simshauser, and said Funk gave due notice to said Benjamin F. of the suit, and in the suit Faloon obtained judgment by default. In the present suit, which was tried, before the court without a jury, the court held that Benjamin F. Simshauser was barred by the judgment in the first ejectment, and as to him the judgment was, that he take nothing by the suit. But the court found the issues for the plaintiffs, Hannah, Allen W., Lawrence, Peter P., Mary Belle, Sarah W. and Clarence Simshauser, and that each of said last named plaintiffs was the owner, in fee simple, of an undivided one-eighth part of the premises, and rendered judgment that each of them “do each severally recover * * * an undivided one-eighth of the above described premises, ” etc.

■ It is strenuously urged, the judgment in favor of Clarence Simshauser for an undivided one-eighth of the land is erroneous, and such contention is undoubtedly well founded. The deed from Mrs. Withers was, as we have heretofore seen, to Hannah Simshauser and her children. While it is necessary that all the grantees should be sufficiently described in a deed, yet that rule does not require such parties should be designated by the usual method of giving their names in full, and any other description will suffice which distinguishes them from all others, as, where one is described by his office or by his relation to other persons. (5 Am. and Eng. Ency. of Law, p. 432., and authorities cited in notes; Cook v. Sinnamon, 47 Ill. 214; Low v. Graff, 80 id. 360.) In this case, Mrs. Withers, and her children living at the time the deed was executed and delivered, took as tenants in common, (Wild’s case, 6 Coke, 17; Parkman v. Bowdoin, 1 Sumn. 366; 2 Jarman on Wills, 224.) The evidence of Philip Simshauser shows that the seven children of himself and wife, living at the time Mrs. Withers made the deed, were Allen W., Lawrence, Peter P., Mary Belle, Sarah W., Henrietta and Benjamin F. The evidence of Mrs. Withers is to the same effect, and it clearly appears from her testimony that Clarence was born about three years thereafter. Of course, Clarence did not take by the deed. In case of a grant of an immediate estate in possession, the grantee must be in esse, and a deed of that kind may be avoided by showing the grantee came into being subsequent to the delivery of the deed. (Hulick v. Scovil, 4 Gilm. 159 ; Miller v. Chittenden, 2 Iowa, 368; Tiedeman on Real Prop. sec. 797.) The finding and judgment of the court in favor of Clarence Simshauser, for an undivided one-eighth part of the premises, was clearly erroneous.

Section 27 of the Ejectment act (Rev. Stat. 1874, chap. 45, sec. 27,) provides: “It shall not be an objection to a recovery, in any action of ejectment, that any one of several plaintiffs does not prove any interest in the premises claimed, but those entitled shall have judgment, according to their rights, for the whole or such part or portion as he or they might have recovered if he or they had sued in his or their name or names, only.” And it is provided in the second and sixth clauses of section 30 of the same act, that if it appears that one or more of the plaintiffs have a right to the possession, and that one or more have not such right, the verdict shall specify for which plaintiff the jury find, and as to which plaintiff they find for the defendant; and that if the verdict be for an undivided, share or interest in the premises claimed, it shall specify such share or interest. In this case, there is no cross-error assigned by Henrietta Simshauser, because there was no finding and judgment in her favor for an undivided one-eighth of the land. It is not perceived that there is any occasion for reversing the' entire judgment, and remanding the cause. The findings and judgments in respect to the interests of the several appellees were several and distinct. The judgment in favor of Clarence Simshauser being erroneous, and he having no right or title in the premises, is reversed. The judgments in favor of Hannah Simshauser, Allen W. Simshauser, Lawrence Simshauser, Peter P. Simshauser, Mary Belle Simshauser and Sarah W. Simshauser, are affirmed.

It is ordered that six-sevenths of the costs of this appeal be taxed to appellants, and one-seventh of such costs be taxed to Clarence Simshauser.

Judgment reversed in part and in part affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    John A. Roebling’s Sons’ Company v. The Lock Stitch Fence Company.

      Filed at Ottawa

      October 31, 1889.

    _ 1. Contbagts—notice of refusal to perform—rights and remedy of the other party. Where one party to a contract gives notice before the time of performance arrives that he does not intend to perform, the other party may treat such notice as a breach, and bring his action, or he may decline to accept the notice as a breach, and insist that the contract shall continue in force up to the time fixed for its final performance, holding the party refusing to perform, responsible for the consequences of his refusal.
    2. One party to a contract can not, by simply refusing to carry out Ms part of it, compel the other party to rescind it. The latter has a right to keep the contract alive notwithstanding such refusal, and may go on and perform Ms part even though notified by the other that he will not perform.
    3. So where a party to a contract for" the sale and delivery of a certain commodity notified the vendor not to make any further shipments under the contract, and the vendor distinctly refused to stop the shipments, it was held, that the vendor thereby elected to continue the contract in force, and did thereby keep the same alive, not only for the vendor’s own benefit, but also for that of the vendee. In such case, the vendor will remain liable to all his own duties and obligations, and in a suit by the vendor against the vendee, on the contract, the plaintiff must prove he was ready, willing and able to perform.
    4. Same—seller's ability to perform—so as to hold the buyer liable— evidence. In an action upon a contract by the vendor against the ven-dee, for refusing to accept and pay for goods bought by him, the fact that the vendor, after notice of the vendee’s repudiation of the contract, failed to have the requisite amount of the goods shipped to the place of delivery at the times specified in the contract, if relied on by the defendant as showing the plaintiff’s inability to perform, may be explained by the circumstances, so as to show such delay was by mutual consent, or was not the fault of the plaintiff.
    5. Where goods shipped by rail are tendered by the vendor to the vendee without the payment of freight, but no objection is made to the tender on that ground, and the proof shows there was an understanding between the shipper and the carrier whereby the shipper obtained credits and afterward paid such freight, it was held, that it was for the jury to take all these and other circumstances into consideration in determining whether the delay in paying the freight showed a want of readiness and ability of the vendor to perform.
    6. Sale—failure of buyer to pay—re-sale by the seller. Where a vendee of goods sold at a specific price refuses to take and pay for the goods, the vendor may re-sell the same, and charge the vendee with the difference between the contract price and that realized at the sale. But the sale must be fair, and must be made in good faith, and in the mode best calculated to produce the real value of the goods.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Geobge W. Stipp, Judge, presiding.
    This is an action of assumpsit, commenced in the Circuit Court of Will County, on September 4,1885, by the appellant, a corporation organized under the laws of New Jersey and engaged in the manufacture and sale of galvanized fence wire at Trenton in that State, against the appellee, a corporation organized under the laws of Illinois and engaged in the business of making and selling barbed fence wire at Joliet in the latter State, to recover damages for a breach of contract, and also to recover the amount of a balance claimed to be due for goods sold and delivered under said contract.

      The contract sued upon is embodied in the following letters: 1st, a letter from appellant to appellee, dated Feb. 27, 1885, saying: * *a “we telegraphed you that we had all of your wire made. Two cars have been shipped on your-letter of the 9th, and the third one is being loaded now. Let us know how fast we shall ship the balance. * * * We can make a lot of galv. fence wire now, but cannot stand some of the prices we hear of. Thet best we can do, on say, 500 tons, is $3.65 per 100 (lbs.), usual terms. Shipments. about as you have had them;” 2nd, a letter from appellee to appellant, dated March 3, 1885, saying: “Yours of the 27th inst. at hand. Please enter our order for 500 tons of galvanized fence wire in proportion of 78 per cent No. 12 and 22 per cent No. 13 @ $3.65 per 100 (lbs.) delivered in Joliet 60 days, or 2 per cent cash in 10 days, from receipt of wire. Delivery between now and July 1. You can ship 20 tons per week to balance old order, and then the same on this until we say different,” etc.; 3d, a letter from appellant to appellee, dated March 7, 1885, saying: “Yours of 3d received. Have entered your order for 500 tons galvanized fence wire, 78 per cent No. 12 and 22 per cent No. 13, delivery between now and July 1, 1885, at rate of 20 tons per week after completion of present order. Price-$3.65 del’d at Joliet 60 days, or 2 per cent for cash in 10 days.”
    Under this contract, appellant shipped 120 tons of fence wire, which were accepted by appellee. The last shipment, which was accepted, was made by appellant on April 21, and received by appellee at Joliet on April 27. The price of fence wire began to decline in the middle of March, 1885, and continued to decline until the early part of July, 1885. On April 27, .1885, appellee telegraphed to appellant: “Stop shipment and cancel our order.” On the same day appellee wrote to appellant, confirming the telegram, repeating the direction to cancel the order, and stating that the wire could not be used “owing to its quality.” On April 29 appellant telegraphed to appellee: “We cannot agree to stop shipment. All the wire has been tested here before shipment,” to which appellee telegraphed in reply: “Telegram received. Will not. take wire if shipped. Cannot use the quality." On April 30 appellant wrote to appellee acknowledging the receipt of the telegram of the 29th, and stating that they could not stop shipments; that they had bought the rods and were obliged to take them; that they had made a contract with the B. B. Co. for shipments at certain freight rates; that they had tested the wire before shipping it, and had done everything to make it right; that appellee had not explained what the trouble was; that their Mr. Shippy would leave during the week for Joliet, and that they hoped the matter would be adjusted.
    . Early in May appellant sent its manager, Shippy, to Joliet to examine the wire, and upon his return wrote to appellee a letter, dated May 15, 1885, saying, that Shippy had reported and brought back samples, that the quality was not such as to justify the course taken by appellee, that a car of wire was then being loaded for Joliet, that the foreman'would test every bundle, that it was impossible to cancel the order, and that, if a little of the wire was poor, appellee could return it, etc. In reply to this letter, appellee telegraphed on May 18 : “Letter received. Will not receive wire if shipped.” On May 23, appellant again wrote: “Whatever wire of inferior quality there may be among any of the shipments * * * may be returned to us. While we * * * regret that some poor wire was sent you, we cannot agree to cancel your contract on that account.”
    Appellant shipped the remaining 380 tons to Joliet between May 16, 1885, and June 23, 1885, the shipment of May 16 reaching Joliet on May 24, and that of June 23 arriving in Joliet on June 29, 1885. The 380 tons were tendered to ap-pellee, who refused to receive them. Appellant gave, notice to appellee that the wire would be sold. After notice of sale by advertisement, the wire was sold at public auction in Joliet, the last of it being so sold on July 6, 1885. The difference between the contract price and the amount realized from the sales was $3293.86, without taking into the account interest or expenses of sale.
    The defendant below introduced no testimony except upon the question as to whether the 120 tons accepted had been paid for or not. Upon the trial below, the jury returned a verdict in favor of plaintiff below, the appellant here, for $234.93, being the amount, without interest, claimed by appellant to be due and unpaid on the 120 tons received by appellee. The Circuit Court entered judgment upon this verdict, which judgment has been affirmed by the Appellate Court.
    Mr. C. W. Bbown, and Mr. F. Bennitt, for the appellant:
    The vendor of personal property, in a suit against the vendee for not taking and paying for the property, may sell the same, and recover the difference between the contract price and the price of re-sale. Bagley v. Findlay, 82 Ill. 524; Saladin v. Mitchell, 45 id. 84; Ullmann v. Kent, 60 id. 272; Benjamin on Sales, (3d ed.) 777, and notes.
    When goods are sold to be delivered in the future, the vendee can not create a breach of the contract by giving notice that he will not receive the goods. Kadish v. Young, 108 Ill. 171; McPherson v. Walker, 40 id. 371; Chamber of Commerce v. Sollitt, 43 id. 519.
    The rule is, if one bound to perform a future act, before the time for doing it declares his intention not to do it, this, of itself, creates no breach of his contract; but if this declaration be not withdrawn when the time arrives for the act to be done, it constitutes a sufficient excuse for the default of the other party. McPherson v. Walker, 40 Ill. 371;. Cummings v. Tilton, 44 id. 173 ; Benjamin on Sales, (3d ed.) p. 748, sec. 760.
    In actions upon contracts, it is necessary to aver, in the declaration, performance, or an offer to perform, on the part of the plaintiff, but it is never necessary to prove the perform-anee of a condition which has been waived or dispensed with by the defendant. A condition once waived is gone forever, and the performance of it can not thereafter be required. McPherson v. Walker, 40 Ill. 371.
    Mr. George S. House, Mr. George C. Fry, and Mr. James E. Babb, for the appellee:
    The refusal of appellee, on April 27, to further perform, did not of itself constitute a breach of the contract. It gave appellant an election to terminate the contract, or to continue it in force. Electing the latter, as it did April 29, it kept the contract alive for the defendant, as well as itself, and was bound to show such performance on its part as would have been required if the defendant had never refused to perform. Johnstone v. Milling, 55 L. J. 162; L. R. 16 Q. B. Div. 470; McLellan v. Winston, 12 Ontario Rep. 439; Kadish v. Young, 108 Ill. 170; Frost v. Knight, L.R. 7, Exch. 78; 1 Moak, 218; 41 L. J. Exch. 78; Blackburn on Law of Contract of Sale, (2d ed. 1887,) 349, 351; Dingley v. Oler, 117 U. S. 503; Smoot’s case, 15 Wall. 36; Benjamin on Sales, (4th ed.) sec. 568; Norrington v. Wright, 115 U. S. 205; Rolling Mill v. Bhodes, 121 id. 264; Bingham v. Carlisle, 78 Ala. 247; Howard v. Daly, 61 N. Y. 374; Anson on Contracts, (2d Am. ed. 1887,) 282.
    Appellant failed to show such performance as its election required, in that it had no wire ready for delivery from April 27 till May 24. Norrington v. Wright, 115 U. S. 188; Filley v. Pope, 115 id. 219; Pope v. Porter, 102 N. Y. 371; Hime v. Klasey, 9 Bradw. 166.
   Mr. Justice Magruder

delivered the opinion of the Court:

The court below instructed the jury on behalf of the defendant as follows: “The court further instructs the jury, that, if they believe from the evidence, the plaintiff and defendant made the contract for wire mentioned in the declaration, that the plaintiff entered upon the performance of the contract and shipped to the defendant a part of the wire mentioned in the contract, that defendant received and accepted such part, and then notified the plaintiff not 'to ship any more of the wire, then such notice excused the plaintiff from any further performance of the contract, and the plaintiff had no right tn proceed further in the performance of the contract, unless such notice should he withdrawn by the defendant,” etc.

/ This instruction is manifestly erroneous. Where one party to a contract gives notice before the time of performance arrives that he does not intend to perform, the other party may treat such notice as a breach and bring his action, or he may decline to accept such notice as a breach, and may insist that the contract shall continue in force up to the time fixed for its final performance, holding the party refusing to perform .responsible for the consequences of such refusal. One party to a contract cannot, by simply refusing to carry out his part ^of it, compel the other party to rescind it. The latter has a right to keep it alive notwithstanding such refusal. This doctrine was clearly announced in Kadish et al. v. Young et al. 108 Ill. 170.

In the present case, a contract was made, between appellant and appellee, by the terms of which the former agreed to sell to the latter 500 tons of fence wire and to deliver the wire so sold between March 7, 1885, and July 1, 1885. When the contract was made, appellant was engaged in shipping wire to appellee, under a former order not yet filled, at the rate of about 20 tons per week. Delivery under the new contract at the same rate was to begin after the completion of the old order. The last wire under the old order was not shipped nnt.il March 18, 1885, and deliveries under the new order did not become obligatory upon appellant until a week after that date, to-wit: on March 25, 1885.-

When the telegrams, of April 27, directing that shipments be stopped, and of April 29 announcing that the wire would not be taken if shipped, were received at Trenton, appellant might have treated such telegrams as a breach of the contract, and might have proceeded at once to sue for damages on account of such breach. But appellant also had the right to consider the notice, contained in the telegrams, as inoperative, and to treat the contract as alive and subsisting. Appellant was at liberty to await the time when the contract was to be executed, and to hold appellee responsible for the non-per-formanpe of it. Hence the instruction, which announced that “the plaintiff had no right to proceed further in the performance of the contract,” etc., was calculated to mislead the jury.

The appellant distinctly refused to stop the shipments of the wire. It thereby elected to continue the agreement in force. It kept the contract alive not only for its own benefit, but also for that of the appellee. It remained liable to all its own obligations and liabilities under the contract. (Kadish et al. v. Young et al. supra.) It was bound ‘to show, upon the trial, that it was ready, willing and able to perform its part of the contract. For this purpose it introduced testimony tending to prove, that it shipped all the wire, called for by the agreement, to Joliet within the period required for delivery, and there tendered ■ it to the appellee. It is unnecessary to discuss the question, whether such shipments and tenders on the part of the appellant were actually required of it in order to show its readiness and ability to perform- its part of the contract, in view of the positive and repeated announcement of the appellee that no more wire would be received after April 27, 1885. Whether or not the appellant was ready, willing and able to perform the agreement, after the notice of April 27 and up to July 1, was a question of fact to be determined by the jury from all the circumstances in the case, including such shipments and tenders.

Counsel for appellee call attention to two facts, which they claim to be undisputed, as showing that appellant failed to establish its willingness and ability to perform the contract. One is, that appellant shipped no cars between April 21 and May 16, so that none were ready for delivery at Joliet between April 27 and May 24.

The jury had a right to consider the omission of shipments-between the dates named in connection with all the circumstances tendingio explain such omission. It would have been impossible to ship and deliver 600 tons between March 25 and July 1—a period of about 14 weeks—if only 20 tons could be shipped each week. Three shipments of 20 tons each were made on April 15,18 and 21 respectively. These 60 tons, all shipped within one week, were accepted by appellee. No objection was made that more than 20 tons were shipped during one week. The only objection ever made by appellee was as to the quality of the wire. The reason given for refusing to receive shipments after April 27, was that the wire was brittle and broke easily, and was of a poor quality.

Again, during the period between April 30 and May 16, it was arranged that appellant’s manager-should go to Joliet, and examine the wire, and make report as to its quality. It was while this examination was going on for the purpose of determining the justice of appellee’s complaints about the wire, that the shipments stopped for a short time. ■ It was for the jury to say whether, under all the circumstances, the failure to ship between April 21 and May^l6 showed a want of readiness and ability to perform, or whether appellee waived its right to object to such failure, or impliedly consented to the temporary cessation of shipments in order to settle the question as to the quality of the wire.

The second fact relied on to show a want of readiness and ability to perform, is the alleged non-payment of freight on four carloads of wire when they were tendered to appellee. Appellants made shipments on May 16, 22, 26 and 28, each amounting to 20 tons. The bills of lading were sent to appel-lee, and returned to appellant with written statements endorsed thereon, that the wire would not be received. Afterwards on June 10 the amounts of these shipments were tendered to appellee, but the freight on them due to the railroad company was not paid until June 26. There was evidence tending to ;show, that appellee made no objection because the freight was not paid; that appellant had an arrangement with the R. R. Co. in relation to the payment of the freight, and that, in prior deliveries of wire, appellee had been in the habit of .advancing the freight and receiving credit therefor in subsequent settlements for the amounts due on the purchases of the wire. It was for the jury to take all these circumstances into consideration in determining whether the fact, that freight was due on 60 out of the 380 tons tendered after April 27, ■showed a want of readiness and ability to perform.

Inasmuch as the court instructed the jury, that the plaintiff had no right to proceed further in the performance of the •contract after the notice of April 27, the question as to what amounted to a performance or a non-performance was taken from their consideration. It would be entirely immaterial whether the omission to ship wire between April 21 and May 16, and the omission to pay freight on four carloads of wire before they were tendered, did or did not, in the light of all the attending circumstances, amount to a want of readiness .and ability to perform, if the plaintiff had no right to perform .at all.

The trial court also gave the jury the following instruction for the defendant: “The jury are further instructed that they shall disregard all evidence presented, proving or tending to prove any re-sale of the wire claimed to have been ready for •delivery under the contract sued on in this case, all such evidence having been ruled out and excluded by the court.” We think this instruction is erroneous, and that the evidence therein referred to should not have been excluded.

Where a vendee of goods, sold at a specific price, refuses to -take and pay for the goods, the vendor can resell the goods, •.and charge the vendee with the difference between the contract price and that realized, at the sale. The .sale must be fair, and must be made in good faith, and in the mode best calculated to produce the real value of the goods. (Saladin v. Mitchell, 45 Ill. 79; Ullmann v. Kent, 60 id. 271; Bagley v. Findlay, 82 id. 524.)

In the present case the sale was made at public auction at Joliet, the place of delivery, and after notice given to appellee. TJie proof tends to show, that the sale was fairly made with reasonable diligence, judgment'and care. The proof also tends to show, that the price realized at the sale was the fair market value of the wire at the time and place of delivery.

The judgments of the Appellate and Circuit Courts are reversed, and the cause is remanded to the Circuit Court.

Judgment reversed.


author: BERNSTEIN,

text:
    Heacock v. Sun Co. Inc.

      C.P. of Philadelphia County,
    no. 712,
    March Term 1996.

      Jeffrey M. Freedman, for plaintiffs.

      James F. Young, for defendant Sun Company Inc.

      Herbert R. Fineberg, for defendant Mechanical Instruction Inc.
    September 12, 1998
   BERNSTEIN,

— On March 21, 1994, plaintiff Howard Heacock was seriously injured in an explosion at defendant Sun Company’s Marcus Hook Oil Refinery. Immediately following the explosion, plaintiff Heacock was hospitalized at Crozier Medical Center. He came under the medical care of Dr. James Zurbach on May 10, 1994, for persistent knee pain. Dr. Zurbach found no evidence of significant knee pathology but recommended an MRI examination. The MRI performed on May 11, 1994 demonstrated no evidence of internal derangement. Dr. Zurbach examined the plaintiff on May 17 and recommended continued physical therapy. Dr. Zurbach last saw the plaintiff on June 7, 1994, at which time he found 107 degrees flexion, and full extension of the knee. Dr. Zurbach ordered “functional capacities” testing which was performed on July 13, 1994.

In their pretrial memorandum, defendant MCI listed Dr. Zurbach as a witness they intended to call at trial. Plaintiff now moves to preclude the testimony of Dr. Zurbach based upon a violation of Rule 4003.6 of the Rules of Civil Procedure. Pursuant to this motion, the court authorized depositions and production of documents concerning all communications between defendant MCI and Dr. Zurbach.

The record, as developed, demonstrates that a paralegal working for the law firm representing defendant MCI in this matter contacted Dr. Zurbach in writing and then subsequently spoke to him by phone. The paralegal asked Dr. Zurbach to review medical records subsequent to his treatment of plaintiff and prepare a report containing opinions as to his own treatment of plaintiff and as to plaintiff’s subsequent treatment and progress. In order to provide Dr. Zurbach with subsequent medical records, the paralegal obtained plaintiff’s medical records directly from Mr. Heacock’s workmen’s compensation carrier, PMA. These records were obtained outside of any normal or approved discovery requests.

Pennsylvania Rule of Civil Procedure 4003.6 provides: “Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter.” Defendant never received either authorization or written consent to obtain plaintiff’s medical records or to consult with Dr. Zurbach directly.

Accordingly, defendant MCI did violate Pa.R.C.P. 4003.6 by contacting Dr. Zurbach directly and obtaining medical records outside of any method of discovery authorized by the Rules of Civil Procedure and without plaintiff’s consent or even knowledge.

In response to this motion, defendant relies upon that portion of Rule 4003.6 which reads: “The rule shall not prevent an attorney from obtaining information from: (1) the attorney’s client, (2) an employee of the attorney’s client, and (3) an ostensible employee of the attorney’s client.” Defendant MCI claims that they were entitled to contact Dr. Zurbach because he was paid by a workmen’s compensation carrier on behalf of a company which their law firm, the firm of Eisen, Fineberg and McCarthy PC., represented on other matters. It is claimed that the law firm representing MCI in this case also represents Bogan Inc. in matters separate and apart from the instant action. They also claim to represent the workmen’s compensation carrier for plaintiff, namely PMA.

At argument, defendants further claimed that Dr. Zurbach was not a treating physician since he was selected from a list of health care providers designated by the plaintiff’s employer and was never selected by plaintiff. No proof of this contention is of record and the contention is irrelevant for Rule 4003.6 purposes.

There has been no appellate decision under Pennsylvania Rule of Civil Procedure 4003.6. Accordingly, the issues presented herein are of first impression in Pennsylvania. Nonetheless, the historical development of Pennsylvania law has direct bearing on its proper interpretation.

Thirty-six years ago, in the case of Alexander v. Knight, the trial court ruled that a treating physician’s “confidential or fiduciary” obligation to the patient: “includes a duty to refuse affirmative assistance to patient’s antagonists in litigation.” The Superior Court affirmed the decision of the trial court based upon the trial court opinien.-

In Moses v. McWilliams, a treating physician agreed to serve as an expert witness for the defendants in a medical malpractice lawsuit brought by his patient against other doctors. The trial court judge, Stanley Greenberg, entered an order that permitted the treating physician to testify only as a “fact” witness but precluded him from testifying as defendant’s expert. The precise issue articulated by the appellate court in that case was: “whether a treating physician’s unauthorized and judicially unsupervised communications with his patient’s adversary in a medical malpractice action are actionable as breach of physician/patient confidentiality.” The appellate court held there was no such cause of action, holding that a patient’s right to privacy in medical records is a qualified right which is itself reduced whenever a civil suit for personal injuries is filed. Further holding that a witness’ absolute immunity from civil liability extended to pretrial communications, the appellate court barred any claim against the testifying treating physician. The Superior Court noted, however: “Allowing ex parte interviews with treating physicians does not open the door to any and every disclosure by a doctor concerning a plaintiff’s medical condition. Rather, disclosure should be limited to that which is pertinent and material to the underlying litigation. If disclosures are neither pertinent nor material, they will be inadmissible at trial. Moreover, by issuing protective orders, a court can place restrictions on the scope of medical discovery without actually prohibiting ex parte interviews.” The Superior Court implicitly approved Judge Greenberg’s order limiting a treating physician’s testimony to the medical care and treatment rendered to the plaintiff.

In addition to Pennsylvania decisions which clearly expressed a strong public policy discouraging ex parte communications between defense counsel and treating physicians, Rule 4003.6 was anticipated by Chief Judge William J. Nealon. In 1987 in Manion v. N.P.W. Medical Center of N.E. Pennsylvania Inc., counsel for defendant Dr. D’Anca failed to tell plaintiff’s counsel before speaking with plaintiff’s treating physicians. The court said: “The public policy favoring confidentiality between a physician and his patient compels this court to preclude defense counsel from calling Drs. Ambruso and Kae as expert witnesses at trial.” Chief Judge Nealon explained this decision: “In view of one, the Alexander line of cases, two, decisions from outside Pennsylvania such as Petrillo v. Syntex Laboratories Inc., supra, and Stempler v. Speidell, supra, and three, the rationale supporting the prohibition against unauthorized ex parte contacts, this court believes that the Pennsylvania Supreme Court, if confronted with the issue, would at least require reasonable notice to a plaintiff or his counsel before defense counsel may communicate with plaintiff’s treating physician.” (emphasis added)

Pennsylvania Rule of Civil Procedure 4003.6, approved by the Pennsylvania Supreme Court for effect on July 1, 1991, was specifically designed to codify in the Rules of Civil Procedure reasonable limitations upon the defense’s ability to communicate with plaintiff’s treating physicians. It accomplishes this goal by restricting defense communications to approved discovery methods which of course require advance notice to plaintiff. The dual purpose behind both the policy and the rule is to preclude treating physicians from acting in a capacity adverse to their patient in court, while simultaneously protecting the right of the defense and the court to obtain access to the truth of past medical treatment. In light of the history and clear language of the rule, the interpretation urged upon the court by the defense must be rejected.

The defense proposes that for purposes of Rule 4003.6, any physician who is paid pursuant to the Workers’ Compensation Act is not a treating physician because he has a duty to disclose medical information to the workmen’s compensation carrier. This requirement certainly does not mean that the medical practitioner is not a treating physician. Any plaintiff, any workmen’s compensation claimant, any patient has an absolute right to be treated by a physician of his or her own choosing. The reasonable limitations placed by the Act upon this choice of physician to become eligible for payment by a workmen’s compensation carrier does not in any way affect the fact that the selected physician is the patient’s treating physician. Clearly, and without question, the selected physician’s primary obligation is the proper medical care of his patient. This is the primary obligation whether the patient pays the physician directly, whether the physician is paid by a workmen’s compensation carrier, or whether the physician is paid by any other third party payor. A treating physician is a physician whose primary responsibility is for the proper medical care and treatment of his patient. As used in Rule 4003.6, the term treating physician distinguishes the practitioner from an examining physician or a specially retained expert physician, both of whom are retained solely for evaluation and forensic purposes. See Pa.R.C.P. 4003.5(a), 4010(a)(1). Any third party payee has the absolute right to those reports needed to justify payment. This does not change the fact that Dr. Zurbach was treating his patient, Howard Heacock, and was a treating physician.

Defendant’s claim that no violation of 4003.6 has occurred because plaintiff’s medical records were obtained from their “client” is also inaccurate. The term “client” in Rule 4003.6 can only reasonably be read to apply to the specific client involved in that litigation. Rule 4003.6 does not in any way preclude counsel in a medical malpractice case from obtaining information from his or her “client,” the defendant, just because the defendant had previously been plaintiff’s treating physician. It is absurd to contend that because a law firm represents a physician in a totally distinct capacity in totally distinct litigation, or as a business client, or represents that physician on personal or family matters, that therefore Rule 4003.6 does not bar ex parte communication. Such a fortuitous extraneous representation by any member of a large law firm cannot be any basis to avoid the clear language and intent of the rule. Such a fortuitous representation cannot be known by plaintiff or his counsel and in no way changes the “ex parte” nature of the communication concerning Howard Heacock, which the rule was intended to prohibit.

It is even more clear that the fortuitous representation of the plaintiff’s employer or workmen’s compensation carrier or health insurance company cannot possibly be a lawful basis for invading the doctor/patient relationship and avoiding the clear mandate of Rule 4003.6. Such an interpretation would permit any law firm that represents Blue Cross or Blue Shield to engage in ex parte communications with any “participating” doctor, virtually any physician in Pennsylvania.

Accordingly, since defendant MCI violated Rule 4003.6, plaintiff’s motion is granted.

The next issue presented is fashioning a proper remedy for this violation. In this case, the clear violation produced minimal results because Dr. Zurbach fortuitously declined to act as an expert witness for defendant. Plaintiff’s request to preclude Dr. Zurbach from testifying must be balanced against all the defendants’ rights to present truthful and accurate testimony concerning plaintiff’s injury and medical care. The interest of society to have the jury determine the factual issues before them based upon all available truthful and relevant information is of paramount importance. The court notes that in this case there are other “innocent” defendants who may be prejudiced if Dr. Zurbach is entirely precluded from testifying. Accordingly, defendant MCI alone is precluded from calling Dr. Zurbach at trial.

Since it is likely that Dr. Zurbach may be called by another party, an order must be fashioned that ensures that his testimony is not tainted. Accordingly, Dr. Zurbach’s testimony, if called at trial, is hereby limited exclusively to those findings and opinions specifically addressed and noted in his contemporaneously recorded notes while functioning as plaintiff’s treating physician.

Obviously Dr. Zurbach must be qualified before he can testify to any medical opinion concerning his diagnosis, the appropriateness or need for the medical care rendered by him, the prognosis, or any other medical conclusions contained in his notes. Although sometimes referred to as “factual” testimony this is merely a shorthand expression for the concept of expert testimony related only to the facts of treatment and medical findings and opinions appurtenant to treatment, differentiating that testimony from more general expert opinion.

Dr. Zurbach’s diagnosis of plaintiff is necessarily medical opinion evidence. Accordingly, Dr. Zurbach must, of course, be demonstrated as qualified to provide medical opinions before he can testify. Nonetheless, his testimony can be strictly limited to only those medical findings and opinions which were necessary for the medical care he rendered to his patient. This order precludes all opinion as to the nature of any subsequent medical care. This order does not preclude the jury from hearing any opinions that were necessary for the proper care and treatment at that time. In order to avoid any possibility of tainted opinion as a result of the violation of Rule 4003.6, and because four years have elapsed since Dr. Zurbach last saw the plaintiff, no opinion as to prognosis may be offered.

Thus, as a remedy for the violation of Rule 4003.6, the treating physician’s testimony is limited to the facts of treatment of the plaintiff and opinions pertinent thereto.

ORDER

And now, September 12, 1998, plaintiff’s motion in limine to preclude the testimony of Dr. Zurbach is granted to the extent set forth in the attached memorandum opinion incorporated herein.

      . No proof of this claim has been presented, but the court accepts the representation of counsel as accurate.

      . 197 Pa. Super. 79, 177 A.2d 142 (1962).

      . 379 Pa. Super. 150, 549 A.2d 950 (1988).

      . 676 F. Supp. 585 (M.D. Pa. 1987).

      . 148 Ill. App. 3d 581, 102 Ill. Dec. 172, 499 N.E.2d 952 (1986).

      . 100 N.J. 368, 495 A.2d 857 (1985).

      . See Pa.R.C.P. 4003.5(a) and 4010(a)(1).

      . If such ex parte communications are proper, then any law firm that relies on this interpretation in order to avoid the clear limitations of Rule 4003.6 may have a conflict of interest with ethical implications to continuing representation. Such a firm may have a duty to disclose that extraneous representation. It is possible that reliance upon such extraneous representation to avoid the proscriptions of Rule 4003.6 can be the basis for disqualification of the firm. At a minimum, the interpretation suggested by defendant MCI herein would permit plaintiff to inquire into defense counsel’s other client and possibly invade those extraneous attorney-client relationships. This was not intended when the rule was promulgated.


author: WHERRY, ./.,

text:
    Commonwealth v. Baney

      C.P. of Mercer County,
    no. 938 Criminal 1996.

      David A. Ristvey, assistant district attorney, for the Commonwealth.

      Raymond H. Bogaty, for defendant.
    June 6, 1997
   WHERRY, ./.,

I. INTRODUCTION

This matter is before this court on defendant Jeremy Michael Baney’s omnibus pretrial motion in which he argues that certain evidence should be suppressed because it is the fruit of an unlawful search. A suppression hearing was held on April 9, 1997. Thereafter, pursuant to this court’s order dated April 9, 1997, the parties filed briefs addressing the suppression issues. For the reasons set forth below, this court shall grant defendant’s omnibus pretrial motion and suppress the evidence discovered as a result of an unlawful search.

II. FACTS

On April 19, 1996, at approximately 1:30 p.m. on Interstate 80 in Mercer County, Corporal Gary Sawor, an experienced canine narcotics officer with the Pennsylvania State Police, stopped a burgundy Honda Accord because he had observed a partially torn off or bent down state inspection sticker. Corporal Sawor pulled the vehicle over and asked the driver, Joseph Thomas, for his driver’s license and vehicle registration. Mr. Thomas informed Corporal Sawor that he did not have a driver’s license because it had been suspended for a DUI violation. Mr. Thomas also informed Corporal Sawor that the subject Honda Accord belonged to the passenger defendant Jeremy Baney. Corporal Sawor then asked for some proof of ownership of the subject Honda Accord, but neither the driver nor the passenger were able to produce any evidence of ownership, such as a motor vehicle registration or a pink owner’s slip. During this discussion with Mr. Thomas and defendant Baney, Corporal Sawor observed Zig-Zag rolling papers in Mr. Thomas’ left shirt pocket. At that time, Corporal Sawor did not ask Mr. Thomas any questions concerning those rolling papers.

Because neither Mr. Thomas nor defendant Baney had been able to produce any documentary proof of ownership of the subject Honda Accord, Corporal Sawor returned to his police car and ran the vehicle identification number and temporary registration number through the National Crime Information Center. As a result of the NCIC search, Corporal Sawor learned that the subject Honda Accord was not registered to defendant Baney, but instead was registered to a woman by the name of “Jennifer Wright.” Corporal Sawor also learned that, at least at that point in time, the subject vehicle had not been reported as stolen.

At this time, another state police officer, Trooper Richard Houk, arrived at the scene. Shortly thereafter, a motor vehicle traveling at an excessive rate of speed passed the police officers. Corporal Sawor pursued the speeding vehicle and left Trooper Houk to complete the paperwork for the traffic violations.

When Corporal Sawor was unable to apprehend the speeding vehicle, he returned to the automobile stop involving Mr. Thomas and defendant Baney. Upon Corporal Sawor’s return, Trooper Houk was just completing the paperwork relative to the traffic violations. Upon completing the paperwork, Trooper Houk approached the subject Honda Accord and asked Mr. Thomas to get out of the vehicle and walk to the rear of the vehicle. At that location, Trooper Houk issued Mr. Thomas a traffic citation for driving under suspension and a warning for not having a valid inspection sticker. While Trooper Houk was issuing the citation and warning, Corporal Sawor observed that the Zig-Zag rolling papers that he had earlier observed in Mr. Thomas’ left shirt pocket were gone. After all the traffic work was completed, Corporal Sawor asked Mr. Thomas what he had done with the Zig-Zag papers that had been in his shirt pocket. Mr. Thomas immediately became nervous, began fidgeting back and forth, and avoided eye contact with Corporal Sawor. Corporal Sawor repeated the question, and this time Mr. Thomas informed Corporal Sawor that he had hidden the rolling papers in a hole in the car door. Taking into account (1) that Zig-Zag papers are frequently used in conjunction with marijuana, (2) that Mr. Thomas had concealed the Zig-Zag papers, and (3) that Mr. Thomas was visibly nervous, Corporal Sawor asked Mr. Thomas if he had any marijuana to go along with the Zig-Zag papers. Mr. Thomas informed Corporal Sawor that he did have a small amount of marijuana in a bag under the front seat of the subject vehicle. Mr. Thomas offered to retrieve the marijuana for Corporal Sawor. However, because there could have been a firearm under the front seat, Corporal Sawor told Mr. Thomas that he would retrieve the marijuana. At that point, Corporal Sawor asked defendant Baney, who was still seated in the passenger seat, to exit the subject vehicle. For safety reasons, Corporal Sawor patted down defendant Baney. During that pat-down, Corporal Sawor felt a large bulge in defendant Baney’s pocket and asked him what it was. In response, defendant Baney removed a large wad of money from his pocket. Corporal Sawor permitted defendant Baney to keep the money at that time. Thereafter, Corporal Sawor proceeded to search under the front seat and retrieved a bag of marijuana. Mr. Thomas informed Corporal Sawor that the marijuana was his and that defendant Baney did not smoke.

At that point, Corporal Sawor asked both Mr. Thomas and defendant Baney whether there was any additional marijuana in the subject Honda Accord. Mr. Thomas responded that there was no additional marijuana in the vehicle. Although defendant Baney did not verbally respond to Corporal Sawor’s question, he did respond nonverbally by turning very pale, becoming visibly ill and sitting down on the side of the road. Corporal Sawor proceeded to search the rest of the interior of the subject vehicle, but found no additional contraband. Corporal Sawor then secured the keys to the vehicle, opened the trunk, and discovered three bags of luggage. Corporal Sawor grabbed and squeezed the luggage. In one of the bags, Corporal Sawor felt what he immediately believed to be loose marijuana in a plastic bag. Upon opening that bag, Corporal Sawor’s belief was confirmed. He found two large plastic bags of marijuana, as well as scales and baggies. At that time, Corporal Sawor arrested both Mr. Thomas and defendant Baney for various offenses under the Controlled Substance Drug Device and Cosmetic Act, 35 Pa.C.S. §780-113(a)(16), (30), and (32).

III. DISCUSSION

A. The Stop of the Motor Vehicle Was Lawful

A police officer has broad authority to stop a motor vehicle if there are articulable and reasonable grounds for suspecting a violation of the Motor Vehicle Code. 75 Pa.C.S. §6308(b). See also, Commonwealth v. DeWitt, 530 Pa. 299, 304, 608 A.2d 1030, 1032 (1992); Commonwealth v. Benton, 440 Pa. Super. 441, 445, 655 A.2d 1030, 1033 (1995).

In the present case, Corporal Sawor stopped the subject Honda Accord for an improperly displayed inspection sticker. Because this is a violation of section 4703 of the Motor Vehicle Code, Corporal Sawor had authority to stop the car. Indeed, defendant Baney even concedes that the stop of the subject vehicle for a motor vehicle violation was proper.

B. The Detention at the Scene After the Issuance of the Traffic Citation and Warning Was Lawful

After a police officer has completed a routine traffic stop, the driver and any passengers must be allowed to proceed on their way, without being subject to further delay by the police officer for additional questioning. Commonwealth v. Lopez, 415 Pa. Super. 252, 261, 609 A.2d 177, 181-82 (1992). In order to justify detaining the driver and any passengers for further questioning, the officer must have “reasonable suspicion of illegal transactions in drugs or of any other serious crime.” Id. at 262, 609 A.2d at 182. See also, Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993).

In the present case, while Mr. Thomas was being issued his traffic citation and warning, Corporal Sawor noticed that Mr. Thomas had removed the Zig-Zag rolling papers from his left shirt pocket. Certainly, the fact that Mr. Thomas had removed the rolling papers from his shirt pocket and concealed them in a hole in the car door was evidence inconsistent with the legitimate use of those rolling papers. The fact that Mr. Thomas had hidden the rolling papers, as well as Thomas’ nervousness and refusal to make eye contact, provided Corporal Sawor with specific and articulable facts to permit him to make reasonable inquiries aimed at confirming or dispelling his suspicions about the presence of drugs and/or drug paraphernalia. To confirm or dispel his suspicions, Corporal Sawor asked Mr. Thomas if he had any marijuana to use with the rolling papers, and Mr. Thomas responded affirmatively stating that there was marijuana in a bag under the front seat.

After observing the disappearance of the rolling papers from Mr. Thomas’ left shirt pocket, Corporal Sawor had a reasonable suspicion that there were illegal drugs in the subject Honda Accord and, therefore, was justified in detaining Mr. Thomas to ask him questions concerning the rolling papers and marijuana. Hence, Mr. Thomas’ admission that there was marijuana under the front seat was legally obtained.

C. The Warrantless Search of the Entire Motor Vehicle Was Unlawful

The Commonwealth of Pennsylvania’s “jurisprudence of the automobile exception has long required both the existence of probable cause and the presence of exigent circumstances to justify a warrantless search.” Commonwealth v. Labron, 543 Pa. 86, 100, 669 A.2d 917, 924 (1995). (emphasis added)

“In sum, the general rule is that a search warrant is required before police may conduct any search. As an exception to this rule, police may search a vehicle without a warrant where: (1) there is probable cause to believe that an automobile contains evidence of criminal activity; (2) unless the car is searched or impounded, the occupants of the automobile are likely to drive away and contents of the automobile may never again be located by the police; and (3) police have obtained this information in such a way that they could not have secured a warrant for the search, i.e. there are exigent circumstances.” Commonwealth v. White, 543 Pa. 45, 51-52, 669 A.2d 896, 900 (1995). (emphasis omitted)

The Commonwealth argues that there are exigent circumstances in the present case because the police officers had no basis to detain defendant Baney while obtaining a search warrant because the marijuana found in the subject motor vehicle admittedly belonged only to Mr. Thomas. Under those circumstances, the Commonwealth argues that it would have had to permit defendant Baney to drive away in the subject Honda Accord — thereby possibly losing forever any evidence of criminal activity located in the subject vehicle.

This court finds the Commonwealth’s argument to be without merit. Given that the ownership of the subject Honda Accord remained an unresolved issue in that (1) the NCIC search revealed that the subject vehicle was registered to a “Jennifer Wright” and not to defendant Baney and (2) defendant Baney was unable to produce any documentary proof that he actually owned the subject Honda Accord, this court finds that, under those circumstances, the police officers would not have simply permitted defendant Baney to drive away from the scene in a vehicle that may not have belonged to him and, in fact, may have been stolen. Certainly the police officers could have detained defendant Baney until such time as they were able to determine who actually owned subject Honda Accord. The fact that Corporal Sawor had already found a bag of marijuana in the subject vehicle and a large wad of money in defendant Baney’s pocket are additional reasons why the police officers would not have simply permitted defendant Baney to drive away from the scene in the subject Honda Accord. Because the police officers had a reason to detain defendant Baney, there were no exigent circumstances in this case that prevented the police officers from obtaining a search warrant for the subject Honda Accord.

For the reasons set forth above, this court finds that the search of the entire subject motor vehicle was unlawful. Therefore, the evidence obtained as a result of that unlawful search shall be suppressed.

An order in accordance with this memorandum opinion is attached.

ORDER

And now, June 6, 1997, this matter being before the court on defendant’s omnibus pretrial motion, and upon consideration of the evidence submitted at the suppression hearing held on April 9, 1997, and the briefs and argument of the defendant and the Commonwealth, it is hereby ordered that:

(1) Defendant’s motion to suppress evidence contained in his omnibus pretrial motion is granted.

(2) The evidence discovered in the trunk of the subject Honda Accord shall be suppressed.

      . For safety purposes, a police officer may, consistent with the Fourth Amendment guarantee against unreasonable searches and seizures, order a driver from a vehicle during a traffic stop even though the officer has no articulable basis to suspect that the driver is armed and dangerous or that criminal activity is afoot. Commonwealth v. Lopez, 415 Pa. Super. 252, 259, 609 A.2d 177, 181 (1992) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-111 (1977)).

      . Both probable cause and exigent circumstances must be present to justify a warrantless search of a motor vehicle. Commonwealth v. Labron, 543 Pa. 86, 100, 669 A.2d 917, 924 (1995). Because this court finds that there were no exigent circumstances in the present case, this court need not determine whether there was probable cause.


author: STENGEL, J.,

text:
    Groff v. Quinn

      C.P. of Lancaster County,
    no. 1708-1988.
    Els worth L. Groff Jr., pro se plaintiff.

      George H. Eager, for Vincent J. Quinn

      Stephen W. Cody, for J. Richard Gray.
    June 16, 1997
   STENGEL, J.,

— Plaintiff Elsworth L. Groff Jr. is presently serving a life sentence in the Pennsylvania Correctional Institute at Huntingdon for his conviction of first-degree murder. Plaintiff has filed a legal malpractice, negligence, and breach of contract action seeking compensatory and punitive damages against attorneys Vincent J. Quinn and J. Richard Gray. Defendants now ask for judgment of non pros on the basis of inactivity on the record in excess of two years.

I. PROCEDURAL HISTORY

In April 1988, plaintiff Groff, a pro se prisoner, filed a motion for leave to proceed in forma pauperis simultaneously with a complaint. The Honorable Ronald L. Buckwalter initially denied plaintiff’s request for in forma pauperis status in an order dated May 5,1988, which was assigned the docket number indicated above. In this order, the court directed the prothonotary to return to plaintiff the complaint and “to accept the same for filing only if accompanied by the appropriate filing fee.” Upon reconsideration, Judge Buckwalter, on June 3, 1988, granted plaintiff in forma pauperis status as to all fees except the initial filing fee of $45.50 because plaintiff, at the time, had $50 in his prison account. Plaintiff filed an appeal to the Superior Court of Pennsylvania.

On December 15, 1988, plaintiff refiled his petition for leave to proceed in forma pauperis which was attached to his complaint. On December 20, 1988, Judge Buckwalter denied this second petition. In the order, the court repeated the language set forth in the order of June 3, 1988, granting plaintiff in forma pauperis status after the initial filing fee of $45.50 is paid and, again, directed the prothonotary to return to plaintiff the complaint which had accompanied the petition and not to accept the complaint for filing until the filing fee had been paid.

On March 7,1989, plaintiff filed a motion for recusal of Judge Buckwalter and attached a third petition for leave to proceed in forma pauperis. The Honorable D. Richard Eckman denied the motion for recusal and, for a third time, denied plaintiff permission to proceed in forma pauperis on the basis that plaintiff had available funds to pay filing costs and fees.

On October 3, 1989, a panel of the Superior Court entered a memorandum and order affirming Judge Buck-waiter’s order of June 3, 1988 requiring defendant to pay the initial filing fee of $45.50.

On July 1, 1994, a notice of termination of inactive civil cases was served on plaintiff pursuant to Local Rule 350 due to docket inactivity for at least two years. In response to a communication from plaintiff in July 1994, the prothonotary’s office notified plaintiff that it did not have the original complaint filed in 1988 and that the filing fee was now $55.50.

Plaintiff thereafter commenced this action with the filing of a complaint and the appropriate fee on September 30, 1994. Defendants Gray and Quinn filed answers with new matter on November 10, 1994 and November 21, 1994, respectively. Replies to the new matter were filed by plaintiff on November 28, 1994 and December 7, 1994.

Defendants’ motions for judgment of non pros were filed with the prothonotary on March 3, 1995. These motions were never assigned to a judge because a praecipe to assign, as required by the local rules, was never filed. A praecipe to list the motions for judgment of non pros on the pretrial proceedings list was filed on July 24, 1995, but no praecipe for assignment was filed by defendants until January 30,1997. Defendants argued at that time that their motions for non pros should be deemed unopposed because of plaintiff’s failure to file a brief in opposition under the Lancaster County Local Rules of Court.

Under Local Rule 31, plaintiff should have filed an opposing brief within 10 days after the filing of the praecipe to list. He did not. In order to decide these motions for judgment of non pros on their merits, the court gave the pro se plaintiff additional time to file a brief in opposition to the motions. Plaintiff’s brief having been received by the court, this matter is now ripe for disposition.

II. DEFENDANTS’ MOTIONS FOR NON PROS

The question of the grant of a non pros is addressed at the discretion of the trial court which will not be reversed in the absence of an abuse of discretion. Gallegher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). Failure by a plaintiff to bring an action to trial in due time may be grounds for the grant of non pros upon motion by a defendant. Id. In the controlling case of Penn Piping Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), the Supreme Court held:

“[W]e now hold that in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket. Thus, if there is a lack of due diligence in failing to proceed with reasonable promptitude; if there is no compelling reason for the delay; and if the delay is for two years or more, the case may be dismissed for lack of activity on the docket.” Id. at 356, 603 A.2d at 1009. (footnote omitted)

Prejudice is defined as the difficulty of defending because of lapse of time and the attendant diminution in the defendant’s ability to present factual information in the event of trial because of the death or unavailability of material witnesses or the impairment of memory of witnesses called after many years or because of the loss or disappearance of documentary evidence. Carroll v. Kimmel, 362 Pa. Super. 432, 438-39, 524 A.2d 954, 957 (1987), appeal denied, 517 Pa. 613, 538 A.2d 496 (1988).

Defendants’ motions for non pros have three bases: (1) there has been an absence of activity in this case from October 3,1989, when the Superior Court affirmed the lower court order of June 3, 1988 regarding the motion for leave to proceed in forma pauperis, until September 30, 1994, when the complaint was filed; (2) plaintiff has advanced no “compelling reason” for failing to prosecute this matter until September of 1994; and (3) it was only after litigating a companion case all the way to the United States Supreme Court and losing that plaintiff “elected to revive this lawsuit with the filing of a complaint.” (See defendant Gray’s brief in support of motion at 3-4; defendant Quinn’s brief in support of motion at 3-4.)

Rule 1007 of the Pennsylvania Rules of Civil Procedure provides that an action may only be commenced by filing with the prothonotary (1) a praecipe for a writ of summons, or (2) a complaint. In this case, plaintiff’s action was not commenced until the filing of a complaint on September 30, 1994. Approximately five months later, defendants filed the motions for non pros presently before the court.

Defendants seem to be operating under two misconceptions. The first misconception is that the filing of plaintiff’s motion for leave to proceed in forma pauperis in 1988 somehow initiated this lawsuit. In fact, as noted above, Rule 240 prohibits in forma pauperis petitions from being filed prior to the commencement of an action and yet that is exactly what happened in this case. There was a complaint accompanying plaintiff’s motion which would have and should have initiated this action. The court, however, ordered that it be returned to plaintiff and not accepted for filing unless accompanied by the appropriate filing fee. Rather, the in forma pauperis petition was filed and a docket number assigned to it.

The second misconception is that plaintiff was under an obligation to file his complaint and pay the filing fee once his appeal of the in forma pauperis issue was exhausted by the state courts. Rule 240 does require a plaintiff, whose petition to proceed in forma pauperis has been denied, to pay the filing fee for commencing an action or risk having the action non pressed by the prothonotary not less than 10 days after notice of the denial of the petition. Pa.R.C.P. 240(c)(1)(h). This assumes, of course, that a complaint or writ of summons was attached to the in forma pauperis petition and accepted by the prothonotary for filing purposes. Such was not the case here. The original complaint was ordered returned to plaintiff, as were subsequent complaints received by the prothonotary.

The procedural history of this case precludes the granting of defendants’ motions for non pros.

Accordingly, we enter the following:

ORDER

And now, June 16, 1997, upon consideration of the motions for non pros filed by defendants Vincent J. Quinn and J. Richard Gray and the briefs filed by the parties, it is hereby ordered that said motions are denied.

      . Rule 240 of the Pennsylvania Rules of Civil Procedure states that if the in forma pauperis petition is filed simultaneously with the commencement of the action, the prothonotary shall docket the action and petition without the payment of any filing fee. Pa.R.C.P. 240(c)(l)(i). If the action is commenced without the simultaneous filing of a petition, the appropriate filing fee must be paid and will not be refunded if a petition is thereafter filed and granted. Pa.R.C.P. 240(2). In this case, a complaint was simultaneously filed with the in forma pauperis petition. The petition was docketed and ruled upon by the court. However, the complaint was not filed but rather returned to plaintiff by order of court.

      . On June 6, 1988, plaintiff filed a civil rights action in federal court against Judge Buckwalter because of his orders denying plaintiff full in forma pauperis status. This federal action was dismissed as “legally frivolous” by the Eastern District Court on July 18, 1988, and subsequently affirmed by the United States Court of Appeals for the Third Circuit in April 1989. Plaintiff’s petition to the Third Circuit for rehearing was denied on April 24, 1989.

      . A Rule 350 notice of termination should not have been sent to plaintiff as there was no proper commencement of an action. As the prothonotary acknowledged in a letter sent to plaintiff on July 24, 1994, no complaint had ever been filed. Therefore, there was no matter to be dismissed for failure to prosecute.

      . This ruling on the non pros motions does not preclude defendants from moving for dismissal of plaintiff’s claims based on the statute of limitations which was raised in defendants’ answers.