author: Strauss, P. J.,

text:
    Shamokin Banking & Trust Co. v. Coal Township Poor District.

      J. A. Welsh and S. L. Gribbin, for plaintiff.

      Cummings & Gubin, C. C. Lark and John Kopyscianski, for defendants.
    Aug. 14, 1929.
   Strauss, P. J.,

— This matter is before us on bill, answer, replication and proofs.

The bill avers that the plaintiff is a taxpayer and creditor of the defendant district and alleges that defendants, in a derogation of the rights of the plaintiff, had unlawfully increased the indebtedness of the said district in the year 1928 and were contemplating a similar unlawful increase of the indebtedness of the district in the year 1929, and prays that an injunction, preliminary until hearing and final thereafter, be issued restraining the defendants from applying any of the moneys in their hands to the payment of such indebtedness unlawfully incurred or to be incurred. A preliminary injunction was issued, a hearing had and testimony taken. It-was agreed that the testimony should be considered as of final hearing. From the testimony the Chancellor finds the following facts:

1. The plaintiff is a Pennsylvania corporation engaged in a general banking and trust company business in the Borough of Shamokin, County of Northumberland and State of Pennsylvania.

2. The District of the Poor of Coal Township is a municipal corporation created by Special Act of Assembly, approved April 15, 1863, P. L. 492, for the purpose of providing funds for the accommodation, care and welfare of the poor in the Township of Coal, County of Northumberland and State of Pennsylvania. There is now included within the boundaries of said poor district the said Township of Coal and Borough of Shamokin.

3. That Michael M. Meehan, William H. Wetzel and Samuel E. MacElwee, defendants, are the duly elected, qualified and acting directors of said Poor District of Coal Township.

4. That the plaintiff is a taxpayer in said Poor District of Coal Township and files this bill in its own behalf and in behalf of all other taxpayers in said poor district who may desire to join therein.

5. The net indebtedness of the said poor district on Dec. 31, 1927, was $49',365.49.

6. The net indebtedness of the said district on Dec. 31,1928, was $150,755.56.

7. The net increase of indebtedness during the year 1928 was $101,420.39.

8. That the last preceding valuation of said poor district was $22,629,330.

9. That on May 23, 1928, the Directors of the Poor of Coal Township levied a tax of 5 mills for general purposes, which was the only tax levy made during that year.

10. The said levy of 5 mills produced a gross income of $112,556.59.

11. The said gross income of $112,556.59 is subject to a 10 per cent, reduction for collection, treasurer’s commissions, exonerations, errors and double assessments, leaving a net income of $101,200.94.

12. That during the year 1928 the Directors of the Poor of Coal Township negotiated loans in the sum of $180,000, and repaid during said year $9000 on loans heretofore made to the district, leaving a net increase in loans for the year 1928 of $171,000.

13. Up to May 25, 1928, the date of levying the tax rate, the directors had spent, in cash, $88,839.32.

14. Up to the said date, the unredeemed orders issued amounted to $12,229.31.

15. On the same date, the unpaid commissions due the treasurer for moneys expended in 1928 amounted to $2632.31, and accrued salaries to $1565.

16. Up to the date of the tax levy in 1928, the total expenditures and accrued bills for that year amounted to $105,365.94.

17. The 5 mills tax levied by the poor directors on May 23, 1928, was insufficient to pay the expenditures of, and obligation incurred by, the district to the date of levy.

18. The fixed overhead of the district from May 25, 1928, to Dec. 31, 1928, exclusive of outdoor relief, amounted to $36,911.

19. The total expenditures and accrued bills to May 25, 1928, and the fixed charges of the district subsequent to May 25, 1928, amounted to $142,176.94, exclusive of outdoor relief.

20. On Dec. 31, 1928, the net indebtedness of the district was $150,785.88, and on April 23, 1929, the indebtedness was $244,124.09, an increase of $93,-338.21 from Jan. 1, 1929', to April 23, 1929.

21. On May 23, 1929, the directors of the poor made a levy for general purposes of 6 mills and of 21 mills for the purpose of repaying the outstanding obligations of the district.

22. Thereafter the said directors of the poor filed a statement of assets and liabilities of said district in the office of the Clerk of the Court of Quarter Sessions of Northumberland County, Pennsylvania.

23. From the statement filed, cash expenditures of the district, amounting to $52,395.22, for the expense incurred from Jan. 1, 1929, to April 23, 1929, were omitted.

24. The said statement does not show the actual indebtedness of the district as of the date on which it was filed because of the omission therefrom of $52,395.22.

25. The statement also failed to fix the form, number and date of maturity of the obligations to be issued by the said district.

26. The principal officers of the district failed to append thereto their oath or affirmation of the truth of the facts therein stated.

27. The expenses of the district from Jan. 1, 1929, to April 23, 1929, were $93,338.21; the estimated overhead for the remainder of the year, as per statement filed, is $39,338; the estimated outdoor relief, $42,000, and incidental expenses, $866.21. The total indebtedness already incurred and the estimated cost of running the district for the remainder of the year 1929 is $175,542.52.

28. That a levy of 8i mills, after deducting commissions, exonerations, double assessments and errors, will not produce sufficient revenue to pay the estimate of expenditures made by the directors for the year 1929.

29. That a 6 mills tax levy is insufficient for the payment of the estimated running expenses of the district for the year 1929, exclusive of outdoor relief.

30. That the total expenditures to April 23, 1929, and the estimated overhead costs for the balance of the year will exceed the net revenue produced by a 6 mills levy.

31. Under the tax levy made by the directors for the year 1929, there will be no money available for outdoor relief during the remainder of the year.

32. On Dee. 31, 1928, there was cash in the treasury amounting to $39,-402.81, which was available for the payment of indebtedness incurred during 1928. No moneys received during 1929 were used or applied in payment of expenses incurred during the year 1928.

33. On July 1, 1928, the directors of the poor had spent all moneys raised by taxes for the year 1928.

34. On April 3, 1928, the plaintiff, the Shamokin Banking and Trust Company, loaned the poor district the sum of $10,000.

35. The note of April 3, 1928, was renewed on Jan. 3, 1929, and is a valid, subsisting obligation of the district.

36. That in increasing the indebtedness of the said poor district during the year 1928 the said directors of the poor neglected and failed to comply with the provisions of section 2 of the Act of April 20, 1874, P. L. 65.

37. That in increasing the indebtedness of said poor district during the year 1928 the said directors of the poor neglected and failed to procure the approval of the Secretary of Internal Affairs of the State of Pennsylvania, as provided by the Act of Assembly of March 31, 1927, P. L. 91.

38. That at the time said indebtedness was created the directors of the poor neglected and failed to levy a tax for its repayment.

39. That at the time the defendant directors levied their taxes they made no budget of their probable expenditures for the ensuing year, neither did they make any calculation as to whether the income produced by such levy would be sufficient to pay the current expenses for the year; that they made the levies blindly, without any regard to the amount of revenues needed for the conduct of the business of the district.

Discussion.

Section 8, article 9 of the/ Constitution of Pennsylvania provides: “The debt of any county, city, borough, township, school district or other municipality or incorporated district, except as provided herein and in section 15 of this article, shall never exceed 7 per centum upon the assessed value of the taxable property therein. . .

Section 10, article 9 of the Constitution of Pennsylvania provides: “Any county, township, school district or other municipality incurring any indebtedness shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years.”

Section 2 of the Act of April 20, 1874, P. L. 65, provides that any municipality or incorporated district may incur debt or increase its indebtedness to an amount in the aggregate not exceeding 2 per centum of the assessed value of the taxable property therein as fixed and determined by the last preceding assessed valuation thereof, and the corporate authorities of such municipality may, by a vote thereof, duly recorded upon its minutes, authorize and direct the incurring or increasing of such debt to the amount aforesaid, and may issue coupon bonds or other securities thereof in sums not less than $100 each, bearing interest at a rate not exceeding 6 per centum per annum, payable semi-annually, and the principal thereof to be reimbursed within a period not exceeding thirty years from the date at which the same was authorized, and an annual tax, commencing the first year after such debt shall be increased or incurred, equal to at least 8 per cent, of the amount thereof, shall be forthwith' assessed to provide for the payment of the interest and the liquidation of the principal thereof, and the moneys arising from such tax shall be applied annually, as fast as the same accumulates, to the redemption at par of the said outstanding obligations. Before issuing any such obligation or security, it shall be the duty of the principal officer or officers of such municipality or incorporated district to prepare a statement showing the actual indebtedness of such district, the amount of the last preceding assessed valuation of the taxable property therein, the amount of debt to be incurred, the form, number and date of maturity of the obligations to be issued therefor, and the annual tax to be levied and assessed to pay the said indebtedness, and he shall make and append thereto his oath or affirmation of the truth of the facts therein stated and shall file the said statement in the office of the Clerk of the Court of Quarter Sessions of the proper county.

Section 2 of the Act of March 31, 1927, P. L. 91, provides: “It shall be the duty of the Department of Internal Affairs to carefully examine all proceedings had by the several municipalities of the Commonwealth for the incurring or increasing of the indebtedness thereof and to ascertain whether-the proposed debt is within the limitations imposed by the Constitution, and whether such proceedings are in conformity with existing laws.”

The 3rd section of the same act provides as follows: “. . . the president or chairman of the board of poor directors or overseers of each poor district which shall have any proceedings for the incurring or increasing of indebtedness, except notes issued in anticipation of revenue for not more than one year, shall, before any bonds or evidences of indebtedness are actually issued and sold, certify to the Department of Internal Affairs a complete and accurate copy of the proceedings had for such incurring or increasing of indebtedness, together with the assessed valuation of the property subject to taxation within the respective municipality, the total amount of existing indebtedness and the several amounts claimed as permitted deductions in ascertaining the real indebtedness of such municipality.”

Sections 4 and 5 of the same act require the Department of Internal Affairs to certify to the proper municipality its approval or disapproval thereof. Section 6 provides that it is unlawful for any municipality to issue or sell bonds or other evidences of indebtedness unless the provisions of this act have been complied with, and that all such bonds and other evidences of indebtedness issued, contrary to the provision of this act shall he invalid and impose no liability on the municipality or have any lien.

In the case of Georges Township v. Union Trust Co., 293 Pa. 364, at page 369, the power of a municipality to borrow money or create debt is stated as follows:

“First, there must be a lawful purpose for which the money is to be used or the debt created; and, second, the amount which can be borrowed is determined by reference to (a) the current revenues due or created within the year, and (b) the constitutional percentage authorized on the assessment value of property. The procedure necessary to give effect to the borrowing power is not an incident of the power, but a regulation for its proper exercise. The purpose for which money is to be used or a debt is to be created may be ascertained from the authorizing acts or duty enjoined or necessarily implied therefrom. In this case, it is alleged that the notes were given for loans incurred for the repair and improvement of public roads. This is a proper purpose for which money can be borrowed or a debt created, if the notes are valid obligations in other respects as well.

“Money borrowed for current expenses must be a sum within the current revenue. Current revenues include taxes for the ensuing year, and all liquid assets, such as delinquent taxes, licenses, fines and other revenue which, in the judgment of the authorities, are collectible. Current expenses have first claim on ordinary revenue and contemplate operating expenses. . .

In the same case, Georges Township v. Union Trust Co., supra, it is further stated: “It was early stated that where the debt created in any year exceeded current revenues and could not be paid therefrom, the debt was void, unless steps were taken to pay by bonds under what is termed the constitutional provision. The Constitution was intended to prevent the citizens from being overburdened by municipal taxation: City of Erie, 91 Pa. 398. It would be rather dangerous to announce as a principle that the ordinary running expenses should be cared for by bonds. If the taxing power is impotent to bring sufficient revenue for that purpose, the constitutional limit would be quickly reached.”

In Jackson v. Conneautville Borough School District, 280 Pa. 601, at page 607, the right of a municipality to create indebtedness is thus stated: “Of course, a municipality may create debts within its current revenues, regardless of existing indebtedness (City of Erie’s Appeal, 91 Pa. 398; Wade et al. v. Borough et al., 165 Pa. 479), but cannot go beyond, even where payment is to be made solely out of a specially designated income: Lesser v. Warren Borough, 237 Pa. 501; McKinnon v. Mertz, 225 Pa. 85; Brown et al. v. Corry, 175 Pa. 528; and see City of Santa Cruz v. Wykes et al., 202 Fed. Repr. 357, 375. A municipality must live within its means and can no more increase its indebtedness beyond its actual or expected annual income for payment of current expenses than for any other purpose. It is the increase of indebtedness that is forbidden, regardless of the object to be accomplished thereby.”

With the foregoing principles in mind, we turn to the facts and find that on Dec. 31, 1927, the indebtedness of the district was $49,365.49; on Dec. 31, 1928, the net indebtedness of the district was $150,785.88, a net increase of indebtedness during the year 1928 of $101,420.39; that the levy of 5 mills for the district for the year 1928 produced a net income of $101,200.94, about one-half the required amount to care for the current expense of the year. It further appears from the facts found that, on July 1, 1928, the directors of the poor of the defendant district, by borrowing and incurring debt, had exhausted the current revenues for the entire year. It thus clearly appears that the defendant district was not living within its current revenue as required by law, and that all indebtedness incurred during the year 1928, subsequent to the first day of July, 1928, is unlawful and invalid.

The money expended by the defendant district from Jan. 1,1929, to April 23, 1929, was $93,338.31; the estimated overhead for the remainder of the year was $39,338; the interest on borrowed money for the balance of the year 1929 is $11,550.65, making a total of $144,226.86. This amount will be reduced to the extent of the interest on the invalid obligations. On May 23, 1929, the defendant levied 6 mills for the general purposes. This millage will produce a net income, after the ordinary deductions, of $122,198.39, which is a sum insufficient to pay these items and practically leaves nothing for outdoor relief, which is estimated at $6000 per month. It is apparent that the directors of the poor had knowledge that they were not levying sufficient taxes to care for the ordinary expense of the district and persisted in keeping an inadequate mill rate, depending upon their ability to borrow money to carry them through the year when the current revenues were exhausted. Certainly, the levy of 6 mills for general purposes in 1929, in view of the fact that a mere inspection of their operating expense for 1928 showed the necessity for a 10 mill levy, shows a disposition to continue the methods employed in 1928. This they may not do under the law.

Conclusions of law.

The Chancellor makes the following conclusions of law:

1. This court has jurisdiction of the cause and the parties are properly before the court.

2. “Debt” and “indebtedness” in section 8, article 9 of the Constitution are not used in any technical sense, but in their broad general meaning of all contractual obligations to pay in the future for consideration received in the present.

3. The limitations on all municipalities to the power to create a debt or borrow money are as follows: (1) There must be a lawful purpose for which the money is to be used or the debt created; and (2) the amount which can be borrowed is determined by reference to (a) the current revenues due or created within a year, and (b) the constitutional percentage authorized on the assessment value of property.'

4. The procedure necessary to give effect to the borrowing power is not ah incident of the power, but a regulation for its proper exercise.

5. Money borrowed for current expenses must be a sum within current revenues.

6. Current revenues include for the ensuing year all liquid assets, such as delinquent taxes, licenses, fines and all other revenues which, in the judgment of the authorities, are collectible.

7. Current expenses have first claim on ordinary revenues.

8. When a debt created in any year exceeds current revenues, and cannot be paid therefrom, the debt is void unless steps are taken to pay by bonds under a constitutional provision.

9. Notes which are otherwise valid and within the current revenues are valid obligations, although renewed after current revenues are exhausted.

10. A statement filed by a municipality which does not contain the form, number and date of maturity of the obligations to be used, and which is not sworn to and [or] affirmed by the principal officer of the municipality nor [and does not] contain [a statement of] a levy for the retirement of the indebtedness within thirty years, does not comply with the Act of Assembly of April 20, 1874, § 2, P. L. 65.

11. The defendant district had expended and exhausted its current revenue for the year 1928 on July 1, 1928, and all debts and obligations incurred after that date are void.

12. On April 23, 1929, the defendant district had practically exhausted its current revenue for the year, as shown by its expenditures to that date and the overhead charges, for which it was obligated.

13. That a decree be entered preventing and restraining the defendant district from the payment of such unlawfully incurred indebtedness and the incurring of additional unlawful indebtedness in the year 1929.

Decree.

And now, Aug. 14, 1929, the prothonotary is directed to enter a decree nisi, enjoining and restraining the said defendant district from paying any of the current revenues and income of the said poor district on account of any notes, bonds or other obligations of the said district which form part of, or are included in, the illegally increased indebtedness of the said poor district incurred during the years 1928 or 1929; that the said defendant district is further enjoined and restrained from borrowing money or incurring any indebtedness during the remainder of the year 1929 in excess of its current revenues. The prothonotary is further directed to give notice to the parties or their counsel of record of the entry of this decree nisi, who may file exceptions thereto within ten days after such notice, as provided for in Equity Rule 69.

Prom C. M. Clement, Sunbury, Pa.


source: Caselaw Access Project

author: Appel, P. J.,

license: Public Domain

text:
    Hummer’s Estate.

      Robert Ruppin, for petition; Frank S. Groff, for estate.
    March 21, 1929.
   Appel, P. J.,

— This is an application by John P. Hummer, a son, to open the adjudication in the estate of his father, Andrew G. Hummer, who died intestate Dec. 7, 1926. The adjudication was confirmed nisi Nov. 10, 1927. When the confirmation became absolute, the administrator paid the sums, as directed, to those entitled thereto. There are now no funds in the administrator’s hands.

The petition to open the adjudication was filed Dec. 13, 1928. A rule to show cause, etc., was granted. An answer was filed and evidence was produced.

In the adjudication the court found as follows: “John P. Hummer is indebted to the estate in an amount exceeding a share, and will not participate in this distribution.” The indebtedness above referred to was based on a note given by petitioner to his father, dated Feb. 11, 1907, for $95, which was found among the papers of decedent and never paid. Though barred by the statute of limitations, the indebtedness was thought to be admitted by petitioner, and, amounting to more than a share, was properly applied as an offset.

Petitioner now denies he was indebted to the decedent in any amount, and asks the court to open the adjudication for the purpose of restoring to him his share of the inheritance of which he claims to be unjustly deprived. He also avers he “had no notice whatever of the filing of said inventory, of the filing of said account, of the audit thereof, nor had he any notice of the adjudication until after the same had been confirmed absolutely.”

It is a sufficient answer to the last averment to say that all the requirements of the act of assembly and the rules of court as to notice by advertisement were complied with. Petitioner, therefore, had constructive notice. Living all the time in Lancaster County, the evidence shows he also had actual notice of the various stages in the settlement of his father’s estate. As a consequence of the above, the rule to show cause, etc., might well be discharged. Viewing the ease on its merits, the petitioner is not entitled to have the prayer of his petition granted. Though in his petition he “denies that he is or was indebted to said estate in the amount of $95.00, or any amount whatever,” when shown the note he admitted the signature was his own, and that he had never paid it or the debt it represented. His counsel contended that recovery on the note is barred by the statute of limitations and it cannot, therefore, be justly used as an offset against petitioner’s share in the distribution of his father’s estate.

The following facts may be legitimately and fairly found from the evidence: H. K. Wisegarver, justice of the peace, attended to the business affairs of the decedent in his lifetime and also represented the administrator in the settlement of the estate. The note in question was found among decedent’s papers. Early in March, 1927, at the request of the administrator, Wisegarver wrote a letter, a copy of which was produced, notifying petitioner that the estate held a note against him and requested him to make payment on or before April 1st. In response to this letter, petitioner called on Wisegarver, and, in a conversation, admitted he owed the amount of the note, and besides was indebted to his father in a larger amount, and agreed to submit an itemized account of his debt. He also stated he would pay this debt before the 1st of April, and that his father’s estate would never lose a cent. He also told the administrator, upon the occasion of the distribution of some clothing, that he would pay the debt, saying, “the rest (meaning his debt) I will pay between now and April.” There was only one note in existence and the debt referred to is represented by the note in question. Though denied by the petitioner, these facts can fairly be found from the evidence as shown by the note, the testimony of the justice of the peace — a disinterested witness — and of the administrator. In the conversation above referred to, the petitioner admitted the debt and promised to submit a statement and pay before April 1st. This he failed to do. The acknowledgment of the debt and the promise to pay tolls the bar of the statute of limitations, and it was a proper offset.

In Palmer v. Gillespie, 95 Pa. 340, 344, the court said: “It is not essentially necessary that the promise be actual or express, provided the other necessary facts are shown. A clear, distinct and unequivocal acknowledgment of a debt is sufficient to take the case out of the operation of the statute. It must be an admission consistent with a promise to pay. If so, the law will imply the promise, without its having been actually or expressly made.” See, also, Maniatakis’s Estate, 258 Pa. 11, 15; Mitchell, Rec. of Liberty Clay P. Co., 291 Pa. 282, 289; Miller’s Estate, 9 D. & C. 670, 671.

For the two reasons above set forth, the petition to open the adjudication is denied. Rule to show cause, etc., discharged, at the costs of petitioner.

Prom George Ross Eshleman, Lancaster, Pa.


author: Schnader, Special Dep. Att’y-Gen.,

text:
    Relief Funds for Firemen.
    Oct. 22, 1929.
   Schnader, Special Dep. Att’y-Gen.,

— We have your request for an interpretation of the Act of April 25, 1929, P. L. 709.

This act amends section 2 of the Act of June 28, 1895, P. L. 408, as amended, by providing that the State Treasurer shall pay to the treasurers of the respective cities, townships and boroughs within Pennsylvania “. . . the entire net amount received from the 2 per centum tax paid upon premiums by foreign fire insurance companies.” The amount which is to be paid to each local treasurer is to be based upon the return of the 2 per centum tax from foreign fire insurance companies doing business within his respective city, township or borough as shown by the report made to the Department of Revenue.

The 1929 amendment continues by providing that “Each city, borough or township receiving any payment from the State Treasurer hereunder shall forthwith pay the amount received to the Relief Fund Association of the fire department, or of such fire company, or fire companies, paid or volunteer, now existing, or hereafter organized, in such city, borough or township as is or are engaged in the services of such city, borough or township and duly recognized as such by the council or commissioners, as the case may be, of such city, borough or township.”

You state that the Treasurer of Dunbar Township, Fayette County, has received a check from the State Treasurer for $202, but advises that Dunbar Township does not have within it any relief fund association of a fire company to which the check received can be paid as provided by the Act of 1929. The township treasurer desires to know what he shall do with the check— whether he shall pay 50 per centum of it to the road supervisors and 50 per centum to the school district, and, if not, what disposition he shall make of it.

Dunbar Township does not have any right, under the Act of 1929, to make any disposition of the check received from the State Treasurer, except as specifically set forth in the act. If it cannot use the money for the purposes set forth in the act, the check should be returned to the State Treasurer for cancellation.

In this connection, I call your attention to section 403 of the Fiscal Code (Act of April 9, 1929, P. L. 343), under which it would be the duty of your department, upon discovering that Dunbar Township had used this check otherwise than for the purposes set forth in the Act of 1929, immediately to notify the Governor and to decline to approve any further requisition for the payment of any appropriation or any further portion of any State tax to Dunbar Township until $202 — the amount of the check in question — “. . . shall have been expended for the purpose for which the money improperly expended was received from the State Treasurer.”

Under this section of the Fiscal Code, Dunbar Township could not receive any money from the State Treasury for any purpose until it had expended $202, as specifically directed by the Act of April 25, 1929, if it were to use this money for any other purpose.

Clearly, as the township cannot use the money for the purpose specified by the legislature, it is the duty of the township treasurer to return the check to the Commonwealth. He cannot do what the legislature failed to do, namely, make an alternative provision for the use of the money if it cannot be applied as the legislature directed.

From C. P. Addams, Harrisburg, Pa.


author: Fleming, P. J.,

text:
    Commonwealth v. Auman et al.

      John G. Love, District Attorney, for Commonwealth.

      A. C. Dale and S. D. Gettig, for defendants.
    July 11, 1929.
   Fleming, P. J.,

This matter is before the court upon the several motions by the defendants to quash indictments found against them, charging larceny of goods and chattels from numerous hunting camps situated in this county.

The only reason assigned requiring discussion on our part is that whereby it is contended that, inasmuch as it is averred in such indictments that the goods and chattels alleged to have been- stolen were the property of unincorporated associations, naming them, no crime has been alleged, it being the theory of defendants that such unincorporated associations cannot own personal property, and that, therefore, one of the essentials of the crime charged, to wit, the taking of the property of another, does not exist.

We feel that the defendants have been misled in the instant case by a wrong interpretation of our decision in Latrobe Hunting and Fishing Club v. Decker et al. [12 D. & C. 63], Court of Common Pleas of Centre County, Sitting in Equity, wherein we held that a voluntary association, not formed for religious, charitable, literary or scientific purposes, was incapable of receiving title to real estate and dismissed the bill which sought to compel the conveyance of real estate pursuant to an alleged agreement in writing. There is, however, a wide distinction between such case and the instant case. In the Decker case it was a voluntary association seeking to contract and endeavoring to have such alleged contract, which pertained to the conveyance of lands, enforced in chancery. No trust device appeared and we were there asked to do what was legally impossible. Title had not vested either actually or by implication. Real estate was the subject of the controversy and not personalty, as in the instant ease, where all the actual elements of ownership admittedly exist, to wit, delivery, possession, control and right of disposition.

Blackstone defines larceny as the felonious taking and carrying away of the personal goods of another: 2 Sharswood’s Blackstone’s Comm., 229. Corpus Juris enlarges thereon by declaring larceny at common law to be the taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently and 'to convert it to the use of the taker or of some person other than the owner: 36 Corpus Juris, 734.

Counsel for defendants contend that, inasmuch as it is the custom of hunters and sportsmen generally, who reside temporarily in camps, to bring to such camps articles of personal property which have served their purposes in their private homes, the delivery to such camps divests the donor of all ownership therein, and that because the camp is controlled by an unincorporated association, it, the camp, cannot take title to such personal property, and that the personal property from the date of such delivery is devoid of an owner, and that, therefore, none can be charged with stealing it. This is indeed a most unique theory, but one with which we cannot agree and one which is founded in false reasoning.

The property alleged, in the instant case, to have been stolen, is not contended to be the property of the defendants. We must, therefore, conclude it to be the property of “another” in the light of the definitions cited above. The indictment avers it to be the property of the unincorporated association specifically named therein. We have already pointed out that all the elements of ownership are admitted to have existed at the time the crime is alleged to have been committed. Only the theoretical contention that because it was originally the property of one of the individual members of the association but is now used and enjoyed in common by all, it is the property of no one, remains upon which to sustain the contention of the defendants. This we cannot do, if for no other reason than from the standpoint of public policy. Each year more and more of our citizens are turning to the woods for relaxation from their labors. Each year the hunting and fishing camps in our midst are increasing both in number and in value. Protection must be accorded these camps.

When the several members of these hunting camps deliver to their respective associations the articles of personal property used therein, it does not cause such article to- be wholly devoid of an owner, but, on the contrary, the ownership vests in all members of such association. In Orbin v. Stevens, 13 Pa. Superior Ct. 591, a battle-flag had been presented to the 85th Regiment of Pennsylvania Volunteers while in the service of the United States and was the property of the regiment while in the service, and after their discharge came into the custody of one of its survivors. An attempt was made by a group of survivors, other than the survivor who had custody of the flag, to secure it from him. Judge Beaver says: “The defendant is one of the survivors of the regiment and his interest, from a legal standpoint, in the flag is no more than, but is just the same as, that of any other survivor. His right to its custody is no greater than, but just as great as, that of any one of the survivors.” By analogy, we therefore conclude that the same is true as to the ownership of the property alleged to have been stolen in the instant case. The regiment was an unincorporated association following the war. The hunting camp is also admittedly an unincorporated association. The flag was presented to the regiment. So, also, was the property herein alleged to have been stolen. The ownership in the property alleged to have been stolen is in all the members of the hunting camp under the restrictions as stated by Judge Beaver in Orbin v. Stevens, supra. It is yet the property of “another,” as the definition of the crime states.

But defendants contend that the names of the members of the unincorporated association are not stated in the indictment as the owners of the property alleged to have been stolen. Only the name assumed by the association appears. Is this fatal to the indictment? Are the defendants prejudiced by this lack of individual names?

The averment as to ownership in an indictment for larceny is for the purpose of identifying the property: Com. v. Dingman, 26 Pa. Superior Ct. 620. Before the passage of the Act of March 31, 1860, P. L. 382, a variance between ownership averred in the indictment and the proof was fatal: Com. v. Martin, 5 Clark (Pa.), 245. Such variance since the act is amendable: Rosenberger v. Com., 118 Pa. 77; Com. v. Livingston, 5 Dist. R. 666.

In the last cited case the indictment alleged that the goods stolen were the property of J. R. Armstrong, whereas proof was disclosed that the property in fact was owned by Armstrong and Stohl. After defendant closed his testimony, the district attorney asked leave to amend the indictments to include the name of Stohl as one of the owners of the property. This was allowed by the court and a verdict of guilty was returned. In Com. v. Dingman, supra, one of the counts laid the ownership of the property in “divers persons to this grand inquest unknown.” Objection was taken to this form of allegation of ownership, which elicited from the court the statement that the averment as to ownership in an indictment for larceny was only for the purpose of identifying property. We, therefore, conclude that, since the indictment can be amended under the Act of 1860, with reference to the name or description of any person or persons or body politic or corporation therein stated or alleged to be the owner or owners of property stolen, the indictments in the present case are sufficient for the purpose of pleading and can be amended on the trial of the case to include the individual names of all such members of the hunting club as would be disclosed by the Commonwealth’s testimony.

The failure to register the fictitious name of the hunting club according to the provisions of the Act of June 28, 1917, P. L. 645, and its supplements, does not affect the sufficiency of the indictment herein. It has been held that such statute is wholly a penal statute in itself and must be strictly construed and does not cover any case not clearly embraced within its terms: Christy v. Robinson, 2 D. & C. 447.

And now, July 11, 1929, the several motions to quash the several indictments are dismissed.


author: Finletter, P. J.,

text:
    Campbell v. Philadelphia-Bridgeton Bus Company et al.

      A. Friedman, for rule; G. J. Schorr, contra.
    Dec. 4, 1929.
   Finletter, P. J.,

— The plaintiff recovered judgment in an action for damages for personal injuries and issued attachment execution against the casualty company who had insured the defendant against loss occasioned by the operation of a certain automobile.

The pertinent facts are undisputed. They appear by the casualty company’s answers, as garnishee, to interrogatories.

The garnishee’s position is that, under the terms of the policy, no liability attaches to it until the insured defendant has actually paid damages assessed against him for negligence in the operation of the car.

The plaintiff contends that liability arose under the policy when judgment was given against the insured.

Whether or not a policy protects against liability only or against liability followed by payment depends upon the intention of the parties as shown by the contract.

The pertinent clauses in the policy before us are these:

(1) “The company agrees to indemnify the assured against loss or expense arising . . . from claims upon the assured for damages on account of bodily injuries or death accidently suffered ... by reason of the . . . use ... of any of the automobiles, etc.

“No action shall lie against the company to recover for any loss or expense covered by this policy, arising or resulting from claims upon the assured for damages, unless it shall be brought by the assured for loss or expenses actually sustained and paid in money by him after actual trial of the issue, nor unless such action is brought within two years after payment of such loss or expense.”

Accidents shall be immediately reported in writing to the company.

(2) “If suit is brought against the assured to enforce a claim for damages . . . the assured shall immediately forward to the company every summons ... as soon as . . . served upon the assured, and the company will at its own cost defend such suit in the name and on behalf of the assured. The assured whenever requested by the company shall aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals, but the assured shall not voluntarily assume any liability or interfere in any negotiation for settlement, or in any legal proceeding, or incur any expense, or settle any claim, except at assured’s own cost without the written consent of the company previously given. . . .”

(3) “The bankruptcy or insolvency of the named assured shall not relieve the company from payment of such indemnity hereunder as would have been payable but for such bankruptcy or insolvency. If because of such bankruptcy or insolvency an execution on a judgment for damages against the named assured is returned unsatisfied in an action brought by the injured ... an action may be maintained by the injured person . . . against the company subject to the terms of this policy for the amount of such judgment not exceeding the amount of this policy.”

The company exercised its right to defend the action for damages and appeared by its own counsel, who conducted the trial.

The plaintiff caused a writ of fi. fa. to be issued against the defendant, and this was returned “nulla bona.”

What was the intent of the parties? We have the benefit of many decisions in similar cases. No difficulty arises in such cases as Pfeiler v. Penn Allen Co., 240 Pa. 468, where the only provision on the subject of liability was “no action shall lie against the company . . . unless for loss actually sustained and paid in money.”

Frequently, however, the language used is less explicit and it becomes necessary to consider the document more particularly in the effort to ascertain the essential fact, to wit, the intention of the parties. The ordinary rules for the interpretation of contracts, of course, apply, and, in particular, that which provides that where a contract is prepared by one of the parties, doubtful language is to be interpreted against the draftsman: 32 Corpus Juris, 1147; Krebs v. Philadelphia Life Ins. Co., 249 Pa. 330; McGinnis v. St. Paul, etc., Ins. Co., 38 Pa. Superior Ct. 390.

A similar question was before us in Moses v. Ferrel, and passed upon later by the Superior Court [97 Pa. Superior Ct. 13], Since then the Supreme Court has also passed upon it in Malley v. American Indemnity Co., 297 Pa. 216, and Rose v. Zurick, etc., Co., 296 Pa. 206. Earlier cases were Pfeiler v. Penn Allen Co., 240 Pa. 468, and Fritchie v. Miller’s Extract Co., 197 Pa. 401.

Necessarily each case was governed by the language of the policy involved. All have one or more of three classes of provisions: (1) A general clause defining liability; (2) provisions that the insurance company shall have control of the action brought against the assured, of settlement, and of negotiations with the injured plaintiff, similar to clause (2) in the policy before us; (3) a provision giving the injured plaintiff an action against the insurance company if the defendant in the damage suit is insolvent or bankrupt — like clause (3) of the policy before us.

The variations of the first provision are many, from one expressly requiring payment of money to raise liability to phrases indicating clearly a liability on the policy immediately upon judgment against the insured in the damage suit.

In Pfeiler v. Penn Allen Co. (supra) there was nothing but the first clause, which expressly based liability upon payment. This clear expression was not clouded or made doubtful by clauses like (2) and (3) above.

In Rose v. Zurick Gen., etc., Co., 296 Pa. 206, clause (1) was an insurance “against loss from liability imposed by law upon the assured for damages on account of bodily injuries.” The policy also contained clause (3) above. The report contains no reference to the existence of such a clause as (2). It was contended by the insurance company that it was liable only on payment.

Mr. Justice Kephart said: “No right of action accrues, in a simple contract of indemnity, until the indemnitee has suffered a loss against which the covenant runs. The party protected cannot recover until he has actually been damnified. But though the present policy was ‘to indemnify the insured against loss,’ paragraph (3) broadens the normal effect of these words. . . . By the words ‘insolvency or bankruptcy do not release the company from payment, . . . but an action may be maintained by the claimant,’ the contract clearly recognizes indemnity alone was not intended; if loss was made certain by suit, . . . yet, as the insolvency or bankruptcy of the insured might defeat the purpose of the hazard either through payment to him directly or to his trustee, it was no doubt because of this possibility the right to recover under the policy was in positive terms transferred from the insured to the claimant.”

We gather from the above that it was the opinion of the court that clause (1), taken alone, imposed a liability on the insurance company only when the insured suffered a loss by payment of the judgment, but that the effect of clause (3) was to “broaden the normal effect of clause (1).” But it was held that clause (1) was also for the benefit of the insured and protected him against the “continuing liability of the judgment.” After judgment, “the insured could sue the company.” If the insured were bankrupt, “the claimant could sue the company.”

In Malley v. American Indemnity Co. (supra), clause (1) read: The company “agree to indemnify (the insured) . . . against loss or expense by reason of the liability imposed by law upon the insured for damages on account of bodily injuries or death, etc.” The policy also contained a clause like clause (2) above. The opinion does not speak of a bankruptcy clause (3). This case was heard upon a petition by the assured under the Declaratory Judgments Act. The assured had not paid the judgment, and it was contended by the company that its liability on the policy did not arise until actual payment. It was held by the Supreme Court that the effect of clause (2) was to impose liability under the policy immediately upon the rendition of the judgment and without payment having been made.

Mr. Justice Sadler said:

“There are two types of indemnity insurance, sometimes called indemnity against liability or ‘liability contracts’ and indemnity against damage or ‘indemnity contracts.’ In the first class, the liability of the insured determines enforceability; in the other, the policy in only enforceable when the insured has sustained actual loss, as by paying a judgment against him coming within the scope of the policy. The class into which particular policies fall depends on the intention of the parties as shown by their contract: Pfeiler v. Penn Allen P. Cement Co., 240 Pa. 468; Fritchie v. Miller’s Extract Co., 197 Pa. 401.

“Where the policy, indemnifying insured against loss arising out of legal liability, provides that the insured shall immediately notify the company in case of injury and the company will defend all suits growing out of injuries, in the name of the insured, and insured will not settle any claim without consent of the company, it is usually held to be a policy of indemnity against liability for damages or an indemnity against liability, and is not a mere contract of indemnity against damages: Fentress v. Rutledge, 140 Va. 685, 125 S. E. Repr. 668; Blanton v. Cotton Mills, 103 Kan. 118, 172 Pac. Repr. 987, L. R. A. (1918 E) 542; Ravenswood Hospital v. Maryland Casualty Co., 280 Ill. 103, 117 N. E. Repr. 485, and cases cited therein; 48 L. R. A. (N. S.) 184, 36 Corpus Juris, 1057. Where the policy contains a clause requiring an actual payment of money by the insured, then, of course, no liability attaches, unless a monetary loss has actually been sustained, under the plain words of the contract: Pfeiler v. Penn Allen Cement Co., 240 Pa. 468; Boling v. Ash-bridge, 111 Okla. 66, 238 Pac. Repr. 421; Combs v. Hunt, 146 Va. 627, 125 S. E. Repr. 661, and the numerous cases there cited. But even in the latter case, an action against the company has been allowed before payment where the company has actually come in and defended the suit: Patterson v. Adan, 119 Minn. 308, 138 N. W. Repr. 281.

“The principle is thus adequately expressed in the last-named case: ‘By undertaking the defense, the company elected to treat plaintiff’s cause of action, if he had any, as covered by its contract; and when it substituted itself and its judgment for that of the defendant, both plaintiff and defendant have a right to insist that the filial judgment establishes the liability and debt of the company to the assured. The undertaking to defend is of no value, and may be of great danger, to the assured, where he thus abandons all control of the suit to the company if it does not mean that whatever liability is established shall be discharged. The company admits that where the assured is perfectly solvent the practice of the company is to carry the defense to a successful issue by paying the judgment without waiting for the assured to pay it. It is even more important to an assured who is in financial stress that •no judgment be allowed to stand unsatisfied against him than it is to one who has abundant means to satisfy it with.’ Consequently, in such cases, after recovery of a judgment against the insured, the party injured may have a remedy against the company by garnishee process or by resort to a suit in equity: Fentress v. Rutledge, supra; Reilly v. Linden, 151 Minn. 1, 186 N. W. Repr. 121; Capelle v. U. S. Fidelity Co., 80 N. H. 481, 120 Atl. Repr. 556; Huddy on Automobiles (8th ed.), § 1051.”

It was conceded in the above case that, “ordinarily, actual payment on an indemnity policy may be necessary before recovery,” but it was argued that the insurance company, by assuming entire charge of the litigation, adopted the insured’s liability. This proposition was affirmed by the Supreme Court.

In Moses v. Ferrell, supra, the insured was “indemnified against loss occasioned by the ownership or operation” of his automobile. The policy contained clause (2). The company conducted the trial of the damage suit. It was held, under the authority of the Malley case, that the insurance company was liable.

These cases rule the case at bar. The policies differ in these respects: In Rose v. Zurick Gen., etc., Co., clauses (1) and (3) only were present, and insolvency (clause 3) was alleged. In Malley v. American Indemnity Co., clauses (1) and (2) were alone present, or at least were alone discussed. In Pfeiler v. Penn Allen Company, clause (1), expressly basing liability on “payment,” was alone present. In Patterson v. Adan, 116 Minn. 308, cited with approval in the Malley case, clause (1) expressly required payment, but clause (2) was held to impose liability, if in fact the insurance company conducted the defense.

In the caes at bar, clause (1) required payment; clause (2) and clause (3) both are present.

The situation is identical with that of the Malley case, except that in the latter the basis of liability upon payment is inferential,, while in the case at bar it is express. We cannot see that any logical difference exists. The effect of clause (2) upon both should be the same.

We, therefore, make the rule absolute and adjudge that the garnishee, Commonwealth Casualty Company, has in its hands moneys of the defendant, Philadelphia-Bridgeton Bus Company, in the sum of $882.91, which (less $13.50 hereby allowed the garnishee for counsel fees and costs), is subject to the plaintiff’s attachment.


author: Kun, J.,

text:
    Abraham Rosenblatt Building and Loan Ass’n v. Miller et al.

      Joseph H. Sundheim (of Bernheimer & Sundheim), for petitioner.

      Judah Zelitch (of Aarons, Weinstein & Stone), contra.
    Dec. 31, 1929.
   Kun, J.,

— This is a novel proceeding. Plaintiff association, holder of a second mortgage executed by the defendants on property owned by them, instituted foreclosure proceedings in the regular way on account of certain defaults. Pending the sale of the mortgaged property, the plaintiff filed a petition for the appointment of a receiver to take charge of the premises, to collect the rents and profits therefrom, to be disposed of as may be directed by the court. In one part of the petition, it is averred that the property was being conducted by the defendants as a garage; in another part that they are receiving the rents, issues and profits from the property, but are not applying them to the payment of taxes and interest on the mortgage. The petitioner alleges that it was obliged to make a payment on account of interest on a prior lien on the premises.

It is also alleged that the defendants are insolvent, and, due to mismanagement of the property by them, the premises have so decreased in value that they would be insufficient to pay the taxes and the mortgage debt.

An answer was filed by the defendants substantially denying the averments in the petition, but really raising the legal question of the right of the court to appoint a receiver such as prayed for under the allegations of the petition.

It is to be borne in mind that this is not a creditors’ bill in equity for the appointment of a receiver, but is an application by petition ancillary to foreclosure proceedings pending at law, seeking what, in effect, amounts to a sequestration of the profits of the business of the defendants conducted at the mortgaged premises, since there are, strictly speaking, no rents issuing out of the premises, the defendants, mortgagors, being, as alleged in the petition, in possession of the premises and conducting business therein.

The court knows of no legal authority for the appointment of a receiver in these circumstances. Even were this a ease in which the mortgaged premises were rented and defendants were collecting the rents, there would be no authority in this proceeding for the appointment of a receiver as prayed for.

In all the eases to which the court has been referred in which receivers for mortgaged premises have been appointed, it appears proceedings were by bill in equity seeking relief against waste of the mortgaged property itself, or where the principal debtor was a corporation and the mortgage covered the entire plant, machinery and tools used in the business and a receiver was appointed to continue the business to preserve the property (The First National Bank v. Detroit Trust Co., 248 Fed. Repr. 18; Broad and Market National Bank v. Larson, 102 Atl. Repr. 265; Pacific Northwest Packing Co. v. Allen, 109 Fed. Repr. 515), or cases in which the mortgage covered rents, issues and profits (Grether v. Nick, 193 Wis. 503; Equitable Trust Co. v. Port Wentworth Terminal Corp., 281 Fed. Repr. 883; Bussard v. Parker (Supreme Court of Iowa), 198 N. W. Repr. 490), or where the appointment of a receiver in these circumstances was pursuant to specific statutory authority: Leader Publishing Co. v. Grant Trust and Savings Co., 182 Ind. 651; Baker v. Varney, 129 Cal. 564.

Indeed, in the latter case, the initial appointment of a receiver was declared to be void because the facts did not come within the statute, the court pointing out that, prior to the enactment of the statute, it had been definitely determined in that state (California) “that in a foreclosure suit the court had no power to appoint a receiver to collect the rents and profits pending the litigation” (page (565). No doubt, if a case of actual waste of the mortgaged premises were presented, a restraining order might issue to prevent the destruction or impairment of the premises, but it certainly is a strange construction to hold that mere non-payment of taxes and failure of the mortgagor to apply rents in payment of the mortgage constitute waste as understood in the law. The furthest that any of the courts have gone in that direction are those of Minnesota, although in Nielsen v. Heald, 151 Minn. 181, the court recognized that “plaintiff . . . had the burden of proving, by clear and convincing evidence, that his security had become impaired by waste caused or permitted by the defendant.” In a later case, Larson v. Orfield, 155. Minn. 285, the court appointed a receiver because it held there was an impairment of the mortgaged property, an apartment building, which was neglected and fell into disrepair, producing a deterioration in value and resulting in loss of tenants. This the court held to be waste.

In a later case, National Bank v. Reno, 172 Minn. 193, after the court said it was true that a non-payment of taxes and interest on prior encumbrances alone does not justify the appointment of a receiver at the instance of a second mortgagee* it concluded by saying that such omissions have been considered in that state in the nature of waste when taken in connection with insolvency of the owner of the premises (page 197). This, it seems to me, is an extreme view, which lacks support in the doctrine of waste, upon which it is ostensibly based, there being no other basis in the law for it. Indeed, the Minnesota courts seem to have receded somewhat from their former position, one of their last cases holding that, under the ordinary mortgage on Minnesota real estate, a receiver could not be appointed to collect rents and profits and apply them on delinquent taxes or interest: John Hancock Mutual Life Ins. Co. v. Meester, 216 N. W. Repr. 329 (Minn., 1927).

That it is the doctrine of waste or impairment of the mortgaged premises which is the real basis of the appointment of a receiver in those jurisdictions where such an appointment is made is indicated by the ruling that rents and profits collected by the receiver pending the litigation and up to the time of sale are payable to the holder of the legal title: Gerber v. Heath, 92 Wash. 519; likewise, when a mortgagor has been restrained from collecting the rents and they had been collected by an agent for the mortgagor: Wyckoff v. Scofield, 98 N. Y. 475. Indeed, even where a mortgage covers rents, issues and profits, it is held to be a lien on the land only, and such words apply only to rents after the mortgagee has taken possession, and until that time they belong to the mortgagor: Myers v. Brown, 92 N. J. Eq. 348.

After all, waste in common law is spoil or destruction committed in houses or other corporeal hereditaments to the injury of one who has the remainder or reversion in fee. It may be actual, as pulling down a house, or permissive, 'in suffering a house to fall down for want of repairs: McCullough v. Irvine’s Exec’rs, 13 Pa. 438, 440.

Equitable waste is defined to be such acts as work manifest injury to the inheritance, although they are not inconsistent with the legal rights of the party who commits them, or, in other words, an imprudent management of property to the prejudice of the remainderman: 40 Cyc., 499, and cases cited.

The doctrine has been extended to enure to the benefit of a mortgagee or other legal holder, but to entitle a party to such a remedy as is sought in this ease, either waste or equitable waste of the mortgaged premises would have to be shown. I cannot follow the extension of the doctrine of waste of mortgaged premises to include the failure of the mortgagor to apply the rents of the mortgaged premises to the payment of taxes and mortgage interest. Such a right could be predicated only on the assumption that the mortgagee is entitled to the rents of the mortgaged premises. The law is otherwise: 41 Corpus Juris, 627; Bindseil v. Liberty Trust Co., 41 Am. Bank Reps. 454 (C. C. A. 3rd Cir.); Gerber v. Heath, Wyckoff v. Scofield, supra; Talbot’s Appeal, 2 Walk. 67.

There is also no point in the proposition that the petitioner was compelled to pay interest on a prior mortgage to prevent its foreclosure. This did not give petitioner an equitable lien on the profits: Wilsford v. Johnson (Miss.), 105 So. Repr. 736.

While the direct question has never been raised in Pennsylvania, so far as any reported case discloses, my attention has been called to the case of Mastbaum et al. v. Reichell et al. (C. P. No. 4, Phila. Co., December Term, 1911, No. 4387), in which a similar application was made to the court and refused by Judge Audenried, although no opinion was filed. The ruling of the court was entirely justified by the law on the subject-matter in this State. To begin with, courts in Pennsylvania have no jurisdiction in equity to decree a sale of mortgaged premises at the instance of the mortgagee. The foreclosure proceedings are at law under statute: Ashhurst et al. v. The Montour Iron Co., 35 Pa. 30. It is true that if the court has properly acquired equitable jurisdiction in a case and such a sale becomes incidental to the cause, a sale may be ordered, but that, of course, is another matter: Morss’s Appeal, 97 Pa. 385, 395.

Then again, as stated in Myers v. White, 1 Rawle, 354, “there has been an essential departure from the law of England in Pennsylvania, for the mortgagee has no estate, property or interest in the land until he takes possession of the property. Nor has it . . . ever been understood that such a privity exists, as that a mortgagee can compel the tenant of the mortgagor to pay him the rent, whether the lease was executed either before or after the mortgage. ... In Pennsylvania, a mortgage, as has been held in repeated decisions, although in form an absolute conveyance, is, in substance, but the security for a debt. The mortgagor is the owner of the land, with the same power over it as any other tenant in fee, with encumbrances or liens upon the property.” So that in Pennsylvania the conclusion does not depend on the form of the action, but follows from our conception of the mortgage. Indeed, even in equity a conveyance, in whatever its form, is treated as a mortgage whenever it appears to have been taken as security for a loan, and although the proceedings are in equity, the legal position of the parties is not changed. The equitable mortgagee has no estate, property or interest in the land until he takes possession, and a mortgagor is not liable to account for rents and profits before the sale of the mortgaged premises: Talbot’s Appeal, 2 Walk. 67 (affirming Talbot v. Chester, 2 Ches. Co. Reps. 57).

Indeed, under section 119 of the Execution Act of June 16, 1836, P. L. 755 (2 P. & L. Dig. of Laws, col. 3501, pl. 194, 2nd ed.), a purchaser of land sold at sheriff’s sale does not become entitled to recover rents until the acknowledgment of a sheriff’s deed. Prior to that time, the terre-tenant, or the owner as whose land the property is sold under execution, is entitled to receive the rents.

Counsel for the petitioner has referred the court to the case of Balaben et al. v. Feinberg et al. (C. P. No. 5, Phila. Co., September Term, 1926, No. 4825), in which the court appointed a receiver, but that was on a bill in equity in which a number of corporations were named as defendants. It was not a foreclosure proceeding. As has been pointed out, there is no jurisdiction in equity in this State to decree a foreclosure as such. Also, it is well established that the appointment of a receiver can be done only by a bill in equity, and such an appointment is the exercise of a power in aid of the equity proceeding: Oil Co. v. U. S. Petroleum Co., 57 Pa. 83. It has been decided that there is no jurisdiction even in equity to appoint a receiver to collect rent of lands in possession of the defendant. The remedy is at law: Schlecht’s Appeal, 60 Pa. 172.

In the case before the court, moreover, as has been shown, the defendant mortgagors are entitled to the rents and profits of the mortgaged premises until they are sold in the foreclosure proceedings and deed to the purchaser is acknowledged. It is clear, therefore, that the prayer of the petitioner for the appointment of a receiver to collect the rents and profits of the mortgaged premises pending the foreclosure proceedings cannot be granted, whether the petition be regarded, as in fact it is, merely ancillary to the foreclosure proceedings or regarded as in the nature of a bill in'equity.

Whether in exceptional circumstances it would be advisable to have a sequestration of the rents of mortgaged premises during foreclosure proceedings is a subject which the legislature might well consider, but, in the absence of legislative sanction, there is no authority in the law for such action.

The rule for the appointment of a receiver is discharged.


author: Groff, J.,

text:
    Jordan v. H. M. Musser & Co.

      Harold G. Ripple and Charles W. Eaby, for plaintiff.

      John E. Malone, for defendant.
    April 13, 1929.
   Groff, J.,

— In this case the plaintiff brings a suit in the Court of Common Pleas to recover for tuberculosis contracted while in the employ of the defendant, claiming that his disease resulted from the preparation and application of lacquer, which was used in his department for the purpose of coating and painting umbrella handles.

Defendant, in reply to this statement, filed an affidavit of defense raising two questions of law: “First. If the plaintiff has a remedy, it is not an action at law, but under the terms of the Workmen’s Compensation Act. Second. Even if plaintiff had a remedy at law, the statement filed in the ease shows that the injury complained of was a risk known and obvious and likewise incident to the employment.”

Is the defendant’s contention correct? Must the plaintiff proceed under the Workmen’s Compensation Act?

Section 301, article hi, of the Workmen’s Compensation Act of June 2, 1915, P. L. 738, is as follows: “When employer and employee shall by agreement, either express or implied, as hereinafter provided, accept the provisions of article HI of this act, compensation for personal injury to, or for the death of, such employee, by an accident, in the course of his employment, shall be made in all cases by the employer, without regard to negligence, according to the schedule contained in section 306. . . And section 302 (a) provides: “In every contract of hiring made after December thirty-first, one thousand nine hundred and fifteen, and in every contract of hiring renewed or extended by mutual consent, express or implied, after said date, it shall be conclusively presumed that the parties have accepted the provisions of article III of this act, and have agreed to be bound thereby, unless there be, at the time of the making, renewal or extension of such contract, an express statement in writing, from either party to the other, that the provisions of article ill of this act are not intended to apply, and unless a true copy of such written statement, accompanied by proof of service thereof upon the other party, setting forth under oath or affirmation the time, place and manner of such service, be filed with the hureau within ten days after such service, and before any accident has occurred. . . .”

It is, therefore, clear that the party having been employed by the defendant, and having worked in his place of business for a considerable time, did accept his employment under the provisions of sections 301 and 302 (a), article ill, of the Workmen’s Compensation Act. There is nothing in the statement filed in this case that would remove him from the provisions of the act or give him relief in a common law action. He is, under the allegations of his statement, and under the provisions of the law above quoted, bound to seek his remedy in the courts provided by the Workmen’s Compensation Act.

This view of the law is sustained in the clear and concise opinion of Mr. Chief Justice Brown, in Anderson v. Carnegie Steel Co., 255 Pa. 33, 36.

It was held in Liberato v. Royer and Herr, 81 Pa. Superior Ct. 403, that: “The Workmen’s Compensation Act authorized employer and employee to agree upon a system of compensation for injuries sustained in the course of employment;” and that “when an employer and employee acepts the provisions of the Workmen’s Compensation Act in the manner therein provided, their relations become contractual and their rights are to be determined by their agreement. . . .” This same doctrine is affirmed in Smith et al. v. The Yellow Cab Co., 87 Pa. Superior Ct. 143.

The case of Good v. Intercourse Electric Light Co., 38 Lane. Law Rev. 465, is not in point, that having been decided for reasons which do not arise in this case.

The other question that arose in the court’s mind was whether or not this was such an injury as was covered by the Compensation Act. The second paragraph of section 301, article ill, of the Workmen’s Compensation Act of June 2, 1915, P. L. 738, says: “The terms injury and personal injury as used in this act shall he construed to mean only violence to the physical structure of the body, and such disease or infection as naturally results therefrom;” but an examination of the cases leads us to believe that the facts set forth in the plaintiff’s statement bring this case within the act.

The following cases have been held to-be within the said act:

“Coming in contact with halo-wax, or the gases arising from it, resulting in skin disease, is violence to the body within the act:” Vukmirovic v. Westinghouse Co., 66 Pitts. L. J. 53.

“Anthrax contracted through handling hides is violence to the physical structure within the act:” Smith v. Sones, 16 Pa. Justices’Law Repr. 169.

“Dermatitis contracted through handling hides containing poisonous chemical has been held ari accident under this act:” Roller v. Drueding Bros. Co., 45 Pa. C. C. Reps. 117; 26 Dist. R. 85.

The second paragraph of section 301 of the Compensation Act, above cited, is broad enough to cover the injury here complained of, which, in our mind, is a proper subject for the compensation court, and which, for the reasons we have hereinbefore stated, removes it from the jurisdiction of the Court of Common Pleas.

We, therefore, decide that the first question of law raised in the affidavit of defense disposes of the whole claim. The court, therefore, enters judgment for the defendant on the first question of law raised in the affidavit of defense. The second question of law raised will not be discussed in this opinion.

From George Ross Eshleman, Lancaster, Pa.


author: Niles, P. J.,

text:
    Gitt v. Hoke et al.

      A. J. Hershey, for plaintiff; Schmidt, Keesey, Stair & Kurtz, for defendants.
    June 17, 1929.
   Niles, P. J.,

— The issue presented is one of law.

It is admitted that prior to Dec. 8, 1927, H. E. Hoke was trading under the name of Centre Shaft Penholder Company, at Hanover, Pa., engaged in the manufacture and sale of penholders and can openers, owning machinery, materials, finished products in the form of penholders and can openers, goods, wares, merchandise and fixtures; accounts receivable for merchandise and products of his manufacturing plant, office furniture and equipment; also patents covering certain features of his products, all valued at $21,000. That on said Dec. 8, 1927, H. E. Hoke sold, assigned and delivered all of the above-mentioned property to E. S. Wood in bulk and out of the ordinary course of business, who purchased the same for the Centre Shaft Penholder Company, then about to be incorporated.

Plaintiff claiming to be a creditor of H. E. Hoke, and alleging that defendants did not comply with the requirements of the Act of May 23, 1919, P. L. 262, and amendments, in that they failed to demand and receive from Hoke the written statement, etc., required by the act, prays that defendants be adjudged liable to the creditors of Hoke as receivers, pay into court the fair value of the property assigned, and that the court make distribution to the creditors in accordance with the provisions of said act of assembly.

On behalf of the defendants, it is urged that the Bulk Sales Act of 1919, being in derogation of the common law and in restraint of trade and the alienation of property, is to be strictly construed; and that so considered its provisions do not apply to such a sale as in this case by a manufacturer of all the tools, property and fixtures of his manufacturing business. Defendants’ theory is that the provisions of the act should be confined to the bulk sale of a stock of merchandise and fixtures pertaining to the vendor’s business of merchandising in the sense of buying and selling goods manufactured by others.

In considering similar phraseology of the Act of March 28, 1905, P. L. 62, the Superior Court, in Wilson v. Edwards, 32 Pa. Superior Ct. 295, concluded that the stock of goods, wares or merchandise, the sale of which in bulk out of the ordinary course of business was regulated, was commodities traded in by merchants and at the time of sale bearing the character of a stock of merchandise. This construction was incidentally approved by the Supreme Court in the case of Northrop v. Finn Construction Co., 260 Pa. 15, where, in the opinion of Mr. Justice Walling, it is said: “The Act of March 28, 1905, P. L. 62, making voidable certain sales of merchandise and fixtures in bulk, is not applicable to this case; as the property of Finn transferred to the corporation consisted of horses, carts, hoisting machinery, etc., such as constituted a builder’s equipment, was neither merchandise nor fixtures within the meaning of the act.” This construction has been followed by the nisi prius courts. In Northumberland County, in Hull v. Roughton, 27 Dist. R. 694, Judge Mosser considered the subject. That case was upon a bill for specific performance by the vendor of a garage, with the cars, goods and chattels therein, which the evidence showed were originally bought by the vendor for the purpose of being sold to his various customers. The vendee refused to pay the price because of the vendor’s failure to furnish the list of creditors and comply with the other requirements of the Act of 1905, as he had agreed to do. The decision was based upon the admitted fact that the property sold in bulk was a stock of merchandise and not the product of a manufacturing plant. The bill was dismissed because under the peculiar circumstances of that case the court held the plaintiff not to be entitled to equitable relief. In Lackawanna County, in the case of Cressman’s Sons v. Haas, 26 Dist. R. 812, Judge Newcomb ruled that the sale in bulk of the lease, trade, good-will, furniture, fixtures and supplies on hand of a restaurant was not within the scope of the statute because the business was not merchandising in any legitimate sense of the term, the act being distinctly aimed at the stock and equipment of a merchant, and to extend its meaning by the mere force of construction so as to include other property would be unwarranted. Judge Newcomb cites the previous decision in Butler County of Kemp v. Corbin, 22 Dist. R. 215, in which President Judge Galbraith ruled that the Bulk Sales Act applies only to goods bought by a merchant for the purpose of selling in the conduct of his business as a merchant, and not to the furniture of various kinds ordinarily used in the conduct of a hotel. In Fayette County, in Miller v. Lincoln, 25 Dist. R. 549, President Judge Van Swearingen ruled that the personal property used by a liveryman does not constitute a stock of merchandise and fixtures within the meaning of the Bulk Sales Act. In that case, the vendor did not have the articles on hand for sale; he had them for usé. In the case of Mervine v. Indian Queen Hotel Corp., 11 D. & C. 353, arising under the Bulk Sales Act of May 23, 1919, P. L. 262, Searle, P. J., of the 23rd judicial district, presiding in Monroe County, reviewed with careful consideration the Pennsylvania cases on the subject and came to the conclusion that the act does not apply to the bulk sale of the fixtures and furniture of a hotel. We are convinced of the soundness of his reasoning and conclusion.

In our case, the vendor did have articles for sale. But defendants insist that in order to bring a transaction within the Bulk Sales Act the property involved must be such as has been bought for the purpose of selling again in the ordinary course of the business of merchandising, and that it does not apply to a manufacturer who, although he does sell his product, has not bought it elsewhere for resale in substantially the condition when purchased by him.

In other jurisdictions similar acts have been construed as applicable only to such stock of merchandise and fixtures or equipment pertaining thereto as a merchant, not a manufacturer, has for sale in his business of merchandising.

The decisions in Pennsylvania are in harmony with the reasoning of those in other states and lead to the conclusion that the sale attacked by this bill is not such a transaction as comes within the requirements of the Bulk Sales Act of May 23, 1919, P. L. 262. Section 5 of that act defines the kind of sale contemplated to be of merchandise and fixtures otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller’s business.

Our opinion being that the sale attacked is not within the contemplation of the act, the legal question raised by the pleadings and the stipulation is decided for defendants on the ground that said Act of 1919 does not apply to the transaction set forth in the bill as amplified and amended by the stipulation.

And now, to wit, June 27, 1929, in accordance with the foregoing opinion, the bill is dismissed and an exception noted for plaintiff.

From Richard E. Cochran, York, Pa.


author: Iobst, J.,

text:
    Manley v. State Workmen’s Insurance Fund.

      John H. Diefenderfer, for claimant; Ralph H. Behney, for defendant.
    June 17, 1929.
   Iobst, J.,

— This is an appeal by and on behalf of the defendant from the decision and order of the Workmen’s Compensation Board rendered March 21, 1929', in which decision claimant was awarded compensation.

Clara E. Manley was engaged as a chambermaid by the Allentown State Hospital at wages of $45 per month and received her board and lodging. She was so engaged on March 30, 1928, when she became ill at the hospital and complained to the housekeeper of the hospital of her condition. She was put to bed and given a careful physical examination by one of the doctors of the medical staff of the hospital. Dr. Henry I. Klopp, the Superintendent of the State Hospital, and the doctor who made the X-ray examination were of the opinion that she had a beginning tuberculosis. Under instructions of Dr. Klopp, she was brought to the clinic at the Sacred Heart Hospital at Allentown on the afternoon of April 23rd for examination. She was accompanied to the hospital by Dr. Blew, a member of the medical staff of the Allentown State Hospital, and one of the housekeepers of said institution. When about to leave the Sacred Heart Hospital and while still in the care of Dr. Blew and the housekeeper, she fell and fractured her left leg. The referee found that the claimant sustained the injury while in the employ of the Allentown State Hospital and awarded her compensation in the amount of $354.59. Upon appeal, the award of the referee was affirmed by the Workmen’s Compensation Board. It is the contention of the appellant that the claimant, at the time she suffered these injuries, was not actually engaged in furthering the business or affairs of her employer. The power of the court is clearly outlined by Chief Justice Moschzisker in the case of Vorbnoff v. Mesta Machine Co. et al., 286 Pa. 199. The court there says: “The act means that, on appeal, the courts may examine the proofs to see whether legally competent evidence is present on the record to support the findings on which the award rests; it does not mean that the evidence may be weighed as to its probative force in fact, and the findings changed by the court according to its belief in that respect. . . . Briefly, it comes to this, the compensation authorities are to decide all questions of fact and the courts are to decide those of law.” Upon an examination of this record, we find sufficient proofs to support the findings of fact. The question whether claimant was engaged in the “furtherance of the business or affairs of her employer,” that is, “in the course of her employment,” at the time she received the injury complained of, has been held as one of fact; but more recent decisions hold that such findings are also in the nature of conclusions of law and are reviewable as such: Callihan v. Montgomery, 272 Pa. 56, 60. “What constitutes injury or death by accident in the course of employment and who is an employee within the meaning of the compensation law are defined in article ill, section 301, and article I, section 104, of that act, the latter definition expressly excluding those whose employment is ‘casual in character and not in the regular course of the business of the employer.’ The ultimate determination of the applicability of these definitions under any given state of facts, therefore, depends upon the interpretation or construction of the act, and is a question of law:” Callihan v. Montgomery, supra.

In order to come within the act, an injury to an employee need not arise out of his employment; all that is necessary is that it occur in the course of that employment, and this includes all such injuries, except those caused by the intentional acts of third parties, done for reasons personal to the employee and not directed against the employer, and self-inflicted injuries. The fact that claimant might have been guilty of contributory negligence is immaterial. See Dzikowska v. Steel Co., 259 Pa. 578, 583. In Knorr v. Central R. R. of New Jersey, 268 Pa. 172, 175, the court held that one furnished with free transportation to and from his work was still engaged in his general employment during such transportation, albeit he stopped off a short period on the way home to transact some personal business, and sustained an award of eompensation. In the case of Blouss v. D., L. & W. R. R. Co., 73 Pa. Superior Ct. 95, 97, Mr. Justice Keller, for the court, says: “Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen’s Compensation Acts, though they are only indirectly conducive to the purpose of the employment. Consequently, no break in the employment is caused by the mere fact that the workman is ministering to his personal comfort or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshments, food or fresh air, or to rest in the shade.” While it is true that the claimant’s visit to the Sacred Heart Hospital was for the benefit of her health, nevertheless she was directed to go to that particular institution by her employer, who evidently desired her to receive proper treatment so that her services might be retained at the State institution. The choice of the Sacred Heart Hospital was not her own. That institution was the choice of the Superintendent of the State Hospital, Dr. Klopp, who personally supervised her removal to that institution for examination. We must conclude that claimant suffered injury while in the course of her employment.

Decree of court.

Now, June 10, 1929', the appeal is dismissed. The award of compensation to the.claimant by the Workmen’s Compensation Board is affirmed and judgment is hereby entered in favor of the claimant and against the defendant in the sum of $354.59, due as of Aug. 14, 1928, and compensation thereafter at the rate of $12.19 a week until there is a change in claimant’s disability, or until it entirely ceases, or until she will have been paid the maximum amount of compensation for such disability. Costs to be paid by the defendant.

From Edwin H. Kohler, Allentown, Pa.


author: Hicks, J.,

text:
    Derringe v. Walton et al.

      P. H. Burke and M. M. Burke, for petitioner.

      C. E. Berger, for respondents.
    Aug. 26, 1929.
   Hicks, J.,

— Edward Derringe, the petitioner, filed nomination petitions for the office of School Director in West Mahanoy Township on both the Republican and Democratic tickets to be voted upon at the fall primary to be held on Sept. 17, 1929. On Aug. 20, 1929, his withdrawal as a candidate in writing, signed and “sworn to,” was presented to the county-commissioners, who refused to permit the withdrawal upon the ground that Aug. 19, 1929, was the last day for the filing of withdrawals. Thereupon, a petition being presented therefor, a rule was awarded by this court, directed to the respondents, to show cause why the withdrawal “should not be filed” and “petitioner’s name be withheld from printing for said office for the election on September 17, 1929.” No answer was filed.

Only one question was argued by counsel for both parties in their written briefs (no oral argument being had) : whether Aug. 19, 1929, was the last day for filing withdrawals? It is urged by the petitioner that Aug. 20, 1929, was the last day, based upon his assertion that Aug. 13, 1929, was the last day for filing nomination petitions.

Nothing can result from whatever conclusion may be reached in this case on this question except to add to the utter confusion, seemingly hopeless, which already exists in the law of this State relating to the computation of time, as will readily appear by a study of the cases herein referred to. This seems to have arisen in applying an arbitrary rule of interpretation, no matter how clear the meaning of the words used to denote a period of time.

To determine when the last day was for filing withdrawals, one must first determine the last day for filing nomination petitions, because section 2 of the amendatory Act of April 29, 1925, P. L. 361, 363, authorizes candidates to withdraw “at any time before 4 o’clock of the seventh day next succeeding the last day fixed for filing nomination petitions.” Petitioner admits, at least inferentially, that if Aug. 12, 1929, was the last day for filing nomination petitions, then his withdrawal was presented too late. When was the last day for filing nomination petitions?

The Act of April 23, 1927, P. L. 373, requires that petitions for nominations, which must be filed with the county commissioners, shall be filed “at least five weeks before the primary election,” which will be held this year on Sept. 17, 1929. The petitioner contends that Aug. 13th was “at least five weeks before” Sept. 17, 1929, while the respondents contend Aug. 12th. The rule of computation of the petitioner excludes the first and includes the last day, while that of the respondents excludes both.

If we were construing the general election laws of the Act of June 10, 1893, P. L. 419, as amended by the Act of July 9, 1919, P. L. 832, as well as the Acts of May 20, 1921, P. L. 958, and April 18, 1923, P. L. 67, we would have no difficulty, since in both the Acts of 1893 and 1919, supra, a mile for computation of time is statutorily defined for time expressions such as “at least-days before” and “at least - days previous,” the day of filing to be excluded and the day of election to be included, and in construing the Act of 1921, supra, in Ellwood City Borough’s Contested Election, 286 Pa. 257, 262, 263, and the Act of 1923, supra, in Alexander’s Petition, 280 Pa. 209, 211, the Supreme Court declared the rule of computation, prescribed in the Act of 1919, supra, applicable. But these acts and the decisions just noted relate and apply solely and alone to the general election law and not to the primary election law.

The Act of 1883, P. L. 136, entitled, “An act to regulate the computation of time under statutes, rules, orders and decrees of court, ...” provides:

“Section 1. Where ... by any law . . . the . . . doing of any act . . . shall be ordered . . . and the period of time or duration for . . . doing . . . shall be prescribed, . . . such time shall be so computed as to exclude the first and include the last days of any such prescribed . . . period, or duration of time. . . .” The petitioner urges the application of this statute. The Act of 1927, supra, requires the filing of petitions for nominations “at least five weeks before” Sept. 17, 1929 (primary election day in 1929). If the Act of 1883, supra, applies, the contention of the petitioner on the question involved is correct.

“At least” is defined in 5 Corpus Juris, 1438, as: “An adverbial phrase meaning at the lowest estimate; at the smallest concession or claim; in the smallest or lowest degree; at the smallest number;” and “before” is defined in 7 Corpus Juris, 1027, as: “Earlier than; previous to.” From the plain meaning of the phrase — “at least five weeks before the primary election”— it appears that five weeks is the smallest length of time previous to the primary or, in other words, five full, clear weeks must intervene between the filing of the nomination petition and the primary, hence, excluding both terminal days. And this accords with what we believe is the weight of authority. See 5 Corpus Juris, 1438, note 81 (c), citing Gregg’s Estate, 213 Pa. 260, 263.

In Gregg’s Estate, supra, the Supreme Court construed the 11th section of the Act of April 26, 1855, P. L. 328, providing, inter alia, that no estate shall be bequeathed in trust for religious or charitable uses except the same be done by will “at least one calendar month before” the testator’s death. The will was executed between the hours of 3 and 5 o’clock P. M., Oct. 8th, and the testatrix died between the hours of 7 and 8 o’clock P. M., Nov. 8, 1899. Justice Brown, on page 263, held, as the calendar month to elapse between the date of the will’s execution and the death of the testatrix was one of thirty-one days, the bequest was void, unless, after the will was executed, “at least” that number of days intervened before the testatrix’s death. The court continued, on pages 263 and 264, as follows: “The fiction of the law that a day has no fractions yields at times, when equity requires that hours be counted, or that the exact time a thing is done be noted, but never when the duration of time, as fixed by the statute, is free from all doubt. ‘At least one calendar month’ must elapse between the execution of a will containing a charitable bequest and the death of the testator, if the bequest is to be valid. The meaning of the words ‘at least’ is ‘in the smallest or lowest degree; at the lowest estimate, or at the smallest concession or claim; at the smallest number:’ 4 Cyc. of Law and Proc., 366. In declaring that ‘at least one calendar month’ must elapse between the execution of a will containing a charitable bequest and the death of the testator, the manifest meaning of the statute is that such a month must fully elapse between the dates of the two events. ■ A calendar month is made up of days — in this case, of thirty-one days. These are full, clear thirty-one days, not thirty days and fractions of two other days, making in hours another day, and, with the other thirty, thirty-one days, but thirty-one separate and independent days, the first beginning when Oct. 8th ended, at midnight, and the last ending at the close of Nov. 8th, at midnight. . . . ‘When so many ‘clear days’ or so many days ‘at least’ are given to do an act, or ‘not less than’ so many days must intervene, both the terminal days are excluded:’ Endlich on Interpretation of Statutes, § 391.” In the foregoing case, both terminal dates were excluded, and we accept the interpretation of the phrase “at least” in that case as controlling in this.

We are aware that the case of Rich v. Boguszinsky, 88 Pa. Superior Ct. 586, is at complete variance with the Gregg Estate case, supra, in the interpretation of identical language. In the latter ease, the Supreme Court excluded both terminal days in computing “at least a calendar month before the death,” while in the former, the Superior Court excluded the first and included the last in computing “at least one month before the filing of the claim.” The Supreme Court refused to apply the rule of the Act of 1883, supra, while the Superior Court applied it. The Superior Court ease followed the case of Herr v. Moss Cigar Co., 237 Pa. 252, but in the latter case the statutory provision that an agreement waiving the filing of mechanics’ liens should be filed “within ten days after” its execution is entirely different phraseology from that considered either in the Rich v. Boguszinsky case, supra, or the instant case. Certainly the direction to do an act “within ten days” after another act requires a different rule of interpretation than the doing of an act “at least one month before” a day or event. The Superior Court was interpreting the words, “such notice must be served at least one month before the claim is filed.” But the Superior Court applied the same rule, the Act of 1883, supra, distinguishing that case from the Gregg Estate case, supra, with the observation that in their case the mechanics’ lien law was being construed, while in the Gregg case estates held for corporate, religious and charitable uses were being interpreted. Why the difference of subject-matter should require contrary interpretations of the same words is not apparent. The same language was the subject of interpretation in both cases; both decisions cannot be correct, and from the very plain meaning of the words “at least,” as well as the authority of the Supreme Court, we cannot follow the Superior Court case.

We adopt the rule that when so many days “at least” are given to do an act, or not less than so many days must intervene before an act is done, both the terminal days are excluded, and this rule has not been changed by the Act of 1883, supra: Biever v. Troianno, 2 D. & C. 487. “At least five weeks before the primary election” contemplates five full, clear weeks, to the computation of which the Act of 1883 does not apply: 38 Cyc., 317; Wilver v. Keim, 8 D. & C. 56; Clarke v. Clarke, 7 D. & C. 35; In re Bayne, 69 N. Y. Misc. 579, 127 N. Y. Supp. 915; 20 Corpus Juris, 130, note 29. We cannot agree with the contrary view as expressed in Hughes v. Swartz, 30 Dist. R. 715.

Applying the rule adopted by us, excluding Sept. 17th, the day of the primary, sixteen days remain in September, and taking nineteen days out of August to make thirty-five days or full five weeks, we have Aug. 12, 1929, as the last day on which to file petitions for nomination, and, hence, the seventh day next succeeding would be Aug. 19, 1929, as the last day for filing withdrawals.

We have come to the foregoing conclusion notwithstanding the practice this year in the County of Philadelphia, where Aug. 13, 1929, was considered the last day for filing nomination petitions and Aug. 20, 1929, for filing withdrawals, as counsel for petitioner informs us. We are also acquainted with the case of Skahan et al. v. Holmes et al., County Commissioners, 9 D. & C. 435, in that county, wherein Gordon, Jr., J., decided, inferentially at least, that Aug. 16, 1927, was the last day for filing in that year, as being at least five weeks before Sept. 20, 1927, the day of the primary. We have diligently canvassed all the relevant cases and cannot agree that, in computing the time when an act shall be done “at least five weeks before” a day certain, the first day shall be excluded and the last day included. To include the last day does not put that day “before” the last day.

Counsel for petitioner also cites the case of “Certificate of Nomination,” 12 Pa. C. C. Reps. 157. This case does not apply, as it was one of computation under the election laws, which statutorily prescribe the rule of computation: Alexander’s Petition, supra, and Ellwood City Borough’s Contested Election, supra.

It may be noted, too, that the withdrawal in this case is not in the form required by the Act of April 29, 1925, P. L. 361, 363. The withdrawal, a copy of which is attached to the petition for the rule, is not “acknowledged.” It was “sworn to.” The Act of 1925, supra, provides that the withdrawal must be in writing, signed by the candidate and “acknowledged” before a notary public or justice of the peace. An affidavit is not an acknowledgment.

For the reasons hereinbefore set forth, the rule must be discharged.

The rule to show cause why the withdrawal should not be filed and petitioner’s name be withheld from printing for the primary election of 1929 is hereby discharged, at the cost of the petitioner.


author: Landis, P. J.,

text:
    Zimmerman v. Hartranft.

      Harold G. Ripple, for rule; B. F. Davis, contra.
    Jan. 19, 1929.
   Landis, P. J.,

— On Sept. 5, 1928, the plaintiff issued a summons in assumpsit in the above-mentioned case, returnable on the third Monday of September, 1928, which was Sept. 17, 1928. On Oct. 1, 1928, the defendant entered a rule on the plaintiff to file a statement within fifteen days, or judgment of non pros., and on Oct. 17, 1928, judgment of non pros. was entered. On the same day, but after the entry of this judgment, the plaintiff's statement was filed.

Section 16 of Eule xxv of the Court of Common Pleas, page 28, declares that “at any time after the return-day of the writ or after the entry of an appeal, a rule may be entered as of course upon the plaintiff or plaintiffs to file a statement within fifteen days after written notice served upon the said plaintiff or plaintiffs, his, her, its or their attorney of record, so to do, and in case of failure to file the same, the prothonotary shall, on motion of counsel in writing, enter a judgment of non pros. Upon sufficient cause shown, the court or a judge thereof may extend the same.”

It is clear that, if application had been made before the entry of the judgment, the time for filing the statement might have been extended. It seems, therefore, a fair interpretation of the rule that the non pros, can be stricken off and leave given to file the statement, if proper reasons be presented for such action. Here, it is averred that the plaintiff was sick, and has since died, and the claim, based upon a long book account, could not be filed because the statement could not be sworn to by the plaintiff on this account. Of course, his counsel should have made the application for an allowance of time before the fifteen days elapsed; but as he filed the statement one day after the expiration of that period, and on the same day on which the judgment was entered, he, no doubt, believed that he would be in time.

Under all the circumstances, we think the judgment of non pros, should be stricken off, and, as the statement has been filed, it is not now necessary to extend the time for filing it. Eule made absolute.

From George Ross Eshleman, Lancaster, Pa.