author: Heiligman, J.,

text:
    Barsby v. Merck & Company et al.

      Axelroth & Porteous, for plaintiff.

      Thomas Raeburn White and C. L. Cushmore, Jr., for defendants.
    Sept. 5, 1930.
   Heiligman, J.,

This is a claim under the Workmen’s Compensation Act, made by the widow of a decedent alleged to have died from a wound suffered while in the course of his employment. The finding of the referee disallowing compensation was overruled by the Workmen’s Compensation Board and appealed by the defendant.

That the decedent died from a wound on his hand, causing blood poisoning and resulting in his death is admitted. The only question before us for consideration is as to the sufficiency of proof that such injury was inflicted in the course of the decedent’s employment.

At the hearing held before the referee, counsel for the claimant offered in evidence a certified copy of the death certificate, which reads as follows:

“Certified copy of death certificate shows inquest held 2/1/29, on the body of Edward Barsby. The cause of death as follows: ‘Cellulitis and Septicemia injuries to right hand while working at Merck & Co., 9th and Passyunk Ave.’ Where was disease contracted if not at place of death ‘Employer’ (Signed) Fred Schwarz, Jr.,. Coroner.”

To this offer counsel for the defendant objected on the ground that the same was incompetent except to prove the death of Edward Barsby. The referee in his ruling admitted the same for the purpose of showing that Edward Barsby died from cellulitis and septicemia, and not for the purpose of showing where he got it or how. Counsel for the claimant contends that this certificate shall be considered prima facie evidence of the facts stated therein and relies upon section 21 of the Act of June 7,1915, P. L. 900. This act of assembly provides, among other things, that the State Registrar of Vital Statistics shall, upon request, furnish any applicant a certified copy of the record of any death, etc., and when so properly certified by the State Registrar to be a true copy thereof, the same shall be prima facie evidence in all courts and places of the facts therein stated. The certificate offered in evidence in the instant case is a certificate issued by the coroner, and is not, in our opinion, such a certificate as is contemplated by the act of assembly quoted by counsel for the claimant. In our opinion, the only testimony to be considered is the testimony offered in evidence at the hearing before the referee. This testimony, in support of the contention of the claimant that such injury occurred in the course of decedent’s employment, consists of certain statements made by the decedent himself after the injury, which statements claimant contended were a part of the res gestae, and, therefore, admissible and competent testimony to prove the place where, and time when, the injury was inflicted. Over the objection of counsel for the defendants was admitted the statement to a Dr. Marshall, who treated the decedent’s hand for the injury, that the decedent had scratched his hand on a machine in Karteller’s department, that is, in the Merck Company plant, “about five or six days ago.” This statement was made on Wednesday, Jan. 23, 1930, thus making the original date of the injury the 17th or 18th of January, and at that time the doctor treating the decedent for the injury stated that it was “no doubt several days old.” The decedent on the same date stated to a nurse in attendance to the same doctor that he had received the injury on the Saturday before in the plant before he went home. There is a further statement made to the decedent’s daughter at the decedent’s home about Jan. 22nd, in which the decedent stated, upon inquiry by the daughter as to the reason for his hand being bandaged, that he, the decedent, had scratched it on a machine while at work. All of this testimony was objected to at the hearing as being incompetent and inadmissible because hearsay testimony.

The decedent was taken to the hospital on Jan. 25, 1930, and died from blood poisoning on Jan. 29, 1930.

We deem it unnecessary to go into a detailed discussion of the reasons for the existence of the hearsay rule with the many authorities now existent in this state as to the exception to this rule which permits statements because a part of the res gestae. The only testimony offered shows conclusively that the above statements of the decedent were made at least four or five days after the occurrence which resulted in the injury. There is no testimony whatsoever that any one saw the occurrence at the time when the injury took place.

It must be admitted that such an injury as a scratch on the hand might well have taken place on any number of occasions while the decedent was not at work or in the course of his employment.

To admit such a declaration as a part of the res gestae under the circumstances would be to extend existing laws as to admissible evidence to unlimited bounds. In Smith v. Philadelphia & Reading Coal & Iron Co., 284 Pa. 35, the decedent died from strain alleged to have been suffered while throwing a chain in a mine while at work. About two hours after the injury was alleged to have happened, the decedent told his son that he had strained himself in throwing a chain while at work in the mine, and made a like declaration to his wife on his return home at the end of his day’s work. The court there declared that such evidence was inadmissible as hearsay and refused to admit the declarations of the decedent as part of the res gestae as being “. . . so remote from the stated time of injury as not to come at all within the res gestae rule.” In Riley v. Carnegie Steel Co., 276 Pa. 82, which was a claim under the Workmen’s Compensation Act, the court laid down the following rule: “To be admissible as part of the res gestae, declarations must be the spontaneous utterances accompanying or immediately succeeding or immediately preceding the act in question so near in point of time and place as to be in reality a part of it and not the designed statements of the actors nor the recital of a past event.” In Com. v. Gardner, 282 Pa. 458, it was said: “It [the res gestae] ought to be confined to those utterances made in connection with a startling event by one laboring under the stress of nervous excitement caused by it, which are spontaneous and not due to reflection, premeditation, or design. It ought to be within the course of continued action. When produced under the excitement of the event and so soon thereafter that the continuity is not broken, these circumstances preclude the idea of premeditation or design. . . . Where the declarations are made after the event, so that they could be said to be a mere narrative of what has happened rather than a spontaneous utterance, they are not admissible.”

Applying the above authorities to the instant ease, we cannot but decide that the declarations of the decedent are entirely inadmissible. In McCauley v. Imperial Woolen Co., 261 Pa. 312, the court dealt at length with claims under the Workmen’s Compensation Act. It is sufficient for the purpose of this case to cite a part of the opinion on page 326. “The act permits liberal investigation by hearing and otherwise; but after all the data has been gathered without regard to technical rules, then the proofs must be examined and that which is not evidence within the meaning of the law must be excluded from consideration; that is to say, when all the irrelevant and incompetent testimony has been put aside, the findings must rest upon such relevant and competent evidence of sound, probative character as may be left, be this either circumstantial or direct.”

The evidence before the referee and the board did not justify the inference that the death of Mr. Barsby was caused by; injury sustained by him in the course of his employment, and we are of opinion that the exceptions should be sustained.

When an exception to the award is sustained and the action of the board is reversed, it has been ruled that the record should be remitted to the board for further hearing and determination, as provided in article XV, section 427, Act of June 26, 1919, P. L. 642, 666. In furtherance of its humane purposes, the act gives the claimant every opportunity to produce evidence to sustain her claim, and, in directing that the report be returned to the Compensation Board for further hearing, opportunity is presented to produce such additional evidence: Kuca v. Lehigh Valley Coal Co., 268 Pa. 163; Riley v. Carnegie Steel Co., 276 Pa. 82.

It may be that the claimant may not be able to produce new testimony or that the testimony offered may be cumulative. In either case, it is the duty of the board to disallow the claim.

Order.

And now, Sept. 5, 1930, after argument of counsel and upon consideration, the exceptions are sustained, the decision of the Workmen’s Compensation Board is reversed and the record is remitted to the board for further hearing and determination as is provided in article IV, section 427, of the Act of June 26, 1919, P. L. 666.


source: Caselaw Access Project

author: Kun, J.,

license: Public Domain

text:
    Lupowitz v. Double Share Building and Loan Association.

      William Ginsburg, for plaintiff; A. T. Hamby, for defendant.
    Oct. 30, 1930.
   Kun, J.,

On June 9, 1925, the defendant granted two mortgage loans to one Hyman Schlachman, each in the sum of $3500, in connection with which the plaintiff paid into the association the sum of $750 cash as security for each loan, or the total sum of $1500, under the agreement that the said sum would be returned to the plaintiff by the defendant when there should have been paid into the association the sum of not less than $750 on each of the said mortgages, either on account of the principal thereof or on account of twenty shares of stock of the association issued in connection with each mortgage to the mortgagor and by him assigned to the association as collateral security for the loan. Following the creation of the mortgages, Schlachman conveyed the premises to one Isaac West, who in turn conveyed them to Mollie Stern. Thereafter, on Oct. 1, 1926, Mollie Stern conveyed the premises in question to the defendant association, the mortgagee. The conveyances were made under and subject to said mortgages held by the defendant association and certain other preexisting liens. It appears that the paid-in value of the shares of stock assigned in connection with the mortgage loans reached the sum of $750 on each one on July 2, 1928. The principal sum of $1500 has been repaid by the defendant association to the plaintiff. It is also conceded that the plaintiff is not entitled to recover interest on his $1500 deposit by him as security from the date of the deposit, but there is a dispute now as to whether interest is recoverable by the plaintiff from defendant from Oct. 1, 1926, the date when the defendant association took title to the properties, specifically under and subject to its own mortgages of $3500 each, or whether the plaintiff is entitled to the interest on the said $1500 only from July 2, 1928, when, as stated, the paid-in value of the shares of stock assigned as collateral in connection with the mortgages had reached the sum of $750 with respect to each of the mortgage loans.

The answer to the question depends on the legal significance of the defendant association’s taking title to the premises from Mollie Stern on Oct. 1, 1926, specifically under and subject to the payment of the said second mortgage debts, or principal sums of $3500, together with interest due and to become due thereon as stated in the conveyances to it.

In the absence of any evidence to the contrary, the presumption under the terms of such a conveyance is that the amount due on the mortgages under and subject to which the conveyance was taken was part of the consideration of the purchase: Stanhope’s Estate, 184 Pa. 414; Dobkin v. Landsberg, 273 Pa. 174, 180; Bryar’s Appeal, 111 Pa. 81, 90; Cock v. Bailey, 146 Pa. 328. The defendant association having taken title to the premises in question under and subject to the mortgages mentioned, though the mortgages were to itself, nevertheless, became obligated to pay them: Orient B. & L. Ass’n v. Freud, 298 Pa. 431.

It follows that Schlaehman, the mortgagor of the mortgages in question, on whose behalf the plaintiff had deposited his $1500 with the defendant as security, was, after the conveyance of the properties under and subject to the mortgages to the association, no longer obligated to pay the amount of the mortgages. The obligation to pay them was, as stated, on the vendee, the association itself. It follows that since Schlaehman was no longer obligated to pay the mortgages, the association could hardly retain therefor the security which the plaintiff had deposited with the association to secure the payment of the mortgages up to at least $1500. The obligation of Schlaehman, the mortgagor, having ceased, it follows that the collateral obligation of the plaintiff, his surety, also ceased.

The court concludes, therefore, that the plaintiff is entitled to recover interest of the defendant on the $1500 which had been deposited by the plaintiff with the defendant as security as above stated, and which sum has since been repaid to him, the interest to be computed from Oct. 1, 1926, the date upon which the defendant association took conveyance of the premises in question under and subject to the payment of the said mortgages, to the date when the said sum of $1500 was repaid by the defendant to the plaintiff.


author: Alessandroni, J.,

text:
    Bubbis v. Duffy & Bros., Inc.

      L. S. Rosenthal, for plaintiff; Felix & Felix, for defendant.
    July 31, 1930.
   Alessandroni, J.,

The bill in equity recited that the plaintiff was the assignee for value of fifty shares of preferred stock and fifty shares of common stock in the defendant corporation and that the defendant wrongfully refused to transfer the stock to his name on the books of the corporation and to issue new stock certificates in his name. The answer to the bill denied these facts.

Upon consideration of the bill in equity, the answer thereto and the facts established by the testimony, the court makes the following

Findings of fact.

1. On April 22, 1927, Samuel Lundy was employed by Duffy & Bros., Inc., and purchased fifty shares of the common stock and fifty shares of the preferred stock of the said Duffy & Bros., Inc., and on the same day two certificates for the stock were issued to him, said certificates stating on their face that the shares were “full paid and non-assessable” and were of the par value of $50 each.

2. The said Samuel Lundy, by check dated April 22, 1927, paid to Duffy Bros, the sum of $4636.51 on account of the purchase of the stock. A dispute has arisen as to whether any balance remains due and payable unto Duffy & Bros., Inc., on account of the stock purchase, Samuel Lundy contending that the balance of $363.49 was paid by the assignment of an account receivable, and the defendant corporation contending that the balance was not paid and that $500 is still owing on the stock. Defendant corporation has brought an action at law for the sum of $500 claimed to be due, which case has not yet come to trial and the decision of which is not necessary for the determination of this action and will, therefore, not be considered.

3. On April 4, 1929, Samuel Lundy’s brother-in-law, A. David Bubbis, the plaintiff, loaned Samuel Lundy the sum of $5000, the stock certificates being used as collateral. The loan was not repaid in time, due to the inability of Samuel Lundy to cash the stock certificates, and on Aug. 23, 1929, both stock certificates were assigned to A. David Bubbis in payment of the $5000 debt.

4. The defendant corporation refused and persists in its refusal to assign and transfer these shares on the books of the corporation to A. David Bubbis because of the. balance of $500, which it claims against Samuel Lundy, and also refused to issue new stock certificates in the name of A. David Bubbis for the same reason.

5. The secretary of the defendant corporation, Daniel D. Duffy, issued these full-paid certificates, although he stated he made a mistake and knew that a rider should have been attached, stating it was not fully paid.

6. A. David Bubbis made a bona fide purchase of the stock from Samuel Lundy without notice that any money was claimed to be due the defendant corporation for the stock, relying on the clause appearing on the face of the certificate that the shares were full paid and upon the integrity of his brother-in-law.

Discussion.

The testimony clearly indicates that the plaintiff is an innocent purchaser for value without notice of any alleged claim of the defendant corporation for the unpaid balance due on the stock. Regardless of whether the claim of the defendant corporation is valid, the plaintiff is entitled to the transfer of the shares on the books of the corporation to his own name and to the issuance of stock certificates in his own name. Section 15 of the Uniform Stock Transfer Act of May 5, 1911, P. L. 126, is as follows:

“There shall be no lien in favor of a corporation upon the shares represented by a certificate issued by such corporation, and there shall be no restriction upon the transfer of shares so represented, by virtue of any by-law of such corporation, or otherwise, unless the right of the corporation to such lien or the restriction is stated upon the certificate.”

Under this authority, the transfer and assignment of the stock from Samuel Lundy to A. David Dubbis was without restriction and free of any lien of the corporation.

While the defendant corporation was organized under the laws of Delaware, no evidence was produced to indicate that the laws of that state differ in any respect from those of the State of Pennsylvania, and we cannot take judicial notice of the fact that the law of Delaware varies from that of this state. As stated in 23 Corpus Juris, 131: “Ordinarily the courts of one state do not take judicial notice of the laws of another state. Hence, they do not take judicial notice of the fact that the law of another state differs from that of their own state.” The plaintiff, therefore, is entitled to have the stock transferred to his name on the books of the corporation and to have new stock certificates issued in his own name.

No requests for findings of fact and conclusions of law were submitted by either party.

Conclusions of law.

1. The plaintiff is a bona fide purchaser of the stock of Samuel Lundy in Duffy & Bros., Inc., and purchased the stock without notice of any lien of the defendant corporation.

2. The stock certificates are full paid and no lien or restriction of any kind appears upon their face.

3. Plaintiff is entitled to have the stock transferred to his name on the books of the defendant corporation and to have new certificates in his own name issued to him.

4. Defendant to pay the costs of this proceeding.

Decree nisi.

And now, to wit, July 31, 1930, it is hereby ordered, adjudged and decreed that the defendant corporation transfer the stock appearing in its books under the name of Samuel Lundy to A. David Bubbis and that it issue new stock certificates for the aforesaid stock in the name of A. David Bubbis; defendant to pay the costs of this proceeding.


author: Thompson, Dist. J.,

text:
    In re Max Olanoff.

      Jacob A. Olanoff, for petitioner; Charles M. Bolieh, contra.
    Oct. 28, 1930.
   Thompson, Dist. J.,

The petitioner, Jacob A. Olanoff, filed his petition, setting out that he is the attorney for Max Olanoff, residing in Brooklyn, N. Y.; that Max Olanoff is a citizen hy virtue of the naturalization of his father, Nathan Olanoff, as shown by a certificate of naturalization issued to him in this court on May 4, 1916; that Max Olanoff has requested from the clerk of the court a certified copy of the petition and order showing the naturalization of his father, Nathan Olanoff, giving as reason therefor the necessity of obtaining a passport to travel abroad. The clerk refused to grant the request. In his answer he admits the facts, hut avers that a certified copy of the petition and order is not necessary for the purpose set forth, and further avers that he has no authority to issue a certified copy of the record as prayed for.

Prior to the passage of the Act of June 29, 1906, 34 Stat. at L. 596, the usual proof of naturalization was a copy of the record of the court admitting the applicant: Contzen v. United States, 179 U. S. 191. Section 27 of that act, however, provides for the form of certificates of naturalization to be used in the proceedings to which it relates.

Section 28 of the Act of 1906 provides that:

“Certified copies of all papers, documents, certificates, and records required to be used, filed, recorded, or kept under any and all of the provisions of this act shall be admitted in evidence equally with the originals in any and all proceedings under this act and in all eases in which the originals thereof might be admissible as evidence.”

The petitioner avers that he derives citizenship through naturalization of his father. Section 33 of the Act of March 2, 1929, 45 Stat. at L. 1512, provides as follows:

“Any individual over twenty-one years of age who claims to have derived United States citizenship through the naturalization of a parent, or a husband, may, upon the payment of a fee of $10, make application to the Commissioner of Naturalization, accompanied by two photographs of the applicant, for a certificate of citizenship. Upon obtaining a certificate from the Secretary of Labor showing the date, place, and manner of arrival in the United States, upon proof to the satisfaction of the commissioner that the applicant is a citizen and that the alleged citizenship was. derived as claimed, and upon taking and subscribing to, before a designated representative of the Bureau of Naturalization within the United States, the oath of allegiance required by the naturalization laws of a petitioner for citizenship, such individual shall be furnished a certificate of citizenship by the commissioner, but only if such individual is at the time within the United States. In all courts, tribunals, and public offices of the United States, at home and abroad, of the District of Columbia, and of each State, Territory, or insular possession of the United States, the certificate of citizenship issued under this section shall have the same effect as a certificate of citizenship issued by a court having naturalization jurisdiction.

“Any person who (1) knowingly issues or is a party to the issuance under this section of a certificate of citizenship not authorized by the provisions of this section, . . . shall be guilty of a felony and on conviction thereof shall be fined not more than $5000, or imprisoned not more than five years, or both.”

Section 32 of the same act makes similar provisions for the issuance by the Commissioner of Naturalization of a new certificate of citizenship or declaration of intention in case the original is lost, mutilated or destroyed.

Section 18 of the Act of 1906 declares:

“It is hereby made a felony for any clerk or other person to issue or be a party to the issuance of a certificate of citizenship contrary to the provisions of this act, except upon a final order under the hand of a court having jurisdiction to make such order, and upon conviction thereof, such clerk or other person shall be punished by imprisonment for not more than five years and by a fine of not more than $5000, in the discretion of the court.”

The purposes of the Act of 1906 and subsequent acts, in relation to the issuance of certificates of naturalization, are apparent. The fraudulent issuance and fraudulent use of certificates of naturalization had become prevalent. False certificates were used for the purpose of unlawful voting and for other unlawful purposes. Clerks of the courts and parties having access to the seal of the court were selling certificates of naturalization unlawfully procured, and it was, apparently, in order to suppress these frauds and crimes that the pertinent provisions of the Acts of 1906 and 1929 became part of the law.

While section 28 of the Act of 1906 makes certified copies of papers, documents, certificates and records required to be used, filed, recorded or kept under the provisions of the act admissible in evidence equally with the originals, that section has no bearing upon the question whether or not a certified copy of the record may be supplied to a citizen where Congress has expressly provided the means for supplying him, through the commissioner, with a certificate of naturalization having the same effect as a certificate issued by a court of naturalization jurisdiction. What the petitioner is asking for, namely, a certified copy of the records of the court, would be to all intents and purposes a certificate of naturalization. But the Act of 1906 provides that the certificate of naturalization shall be in the form there prescribed. If certified copies of the entire proceedings of the court were to be issued in a ease of this nature, the safeguards intended to be thrown about the issuance of such certificates would be entirely nullified.

It is not necessary in this proceeding to consider what would be done in case of the necessity of having certified copies of papers used in naturalization eases for use as evidence to prove facts other than the mere fact of naturalization of his father, through which he derives his citizenship. As proof of that fact, the naturalization certificate is the best evidence under the Acts of Congress.

The petition is dismissed and order denied.


author: Langham, P. J.,

text:
    McCreary Tire and Rubber Company v. Piccone.

      William E. Pierce and E. E. Creps, for plaintiff.

      Robert M. Fisher, W. M. Ruddock and Donald O. Coughlin, for defendant.
    Dec. 27, 1929.
   Langham, P. J.,

Arthur J. Piccone, of near Wilkes-Barre, Pa., purchased tires from McCreary Tire and Rubber Company, of Indiana, Pa., and on a settlement between them Piccone gave to the rubber company three judgment notes, each in the sum of $500. Two of the notes were paid, one through the Sheriff of Luzerne County on a testatum writ of ft. fa. from Indiana County. A testatum writ was likewise issued on the third note for $500, and Piccone has petitioned the court to open the judgment. Subsequent to the giving of the three notes Piccone purchased certain additional merchandise from the rubber company on open account, and at the time of the rubber company’s effort to collect on the $500 note the rubber company had an open account charge on its books against Piccone for something over $600. Piccone sent a check to the rubber company for $511.70, dated Feb. 26, 1929. From the pleadings it appears that the proceeds of said check for $511.70 were received by the rubber company and Piccone given credit therefor. Piccone claims that the check, when written by him and transmitted to the rubber company, bore the notation “to cover note,” and that the rubber company was required to apply it in payment of the note. The rubber company says the check when received and negotiated by it did not bear said notation. Admittedly, if the check did not indicate on what indebtedness it was to be applied, the rubber company would have the right to apply it on any item of indebtedness held against Piccone. The narrow question, therefore, seems to be, did the check when received by the rubber company and negotiated by it bear the notation “to cover note?” On this question Ralph W. McCreary, superintendent of the rubber company, testified that it did not bear the notation, whilst Piccone testified that it did. These were the only witnesses called by the parties. The check in question was offered in evidence by Piccone, bearing the notation “to cover note,” but the rubber company contends that it was written or printed thereon after the cheek had been paid at the bank on which it was drawn and had come back into the hands of Piccone. The check was marked paid by a stamp, which cut small holes or perforations in the check. The top of the letters “o” and “t” in the word “note” extended up to some of the perforations, and on the back of the check there are two plainly visible ink stains at the edge of the perforations touched by the letters “o” and “t.” The back of the check bears unmistakable evidence that the words “to cover note” were written on the check after the perforations were made therein, and the ink running through said perforations caused the ink stains on the back. The check, but for this, would be corroborative of Piccone, but in view of the condition of the check, it contradicts Piccone. The well settled law applicable to such a case is this:

“It is a mistake to suppose that the court to which the application is made cannot judge of the weight of the evidence and the credibility of the witnesses, but, in every case where there is a conflict of testimony, must send the case to a jury.

“While the precise measure of proof which should move a chancellor to open a judgment is not laid down, yet he may not act at all unless there is more than oath against oath, and, when there is more than this, and it comes to a question of the weight of the evidence, it is for him to decide as to which side the scales incline:” Jenkintown Nat. Bank’s Appeal, 124 Pa. 337; Challenge Beneficial Ass’n v. Weis, 52 Pa. Superior Ct. 262.

The duty of the court is concisely stated in the ease of Warren Savings Bank & Trust Co. v. Foley, 294 Pa. 176, 184, as follows:

“In determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the exercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered.”

Order.

And now, Dec. 27, 1929, this case came on to be heard in open court, and upon due consideration of the testimony, it is ordered and decreed that the rule be discharged, at the cost of petitioner.

Prom James L. Jack, Indiana, Pa.


author: Ferguson, P. J.,

text:
    Bizot v. Audenried.

      Eric A. McCouch, for plaintiffs; Wm. M. Kitzmiller, for garnishees.
    Nov. 20, 1930.
   Ferguson, P. J.,

Plaintiffs obtained a judgment against defendant and issued attachments summoning two trust companies as garnishees. In response to interrogatories, answers were filed by one garnishee admitting that it was trustee of an estate fronrwhieh' defendant was entitled to have the income, and at the time of the filing of the answer there was in its hands the sum of $934.14 payable to defendant. The other garnishee answered that it was trustee of an estate under which defendant was entitled to the income, and that there was $1119’.79 in its hands payable to defendant. Rules for judgment were taken against the garnishees for the amounts in their hands, and, also, for such further sums as from time to time may become payable thereafter to defendant, until the plaintiffs have received full payment of their judgment, with interests and costs.

We cannot make the rule absolute in the form in which it is taken. We are without power to grant judgment against a garnishee for money or goods which are to come into its hands in the future. In Longwell v. Hartwell, 164 Pa. 533, it was stated: “The proper form of the judgment is for plaintiff against the garnishee, and that the garnishee has in his hands certain goods, effects or credits, to wit (naming them), of the value, etc., or that the garnishee is indebted to the defendant in the sum of, etc.” We have examined many cases and can find no support for the contention of plaintiff that a garnishee who expects to receive money in the future for the defendant can have a judgment entered against him requiring him to pay such money, from time to time, as it is received, to the plaintiff in the attachment. Proceedings in attachment execution follow those in foreign attachment, and the Supreme Court has held that in foreign attachment, if there is no money in the hands of the garnishee at the time the writ issues, although something comes into his hands between the service of the writ and the filing of the answer, there is nothing to support the writ because the initial requisite of jurisdiction did not exist, to wit, that there was property or a right in property of the defendant in the hands of the garnishee at the time of service: Kennedy v. Schleindl, 290 Pa. 38.

In attachment execution, it has always been held that up to the time of filing the answer any moneys in the hands of the garnishee are covered by the attachment, even though received after the service: Mullen v. Maguire, 1 W. N. C. 577; Bremer’s Sons v. Mohn, 169 Pa. 91; Glazier v. Jacobs, 250 Pa. 357; Coal Company v. Steel Company, 224 Pa. 217. Attachment proceedings do not continue after judgment against the garnishee. The judgment is a finality. The next step is execution, and the judgment in the form as indicated in Longwell v. Hartwell, supra, indicates precisely upon what that execution may be levied. The judgment cannot be used to substitute the plaintiff in an attachment for the defendant as a cestui que trust under a deed of trust or a will.

The situation presented by this case is wholly different from those cases in which an attachment is laid against the interest in a decedent’s estate, where the interest has' not been definitely determined. In such cases the courts have stayed execution against the garnishee until such time as the interest of the defendant has been ascertained by a settlement in the Orphans’ Court.

The rules as taken must be discharged. If rules are taken for judgment for the amounts in the hands of the garnishees we will make such rules absolute.


author: Mays, J.,

text:
    Timmey v. Bloom.

      Stevens & Lee, for plaintiff; Samuel E. Bertolet, for defendant.
    Dec. 16, 1929.
   Mays, J.,

This is an action in trespass by Gertrude Timmey against La Rue Deem Bloom for having willfully and maliciously, and without just or reasonable cause, instituted a proceeding in the Court of Common Pleas of Berks County, styled Commonwealth of Pennsylvania v. Gertrude Timmey, No. 31, September Term, 1929, for the purpose of an inquiry as to whether or not the defendant therein, plaintiff here, was mentally ill. The plaintiff alleges in the statement of claim that the defendant willfully and maliciously contriving and intending to injure and defame the plaintiff, and to hold her up to public contempt and ridicule, and to deprive her of her liberty, did -willfully and maliciously institute the proceeding above referred to, alleging therein (probably referring to the petition which was verified by La Rue Deem Bloom, the defendant here) that the plaintiff was mentally ill; that said allegation was made and said proceeding instituted without any just or reasonable cause, and with the knowledge that the plaintiff was not mentally ill; that said allegation was made and said proceeding instituted unjustly, unfairly, maliciously and intentionally for the purposes aforesaid; that by reason of defendant’s action, a commission was issued and plaintiff subjected to an examination by the commissioners appointed by the court, who reported that plaintiff was not mentally ill, and recommended that the defendant pay the costs, which report was filed and confirmed by the court; and that the plaintiff was required to employ counsel to defend herself and to procure witnesses, and was subjected to great humiliation and to the contempt and ridicule of the public, and was greatly hurt in mind and spirit.

The defendant has filed an affidavit of defense in lieu of demurrer, raising the question whether or not the statement is sufficient in law to sustain the suit. It is averred that it does not disclose any facts upon which, if true, judgment could be legally entered in favor of plaintiff, and, again, that it fails to allege that the plaintiff was arrested or her property seized. Although it must be conceded that the statement might have been somewhat more clear and precise, yet we feel and say that it contains the necessary elements of an action, provided the proceeding for the commitment of an alleged insane person under the mental health act may constitute the basis for such action.

The defendant has called to our attention as cases supporting her contention Eberly v. Rupp, 90 Pa. 259; Muldoon v. Rickey, 103 Pa. 110; Garland v. Wilson, 289 Pa. 272; White v. Rosenbaum Co., 73 Pa. Superior Ct. 99, and others. It is true that the principles there discussed lead to the conclusion, in effect, that an action of trespass for malicious use or abuse of legal process cannot be maintained in the absence of an unlawful interference with person or property. The actions, however, arose out of suits at law or in equity. In a lengthy and exhaustive opinion in the case of Cohens v. Virginia, 19 U. S. ((6 Wheat.) 264, 5 L. Ed. 257, Chief Justice Marshall says: “What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand or request. In law language, it is the prosecution of some demand in a court of justice. The remedy for every species of wrong is, says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived. The instruments whereby this remedy is obtained are a diversity of suits and actions, which are defined by the Mirror to be “the lawful demand of one’s right.” Or, as Bracton and Fleta express it, in the words of Justinian, “jus prosequendi in judioio quod alicuit debetur.” Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right.” In a lunacy proceeding, which is the basis of this suit, we have more than an action or process for the redress of an injury or the recovery of a right. This being so, the cases cited by the defendant are not applicable. The proceeding under the mental health act is in the name of the Commonwealth, and although the charge of being insane is not a criminal one, it is, nevertheless, like an accusation of crime, humiliating. A strong suspicion of insanity is liable to leave its impress not only upon a innocent victim, but upon posterity. It may affect the chances of entering into a marital relation, may interfere with the procuring of life insurance, and may have a tendency to exclude the accused from social intercourse. As has been said by some of the courts, it is “so serious in every aspect that words can barely adequately describe it.”

There seem to be no Pennsylvania cases squarely in point, but there are numerous decisions in other jurisdictions which are here applicable and which we believe support the conclusion that the statement does set up a good cause of action. In United States ex rel. Curtiss v. Haviland, 297 Fed. Repr. 431, it was held that an inquisition of lunacy under a state statute which, as therein provided, is conducted by a commission appointed on petition by a judge of the superior court, is not a “suit of a civil nature” pending in a state court which is removable under Judicial Code, § 28 (Comp. St., § 1010). In Lockenour v. Sides, 57 Ind. 360, 26 Am. Reps. 58, Justice Worden says: “The proceedings to procure the plaintiff to be found insane, and to place him under guardianship, are not entirely like a civil action, in which the plaintiff therein claims some right in his own behalf. If the proceedings were instituted and carried on by the defendants maliciously and without probable cause, as alleged, the defendants were officious intermeddlers, without any claim of right or interest in the matter; and they are, in our opinion, liable to the plaintiff for the damages, in excess of the taxable costs, sustained by him by means of the proceedings.” And in Barton v. Woodward, 182 Pac. Repr. 916, 5 A. L. R. 1090, it is said: “While there are authorities which go to the extent of so holding, the modern and better rule is to the effect that an action for malicious prosecution will lie against one who has maliciously and without probable cause instituted lunacy proceedings against another.”

What is said by Justice Cochrane in Reade v. Halpin, 184 N. Y. Supp. 438, more fully presents the reasoning that we would adopt for the conclusion arrived at: “In respect to its relation to an action for malicious prosecution, it much more closely in its characteristics resembles the characteristics of a criminal action. It is not instituted for the enforcement of an individual right or the redress of an individual wrong. The person who institutes it has nothing personally to gain or lose, and if, acting in good faith, his sole purpose is the protection of the alleged lunatic and the protection of society. In its consequences it may be more serious than a criminal prosecution. It seeks nothing less than the incarceration of the individual proceeded against. The reasons which have been deemed' controlling in those cases which hold that a civil action maliciously prosecuted does not give a cause of action to the person thus maliciously prosecuted do not exist in respect to a proceeding under the insanity law. ... In the absence of any authority holding that this action may not be maintained, we think it should be held that the principles applicable to a malicious criminal prosecution apply here, and that the complaint accordingly states a cause of action.”

Attention is also directed to the case of Hinchman v. Richie, Brightly’s Rep. 143, where it appears (pages 166-67) that the court, in affirming a point, concluded that the suing out of a commission of lunacy is not actionable unless it be done maliciously and without probable cause.

And now, to wit, Dec. 16, 1929, it is adjudged that, upon the questions of law raised by defendant’s affidavit of defense, defendant is not entitled to judgment; that her application, therefore, is refused, and that the defendant be at liberty to file a supplemental affidavit of defense to the averments of fact of the plaintiff’s statement within fifteen days from this date.

Prom Charles K. Derr, Reading’, Pa.


author: Landis, P. J.,

text:
    Rumsey Electric Co. v. Keystone Furniture Co., Inc.

      Geisenberger & Geisenberger, for motion.

      F. Lyman Windolph and Zimmerman, Myers & Kready, contra.
    April 19, 1930.
   Landis, P. J.,

On Oct. 31, 1929, the plaintiff brought suit against the defendant company to recover the amount due on a book account of $3547. It was asserted in the plaintiff’s statement that, from Aug. 12, 1929, to Oct. 1, 19291, the defendant purchased and the plaintiff delivered to it merchandise, consisting of radio sets, radio receivers, radio tubes and parts, to the amount of $4730.96, and that on this sum the defendant is entitled to a credit of $1183.96. Attached to the statement is an itemized account of said merchandise.

To this the defendant filed an affidavit of defense. It was therein admitted that it had purchased from the plaintiff the items mentioned in the exhibits at the prices fixed by the plaintiff, and the defendant then proceeded to set out the defense which it claimed to have to the plaintiff’s demand. But now paragraph 4 of this affidavit is expressly complained of, and it is asserted that it is not in compliance with the Practice Act of 1915. It may, perhaps, be true that the allegations are with more particularity than is necessary in an affidavit of defense; but we think it is sufficiently clear and precise and with no evasiveness. The plaintiff certainly can understand, from the facts contained in it, the defense which it will be expected to meet at the trial.

Objections of this character are of little help to a pleader. The material defects, if any, can be taken advantage of when the cause comes before the court for trial, and if it there appears that necessary facts are omitted, the defendant must then suffer for his dereliction. He can offer no more than he asserts. If, too, any part of his affidavit is vague and uncertain, and it is necessary for a proper understanding that it be more precise, that objection can, I take it, be ascertained when pointed out on a rule for a more specific statement of his defense in this regard. This will accomplish the same purposes as the filing of a new affidavit of defense and will avoid the delays which necessarily arise from following the latter practice.

It must be understood that this is not a rule for judgment for want of a sufficient affidavit of defense, but a motion to strike off the affidavit of defense. The plaintiff cannot suffer by reason of the prolixity of the affidavit. Nor is there any set-off contained in the affidavit of defense which must be met. It must be conceded that there is new matter, but the agreement attached to the affidavit of defense and the allegations of non-compliance with it sufficiently give notice to the plaintiff of the defense which will be offered. There will be no difficulty in its denying these assertions, if it can, in a reply, and the case will then be at issue.

I see no merit in the objections advanced, and am not inclined to aid in sustaining such as in my judgment can accomplish no real good. The motion in this case is, therefore, overruled. Motion overruled.

From George Ross Eshleman,Lancaster, Pa.


author: Fleming, P. J.,

text:
    Miller v. Brink.

      E. J. Thompson, for plaintiff.

      S. D. Gettig and John J. Bower, for defendant.
    April 17, 1930.
   Fleming, P. J.,

The defendant seeks a new trial and has assigned nine reasons in support thereof.

We feel that the fifth reason is a valid one and sufficient to merit the relief sought. We fell into grievous error in admitting the transcript of the justice of the peace, offered as plaintiff’s Exhibit No. 1, without previously requiring such to be proven by the oath of the justice himself, and especially so since the justice was in the court room at the time the offer was made and could readily have been called to the stand.

It has long since been held that docket entries of a justice of the peace are admissible (Dennison v. Otis, 2 Rawle, 9; Harris v. Christian, 10 Pa. 233, 234; Com. v. Brown, 193 Pa. 507, 511); but a transcript, although certified by him, is not admissible (Katterman v. Stitzer, 7 Watts, 189, 191; Wolverton v. Com., 7 S. & R. 273, 275; Magee v. Scott, 32 Pa. 539, 540), unless proven by the oath of the justice himself: Hibbs v. Blair, 14 Pa. 413; Com. v. Montgomery, 2 Pa. 461; Kenderdine v. Ivins, 1 Phila. 25.

The admission of this transcript goes forcefully to the vital points of this controversy and, under our charge, could lead to no other verdict than a verdict for the plaintiff. It discloses an execution issued by the justice on Dec. 12, 1928, and no further entries. Nothing whatever appears thereon which would justify the defendant as constable in selling plaintiff’s goods and chattels on Feb. 12, 1929; in fact, the transcript, per se, brands defendant as a trespasser clearly and conclusively. By no form of reasoning could it be said that the jury was not misled by its admission and the defendant prejudiced thereby. Its admission in evidence, without proof adduced by the oath of the justice issuing it, was clearly prejudicial error and we have no hesitancy in acknowledging such error and in taking prompt measures to correct it.

There appears to be no appreciable merit in the other reasons advanced, but in the light of what has already been said as to the fifth reason, further discussion is unnecessary.

And now, April 17, 1930, the motion of the defendant is allowed and a new trial is granted.


text:
    Pollow v. Henry L. Doherty & Co.

      H. Shapiro, for plaintiff; W. Logan MacCoy, for defendant.
    July 21, 1930.
   Alessandroni, J.,

The plaintiff originally filed a statement of claim in assumpsit, alleging that on Sept. 25, 1929, she entered into two written contracts for the purchase of 100 shares and 50 shares, respectively, of Cities Service stock from the defendant company at $59 per share, an initial payment being made on each contract and the balance in regular monthly instalments beginning Nov. 1, 1929.

Each contract contained the following provision: “This contract becomes automatically cancelled if the purchaser’s payments due on the first of each month are not made on or before the first of the following month; and, in such event, the company will refund the amount theretofore paid, less or plus, as the case may be, the difference between the contract price and the market bid price of the fifteenth of the month preceding; and less also an amount, as liquidated damages, equal to ten per cent, of such market bid price.”

The original statement of claim averred that the instalments due Nov. 1, 1929, were not paid and the contracts, therefore, were automatically canceled and the plaintiff became entitled to receive the amounts she had paid, together with the difference between the contract price per share and the market price per share prevailing on Oct. 15, 1929', which was $68,121, less 10 per cent, of the then market bid price, which is computed at a total indebtedness of $1346.88.

The defendant filed an affidavit of defense raising questions of law, averring that under the terms of the contract the plaintiff was not in default until Dee. 1, 1929, regarding the payments due on Nov. 1, 1929, and that the contracts being canceled on Dec. 1st, the settlement date should be Nov. 15, 1929.

This court, in an opinion by the President Judge dated April 3, 1930, and reported in 13 D. & C. 463, interpreted the contract as meaning that there is no default until the expiration of a month of arrears, and that “the 15th of the month preceding” means the 15th of the month preceding the cancellation date, or, in this case, Nov. 15, 1929. The court granted leave to the plaintiff to amend her statement of claim in accordance with the expressed terms of the contract as judicially construed. The plaintiff then filed an amended statement of claim, averring the same facts which were alleged in her original statement, but adding that she was represented by her husband in making these two contracts and that the defendant’s agent represented to her husband “that the term ‘the 15th of the month preceding’ as used in said written contract meant the 15th of the month preceding- the day when the payment first becomes due.” The plaintiff, therefore, calculates her damages in the same manner as originally expressed, but the basis of her suit now is the representation made by the defendant’s agent at the time the contracts were negotiated.

The defendant has again filed an affidavit of defense raising questions of law, raising the question as to whether the plaintiff can thus vary the terms of a written contract by parol evidence.

This contract was construed by our court as clearly meaning that the settlement basis should be the 15th of the month preceding the cancellation date, which, in this case, would be Nov. 15th. The plaintiff, in her amended statement of claim, has, rather than change her cause of action and computation in order to coincide with the meaning of the contract, sought to give the contract the meaning she originally contended by alleging an oral representation of the salesman for the defendant to the effect that the contract would be construed to mean Oct. 15, 1929, in this case.

The affidavit of defense raising questions of law is based upon firmly established legal principles in this state. A written contract cannot be varied by parol evidence in the absence of fraud, accident or mistake. The plaintiff has not alleged fraud here, and, therefore, no exception to the parol evidence rule can be made on this basis. The plaintiff, however, relies on the argument that she is not trying to vary the terms of a written agreement but is merely introducing parol evidence to explain the intention of the parties regarding an ambiguous contract. The flaw in this argument lies in the fact that the contract is not ambiguous. It was so held when formerly before this court. In addition, the opinion of the President Judge of this court in Pollow v. Doherty & Co., supra, recites an identical case raised in New York, i. e., Levy v. Doherty, reported in the Law Journal of Jan. 22, 1930, which reached the same conclusion as that previously reached by this court, and this decision was affirmed by the Appellate Term of the Supreme Court of New York State. This contract not being ambiguous, therefore, is self-supporting and cannot be given a contrary meaning by parol evidence. In Gilmore v. Gilmore, 276 Pa. 333, a somewhat similar question was raised and the court refused to admit the parol evidence. As is stated in Crelier v. Mackey, 243 Pa. 363, the court construed a similar situation and ruled as follows: “The disallowed offer, which is the subject of the first assignment of error, was to show that the agreement was not what it clearly purported to be, but that the appellant has executed it as the mere representative of the Thomas R. Mackey Baking Company, and that this fact was known to the appellee at the time it was executed. If the offer had been allowed, permission would have been given the defendant to vary and contract the terms of a plain contract and to substitute for it another upon which the appellee would have no cause of action against the appellant. With no averment in the affidavit of defense and with no offer on the trial to prove that there had been any fraud, accident or mistake in the execution of the agreement, its plain terms were not to be radically changed by parol: Hunter v. McHose, 100 Pa. 38; Wodock v. Robinson, 148 Pa. 503; Krueger v. Nicola, 205 Pa. 38; Lowry v. Roy, 238 Pa. 9. The meaning of the parties to the agreement is conclusively presumed to have been set forth in its written words, and, as they speak for themselves, their meaning was for the trial judge.”

The leading case on this subject, Gianni v. Russell & Co., Inc., 281 Pa. 320, states the rule as follows: “ ‘Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best but the only evidence of their agreement:’ Martin v. Berens, 67 Pa. 459, 463; Irvin v. Irvin, 142 Pa. 271, 287. ‘All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract . . . and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence:’ Union Storage Co. v. Speck, 194 Pa. 126, 133; Vito v. Birkel, 209 Pa. 206, 208. . . .

“There are, of course, certain exceptions to the parol evidence rule, but this case does not fall within any of them. Plaintiff expressly rejects any idea of fraud, accident or mistake and they are the foundation upon which any basis for admitting parol evidence to set up an entirely separate agreement within the scope of a written contract must be built. The evidence must be such as would cause a chancellor to reform the instrument, and that would be done only for these reasons (Pioso v. Bitzer, 209 Pa. 503), and this holds true where this essentially equitable relief is being given, in our Pennsylvania fashion, through common law forms.

“We have stated on several occasions recently that we propose to stand for the integrity of written contracts: Wolverine Glass Co. v. Miller, 279 Pa. 138, 146; Evans v. Edelstein, 276 Pa. 516; Neville v. Kretzschmar, 271 Pa. 222. We reiterate our position in this regard.”

The plaintiff has relied on two cases, neither of which are pertinent to the question raised or applicable to the facts of this case. In Simon v. Myers, 284 Pa. 3, 9, the question arose as to the meaning of the words “at settlement” and parol evidence was admitted to explain the meaning of this doubtful term. In the case at bar the meaning is clear. The parol evidence is, therefore, not admissible. The other ease relied upon by the plaintiff, Trexler v. Reynolds, 43 Pa. Superior Ct. 168, raises no question of parol evidence at all but merely one of the construction of a contract.

The evidence of any parol agreement is not admissible to modify the terms of a contract between parties unless the evidence of such an agreement is clear, precise and indubitable; that it carries a clear conviction of its truth, and that it is sufficient in weight to move the conscience of a chancellor to reform the instrument: Lowry v. Roy, 238 Pa. 9. We do not think that the allegations relied upon by the plaintiff meet these requirements. The parol agreement alleged is not plausible and the plaintiff apparently is merely seeking some basis to sustain her cause of action, possibly because of the fact that the use of the settlement date of Nov. 15, 1929, which was after the well known stock market crash, would give her no basis for suit.

In addition, it might be remarked that the contracts contain this further provision: “No provision of this contract may be waived by any agent or representative of Henry L. Doherty & Co.” This provision was intended to preclude any amendment to the express terms of the contract and appeared on the contract at the time it was signed. The plaintiff was, therefore, placed upon notice that the agent of the defendant had no authority to waive any of the conditions therein stipulated. The parol agreement which she has set up attempts to vary the express conditions of the agreement, and, of course, cannot be binding upon the defendant.

And now, to wit, July 21, 1930, the affidavit of defense raising questions of law is sustained, and it is hereby ordered that judgment be entered in favor of the defendant.


author: Finletter, P. J.,

text:
    In re Stiles.

      William Clarke Mason, for rule.
    Oct. 31, 1930.
   Finletter, P. J.,

A petition of the Committee of Censors of The Law Association was filed under Rule 215 of the rules of this court, which provides:

“Whenever the Committee of Censors of the Law Association of Philadelphia shall, after full hearing of a complaint against a member of the bar, deem the case one for consideration by the court, it may file a petition in the proper court presenting the facts and praying for a rule upon the respondent to show cause why he should not be disciplined. On the return day of this rule a hearing shall be had before the court, at which the respondent may be present with his witnesses to defend himself, and at which the committee shall also be represented. At such hearing the committee shall hand to the court a transcript of the testimony taken before the committee and the findings of fact or opinion of the committee in the premises. After full hearing in court, at which such evidence as either party may desire to present shall be heard, the court shall take such action as to disciplining the member of the bar so complained against or in dismissal of the complaint as shall be right and just in the premises. The court in its discretion may direct that its action be published at least once in the Legal Intelligencer.”

Upon this petition a rule was granted, on Oct. 17, 1929, upon the respondent to show cause why he should not be disciplined pursuant to the above rule. This was made returnable on Oct. 28, 1929.

It appears by affidavit filed that respondent was served with notice of the rule. No answer was made by the respondent to the allegations of the petition for it. The respondent did not appear at the argument upon the rule oh Oct. 28, 1929, nor at a later date fixed by the court for a hearing.

At the hearing on the return day of the rule the Committee of Censors, through its counsel, William Clarke Mason, Esq., handed to the court a transcript of the testimony taken before the committee and the findings of fact and opinion of the committee in the premises.

The petition makes four charges of unprofessional conduct and dishonesty against the respondent:

1. That he falsely represented himself as authorized by the Rev. John B. Panfil to collect the rent of a parcel of real estate, No.' 3226 North Dover Street, owned by Mr. Panfil, and did collect it, and converted it to his own use.

2. That he received $250 in addition for payment to Mr. Panfil, and has not accounted for it.

3. That he accepted in May, 1927, a fee of $200 in a divorce case and has rendered no services.

4. That he received $100 from a client in a divorce case to be deposited in court to meet the master’s fee and failed to make the deposit.

1. It appears from the testimony taken before the Committee of Censors that the circumstances in connection with the first charge are these: Under an arrangement between Mr. Panfil and the Rev. Elliott White, the latter held title to the real estate above mentioned as security for a debt owing by Mr. Panfil to Mr. White. It was agreed that the rent should be collected by Mr. White and the balance left after paying fixed charges and repairs should be paid to Mr. Panfil. The latter went to Asia as a missionary in 1925, remaining there until 1928. Meanwhile, in 1926, Mr. White died and by will bequeathed to Mr. Panfil the balance of the debt owing by the latter to him, and directed the reconveyance of the real estate to Mr. Panfil. The Pennsylvania Company was executor of the will and retained the respondent as its attorney. The collection of the rents was assumed by the respondent. He did, in fact, collect them to the amount of $600. This was more than sufficient to pay the fixed charges, mortgage interest, taxes, &c., on the real estate. The respondent, however, converted the money to his own use and did not pay the interest due upon the mortgages. As a result a mortgage was foreclosed and the interest of Panfil in the property wiped out. Respondent knew of the foreclosure proceedings. In a reply submitted by respondent to the Committee of Censors respondent claimed that the total amount of rent collected by him was $466, and averred that he had returned, on Aug. 30, 1928, $450 to Mr. Panfil. No explanation has been made by him of his failure to account earlier to Mr. Panfil or of his continued retention of the balance of $100, left after paying a repair bill of $50, or of his failure to pay the mortgage interest, with the disastrous result above spoken of to Mr. Panfil, i. e., the loss of the equity in the property valued at $3000.

2. With relation to the second charge, the facts are that on Sept. 24, 1928, the Rev. James F. Bullitt, Archdeacon, who was in charge of Mr. White’s affairs after the latter’s death, paid to the respondent, for Mr. Panfil, $200; and on Oct. 1, 1928, a further sum of $100. This has never been accounted for.

3. A client of the respondent, Mrs. Frances Skiva, paid the respondent in May, 1927, $200 on account of his professional services and the costs of a divorce case. At the time of the hearing of this charge by the Committee of the Board of Censors, on Feb. 24, 1929, the respondent had not commenced the proceedings. He promised the committee to deposit the master’s fee with the prothonotary on the following Monday and proceed with the case. At the time the within petition was filed, Oct. 30, 1929, he had done nothing.

4. There is no evidence upon the fourth charge, except the respondent’s failure to deny it as alleged in the petition.

It is obvious that a man who is guilty of such acts of dishonesty as those recited above is unfit to be entrusted with the duties and responsibilities of a member of the bar.

Extended comment upon his misdeeds is unnecessary. In the Panfil case he obtruded himself into the management of Mr. Panfil’s property without authority. He had not been retained, but he pretended to be authorized to represent him; and utilized the foothold this gave him upon the property to collect and embezzle his client’s rents. It was a cruel thing to do, for the result was that the latter’s property was swept away by the sheriff.

The treatment of the money paid by Mr. Bullitt and the pocketing of Mrs. Skiva’s money given to him in part to deposit with the prothonotary were simple cases of petty thieving.

There is only one discipline for such a man, if merely for the protection of other possible clients, and that is to put it out of his power to use his position as a member of the bar by disbarring him from further practice, and this we order.

Order.

And now, Oct. 81, 1930, it is ordered and decreed that Louis M. Stiles, a member of the bar of this court, be and he is hereby disbarred from further practicing as an attorney therein. Let notice of this order be given by the prothonotary to the several Courts of Common Pleas and the Orphans’ Court of this county.


author: Lamoret.le, P. J.,

text:
    Byer’s Estate.

      Speiser & Speiser and Jacob Weinstein, for exceptions.

      A. L. Shapiro and Samuel J. Gottesfeld, contra.
    Oct. 30, 1930.
   Lamoret.le, P. J.,

At the audit of the account Samuel Arehess claimed the entire balance for distribution by reason of an alleged donatio causa mortis of all the securities included in the inventory and appraisement and in the account.

The testimony produced by the claimant shows that the decedent, two days prior to her death, had a heart attack while on the street; that immediately thereafter she was taken to the home of the claimant and later was removed to a hospital; that while she was in the home of the claimant she took out of her trunk an envelope and handed it to the claimant, saying, “If I don’t come back this will be yours,” and “Mr. Arehess, you will take care of that, and in case I die it will be for you;” and that the envelope contained papers. There was no testimony to show what the papers were.

After these facts were shown there was an offer to put the claimant on the stand, provided his competency was waived. Counsel for those opposed to the claim objected; the objection was sustained and an exception granted. After the witnesses contra were heard, there was no offer to contradict by the claimant any statement made by said witnesses as to what occurred when both they and the claimant were present.

The Auditing Judge found as a fact that there was no proof that the. securities included in the inventory and appraisement and in the account were in the envelope handed to the claimant, and we think his finding is correct.

The Auditing Judge also found as a fact that said securities constituted the entire personal estate of the decedent. It is contended by the claimant that the decedent, in addition to these securities, was the owner of a trunk and- a bath robe. These two articles were not brought into the inventory and appraisement nor into the account. The evidence to prove ownership is the testimony of one of the witnesses that the decedent, after she came out of the bathroom, put on a bath robe and went to the trunk. A finding of fact by the Auditing Judge will not be set aside except upon proof of manifest error, and we are of opinion that no such error has been shown.

The Auditing Judge also found as a matter of law that there cannot be a gift mortis causa of all the personal property of the donor. Headley v. Kirby, 18 Pa. 326, so holds, and the principle of stare decisis is applicable. See, also, Albright v. Lenhart, 2 D. & C. 21.

With respect to the competency of the witness, counsel for the claimant relies upon clause (e) of section 5 of the Act of May 23, 1887, P. L. 158. It provides that all persons shall be competent witnesses where there is a controversy as to the devolution of property on the death of the owner. The devolution provided for, however, is one that takes place at the death of the decedent. We are of opinion that the Auditing Judge rightly held that the claimant was not a competent witness to prove his claim: Wright v. Hanna, 210 Pa. 349; especially in view of the fact that he was offered as a witness prior to the production of any testimony by the next of kin: Greensburg Building and Loan Ass’n v. Bates, 19 Dist. R. 224; Krumrine v. Grenoble, 165 Pa. 98.

Counsel for the claimant has also filed an exception to the allowance of counsel fee of $1667.79. As the claimant failed to show a gift of any portion of the estate, or that he is entitled under the intestate law, he is without standing to object.

Accordingly, all exceptions áre dismissed and the adjudication is confirmed absolutely.


text:
    Pantoja’s Naturalization.

      Adrian Bonnelly, for petitioner.

      T. F. B. Bead, for United States Bureau of Naturalization.
    Oct. 29, 1930.
   Kun, J.,

The above application for naturalization came before the court for final hearing on June 29, 1928. Counsel for the United States Government objected to the admission of the petitioner on two grounds:

1. That the petitioner had been adjudged unlawfully in the United States by the Secretary of Labor, and a warrant for his deportation was then in the hands of the Commissioner of Immigration for the Philadelphia district.

2. That the petitioner first arrived in the United States without inspection by the immigration authorities for permanent residence and payment of head tax, on which account it was contended the petitioner had gained no permanent residence in the. United States for naturalization purposes.

On account of these objections action on the application was deferred. The court was subsequently advised by counsel for the petitioner that Judge Dickinson, of the United States District Court at Philadelphia, had granted a writ of habeas corpus releasing the petitioner from deportation by the immigration authorities, which fact counsel urged as a reason for granting the petitioner’s application for naturalization. Because, however, the court was advised that the Government would appeal from Judge Dickinson’s ruling, action on the petitioner’s application for naturalization was again deferred. The court has now been advised that the United States Court of Appeals for this district has reversed the action of Judge Dickinson, in an opinion filed Oct. 24, 1930, United States v. Avelino Pantoja and Frances Pantoja, No. 4134, October Term, 1929, U. S. C. C. A., 3rd Circuit.

It appears that the petitioner arrived at New York on Dec. 7, 1925, as a member of the crew of the SS. American Legion and was permitted to land in pursuit of his calling without inspection for permanent residence or payment of head tax. Under the Immigration Rules of July 1, 1925 (subdivision I, paragraph 2), petitioner should have departed from the United States within sixty days of his arrival. The Commissioner of Immigration, it appears, learned two years later that the petitioner had not departed, but was employed in Philadelphia as a waiter at the Penn Athletic Club. He was arrested by an immigration inspector on Feb. 14, 1928, and given a hearing, following which a warrant for his deportation was issued by the Secretary of Labor on April 25, 1928, based upon section 14 of the Immigration Act of 1924. It was on Feb. 17, 1928, three days after the petitioner’s arrest by the immigration authorities, that he filed his petition for naturalization in this court. It would have been highly improper for the court to have granted the petitioner’s application for naturalization during the pendency of the question of his status in this country which was being litigated in the Federal courts. Comity between the state and Federal courts requires on the part of each the utmost respect for the action by the other in matters coming within their respective spheres of jurisdiction and authority, and no action should be taken by either which would nullify the proper and legal acts of the other. The naturalization of the petitioner by this court when the application came before it for consideration would have resulted in dismissing the warrant of deportation issued against him by the immigration authorities, as they have no power to deport a citizen of the United States. The court could not lend itself to such a means for defeating the purpose of Congress as expressed in section 14 of the Immigration Act of 1924. While, as stated, Judge Dickinson in the first instance allowed the petitioner a writ of habeas corpus and directed his release from deportation by the immigration authorities, that action has been reversed by the Circuit Court of Appeals, which leaves the petitioner subject to deportation, since it has now been adjudicated that he is illegally in this country.

The court is well satisfied with the soundness of the view expressed by the Circuit Court of Appeals as being sustained by ample authority, of which the following may be noted: In re Connal, 8 Fed. Repr. (2nd) 374; In re Jensen (U. S. D. C., La.), 11 Fed. Repr. (2nd) 414; In re Demanis (U. S. D. C., Mich.), 21 Fed. Repr. (2nd) 876; Petition of Reader (U. S. D. C., Mich.), 21 Fed. Repr. (2nd) 877; In re Olsen (U. S. D. C., Calif.), 18 Fed. Repr. (2nd) 425; United States v. Ness, 245 U. S. 319, 322.

For the reasons given, the petition for naturalization of Avelino Pantoja is refused, without prejudice to the right of the petitioner to apply for the reinstatement of his petition should the action of the United States Circuit Court of Appeals be reversed on appeal, if any is taken.


text:
    Mann v. Mann.

      Stevens & Lee, for libellant.
    Jan. 10, 1930.
   Mays, J.,

Libellant seeks a divorce under the Act of March 13, 1815, § 1, P. L. 150, as amended by the Act of June 28, 1923, P. L. 886, averring that respondent willfully, maliciously and without reasonable cause deserted the libellant and absented herself from his home and habitation for and during the term and space of two years and upwards. The master, after hearing the testimony on the part of the libellant, found that the charge of desertion was sustained and recommended that a divorce a vinculo rnatrimonii be granted. The respondent entered no appearance and filed no exceptions to the recommendations of the master.

A careful reading of the report discloses that the master caused to be mailed to the respondent a notice of the hearing; that said notice was received by one William Conn, a brother of the respondent; that a letter was by said William Conn addressed to the master, which sets forth, amongst other things, that shortly after marriage the respondent’s mind “became unhinged through some cause or another and had to be treated in a Cleveland, O., institution, all of which he [referring to the libellant] knew;” that in September, 1927, the respondent was taken to the Ayr Mental Hospital, where she remained for some time, and was later removed to the Stirling District Mental Hospital at Larbert, Scotland; that it is impossible for the respondent “to attend your office 21 Nov. 1929;” and that the writer would be obliged to hear as to what the decision of the court in this matter will be. Enclosed with this letter was one from R. B. Campbell, Medical Superintendent of the Stirling District Mental Hospital, saying, in effect, that there has been little change in the respondent’s mental condition, she being dull, moody and depressed.

There is a burden upon the libellant to establish clearly by the testimony that sufficient grounds exist for the granting of this divorce. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert, willfully and maliciously persisted in without cause for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other: Ingersoll v. Ingersoll, 49 Pa. 249. If it should be made to appear that this respondent was mentally ill from a date prior to Aug. 20, 1928, it could not be held that she persisted in a willful and malicious desertion. The libel and testimony disclose that the separation' took place at Newton, North Carolina, about Aug. 20, 1928, and that the libellant subsequent to that date resided for some time in Cleveland, Ohio. As we have pointed out, the letter states that the respondent became mentally ill and was treated in an institution in Cleveland, Ohio. The letter itself, of course, would not be legal evidence to justify the court in saying that the respondent was mentally ill at the time she was in the Cleveland institution. However, it brings home to us notice that in all probability the respondent may have a proper defense, which she may or may not be desirous of setting up. In order that the rights of this respondent may be safeguarded, we believe it would be within our sound discretion to allow an answer to be filed nunc pro tune if she should so request: Daugherty v. Daugherty, 28 Pa. Superior Ct. 327. If this respondent were a resident of this Commonwealth we would be inclined, in furtherance of justice, to cause to be appointed a guardian or committee, as the case may be: see Act of May 4,1921, P. L. 348. It would have been well for the libellant, if he knew of his wife’s condition, to act with the same candor as was done in Little v. Little, 56 Pa. Superior Ct. 419, by calling to the attention of the court, by petition, the fact of respondent’s incapacity so that a committee ad litem might be named to make a proper defense if any existed. In this last cited case, even though the proceeding was pending in the courts of Philadelphia and the respondent was confined to an institution in New York, this was the procedure that was followed.

The brother of the respondent has in his letter expressed a desire to be informed as to what the court’s decision in this matter will be. Accordingly, we are of the opinion that, since he is a blood relative, he should be given an opportunity to present his petition to intervene as a party in interest if he so desires: see section 2, Act of May 4,1921, supra.

And now, to wit, Jan. 10, 1930, leave is given the respondent, within two months from this date, to file an answer to the libel in this case nunc pro tune as of the return day of the writ, and if this is done and the answer thus filed raises an issue requiring a hearing, the case will then be referred back to the master for further proceedings, but.if no such answer is filed within the time designated, the case will be disposed of on the evidence as it now stands; and it is ordered that a copy of this opinion be mailed to the respondent, Isabel Reid Mann, at the Stirling District Mental Hospital, Larbert, Scotland, and to William Conn, Wellington Villa, Dairy, Ayrshire, Scotland.

Supplemental order.

In an opinion filed Jan. 10, 1930, leave was given to the respondent, within two months from said date, to file an answer to the libel in this case nunc pro tune, and it was stated that if an answer thus filed raises an issue requiring a hearing, the case will then be referred back to the master for further proceedings, but if no such answer is filed within the time designated, the case will be disposed of on the evidence as it now stands. It was ordered that a copy of the opinion be mailed to the respondent, Isabel Reid Mann, at the Stirling District Mental Hospital, Larbert, Scotland, and to William Conn, Wellington Villa, Dairy, Ayrshire, Scotland.

Proof of mailing to respondent and to William Conn has been filed. It fails to disclose by affidavit or otherwise what it was that was mailed to the respondent and to William Conn. All that appears is that letters or parcels were deposited in the Reading Post Office on March 4, 1930, and received by Isabella Reid Mann on March 14, 1930, and by A. Conn on March 15, 1930.

It appearing that the notices were received subsequent to the expiration of the two months’ period, thereby making it impossible for the respondent to file an answer, if she so desired, within the limit of time fixed by the court, we now amend the said order to read as follows::

And now, to wit, June 9, 1930, leave is given the respondent, on or before Sept. 1, 1930, to file an answer to the libel in this case nunc pro tunc as of the return-day of the writ and if this is done and the answer thus filed raises an issue requiring a hearing, the case will then be referred back to the master for further proceedings, but if no such answer is filed within the time designated, the case will be disposed of on the evidence as it now stands; and it is ordered that a copy of this order be mailed forthwith by the Prothonotary of Berks County to the respondent, Isabel Reid Mann, at the Stirling District Mental Hospital, Larbert, Scotland, and to William Conn, Wellington Villa, Dairy, Ayrshire, Scotland. From Charles K. Derr, Reading, Pa.


author: Groff, J.,

text:
    Bender v. Akron Borough.

      Harris C. Arnold and John A. Coyle, for plaintiff.

      George T. Hambright and John E. Malone, for defendant.
    Jan. 18, 1930.
   Groff, J.,

The pleadings in this case consist of a bill of complaint, entered and filed in the Court of Common Pleas of this county on March 28, 1929; an answer raising a question of law, filed June 3, 1929; an answer to the facts alleged in the bill, containing new matter, filed Sept. 16, 1929; and a reply to the new material contained in defendant’s answer, filed Sept. 27, 1929.

The question raised by these pleadings is: Does the existence of a street laid out by the Borough of Akron, extending south from Main Street, in said borough, over plaintiff’s land, as shown on the borough plan adopted by the borough in 1895, and never opened, nor damages paid therefor, constitute a cloud upon plaintiff’s title to the land over which this street extends?

Finding of facts.

1. The plaintiff is a resident of the Borough of Akron, Lancaster County, Pennsylvania.

2. The defendant is the Borough of Akron, a municipal corporation of the Commonwealth of Pennsylvania, and located in Lancaster County.

3. The plaintiff has been the owner in fee simple since 1918, and has been in possession of a certain tract of land which fronts on the south side of Main Street, an existing street in said Borough of Akron.

4. The said tract extends in depth southward from said Main Street 300 feet, more or less.

5. The eastern boundary of plaintiff’s said tract intersects said Main Street at a point about 268 feet west of the intersection of Main Street and Ninth Street in said borough, the latter being the state highway leading from Lancaster to Ephrata.

6. Said tract, for a distance of about forty-five feet westward from the said eastern boundary, contains no building.

7. About the year 1895 the defendant borough duly adopted a general borough plan, showing existing and proposed streets.

8. One of the proposed streets on said plan was designated as Eighth Street, and said street still remains on said plan.

9. The said proposed street, as designated on said plan, would have a cart-way thirty-three feet wide and a sidewalk eight feet wide on each side of it.

10. The cartway and the western sidewalk of the said proposed street is shown as extending southward from Main Street over and upon the said land of the plaintiff to the southern boundary of plaintiff’s land.

11. The said street is laid out only on said plan of 1895, and no proceedings have ever been taken by said borough to open the said street or to assess the damages to the owners of the land over which said street is laid out.

12. No highway, roadway or other passageway along the course of said proposed street now exists or is used by the public.

13. The said land over which the said proposed street is laid out is of the value of about $2000, provided said street is vacated.

14. The plaintiff desires to, and has planned to, erect a dwelling on her said land facing on said Main Street.

15. The plaintiff has been notified and warned by the defendant that she may not build any building on said land except at her own risk, and the defendant has threatened to open the said street without paying any damages to the plaintiff for destruction of any building she may erect on the line of said street.

16. The street in question is known as Eighth Street. It is plotted and shown on the draft of the borough as unopened.

17. No proceedings were ever had by the borough council to open said Eighth Street.

18. On Jan. 28, 1929, the Borough of Akron, through its solicitor, notified the plaintiff’s son, who was staking off the ground in question, located on the said Eighth Street, for the purpose of erecting a house, that he desired to call the attention of plaintiff’s son to the fact that Eighth Street is a street plotted on the borough plan, and that if he built upon the said street, when the street is opened, he will be entitled to no damages for any property or building that he may put upon it, and that, in addition, he will be required to remove the same at his own expense.

Discussion.

In this case plaintiff files a bill in equity, alleging that she is the owner of a certain tract of land located in the Borough of Akron, Lancaster County, Pennsylvania; that the eastern boundary of said tract intersects Main Street in said borough at a point about 268 feet west of the intersection of Main Street and Ninth Street in said borough; that said tract, for a distance of 45 feet westward from its said eastern boundary, contains no buildings; that in the year 1895 the defendant borough duly adopted a general borough plan showing as existing a proposed street; that the proposed street was designated as Eighth Street on said plan; that said street remains on said plan; that said proposed Eighth Street, as designated on said plan, would have a cartway of 33 feet in width and a sidewalk 8 feet wide on each side of it; that the said proposed cartway and the western sidewalk extends southward from Main Street over and upon the land of plaintiff about 300 feet; that said street is laid out only on said borough plan of 1895, and that no proceedings have been taken by the borough to open said street or assess damages to the owners of the land over which said street is laid out; that the plaintiff desires to, and has planned to, erect a dwelling on her said lot where the street is laid out; that the plaintiff has been notified and warned by the defendant that she may not build on said land except at her own risk; and that the defendant is threatening to open said street without paying any damages for any building the defendant may erect thereon, and then prays the court to order and decree as follows:

“(a) That the existence of Eighth Street on the plan of the Borough of Akron is void and of no effect.

“(b) That the said Eighth Street be stricken from the said plan of said borough as a cloud on plaintiff’s title.

“(c) That an injunction issue forbidding the Borough of Akron to take any proceedings founded on the said plan of 1895 for the opening of a street over or across the said land of the plaintiff.

“(d) That the plaintiff, or her successors in title, may erect a building or buildings on the said premises free and relieved of any and all effect of the laying out and existence of the said Eighth Street over the said premises on the said plan of 1895, with the same effect as though the said street had never been placed on the said plan.

“(e) For such other relief as equity and justice may demand and the court may deem fit.”

The defendant, in its answer, admits the allegations in the first twelve paragraphs of the plaintiff's bill, and then admits the allegations in the fourteenth and sixteenth paragraphs of the plaintiff’s bill. Defendant denies the allegations in the thirteenth paragraph of plaintiff’s bill, namely, that the land over which the said proposed street is laid out is valuable for building purposes, and allages that since the adoption of the borough plan of Akron in 1895 the land has had no value for building purposes. In answer to paragraph fifteen of plaintiff’s bill, defendant denies that it has notified the plaintiff that it intends to and will proceed to open said Eighth Street in accordance with said plan. In answer to paragraph seventeen, defendant denies that it has failed to open the said proposed street or to assess the damages therefor within the time allowed by law, and denies that the laying out of said street upon said plan is null and void and of no effect to deprive the plaintiff of damages for the destruction of any building she may erect thereon by the opening of any street thereon, and denies that the delay in opening said street has deprived the defendant borough of all right to open a street over the plaintiff’s said land on the basis of said plan, and avers, on the contrary, that it has the right at any time to open a street over the plaintiff's said land on the basis of said plan, which right has not been limited in any way by law. In answer to paragraph eighteen, defendant denies that the existence of said proposed street on said plan constitutes a cloud on the plaintiff’s title and deprives her of the full use and benefit of her said land to which she is entitled, and further alleges that the plaintiff took title’ in 1918, after the adoption of the borough plan, the title thereto being taken subject to the right of the defendant to open the said street. In answer to the nineteenth paragraph of the plaintiff’s bill, defendant denies that the opening of any street over the plaintiff’s land on the basis of the said plan of 1895 would be illegal and void and would work irreparable injury to the plaintiff. In answer to paragraph twenty, defendant denies that plaintiff will suffer great and irreparable injury in being deprived of the use of her said property for building purposes or in the destruction of any building erected thereon. In answer to paragraph twenty-one, defendant denies that the plaintiff will be unable to sell the said land for its real value by reason of the existence of the said proposed street on said plan unless she is given equitable relief. Then, as new matter, the defendant borough sets up as paragraph twenty-two in its answer:

“22. The defendant avers that the plaintiff is estopped from maintaining the present bill of complaint by the provisions of section 1010 of the Borough Code of 1927, wherein it is provided as follows: ‘Complaint may be made to the court of quarter sessions, upon entering into recognizance with sufficient security to prosecute the same with effect, and for the payment of costs, by any person aggrieved, within thirty days after any ordinance or resolution takes effect, and the determination and order of the court thereon shall be conclusive.’ ”

And under new matter, in paragraph twenty-three, alleges:

“23. The defendant is informed and advised by counsel, and therefore believes and avers, that by reason of said act of assembly the plaintiff’s exclusive remedy, if any, is in the court of quarter sessions and that this present bill of complaint cannot be maintained.”

Plaintiff admits if defendant’s contention be correct, as made in the new matter introduced into the answer, “that the plaintiff is estopped from maintaining the present bill of complaint by the provisions of section 1010 of the Borough Code of 1927,” and by reason of the said Borough Code has an exclusive remedy, if any, in the court of quarter sessions, then that is the end of this proceeding.

From the evidence it seems that the plaintiff has been in continuous possession of her land since 1898, and that the borough has notified her son, who intended to build upon the land occupied by said proposed street, that he would do so at his own risk and receive no compensation if the land was subsequently used for street purposes. For thirty-five years, then, the borough has made no effort to compensate the plaintiff, or her predecessors in title, for this land. She is unable to sell her land for ordinary uses because of the street having been laid out over it and placed upon the borough plan and because the borough has notified her not to build upon it. Of course we realize that under the Borough Code, if the borough would pass an ordinance to open this street, plaintiff would be compensated for the land taken, but what is she to do if the borough for the next thirty-five years, as it has done in the past thirty-five years, refuses to open the street?

“To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy at law to induce equity to decline the exercise of its jurisdiction in favor of a suitor must be an adequate and complete one. And when from the nature and complications of a given case its justice can best be reached by means of the flexible machinery of a court of equity, in short, where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice:” Penna. R. R. Co. v. Bogert, 209 Pa. 589.

The defendant is not here asking in its answer that the case shall be certified to the law side of the court under the Act of June 7, 1907, P. L. 440, but takes the position that the court of equity has no jurisdiction.

The plaintiff contends that this street being upon the borough plan and the Council of Akron Borough threatening to take it through their notice that whoever builds thereon does so at his own risk, constitutes a cloud upon plaintiff’s title. We find in Real Estate and Conveyancing in Pennsylvania, by Robey, at page 16, “a contingent interest which might prevent a desired sale is called ‘a cloud upon title.’ ” The plaintiff claims that her title, as it now stands, is unmarketable, and the Supreme Court of Pennsylvania, in Reighard's Estate, 192 Pa. 108, defines an unmarketable title to be one which exposes a party holding it to the hazard of litigation. If the defendant in this bill insists upon its right to use the land marked upon its plan as a street, it certainly exposes the owner thereof to the hazard of litigation.

Nicholson, in his work on Real Estate in Pennsylvania, says: “There are many kinds of clouds upon a title such as render it unmarketable,” and then says:

“3. The so-called defect in title may not be a matter of title at all, but may be merely a possible lien, easement, building restriction, . . . .”

The defendant denies, as we understand the plaintiff’s bill, that the Act of June 1, 1911, P. L. 541, which is as follows: “That if any borough within this commonwealth has heretofore surveyed, laid out, enacted or ordained, or shall hereafter survey, lay out, enact or ordain any road, street, lane, alley, court or common sewer over or under private property located in whole or in part within the limits of said borough and proceedings to open the same and to assess damages arising therefrom, shall not be proceeded with, within two years from the enactment of said ordinance, it shall be null and void,” relieved her land of the burden of this street, for the reason, as it says, that that act of assembly was repealed by the General Borough Act of May 14, 1915, P. L. 312, which in turn was repealed by the General Borough Act of May 4, 1927, P. L. 519. Both these acts of assembly, while each repeals the prior act, substantially reenact the provisions of the Act of 1911.

It will be noted that the Act of 1911 was in effect over four years, and the question arises whether or not a repeal of that act repealed the rights accruing to the plaintiff under it and while it was in force, but that question we will not discuss here.

We think, as said in Haspel v. O’Brien, 218 Pa. 146, 149, that “when an act expressly repeals a former one and at the same time reenacts its exact provisions, the intent is manifest that there shall be no change in the law.” Therefore, the provisions of the Act of 1911 would apparently be in force at the present time.

It was decided in the United Brethren Congregation v. Emaus Borough, 56 Pa. Superior Ct. 136, 143, that the street must be opened within two years after the passage of the ordinance locating the street and not thereafter, and indicated that the Act of 1911 operated prospectively, and that the two-year limitation for opening the same and assessing damages therefor began at the date of approval of the act.

It would, therefore, seem to us that the facts proved on the hearing are sufficient to show a probable cloud upon the plaintiff’s title, which, if existing, may be removed by a court in equity: Onorato v. Carlini, 272 Pa. 489, 492.

We feel that, in addition to showing a probable cloud upon the plaintiff’s title, the notice sent by the solicitor of the borough on Jan. 28, 1929, constitutes a threatened trespass, and, adopting the language used in Bussier v. Weekey et al., 4 Pa. Superior Ct. 69, 72:

“As to the land not taken possession of by the defendants, the bill presents a case where, to repeat the language of Mr. Justice Sharswood, ‘the threatened trespass contemplates a permanent occupation and use of the plaintiff’s property.’ This averment is sufficient to give the court jurisdiction.”

We feel that plaintiff is entitled to equitable relief and find the law to be as follows:

Findings of law.

1. That the existence of Eighth Street on the borough plan of Akron since 1895, without being opened at the time of the filing of this bill, constitutes a cloud upon the plaintiff’s title.

2. That the said Eighth Street, so far as it relates to the land of plaintiff, should be stricken from the borough plan of 1895 as a cloud on plaintiff’s title.

3. That the Borough of Akron cannot take any proceedings founded on the said plan of 1895 for the opening of said street over and across the land of the plaintiff.

4. That the plaintiff, Laura Bender, has a right to hold, use and enjoy the premises described in the bill free and clear of any effect of the presence of Eighth Street on said plan, and as fully and completely as though said street had never been placed thereon.

Decree.

And now, Jan. 18, 1930, upon consideration of the foregoing case, it is ordered, adjudged and decreed that the following decree nisi be entered:

1. There shall be, and hereby is, stricken from the plan of the Borough of Akron so much of the street thereon laid out and designated as Eighth Street on the borough plan adopted in 1895 as extends southwardly from Main Street in said borough to the southern boundary of premises owned by Laura Bender, the plaintiff, being a distance of three hundred (300) feet, more or less.

2. The defendant borough shall not enter upon, appropriate or otherwise interfere with the plaintiff’s said premises by virtue of the previous ordaining of said Eighth Street, or its existence on the borough plan at any time prior to the date of this decree.

3. That the plaintiff, Laura Bender, and her successors in title, shall hold, use and enjoy the said premises of the plaintiff free and clear of any effect of the presence of said Eighth Street on said plan, and as fully and completely as though said street had never been placed thereon.

4. That the costs of this proceeding be paid by the defendant.

From George Ross Eshleman, Lancaster, Pa.