author: Lamokelle, P. J.,

text:
    Tyson’s Estate.

      John W. Speckman, for exceptions.

      John B. Gest and Frank Rogers Donahue (of Donahue, Irwin, Merritt & Gest), contra.
    Nov. 6, 1930.
   Lamokelle, P. J.,

Mary A. Tyson bequeathed the sum of $70,000 in trust to pay over the net income thereof to her husband’s nephews and nieces, namely, Jonathan K. Tyson, Edward P. Tyson, Henry H. Tyson, Anna S. Tyson, Fannie L. Williams and George Williams, “for and during all the term of their respective natural lives. . . . And upon the decease of either of said Nephews or Nieces, I give, devise and bequeath the one-sixth part of the principal of this trust unto his or her children then living and the issue of any who may then be deceased,” per stirpes, “in equal shares and parts, their heirs, executors, administrators and assigns forever. And in the event of the decease of either of said Nephews or Nieces, without leaving issue living at the time of his or her death, the share of the Niece or Nephew so dying, I direct my Executors to hold in trust for the survivors of said Nephews and Nieces for life, with remainder to their issue, such issue taking together their parent’s share absolutely. . . .” The residue of the estate was given upon a similar trust for certain other persons.

Three of the nephews, namely, Jonathan K. Tyson, Henry H. Tyson and George Williams, died. Each left issue, and there was awarded to the respective issue each one-sixth of the principal of the estate. The other three cestui que trusts died subsequently without issue. The survivor was Edward P. Tyson.

The Auditing Judge awarded one-half of the original trust fund to the issue of the three nephews per stirpes.

It is contended by counsel for the exceptants that the word “their,” occurring in the phrase, “with remainder to their issue,” refers to the issue of surviving cestui que trusts; and as the three surviving cestui que trusts left no issue, that one-half of the original trust fund falls into the residue.

It is clear that the word “survivors,” occurring in the phrase, “for the survivors of said Nephews and Nieces for life, with remainder to their issue,” was not used in the sense of “others,” for if that were true, then the court, when the fourth cestui que trust died without issue, should have awarded one-sixth of the principal of the trust fund to them. The court, however, awarded not two-sixths but one-half of the original trust fund, and the matter is, therefore, res adjudicata.

In order to arrive at a correct construction of a will, it is necessary to consider not only what actually happened but also what might have occurred.

If the contention of counsel for the exceptants were adopted, it would logically follow, if the surviving cestui que trust had left issue, that such issue would have been entitled to one-half of the original corpus, despite the fact that the respective issue of the deceased cestui que trusts received one-sixth each when their respective parents died. Where two constructions can be placed upon certain words or combination of words, one producing equality among the beneficiaries, and the other inequality, the law adopts a construction in favor of equality.

It would also follow from said contention, if the first cestui que trust had died without issue, that the whole of the fund would have been held for the benefit of the remaining five cestui que trusts and their issue; and if the second cestui que trust died leaving issue, such issue would have become entitled, either presently or in remainder, to a portion of the corpus. On the other hand, if the first cestui que trust died leaving issue, they would receive no portion of any accrued principal because of the subsequent death of another cestui que trust without issue.

Another result that would follow from said contention is that, notwithstanding the fact that there is issue of the cestui que trusts, one-half would go to those entitled to the residuary estate. A further result would be that if a similar situation arose with respect to the residuary estate, an intestacy would follow, and it is a rare case, indeed, that the court will make a finding of intestacy where the will contains a residuary clause.

No such anomalous results follow from the construction adopted by the Auditing Judge. Under that construction there is a complete disposition of the entire corpus, except that the contingency of all of them dying without issue is not provided for.

Considering the language of the limitation as a whole, it was the evident intention of testatrix that the income of her estate should be divided during the continuance of the trust among the six cestui que trusts, and, in the event of one or more of them dying without issue, among the survivors or the survivor, and that the corpus should not fall into the residuary estate if at the termination of the trust there was living issue of the deceased cestui qtie trusts.

With respect to the cestui que trusts, she intended that their original one-sixth of the income should be increased upon the death of a cestui que trust without issue, and with respect to the issue, it was her intention that they should also share in the principal from which the cestui que trust who died without issue derived income.

It frequently happens that a testator, in his endeavor to state the details of a disposition, makes grammatical mistakes, punctuates incorrectly, uses the wrong word or fails to state in express terms what he has in mind. If the general intention can be ascertained, such mistakes are regarded as immaterial. A very common mistake for a testator to make is to use the word “survivors” when he means not merely those of a certain group who survive, but also the issue of any one or more of that group who do not survive. In such case the issue take in place of their parent: see Fox’s Estate, 222 Pa. 108; Vance’s Estate, 209 Pa. 561; Bacon’s Estate, 202 Pa. 535; and Lapsley v. Lapsley, 9 Pa. 130.

It might be added that the rule in Shelley’s case does not apply because the will was executed after the passage of section 1 of the Act of July 9, 1897, P. L. 213.

We are of opinion that testatrix intended at the termination of the trust that the surviving issue of the cestui que trusts should take per stirpes.

Accordingly, the exceptions are dismissed and the adjudication confirmed absolutely.


source: Caselaw Access Project

author: Wickersham, J.,

license: Public Domain

text:
    Wilson v. City of Harrisburg et al.

      Carl B. Shelley and Le Boy Householder, for plaintiff.

      John B. Geyer, for defendant.
    Oct. 20, 1930.
   Wickersham, J.,

The plaintiff’s petition represents, after reciting the several acts of assembly covering the organization of the fire department of third class cities, that as part of the organized fire force of the City of Harrisburg there were and are at the present time employed by the city thirty-seven paid firemen, assigned to the respective fire companies of said city, and paid by the City of Harrisburg; that said paid firemen hold their positions solely under the regular and continuous employ of said city for a period of twenty-four hours daily, continuing during five days in each and every week. That said firemen are paid and employed under and bound by certain prescribed rules and regulations of the aforesaid fire department and are not volunteers in any manner whatsoever of the said department but are paid firemen and part of the uniformed fire force in the employ of the Department of Parks and Public Property of said city; that they are required to purchase at their own expense a uniform of a particular style and design selected and chosen by the said city. That said paid firemen are required to drive the fire apparatus of said city to and from all fires and conflagrations to which they may be called or summoned by fire alarm or otherwise, and to take active measures to extinguish and put out said fires and conflagrations. That under the provisions of section 1 of the Act of March 30, 1915, P. L. 34, as amended, it is the public duty of Herman A. Earley, Superintendent of the Department of Parks and Public Property in said city, and in charge of the fire department, to divide the said firemen of said fire department and members of the uniformed fire force of said city into two bodies or platoons; one to perform day service and one to perform night service, which said duty the said Herman A. Earley has refused to perform, by reason of which they are compelled to perform double duty, contrary to the provisions of said act. The petitioner prays for a writ of mandamus.

Upon the presentation of said petition the court ordered that a writ of mandamus in the alternative form be issued to the said defendants.

To the said writ of alternative mandamus the defendants, the City of Harrisburg and its officers, filed a return denying specifically “that as a part of the organized fire force of the city there are at the present time employed by the city thirty-seven paid firemen.” The defendants admit that there are employed thirty-seven persons as drivers of the city fire apparatus, but deny that the paid firemen are assigned to the respective fire companies, “but admit the paid drivers of the city’s fire apparatus are assigned to the several companies.” The defendants further deny that these paid fire drivers are not volunteers in any manner whatsoever of the fire department of the City of Harrisburg, but, on the contrary, aver that they are practically all of them volunteer members of the several fire companies of the city. The defendants deny that they are paid firemen, but, on the contrary, aver they are paid drivers of the city’s fire apparatus; the defendants further deny that they are part of the uniformed fire force in the employ of the Department of Parks and Public Property of the city.

For further answer to the matters heretofore alleged, it is set forth that the City of Harrisburg does not have a uniformed paid fire department in operation, but fire protection of the city is furnished by volunteer fire associations organized in various sections of the city, aided, advised and reporting to the superintendent of the department. That subsequent to 1914 motor-driven apparatus came into extensive use and “the question of the character and efficiency of the men who should drive this apparatus of the city was believed to be better handled if submitted to central control than if left to the employment by the several companies, and thereupon the plan was devised that they, who should drive this apparatus of the city, should be specially selected' and report directly to the head of the department and be paid directly by the City of Harrisburg instead of by the several companies.” That an ordinance was passed “fixing the number and compensation of the drivers of the city’s fire apparatus, and directing the manner of their payment, and . . . that they should be subject to the orders of the superintendent of that department.”

The plaintiff demurred to the said return filed by the defendant. The demurrer admits the truth of the return: Com. v. Dickinson, 83 Pa. 458.

Applying this well-established principle to the allegations in the return, it appears very clearly that the City of Harrisburg does not have a paid fire department, but depends for protection of the property of its residents on the voluntary efforts of the several fire companies of the city. It is admitted, however, that the petitioner and his associates, thirty-seven in number, are paid by the city and are under the direction of the superintendent; that they wear a uniform and that they are in constant attendance at the fire houses of the several volunteer fire companies twenty-four hours of the day and five days in each week, but that they are relieved three hours out of each twenty-four hours. It is further admitted that these drivers are practically all of them volunteer members of the several fire companies of the city, although not of necessity members of the particular company to which they are assigned. The demurrer further admits that the regulation fixing the number and compensation of the drivers of the city fire apparatus was provided and ordained by Ordinance No. 47, attached to and made a part of the return; and that the fire department is governed by certain rules approved by the council of said city on Nov. 11, 1919, also attached to and made a part of the return.

Having under consideration the facts in the instant case established and admitted by the return and demurrer, the question for determination is whether the Act of March 30, 1915, P. L. 34, as amended, by extending the same to cities of the third class, by the Act approved July 8, 1919, P. L. 734, applies to the City of Harrisburg.

The said amending Act of 1919 provides as follows:

“That the head of the department of public safety in each city of the first, second and third class shall, from and after the first day of January, one thousand nine hundred twenty, divide the officers and members of companies of the uniformed fire force in the employ of such cities, excepting the chief engineer and assistant chiefs, into two bodies or platoons — one to perform day service and the other to perform night service. The hours of day service shall not exceed ten, commencing at eight o’clock in the morning; the hours of night service shall not exceed fourteen, commencing at six o’clock in the afternoon. In cases of riot, serious conflagration, or other such emergency, the chief engineer of the bureau of fire, or the assistant chief deputy, or chief officer in charge at any fire, shall have the power to assign all the members of the fire force to continuous duty, or to continue any member thereof on duty, if necessary. No member of either of said platoons shall be required to perform continuous day service or continuous night service for a longer consecutive period than two weeks; nor be kept on duty continuously longer than ten hours in the day platoon, or fourteen hours in the night platoon, excepting as may be necessary to equalize the hours of duty and service, and also excepting in cases of riot, serious conflagration, or other such emergency, as above provided. . . .”

The City of Harrisburg operates under a commission form of government, and created five executive and administrative departments for its government, being the Department of Public Affairs, Department of Accounts and Finance, Department of Public Safety, Department of Streets and Public Improvements, and Department of Parks and Public Property. Herman A. Earley has been duly designated by the Council of the City of Harrisburg as Superintendent of the Department of Parks and Public Property of said city; and by ordinance of said city, they assigned and delegated to the Department of Parks and Public Property the duties relating to the organization, conduct, regulation and government of the fire department of said city. The duties prescribed to be performed and done under the Act of July 8, 1919, by the head of the Department of Public Safety under the said ordinance have been assigned to the Department of Parks and Public Property, of which the said Herman A. Earley is the head.

If we substitute the head of the Department of Parks and Public Property for the head of the Department of Public Safety, as provided in the Act of 1919, then the act would read that the head of the Department of Parks and Public Property in “each city of the . . . third class shall . . . divide the officers and members of companies of the uniformed fire force in the employ of such cities . . . into two bodies or platoons.” Does the mandate of said act, that the head of the department “shall divide,” apply to the City of Harrisburg, which admittedly has no paid fire department?

It is admitted the paid drivers are practically all members of some one of the volunteer fire companies of the city, and that they have been designated by ordinance as the drivers of the fire apparatus. Does that make them a part of a paid fire department? The act does not provide that the paid drivers of the several fire companies shall be divided into two platoons; the language of the act is that the “head of the department shall . . . divide the officers and members of the companies of the uniformed fire force in the employ of such cities . . . into two bodies or platoons.” We think this applies only to cities having a paid fire department. We cannot avoid this conclusion and decide otherwise because the clear intent of the act was that the “officers and members” shall be divided into platoons, which, we think, includes the entire fire department and not merely those only of each company who are paid to drive the fire apparatus while all the other members of a volunteer company render their services gratuitously.

“Platoon” is defined in Webster’s New International Dictionary to be a group of men. The record discloses that in some of the fire companies there is only one paid driver. How could the superintendent divide one man into a platoon? To state this question is to answer it.

It appears that the complainant in this case and his associates are required to serve twenty-one out of twenty-four hours every day for five days in the week. This may be a somewhat exacting service, but the court is powerless to relieve them without some plain statutory authority; that relief cannot be accorded without further legislation.

The demurrer is overruled, and for reasons herein stated we dismiss the plaintiff’s petition. Costs to be paid by the plaintiff.

Prom Homer Xj. Kreider, Harrisburg, Pa.


author: Shull, Dep. Att’y-Gen.,

text:
    Propagating License for Game.
    July 31, 1930.
   Shull, Dep. Att’y-Gen.,

You ask to be advised whether a propagating license is necessary and may be issued by your Board of Game Commissioners under the following conditions which you present:

The Borough of Norristown maintains a small park, where it has a few game birds and game animals. It is the desire of the management to sell a few of the offspring, using the money for the erection of cages and purchase of food for the birds and animals.

The borough solicitor, at whose instance you write us, makes this inquiry: “as the municipality is part of the State of Pennsylvania, would it be necessary to secure a propagation license?”

We may preface our reply to your inquiry with the general proposition that game and fish, like light and air, are incapable of absolute ownership. The wild game of a state belongs to the people in their collective sovereign capacity, and is not the subject of private ownership, except in so far as the sovereignty, through legislative enactment, authorizes its capture, appropriation or use: Geer v. Connecticut, 161 U. S. 519; Com. v. Papsone, 44 Pa. Superior Ct. 128. Through statutes, the legislature has directed the methods, manner and conditions under which game may be taken, and the use to which it may be applied.

The legislative enactments regulating game and protected birds within the Commonwealth of Pennsylvania are set forth in “The Game Code of 1923” (Act of May 24, 1923, P. L. 359), and its amendments. The part of the code which pertains to propagaron of game, the subject of your inquiry, appears in section 406, which provides that:

“Licenses issued to persons residing within this Commonwealth and of the age of twenty-one years or upwards, and to associations and corporations resident within this Commonwealth, shall authorize the holder thereof, and his or its assistants, to breed or raise game of any kind, and to sell the same, dead or alive, or the eggs of game birds, at any time, under the regulations hereinafter provided.

“It is unlawful to breed or raise game of any kind in captivity, or to sell eggs of game birds, without a propagating license, . . .”

Subsequent sections of the act relate to the character of premises suitable for purposes of propagation, enclosures for certain game, manner of sale of eggs and game raised, tagging and shipment thereof, etc., followed with penalties for violation.

The scheme of legislation thus provides the precise conditions and circumstances under which citizens may be permitted to kill game or birds, and the purposes and manner in which they may be captured; and having thus clearly expressed the method, manner and purposes in the matter of taking, the conclusion necessarily follows that other methods are excluded. The mere fact that the borough designated is a municipality of the Commonwealth does not carry with it the authority to exercise the right to capture, use or sell game, or its product or progeny. This prerogative exists only in the sovereignty of the state and may only be dispensed by the state, through its legislative body, by legislative enactment.

However, the municipality is such an association or corporate body resident within the Commonwealth as would come within the purview of the statute and a propagating license may be issued to it by the Board of Game Commissioners, upon compliance with the requirements of the statute.

It is our opinion, and we advise you, that said borough has no right as such municipality to capture, rear and sell game or birds, except in accordance with the provisions of the statute, and the first obligation for engaging in the enterprise is the procurement of the propagating license provided by the statute.

From C. P. Addams, Harrisburg, Pa.


author: Reno, P. J.,

text:
    Seem v. Henry.

      George M. Lutz, for plaintiff; John L. Gutshall, for defendant.
    March 24, 1930.
   Reno, P. J.,

William H. Seem filed a bill in equity, alleging that W. R. Henry, for the purpose of securing water power to operate his grist mill, keeps and maintains a dam near the William H. Seem boundary line across the natural channel of the Little Lehigh River, which obstructs the natural flow of the water of the Little Lehigh River and dams it to such a height as to overflow its banks, thereby hindering and delaying plaintiff in harvesting his crops with teams and machinery and injuring said crops. He prays for equitable relief as follows: (1) That the defendant be decreed to raise said dam; (2) that the defendant be enjoined to further obstruct the waters of the Little Lehigh River; (3) for such other and further relief ás the plaintiff may be entitled to; (4) for general relief.

The defendant, by his answer, admits that he maintains a dam which obstructs the natural flow of the waters of the Little Lehigh River, but he denies that the waters of the Little Lehigh River overflow the banks of the stream upon plaintiff’s land except during freshets and flood seasons. He avers that the original dam for the mill property which he now owns was erected more than one hundred years ago; that the present dam, as it now stands, was erected during July and August, 1890; that the present dam is of the same width and the same height (except that about three inches have been removed from the top thereof) as it was when it was erected in July and August, 1890; and that by reason of the maintaining of the dam in the same way and manner, and for the same uses and purposes, and of the same width and height, in .an open and hostile manner, said use by himself and his predecessors in title has ripened into an easement in defendant’s favor. He contends that a presumption of a grant to this easement has arisen in his favor and that, therefore, he is within his rights in maintaining the dam.

Considerable testimony has been taken and upon it are based the following findings of fact and conclusions of law.

Findings of fact.

1. Plaintiff owns a farm of approximately 109 acres in Lower Macungie Township, Lehigh County, adjoining which is defendant’s land on which a grist mill is located.

2. The grist mill is operated by the water power of the Little Lehigh Creek, obtained by obstructing the creek with a dam.

3. The dam has been maintained on the present site for many years, possibly a hundred years, certainly longer than the memory of the oldest living witness, and was rebuilt during July and August, 1890.

4. The dam is now of the same width and height as erected in 1890, except that (a) in 1901 the spillway was reduced by a fraction of an inch and (b) in 1927 about four inches were removed from the top of the spillway.

5. The defendant and his predecessors in title have used and operated the dam for a period of more than twenty-one years, and the use has been open, notorious, continuous, hostile, exclusive, under a claim of right and with the knowledge and acquiescence of plaintiff.

6. The lands of plaintiff (who is the upper riparian owner) are, by reason of the use and operation of the dam, flooded to such an extent that certain parts thereof cannot be cultivated and harvested, but they are not flooded to a greater extent than they have been for the past fifty or sixty years.

7. Neither defendant nor his predecessors in title have abandoned their right to use, operate or maintain the dam, although at times, particularly during the period from 1922 to 1927, the mill was not operated continuously or to its full capacity.

8. There have been disputes concerning defendant’s right, or that of his predecessors, to maintain the dam, but such disputes have occurred since the completion of the twenty-one-year period.

9. The removal of portions of the top of the spillway, referred to in paragraph 4 hereof, was not in recognition of any rights claimed by plaintiff, but in order that defendant and his predecessors in title might maintain peaceable relations with his neighbor.

10. The removal at times by defendant and his predecessors in title of boards of the spillway was not a recognition by them of any right in plaintiff but the request was granted as a neighborly act.

Discussion.

The case does not require lengthy discussion. There is considerable testimony, but the facts are easily ascertained. The heart of the case is the circumstance that the dam has been used and operated for many years. As far back as the year 1800 defendant’s property has been described as a “mill property.” This suggests, if it does not imply, the maintenance of a dam across the Little Lehigh River. At all events, there was a dam at the point of the one now in controversy for many years beyond the memory of íiving witnesses. However, since defendant is satisfied to base his claim upon the dam as it was rebuilt in July or August, 1890, it is unnecessary to adjudicate this case upon the basis of the older dam. The newer dam — the one now in controversy — was, as we have said, erected in 1890, almost forty years ago. It has remained in substantially the same condition all these years, except (a) that in 1901 a fraction of an inch of the height of the spillway was removed to make it conform to the older dam and (b) that in 1927, upon the advice Of Preston M. Bastían, a justice of the peace and surveyor, for the purpose of restoring good-mil in the neighborhood, the spillway was again lowered by removing three inches from its top.

These facts being incontrovertibly true, it is difficult to understand how plaintiff’s lands could have suffered an enlargement of the flooded area. “As long as the dam structure is of the same height, it may be assumed, in most cases at least, that the water is held to the same general level and the extent of the land flooded from time to time is the same:” McGeorge v. Hoffman, 133 Pa. 381, 398. As a matter of fact, plaintiff himself testifies that the water has been swelled back upon his lands for many years, not only while defendant operated the mill, but also while defendant’s predecessors in title occupied it. So that the extent to which waters are flooding his fields is now not greater than in the past. Indeed, if there has been any change, the flooded area must have been reduced by the lowering of the spillway. Certainly, it cannot have been increased by piling of the debris of the channel of the stream upon its banks, for the channel was not thereby narrowed.

Defendant’s right to obstruct the stream is based, not upon a deed but upon prescription, upon the presumption arising out of the continued maintenance of the dam that a grant was made. Naturally, the burden of establishing a prescription is upon him who asserts it, and defendant has, we think, abundantly shown an uninterrupted adverse enjoyment for more than twenty-one years: Garrett v. Jackson, 20 Pa. 331. True, there have been disputes concerning the right to operate the dam, but they occurred in 1912 or 1913, after the twenty-one years had run. “The owner of the land has the burden of proving that the use of the easement was under some license, indulgence or special contract inconsistent with a claim of right by the other party:” Garrett v. Jackson, supra. Unquestionably, if the owner of the servient tenement resists such claim or opposes the use it will negative the claim. Whether a mere verbal objection to the use is valid or must be in the form of an action at law is open to question. Workman v. Curran, 89 Pa.. 226, holds that it is not at all necessary that the owner of the servient tenement shall enter suit to prevent the completion of the prescriptive period, although an action is necessary to prevent the running of the statute in a case of adverse possession. On the other hand, in McGeorge v. Hoffman, supra, the Supreme Court seems to have approved an instruction to the effect that “a mere battle of words” is not enough, “it must be more than that,” “you must bring your action.” The Superior Court seems to follow the latter rule: Hudson v. Watson, 5 Pa. Superior Ct. 456. But since the disputes occurred after the completion of the twenty-one-year period, it is not necessary to determine the true rule.

Conclusions of law.

1. The lands, dam and mill property of the defendant are the dominant tenement.

2. The lands of the plaintiff adjoining those of the defendant are the servient tenement.

3. The defendant has acquired the right to dam the water of the Little Lehigh by prescription, having done so for a period of more than twenty-one years.

4. Proof of an uninterrupted use for the prescriptive period of twenty-one years, without evidence to explain how it began, raises a presumption that it was adverse and under a claim of right.

5. The owner of the servient tenement cannot overcome the presumption of right arising from an uninterrupted user for the prescriptive period by proof that no grant was in fact made.

6. In order to overcome the presumption, the owner of the servient tenement must show that the user was without his knowledge.

7. If the owner of the servient tenement relies on the fact that the user was by virtue of some license, indulgence or agreement inconsistent with the right claimed, the burden is on him to prove this fact.

8. The prescriptive period in Pennsylvania is twenty-one years.

9. An easement acquired by prescription stands in all respects on the same footing as easements by grant.

10. One who purchases land with notice, actual or constructive, that it is burdened with an existing easement takes the estate subject to the easement.

11. Where the use of the easement is open and visible, the purchaser of the servient tenement will be charged with notice of such easement.

12. An easement of flowage may be lost by reason of an adverse and inconsistent user by the owner of the land subject thereto for the prescriptive period; but mere non-user for less than the statutory period of a limitation does not extinguish the easement.

13. A prescriptive right to maintain a right and flow land once acquired is absolute and cannot be lost or prejudiced by any acknowledgment on the part of the possessor.

14. When the plaintiff acquired title to his farm adjoining lands of the defendant, he took it subject to whatever back-flow or obstruction of water the dam of the defendant occasioned and must enjoy his land as he took it, subject to have just so much of it overflowed (if any) as the dam and other natural peculiarities of the stream below his lines caused to be overflowed.

15. The spillway and flood gate of the dam of the defendant, being that part of the breast of the dam over which the water flows, determines that extent to which the waters in the reservoir of the dam are raised or flooded back.

16. The plaintiff is not entitled to relief and his bill must be dismissed. Costs to be paid by plaintiff.

Decree nisi.

Now, March 24, 1930, it is ordered that the foregoing findings of fact and conclusions of law be filed and that the prothonotary enter this order as a decree nisi, giving notice thereof to the parties or their counsel, and if no exceptions are filed thereto within ten days the prothonotary shall enter the same as a final decree.

From Edwin L. Kohler, Allentown, Fa.


author: Winkle, J.,

text:
    Alexander et al. v. Coatesville Boiler Works.

      Evans, Bayard & Frick and Walter S. Talbot, for plaintiffs.

      Saul, Ewing, Remick & Saul, for defendant.
    March 10, 1930.
   Winkle, J.,

Plaintiffs filed this bill in equity, setting forth that the defendant is about to erect and operate, on the property owned by it near their residences, a plant for fabrication of boilers, and that the operation thereof with the attendant noises will constitute a continuing nuisance, and praying that an injunction issue restraining such action by defendant and other relief. Defendant in its answer admits that it proposes to erect the plant described by plaintiffs, but denies that it will constitute a nuisance and that plaintiffs are entitled to the relief sought. Upon the issue thus formed trial was had and testimony taken.

Findings of fact.

1. Plaintiffs are severally the owners of houses and lots situate in the City of Coatesville, Chester County, Pa., in a district known as Drumpelier, which is bounded on the north by the main line of the Pennsylvania Railroad and extends east from Ninth Avenue to the City Line and south to the City Line. The Lincoln Highway runs through said district, east and west.

2. Drumpelier is a purely residential district with homes ranging in value from $9000 to $65,000.

3. Defendant owns a tract of land in Cain Township, Chester County, adjoining said City of Coatesville and lying immediately north of said main line of the Pennsylvania Railroad, being bounded on the south thereby, extending from a northern extension of Eleventh Avenue in the city to a northern extension of Thirteenth Avenue and containing 31.657 acres. For a number of years defendant has operated on said tract a foundry, machine shop and pattern shop and has stored material. Such operations have not proved objectionable to plaintiffs.

4. Defendant states it is about to. erect on this tract above described a boiler factory and accessory structures, with equipment for the fabrication of boilers, tanks and other articles made of steel plate of one-quarter inch or more in thickness and castings. Said plant will be equipped with pneumatic and hydraulic riveters, capable of riveting plates varying in thickness from three-eighths of an inch to two inches. It will be double the capacity of defendant’s present boiler factory in South Coatesville and will be equipped with fifty-four pneumatic air-gruns.

5. Seventeen of plaintiffs’ houses located on the north side of Lincoln Highway are within a radius of 1000 feet from the centre of the proposed plant and 60 per cent, of plaintiffs’ houses located on the south side of Lincoln Highway are within a radius of 1500 feet from the centre of said plant.

Dismission.

From the testimony presented it is impossible for the court to determine whether or not the operation of the suggested plant of defendant would constitute a nuisance restrainable at the prayer of the plaintiffs. The location of the plant on the premises owned by the defendant was rather indefinitely given by the general manager on the witness-stand, but no definite or final plan thereof had evidently been prepared. Such location might be altered many times before the buildings were erected. The equipment for said plant likewise was testified to by the same witness off-hand with no indication that any detailed list or even memorandum thereof had ever been made. Whether the articles enumerated would be increased or decreased in number and size is not free from doubt. Both the location of the buildings and the equipment thereof vitally affect the question of the existence or non-existence of a nuisance in this particular case.

Even with those matters definitely settled, however, we would still be unable to find as a fact whether or not the noises emanating from the plant would be so objectionable and annoying as to be restrainable. Our opinion, based on all the evidence both parties were able to present, would be little more than a guess. Different localities and terrains affect sounds so differently that observations made at one plant are of little weight when considering the carrying qualities of similar sounds from another such plant at another place. Expert testimony as to the intensity of sound from one pneumatic hammer, even if understood, helps but little. We are not certain that the operation of the plant proposed would constitute a nuisance to the plaintiffs.

Under the circumstances outlined above, we are unable to grant the injunction prayed for: New Castle v. Raney, 130 Pa. 546, in which the court’s opinion concludes as follows: “Heretofore the jurisdiction of equity has been confined to nuisances per se, or when the right is clear, or has been settled by the verdict of a jury. We think it better to adhere to the beaten track.” In that case the court refused to restrain operation of an old mill dam because it had not been established as a nuisance by an action at law, saying: “Whether it is a nuisance at all depends upon the testimony, and that is conflicting.” In Vandivort v. Hunter, 265 Pa. 585, an injunction against alleged contamination of plaintiff’s spring by defendant’s cesspool was refused, the opinion of the Supreme Court, after citing New Castle v. Raney, supra,; Mirkil v. Morgan, 184 Pa. 144; Mowday v. Moore, 133 Pa. 598, and Piro v. Shipley, 211 Pa. 36, containing the following language: “We will not attempt any discussion of the evidence; it is enough to know that it left the mind of the court in such doubt and perplexity as to whether the cesspool had any connection whatever with the spring, that he felt he could do nothing but refuse the injunction prayed for and dismiss the bill.” In Manegold v.. Foundry Co., 17 Dist. R. 973, Judge Endlich, of Berks County, in a well considered opinion, after reviewing the authorities, says: “We have, then, the rule that in cases of alleged nuisance, where the facts upon which the plaintiff’s right rests have not first been established by an action at law, equity will interfere by injunction only if the material facts are either admitted by defendant or not drawn in question by the proofs, or if the latter so strongly uphold them that a contrary verdict of a jury upon the same evidence in an action at law would not be suffered to stand,” and states one conclusion of law as follows: “In so far as the plaintiff’s action is founded upon interference by defendant with her personal comfort and the impairment by reason thereof of her use and enjoyment of her property, her right rests in facts which are disputed and not proven by the evidence with the degree of certainty required to warrant the granting of the injunction prayed for.”

In the case before us, then, we are not satisfied that plaintiffs’ right is “clear and the facts upon which it rests uncontested.” Indeed, there is much contest as to the annoyance that would be caused plaintiffs by the operation of defendant’s proposed plant and as to the facts themselves that would constitute such annoyance, to wit, the amount of noise generated, the carrying qualities and intensity thereof, whether it would be blanketed by the noise of the trains on the railroad and motor vehicles on the highway and other matters of like nature. As we have said above, we feel, a definite finding of fact in regard thereto would be little more than a guess, and upon guesses we may not grant injunctions.

However, it is not certain that the suggested plant of defendant when finally completed and in operation as described from the witness-stand will not be a nuisance to plaintiffs. It may well be, but only the actual operation thereof can furnish the evidence to establish or disprove such contentions. Consequently, we feel that plaintiffs should not be precluded by the court at this time and on this application from seeking and, if proper, obtaining any appropriate relief in the future should conditions warrant. In dismissing the bill, therefore, we do so without prejudice to the plaintiffs’ right to present another or to institute any other suitable action in the premises, if and when in the future conditions render it necessary to do so.

Conclusion of law.

Plaintiffs’ proofs do not establish their right to the relief by injunction prayed for, and their bill must, therefore, be dismissed, without prejudice, however, to their rights to institute appropriate action in the premises in the future.

The following will be entered as the final decree, unless exceptions to our findings and conclusions are filed within ten days after notice of the entry thereof is given by the prothonotary to the parties hereto or their counsel of record:

Decree.

And now, to wit, March 10, 1930, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows: The bill in equity in this suit filed is dismissed, without prejudice, however, to the rights of the plaintiffs at any time in the future to institute appropriate action in the premises to seek relief. The costs to be paid by plaintiffs.

Prom Truman D. Wade, West Chester, Pa.


author: Groff, J.,

text:
    Commonwealth v. Di Santi.

      M. Edna Hurst, for rule; J. E. Senft, contra.
    April 19, 1930.
   Groff, J.,

This is a proceeding brought by the State of Pennsylvania to recover from Ottonazio Di Santi, father of Anthony Di Santi, who is charged on the books of the Harrisburg State Hospital, at Harrisburg, Pennsylvania, where he has been continuously confined as an indigent insane patient from July 27, 1926, to Sept. 30, 1929. The petition further alleges that the State of Pennsylvania has expended, from July 27, 1926, to Sept. 30, 1929, for the maintenance and support of the said Anthony Di Santi at the Harrisburg State Hospital the sum of $438.63, as evidenced by the affidavit of Lloyd B. Shoop, Secretary of the Bureau of Maintenance Collections of the Department of Revenue, at Harrisburg, Pennsylvania; and then prays the honorable court for a rule upon Ottonazio Di Santi, father of Anthony Di Santi, to show cause why he should not pay to the Commonwealth of Pennsylvania the said sum of $438.63 for maintenance as aforesaid.

To this, the respondent filed an answer admitting the facts alleged in the petition. Respondent, however, denies his ability to pay.

Section 2 of the Act of May 10, 1921, P. L. 438, amending section 3 of the Act of June 1, 1915, P. L. 661, reads as follows:

“The . . . father ... of any person who is an inmate of any asylum, hospital, home, or other institution, maintained in whole or in part by the Commonwealth of Pennsylvania, and who is legally able so to do, shall be liable to pay for the maintenance of any such person, as hereinafter provided. . . .”

Section 4 of the Act of June 1, 1915, P. L. 661, is amended by the Act of April 25, 1929, P. L. 704, to read as follows:

“The Court of Common Pleas of the county of the residence of any inmate of a state-owned mental hospital, or any home, hospital, asylum, or other institution wherein said inmate is maintained in part by the Commonwealth of Pennsylvania, shall, upon the application of the Department of Justice, acting on behalf of the Department of Revenue, make an order for the payment of maintenance to the Commonwealth upon the trustee, committee, guardian, or other person who has charge of the estate of any such inmate, or against the . . . father ... of any person so maintained; and any order made against the . . . father . . . shall be in such amount as the court, in its discretion, deems proper, taking into consideration their ability to pay for said maintenance; . .

Section 5 of the said act reads as follows:

“The sworn statement of the superintendent, steward, ... in whose custody are kept the records of any hospital, home, asylum, or other institution not owned by the state wherein persons are maintained in part at the expense of this Commonwealth . . . shall be received as prima facie evidence in any court of this Commonwealth of the amount expended by the Commonwealth for the support or maintenance of any such person in any proceeding brought to recover the amount of such maintenance.”

The depositions filed in this case show that the respondent lives on South Front Street, in the Borough of Columbia, Pennsylvania; that he owns a property, which he lives in, and for which he paid $400; that there is against the property a mortgage of $200, and, in addition thereto, he owes some other debts; that he has an interest in another lot in the Borough of Columbia, Pennsylvania, worth about $150; that he runs a small store; and that he gets $7, $8 or $10 a week from the operation of that store; and that he lives alone and has nobody to keep but himself.

A careful examination of all the facts in the case leads us to conclude that the respondent is unable to pay for the maintenance of his son. We, therefore, discharge the rule granted in the above case and order and direct that the said Ottonazio Di Santi is not, at present, of such legal or financial ability to make the payments due the Commonwealth up to this time.

Prom George Ross Eshleman, Lancaster, Pa.


author: Valentine, J.,

text:
    Beveridge et al. v. Teeter.

      Frank L. Finóla, for plaintiffs; Edwin Shortz, Jr., for defendant.
    June 19, 1930.
   Valentine, J.,

This suit in trespass was instituted Jan. 24, 1922, to recover damages alleged to have resulted from an automobile accident which occurred May 26, 1921.

An affidavit of defense was filed by the defendant on Feb. 23, 1923, and the case not listed for trial until January, 1930, at which time the defendant moved for its continuance, and on Feb. 4, 1930, procured this rule.

The petition alleges, inter alia: “Plaintiffs have been guilty of unreasonable and unnecessary delay, whereby the defendant has been prejudiced and would be placed to a disadvantage if compelled to go to trial.”

The answer does not deny that the delay prejudiced the defendant, but averment is made that “plaintiffs have been guilty of no more delay . . . than the defendant. If he has been prejudiced and placed at any disadvantage it is his own fault, because the ease was ready for trial and by praecipe he might have an order for the trial of it.”

In Potter T. & T. Co., Admin’r, v. Frank, 298 Pa. 137, our Supreme Court said: “True, the defendants could have forced the issue, but they were not bound to do so. Why should they voluntarily incur the trouble and risk of expensive litigation? . . . Plaintiff is the actor and it is his duty to bring on the trial.”

In the instant case no step to bring the case to trial was taken until seven years after the filing of the affidavit of defense. This delay was unreasonable and raised a presumption of abandonment.

The rule of Feb. 4, 1930, to show cause why judgment of non pros, should not be entered is made absolute and judgment of non pros, entered.

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


author: Alessandroni, J.,

text:
    Coty, Inc., et al. v. Sun Ray Drug Co. et al.

      Harry Felix, for plaintiffs; Alexander Meigs Haig, for defendants.
    Jan. 7, 1931.
   Alessandroni, J.,

The bill in equity relates that Coty, Inc., of Delaware obtained all the rights, title and interest of Francois De Spoturno Coty, of Suresnes, France, to all trade-marks and patent rights and all rights to prepare, assemble, manufacture and distribute throughout the continent of North America certain aids to female charm, such as face powder, perfumes and cognate toilet preparations. The Coty Processing Company, Inc., of New York had been given the right to prepare, assemble, manufacture and distribute throughout North America the above mentioned articles. On June 24, 1930, Coty, Inc., of Delaware transferred to Coty, Ltd., of Maryland the right to distribute the above mentioned products throughout North America. The word “Coty” has been registered in the United States Patent Office by the plaintiffs. The same has been done with the word “L’Origon.” The plaintiffs during the past five years have expended over $10,000,000 in advertising “Coty” products. All of the Coty products are presented to the public in an artistic method, and the artistic presentation consists in the form of the bottle, the labeling of the packages and the preparation of the packages. It is alleged that this artistic method of presentation constitutes an important item of good-will. One of the articles so presented is a package containing face powder, a booklet called “Revealing Beauty,” and a five-gram bottle of perfume essence, with a label designating the odor of the perfume and on the back showing the words “Sample Only” and “Not for Sale.” This package is presented in a beautiful, interesting and artistic design. The sample perfume was always the same odor as the powder and the bottle is not prepared in the same artistic manner as regular bottles of Coty perfume. It is alleged that the Sun Ray Drug Company is a corporation located at No. 934 Market Street and No. 1518 Market Street, Philadelphia, and that the persons in absolute control, management and direction of the Sun Ray Drug Company’s business affairs are William, Joseph and Jacob Raboff. The bill alleges that the defendants have broken open the sample packages, destroying the labels, pamphlets and all indications that the sample bottles are really samples, and the label indicating the name of the perfume. It is further alleged that the defendants have advertised 65-cent Coty’s perfume at 29 cents and have employed an electric flasher sign reading “Coty’s Regular 65c. Extracts 29c.” The plaintiffs further complain that the defendants have displayed a sign stating “Present Conditions Have Compelled Manufacturers to Unload Nationally Advertised Merchandise at Unheard of Prices.” It is alleged that such action on the part of the defendants is contrary to the inferred understanding and agreement set forth at the time the merchandise was purchased, because (a) the name of the perfume has been removed from the bottle, so that it is impossible for a purchaser to re-order it; (b) the sample bottle is not the kind, class, quality or grade which is made and sold by the plaintiffs as regular Coty products; (c) the destruction of the pamphlet “Revealing Beauty” deprives the plaintiffs of the good-will advertising; (d) the sale of the sample bottle as a regular bottle destroys the good-will built up by the plaintiffs through their regular packings; (e) the statement that the merchandise was worth 65 cents to 69 cents is misleading, untrue and is a fraud upon the purchasers, who are also led to believe that Coty has fixed that value; (f) the presentation of the Coty merchandise in the manner of the defendants is damaging to the plaintiffs’ good-will, which is made up in large part by the quality and fineness of the manner of presentation to the public; (g) the statement “Present conditions have compelled manufacturers to unload nationally known merchandise. We pass these remarkable values on to you,” is a fraudulent misrepresentation of fact, leading purchasers to believe that the plaintiffs were compelled to- unload merchandise so that the product can be sold at such low prices, whereas in fact it is really just a sample; (h) and that the statements contained in the foregoing signs impugn the financial condition of the plaintiffs and damage its property rights. It is further complained that the destruction and removal of the copyrighted words “Coty” and “L’Origon” placed upon the sample bottles is an infringement of the plaintiffs’ property rights, and that the destruction and removal of the pamphlet is also an infringement of their property rights. The plaintiffs, therefore, request that an injunction issue, preliminary to hearing and perpetual thereafter, restraining the defendants from (a) advertising and selling the sample bottles as of the value of 69 or 65 cents, or under any sign which does not indicate that the bottle is a sample bottle only and is not intended for sale; (b) that the defendants be restrained from disposing of the bottles of perfume in any other manner than as a sample bottle; (e) that the defendants be enjoined from removing the labels on the sample bottles and selling them as regular goods; (d) that the defendants be restrained from advertising in any manner so as to indicate that the plaintiffs’ merchandise has been purchased at cut prices because of market conditions; (e) that a mandatory injunction issue, ordering the defendants to deliver up to the court all sample bottles of perfume not previously sold; (f) that the defendants be compelled to pay damages; and (g) general relief.

Preliminary objections were filed to the bill, which will be considered in the order raised. The first objection is to the failure of the plaintiffs to set forth a copy of the contract, whereby Coty, Inc., of Delaware purchased the rights, trade-marks and patents from Francois De Spoturno Coty, of Suresnes, France. The basis of this objection is that this contract is the basis of the plaintiffs’ right of action. This objection may be summarily dismissed, inasmuch as the contract which forms the basis of the objection does not constitute the basis of the plaintiffs’ right of action against the defendants. The basis of the plaintiffs’ right of action against the defendants as set forth in the bill are the acts of the defendants which are alleged to be destructive of the good-will of the plaintiff corporations.

The second objection is that there is a misjoinder of parties plaintiff, as neither Coty, Inc., of Delaware nor Coty Processing Company of New York has any interest in this proceeding. It is alleged that the basis of the plaintiffs’ action is the improper sale and distribution of Coty products, in which only Coty, Ltd., has an interest. This objection is also invalid, for the reason that the acts complained of constitute items which are destructive of the good-will of Coty products, in which all three of the plaintiff corporations unquestionably have an interest. The destruction of the good-will naturally attendant upon Coty products will seriously interfere with the right of all three plaintiff companies, especially in view of the fact that the bill alleges that the plaintiffs have built up this good-will by the expenditure of over $10,000,000 in advertising and the care with which their products are marketed and prepared.

The third objection is to the failure of the plaintiffs to set forth the contracts between themselves. The basis of this contention is similar to that raised in the first objection. It is here alleged that the basis of the plaintiffs’ action lies in- the contracts between the three plaintiff companies. This objection is subject to the same answer made to the first objection. The contracts between the three plaintiff companies are simply alleged in the bill for the purpose of stating the basis of the plaintiffs’ rights in their products and not as the basis of their suit. We again feel called upon to remark that the basis of the cause of action sued upon lies in the acts of the defendant which are alleged to be violative and destructive of the plaintiffs’ good-will, in which they are all vitally interested.

The fourth objection is that the bill fails to set forth any cause of action against the individual defendants, William, Joseph and Jacob Raboff. It is alleged that this constitutes a misjoinder of parties. Defendants argue that William, Joseph and Jacob Raboff are officers, directors and minority stockholders of the Sun Ray Drug Company, and that there is no act alleged against them personally other than as officers of the defendant corporation. In answer to this objection, we feel it pertinent to indicate that there is nothing in the bill itself which would support the allegation that the individual defendants are officers, directors or minority stockholders of the Sun Ray Drug Company, and to remark that the defendants are seeking to bring matters into the record which do not appear in the bill. The bill alleges that “the persons in the absolute control, management and direction of the said defendants, Sun Ray Drug Company’s business and affairs, are William Raboff, Joseph Raboff and Jacob Raboff.” Throughout the recital of the acts forming the basis of complaint the bill alleges that the defendants have performed those acts. In view of these allegations in the bill, it unquestionably appears that William, Joseph and Jacob Raboff, who are in absolute control of the management and direction of the Sun Ray Drug Company, also performed the acts of which the plaintiffs complain. The fourth objection, therefore, has no legal justification and should be dismissed.

The fifth objection alleges that the bill has not set forth any ground for equitable relief. The defendants argue that the basis of the plaintiffs’ cause of action is unfair competition and that no such facts appear in the bill. Our examination of the bill, however, discloses that the basis of the plaintiffs’ cause of action consists of items which are destructive and grossly abusive of the plaintiffs’ good-will. The bill alleges that the defendants have destroyed the labels on packages and labels on sample bottles of perfume; that the defendants have advertised 65 and 69-cent Coty’s extracts at 29 cents, whereas in fact those bottles were marked sample bottles and not to be sold; that the defendants have removed the labels stating that the aforesaid bottles are sample bottles and not to be sold, and have also removed the labels designating the odor of the perfume, which prevents the stimulus to sales which the plaintiffs intended to create by means of these sample bottles; that the defendants have displayed conspicuous signs that business conditions have compelled manufacturers to unload nationally advertised merchandise at unheard of prices, which the defendants are passing on to the public; that the aforesaid acts are contrary to the purpose of the plaintiffs in creating the package, and contrary to the inferred understanding and agreement as set forth at the time the merchandise was purchased; that the advertising of the sample bottles as regular goods is destructive of the plaintiffs’ good-will in their artistic bottles and packages; that the destruction of the pamphlet “Revealing Beauty” is destructive of the value of the good-will advertising contained therein, and is contrary to the inferred and agreed understanding between the plaintiffs and defendants; that the destruction of the plaintiffs’ packages also has the same effect; and that the destruction and removal of the copyrighted words “Coty” and “L’Origon” placed upon the plaintiffs’ bottles are an infringement of the plaintiffs’ property rights. These acts clearly constitute an impairment and destruction of the plaintiffs’ good-will and property rights.

Trade-marks, trade names and the results of extensive advertising campaigns constitute elements of good-will which the courts will protect: Nims on Unfair Competition and Trade Marks (3rd ed., 1929), pages 50, 51. It is there stated that “every act on the part of another that unfairly injures or lessens this friendly attitude of the community may be the basis of court action looking to the protection of the good-will thus attacked.” The highest court of the United States has repeatedly held that good-will constitutes a property right which the courts will protect: Metropolitan National Bank v. St. Louis Dispatch Co., 149 U. S. 436. See, also, Sawilowsky v. Brown, 288 Fed. Repr. 533.

The acts complained of will unquestionably act in a destructive manner upon the good-will of the plaintiff corporations and will cause serious loss to the plaintiffs through the detrimental effect of those acts upon the favor with which the public now views the nationally advertised Coty products.

The sixth objection is to the allegations of the bill that the destruction of the advertising matter in the package is “contrary to the original desire and the inferred and agreed understanding between the said defendants and the said orators” (25 C) and that the actions of the defendants are “contrary to the said inferred understanding and agreement as set forth at the time of purchase of the said merchandise” (page 25). The defendants complain that this language avers an agreement between the parties which should be set out in detail with all its terms and a statement as to whether the agreement was oral or in writing. Page 25 avers that there was an inferred understanding and agreement at the time of purchase of the merchandise. An inferred understanding and agreement is not subject to precise definition or terminology and cannot be set forth in detail. The averment in page 25 C that the defendants’ acts are contrary to an inferred and agreed understanding also does not lend itself to precise terms or exact definition. An inferred understanding is not a specific contract the details of which can be set forth. An agreed understanding is also of the same quality. Any understanding does not lend itself to precise definition and exactitude. The production of a copy of such an understanding would be impossible and an objection based upon a request for the performance of an impossible act cannot be supported. It is also significant to note, however, that the acts complained of constitute violations of the plaintiffs’ property rights by operation of law without the necessity of setting forth any contractual basis.

The seventh objection consists of an intricate and technical argument that an assignment of the patents, trade-marks and trade names of Francois De Spoturno Coty is a nullity because it is not accompanied by an assignment of the good-will. This objection does not take into consideration the other allegations of paragraph 3, which, in addition to averring that Francois De Spoturno Coty transferred his trade-marks and trade names to Coty, Inc., of Delaware, also avers that Coty transferred to Coty, Inc., of Delaware “all rights to prepare, assemble, manufacture and distribute throughout the continent of North America . . .” perfumes and toilet preparations. The agreement in question not only transferred trade-marks and patent rights but transferred as well all rights to prepare, assemble, manufacture and distribute Coty products throughout the United States and Canada. Such rights constitute in effect a transfer of the good-will of Coty in North America without the necessity of the express use of the word “good-will.”

The eighth objection, namely, that the bill seeks to secure a monopoly and to restrain legitimate competition, may be summarily dismissed. The argument made that the defendants purchased the products and can sell them at any price they see fit totally avoids the allegations of the bill regarding the destruction of the Coty and L’Origon labels and the removal of the labels stating that the bottle is a sample bottle only and is not intended for sale. It also avoids the allegation made by the plaintiffs that the defendants have represented these sample bottles as being 65 and 69-eent Coty bottles which they are selling for 29 cents. Such statements are a fraud upon the public and the plaintiff companies and constitute unfair practices which are detrimental to the welfare of the plaintiffs. Such practices do not, in the mind of the court, constitute legitimate competition among retail merchants which the plaintiffs are seeking to restrain.

The ninth and final objection is that the plaintiffs are not coming into equity with clean hands, as the allegations of the bill and the testimony show that the products are manufactured in America by American corporations and sold to the public as products of France. This objection, is based upon allegations which the defendants claim were produced at the hearing in court. Such testimony cannot be considered in a discussion of the preliminary objections to the bill, which must limit itself to the allegations therein contained. There is nothing in the bill to indicate that the plaintiffs are deceiving the public. In fact, the agreement between Coty of France and Coty, Inc., of Delaware conferred the right upon Coty, Inc., of Delaware to use the name and trade-marks of Coty of France and prepare, assemble, manufacture and distribute certain perfumes and toilet preparations. There is nothing in the bill that would indicate that the plaintiffs are not complying with their agreement or are foisting articles on the American public under false representations. The contract mérely constitutes Coty, Inc., of Delaware an American company with full charge of the preparation and distribution of Coty products on this side of the Atlantic Ocean.

And now, to wit, Jan. 7, 1931, preliminary objections to the bill in equity are dismissed and the defendants are ordered to file an answer thereto within fifteen days of the filing of this opinion.


author: O’Hara, Dep. Att’y-Gen.,

text:
    Vacancy in Representation in Congress.
    Sept. 11, 1930.
   O’Hara, Dep. Att’y-Gen.,

We have your request under date of Sept. 8th for an interpretation of, and procedure under, article I, section 2, of the United States Constitution, where a vacancy has occurred in the representation in Congress from this state since the last session of Congress. The next session will convene the first Monday of December, 1930. You desire to be advised whether or not the issuance of a writ of election prior to the convening of the short term of Congress is mandatory.

Article I, section 2, paragraph 4, of the Constitution of the United States provides:

“When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.”

Article I, section 4, paragraph 1, provides:

“The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of chusing [sic] Senators.”

The Act of July 2, 1839, P. L. 519, sections 39 to 42, inclusive, provides for the issuance and requisites of the writ of election, time of election and when the writ shall be delivered to the sheriff.

(See. 39) “Every writ which shall be issued by the governor of this commonwealth, in pursuance of the constitution of the United States, to supply a vacancy in the representation of the people of this commonwealth in the house of representatives of the United States, shall be directed to the sheriff of the county, or counties, composing the congressional district, and shall particularly express the day on which the election shall be held to supply such vacancy.

(Sec. 40) “If such vacancy shall happen during the session of congress, or if congress shall be required to meet at some time previous to the next general election, the governor shall appoint a time as early as may be convenient for holding such election, otherwise he shall direct the election to be held at the time appointed for holding the general elections.

(See. 41) “Every writ for holding a special election, as aforesaid, shall be delivered to the sheriff, to whom the same may be directed, at least fifteen days before the day appointed for such election, who shall forthwith give due and public notice thereof throughout the county, at least ten days before such election, and shall send a copy thereof to at least one of the inspectors of each election district therein.”

Article VIII, section 2, of the Constitution of Pennsylvania [as amended] provides:

“The general election shall be held biennially on the Tuesday next following the first Monday of November in each even-numbered year, but the General Assembly may by law fix a different day, two-thirds of all the members of each house consenting thereto: Provided, That such election shall always be held in an even-numbered year.”

Where the legislature of a state has failed to “prescribe the times, places and manner” of holding elections, as required by the Constitution of the United States, the Governor may, in case of a vacancy, in his writ of election, give notice of the time and place of election, but a reasonable time ought to be allowed for the promulgation of the notice: Hoge’s Election Case (1804), House Reports Contested Election Cases, 52; 1 Watson on the Constitution, 200.

Since the decision in the Hoge Election, the Legislature of Pennsylvania has, pursuant to the provisions of article I, section 4, of the Constitution of the United States, enacted sections 39 to 42 of the Act of July 2, 1839, P. L. 519, supra.

In our opinion, and you are so advised, the writ which shall be issued by the Governor of this Commonwealth to fill a vacancy now existing in the representation in Congress from this state should direct the election to be held at the time for holding the next general election, to wit, Tuesday, next following the first Monday of next November, and should be delivered to the sheriff, to whom the same may be directed, in sufficient time to permit the sheriff to give the notice required by law, and these provisions are mandatory.

From C. P. Addams, Harrisburg, Pa.


author: Gordon, Jr., J.,

text:
    In re Samuel J. Kauffman.

      Wm. Clarke Mason and Franklin E. Barr, for Board of Censors.

      D. P. Hibberd, for respondent.
    Jan. 13, 1931.
   Gordon, Jr., J.,

This is a proceeding for the disbarment of the respondent, Samuel J. Kauffman. He and others were indicted in the Quarter Sessions for the offenses of conspiracy to extort and extortion, and on April 17, 1930, they were acquitted of the charges. None of the defendants offered evidence in answer to the case of the Commonwealth, and it is difficult to understand, from a reading of the testimony, by what process of reasoning the jury reached the conclusion that it did. However, as the authorities are clear that the acquittal of an attorney on a criminal charge does not prevent his discipline or disbarment for the same cause (Wolfe’s Disbarment, 288 Pa. 331; Kennedy’s Disbarment, 178 Pa. 232; Snyder’s Case, 301 Pa. 276), the acquittal of the respondent in this case does not control our consideration of the petition before us.

When the jury had reached its verdict of not guilty, our brother Lewis, who presided at the trial, directed the district attorney to transmit a copy of the stenographic record of the proceedings to the Committee of Censors for their consideration and action, and thereafter that committee filed the petition for disbarment which is now before us. At the hearing on the petition, it was agreed that the testimony taken at the trial of the criminal case against the respondent should be offered in evidence and accepted, subject to objection and exception to its general and particular competency and relevancy, as if taken on the hearing of the petition. With the offering of this testimony the petitioner rested. The respondent was then given an opportunity to make answer to the charges, but his counsel stated that he did not desire to do so. At a later date, counsel of record for the respondent withdrew his appearance, and other counsel appeared for him, who requested that he be heard in answer to the charges against him. Accordingly, we fixed a time for hearing the respondent and his witnesses. At that hearing, however, the respondent’s attorney appeared and stated that, after further consultation with his client, the latter had decided to offer no testimony and to make no answer to the charge. We thereupon cautioned counsel that, although the respondent was at liberty to do as he deemed best for his own interests, we would be compelled to draw the natural and obvious inference from his silence and refusal to refute or explain the testimony against him.

It is unnecessary to go in detail into the many acts of professional dishonor of which the evidence overwhelmingly convicts this respondent. He was the confederate and leader of a group of persons who were engaged in a systematic and repeated extortion of money from a physician of this city, by the abuse of the criminal process, and most of the money so extorted he embezzled from the different female clients whom he pretended to represent. It will be sufficient to review so much only of the testimony as will indicate his method of operation and the nature of his misconduct. According to the testimony of a number of women who gave evidence at the trial, a certain Dr. Leo J. Faltermayer, of this city, committed abortions upon them, and at their solicitation. Dr. Faltermayer, however, denied his guilt in each instance, and we need not form or express an opinion upon that subject, as his guilt or innocence of the crimes charged neither justifies nor aggravates the misconduct of the respondent. After the alleged abortions, the respondent procured representation of the women who claimed to be so mistreated, and either issued, or threatened to issue, warrants for the offenses they charged against the doetor. By this means the respondent succeeded in extorting from the doctor various sums of money, ranging as high as $5000 in one instance, in settlement of the supposed charges against him. His explanation for the payment of such sums was that, although he had not been guilty of the offenses, he could not afford to permit a public exposure of the charges, as the mere accusation of such an offense would be fatal to his professional reputation and life. A single instance will indicate the method of procedure which the respondent adopted in conducting this campaign of extortion. Having been retained by a woman named Cecelia Brooks, who claimed to have been caused to abort by the doctor, the respondent caused a warrant to be issued against him, and sent a constable to his office to place him under arrest. The constable, who was a confederate of the respondent, suggested to the doctor, immediately upon his arrest, that the case should be settled. After making this suggestion the constable, instead of taking his prisoner to the station house and slating him in the regular and orderly manner, accompanied him on his professional rounds, and later took him to the respondent’s office. After a conversation with the respondent, the doctor was then taken to his home, where he procured $5000. This money he brought back to a street corner near the respondent’s office, paid it over in settlement of the case to one of the respondent’s confederates, and was then released from arrest by the constable. A number of other persons took part in the carrying out of this blackmailing scheme, but are not essential to an understanding of it, although they illuminate and emphasize its dishonorable and criminal character.

Having thus extorted $5000 from Dr. Faltermayer, the respondent committed a further act of professional misconduct, which alone would require us to strike him from the roll of attorneys. He then visited his client and her husband, in company with another man, who was falsely represented to his client as the attorney for the doctor. With the husband and wife, the respondent then conducted, through his co-conspirators, a fictitious negotiation for settlement of the case, in which, aided by the false attorney, who was present, his clients were persuaded to settle the ease for $900, of which $200 was to be paid to him as a fee. $700 was then paid in cash to the clients, and, to further carry out his deception, a check for $200 made out to his order by the bogus attorney for the doetor was handed over, in the client’s presence, and a release without expressed consideration was given to the fictitious attorney, which was later delivered to the doctor himself. By this means the respondent cheated his client out of $4300. The procedure in this ease was typical of that followed in the numerous cases involved in the criminal charges against the respondent. In each instance the doctor, whether guilty or innocent of the charges against him, was threatened and blackmailed out of large sums of money, and in each instance but a small percentage of the amount extorted from the doctor was paid over to the clients.

This testimony clearly discloses a course of systematic extortion and embezzlement on the respondent’s part, the truth of which cannot be doubted when we consider his failure to deny the evidence against him in any particular, and leaves but one course open to us. The respondent’s conduct displays such gross moral turpitude, and such a want of appreciation of the fundamental principles of professional honor and common honesty, that to continue to hold him out as worthy of trust and confidence would do a wrong to the public and bring dishonor and discredit upon the profession. The rule for disbarment is, accordingly, made absolute, and it is ordered that the prothonotary shall strike from the roll of attorneys the name of the respondent, Samuel J. Kauffman, and shall give notice of this action to the Orphans’ Court of Philadelphia County and to the Supreme and Superior Courts of Pennsylvania,


author: Geoff, J.,

text:
    Terre Hill Borough v. Young et al.

      William C. Rehm, for rule; H. Frank Eshleman, contra.
    Jan. 18, 1930.
   Geoff, J.,

This is a motion for a judgment non obstante veredicto. The court on the trial of the case gave binding instruction to the jury, directing them to find a verdict in favor of the plaintiff for $152.87, with interest from Jan. 1, 1928. At the same time, the court submitted the following question to the jury for their determination: “whether, under all the evidence, you can say that Alberta Young, or her sister, Stella Diffenbaeh, received notice of the intention of the Borough of Terre Hill to lay a curb and gutter in front of this property.” This question was answered “no.” The court feels this answer was justified from the evidence in the case. The defendant submitted a point for binding instructions, the answer to which was reserved by the court, and in consequence thereof, we have before us this motion.

The Act of May 16, 1923, P. L. 207, section 20, reads as follows:

“Tax claims and municipal claims shall be prima facie evidence of the facts averred therein in all cases; and the averments in both tax and municipal claims shall be conclusive evidence of the facts averred therein, except in the particulars in which those averments shall be specifically denied by the affidavit of defense, or amendment thereof duly allowed. . . .”

And the above act of assembly provides in section 7 that:

“No claim shall be filed for curbing ... of any highway unless the owner shall have neglected to do said work for such length of time as may be described by ordinance, after notice so to do, served upon him or his known agent or occupant of the property . . . and if there be no agent or occupant known by claimant, it may be posted on the most public part of the property.”

Section 10 of the act, cited supra, reads:

“Said claim shall set forth: ....

“7. In other than tax claims, the kind and character of the work done for which the claim is filed, and, if the work be such as to require previous notice to the owner to do it, when and how such notice was given.”.

It is conceded that the lots here liened are vacant lots. The jury has determined that no personal notice was given to the owner. That finding, in our opinion, was correct. The lien does not set out such notice. There is no averment in the lien, and no oral proof offered, that any notice was served upon the agent of the owners, nor that notice was posted on the most public part of the property. The claimant, having omitted these averments in its lien, and having offered no proof thereof, it would, in our opinion, fall short of the requirements of the acts of assembly.

In the case of Borough of McKees Rocks v. Hogan Heirs, 60 Pitts. L. J. 648, it was decided that:

“A municipal lien, filed by a borough against a property owner for grading, paving and curbing of a sidewalk, will be stricken off on motion when it fails to show notice to the owner requiring him to do the work as provided by the eleventh section of the Act of June 4, 1911.”

We notice that the plaintiff borough says in its claim that it is filed under the Act of June 4, 1909, and by virtue of any and all other acts of assembly relative thereto. This claim should have been filed, and probably was intended to be filed, under the Act of May 16, 1923, P. L. 207. That act prescribes fully the method in which the lien is to be filed, the form of the lien and the notice to be given before the lien is filed. We have stated above that the lien as filed does not show that the act has been complied with.

In the case of City of Scranton v. Genet et al., 232 Pa. 272, the Supreme Court said:

“The right of the court to hear and determine questions arising in connection with the filing and enforcing of claims for municipal improvements is purely statutory. The right of the municipality to enforce the collection of any such claim is also statutory.”

We conclude that, the remedy being statutory, the requirements of the statute must be fully complied with and the record must show a good and sufficient lien on its face. This lien does not comply with the requirements of the above act of assembly, and there has been no effort to provide proof to supply the deficiencies pointed out in the affidavit of defense.

The claimant here says that any defect in his lien was cured by the validating Act of April 10, 1929, P. L. 481. We find this provision in the act referred to:

“That the provisions of this act shall not apply in any instance where the validity of such procedure by boroughs for the grading, draining, paving, curbing and guttering of streets, alleys and public alleys has been made the subject of litigation in any court of the Commonwealth prior to the approval of this act.”

The work on which this lien is based was authorized, or started, in 1926, and finished on Sept., 6, 1927. The lien was filed on Dee. 12, 1927. A scire facias thereon was issued July 3, 1928, and an affidavit of defense was filed by the defendants on Sept. 8, 1928, in which defendants deny the first, second, third, fourth, fifth and sixth paragraphs of the claim, and then aver in paragraph seven of the affidavit of defense:

“That said municipal lien was filed against Sallie Knight. That the said Sallie Knight was not the owner of the real estate; that they, the said Alberta Y. Young and Estella Diffenbach, have owned said real estate since September 22, 1911; that they have paid taxes to the said borough yearly since that date; that said ordinance authorizing the filing of said lien is defective; that the lien against the real estate was not filed in due time, and that no notice of the filing of said lien was given to the owners in accordance with the act of assembly.”

The validating act, as referred to above, was not passed until April 10, 1929. The claimant contends in its brief that the issuing of scire facias and the filing of an affidavit of defense thereto is not litigation as contemplated by the act. With this view, however, we cannot agree. The claimant’s right to recover is statutory, and before it can recover, the provisions of the statute must be complied with. This, we feel, has not been done. Under all the evidence and the law, it is our opinion that binding instructions should have been given for the defendants on the trial of the case, and we, therefore, now enter judgment notwithstanding the verdict in favor of the defendants.

Judgment directed to be entered for the defendants n. o. v.

From George Ross Eshleman, Lancaster, Pa.


author: Newcomb, P. J.,

text:
    Weinberger v. Friedman.

      Morris B. Gelb, for plaintiff; Tinkham & Myers, for defendant.
    March 7, 1930.
   Newcomb, P. J.,

The question is on the regularity of the proceedings had by a justice of the peace.

On plaintiff’s claim of $50 judgment was entered against defendant “for the sum of $50 and $8.50 costs.”

This was erroneous. Costs are recoverable only as an incident to a judgment. They can not be both an incident to and also an integral part of the judgment debt: Garey and Pender v. Redmond, 4 Lacka. Jurist, 52.

This ground of objection is fatal and the other exceptions may be disregarded.

Judgment reversed.

From William A. Wilcox, Scranton, Pa.