author: Hirt, J.

text:
    New York Central Railroad Company v. Marz.

      Gunnison, Fish, Gifford & Chapin, for plaintiff.

      Marsh & Eaton, for defendant.
   Hirt, J.

— This case is before the court on bill, answer and testimony, from which we find the following facts:

Findings of fact.

1. Plaintiff owns and operates a railroad through the City of Erie, Erie County, Pennsylvania.

2. On Feb. 26, 1927, defendant brought suit in the City of Buffalo, State of New York, against the New York Central Railroad Company to recover damages for injuries sustained on Jan. 18, 1927, in the City of Erie at or near the premises of H. F. Watson Company. At this time he was employed by H. J. Conrath Construction Company as a bricklayer’s helper upon the premises of the Watson Company.

3. On that date and at all times since John Marz was and has been a resident of the City of Erie.

4. Upon the trial of the action brought by defendant against plaintiff in the State of New York, it will be necessary for the railroad company to call thirteen witnesses, all of whom are residents of the City of Erie, Pennsylvania; six are employees of the railroad company, two are employed by H. F. Watson Company, one by H. J. Conrath Construction Company, one is an insurance adjuster, three are doctors, none of whom are in the employ of the railroad company.

5. The complaint of John Marz alleges injuries in general terms without particularity.

6. John Marz was present in court at all hearings in this case, but offered no testimony.

Discussion.

It is well settled that the courts of one state may take jurisdiction of a transitory cause of action originating in another state, when the defendant has been locally found and served, even though both parties are at the time domiciliary residents of the foreign state: Eingartner v. Illinois Steel Co. (Wis.), 59 Am. St. Reps. 859, and note, 869; Tennessee Coal Co. v. George, 233 U. S. 354; and "although the courts of one country have no authority to stay proceedings in the courts of another, they have an undoubted authority to control all persons and things within their own territorial limits. When, therefore, both parties to a suit in a foreign country are resident within the territorial limits of another country, the courts of equity in the latter may act in personam upon those parties and direct them by injunction to proceed no further in such suit. In such cases, these courts act upon acknowledged principles of public law in regard to jurisdiction. They do not pretend to direct or control the foreign court; but without regard to the situation of the subject-matter of the dispute, they consider the equities between the parties and decree in personam according to those equities, and enforce obedience to their decrees by process in personam:” Story’s Eq. Jur. (14th ed.), 1224. This text is quoted and its doctrine affirmed in Cole v. Cunningham, 133 U. S. 107; Sweeny v. Hunter, 145 Pa. 363, and many other cases. The foundation for the rule is that “As long as a citizen belongs to a state he owes it obedience, and, as between states, the state in which he is domiciled has jurisdiction over his person and his personal relations to other citizens of the state:” 14 Ruling Case Law, 413, par. 114. The exercise of this power of restraint by the courts of a state over its own citizens does not offend against the Federal Constitution guaranteeing full faith and credit in each state to the judicial proceedings of the several states: Cole v. Cunningham, supra. However, the power is not to be exercised capriciously, nor merely to compel litigants to use the courts of their own state, nor even because the complainant has good reason to apprehend a less favorable result for himself in a foreign court. The true basis for its exercise, we believe, has been correctly stated as follows: “It may, therefore, with confidence be affirmed that the courts of one state may enjoin the prosecution of a judicial proceeding in another state upon substantially the same grounds that the courts of one nation may enjoin the prosecution of a suit or action in the courts of another nation. It will be found, upon an examination of the decisions upon this subject, that it is not necessary, in order to obtain relief, to establish the usual grounds for equitable interposition, namely, fraud, accident or mistake, but that it will be sufficient to entitle a citizen of a state to injunction preventing another citizen thereof from prosecuting an action against the former in the courts of another state to show that the purpose or necessary effect of such action is to obtain an advantage to which the plaintiff therein is not entitled in the domicile of the parties:” Note to Eingartner v. Illinois Steel Co., 59 Am. St. Reps. 869, 880. Numerous authorities supporting this statement of the law are collected in the notes of Rader v. Stubblefield, 10 Ann. Cas. 26, and Greer v. Cook, 16 Ann. Cas. 673. No general rule can be laid down as to when the court ought to exercise this power and enjoin a party from prosecuting a suit in a foreign jurisdiction. Each case must be ruled by its own facts. If they show that it is necessary and equitable to exercise the power in the orderly administration of justice, the court should enjoin the party, otherwise not: Hawkins v. Ireland, 64 Minn. 339, 67 N. W. Repr. 73. Equity will enjoin suits in other states where there is fraud, oppression, vexation, injustice or unconscionable advantage : Miller v. Gittings, 85 Md. 601, 37 Atl. Repr. 372.

Plaintiff will require the attendance of thirteen witnesses in presenting its defense in New York State, only six of whom are employees of the railroad company. The attendance of seven material witnesses must depend upon their willingness to go to Buffalo to testify. True, their testimony may be taken upon depositions, but if so taken the commissioner appointed by a New York court has no power to compel their attendance before him here, and, in any event, the examination of witnesses before a commissioner is limited to answers to interrogatories: Force’s Petition, 265 Pa. 228; Neilson’s Appeal, 230 Pa. 540. Hence, an unwilling or interested witness may refuse to give his testimony with impunity. Testimony for a defendant in the form of depositions in a negligence case is inadequate and ineffective in properly presenting a meritorious defense, especially where damages are claimed for personal injuries, the nature and extent of which are the subject of medical testimony. These considerations rise above matters of mere convenience and are of some importance in view of the general averment of the nature of the injuries. The complaint of John Marz alleges that he “has been seriously, painfully and permanently injured about his head, body and limbs; that he has suffered and will in the future suffer much pain; that he has been and will in the future be incapacitated from labors; that he has been and will in the future be compelled to expend considerable sums of money for nursing, medicines and medical attendance in attempting to cure himself of the injuries so sustained by him.” Very obviously, particularity of pleading is not required there as here, and under the pleadings an injury of any nature to the person of complainant can be proven and what will be proven cannot be anticipated. It can hardly be expected that three physicians not employed by the railroad, residing in the City of Erie, can arrange to attend a trial in Buffalo at an uncertain time and for an uncertain period. And to put the burden upon the railroad company to anticipate the medical testimony on the part of the plaintiff there and to take the depositions of the physicians to rebut that testimony in advance gives the claimant an inequitable advantage: Miller v. Gittings, supra; O’Haire v. Burns, 45 Colo. 432, 101 Pac. Repr. 755. If, on the trial in Buffalo, it shall develop that it would be to the advantage of the jury to view the location of the accident, such view would be impossible. The railroad, in defending the case in New York State, will be subjected to the cost of maintaining witnesses there- and to the possible loss of testimony of essential witnesses for the reasons above indicated.

If John Marz had offered any testimony advancing a valid reason for bringing the suit in a foreign jurisdiction, the railroad company would have to submit to the inconvenience, prejudice and embarrassment resulting: Pennsylvania Coal Co. v. Hurney, 252 Pa. 564. John Marz, however, was in court at all hearings, and from his silence the testimony of defendant must be taken at face value, and the inference is that he brought his action in New York State to secure for himself an advantage to which he would not be entitled here.

Conclusions of law.

1. This court has jurisdiction to act in personam upon John Marz.

2. It is sufficient to entitle plaintiff to an injunction restraining defendant from prosecuting an action in the courts of New York, to show that the purpose or necessary effect of such action is to obtain an inequitable advantage to which the plaintiff therein is not entitled in the domicile of the parties.

3. No legal process can compel witnesses living in the City of Erie, Pennsylvania, to attend the trial of a case in the City of Buffalo, New York, nor before a commissioner appointed by the New York court, and the scope of depositions is restricted to answers to interrogatories.

4. The testimony of the railroad company, unrebutted by testimony on behalf of John Marz, is sufficient to show such prejudice and embarrassment to it as will entitle it to the relief prayed for.

5. A permanent injunction should be ordered.

6. The costs should be paid by John Marz.

7. And now, to wit, June 25, 1928, the prothonotary is directed to enter a decree nisi in accordance with this opinion, to become absolute unless exceptions are filed thereto sec. leg.

From Otto Herbst, Erie, Pa.

NOTE. — July 3, 1928, exceptions were filed, which have since been abandoned.


source: Caselaw Access Project

author: Knight, J.,

license: Public Domain

text:
    Souder et al. v. Souderton Borough Council et al.

      High, Dettra & Swartz and Wallace M. Keely, for plaintiffs.

      Stewart Nase, Borough Solicitor, and Franklin L. Wright (of Larzelere & ' Wright), for defendants.
    June 21, 1929.
   Knight, J.,

Questions of law involved.

1. Has equity jurisdiction? 2. Has this court, in the absence of fraud or dishonesty, the power to review the action of a borough council in selling a municipal electrical distributing plant and granting a franchise to construct, operate and maintain electric lines along, across, over and Under the public streets of the borough? 3. Has a borough the power to sell a municipal electrical distributing system at private sale?

Questions of fact involved.

Have the defendants in the present case acted honestly and in good faith and for what they believe to be the best interests of the people in selling the distributing plant and granting a franchise to the Pennsylvania Power and Light Company or the Souderton Electric Light Company?

Findings 'of fact.

1. The plaintiffs are taxpayers and residents of Souderton, an incorporated borough in the northeastern section of Montgomery County, and the defendants are the burgess and town council of said borough.

2. The Borough of Souderton owns and operates an electric light, heat and power distribution system, through which it furnishes electric energy for light and power to the citizens of the borough. The electric energy is purchased by the municipality from the Pennsylvania Power and Light Company at wholesale and by the borough resold and delivered to the consumers. The borough has no facilities for generating electrical energy.

3. The distributing plant of the borough is at least fifteen years old. It is not adequate to meet the growing demands for light and power of an increasing and progressive population. In some respects it is obsolete and antiquated, and there is a present need for improvements, changes and replacements to bring the system up to an efficient operating condition.

4. For several years prior to the year 1927 the condition of the municipal electric distributing system had been brought up frequently for consideration by the borough authorities and various suggestions were made to sell or rehabilitate the plant. Finally, in October, 1927, the borough council employed the engineering firm of Bonine and Costa to make a survey of the system and report their findings and recommendations to borough council.

On Nov. 28, 1927, Bonine and Costa submitted their survey and report to the borough council. In this report the replacement value of the physical property composing the distributing system was fixed at $49,608.06. A number of improvements and changes were recommended and five different courses were suggested for consideration of the borough in the future operation or sale of the plant, viz.: Borough retains ownership and operates its system as at present, with changes and improvements as herein suggested. Borough constructs and operates its own generating plant. Outright sale of borough electric light and power distribution system with franchise grant. Borough leases its distribution system to private corporation or individual. Borough retains ownership of its distribution system and operates same under private management.

6. In 1914, the Borough of Souderton entered into a contract with the Excelsior Light, Power and Gas Company, by the terms of which the company agreed to sell, and the borough agreed to buy, electrical energy for the basic price of 4 cents per kilowatt hour. This contract, expired under its terms in 1924, but the successor of the company has continued to furnish electrical energy, and the borough to pay for the same, at the contract rates up to the present time.

7. On Aug. 23, 1923, the Excelsior Electric Light and Power Company conveyed all of its property, rights and franchises to the Pennsylvania Power and Light Company, and since that date the latter company has supplied the Borough of Souderton with electrical energy.

8. In 1923, the Pennsylvania Power and Light Company made an offer to purchase the distributing system from the borough for the sum of $30,000. This offer was declined. On Feb. 9, 1926, the Pennsylvania Power and Light Company offered about $41,000, which offer was also refused. In August, 1927, the borough council decided to advertise for sealed bids for its distributing plant and a franchise to furnish current. An advertisement was inserted in the local Souderton paper and three bids were received. The Pennsylvania Power and Light Company bid $106,000, William W. Levering bid $112,500, and the third bid was a leasing proposition. All of the bids were declined.

9. On Aug. 7,1928, Mr. Bonine, of the firm of Bonine and Costa, at an open meeting of council, presented a proposal to purchase the distributing system from the borough for the sum of $150,000; the proposal was accompanied by a schedule of rates and a certified check for $1000. The proposal was filed for future reference.

10. On Aug. 15, 1928, a special meeting of the borough council was held, which was attended by all the members except Mr. Freed. At this meeting, R. L. Jacques, representing the Pennsylvania Power and Light Company, presented a proposal offering to purchase the electrical distributing and street lighting system of the borough for $150,050. By a vote of four to one the offer was accepted and the proper officers authorized to execute and deliver a contract (now Ordinance No. 98). An ordinance was then presented by Mr. Jacques granting to the Pennsylvania Power and Light Company or the Souderton Power and Light Company permission to construct and operate electric lines over the streets of Souderton (Ordinance No. 99). These ordinances passed first reading. No notice of this meeting of council was given to Bonine and Costa.

11. At the regular meeting of the Souderton Town Council on Sept. 4,1928, Aaron S. Swartz, Jr., Esq., appeared before the body representing Bonine and Costa and made a verbal offer on behalf of his clients of $155,000 for the distribution system of the borough, including franchise rights. At the same meeting, Ordinance No. 98 and Ordinance No. 99 passed second reading.

12. At the regular meeting of council held Oct. 2, 1928, Mr. Costa, of Bonine and Costa, again addressed the body and made a verbal offer of at least $165,000 for the distribution system and franchise rights. Mr. Costa also offered to furnish a bond conditioned for the operation of the system by Bonine and Costa for a period of three or five years. Mr. Jacques, representing the Pennsylvania Power and Light Company, was also present, but refused to increase his bid of $150,050, except to add $3000 for some equipment and supplies not included in the former bid. Ordinance No. 98 was duly amended so that the price for the system was stated as $153,050 and the amended ordinance finally adopted. Ordinance No. 99 was also passed. These ordinances have been approved by the burgess and advertised according to law.

13. The Pennsylvania Power and Light Company is a large public service corporation supplying light and power to a number of municipalities surrounding Souderton.

14. Bonine and Costa had sufficient financial backing to, finance the purchase of the distribution system had the borough accepted their. offer.

15. The Pennsylvania Power and Light Company and Bonine and Costa have each filed with their bid a schedule of rates. As these rates are tentative and must be approved by the Public Service Commission, and as there is little or no difference between the proposed schedules of rates, it is unnecessary to find which schedule is more advantageous to the borough.

16. The burgess and town council have acted honestly and for what they believe to be for the public good throughout the negotiation and sale of the distributing system. No fraud, dishonesty, bad faith or corruption on the part of any of the defendants has been shown.

Discussion.

It may be well to state in the beginning that, on the record, this is not a contest between rival bidders for a municipal plant, but a complaint by certain taxpayers that the borough authorities committed an improvident and improper act in selling public property for what is alleged to be a totally inadequate price. Nor are we concerned with the motives that may be behind this proceeding, whether it springs from the purest considerations of the public welfare or is inspired by the resentment and chagrin of disappointed bidders.

At the outset, the defendants challenge the jurisdiction of this court to entertain the suit. Section 1010 of the General Borough Act of May 4, 1927, P. L. 519, provides: “Complaint may be made to the Court of Quarter Sessions ... by any person aggrieved, within thirty days after any ordinance or resolution takes effect, and the determination and order of the court thereon shall be conclusive.” This, the defendants contend, vested in the Court of Quarter Sessions exclusive jurisdiction of the subject-matter of this suit, and the plaintiffs, not having availed themselves of the proper remedy, have now no standing to complain.

The section of the General Borough Act cited above is substantially a restatement of the law as it has existed for many years. The General Borough Act, therefore, provides its own remedy for persons claiming to be aggrieved in consequence of the enactment by a borough of any ordinance under the authority of the act, and the courts- have held that this remedy is exclusive, especially in annexation proceedings: Whitney et al. v. Jersey Shore Borough, 266 Pa. 537; Scottdale Borough Annexation, 91 Pa. Superior Ct. 1.

On the other hand, it has been held that it is not in all cases that an appeal to the Quarter Sessions is the exclusive remedy for testing the validity of a borough ordinance.

Thus, in Solar Electric Co.’s Appeal, 290 Pa. 156, the validity of an ordinance was attacked in the Common Pleas, and in Manorville Borough v. Flenner, 286 Pa. 103, an ordinance was set aside on an appeal from a summary conviction obtained on the criminal side of the Quarter Sessions.

Leaving undertermined, therefore, the technical question of whether the plaintiffs have entered the portals of the right court, and conceding, although not deciding, that they have adopted a proper remedy, we will proceed to decide the controversy on more substantial and, we believe, more meritorious grounds than questions of procedure. •

It is conceded, at least it is not denied, that a borough has the right to dispose of its property by private sale.

Section 1201 of the General Borough Act provides that the borough shall have power to purchase, hold, lease, let and convey such real and personal property as the purposes of the borough shall require. The power to convey carries with it by necessary implication the power to sell, and in the absence of any restriction or limitation in the act or in the general law, the sale may be either public or private.

Whether the sale of the distribution plant in the instant case by ordinance is an act of administration or legislation may be a matter of dispute, but there can be no doubt that the ordinance granting a franchise to place light and power lines over the streets of Souderton is a piece of legislation and the franchise is the thing of real value in this transaction.

It is a fundamental principle of our system of government that the courts cannot pass upon the wisdom of an act of the legislature except where there has been a violation of a constitutional provision. It is unnecessary to discuss the impelling reasons and irrefutable arguments in support of this wise and essential rule of law.

They are all to be found in many classic opinions handed down by our appellate courts in a long line of decisions, among which may be mentioned Sunbury & Erie R. R. v. Erwin et al., 33 Pa. 278; Smedley v. Erwin et al., 51 Pa. 445; Com. v. Moir, 199 Pa. 534.

The same rule applies to municipal corporations within the State when their legislative bodies act without fraud and dishonesty and within the scope of their delegated powers.

It has been applied many times to the mayor and council of cities. See Com. ex rel. v. Walton, 236 Pa. 220, where it is said: “If there is any popular notion that the remedy for unwise legislation by councils and the mayor is to have the courts declare that in their judgment the ordinance is unwise, vicious and prejudicial to the interests of the public, and, therefore, void, that notion cannot be removed too soon.”

It has been applied to boroughs: Freeport Borough v. Marks, 59 Pa. 253, where the court held: “The legality of the acts of legislative or corporate bodies cannot be tested by the motives of the individual members or the adventitious circumstances they may lay hold of to carry their measures, provided they proceed regularly and act within the scope of their powers.”

True it is that all legislative bodies, except the supreme legislature, are under the law and, therefore, all transgressions of law are subject to' the authority of the judicial power established by the Constitution: Kerr v. Trego, 47 Pa. 292.

But it is only in cases of transgression of the law, fraud, dishonesty or usurpation of authority, that the courts may interfere and set aside their enactments.

Here there has been no usurpation of authority, for the Burgess and Town Council of Souderton were acting within their powers in selling the distributing plant and granting the franchise.

Fraud or dishonesty on the part of the burgess and councilmen has not been alleged or proven.

It was said very recently in the case of Robb et al. v. Stone et al., School Directors, 296 Pa. 482: “The determination of a board of school directors regarding a matter committed to its discretion presumptively rests upon consideration!? of publie welfare and has been reached by the exercise of intelligent judgment. He who asserts otherwise has a heavy burden to carry when attempting to prove his contention.”

The burden becomes all the more heavy when an ordinance of a borough council is involved.

The plaintiffs have not carried this heavy burden because they have failed utterly to show that the borough officials acted corruptly and in bad faith.

Whether these defendants acted indiscreetly and improvidently, whether they did a wise or unwise thing in disposing of the borough property in the manner and for the price they received, are matters upon which we express no opinion. Where we have not the right to judge, we withhold our judgment.

What we do determine is that these defendants acted honestly, in good faith and for what they believed to be for the public good in a matter in which the law gives them discretionary powers.

Having determined this, it necessarily follows that we have no right to interfere with their action in the matter now before us.

Conclusions of law.

The bill should be dismissed. The plaintiffs should pay the costs.

Decree.

And now, June 21, 1929, it is ordered, adjudged and decreed that the prothonotary mark these findings of fact and conclusions of law filed, thereafter to become a part of the record of the case, and enter the following decree nisi. The bill is dismissed and the plaintiffs pay the costs.


author: Valentine, J.,

text:
    Goldberg v. Zaisel.

      David Rosenthal, for plaintiff; M. A. Salsburg, for defendant.
    Aug. 7, 1929.
   Valentine, J.,

— This is a bill in equity to restrain defendant from using the trade name “Dress-Eteria.”

A statement of the pleadings and issue raised thereby.

On April 24, 1929, on the filing of bill and injunction affidavits, a preliminary injunction was awarded. A bond in the sum of $1000 with approved security was also filed.

Testimony on motion to continue the injunction was taken and the same continued until final hearing. On May 6, 1929, an answer was filed denying the essential averments of bill.

The issue raised by the pleadings is the right of defendant to use the trade name “Dress-Eteria” in connection with the operation of his ladies’ cloak and suit store at No. 24 South Main Street, Pittston, Luzerne County.

Findings of fact.

1. Plaintiff, since March, 1925, has conducted a ladies’ cloak and suit store at No. 1 South Main Street, Wilkes-Barre, under the name “Dress-Eteria.”

2. In April, 1927, plaintiff registered said trade name in the offices of the Secretary of the Commonwealth and the Prothonotary of Luzerne County.

3. Plaintiff’s business extends throughout Wyoming Valley within a radius of twenty-five miles from Wilkes-Barre.

4. In the year 1928 plaintiff’s business amounted to $254,158.61.

5. Fifteen per cent, of plaintiff’s trade comes from the City of Pittston and its immediate vicinity.

6. Since the adoption of said trade name, “Dress-Eteria,” in 1925, plaintiff has advertised same in newspapers published in the City of Wilkes-Barre and which circulate in Pittston City and adjacent communities.

7. Plaintiff also used said trade name, “Dress-Eteria,” on the tags, wrapping paper, boxes, labels and stationery used by him in the conduct of his business.

8. By reason of the business built up by plaintiff throughout the Wyoming Valley, including the City of Pittston, said trade name, “Dress-Eteria,” acquired a secondary meaning and became distinctive, and the public within the territory in which the plaintiff did business came to understand that said name and words signified the plaintiff’s store.

9. In April, 1929, after plaintiff had been operating a store for four years and had built up a large trade in Pittston City and vicinity, and had at his own expense made the name “Dress-Eteria” well and favorably known throughout the Wyoming Valley, including the City of Pittston and vicinity, the defendant made arrangements to operate a retail dress store at No. 24 South Main Street, Pittston, for the selling of dresses, cloaks, suits, furs, etc., being the same commodities as the plaintiff sells, under the trade name “Pitts-ton Dress-Eteria,” and on April 5 and 6, 1929, registered said trade name, “Pittston Dress-Eteria,” adopted by him, in the offices of the Secretary of the Commonwealth and the Prothonotary of Luzerne County.

10. The defendant adopted said trade name, “Pittston Dress-Eteria,” with full knowledge that the plaintiff was and for four years had been using the name ’“Dress-Eteria” in connection with the store operated by him at No. 1 South Main Street, Wilkes-Barre, Pa.

11. The trade name “Pittston Dress-Eteria,” adopted by defendant, has a natural tendency to mislead and deceive plaintiff’s customers residing in Pitts-ton and vicinity by inducing the belief that defendant’s store was in fact a branch store owned and operated by the plaintiff.

Discussion.

The plaintiff, since March 14, 1925, has operated a ladies’ cloak and suit .store at No. 1 South Main Street, Wilkes-Barre. Upon starting business at said location he adopted as his trade name the words “Dress-Eteria,” and in April, 1927, registered said name, under the provisions of the Fictitious Names Act, in the offices of the Secretary of the Commonwealth and the Prothonotary of Luzerne County.

The plaintiff complains that the name “Dress-Eteria” has been used by him in his advertising and on stationery labels, wrapping papers and boxes, and that the defendant contemplates operating a retail dress store at No. 24 South Main Street, Pittston, for the sale of the same character of commodities sold by the plaintiff and to do business under the same name, viz., “Dress-Eteria,” and to use said name in his advertising and on his stationery, labels, etc., which proposed action constitutes a fraud and will result in loss to him, and asks for an injunction restraining the defendant from advertising or selling to the public under the trade name “Dress-Eteria” or using said name in the conduct of his business.

The defendant denies the right of plaintiff to the exclusive use of the term “Dress-Eteria,” and alleges that the name which he has adopted is “Pittston Dress-Eteria,” which distinguishes his store from the store of the plaintiff, and relieves him of the charge of unfair competition.

Both parties are engaged in the ladies’ cloak and suit business. Plaintiff’s store is located in the City of Wilkes-Barre, defendant’s store in the City of Pittston. Wilkes-Barre is the county seat of Luzerne County and has a population of approximately 100,000. Pittston City is located about nine miles distant from Wilkes-Barre and contains a population of approximately 19,000. Both cities are located in the Wyoming Valley.

Plaintiff established his store in 1925, and by his industry built up a substantial trade. He adopted the trade name “Dress-Eteria,” and filed certificates under the provisions of the Act of June 28, 1917, P. L. 645. The name “Dress-Eteria” came to signify the store of the plaintiff, whose trade extended throughout the Wyoming Valley, and 15 per cent, of which came from Pitts-ton and vicinity.

For some time in the fall of 1928 the defendant was employed at a store on South Main Street, Wilkes-Barre, in the immediate vicinity of the plaintiff’s store, and must have known that the trade name “Dress-Eteria” was being used by the plaintiff.

The defendant first contemplated opening his store and adopted the trade name “Pittston Dress-Eteria” in April, 1929, four years after plaintiff had adopted the name “Dress-Eteria” in connection with the store owned and operated by him at No. 1 South Main Street, Wilkes-Barre.

While Pittston is to some extent an industrial and business centre, yet it is tributary to the City of Wilkes-Barre, and inasmuch as plaintiff’s trade extends throughout the territory which includes the City of Pittston and the surrounding communities, the plaintiff is entitled to protection therein.

In support of the proposition that plaintiff has no right to the exclusive use of the name “Dress-Eteria,” defendant has strenuously argued that the words are merely descriptive and indicate a ladies’ dress shop where the customers wait on themselves or make their own selection. We do not regard this as controlling. A similar proposition was passed upon by our Supreme Court in Hub Clothing Co. v. Cohen, 270 Pa. 487, in which appellant contended that the plaintiff had no exclusive right to the use of the words “The Hub,” and that the defendants could not lawfully be restrained from using the words in connection with a clothing store proposed to be operated by defendants in the City of Pittston, and that plaintiff’s right to the use of the words was confined to the City of Wilkes-Barre, in which its store was located.

“Irrespective of the question of trade-mark, a manufacturer has no right to enclose his product in packages so like those of a rival manufacturer as to deceive a purchaser or to enable a dealer to do so:” Pennsylvania Central Brewing Co. v. Anthracite Beer Co., 258 Pa. 45. As was there said by Mr. Justice Walling, speaking for our Supreme Court (page 49): “It is not a case of a trade-mark, technically so-called, but of unfair competition, in which defendant by imitating plaintiff’s containers secures to some extent the benefit of the high standing of plaintiff’s product.”

“The existence of a valid trade-mark is not essential to a right of action for unfair competition. Irrespective thereof, persons have no right to dress their goods up in such manner as to deceive an intending purchaser and induce him to believe he is buying those of the plaintiffs, and they may be restrained from so doing. To entitle a person to such relief, a proprietary interest in the' terms or symbols used is held not to be essential, it being sufficient if he has an interest in the good-will of the business or in the other property threatened:” 26 Ruling Case Law;, § 55, page 878. The issue of unfair competition frequently arises where one who' has no valid trade-mark nevertheless complains of another who attempts to pass off his own goods as the goods of his rival: Rosenberg v. Elliott, 7 Fed. Repr. (2nd) 962.

“Any conduct, the natural and probable tendency and effect of which is to deceive the public so as to pass off the goods or business of one person as and for that of another, constitutes actionable unfair competition:” 38 Cyc., 756.

“A dealer coming into a field already occupied by a rival of established reputation must do nothing which will unnecessarily create or increase confusion between his goods or business and the goods or business of his rival:” 38 Cyc., 794.

If the effect of defendant’s conduct be to injure plaintiff, the fact that the defendant had no fraudulent intent is no defense: Suburban Press v. Philadelphia Suburban Publishing Co., 227 Pa. 148.

In the case of Hub Clothing Co. v. Cohen, supra, it appeared that the defendants contemplated using in connection with the name “The Hub” at their store in the City of Pittston the words “Cohen Brothers,” and defendants contended that the use of the words “Cohen Brothers,” together with the fact that their store was located in the City of Pittston, clearly distinguished their place of business from that of the plaintiff located in Wilkes-Barre, nine miles distant, and that, therefore, plaintiff was not entitled to relief by injunction on the theory of unfair trade competition. In passing upon this question, our Supreme Court, per Mr. Justice Frazer, said (page 490) : “Defendants also argue that, as their store is located in a city nine miles distant from Wilkes-Barre, there could be no interference* with plaintiff’s trade. As the business of plaintiff is derived, not only from Wilkes-Barre but also from residents of Pittston and other parts of the county, and plaintiff’s advertising not only reaches local buyers but substantially people of the entire county, through the medium of signs, newspaper, printed matter, etc., there is no merit in this contention. The property in a trade-mark is not limited by fixed territorial bounds, but frequently extends over a large area, depending upon the extent and character of the business and through sources tending to attract customers from a large area. . . . The evidence in this case clearly shows plaintiff’s market extended to the City of Pittston, and its right to have its property in the trade-mark protected is coextensive with the territory throughout which it is known and from which it has drawn its trade.”

We cannot escape the conclusion that the present case is ruled by Pennsylvania Central Brewing Co. v. Anthracite Brewing Co. and Hub Clothing Co. v. Cohen, supra.

As was said in the latter case (page 491): “The effect of the act of the defendants in this case must necessarily be to claim unfairly a share of plaintiff’s business and produce confusion in the public mind as to the identity of the person or firm whose goods they were buying, and, consequently, result in financial loss to plaintiff.”

We, therefore, make the following

Conclusions of law.

1. Defendant’s proposed use of the name “Dress-Eteria” constitutes unfair trade competition.

2. Defendant’s proposed use of the name “Dress-Eteria” will unlawfully mislead and deceive plaintiff’s customers in Pittston and vicinity and the public generally.

3. The injunction heretofore granted should be made perpetual and defendant enjoined from conducting his business in the City of Pittston under the trade name “Pittston Dress-Eteria,” and from using said name on signs, stationery, wrapping paper, boxes, labels, etc., in connection with his store at said location.

Decree nisi.

And now, Aug. 7, 1929, on consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. That the defendant be enjoined from transacting business at his store in the City of Pittston, Luzerne County, Pa., under the signs, stationery, wrapping paper, boxes, labels, etc., used by him in the conduct of his business at said location.

2. That the defendant pay the costs of this proceeding.

NOTE. — Decree final Sept. 24, 1929.

Prom Prank P. Slattery, Wilkes-Barre, Pa.


author: Schaeffer, P. J.,

text:
    Knoblauch v. Kiesel.

      Oliver Lentz, for Agnes Hoechner, petitioner.

      Samuel E. Bertolet, for plaintiff.
    July 22, 1929.
   Schaeffer, P. J.,

— The plaintiff, Tobias Knoblauch, has obtained a judgment against the two defendants, who are husband and wife, for the sum of $4000 upon a note signed by both. He has issued execution and is proceeding to make his money out of the individual property of Margaret Kiesel, as devisee and legatee under the wills of Peter Shipper, deceased, and of John Y. Shipper, deceased, whose estates are in process of settlement in the Orphans’ Court of this county, which court has appointed a trustee to sell the real estate of said Peter Shipper, deceased.

Agnes Hoechner also has a judgment for the sum of $800, entered subsequently to that obtained by Knoblauch, against said Ludwig and Margaret Kiesel. This judgment was also obtained upon a note executed by both defendants. Said Agnes Hoechner has presented her petition, reciting the above facts and the fact that the defendants are owners of certain real estate by the entireties, and that neither of them has any individual property except the wife’s interest in the two Shipper estates, and praying that the lien of the Knoblauch judgment be limited to the property held by the defendants as tenants by the entireties, or at least that Knoblauch be required to exhaust said joint property before proceeding against the separate property of Margaret. The petition sets forth that the petitioner is advised that her judgment is not a lien upon the estates by the entireties, and that unless Knoblauch be compelled to have recourse to that property, he will exhaust the individual estate of Margaret and thereby prevent petitioner from recovering her debt.

The plaintiff, Knoblauch, has replied by obtaining a rule for the dismissal of the petition upon the ground that, as it appears from the petition itself that the assets from which Knoblauch is seeking to make his money are at the present time within the jurisdiction of the Orphans’ Court, this court can have no jurisdiction to interfere therewith.

The plaintiff’s contention must be sustained. By the Orphans’ Court Act of June 7, 1917, § 9, P. L. 363, the Orphans’ Court is entrusted with the distribution of assets of estates of decedents among creditors and others interested and is given all control of executors, administrators, &e., in the possession of, or accountable for, any real or personal estate, of a decedent. This jurisdiction is plenary and exclusive and is not to be interfered with by the Court of Common Pleas. See Long’s Estate, 254 Pa. 370, 374, and Marsteller’s Estate, 76 Pa. Superior Ct. 377, which, although prior to the Act of 1917, state the established principle.

In passing, we may say that nothing appears upon the record to sustain the conclusion that the petitioner’s judgment, based upon a note signed by husband and wife, is not also with the Knoblauch judgment a lien upon the estates by entireties. The absence of the words “husband and wife,” or words to that effect, cannot affect the result. A conveyance to a man and woman who are in fact husband and wife, although not so designated in the deed, creates in both an estate by entirety: Raible’s Estate, 10 D. & C. 747, and cases cited. No question being raised under the Act of 1893, the presumption must be that a judgment against a man and woman who are in fact husband and wife is a lien against, and is collectible out of, any property held by them as tenants by the entireties.

And now, to wit, July 22,1929, the petition of Agnes Hoechner is dismissed, at her cost.

Prom Charles K. Derr, Reading, Pa.


author: Clark, P. J.,

text:
    Beckman’s Estate.

      Brooks & Curtze, for petitioner.
    Aug. 27, 1929.
   Clark, P. J.,

— John Beckman died, testate, April 10, 1929; he executed a will Nov. 21, 1927, named F. F. and F. A. Curtze executors, who requested the Erie Trust Company to be appointed administrator c. t. a.; the widow, Belle Beckman, filed her renunciation to be appointed, and April 30, 1929, the Erie Trust Company was appointed administrator c. t. a.

Testator’s will was very brief and did not contain any patent or latent ambiguities. After the usual recital of mental ability and the naming of executors, it contained this clause: “The said Executors to settle my entire estate in accordance with the Intestate Laws of the Commonwealth of Pennsylvania.”

A petition was presented to the court May 13, 1929, signed by Belle Beck-man. It recites that John Beckman died April 10, 1929; that he made a will; that he disposed of his estate according to the intestate laws; that he died without issue; that the petitioner is his widow; that letters of administration c. t. a. were granted to the Erie Trust Company; sets forth the names and addresses of those entitled to the estate; they are the widow, a brother, two sisters and several nephews and nieces.

The Act of June 7, 1917, § 2 (a), P. L. 429, as amended by Act of July 11, 1917, P. L. 755, 756, is as follows:

“Section 2(a). Where such intestate shall leave a spouse surviving and other kindred, but no issue, the surviving spouse shall be entitled to the real or personal estate, or both, to the aggregate value of five thousand dollars; in addition, in the case of a widow, to the widow’s exemption as allowed by law; and if such estate shall exceed in value the sum of five thousand dollars, the surviving spouse shall be entitled to the sum of five thousand dollars absolutely, to be chosen by him or her from real or personal estate, or both, and, in addition thereto, shall be entitled to one-half part of the remaining real and personal estate: Provided, that the provisions of this clause shall apply only to cases of actual intestacy of husband or wife, entire or partial, and not to cases where the surviving spouse shall elect to take against the will of the deceased spouse.”

The Act of July 11, 1917, P. L. 755, adds to the Act of June 7, 1917, P. L. 429, after the word “clause” these words: “as to said five thousand dollar valuation.”

In cases where the surviving spouse elects to take against the will, it has been decided that the special allowance of $5000 falls: Lucas’s Estate, 277 Pa. 554; Langerwiseh’s Estate, 267 Pa. 319.

In the instant case, the testator disposes of his estate to the very persons and in the exact amounts prescribed by the intestate law, and, hence, it is contended that there is an actual intestacy.

The Acts of 1917, supra, relate to the descent of estates of persons dying intestate. John Beckman did not die intestate, but his disposal of his estate works a result as though he did.

Instead of embodying verbatim et literatim in his will the several provisions of the intestate law relative to the distribution of his estate, he, nevertheless, utilizes them and makes them the measure for the shares to each of the beneficiaries instead of fully and specifically setting forth the exact amount of interest each heir was to receive.

The testator intended his widow should receive the $5000; she has elected to take under the will.

The questions involved have been fully discussed and decided by the Supreme Court in an opinion of which the following is a part:

“The argument in support of appellant’s contention, stated briefly, is that, inasmuch as the will makes the same distribution of the estate as would have followed by virtue of the statute had the husband died intestate, it results that there is an actual intestacy and that the appellant is thus brought within the provisions of the act that awards to the widow of an intestate the sum of $5000. This proposition would call for consideration if a proper determination of the case in hand in any way depended on its correct determination, but it does not so depend. This is not a case of intestacy, and since the Act of 1917 relates solely to the descent and distribution of the real and personal property of persons dying intestate, it cannot have place in the discussion, except as by the will it measures the bounty given by the testator to the several beneficiaries thereunder. Here we have a will duly proved, unequivocal and unambiguous in its terms, so plain and intelligible in its several parts as to leave no room for controversy as to the testator’s intention expressed therein, followed by the widow’s election to take thereunder. It gives to the widow such interest in the estate as the intestate laws of the State direct; in other words, such interest as she would be entitled to receive in case he were to die intestate. Where a will is so free from uncertainty or ambiguity as this, it calls for no interpretation; it could not have been more direct had the provisions been followed by a recital or specification of the preferences given by law to the widow in cases of intestacy. The mere fact that it adopts the fixed measure of distribution which the law had adopted in cases of intestacy is without significance affecting in any way its exclusively controlling guidance. The Act of 1917 provides the method to be followed in setting apart to the widow of an intestate the $5000 in value of the property, but makes no provision for an ascertainment of value in cases where the claim is made under the will:” Carrell’s Estate, 264 Pa. 143, 144.

The widow in this case elected to take under the will, “designated certain real and personal estate which she demanded should be set apart to her of the value of $5000,” and prayed for the appointment of two appraisers.

In the opinion just cited, the court further, after referring to instances where appraisers were necessary, held: “But here the widow has no right of selection; she takes in money or not at all.”

In holding that an appraisement was not necessary, the court rested its decision in part upon a provision of the will which effected a conversion of the estate into money and the distribution was to be exclusively as money, which does not require an appraisement.

The petition was dismissed by the court below and this action was affirmed by the Supreme Court, but “without prejudice to the right of appellant to enforce her claim by taking credit therefor in the settlement of her account as executrix and urging it upon final distribution.”

The articles named in the petition before us and claimed by the widow bring the case within that class which necessitates appointments of appraisers.

If, then, the Supreme Court in the Carrell case, supra, preserved to the petitioner the right to enforce her claim on the final settlement of her account, it would seem to follow in the case before us that appraisers should be now appointed; that will not injure the petitioner and may strengthen her right.

The value of the property selected by the widow must be determined.

The court grants the prayer of the petitioner and will appoint the appraisers, who will file their appraisement subject to the approval, disapproval or modification of the court and also to objections by any interested party, both as to their appointment and their estimated valuation of the assets claimed by the petitioner.

From Otto Herbst, Erie, Pa.


author: McDevitt, P. J.,

text:
    Harris v. City of Philadelphia et al.

      Saul, Ewing, Remick & Saul, for plaintiff.

      James Francis Ryan, Joseph P. Gaffney and Joseph R. Embery, for intervening defendants.
    Dec. 30, 1929.
   McDevitt, P. J.,

— This cause came on to be heard on argument sur exceptions of defendants and intervening defendant.

Counsel for the plaintiff has advanced two theories to support his complaint. First, that the Ordinance of June 14, 1929, is illegal. Second, that the Director of City Transit abused his discretion. The learned Chancellor decided the first in favor of the plaintiff and omitted to decide the second question either way.

We will discuss these two theories in the order stated.

I. The Ordinance of June H, 1929.

Section 6 of the Act of May 23, 1874, P. L. 230, provides: “All stationery, printing, paper and fuel used in the councils, and in other departments of the city government, and all work and materials required by the city, shall be furnished, and the printing and all other kinds of work to be done for the city shall be performed under contract to be given to the lowest responsible bidder, under such regulations as shall be prescribed by ordinance; and it shall be the duty of councils forthwith to enact such ordinances.”

From the time of the enactment of this law until very recently the method employed and the common practice prevailing has been for the awarding efficial to receive all bids offered at a public letting and then to determine the “lowest responsible bidder.” By this method the factors of responsibility and amount of the bid were intermingled, and an estimate made, of which was the lowest responsible bid, with all of these factors entering into the determination and without such segregation of the various elements entering into the award as would enable it to be made with something like scientific precision.

Prequalification of bidders for city contracts, under the Ordinance of June 14, 1929, has introduced no new principle into the conduct of city business, but consists only of a new method of applying an old principle. This is done by segregating the two elements entering into the question of “lowest responsible bidder," making the determination of responsibility precede the estimate in dollars and cents as shown by the bids.

The Ordinance of June 14, 1929, is a wise and well considered piece of legislation, whose design and effect will be to substitute a scientific for a haphazard method of determining the lowest responsible bidder, and it has the further recommendation of being distinctly authorized by the provisions of the Act of 1874, already quoted. It has long been established that where an ordinance is passed under the sanction of an act of assembly, its reasonableness is not open to inquiry and it cannot be set aside for that reason: Ligonier Valley R. R. Co. v. Latrobe Borough, 216 Pa. 221, 223. To the same effect, see West Chester v. P. T. Cable Co., 227 Pa. 384, 387; Canton Borough v. Williams, 67 Pa. Superior Ct. 239, 246; Setzer v. Pottsville, 73 Pa. Superior Ct. 573, 576. And even though the statutory language be general in its scope, the courts will not interfere with a municipality’s exercise of conferred power, if such exercise be reasonable, lawful and constitutional: Duquesne City v. Fincke, 269 Pa. 112, 121.

“An ordinance cannot be judicially declared invalid because its provisions are impracticable, unjust and unequal; the remedy is in the law-making, not the law-interpreting power:” Hadtner v. Williamsport, 15 W. N. C. 138.

Substantially to the same effect are the cases of Com. v. Walton, 236 Pa. 220, and Vare v. Walton, 236 Pa. 467.

In Com. v. Walton, 236 Pa. 220, the subject is considered at length. There the court said (page 222):

“If an act of assembly has been passed in the manner prescribed by law, and relates to a subject that the Constitution of the State does not forbid them to act upon, no court has the power to interfere with its execution. The legislative branch of our government and the judicial are independent of each other, and it is only when the legislative act is one that the Constitution prohibits that the court has authority to act, and what then can be done is to declare the act of assembly unconstitutional.

“Exactly the same principle applies to the ordinances of the City Councils.

“It is well to remember that what we speak of as acts of assembly are in reality the acts of governor and the legislature, and what' we call ordinances of councils should properly be designated as ordinances of the Mayor and Councils.”

The same doctrine was held by Judge Brégy, and was affirmed per curiam in Vare v. Walton, 236 Pa. 467.

In Com. v. Puder, 261 Pa. 129, it is decided that “every presumption is in favor of the validity of the exercise of legislative power, and the act must be upheld unless its provisions plainly violate a constitutional mandate.” That this applies as well to councilmanic legislation where it is pursuant to statutory authority, is well settled.

The legislature (state or municipal) is the sole judge of the wisdom and expediency of a statute or ordinance and the necessity for its enactment. Whether such legislation be wise, expedient or necessary is without importance to the court in determining its validity: Com. v. Puder, supra; Shaffer v. Public Service Commission, 268 Pa. 456.

As late as April 15th of this year, in Schuck v. School District, 296 Pa. 408, 411, it was stated that, under the law, the duty or the discretion vested in the awarding officer is “to determine who are and who are not responsible bidders.”

Section 6 of the Act of 1874, supra,, requires that “contracts be let to the lowest responsible bidder” and “under such regulations as shall be prescribed by ordinance.” Prequalification merely moves up the process of determining responsibility to a point preliminary to the bidding.

City Council, in response to the recommendation of Mayor Mackey’s “City Contract Committee,” and in harmony with modern thought upon the subject, has, by the Ordinance of June 14, 1929, prescribed that the determination of who are and who are not responsible bidders shall be made before and not after the public receipt of bids. Whenever a statute and city ordinances, made pursuant thereto, provide wheii and the manner in which city contracts shall be made, it is necessary to strictly follow such provisions: Harris v. Philadelphia, 283 Pa. 496 (1925).

The Ordinance of June 14, 1929, provided, in section 2, as follows:

“Section 2. Not later than ninety-six hours prior to the time of opening bids for the construction of public work, the Director or other official in charge of letting any contract therefor shall require and receive from any and all known prospective bidders a sworn statement in answer to a questionnaire or inquiry in standard form, showing that such intended or prospective bidder has the necessary facilities, experience and financial resources to perform the work in a proper and satisfactory manner within the time stipulated. Such statements must designate and describe the plant, equipment and facilities of the bidder, relate his experience in doing the same or similar work and disclose his financial resources, specifying the amount of his liquid and other assets and liabilities and the number and amount of his other existing contracts or commitments, including and indicating those with the City; said statements shall be confidential. Should the information so required be refused or omitted to be given, or should it, in the judgment of the awarding officer, reveal that the prospective bidder is not sufficiently equipped or qualified to enter into or perform the said contract, no bid therefor from such bidder or bidders shall be received or scheduled and the awarding official shall forthwith notify the proposed bidder thereof. If the proposed bidder be dissatisfied with such rejection, he may, within twenty-four hours after the receipt of such notice, request a hearing before a board to be composed of the said awarding officer and two other heads of departments, chiefs of bureaus of other departments, or other city officials conversant with construction work and to be designated by the mayor, or, in the absence of the mayor, by a director of any city department, in accordance with the order prescribed by section 1 of article ill of the Act of Assembly approved June 25, 1919, entitled ‘An act for the better government of cities of the first class of this Commonwealth,’ as amended. At such hearing, further evidence may be given with respect to the financial responsibility, plant, equipment, facilities and experience of the said prospective bidder or of other relevant matter as he may deem proper. After hearing the additional evidence or matters so presented, the said board may affirm, reverse, revise or modify the decision of the awarding official, in its discretion.”

It will be noted that, under the provisions of this ordinance, a duty was imposed upon the “awarding official,” who in this instance was the Director of the Department of City Transit, to exercise his “judgment” in determining whether “the prospective bidder is not sufficiently equipped or qualified to enter into or perform the said contract,” and, if so, “no bid therefor from such bidder or bidders shall be received or scheduled, and the awarding official shall forthwith notify the proposed bidder thereof.” The ordinance then provides that if the prospective bidder be dissatisfied with the selection of the “awarding official,” he may, within twenty-four hours, request a hearing before a board to be composed as therein provided and appointed by the mayor or some one in his behalf. Before such board, the prospective bidder might offer further evidence “with respect to the financial responsibility, plant, equipment, facilities and experience of the said prospective bidder or of other relevant matters as he may deem proper. After hearing the additional evidence or matters so presented, the said board may affirm, reverse, revise or modify the decision of the awarding official, in its discretion.”

This procedure was taken in this case. The three bidders whom the Director of City Transit found, in his judgment, not to be qualified to become bidders were duly notified in accordance with the ordinance, and they requested a hearing, and, after such hearing, the decision of the Director of City Transit was affirmed. No further action or appeal was taken by these prospective bidders. Two of them refrained from making any bids, and the remaining one (Golder) submitted a bid which was higher than that of the Keystone State Construction Corporation, the lowest bidder, but Golder’s bid was not scheduled and was withdrawn by Golder.

Plaintiff’s bill does not aver (a.) the invalidity of the Ordinance of June 14, 1929; he asserted it at trial only after pressure; (b) nor that any prospective bidder did not have knowledge of that ordinance; (c) nor that any prospective bidders were precluded from bidding because of that ordinance. As issues in an equity suit must be determined by the pleadings, and the pleadings raise no question as to the validity of the Ordinance of June 14, 1929, plaintiff’s bill should have been dismissed on that ground.

As the only issue raised by plaintiff’s bill is the allegation that the Director of City Transit declared that he would receive bids only from those who had complied with the Ordinance of June 14, 1929, and there being no other course for the Director to pursue under the provisions of the Ordinance of June 14, 1929, the language of the ordinance being mandatory that no bids shall be received except from those who have preqúalified as bidders, and plaintiff making no averments attacking the validity of that ordinance, no allegation that the questions contained in the questionnaire or any other conditions imposed by the Director of City Transit were burdensome or unfair or improper or not in accordance with the ordinance, and no allegations of any irregularity in proceedings thereunder, or any lack of opportunity for bidders to establish their fitness and qualifications, it is submitted that plaintiff’s bill should have been dismissed on that ground.

As the Supreme Court said in the former case of Harris v. Philadelphia (supra,), “all persons knew that it was an essential requirement and one which must be strictly performed and that the said official was without discretion in the matter.”

The only discretion which the Director of the Department of City Transit had was in the exercise of his judgment in determining whether the prospective bidder was “sufficiently equipped or qualified to enter into or perform the said contract,” and even as to this discretion the prospective bidder had a right to a review by a board as provided by the ordinance, and this course was actually pursued by the prospective bidders who were not qualified in the judgment of the Director of City Transit, and the board affirmed the decision of the Director.

The Ordinance of June 14,1929, is reasonable and legal and fully authorized by the Act of 1874. There was no necessity for the proposed Act of 1929, and the main objection to that bill, expressed in the Governor’s veto, “that it places unlimited discretion in one city official to disqualify a bidder without giving him any opportunity for redress if the one’s decision was arbitrary, unreasonable or unjust,” is overcome by the appeal provision of that ordinance.

One of the main reasons urged by counsel for the plaintiff and stressed by the learned Chancellor in making his decision is that the ordinance provides no common standard for ascertaining the responsibility and fitness of bidders.

The answer to this is two-fold.

In the first place, the making of such standards is an executive and not a legislative function; the discretion to be exercised in the letting of contracts is the discretion of the awarding official, which is purely executive in its character and should not be, and cannot be, controlled or regulated by ordinance. In the Charter Act of June 25, 1919, P. L. 581, section 2 (b), article ill, provides that “(b) The Council shall provide by ordinance for the proper and effective conduct of the affairs of the City by the Mayor and several departments and boards thereof, including all necessary expenditures, but shall not pass any ordinances directing or interfering with the exercise of the executive functions of the Mayor, departments, boards or heads of departments or officers thereof.”

No standard could be laid down which could solve or tend to solve the purpose in view.

Here the ordinance directs, as it should, the exercise of the discretion of the awarding officer subject to appeal to an impartial board. To say that it must go further than this and say what degree of fidelity, of honesty of purpose, of previous experience, of fixed and floating capital must constitute responsibility would be at once to take from the Director his function to pass upon these questions and to apply an impossible criterion.

No language could be more pertinent to the situation than that of the Supreme Court in the case of Com. ex rel. v. Mitchell, 82 Pa. 343, in which Mr. Justice Gordon, speaking for that court, said: “A dishonest contractor may impose work upon the city in spite of the utmost caution of the superintending engineer; apparently good, and even capable of bearing its duty for a time, which in the end may prove to be a total failure and worse than useless. Granted that from such a contractor pecuniary damages may be recovered by an action at law; this is, at best, but a last resort, that often produces more vexation than profit — a mere patch upon a bad job; an exceedingly meager compensation, at best, for the delay and incalculable damage resulting to a great city from the want of a competent supply of water. The city requires honest work, not lawsuits.”

In each instance, even though formerly recognized reputable contractors should propose to bid, they must bid with all others, and if a new bidder is found to be in all respects qualified for the undertaking, his bid in competition with that of previous contractors with the City will come into open comparison, and if the new man be found qualified and should he prove the lowest bidder, his responsibility having first been ascertained, the contract would automatically be awarded to him.

As to the danger which the learned Chancellor sees of political or other pressure in the prequalification, it is difficult to follow his reasoning.

Surely the opportunities for favoritism and political pressure are less where the clear-cut inquiry as to responsibility stands by itself and must be decided as that without reference to any matter involved in the figures of the bidders, which at that stage cannot be known.

The Ordinance of 1929 is fully authorized by the permissive language of the Act of 1874, and fully complies therewith.

II. Abuse of discretion.

The learned Chancellor in his decision stated that the question of abuse of discretion had been raised by the bill, but he did not decide it. His decision was based entirely upon his view that the pertinent section of the Ordinance of 1929 was invalid, and, therefore, that the bids were irregular and improper.

In Com. ex rel. v. Mitchell, 82 Pa. 343 (1876), a part of the decision in which has already been cited, the Supreme Court said in extenso:

“Now the court below, though they found, under the evidence, that the relators were responsible in all points in which the city had a right to inquire, yet they held that the word ‘responsible,’ as employed in the act, when applied to contracts, requiring for their execution, not only pecuniary ability, but also judgment and skill, imposes, not merely a ministerial duty upon the city authorities, such as would result did their powers extend no further than to ascertain whose was the lowest bid, and the pecuniary responsibility of the bidder and his sureties, but also duties and powers which are deliberative and discretionary. In this we concur with the court below. For it is scarcely open to doubt, but that word under consideration, as it is used in the statute, means something more than pecuniary ability. In a contract, such as the one in controversy, the work must be promptly, faithfully and well done — it must, or ought to be conscientious work; to do such work requires prompt, skillful and faithful men. A dishonest contractor may impose work upon the city, in spite of the utmost caution of the superintending engineer, apparently good, and even capable of bearing its duty for a time, which in the end may prove to be a total failure and worse than useless. Granted, that from such a contractor pecuniary damages, may be recovered by an action at law; this is at best but a last resort, that often produces more vexation than profit — a mere patch upon a bad job; an exceedingly meager compensation, at best, for the delay and incalculable damage resulting to a great city from the want of a competent supply of water. The city requires honest work, not lawsuits. Were we to accept the interpretation insisted upon by the relators, the difference of a single dollar, in a bid for the most important contract, might determine the question in favor of some unskillful rogue as against an upright and skillful mechanic. Again we know that, as .a rule, cheap work and cheap workmen are but convertible terms for poor work and poor workmen, and if the city, for the mere sake of cheapness, must put up with these, it is indeed in a most unfortunate position. It is unnecessary, therefore, to resort to authority for the condemnation of the interpretation, by which the ruling of the court below is sought to be overturned, for it is opposed to the unbiased judgment of all reflecting men, whether lawyers or laymen, and its adoption would be productive of far more evil than good. Agreeing then, as we do, with the Common Pleas that the duty imposed upon the respondents was deliberative and discretionary, we must also admit the conclusion reached by that court, to wit: that the writ of mandamus will not lie. For it is settled beyond controversy, that where the complaint is against a person or body that has a discretionary or deliberative function to exercise, and that person or body has exercised that function, according to the best of his or its judgment, the writ of mandamus will not be granted to compel the undoing of that which has been done: Griffith v. Cochran, 5 Binn. 87; Com. ex rel. Watt v. Perkins, 7 Barr, 42.”

The definition therein given of “lowest responsible bidder” and the “deliberative” and “discretionary” duties and powers of the awarding official have been followed by a long line of decisions down to and including Schuck v. School District, 296 Pa. 408.

When discretion is given to the head of a department or other city official under ordinance pursuant to statutory authority, the exercise of that discretion cannot be reviewed by a court unless plaintiff shows an abuse of that discretion. As was said by Mr. Justice Kephart in Hibbs v. Arensberg et al., 276 Pa. 24, 26, “the presumption is that their acts are on such considerations and their decisions reached in a legal way after investigation. When their actions are challenged, the burden of showing to the contrary rests on those asserting it, and it is a heavy burden; courts can and will interfere only when it is made apparent this discretion has been abused. Abuse of discretion does not, as a rule, come from unwise acts or mistaken judgment, but generally springs from improper influences, a disregard of duty or a violation of law.”

A review of eases in Pennsylvania as well as in other jurisdictions is to be found in the case of Relly v. City of Easton et al., 12 D. & C. 17.

Plaintiff’s bill does not contain any averments of fraud, improper influences, corruption or abuse of discretion under the Ordinance of June 14, 1929, and nowhere in plaintiff’s bill is this ordinance referred to.

In the present case, the language of the ordinance was mandatory that “no bid therefor from such bidder or bidders shall be received or scheduled” where the prospective bidder was found by the Director of City Transit to be not sufficiently equipped or qualified to enter into or perform the said contract, unless, of course, the Board of Review modified the decision of the Director of City Transit. The mandatory language of the ordinance which prevented the Director of City Transit from receiving any bid unless the prospective bidder was qualified under the ordinance was called to the attention of all prospective bidders in “Information for Bidders.” In paragraph 3 of the “Information for Bidders” it is stated:

“As required by Ordinance approved June 14, 1929, set forth in full in Paragraph 16 of these Specifications, each bidder will be required to submit to the Director, not later than ninety-six (96) hours prior to the time of opening bids, a sworn statement of his facilities, experience and financial resources upon the Department’s questionnaire form issued with these Specifications for the purpose of determining his qualifications and responsibility. Should the information so required be refused or omitted to be given, or should it, in th© judgment of the Director, reveal that the prospective bidder is not' sufficiently equipped or qualified to enter into or perform the said contract, no bid from such bidder or bidders will be received or scheduled, and the Director will forthwith notify the proposed bidder to that effect.”

In paragraph 16 of the special specifications annexed to the “Information for Bidders,” special attention is called to the Ordinance of June 14, 1929, and a full and complete copy of that ordinance is set forth in that paragraph of the special specifications.

The advertisements for bids for this work contained the following notice:

“The attention of prospective bidders is called to ‘Special Notice to Bidders,’ page 3 of the specifications. The Director’s office will not accept questionnaires after 11 A. M. (Eastern Standard Time), Monday, July 15, 1929, as indicated in Section 2, Page 15, oí the special specifications, Contract No. 301, Ordinance approved June 14, 1929.”

The “Special Notice to Bidders” referred to in the advertisements and found on page 3 of the specifications was as follows:

“Special Notice to Bidders.

“The attention of prospective bidders is called to the provisions of the Ordinance approved June 14, 1929, set forth in full in a following section of these Specifications, relating to and regulating proposals for work and material to be furnished to the City of Philadelphia; providing the amount, character and disposition of deposits to be made with such proposals; providing for the prequalification of prospective bidders for contracts for construction work by requiring answers to inquiries or questionnaires in advance of bidding showing the fitness of such prospective bidder's to perform the said contracts; authorizing the refusal to receive or schedule bids where such information is refused or not given or when it appears that the said proposed bidder is not sufficiently qualified and fitted to perform the said contracts; and repealing ordinances inconsistent therewith.”

The action of the Director of City Transit was not based on any misconception of law, ignorance through lack of inquiry into facts necessary to form intelligent judgment, or the result of arbitrary will or caprice, the tests laid down in Hibbs v. Arensberg, supra, for judicial interference with the discretionary power of the awarding official. The plaintiff failed to meet the burden imposed by law upon those who attack the acts of executive officers. He failed to show any improper influences, disregard of duty or a violation of law: Hibbs v. Arensberg, supra. He failed either to allege or to prove fraud or misconduct on the part of the awarding official: Hiorth v. Chester, 282 Pa. 387. Abuse of discretion not having been proved cannot and will not be presumed.

With reference to the contention of the plaintiff respecting the supposed secrecy with regard to the matter contained in the questionnaire, the practice and the law in this respect are precisely the same as they always have been.

By an Ordinance approved March 27, 1924, page 70 of the Ordinances of that year, it was provided that, after the receipts of the bids, any bidders “must supplement their bids with a sworn statement, which is to be confidential, showing that they have the necessary facilities, experience and financial resources to perform the work in a proper and satisfactory manner,” etc.

The foregoing ordinance was repealed by an Ordinance of March 21, 1928, page 111, providing in similar manner, after the receipt of bids, for a sworn statement, “which is to be confidential.”

This, in turn, was superseded by the Ordinance of June 14, 1929, which differed from its predecessors only in that information required of proposed bidders was to be furnished in a questionnaire in anticipation of the receipt of bids instead of being required after the bidding.

Indeed, long before the passage of any of these ordinances, it always has been the sane procedure and practice of the executive authorities of this city and elsewhere to inquire into the experience, facilities, resources and general adaptability of proposed contractors to do the work before the contract should be let to them, and the results of such inquiry have always been regarded as confidential information not to be divulged to bidders or others.

The bids have at all times been open to inspection by anybody and everybody, being made matters of public record, but the information as to the private affairs of proposed bidders has not been and should not be open to their rivals or to the public at large.

No statutory law and no judicial interpretation has ever gone to such a length as to permit public authorities to deter bidders by making knowledge of their most intimate and private trade conditions available to anybody who chose to take advantage of such an opportunity to obtain illicit information. To do so would be virtually to close the door to responsible bidders and to open it wide to those of opposite character.

In the case of Com. v. Walton, 236 Pa. 220-223, which was affirmed by the Supreme Court, it is made plain that in matters of this kind the question is not whether the court would have) reached the same conclusion as the executive, but whether the latter acted deliberately, honestly and with proper consideration of conflicting elements, if such there were.

A very similar matter was recently before this court in the case of Rodin v. Philadelphia et ah, and that case, involving questions and principles so similar to this one and the question whether a contract should be awarded to a particular bidder, was decided on the theory that the courts would not in such instances review and disaiflrm discretionary and deliberative judgment of the executive officer.

Exceptions of defendants and intervening defendant are sustained. The plaintiff’s bill is dismissed. Plaintiff to pay costs.


author: Kun, J.,

text:
    Kemske v. City of Philadelphia.

      Edgar Lank, for plaintiff.

      Harry S. Platowsky, Assistant City Solicitor, for defendant.
    Dec. 30, 1929.
   Kun, J.,

— Plaintiff brought suit against the City of Philadelphia to recover damages for the death of her husband, alleged to have resulted from the alleged negligence of the defendant, due to the existence of a hole or depression in Taeony Street or State Road near Shelmire Street, into which the wheels of the truck upon which decedent was riding sank, and, as alleged in the statement of claim, “thereby caused the said Frederick Kemske to be knocked and hurled from said truck into the said street,” whereby he received serious injuries, resulting in his death.

The evidence presented at the trial showed that the occurrence took place on June 28, 1927, at about 2 o’clock in the afternoon. Tacony Street or State Road was not then a regularly paved city street, but a macadamized road, which was higher in the centre and sloped off toward the edges, the centre portion of which only was paved.' The location is in the northeastern section of the city, a portion then not fully developed. A sewer was being built along the east side of the road and the work had been going on for three or four months, so that only the west side of it was open to traffic, leaving sufficient width for only one lane of travel, so that when vehicles proceeding in opposite directions met, one of them was obliged to pull out to the side of the road to permit the other to pass. There were ruts and holes all along the road while the work was going on. The testimony also discloses that about where Shelmire Street would intersect State Road, if cut through, there was a sewer manhole in the road near the centre, and on the west side of the road, about twenty-five feet south of Shelmire Street, there was a large tree with overhanging branches. A large building was being erected on the east side of State Road just north of Shelmire Street.

The testimony disclosed that the decedent, an employee of the Belmont Iron Company, was engaged with others in the work of hauling steel to the building operation referred to, his especial job being to walk with another employee behind the truck used in transporting the steel, to direct its course, so that it would not come in contact with any object and possibly do damage. According to the proofs, the decedent and his co-employees had been hauling steel girders in that way over the same route for several days.

On the day of the accident, they were hauling a steel girder, some twenty feet long, five or six feet high, and weighing about three and a-half tons, which had been placed on the truck crosswise or at right angles, so that it extended out about seven feet beyond the truck on each side. The girder was blocked and lashed down to the truck. The decedent and his fellow-employee, charged with the specific duty of walking behind the truck to guide its safe course, shortly before the accident, in violation of that specific duty and in violation also of specific orders not to get on the truck, sat themselves on the rear of the truck, the decedent with his back to the girder and the other on the end of the girder. The truck was proceeding at a very slow rate of speed.

There were two witnesses to the fact question called. The first witness was the driver of an automobile following behind another automobile which was immediately back of the slow-moving truck. This witness testified that while he was so proceeding he saw the truck bounce at the time when the right wheel of it went into a depression in the road, which, he stated, shook the girder, rocking it from side to side and finally breaking its lashings, caused it to be knocked entirely off the truck, during which process the decedent was struck. This witness described the hole or depression into which he said the right wheel of the truck slipped as being about four feet long and extended across the road two feet wide and one foot deep, and he fixed the location of it about twenty-five feet beyond the tree on the west side of the road, heretofore referred to, and said it had existed there for several months before the accident. It appeared to the Trial Judge at the conclusion of this witness’s testimony that the manner in which he described the occurrence to have taken place was contrary to human experience, and it was incredible that a girder, blocked and lashed to a truck as described, would perform the antics described by the witness, because of the mere slipping of one of the wheels of the truck into a one-foot depression in the road, particularly in view of the fact that the truck was proceeding very slowly.

The situation was entirely cleared up by the next witness, who was a fellow-employee of the decedent, who testified as to their duties with reference to proceeding on foot behind the truck, as above stated. This witness testified that it was not twenty-five feet beyond the tree where the accident happened, but it was about opposite the tree where the wheels of the truck went into a hole at that point, which caused the end of the girder to strike the tree. Obviously that was the thing that tore the heavy girder away from its lashings so suddenly, it seems, that the decedent unfortunately did not have sufficient time to escape the injuries which resulted in his death. The fellow-employee, who was on the end of the girder, was able to jump off and escape injury. There was no description of the hole referred to by this witness or any testimony of its prior existence.

There are a number of reasons why it was proper to enter a non-suit in this case. That the decedent was guilty of contributory nebligence was clear. He was under specific orders to avoid danger, not only for himself but for others, and for that reason was directed to walk behind the truck with the heavy girder on it, to guide its course so that it would not strike any object or person on the way. Instead of that, right before the accident, he sat himself on the back of the truck, practically under the heavy girder which it was moving, when the end of the girder struck the tree, which was the very thing decedent' was employed to try to avoid. It may be said, in passing, that at the time of the accident, the driver of the truck was alone in the cab on the front of it, so that if the decedent had had any right at all to ride on the truck, it would have been his duty to take that seat and not stand or sit on the platform, and this without regard to the presence of the heavy girder on it: Zavodnick v. A. Rose & Son, 297 Pa. 86.

The decedent placed himself in a position of such manifest danger in violation of his duty that he must be charged with contributory negligence. The presumption of due care on his part was completely rebutted by the testimony produced on behalf of the plaintiff.

It seems unnecessary to make any further comment about the case. Aside from the question of contributory negligence, there is no basis on which the case could go to a jury. If the plaintiff’s case rested on the testimony of the first witness and it went to a jury, a verdict for the plaintiff would have to be set aside because of the incontrovertible physical facts which show that the accident could not have taken place in the way he testified it did; that is to say, a three and a-half ton girder, blocked and lashed down to a truck, could not be completely torn away from its fastenings and thrown off the truck because a wheel of the truck went into a one-foot depression in a road while the truck was proceeding at a slow rate of speed. Courts are not required to believe that which is contrary to human experience and the laws of nature, or that which they know to be incredible: Maue v. Pittsburgh Rys. Co., 284 Pa. 599; Folger v. Pittsburgh Rys. Co., 291 Pa. 205.

The case could not go to the jury on the testimony of the second witness, a co-employee of the decedent. This witness also stated that the wheels of the truck went into a hole (not the one the first witness testified to), adding that the end of the girder then struck the tree. It cannot be argued that the proximate cause of the result was that defect in the road, because there was no evidence in the ease of the nature and extent of or of the prior existence of that hole. The hole that was properly described by the first witness was located by him some twenty-five feet beyond the tree.

The testimony in this case did not present one in which there were mere contradictions of details of an occurrence which a jury might harmonize, but one rather in which it appears that on no theory could the plaintiff recover, or, to put it more favorably, if it could be said the plaintiff might recover on one of the theories, recovery could not be had on the other, and in such a case the jury cannot be permitted to guess at a favorable result to the plaintiff: Bruggeman v. York, 254 Pa. 430; Murray v. Pittsburgh, etc., R. R. Co., 263 Pa. 398; Zeher v. Pittsburgh, 279 Pa. 168; Cain v. Booth & Flinn, 294 Pa. 334.

The court knows of no legal theory on which this case could have been submitted to the jury, though there are other reasons which justify the court’s action in entering the non-suit, unnecessary, however, to add. It is better in such circumstances to declare the law and enter a none-suit, rather than to permit a jury to indulge in a useless speculation, because a verdict for the plaintiff could not stand.

Motion to take off the non-suit is overruled.


author: Martin, P. J.,

text:
    Peerless Soda Fountain Company v. Schneyer.

      E. N. Polisher, for rule; Leon B. Miller, contra.
    Oct. 21, 1929.
   Martin, P. J.,

— Plaintiff is the holder of a bailment lease containing authority for an attorney to enter judgment against the person who executed the lease. The attorney for plaintiff applied to the prothonotary to enter judgment.

Upon refusal of the prothonotary to enter judgment, a petition was presented to the court on behalf of plaintiff, averring that it is the original holder of the instrument in writing, a copy of which is attached to the petition.

A rule was granted to show cause why judgment should not be entered in favor of the Peerless Soda Fountain Company against David Schneyer, upon the presentation or filing with the prothonotary of a true and correct copy of the original lease between the parties.

An examination of the lease discloses that the warrant of attorney constitutes an integral part of the lease.

Rule No. 139 of the Rules of the Courts of Common Pleas of Philadelphia County provides that: “Where the warrant of attorney constitutes an integral part of a lease or other original contract, it shall be sufficient to file a copy of the lease or contract.”

There is no denial of the facts alleged in the petition. Application was made to the prothonotary to enter judgment pursuant to the warrant of attorney constituting an integral part of the lease.

Upon a copy of the lease being offered to the prothonotary for filing, the judgment should be entered. Rule absolute.