author: Whitten, J.,

text:
    Mabon v. Penn Public Service Corporation.

      Bauer & Copeland, for plaintiffs.

      Gaither, Portser & McConnell and Barnhart & Bender, for defendant.
    Sept. 25, 1928.
   Whitten, J.,

The above-mentioned actions of trespass were instituted Aug. 26, 1927. In each case the plaintiff alleges, as a cause of action, that on Nov. 16, 1926, the plaintiff, Anita Mabon (a minor child of the other plaintiffs), was seriously injured while she was lawfully on a public highway in Westmoreland County by coming in contact with an electric wire owned, used and controlled by the defendant; and that the proximate cause of the said injury to Anita Mabon was the negligent operation and control of said electric wire on the part of the defendant.

The summons in each case was served Sept. 2, 1927, by the Sheriff of Cambria County — who was deputized for that purpose by the Sheriff of Westmoreland County — upon.the defendant’s officers at the principal office of the defendant in Cambria County in the manner provided by law.

Pursuant to the provisions of the Act of March 5, 1925, P. L. 23, the defendant obtained a rule to show cause why the writ of summons in each case should not be set aside. The basis of the rule so granted in each case was the following:

(a) That the defendant is a corporation of Pennsylvania, and that its principal office and place of business is at Johnstown, Cambria County.

(b) That none of the officers or directors of the defendant company reside in Westmoreland County.

(c) That it (the defendant) conducts neither a substantial nor a material part of its business in the County of Westmoreland.

The plaintiffs made answer to the above petition and rule, admitting the averments (a) and (b) alleged in the defendant’s petition, but denying the averment (ó) that the defendant “conducts neither a substantial nor a material part of its business in the County of Westmoreland;” and alleging specific facts to the contrary, and praying that the said rule be dismissed.

By agreement of the parties, a commissioner was appointed, who heard all the proofs offered by the respective parties and reported the same to the court.

Based upon the proofs, the court finds the following facts:

1. That defendant is a corporation organized and existing under the laws of Pennsylvania, having its principal office and place of business in Cambria County. None of its officers or. .directors reside in Westmoreland County.

2. At the time the alleged cause of action arose, and at the time when service of the summons upon the defendant was made by the sheriff, the defendant company, in the exercise of the powers conferred by its charter, was furnishing electric service (light) to 801 domestic consumers in the Boroughs of Seward and New Florence and in the Townships of St. Clair, Derry and Fair-field, Westmoreland County. The defendant owned the lines and meters in the private houses of its customers and the lighting equipment on the streets in the Boroughs of New Florence and Seward. The defendant also furnished electricity to the Bolivar Light, Heat and Power Company, which company, in turn, sold it to 500 customers in the Borough of Bolivar, Westmoreland County. The defendant paid a pole tax rental on 160 poles in the Borough of New Florence.

3. The defendant owned and still owns the following real estate in Westmoreland County: (a) A lot.in the Borough of New Florence; (b) a tract of land in St. Clair Township, upon which there were and are erected ten houses, which are occupied by employees at the defendant’s power-house near the Borough of Seward. The purchase price of this property was about $27,000; (e) one acre of land in Fairfield Township and two rights of way.

4. The gross revenues of the defendant company derived from customers in Westmoreland County during the year 1927 was $138,047.38. The defendant rents a store-room in the Borough of Seward.

5. The defendant also furnishes electric service in the Counties of Somerset, Cambria, Indiana, Clearfield, Centre, Jefferson, Elk, Clarion, Forest, Warren, Crawford and Erie.

6. The gross revenues of the defendant company for the year 1927 were $9,478,706.90.

During that year the defendant furnished electricity to 76,134 customers. Mr. Reiber, defendant’s “comptroller,” was unable to state the amount of defendant’s gross receipts from any county except Westmoreland.

7. The defendant had and still has four regular employees in Westmoreland County, who work in and about its lines in said county and in and about its power-house adjacent thereto.

8. In the exercise of its franchises in Westmoreland County, the defendant owns and maintains about twenty miles of high-tension power lines.

9. The business thus conducted by the defendant in Westmoreland County in the exercise of its franchise was not transient, but was and is habitual and continuous.

10. At the time when the alleged cause of action arose and at the time of the service of the writs of summons in these cases, the defendant, in the exercise of the powers conferred by its charter, was conducting a substantial part of its business in Westmoreland County. There was then located, and still is located, in Westmoreland County a substantial part of the defendant’s property, which property the defendant utilized in the conduct of its business there.

In their brief, defendant’s learned counsel frankly state the issue before the court as follows: “The writs of summons which the defendant asks to have set aside were issued out of this court and served at the proper office of the defendant in Johnstown on W. A. Reiber, comptroller, the service being made by the Sheriff of Cambria County, in the method provided in such cases by the Act of 1901, that is, by the Sheriff of Westmoreland County deputizing the Sheriff of Cambria County. The defendant does not contend that the service was not properly made in the manner as provided for by the Service Act of 1901, but it does contend that said act does not confer jurisdiction and denies the jurisdiction of this court over the defendant in these cases.”

Therefore, the only question is, has the Court of Common Pleas of Westmoreland County jurisdiction over the defendant for the purpose of hearing and determining the rights of the parties in the above stated actions?

In Lobb v. Pennsylvania Cement Co., 285 Pa. 45, the Supreme Court (page 47) expressed the rule thus: “We have many times been called upon to determine whether Pennsylvania corporations, whose principal office and place of business is in one county of the State, may be served with process in any other county. The guiding principle of the decisions is that a domestic corporation may be served in any county where it habitually carries on a substantial part of its business or exercises its franchises and has property.”

In Gengenbach v. Willow Grove Park Co., 280 Pa. 278, the Supreme Court (page 281) said: “Suit” against the Pennsylvania corporation “must be brought only where the principal office is located and the service made as directed by the acts referred to, but an exception is upheld where the defendant corporation conducts a substantial part of its business in another jurisdiction, exercising its franchises and locating there the whole or part of its property.”

In Bailey v. Williamsport and North Branch R. R. Co., 174 Pa. 118, the Supreme Court said: “Here the service was not in the county where any part of the corporate property was situated; it was on an officer temporarily within the territorial limits of the court, where the corporation had neither office nor agent, and where, so far as the proofs show, it transacted no business. We hold that the proper construction from all the legislation on the subject compels the plaintiff to bring her action in this form and for this cause in a county where the corporate property is in whole or in part situated.”

In Park Brothers & Co., Ltd., v. Oil City Boiler Works, 204 Pa. 453, the Supreme Court (page 456) said: “At common law a corporation could only be sued in a territorial jurisdiction where it had its legal domicile, and that was where it had its chief place of business. . . . It is . . . firmly settled . . . that the common-law rule as to suits against corporations is still the general rule in Pennsylvania, and any exceptions to it must rest on clear statutory authority. . . . No suit is authorized against a corporation except in a county where the corporate property is in whole or in part situated, or where it transacts a substantial part of its business.”

In De Haas v. Pennsylvania R. R. Co., 261 Pa. 499, the Supreme Court (page 501) said: “At common law a corporation could only be sued in the territorial jurisdiction where it had its legal domicile, that is, where it had its chief place of business: Park Brothers & Co., Ltd., v. Oil City Boiler Works, 204 Pa. 453. This was enlarged by the Act of June 13, 1836, § 42, P. L. 568, so as to authorize suit against a corporation in any county where the cause of action arose. The Act of March 21, 1842, § 8, P. L. 145, provides, inter alia, that ‘when any action is commenced by any person or persons or by a corporation against an incorporated railroad or canal company in any county in which the corporate property of such company is wholly or in part situated it shall be lawful, etc.,’ directing the manner of service of process in such cases. The Act of March 17, 1856, P. L. 388, contains a like proviso as to commencing suits against corporations in general. ... A corporation of this State exists in any county where it has property and exercises its corporate franchise, and, being lawfully served, must respond to any transitory action brought there against it. A corporation is an artificial person and there is no reason in principle why it should enjoy an immunity from suit not given to natural persons under like circumstances. ... It is fair to assume that the Acts of 1842 and 1856 were intended to serve some purpose, but it is difficult to discover what, unless they extend the jurisdiction of the courts to counties where corporate property is situated.”

We have found no case where the Supreme Court has applied the law to the exact state of facts which the instant cases present. Therefore, we have quoted at length from these decisions, in kindred cases, for the purpose of clarifying the principles of law which are applicable here.

The numerous decisions of our highest court compel the conclusion that a Pennsylvania corporation may be sued in any county where, in the exercise of its franchises, it conducts a substantial part of its business, and where a part of its property is located — which property was used and is used in the conduct of its business there, and especially where, as here, suit is brought in a county where the cause of action arose.

As above stated, it is undisputed that the defendant’s principal office and place of business is in Cambria County, and that none of its directors or other officers reside in Westmoreland County.

Defendant’s learned counsel contend that the Court of Common Pleas of Westmoreland County has no jurisdiction, because, they allege, the defendant does not conduct a substantial part of its business in the County of Westmoreland.

In the instant case, the alleged cause of action arose in Westmoreland County, and the plaintiff’s injury was caused by the negligent operation of defendant’s property in that county while such property was being used in the exercise of the defendant’s franchise.

In Gengenbach v. Willow Grove Park Co., supra, the Supreme Court (page 280) said: “At common law, such body could be sued where it had its legal domicile. The Act of June 13, 1836, § 42, P. L. 568, authorized a suit in any county where the cause of action arose, but the jurisdiction was broadened by the Act of 1842 (March 21st, § 8, P. L. 145), which permitted the institution of proceedings when the corporate property was wholly or in part situate in another district, and this power was reaffirmed by the Act of March 17, 1856, P. L. 388.”

In De Haas v. Pennsylvania R. R. Co., supra, the Supreme Court (page 501) said: “At common law, a corporation could only be sued in the territorial jurisdiction where it had its legal domicile, that is, where it had its chief place of business. . . . This was enlarged by the Act of June 13, 1836, § 42, P. L. 568, so as to authorize suit against a corporation in any county where the cause of action arose. ... A corporation of this State exists in any county where it has property and exercises its corporate franchises, and, being lawfully served, must respond to any transitory action brought there against it.”

The defendant then had and still has considerable real estate and personal property in Westmoreland County, all of which property the defendant used and still uses in the exercise of its corporate powers and duties and in the earning of gross receipts in Westmoreland County amounting to $130,000 annually.

Notwithstanding these matters of fact which are undisputed, defendant’s learned counsel argue that the defendant does not conduct a substantial part of its business in Westmoreland County — and that, therefore, this court is without jurisdiction in the premises.

In Park Bros. & Co., Ltd., v. Oil City Boiler Works, supra, the Supreme Court states that suit may be brought in a county (other than the legal domicile of the defendant corporation) “where the corporate property is in whole or in part located, or where it transacts a substantial part of its business.”

In Gengenbach v. Willow Grove Park Co., supra, it is held (opinion page 281) that suit may be maintained in a county where the defendant conducts a substantial part of its business, exercising its franchises and locating there the whole or part of its property.

However, in the instant case, the defendant not only transacts a substantial part of its business in Westmoreland County, but also a part of its property is located there, which property is and was used by it in the exercise of its franchise in Westmoreland County.

Defendant’s learned counsel also suggests that the phrase “a substantial part of defendant’s business” means a large proportion of its business — for example, one-half or one-third of its business. No authority has been cited sustaining this contention and we have discovered none. On the contrary, we hold that an annual gross revenue of $130,000 should be considered a substantial amount.

Decree.

And now, Sept. 25, 1928, after argument by counsel and upon due consideration, it is ordered, adjudged and decreed that the rule heretofore granted to show cause why the summons in assumpsit in the above-entitled cases should not be set aside is discharged; with leave to the defendant to file an affidavit of defense in each case, if it desires so to do, within fifteen days from this date.

Prom William S. Rial, Grreensburg, Pa.


source: Caselaw Access Project

author: MacDade, J.,

license: Public Domain

text:
    Trestrail v. Mendel.

      William J. MacCarter, for plaintiff; Geary & Rankin, for defendant.
    Jan. 11, 1929.
   MacDade, J.,

This is a petition of the defendant, S. W. Mendel, to be released on common bail in an action of trespass wherein a capias ad respondendum issued based on an affidavit to hold to bail for trespass, duly filed on Oct. 2, 1928, and the said writ issued eo die, which said writ and a copy of which statement of claim were served upon the defendant on Oct. 4, 1928.

That bail was fixed specially in this matter, as by reference to the said affidavit to hold to bail for trespass will more fully disclose, in the sum of $1000, and the defendant complied with the order of the court and bail was furnished and the defendant released.

It is claimed in the petition on which testimony was taken before the court that the defendant should be admitted to common bail for the following reasons:

1. That the affidavit to hold to bail and the statement of claim vary in the following paragraphs: Paragraphs 3 and 17.

2. The affidavit to hold to bail and statement of claim do not set forth a prima facie case of negligence.

3. That the minor child injured was not severely injured, as set forth in said affidavit of defense to hold to bail and the said statement of claim.

We shall epitomize the above reasons by stating that our inquiry shall be directed to the testimony to ascertain as a fact whether there was (1) a violent personal injury, and (2) damage in a specific amount averred.

We are not troubled, ourselves, about any variance in paragraphs 3 and 17 of the affidavit to hold to bail and the statement of claim, because the latter is amendable, and, even if amended, does not change the cause of action.

It would be a grave misconstruction, both of the Practice Act and of the purpose of an affidavit to hold to bail, to require that such ex parte affidavit be drawn under the rigid rules of the Practice Act, in that such pleadings should fall merely for an immaterial variance and for a statement of cause of action which defendants contend is too general under the said act. We shall consider only, therefore, the sufficiency of the affidavit to hold to bail, which affidavit is not, in itself, amendable, for the right of the plaintiff to proceed in the present case depends solely and absolutely upon the sufficiency of the said affidavit. If it is defective, then the defendant must be released on common bail.

The variances referred to are entirely immaterial, and amendable even at the time of trial with respect to the statement of claim.

In Levin v. Clad & Sons, Inc., 244 Pa. 194, it was held: “In an action of trespass to recover damages for personal injuries, an amendment to the statement of claim, averring the date of the accident to be April 26, 1907, instead of April 22, 1907, does not set up a new cause of action and may be made after the statute of limitations has run, and. the plaintiff in such case is not required to file a new declaration and rule the defendant to file a new plea:” McKane v. City of Philadelphia, 78 Pa. Superior Ct. 168; Chapman v. Welsh, 90 Pa. Superior Ct. 225.

Only such facts “as the pleader depends upon to show liability” need be averred: Frey v. Dougherty, 286 Pa. 45; Lincoln v. Martin, 5 Pa. C. C. Reps. 533; Com. v. Esterly, 10 Pa. C. C. Reps. 1; Conrad v. P. R. T. Co., 15 Del. Co. Repr. 103.

“An amendment changing the time or place of an act of negligence or supplying the date is not a change of the cause of action:” Scott v. Baldwin Locomotive Works, 26 Dist. R. 770.

“A statement of claim in trespass which by a clerical error avers incorrectly the date when the negligence occurred, so that the cause of action appears to be barred by the statute of limitations, may be amended by averring the correct date:” Rock v. Cauffiel, 271 Pa. 560.

Now, adverting to the affidavit to hold to bail, the defendant claims that it does not present a prima facie case of negligence, nor does it disclose a case justifying the issuance of a capias and that there is no violent personal injury.

The Act of June 13, 1836, P. L. 572, as limited by the Act of July 12, 1842, P. L. 339, is the present statutory basis of the capias ad respondendum in tort. Since the express repeal of sections 4 and 5 of the Act of 1836 by the Act of 1838, no affidavit of plaintiff’s cause of action is necessary to the issuance of the writ: 1 Troubat and Haly Pr., 305.

However, Rule 1, “Bail,” of the Delaware County Rules of Court (page 20) provides: “Bail shall not be required in actions of trespass vi et armis, in actions of libel, slanderous words, malicious prosecution, conspiracy or false imprisonment, unless an affidavit of the cause of action be made and filed before the issuance of the writ, nor shall such bail be in a sum exceeding five hundred dollars, unless specially allowed by the court or a judge in vacation.”

The affidavit is to inform the court as to whether or not plaintiff’s action is proper upon the facts and is brought in good faith. It is not a pleading in the case, nor is it susceptible of answer: Comely v. Knight, 1 Bro. 286; Berger v. Smull, 39 Pa. 302.

The only mode of showing cause of action is by the affidavit to hold to bail: 1 Troubat and Haly Pr., 324.

Reference has been made to the case of McLaughlin v. Parry, No. 2000, June Term, 1928, Delaware County; but this case is not controlling in the case at bar, for in that case the defendant was discharged because averments of negligence in the affidavit to hold to bail were mere conclusions and not statements of facts. The fact was, that the plaintiff there, in his statement of claim as filed, had abandoned the only properly alleged cause of action set out in his affidavit, namely, for assault and battery.

Something was said that, inasmuch as the defendant had entered bail, he was barred from raising the question herein — that he should be released on common bail. We consider this immaterial and that his right to move as he has done in this case is not affected because he has entered bail in compliance with the command of the capias, for the entry of bail by a defendant arrested upon a capias ad respondendum does not waive his right to a rule to be discharged on common bail, or to object to the action, or to the liability to arrest, or to the right to hold to bail, or the amount thereof: Orzel v. Cominsky, 14 Del. Co. Reps. 173.

The entry of bail by the defendant does not waive the right to resort to this rule: Desuian v. Zefcak, 22 Pa. C. C. Reps. 77; Morrison v. Gardener, 39 Legal Intell. 22. It was done in Becker v. Goldschild, 9 Pa. Superior Ct. 50.

Under the old practice, prior to the passage of the Act of June 13, 1836, P. L. 572, a defendant arrested on a capias either gave bail to the sheriff for his appearance or gave bail to the action: 1 Troubat & Haly’s Pr., Part I, p. 312.

Logically, when the defendant had the right either to give bond for his appearance or bail to' the action, the giving of bail to the action would be a waiver of objections to the action. But this is changed by the Act of 1836, which prescribes the only bail to be given is bail to the action. Hence, bail to the action being given under compulsion, to avoid imprisonment, is not to be taken as a waiver of the right to object to the action, or to the liability to arrest, or to the right to hold to bail, or the amount thereof.

It is a general rule of law that in actions of trespass bail is not demandable. An affidavit charging negligence in not guarding a cellarway in a sidewalk, and averring injuries, consisting of wounds to the person, cost of treatment, loss of employment, impairment of the nervous system and pain and suffering, is not sufficient to hold to bail: Turner v. Sugarman 14 Del. Co. Reps. 175.

The general rule is that in actions of trespass bail is not demandable, because there is no standard by which the damages can be measured. The exceptions to this rule are where the defendant is about to depart out of the jurisdiction of the court, or where there has been a violent battery, in which the plaintiff may sometimes swear to damages to a certain amount, and it may be evident, from a view of the wounds, that considerable damage must have been sustained, or where the injury complained of is gross or enormous: Duffield v. Smith, 6 Binney, 302; Carroll v. Simons, 11 Dist. R. 47, 27 Pa. C. C. Reps. 29.

We think this action is not within the general rule, and that defendant’s rule that he be discharged on common bail must be discharged, for the affidavit in this case shows a violent personal injury, and avers damage in the specific amount of $15,000, namely, that the said plaintiff, Albert C. Trestrail, claims of the said defendant, S. W. Mendel, damages in the sum of $5000, and the said plaintiff, Anna Trestrail, by her father and next friend, Albert C. Trestrail, claims of the said defendant, S. W. Mendel, damages in the sum of $10,000. It sufficiently shows a cause of action entitling the plaintiffs to demand bail.

It is hornbook law that, on a motion to discharge on common bail, the merits of the case will not be considered. The sole issue is, “Does plaintiff set up such a prima, facie case as entitled him to hold defendant to bail?” Waters v. Collot et al., 2 Yeates, 23.

While some decisions of the King’s Bench, which were followed by the earlier Pennsylvania decisions, refused to hear testimony from either side on a rule to discharge on common bail, and refused to allow supplementary affidavits to be filed by either side (see Eldridge v. Robinson, 4 S. & R. 548; Comely v. Knight, 1 Bro. 286); yet, in the instant case, we permitted testimony to be taken in order to determine as. to whether there was any violent personal injury inflicted, supplementing the affidavit to hold to bail, and by reference to the said testimony as well as the affidavit to hold to bail we learn that the defendant’s car struck and dragged the minor plaintiff fifty feet; neglected to observe the plaintiff’s position in the road; failure to avoid the plaintiff when this could have been done; speed of at least thirty-five miles per hour when approaching a school during the hours when the pupils were in attendance, and along a State highway; failure to retard speed when defendant saw the minor plaintiff; turning from the cement cartway to the stone ballast of the roadbed of a railway company where defendant saw the minor plaintiff standing.

These averments compare favorably with the averments in Adams v. Rogasner, C. P. No. 2, Philadelphia County, No. 4520, December Term, 1916, where the Court of Common Pleas refused to discharge the defendant on common bail, where the affidavit averred a collision caused by “the reckless, illegal and careless manner in which defendants drove an automobile, causing serious and permanent injury to his (plaintiff’s) head, face, chest, arms and body,” which injury plaintiff believed to be permanent; and further averring that plaintiff remained unable to follow his usual occupation, had expended moneys and suffered a decrease in his earning power, and claiming $10,000 damages.

Where there is a violent battery, specific injuries need not be alleged: Moll v. Witmer, 11 W. N. C. 498, wherein it was held that where the plaintiff alleged only that the defendant had struck him in the face with his fist, and averred no damages, the'defendant should not be discharged on common bail. See Baron v. Weber, 28 Dist. R. 83.

The plaintiff herein gives definite figures of damages, as, for instance, the amount of $87 for wearing apparel destroyed, $115 for doctor and other bills to date, damages for pain and suffering in the amount of $10,000. These allegations are far more specific than the allegations in the case above referred to.

Our view of the case is such at this time that it would be an affectation of industry upon our part to attempt to quote verbatim et literatim the testimony taken herein upon the subject of (1) violent injury, and (2) a definite figure of damages or a standard by which they can be ascertained, but, rather than detail this testimony, we simply refer to the said testimony and give the pages where ample testimony may be found to support our findings of fact and conclusions.

As to a real and serious injury not yet eured and still requiring medical treatment six months after injury, see Testimony, pages 21, 48, 49 and 51.

It is true that there is a general rule that in actions of trespass bail is not demandable, because there is no standard by which the damages can be measured: Roberts’s Digest, 87; Carroll v. Simons, 11 Dist. R. 47, 27 Pa. C. C. Reps. 29.

Yet, one of the exceptions to this rule is where there has been a violent battery (Moll v. Witmer, 11 W. N. C. 498), in which the plaintiff may sometimes swear to damages to a certain amount, and it may be evident from a view of the wounds that considerable damage must have been sustained.

In matters of mere tort, bail is not of course, but may be directed by a special order of the judge, as was done in the instant case, or of the whole court: Duffield v. Smith, 6 Binney, 302.

The affidavit in the present case shows a violent battery, and avers a damage of $15,000, and bail was specially allowed by a judge of this court in the sum of $1000. The cause of action here is trespass. Under our rule of court (page 20), no bail can be required in actions of trespass vi et armis without an affidavit of the cause of action: Fotterall v. Miller, 1 Del. Co. Reps. 286. Nor in such ease can bail be demanded over $500 without allowance of the court or judge.

Order.

And now, Jan. 11, 1929, after hearing and due consideration thereof, as well taking in view our facts and conclusions as aforesaid and the authorities therein referred to, the court doth order and decree that the rule to release defendant on common bail be and is hereby discharged.

From William R. Toal, Media, Pa.


author: Landis, P. J.,

text:
    Lancaster Trust Company v. Bertz.

      C. E. Charles and Dillinger ■& Schneller, for rule.

      Zimmerman, Myers & Kready, contra.
    July 7, 1928.
   Landis, P. J.,

This suit was brought to recover the sum of $8250 and interest on two promissory notes. The first note, for $1450, was made by S. S. Bertz and J. J. Bertz, per R. D. Owens, attorney-in-fact, to the order of S. S. Bertz & Brother, and was endorsed by S. S. Bertz & Brother, per S. S. Bertz. The second one, for $6800, was made by the Keystone Motor Sales Company, per S. S. Bertz, to the order of S. S. Bertz, Fred. W. Ritchey and J. J. Bertz, and was endorsed by S. S. Bertz, Fred. W. Ritchey, J. J. Bertz, per R. D. Owens, attorney-in-fact, and the Keystone Motor Sales Company, per S. S. Bertz. Both notes were duly protested for non-payment. The writ was issued on May 3, 1928, and the statement was filed on May 7, 1928. Both were served by the Sheriff of Lancaster County on May 7, 1928, on “J. J. Bertz, by handing a true and attested copy thereof to R. D. Owens, his attorney-in-fact.” The statement avers that J. J. Bertz “is a resident of the Town of Bath, County of Northampton and State of Pennsylvania.” It is not claimed that he had even a place of business in Lancaster County. While the notes were signed or endorsed by R. D. Owens as his attorney-in-fact, it is not averred that Owens was authorized by any letter-of-attorney to receive service of the writ or statement for or on behalf of J. J. Bertz. Under this state of facts, the defendant asks that the said service shall be set aside and the writ quashed.

Section 1 of the Act of March 5, 1925, P. L. 23, provides “that wherever in any proceeding in law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions, as the case may require; . . .” and section 2, that “all such preliminary questions shall be raised by petition, setting forth the facts relied upon, whereupon a rule to show cause shall be granted and such preliminary question disposed of by the court. Such procedure shall be deemed de bene esse only, and shall not operate as a general appearance.” But I conceive that, even before the passage of this act, a defendant could appear de bene esse and ask that the service of the writ be set aside. Thus, in Winrow v. Raymond, 4 Pa. 501, Rogers, J., said: “The practice in this State, commencing at an early period, is on motion to the court, at the instance of the defendant, to set aside a sheriff’s return when the writ is defectively served. Bujac v. Morgan, 3 Yeates, 258, is an instance of this kind. . . . The practice is to enter an appearance de bene esse and ask the judgment of the court as to the legality of the service.” In Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33, it is said: “It is the established practice in this State for a defendant to move to set aside a sheriff’s return where he believes the writ to have been defectively served.” This case was affirmed by the Supreme Court (197 Pa. 230). See, also, Fillman’s Appeal, 99 Pa. 286; Dale v. Blue Mountain Manuf. Co., 167 Pa. 402.

The defendant has, however, chosen to follow the provisions of the Act of 1925, and the sole question for determination is whether the service was in conformity to the law. The Act of July 9, 1901, P. L. 614, provides that “the writ of summons . . . may be served by the sheriff of the county wherein it is issued upon an individual, defendant or garnishee, in any one of the following methods: (a) By handing a true and attested copy thereof to him personally; or (b) by handing a true and attested copy thereof to an adult member of his family at his dwelling-house; or (e) by handing a true and attested copy thereof at his place of residence to an adult member of the family with which he resides; or (d) by handing a true and attsted copy thereof at his place of residence to the manager or clerk of the hotel, inn, apartment-house, boarding-house or other place of lodging at which he resides; or (e) by handing a true and attested copy thereof at his place of business to his agent, partner or the person for the time being in charge thereof, if, upon inquiry thereat, his residence in the county is not ascertained, or if for any cause an attempt to serve at his residence has failed.”

It is clear that, as the defendant is admittedly a non-resident, the first four sub-sections have no application to the present service. Does the fifth cover the present case? The return of the sheriff does not show that he served the writ at the defendant’s place of business or that the defendant had any place of business in the County of Lancaster. Nor does it show that the person upon whom he did serve it had any authority to receive the service. It is true that Owens is named as attorney-in-fact for J. J. Bertz, but that of itself is not sufficient, especially as the extent of the authority possessed by Owens is not shown by the return. In Lackey v. Donnelly, 25 Dist. R. 771, 43 Pa. C. C. Reps. 392, McCarrell, J., we think rightly, held that a power of attorney given to one to proceed for the collection of money did not constitute such person an agent to accept service of any summons, nor make such person one upon whom service could lawfully be made.

I am of the opinion that the writ and the statement in this case were defectively served, and that this rule should be made absolute and the service set aside. This is accordingly done. Rule made absolute.

Prom George Boss Eshleman, Lancaster, Pa.


author: Houck, J.,

text:
    Todd et ux. v. Lehigh Valley Coal Company.

      Roger Dever, for plaintiffs; D. W. Kaercher, for defendant.
    March 18, 1929.
   Houck, J.,

The referee awarded compensation for total dependency to William Todd and Rose Todd, the parents of John Todd, who sustained accidental injuries while in the course of his employment on feb. 3, 1928, which resulted in his death on the same day. The award was affirmed by the Workmen’s Compensation Board, and the defendant has appealed to this court. The defendant filed four exceptions to the decision of the compensation board. All of them raise the single question whether there is any legal competent evidence to sustain the referee’s finding of fact, affirmed by the board, that the claimants were totally dependent upon the deceased employee at the time of the accident.

This ease is governed by section 307 (5) of the Workmen’s Compensation Act, as amended by section 2 of the Act of Assembly approved April 13, 1927, P. L. 186, which provides: “If there be neither widow, widower nor children entitled to compensation, then to the father or mother, if dependent to any extent upon the employee at the time of the accident, 25 per centum of wages, but not in excess of $5 per week: Provided, however, that in the case of a minor child who has been contributing to his parents, the dependency of said parents shall be presumed; and provided, further, that if the father or mother was totally dependent upon the deceased employee at the time of the accident, the compensation payable to such father or mother shall be 45 per centum of wages, but not in excess of $10 per week.” The deceased employee was not a minor and the case does not rest upon any presumption. Hence, the burden was on the claimants to show affirmatively that they were dependent upon the deceased employee at the time of the accident: Corcoran v. Pennsylvania Coal Co., 76 Pa. Superior Ct. 325. Dependency is a question of fact to be determined by the referee and the compensation board: Hallman v. Starr Printing Co., 70 Pa. Superior Ct. 562. “If the finding of dependency is based on any evidence or on an inference fairly deducible therefrom, the award must be sustained, though we might differ from the conclusion thus reached. We cannot substitute our judgment for that of the referee or the board, as the Compensation Act has delegated to them the exclusive function of determining these-facts:” Morris v. Yough Coal and Supply Co., 266 Pa. 216, 210. It follows that the only question of law involved in this appeal is whether there was any evidence to sustain the finding of total dependency: Faucett v. Philadelphia Rapid Transit Co., 89 Pa. Superior Ct. 449. If the record contains evidence to show that the claimants were totally dependent on their son at the time of the accident, the-award must be sustained, whether the proof be meager or plentiful, weak or strong: Gailey v. State Workmen’s Insurance Fund, 286 Pa. 311, 317.

An examination of the record discloses evidence showing that the deceased employee was over twenty-one years of age, single, that he lived with his parents, and that a widowed sister of the decedent and her two young children also lived in the household. There is testimony to show that the decedent earned $25.90 per week; that he contributed every penny of his earnings to his parents; that this was the only income they had at the time of the accident and their sole source of support. It was testified that the decedent’s father became totally disabled in January, 1928, prior to his son’s death; that he is suffering from chronic bronchitis and nephritis; and that his total disability will probably be permanent. It was shown that the claimants purchased the home in which they live in 1922 for $2600; that they still owe at least $1300 on this property, and that they have no money whatever in bank. The fact that the claimants purchased the property in 1922 and reduced the debt thus created from the time of purchase to the date of the death of the decedent is not conclusive proof that the claimants were not totally dependent upon the decedent at the time of the accident. When the property was purchased, the decedent and his father were both wage-earners. At the time of the accident, only the son was a wage-earner. Under the terms of the act, the question to be determined is dependency at the time of the accident, not at a time prior thereto. Viewing the evidence in the light of the principles referred to above, we cannot say that the referee’s finding of fact that the claimants were totally dependent upon their deceased son at the time of the accident is wholly without competent proof to sustain it. There is competent proof which, if believed by the compensation authorities, is sufficient to sustain the essential finding of fact. As we have already indicated, it is not for us to weigh the evidence. Our power is limited to the inquiry whether there is any competent evidence to sustain the findings of fact and whether the law has been properly applied. The finding of total dependency being supported by competent proof, and the award, based on that finding, being for the proper amount, the award must be affirmed.

The defendant’s exceptions are dismissed, the award is affirmed, and judgment is entered in favor of the claimants in the sum of $3000.

And now, March 18, 1929, an exception is allowed defendant and bill is sealed.

From M. M. Burke, Shenandoah, Pa.


author: Van Dusen, J.,

text:
    Buist’s Estate.

      Jerome J. Rothschild, for exceptant; Julius C. Levi, contra.
    April 4, 1929.
   Van Dusen, J.,

The trust estate owned 200 shares of the Fourth Street National Bank. This bank merged with the Franklin National Bank, and the estate received 200 shares of the Franklin-Fourth Street National Bank. The latter then merged with the Philadelphia-Girard National Bank and the estate received 200 shares of the merged institution — the Philadelphia National Bank. All were of the same par value. The book value of the latter shares exceeds by $10,924 the book value of the original shares at the time of the decedent’s death, and this sum was awarded to the life-tenant as income, payable in stock or cash.

The life-tenant of corporate stock is not entitled to corporate earnings as they are made. There must either be corporate action declaring cash dividends, or transforming earnings into capital and distributing them as so-called stock dividends (Earp’s Appeal, 28 Pa. 368) ; or a winding up of the corporate enterprise so that its assets are to be distributed to those who are equitably entitled to the respective portions (McKeown’s Estate, 263 Pa. 78); or a sale of the stock (Nirdlinger’s Estate, 290 Pa. 457), so that the connection of the stockholder with the corporate enterprise is severed.

The transaction in question is none of these. The exchange was share for share. No surplus or undivided profits have been capitalized and distributed as stock dividends. If, as a result of the exchange, the estate had received additional shares representing new capital created out of surplus, a different question would be presented. But the mere merger, the addition of the enterprise and its capital to another enterprise and its capital, is not a dividend.

Nor is a merger a liquidation. Quite the contrary — it is a continuation of the enterprise. The transaction is not different in that respect from the addition of capital by the issuing of new stock for cash. And for the same reason, this is not a sale. The estate still has the same capital interest in the new corporation — only the enterprise is a very much greater one.

The converse of our case is found in United States Trust Co. v. Heye, 224 N. Y. 242, 120 N. E. Repr. 645, a decision applying the Pennsylvania rule, which was cited and quoted from in the opinion in Nirdlinger’s Estate, supra. The court there held that the distribution pro rata to stockholders of the shares of constituent companies upon the dissolution of the Standard Oil Company under the anti-trust laws gave no occasion for an inquiry into earnings and apportionment thereof to a life-tenant. The transaction was not the capitalization of surplus and distribution of new shares as a dividend; and (we might add) it was not such a dissolution as terminated the connection of the stockholder with the business enterprise.

In order that it may not be forgotten, we mention that in case of a stock dividend the whole is, presumptively, earnings because so declared by corporate action. In the case of a dissolution or a sale, this is not so. See the end of the opinion in MeKeown’s Estate. Neither are we now concerned with the question as to whether the stock should be sold. To sustain the claim of the life-tenant would go beyond any of the decisions as we understand them.

The second exception relates to á finding of fact which is correct enough, but, in our view, immaterial. It is dismissed. The other exceptions of the remainderman are sustained and the adjudication is modified accordingly.

Lamoeelle, P. J., and Henderson, J., dissenting. Stearne, J., did not sit.


author: Smith, J.,

text:
    Commonwealth v. Rash.

      Bryan A. Hermes, Assistant District Attorney, and John Monaghan, District Attorney, for Commonwealth.

      Evans & Wernick, for defendant.
    May 3, 1929.
   Smith, J.,

This matter comes before the court on a motion to quash an indictment. The information affidavit upon which the warrant was issued charged the defendant as follows:

“2. Within four years last past, to wit, on or about March 10, 1924, Hyman Rash, being the president, director and owner of the majority of the capital stock of the Gallipolis Furniture Manufacturing Company of Gallipolis, Ohio, the Shelby Furniture Company of Shelby, Indiana, and the Fancy Furniture Company of Seymour, Indiana, did, within the jurisdiction of the Court of Quarter Sessions and Oyer and Terminer of the City and County of Philadelphia, State of Pennsylvania, make, circulate and publish a written or printed statement which he knew to be false, showing the financial condition of the said Hyman Rash, trading as the American Furniture Company, with intent to deceive and defraud creditors of, and with intent to induce various persons to advance money or property to, the said corporations by virtue of the personal guarantee and endorsement of said Hyman Rash on the obligations of said corporations, said statements being issued to establish the credit of said Hyman Rash and to induce said persohs to accept the said guarantee or endorsement of said Hyman Rash and to advance money or property to said corporation.
“3. Said Hyman Rash did, on or about March 10, 1924, by false pretense, through the instrument of, and by the issuance of, false and fraudulent statements as to the financial condition of said Hyman Rash, and within the jurisdiction of the Court of Quarter Sessions and Oyer and Terminer of the City and County of Philadelphia, State of Pennsylvania, obtain from Philip A. Metzger, and various other persons, goods and merchandise, with intent to cheat and defraud said Philip A. Metzger and other persons.”

The indictment reads that Hyman Rash, late of said county, on April 16, 1924, did make, circulate and publish and concur in making, circulating and publishing a certain written statement and account purporting to be a true and accurate statement and account of the assets and liabilities of the said Hyman Rash, trading as the American Furniture Company, and of his financial condition.

The statement made by the defendant was given by him as an individual. It is the contention of the Commonwealth that this statement showing his financial condition was false and that by its fraudulent representations [he] induced certain creditors to advance property and moneys to the Gallipolis Furniture Manufacturing Company of Gallipolis, Ohio; the Shelby Furniture Company of Shelby, Indiana; and the Fancy Furniture Company of Seymour, Indiana, corporations of which the defendant was president and majority stockholder.

The motion to quash is based upon several reasons, the principal one of which is that the action is barred by the statute of limitations. The Commonwealth contends that while the defendant gave the statement as an individual, the corporation benefited by this statement, and that, therefore, the limitation of action, as provided by statute for officers of a corporation, should govern, in this case being for four years instead of two as in cases when individuals are involved.

Section 4 of the Act of June 12, 1878, P. L. 106, is as follows: “If any officer, director, superintendent, manager, receiver, employee, agent, attorney, broker or member of any bank or other body corporate or public company, municipal or quasi-municipal corporation shall make, circulate or publish, or concur in making, circulating or publishing, any written or printed statement or account which he shall know to be false in any particular, with intent to deceive or defraud any member, shareholder or creditor of such body corporate or public company, municipal or quasi-municipal corporation, or with intent to induce any person to become a shareholder or partner therein, or to interest or advance any money or property to such body corporate or public company, or to enter into any security for the benefit thereof, [he] shall be guilty of a misdemeanor.”

An officer of a corporation may have a dual responsibility to observe the criminal laws of this Commonwealth, one in his representative capacity as an officer of a corporation and the other as an individual member of the community. When such a person is charged with the performance of a crime, the statute under which he is indicted must be carefully examined.

It is admitted that this defendant gave a statement of his individual property to a creditor of several corporations of which he was an officer, and that, based upon the fraudulent statement, this creditor advanced money or property to these corporations.

It cannot be contended that as an individual this defendant, not acting in a representative capacity for any of these corporations, giving a false statement of his own affairs, would be guilty of any crime under this statute. The Commonwealth contends that this defendant is properly indicted because at the time he gave a fraudulent statement he was an officer in each of the corporations that benefited by his acts. The defendant as an individual is one entity. The corporation of which he is an executive is a separate entity. Unless the individual extended his credit to the corporate entity of which he was an executive, or became surety or guarantor for its obligations, he, as an individual, would not be responsible for its debts; therefore, the condition of his personal finances could not affect the credit rating of the corporation. It cannot be assumed that any concern would extend credit to a corporation based solely upon a statement of the individual financial worth of an officer or stockholder of that corporation. If any creditor of a corporation did so rely, it must be clear that there could be no civil liability on the part of the individual who incidentally happened to be an officer of the corporation. The individual statement of the officer of a corporation, therefore, cannot be material in inducing a creditor to extend credit to that corporation. Since it is not material, the giving of such an individual statement is not a crime, even though it be false.

The Act of 1878 refers to the statement, not of an officer as an individual but of a corporation as made, published, circulated, etc., by one of its officers, agents, attorneys, etc., for the purpose of deceiving or defrauding any member, shareholder or «-editor of such body corporate, etc. The act of assembly refers to a statement of the account of a corporation. The statement as given by this defendant is that of an individual. The indictment was drawn more than two years subsequent to the alleged commission of the crime. For this reason, the motion to quash this indictment is sustained.


author: Lewis, J.,

text:
    Eisenberg v. Mifflin.

      N. Sha/piro, for plaintiff; A. N. Keim, for defendant.
    April 30, 1929.
   Lewis, J.,

This is an action to recover the sum of $500, the amount of a check drawn to the order of the plaintiff by the defendant on March 31, 1928. The case was tried by the court without a jury, and the evidence developed a situation, briefly, as follows: Both parties met at the office of one of the referees in bankruptcy in the City of Philadelphia preparatory to a sale of the assets of a bankrupt for whom John J. Casey had theretofore been appointed receiver in bankruptcy. Plaintiff having submitted a bid of $3200 for the assets, as against the defendant’s bid of $3000, plaintiff and defendant adjourned to an anteroom of the referee’s office and an arrangement was entered into by which plaintiff, as contended by him, agreed to “withdraw” his bid of $3200 and leave defendant’s bid of $3000 as the highest bid for the assets of the bankrupt estate. As the consideration for the plaintiff so withdrawing his bid, or, to use the language of the plaintiff and his counsel, “assigning his bid” to the defendant, the latter gave the check in suit. Upon receipt of the check, plaintiff attempted to withdraw the bid, but, at the instance of counsel for the receiver, the referee refused to permit him so to do, and plaintiff then left to collect on the check in his possession. Defendant, however, was one step ahead of him and stopped payment on the check. The present suit then resulted.

Plaintiff in his statement of claim declares on the check and sets out, as he calls it, a copy of the same. An examination of the instrument, however, discloses that plaintiff left out of his copy a very material portion of the writing, to wit: “In consideration of the Keystone Finance Company (plaintiff) withdrawing their bid, this check is O. K. (Signed) W. P. Mifflin.”

No comment is necessary upon such a situation. A copy of an instrument which fails to set forth an important and material part of the instrument is not a copy of the paper. Whatever the purpose in excluding from the copy of the check the words above quoted, innocent or otherwise, it is apparent that had it been made a part of the pleadings, as it should have been made, the case hardly would have been submitted for trial. It could and would have properly been ended upon interlocutory proceedings on a rule. At any rate, the bid was never withdrawn, it was not assigned, and the consideration for the giving of the check failed totally. Apart from that, the record and all the evidence, written as well as oral, satisfies the Trial Judge that the arrangement entered into between the parties is such as ought not to be countenanced, let alone sustained, in a judicial proceeding. The mere statement of the circumstances of the giving of the check shows that the entire proceeding was an attempt to keep down bidding at a judicial sale without the knowledge of all the parties interested, and as such is against public policy and will not be enforced: Barton v. Benson, 126 Pa. 431; Hays’s Estate, 159 Pa. 381.

Pomeroy’s Eq., vol. 2, ■§ 934, states the rule as follows: “Where property is to be sold at public auction, and especially where the sale is by order of the court or is made in the course of government administration, a secret combination among persons interested in bidding, whereby they stipulate to refrain from bidding in order to prevent competition and to lower the selling price of the property, is illegal according to the universal course of decisions in this country. The stipulations of the buyer to pay compensation to the others in consideration of their promise not to bid or to share the property with them are void, and the sale itself, made as the result of the combination, is also tainted with the fraud and will be set aside at the suit of the vendor.” Courts of justice cannot be permitted to be used in any attempt to recover upon a transaction so contrary to public policy as the evidence discloses this to have been.

No useful purpose will be served in extending this memorandum.

A finding is entered for the defendant.


text:
    Commonwealth v. Tucci.

      C. A. Snyder, District Attorney (C. A. Staudenmeier with him), for Commonwealth.

      C. M. Palmer, for defendant.
    Feb. 4, 1929.
   Houck, J.,

Two bills of indictment were found against the defendant, one charging him with bigamy and the other with adultery. On the bill charging bigamy, the court directed a verdict of not guilty on the ground of want of jurisdiction, but submitted the question of costs to the jury. The jury imposed three-quarters of the costs on the defendant and one-quarter on the prosecutor. A motion for a directed verdict on the bill charging adultery was overruled, and the jury acquitted the defendant and placed three-quarters of the costs on him and one-quarter on the prosecutor. Immediately upon the return of the verdicts, the defendant moved to set aside that portion of the verdicts which imposed costs upon him.

The court had jurisdiction of the adultery charge, and there is no reason why we should interfere with the verdict on that bill of indictment.

The real question in the case is whether the verdict imposing a portion of the costs upon the defendant on the bill charging bigamy can stand, the court not having jurisdiction of the offense charged. Section 62 of the Act of Assembly approved March 31, 1860, P. L. 445, 1 Purdon, 1053, pi. 94, provides that “in all prosecutions, cases of felony excepted,” where the defendant is acquitted by the petit jury, the jury shall determine by their verdict whether the county or the prosecutor or the defendant shall pay the costs, or whether they shall be apportioned between the prosecutor and the defendant. It has been held that where the statute of limitations bars a conviction, a petit jury may place the costs on the defendant and that this right extends to cases of defective indictments: Baldwin v. Com., 26 Pa. 171; Com. v. Harkness et al., 4 Binney, 193; Com. v. Maguire, 1 D. & C. 671. Does the jury's power to place costs upon the defendant extend to prosecutions of which the court has no jurisdiction? No appellate court decision on this point has been cited to us nor have we been able to find one. There are, however, two decisions by lower courts in which an opposite conclusion is reached. In Com. v. Balph, 18 Pa. C. C. Reps. 242, the court, in charging the jury, instructed it not to place any of the costs upon the defendant if the jury found that the court had no jurisdiction. On the other hand, in Com. v. Meekes, 15 W. N. C. 450, the court directed a verdict of not guilty on the ground that the offense charged had been committed in another county, but left the question of costs for the jury’s determination, and subsequently refused to set aside the verdict of the jury imposing costs on the defendant. The reasoning of the court is that the statute provides that the jury shall dispose of the costs in all prosecutions for misdemeanors, and that the term includes all prosecutions, whether the court has jurisdiction or not. The textbooks, generally, state the rule to be that costs cannot be placed on the defendant if the court has no jurisdiction: 15 Corpus Juris, 319, § 791; Pennsylvania Law of Costs and Fees, 661. In both instances, Com. v. Balph, supra, is the only authority cited. On the other hand, Sadler’s Criminal Procedure, 493, § 616, directs attention to the conflict existing under the authorities. What, then, is the correct rule?

Under the common law, a defendant, although acquitted, always paid the costs, and he was not relieved of this burden even when tried upon a defective indictment: Com. v. Tilghman, 4 S. & R. 127. “We may, perhaps, view the case of a defendant acquitted of actual crime, but whose conduct may have been reprehensible in some respects, or whose innocence may have been doubtful, as not a very hard one, when left precisely as it was at the common law. . . . . The judgment is not on the indictment, but on something collateral to it. The defendant is not punished for a matter of which he stood indicted (for he is acquitted of everything of that sort), though, on account of something of which he was not indicted, some impropriety of conduct, or ground of suspicion, which the verdict of the jury has fastened upon him, the statute law refuses to interfere in his behalf, and leaves him as he stood at the common law.” But where no offense is charged, the jury have nothing to do with the costs: Linn v. Com., 96 Pa. 285. The true rule, therefore, seems to be, that if an offense is charged and the prosecution fails for want of proof, the jury may dispose of the costs.

In the case under consideration, an offense was charged. The prosecution failed because the Commonwealth failed to prove that the offense charged was committed in this jurisdiction. In other words, it failed for want of proof of an essential fact. The case is the same as though the Commonwealth had failed to prove any other essential fact. That failure would have worked an acquittal, but the jury would have had power over the costs. We conclude that the case falls within the words of the Act of 1860, “In all prosecutions, cases of felony excepted,” and that the question of costs was properly submitted to the jury. The jury may well have found that there was some ground of suspicion in the defendant’s conduct, and there is no reason for interfering with the verdict if the jury had the power to dispose of the costs. We have already said that they had that power.

The Act of 1860, supra, provides, further, “whenever the jury shall determine, as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect.” As said by Gibson, J., in Com. v. Tilghman, supra, the judgment concerning costs is not on the indictment. The direction to pay costs is not a sentence in the sense of its being a part of the penalty imposed by law; it is merely an incident of the judgment: Com. ex rel. v. Keeper of Workhouse, 6 Pa. Superior Ct. 420. Hence, although the court has no jurisdiction of the offense charged in the indictment, it has jurisdiction in matters incidental to the judgment and may pass sentence imposing costs on the defendant.

It follows that the defendant’s motions to set aside that portion of the verdicts which imposes costs on him must be overruled.

The motions to set aside that portion of the verdicts which imposes costs on the defendant are overruled, and the defendant is directed to appear for sentence on Monday, Feb. 11, 1929, at 10 A. M.

From M. M. Burke, Shenandoah, Pa.


author: Terry, P. J.,

text:
    Morgan v. Wyoming County Commissioners.

      E, B. Farr, for petition; H. S. Harding, contra.
    Sept. 10, 1928.
   Terry, P. J.,

This is a joint petition by the Superintendent of Schools of Wyoming County and the commissioners of said county for a declaratory judgment determining the liability of the county for compensation for stenographic service rendered the county superintendent pursuant to the Act of June 1, 1915, P. L. 706, as amended by the Act of April 27, 1927, P. L. 463.

No question is raised as to the jurisdiction of the court in this proceeding, and the petition contains a clause providing that if the payment by the county of such compensation is mandatory, then judgment shall be entered for the plaintiff for $60 heretofore paid by him for such purpose, and also a decree made that hereafter he may employ a stenographer for two days per week, or its equivalent, whose compensation shall be fixed by the plaintiff and the commissioners and be paid by the county.

It was stated upon argument that the county has been paying for such service without objection, but now the position is taken by the commissioners that such payment is discretionary with them. We do not so interpret the law.

The Act of June 1, 1915, P. L. 706, reads as follows:

“Section 1. Be it enacted, etc., That in each county in the Commonwealth the county superintendent of schools may be provided, at the expense of the county, with a telephone, a typewriter and a stenographer. In counties having more than three hundred teachers in the public schools, the stenographer may be employed by the year. In counties having less than three hundred teachers in the public schools, the stenographer may be employed for three days of each week, or the equivalent of such time, during the year.
“Section 2. The stenographer may be chosen by the superintendent, and the compensation shall be fixed by the superintendent and county commissioners, and shall be paid out of the county treasury.”

The amending Act of April 27, 1927, P. L. 463, changes the last clause of section 1 of the earlier act by making it read: “In counties having less than three hundred teachers in the public schools, the stenographer shall be employed for at least two days of each week, or the equivalent of such time, during the year.”

Of course, whether the word “shall,” substituted for “may,” in such clause is to be construed as mandatory or as simply directory is dependent upon the intention of the legislature to be ascertained from the language employed in enacting this legislation.

Of much significance is the title of the first act, reading: “An Act requiring the County Commissioners to provide, at the expense of the County, a telephone, typewriter and stenographer for the use of the County Superintendent of Schools.” This plainly indicates that the legislature considered the employment of a stenographer by the county superintendent essential in the performance of his duties.

That the title of an act is a part of it and a guide to its construction is settled law in this State: Perkins v. Philadelphia, 156 Pa. 554; Brink v. Marsh, 53 Pa. Superior Ct. 293.

It seems absurd to think that the legislature, recognizing the need by a county superintendent of a telephone and a typewriter, meant by this legislation to leave optional with the county commissioners whether those instruments should be supplied. And if this be conceded, there is no room for applying different reasoning as to the stenographer.

The 2nd section of the original act authorizes the choice of the stenographer by the superintendent and imposes upon him and the commissioners the duty of fixing the compensation, payable by the county — which is inconsistent with the idea that the commissioners may determine whether such service can or cannot be had by the superintendent.

It is true that the word “shall” in a statute is not always construed to be mandatory, but when, as here, the title of the original act plainly denotes a requirement for affirmative action by the county commissioners and the amending act changes the word “may”.to “shall,” in the body of the act, in respect to the function of the commissioners, we think it is definitely shown that the legislative intent is to make the payment of the stenographer by the county imperative and not optional. The object of the amendment apparently was to fix the minimum time of employment of the stenographer in the smaller counties, and in doing this the legislature emphasized that such service, for the time limited, was not to be denied the superintendent. It was assumed, we think, that in the larger counties the service, without time limit, was to be paid by the county as a matter of course in consequence of the phraseology of the act and its title.

Sometimes construction by courts of statutes dealing with expenditures by counties is necessary to protect the commissioners from surcharge. Here, however, the liability of the county is clearly fixed and the commissioners need not hesitate to comply with the provisions of the law by making payment as it contemplates.

In accordance with the terms of the petition, we enter judgment for the petitioning superintendent against the county for $60 for stenographer’s fees already paid by him, that being by agreement a reasonable sum, and we decree that hereafter said superintendent may employ a stenographer for two days per week, or its equivalent, for compensation to be fixed by the superintendent and the county commissioners and to be paid by the county.

Prom Joseph P. Ogden, Tunkhannock, Pa.


author: Stewart, P. J.,

text:
    Zearfoss-Hilliard Lumber Company v. Sacchetti.

      Harry A. Hillyer, for plaintiff; Frank P. McCluskey, for defendant.
    Sept. 17, 1928.
   Stewart, P. J.,

This is a rule on defendant to show cause why judgment should not be entered for want of a sufficient affidvait of defense. The record shows that a statement of claim was filed on May 21, 1928. Same day summons was issued, returnable to the second Monday of June, to wit, June 11, 1928. The record shows that plaintiff’s statement was served on defendant on May 22,1928. On June 1,1926, an affidavit of defense was filed in the prothonotary’s office. It was served on plaintiff on June 18, 1928. Same day this rule issued. Whether rule was prior to service of affidavit of defense is immaterial. At time of argument defendant was not in default.

The plaintiff’s contention is that it is now entitled to judgment because a copy of the affidavit of defense was not served on it within the time provided by section 212 of the Rules of Court, nor under the provisions of the Practice Act of May 14, 1915, P. L. 483. The learned counsel for the plaintiff claims that the case is ruled by our opinion in Reading National Bank v. Minnich, 11 D. & C. 280. In that case, we examined the same authorities that are cited in the present case, but that situation differs from the present. There a judgment had been entered, and there was nothing on the record to show that any affidavit of defense had been filed, although, as a matter of fact, it had been left in the prothonotary’s office before judgment was entered. In that case, it was not served on the plaintiff until eleven days after the judgment was entered. Here judgment is asked for want of a sufficient affidavit of defense. The learned counsel for the defendant contends that such a rule necessarily presupposes that there is some sort of an affidavit of defense, which, in the judgment of the learned counsel for the plaintiff, is not sufficient. The learned counsel for the plaintiff admits that there is an affidavit of defense, but contends that it is wanting in legal status, because it was not served on him or his client in the proper time. We have re-examined the cases cited in our former opinion. In Luzerne County National Bank v. Stout, 26 Dist. R. 1093, the rule was for judgment for want of a sufficient affidavit of defense. The rule was made absolute. In Wright Wire Co. v. Levi, 28 Dist. R. 795, the rule was for judgment for want of service on the plaintiff within fifteen days. The rule was made absolute. In Glover v. Errich, 30 Dist. R. 720, the rule was for judgment for failure to serve a copy of the affidavit of defense on plaintiff. The court held: “The plaintiff would be entitled to a judgment for want of an affidavit of defense in accordance with the provisions of section 17 of the act, but we can find no authority which authorizes the court to enter a judgment against the defendant for his failure to serve the affidavit of defense.” In Seaman v. Mealey et al., 1 D. & C. 146, the rule was for judgment for want of an affidavit of defense. The rule was discharged for the reason that the proper practice would be to move the court to strike the pleading from the record under the provision of section 21 of the Practice Act of 1915. It does not appear when the rule was asked for in that case, but the opinion was handed down on Nov. 14, 1921. Since then the legislature has amended that act by the Act of May 23, 1923, P. L. 325, which provides as follows: “Provided, that such motion to strike from the record any such pleading shall be filed, and a copy thereof served upon the party filing such pleading, or his attorney, within fifteen days after a copy of such pleading shall have been served upon the opposite party or his attorney.” That further complicates the situation. We held in the case of Reading National Bank v. Minnich, supra, that the affidavit of defense there filed, but not served on the plaintiff, was a nullity.

Here the affidavit was served and the record is complete except for the delay in service. There is no penalty either in the rule of court or in the act of assembly for delay. As pointed out by Judge Newcomb, the act must be construed to include “both filing and service.” See, also, Marlin v. Waters, 127 Pa. 177. It is also true that where judgments are taken by default the courts will open them in proper cases to allow a defense to be put in: Hipple v. Laird, 189 Pa. 472; Hunter v. Forsyth, 205 Pa. 466. We have indicated in Reading National Bank v. Minnich, supra, that if a proper defense were shown we would make such an order. In the present case, the entire argument was upon this question of practice. No attention was paid to the substance of the affidavit of defense by either side. In view of this oversight, we will not pass on the sufficiency of the affidavit, but we do call attention of defendant’s counsel to Pennsylvania Builders’ Supply Co. v. Larsen, 74 Pitts. L. J. 247; Community Hotel Co. v. Bentzel, 40 York Leg. Record, 109, and suggest that as at present advised we would make the rule absolute for the reason that the affidavit is insufficient.

And now, Sept. 17, 1928, rule to show cause is discharged; leave is granted to reinstate it if argument is desired upon matter last referred to.

Prom Henry D. Maxwell, Easton, Pa.


author: Jones, J.

text:
    Commonwealth v. Condurso.

      John B. Hessel and S. M. B. O’Hara, for Commonwealth.

      F. A. McGuigan and J. H. Flannery, for defendant.
   Jones, J.

Dynamiting has been an effective medium for some individuals in this community for pouring out their vials of hate and revenge upon their fellow-men, but by subtlety, cunning and crafty means they have avoided detection, arrest and punishment; at least, one of these individuals, the defendant, was intercepted and prevented in the execution of his wicked act by a rifle and good markmanship, and, like Cain of old, was marked, so that his finding was easy.

He was indicted upon two counts under the Act of April 20, 1927, P. L. 326, amending section 141 of the Penal Code, and charged with having unlawfully, wantonly, wilfully and maliciously, by the explosion of dynamite placed near a certain building, the home of Dominick Sarago, at No. 4 Plank Street, Pittston, made (in the first count) an attempt to destroy and damage the building; and (second count) an attempt to do bodily harm to Sarago.

No objection was made to the indictment, and defendant was convicted On both counts.

No dynamite was exploded or placed near the building; it was brought on the premises and carried away by defendant when detected and shot and wounded by the prosecutor.

Defendant contends that without proof of an explosion or the placing of dynamite near the building, there can be no legal conviction; that proof of an explosion is a prerequisite to a conviction on either count.

We charged the jury, among other things: “Counsel for the defendant has argued to you that there can be no conviction in this case because there was no explosion of the dynamite. I cannot agree with him. I say to you, as a matter of law — and if I am mistaken it will be corrected — that if this defendant went there, loaded with dynamite, for the purpose of blowing up this home and that little family, and, before he could carry out his dastardly act, Mr. Sarago reached him with that shot-gun — if you believe those are the facts and the truth, he may be convicted, and he ought to be convicted, on the first and second counts, as he stands charged in this indictment, even although there was no explosion.”

According to the verdict, we must assume that the jury believed the facts established by the Commonwealth to be true, namely, that Mr. Sarago, the owner of a property at No. 40 Plank Street, Pittston, occupied at the time by his wife and four children, on Nov. 10, 1927, retired at 10 o’clock P. M.; about 2.30 A. M., the husband arose for the purpose of securing his wife a drink of water, and as he descended the front stairway leading to the door facing on Plank Street, a glass door from midway to the top, and about eight or ten feet from the street, on a moonlit night, saw two men step inside the gate; one had a package wrapped; he recognized the defendant, picked up a double-barreled gun or rifle and fired one shot from a shell containing one large bullet; then, using a revolver, fired three more shots from the parlor ■window, heard the defendant shout, “Oh, mother,” and both men ran in the direction of the Erie Railroad. The wife, hearing the first shot, arose, went to the front of the house, recognized the defendant and called him by a nickname.

Several hours afterwards, on the Erie Railroad, the direction taken by the defendants, a dinner-pail owned by defendant was found upset and twelve sticks of dynamite, and attached to one stick was a long fuse burning and a piece of canvas bag similar in kind to canvas found in defendant’s home the following day.

Defendant, when arrested, had a gun-shot wound, and a coat button found on the prosecutor’s premises corresponded with the buttons on defendant’s overcoat, and two were missing.

There is no contention that the verdict was against the evidence. Quoting from his counsel’s brief: “The testimony in the case has not been transcribed, and it is not necessary to have its transcription, for Judge Jones, in his charge, clearly and fairly presented to the jury the Commonwealth’s contention, as well as the defendant’s contention; and in the charge, especially at page 4, is a concise outline of the material testimony bearing on the description of what transpired at Sarago’s property.”

The motion is purely technical; the Commonwealth charged defendant with placing and exploding the dynamite in an attempt to injure an individual and damage property; the proof disclosed that defendant was on the premises with dynamite and a lighted fuse attached, but was detected and checked before he had time to place or explode it; therefore, he argues, “I cannot be convicted.” Setting aside technicalities, his claim is without any foundation in substantial common sense.

The administration of the criminal law along technical, narrow and finespun lines should be abolished; it is quite evident from the wave of crime that is sweeping over our country, and particularly over our county, that the public needs some protection. The culprit is safely intrenched and his liberty jealously guarded and protected by our system of jurisprudence; he is entitled to a fair and impartial trial and no more; when his guilt is established beyond a reasonable doubt, he should not be acquitted by any narrow or shriveled construction of the law; even the criminal law must have width and breadth if it is to be effective and useful.

Where an act is done which unequivocally leads to crime, it can be punished, either as a consummate crime or as an attempt at crime. On an indictment for murder, the jury may find a verdict for manslaughter; a person charged with burglary and stealing may be convicted of larceny: Smith v. Com., 54 Pa. 209. When a count in an indictment contains a divisible averment, it is the province of the petit jury to find the divisible offense. This distinction runs through the whole criminal law. For instance, persons indicted for riotous assault and battery may be convicted of assault and battery only. When the charge is assault and battery, a conviction may be had for assault. The instances of this kind might be multiplied indefinitely: Com. v. Shouse, 5 Pa. 83.

Speaking of the crime defined in the Act of March 13, 1901, P. L. 49, the wilful or malicious entry, either by day or night, of any house, with intent to commit a felony, the court said: “It is complete the moment one wilfully or maliciously crosses the threshold with intent to steal and before any further attempt has been made to commit the larceny. The general rule is well settled that upon an indictment charging a particular crime, the defendant may be convicted of a lesser crime included within it:” Com. v. Tadrick, 1 Pa. Superior Ct. 555-566.

Upon an indictment for breaking into and entering a freight car, the testimony adduced on the part of the Commonwealth established the fact that the defendant, with others, tried to get into a car, but could not open the door. They broke the seal and opened the door probably three or four inches, and upon being alarmed, the defendant and his confederates attempted to make their escape by running away, but defendant was arrested shortly thereafter, and a verdict of guilty was sustained upon the ground that the facts amounted to an attempt: Com. v. Stefanczyk, 77 Pa. Superior Ct. 27.

Upon an indictment for an attempt to convey and deliver to prisoners in jail three steel saws to facilitate the escape of the prisoners, the question attempted to be raised was whether the indictment charged an indictable offense, because section 50 of the Criminal Procedure Act of 1860 provides that a party indicted for a felony or misdemeanor may be found guilty of an attempt to commit the same. President Judge Rice, speaking for the court, said: “But this did not abrogate the common-law rule that, in general, an attempt to commit a misdemeanor is a misdemeanor, whether the offense is created by a statute or was an offense at common law. Therefore, it was not necessary to indict the defendant for a crime of which he was not guilty in order to convict him of a crime of which he was guilty:” Com. v. Rodman, 34 Pa. Superior Ct. 607.

In the case at bar, defendant could have been indicted for the crime of which he was not guilty, namely, placing and exploding the dynamite and injuring the person or damaging the property of Sarago, and the jury could have returned a modified verdict under section 50 of the Code. That section provides: “If, on the trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did not complete the offense charged, but was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same.”

It will be noticed that defendant shall not be acquitted and the jury is at liberty to return the modified verdict.

In the case at bar, the indictment charges defendant with placing dynamite and exploding it with the attempt to injure property and persons. The attempt to injure is the gist of the offense; the placing of the dynamite and exploding it are the means to the end; the indictment is good as an attempt to commit the offense described by the act; therefore, no modified verdict, as required under section 50, supra, was necessary; a verdict in manner and form as indicted was sufficient; there could not be a verdict of attempt to commit an attempt.

In Com. v. Brosk, 8 Dist. R. 638, it was held that an attempt to commit murder should be charged so that it would be murder if the crime had been fully consummated.

In Com. v. Flaherty, 25 Pa. Superior Ct. 490, an indictment for breaking and entering a store with intent to commit larceny, on trial, it was found that the testimony did not warrant a verdict of guilty in manner and form as he was indicted, and under instructions from the court a verdict was recorded of guilty of breaking with attempt to commit crime charged.

In this case is a full discussion of what constitutes an attempt, but that question is not raised in this case.

Defendant placed himself on the premises, within a few feet of the building, with the fuse lit, all tending to show an intention to do a specific thing, namely, to place it, retire and wait for the explosion to destroy property and injure the individuals. He fell short of the complete accomplishment of his wicked act, by discovery and several shots from a rifle, one of which penetrated his wrist.

There was no objection to the indictment upon the ground that it did not legally charge an attempt under the act. We deem the indictment good as an attempt to commit the offense, and deny the motion in arrest of judgment and refuse a new trial.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Groff, J.,

text:
    Evaston v. Myers et al.
    Charles E. Workman, for rule; Zimmerman, Myers & Kready, contra.
    Sept. 29, 1928.
   Groff, J.,

The facts of this case are as follows: Sometime during the month of May, 1926, Andrew F. Evasion rented from D. M. Myers, by a written lease bearing date May 1, 1926, all that certain two and one-half story brick dwelling-house, known as No. 301 West Lemon Street, in the City of Lancaster, to hold the premises from May 1, 1926, for the term of eleven months for the rent or sum of $495, to be paid in monthly portions of $45 each, in advance.

Paragraph 5 of said lease is as follows:

“That the Lessee hereby waives and dispenses in favor of the Lessor all laws which now or which hereafter shall exempt any property upon the demised premises, or any property elsewhere belonging to the Lessee from levy and sale upon distress for the rents hereby reserved, or upon execution on any judgment obtained in action brought for breach of any of the covenants herein contained; and all property, goods or chattels of Lessee shall be liable for distress for rent in arrears and unpaid, and shall continue liable to be distrained upon for the space of thirty days after Lessee shall have removed from said premises, leaving any rent reserved by this Lease in arrears and unpaid, whether such property, goods or chattels shall have or have not ever been upon said demised premises.”

Paragraph 7 of said lease is as follows:

“VII. If the Lessee shall hold over after the expiration of the term hereby created, with the consent of the Lessor, it shall be deemed and taken to be a renewal of this Lease and of all the terms, conditions, covenants and provisos therein contained, for another term, and so on from term to term, at the option of said Lessor until said Lessee shall give three months’ previous notice to said Lessor of an intention to determine the tenancy at the end of any term.”

Paragraph 9 of said lease is as follows:

“IX. And the said Lessee further covenants and agrees that if he shall at any time during the continuance of this Lease, remove, attempt to remove or manifest an intention to remove his goods and effects out of or off from said premises, or if he shall make an assignment for the benefit of creditors, or if execution shall be issued or other legal proceedings had while any portion of the rent for the full term shall be unpaid, then the whole rent for the whole term of this Lease shall be taken to be due and payable forthwith; and the said party of the first part may proceed by landlord’s warrant to distrain and collect the whole sum, or any Attorney of any Court of Record may enter judgment for the whole amount unpaid with 10 per cent, collection fee, and collect the same by execution, or the same shall be first paid out of the proceeds of such assignment or sale.”

It is admitted that Andrew F. Evasion entered upon the said premises pursuant to the said lease in the month of May, 1926; that at the expiration of the said lease on April 1, 1927, the said lessee continued in the possession of the said premises under the terms of his lease for another term of eleven months, which ended on March 1, 1928; that at that time the said lessee, under the terms of his lease and with the consent of the lessor, continued to occupy the said premises until May 5, 1928, when he removed therefrom to other premises in the City of Lancaster, known as No. 418 North Mulberry Street, the property of Isaac Golden.

The landlord, D. M. Myers, one of the defendants in the said suit, issued a landlord’s warrant and placed it in the hands of W. G. Sweigart, constable, the other defendant in the suit, who distrained lessee’s goods and advertised them for sale on May 28, 1928, at 10 o’clock, but, before the said goods were sold, plaintiff filed his bond and issued his writ of replevin, which writ was served by the sheriff, and, according to his return appearing on the back of the writ, the goods were delivered to the plaintiff on May 28, 1928.

The plaintiff in this action files his statement of claim, by which he seeks to recover the sum of $145, injuries or damages sustained by him through what he alleges was a wrongful distraint of his goods. In reply to this statement, the defendants within the statutory time filed their affidavit of defense. The plaintiff now moves for judgment for want of a sufficient affidavit of defense, and as his reasons avers that the defendants failed to show:

1. That any rent was due, unpaid or in arrears at the time of levy.

2. A fraudulent or clandestine removal of the plaintiff’s goods by the plaintiff from the demised premises.

3. Any justification for the seizure of plaintiff’s goods on other than the demised premises.

As to the first averment, let us examine the lease, and we find that it was for the term of eleven months from May 1, 1926, that it contained in the 7th paragraph of the conditions of the lease the following: “If the lessee shall hold over after the expiration of the term hereby created, with the consent of the lessor, it shall be deemed and taken to be a renewal of this lease and of all the terms, conditions, covenants and provisos therein contained, for another term, and so on from term to term, at the option of said Lessor until said lessee shall give three months’ previous notice to said lessor of an intention to determine the tenancy at the end of any term.”

The plaintiff, therefore, plainly covenanted that if he should hold over the lease would be renewed for a period of eleven months, and that if he should hold over at the end of that period, it should be renewed for another period of eleven months, and so on from term to term, at the option of the said lessor, until the said lessee shall give three months’ previous notice to said lessor of an intention to determine the tenancy at the end of any term.

Prom the pleading, it appears that the first renewal term ended March 1, 1928, and plaintiff remained on the premises with the consent of the lessor, one of the defendants, until May 5, 1928, when he removed without the consent or permission of the landlord.

Admittedly, the three months’ notice of the determination of the lease was not given.

“It matters not in what language a covenant to renew a lease is couched, so that the intention is reasonably apparent and the length of the new term is specified.

“Holding over by a tenant who has an option for an additional term is notice to his landlord of his election to exercise his privilege. That actions speak louder than words is sound law, as well as proverbial wisdom:” Cairns et al. v. Llewellyn et al., 2 Pa. Superior Ct. 599; McDonald v. Karpeles, 61 Pa. Superior Ct. 496.

And we find this same principle enunciated in White et al. v. Long et al., 289 Pa. 525.

We also find that “Where a lease contains a covenant or option to renew, any holding over, even for a short time, would give the landlord the right to elect to hold the tenant liable as a tenant for the specified term of renewal, regardless of the intention of the lessees:” Cairns et al. v. Llewellyn et al., 2 Pa. Superior Ct. 599.

In McBrier v. Marshall, 126 Pa. 390; Harvey v. Gunzberg, 148 Pa. 294; Patterson v. Park, 166 Pa. 25; Bakewell v. Turner, 36 Pa. Superior Ct. 283, as well as in Cairns v. Llewellyn, cited above, it is held that “Where a tenant remains in possession after the expiration of his term without having made any new arrangements with his landlord, he is bound according to the obligations of the preceding lease. A provision for the termination of the lease on notice from the tenant must be interpreted in the light of its manifest purpose:” Fidelity Trust Co. v. Lee, 38 Pa. Superior Ct. 333.

We, therefore, conclude that the tenant, under the terms of his lease, was bound for the rent of the second renewal period, to wit, for eleven months from March 1, 1928. Now, that being the case, could the landlord distrain for his rent after the tenant removes his goods from the premises?

The act of assembly says: “In case any lessee for . . . term of years . . . of any . . . tenements, upon the demise whereof any rents are or shall be reserved or made payable, shall, from and after the publication of this act, fraudulently or clandestinely convey or carry off or from such demised premises his goods and chattels, with intent to prevent the landlord or lessor from distraining the same for arrears of such rents so reserved as aforesaid, it shall and may be lawful to and foy such lessor or landlord, or any other person or persons, by him for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels, wherever the same may be found, as a distress for the said arrears of such rent, and the same to sell, or otherwise dispose of, in such manner as if the said goods and chattels had actually been distrained by such lessor or landlord in and upon such demised premises for such arrears of rent:” Act of March 21, 1772, § 5, P. L. 371; 2 Purdon’s Digest, 2176.

If there was nothing but the act of assembly, and the goods were not fraudulently or clandestinely removed, then, of course, the distress would have been a wrong upon the plaintiff, but the lease provides in paragraph 5 of is conditions, “. . . all property, goods or chattels of lessee shall be liable for rent in arrears and unpaid, and shall continue liable to be distrained upon for the space of thirty days after lessee shall have removed from said premises: . . .” Harrop v. Lutz, 53 Pa. Superior Ct. 195; Weiss v. Levey, 69 Pa. Superior Ct. 359.

And the question raised by the plaintiff as to whether the removal was fraudulent and clandestine is always a question of fact to be submitted to the jury.

In Owens v. Shovlin, 116 Pa. 371, the court decided as follows:

“The right of a landlord to follow and distrain his tenant’s goods and chattels removed from the demised premises exists only by force of section 5 of the Act of March 21, 1772, 1 Sm. Laws, 371; and, in the absence of a special provision in the lease otherwise, the right can be exercised only when the goods have been removed fraudulently or clandestinely.
“Notwithstanding there is a provision in a lease that in case of the removal of the tenant from the premises during the term, the whole rent unpaid should then become due and collectible by distress or otherwise, goods and chattels of the tenant removed from the premises cannot be distrained unless the removal was fraudulent and clandestine, which is a question of fact to be submitted to the jury.”

The affidavit of defense in this case plainly shows the removal of the goods in violation of the terms and the conditions of the lease, and the question as to whether or not their removal was fraudulent or clandestine, under all the circumstances, is one that must be submitted to a jury.

The plaintiff further claims that the defendant failed to show any justification for the seizure of plaintiff’s goods on other than the demised premises. The defendants set forth as a part of their defense the lease in the case, which shows that the lessee, who is the plaintiff in this case, waived all laws which now or which hereafter shall exempt any property upon the demised premises, or any property elsewhere belonging to the lessee, from levy and sale upon distress for the rents hereby reserved. Plaintiff agreed that if he should at any time during a continuance of this lease remove his goods or effects off from said premises, the whole rent for the whole term of the lease shall be taken to be due and forthwith payable. This was a valid agreement: McAnniny v. Miller, 19 Pa. Superior Ct. 406.

And lessee further agreed that all property, goods or chattels of the lessee shall be liable for distress for rent in arrears and unpaid, and shall continue liable to be distrained upon for the space of thirty days after the lessee shall have removed from the said premises, leaving the rent reserved in this lease in arrears and unpaid, whether such goods or chattels shall have been, or shall never have been, upon the said demised premises.

We feel, after a careful reading of the affidavit of defense and a full consideration of the lease and the terms thereof, that the defendants have set up sufficient facts in their affidavit of defense to raise an issue that should be tried by a jury.

We conclude that the tenant continuing for two months and fifteen days upon the premises after the second renewal of the lease, that the unpaid rental for the unexpired term became due; that the plaintiff having agreed that his goods could be followed for thirty days after removal from the premises, and he having waived all laws exempting his property from levy and sale, the lessor was justified in issuing his landlord’s warrant.

We, therefore, discharge the rule for judgment for want of a sufficient affidavit of defense. Rule discharged.

Prom George- Ross Eshleman, Lancaster, Pa.