author: LEONARD,

text:
    In re Kovler

      Disciplinary Board Docket no. 172 D.B. 2002.
    May 15, 2009
   LEONARD,

Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

By order dated December 20,2002, the Supreme Court of Pennsylvania disbarred Mark Allan Kovler reciprocally to the discipline imposed by the Supreme Court of the State of New York Appellate Division: Second Department on July 8,2002. Mr. Kovler filed a petition for reinstatement to the bar in Pennsylvania on July 28,2008. Following investigation of the petition, Office of Disciplinary Counsel filed a response to petition for reinstatement on September 26,2008 and did not list any objections.

A reinstatement hearing was held on November 3, 2008, before a District III Hearing Committee comprised of Chair Larry B. Selkowitz, Esquire, and Members Michael T. Hudock, Esquire and Shaun O’Toole, Esquire. Respondent was represented by Richard H. Lindner, Esquire. Petitioner testified on his own behalf and presented the testimony of three witnesses. Petitioner submitted nine exhibits, which were admitted into evidence.

Petitioner filed a brief with the Hearing Committee on December 22,2008. Office of Disciplinary Counsel did not file a brief.

The Hearing Committee filed a report on March 2, 2009 and recommended that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting on March 31, 2009.

II. FINDINGS OF FACT

The board malees the following findings of fact:

(1) Petitioner is Mark Allan Kovler. He was bom in 1958 and was admitted to practice law in the Commonwealth in 1991. He was admitted to the practice of law in the State of New York in 1984. His current address is 2 Ryder Road, Briarcliff Manor, NY 10510.

(2) Petitioner was disbarred on consent by order of the Supreme Court of New York, Appellate Division: Second Department, entered on July 8, 2002.

(3) By order of the Supreme Court of Pennsylvania dated December 20, 2002, petitioner was reciprocally disbarred pursuant to Rule 216, Pa.R.D.E.

(4) The circumstances leading to petitioner’s disbarment in New York concerned a fraudulent conveyance claim against petitioner and his wife that had been initiated by a creditor as an amendment to her legal malpractice action against petitioner in the United States District Court for the Southern District of New York.

(5) The legal malpractice action was dismissed by the court but the fraudulent conveyance claim proceeded to trial before the Bankruptcy Court.

(6) The relevant findings in the opinion of the bankruptcy judge were that in 1994 petitioner had fraudulently conveyed his interest in his jointly-held marital residence to his wife, with the intent to hinder, delay, or defraud creditors; that he was involved in the creation of false evidence regarding the deed prepared in connection with that conveyance and a marital separation agreement that he and his wife had purportedly entered into in 1994 and that petitioner later gave false testimony concerning these matters in depositions in the Federal District Court action and during depositions and at the trial before the Bankruptcy judge in November 1999.

(7) In his resignation from the New York Bar, as well as in the instant reinstatement proceedings, petitioner acknowledged his misconduct.

(8) At the reinstatement hearing in Pennsylvania, petitioner presented evidence as to circumstances that were relevant to his misconduct. These circumstances include the following:

(a) Serious health problems suffered by his son from the time of birth in 1987 and throughout the period of the misconduct, due to the son’s affliction with “failure to thrive” syndrome.

(b) His daughter’s serious health problems, including kidney surgery in 1992, severe asthma starting in 1993; severe clinical depression, starting in 1995; and a brain tumor diagnosed in 1998.

(c) The death of his grandmother in May 1994, which was distressing to petitioner as he had been partially reared by her.

(d) A stroke suffered by his father-in-law in 1994, which took an emotional toll on petitioner and his wife, and also professionally for petitioner, as the father-in-law was co-counsel in a complicated litigation matter.

(e) Petitioner’s recurring bouts with depression, first diagnosed in 1994.

(f) Financial difficulties brought on by the health problems of the children, petitioner’s health problems, and legal fees and expenses attributable to the defense of the Federal District Court actions.

(g) The protracted illness and death of petitioner’s brother-in-law from AIDS in 1995.

(h) Petitioner’s diagnosis with a possible heart attack in 1995 and ongoing cardiac problems in 1996.

(9) Petitioner has never been the subject of any criminal charges relating to the matters referenced in the opinion of the Bankruptcy judge.

(10) Petitioner promptly and fully satisfied the judgment as to damages entered against him and his wife by the Bankruptcy Court on October 13,2000 in the amount of $ 162,631.57, the bulk of which consisted of an award on the plaintiff-creditor’s claims for attorney’s fees.

(11) Petitioner has no record of discipline in New York or Pennsylvania prior to the charges that led to his disbarment in both jurisdictions.

(12) In early 2000, petitioner began to wind up his practice and ceased taking on new clients.

(13) Petitioner’s work history since January 2000 has included the following:

(a) Continuous employment as a bar mitzvah and bat mitzvah instructor at his synagogue and at two other Jewish community centers.

(b) Self-employment preparing tax returns.

(c) Employment with MetLife relating to the sale of securities and insurance products from 2002 through 2005, as well as self-employment in those areas thereafter.

(14) In regard to his MetLife employment, petitioner was cited by NASD for “replacing MetLife business outside of the MetLife enterprise” and he entered into a consent agreement for sanctions involving a 10-business day suspension from association with any NASD member in any capacity, as well as a fine of $5,000.

(15) The NASD (nowFINRA) is a private organization and the sanctions had no adverse impact on petitioner’s securities and insurance licenses.

(16) Petitioner has not held himself out as a lawyer during his disbarment.

(17) Petitioner has engaged in civic activities during his disbarment by volunteering with the Boy Scouts, Girl Scouts, crew chief for a local ambulance corps, and as a CPR instructor.

(18) Petitioner has been under the care and treatment of a psychiatrist, Richard LuriaM.D., since April 5,2007, and his depression has been controlled with medication and psychotherapy.

(19) Petitioner expressed recognition of his wrongdoing and sincere remorse.

(20) Petitioner feels he is in more control of his life and better able to manage adversity.

(21) Petitioner fulfilled the necessary requirements for continuing legal education.

(22) Petitioner has maintained his competence and learning in the law by subscribing to an online research service, where he reviews advance sheets, case law and legal articles; frequently attending CLE programs; and attending courses required in regard to his insurance and securities license, which courses included discussions involving the law.

(23) If reinstated, petitioner intends to move to Pennsylvania with his family and practice in areas relating to discrimination and assisting military personnel.

(24) Petitioner introduced the evidence of three character witnesses by telephone.

(25) Edward Montoya, Esquire, Kerry Brian Stephens, Esquire and Robert J. Goldstein, Esquire, are attorneys who attested to petitioner’s good character and support his reinstatement to the practice of law in Pennsylvania.

(26) Petitioner introduced three letters of character in support of petitioner’s reinstatement.

(27) Office of Disciplinary Counsel does not object to the petition for reinstatement.

III. CONCLUSIONS OF LAW

(1) Petitioner’s misconduct is not so egregious as to preclude reinstatement. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986).

(2) Petitioner engaged in a sufficient period of qualitative rehabilitation during his disbarment. In the Matter of Verlin, 557 Pa. 47, 731 A.2d 600 (1999).

(3) Petitioner has demonstrated by clear and convincing evidence that his present resumption of the practice of law will not have a detrimental effect upon the integrity and standing of the bar, the administration of justice, or the public interest, and he has the moral qualifications, competency and learning in the law required for admission to practice law in the Commonwealth. Pa.R.D.E. 218(c)(3)(i).

IV. DISCUSSION

Petitioner seeks reinstatement to the bar of the Supreme Court of Pennsylvania following his reciprocal disbarment from New York State ordered by the Supreme Court of Pennsylvania on December 20, 2002.

Petitioner’s request for reinstatement to the bar following disbarment is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). The Keller opinion articulates a threshold question which must be addressed before the reinstatement requirements of Pa.R.D.E. 218(c)(3)(i) are examined. This threshold inquiry is whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect on the integrity and standing of the bar or the administration of justice, nor be subversive of the public interest. Keller thus requires a determination that the underlying misconduct is not so offensive as to preclude reinstatement.

In the instant matter, petitioner’s misconduct occurred in the State of New York. He was disbarred in that jurisdiction after the United States Bankruptcy Court for the Southern District of New York found that petitioner and his spouse had engaged in the fraudulent conveyance of their home in order to insulate it from a possible judgment in a legal malpractice action then pending against petitioner. While certainly petitioner’s misconduct damaged the public’s confidence in the legal profession, it is not so egregious as to stand as an outright bar to the consideration of his petition for reinstatement. In the Matter of Verlin, 557 Pa. 47, 731 A.2d 600 (1999); In the Matter of Costigan, 541 Pa. 459, 664 A.2d 518 (1995).

Having concluded that petitioner’s misconduct is not so egregious as to prevent reinstatement, the board must determine whether petitioner met his burden of proving by clear and convincing evidence that his resumption of the practice of law at this time will not have a detrimental impact on the integrity and standing of the bar, the administration of justice or the public interest, and that he has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania. Pa.R.D.E. 218(c)(3)(i). In order to make this determination, the board considers the quantity of time that has passed since petitioner was disbarred and his efforts at a qualitative rehabilitation. The challenge presented to petitioner is to show that sufficient time has passed to dissipate the detrimental impact of his conduct on the public trust. In the Matter of Perrone, 565 Pa. 563, 777 A.2d 413 (2001).

Petitioner was reciprocally disbarred on December 20, 2002. At the time of the reinstatement hearing on November 3, 2008, he had been disbarred for nearly six years. Following his disbarment petitioner did not practice law or hold himself out as a licensed attorney. He held continuous employment as a bar mitzvah and bat mitzvah instructor at his synagogue and other Jewish community centers, he was self-employed preparing tax returns, and he worked for approximately three years for MetLife selling securities and insurance products. He continued his involvement in civic activities. Petitioner revealed many personal problems at issue in his life during the time frame of his misconduct. As to his own health issues, he reports that his depression is controlled by medication and psychotherapy. Petitioner believes he is better able to cope with adverse events in his life.

Petitioner expressed credible remorse for his actions that resulted in disbarment and fully acknowledged his misconduct. If reinstated, he plans to move to Pennsylvania and practice law in the Commonwealth.

The record supports the conclusion that petitioner’s six years of disbarment have been a time of qualitative rehabilitation sufficient to dissipate the impact of the original misconduct on the public trust.

In support of his reinstatement request, petitioner completed continuing legal education courses, and reviewed advance sheets, case law and legal articles on a regular basis. He presented the testimony of three character witnesses who testified credibly as to petitioner’s remorse and recognition of his wrongdoing. All of the witnesses are attorneys who support petitioner’s return to the practice of law.

The board concludes that petitioner has met his burden of showing that he is morally qualified, competent and learned in the law and so recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Mark Allan Kovler, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Jefferies was absent and did not participate in the adjudication.

Board Member Gentile did not participate in the adjudication.

ORDER

And now, July 24, 2009, upon consideration of the report and recommendations of the Disciplinary Board dated May 15, 2009, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


source: Caselaw Access Project

author: KISTLER, J,

license: Public Domain

text:
    Penstan Supply v. Traditions of America L.P.

      Kenneth F. Carobus, for plaintiff.

      William D. Auxer, for defendant.
    January 7, 2010
   KISTLER, J,

Presently before this court is Traditions of America’s preliminary objections to the mechanics’ lien claim filed by Penstan Supply Division of Hajoca Corp. Penstan asserts a lien claim in the amount of $75,006.64 for the supply of plumbing materials. A hearing was held on December 23, 2009, and each party filed briefs with the prothonotary. After consideration of parties’ briefs and oral argument, Traditions of America’s preliminary objections are sustained.

DISCUSSION

The question before this court is whether the mechanics’ lien claim filed by Penstan should be stricken and dismissed for failing to strictly conform to 49 P.S. § 1503 and 49 P.S. 1306(b) of the Pennsylvania Mechanic’s Lien Law. Traditions of America asserts that Penstan’s mechanics’ lien claim is defective for three reasons: (1) Penstan failed to name the correct owner of the property; (2) Penstan failed to provide a description of the improvement and of the property claimed to be subject to the lien as may be reasonably necessary to identify them; and (3) Penstan failed to file separate mechanics’ lien claims with respect to each different unit that it allegedly supplied materials and apportioned the total claim to the several different units.

Pursuant to 49 P.S. § 1505, “Any party may preliminarily object to a claim upon a showing of... lack of conformity with this act.” Traditions of America argues, and after a review of the pertinent case law this court agrees, that Pennsylvania law requires strict compliance with the mechanics’ lien law and any question of interpretation should be resolved in favor of its strict, narrow construction. Delmont Mechanical Services Inc. v. Kenver Corp., 450 Pa. Super. 666, 672, 677 A.2d 1241, 1244 (1996) (citing King’s Oak Liquidators v. Bala Cynwyd Hotel Associates, 405 Pa Super. 250, 592 A.2d 102 (1991)). “In order to effectuate a valid lien claim, the contractor or subcontractor must be in strict compliance with the requirements of the Mechanics’ Lien Law.” Id. (citing Castle Pre-Cast Superior Walls of Delaware Inc. v. Strauss-Hammer, 416 Pa. Super. 53, 610 A.2d 503 (1992)).

1. Penstan Failed To Name the Correct Owner As Required Under Section 1503 of the Pennsylvania State Mechanics ’Lien Act

Traditions of America’s first preliminary objection alleges that Penstan failed to name the correct owner of the property. Traditions of America asks this court to take judicial notice that TOA PA IV L.P. is the record owner of the real estate known as Traditions of America at Liberty Hill in Harris Township and there is no reason to hold Traditions of America as the reputed owner. Penstan argues that the court is precluded from taking judicial notice of this because the document provided by Traditions of America is blurry and illegible. Traditions of America asserts that the document was attached merely to show that the information is readily accessible at the Centre County Government Recorder of Deeds website.

Pa.R.E. 201(b) states, “A judicially noticed fact must be one not subj ect to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” This court determines that the Centre County Government Recorder of Deeds website qualifies as a source for judicial notice. Therefore this court will take judicial notice of the fact that TOA PA IV L.P. is the record owner of the real estate known as Traditions of America at Liberty Hill in Harris Township.

Traditions of America’s preliminary objection alleging that Penstan failed to name the correct owner of the property is sustained.

2. Penstan Failed To Provide a Description of the Improvement and of the Property As Required Under Section 1503 of the Pennsylvania State Mechanics ’Lien Law

Section 1503 of the Pennsylvania State Mechanics’ Lien Law requires the lien claim to state, in part, “such description of the improvement and of the property claimed to be subject to the lien as may be reasonably necessary to identify them.” Traditions of America asserts that the improvement is adequately described in paragraph one (of the mechanics’ lien claim) as “erection, construction, alteration and repair.” Penstan also provided a list of the invoices attached to the claim. Traditions of America argued at the hearing that Penstan had conducted work on multiple structures on the property and therefore had no way of ascertaining, based on the description provided by Penstan, which materials were used for which structures or which improvements were made for each structure. This court agrees and sustains Traditions of America’s preliminary objection alleging that Penstan failed to provide a description of the improvement and of the property.

3. Penstan Failed To File Separate Mechanics ’Lien Claims As Required Under Section 1306(b) of the Pennsylvania Mechanics ’Law

49 P.S. 1306(b) states, “Where a debt is incurred for labor or materials furnished by the same claimant for work upon several different improvements which do not form all or part of a single business or residential plant, the claimant shall file separate claims with respect to each such improvement . . . .” Traditions of America argues that the single mechanics’ lien claim filed by Penstan violates this section of Pennsylvania Mechanics’ Law. Penstan argues that it merely shipped goods to the job site and had no way of knowing how the goods were used.

This court however would note that the Mechanics’ Lien Claim states that Pennstan provided labor, as well as materials, to the properties. The court determines that 39 P.S. 1306(b) does not provide an exception which encompasses Penstan’s argument. Therefore, this court finds that Penstan’s argument is without merit and was statutorily required to file separate mechanics’ lien claims. Traditions of America’s preliminary objection for failing to file separate mechanics’ lien claims is sustained.

ORDER

And now, January 7, 2010, Traditions of America’s preliminary objections to Penstan’s mechanics’ lien claim are hereby sustained.


author: LUDGATE, J,

text:
    Commonwealth v. Robinson

      Jason C. Glessner, assistant district attorney, for Commonwealth.

      Christopher Brett, for defendant.
    December 1, 2009
   LUDGATE, J,

I. FACTUAL AND PROCEDURAL HISTORY

On February 11, 2009, Derrick Robinson (the defendant) was charged by information with robbery, 18 Pa.C.S. §3701(a)(l)(iv), theft by unlawful taking or disposition, 18 Pa.C.S. §3921(a) and receiving stolen property, 18Pa.C.S. §3925(a).

On September 2 and 3, 2009, the court held a jury trial. At trial, the Commonwealth presented the testimony of James Wynn. Wynn testified that on December 12,2008, he was walking towards the YMCA on Washington Street in Reading, Berks County, while using his cell phone. (N.T., trial by jury, 9/2/2009-9/3/2009, p. 12.) Wynn walked past the defendant, whom Wynn recognized “from AA”; the defendant asked to use Wynn’s cell phone; Wynn agreed and said “just don’t make it longdistance.” (N.T.,pp. 12-13,16.) The defendant made a call and started to walk away, Wynn followed. (N.T., p. 13.) The defendant ended the call and offered to buy the phone for $100; Wynn said he was not selling the phone. (N.T., p. 13.) The defendant then put his hand under his shirt “like he had a gun” and said “this is my phone, you don’t know who the [fuck] I am.” (N.T., p. 14.) Wynn put his hands up; the defendant walked off towards Walnut Street; Wynn then entered the YMCA and called the police from the front desk. (N.T., p. 14.)

Wynn described the person who took his phone as a black male, with “a little goatee”, sunken cheeks and one front tooth longer than the other. (N.T., p. 15.) Wynn identified the defendant as the person who took his phone. (N.T.,p. 16.)

On January 10, 2009, Wynn was working at a Burger King restaurant on Center Avenue in Reading. (N.T., p. 17.) Wynn saw the defendant inside the Burger King and recognized him as the person who took his phone; Wynn then called Officer Robert Bowers. (N.T., pp. 17-18.) The defendant was arrested. (N.T., p. 19.)

On September 3,2009 the defendant was found guilty ofrobbeiy, 18Pa.C.S. §3701 (a)( 1 )(iv), theft by unlawful taking or disposition, 18 Pa.C.S. §3921(a) and receiving stolen property, 18 Pa.C.S. §3925(a). On October 13, 2009, the defendant was sentenced to 15 months to five years incarceration in a state facility. The defendant filed a post-sentence motion through counsel on October 22, 2009, which was denied October 27, 2009.

On November 17, 2009, the defendant filed a notice of appeal through counsel. On November 19, 2009, this court ordered counsel for the defendant to file a concise statement of errors complained of on appeal within 21 days. On December 10, 2009, counsel timely filed the concise statement.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the instant appeal be denied.

II. ISSUES RAISED BY THE DEFENDANT

“Whether defendant’s convictions are against the weight of the evidence when the complainant’s identification of the defendant is unreliable in that (a) the male who took complainant’s cell phone was someone who was not well known to complainant, (b) complainant testified that he thought he saw someone who matched the description of the male who took his cell phone on a street in Reading, but did not notify police, (c) complainant’s identification at Burger King restaurant took place nearly one month after the robbery of his cell phone.”

III. ANALYSIS

Weight of the Evidence

The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). “A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to support the verdict, but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). Whether a new trial should be granted on grounds that it is against the weight of the evidence is addressed to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Id. In determining whether the verdict is against the weight of the evidence, the role of the trial court is to determine whether “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000). (citations omitted) Stated more concisely, the verdict should not be disturbed unless it is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Miller, 555 Pa. 354, 367, 724 A.2d 895, 901 (1999).

The factors enumerated by counsel as to why Mr. Wynn’s identification of the defendant was unreliable were elicited on cross-examination and argued to the jury. (N.T., pp. 20-30, 57-63.) However, the jury, as finder of fact, found credible the evidence and testimony presented by the Commonwealth. This court does not find that the juiy’s verdict in this case was so contrary to the weight of the evidence that is shocks its sense of justice.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied.


author: Ferguson, J.,

text:
    Pennsylvania Company for Insurances on Lives, &c., v. Tull.

      Negotiable instruments — Collateral note — Conversion of certificates of stock — Right of lender to transfer collateral to his own name.

    1. In a suit upon a collateral note, with which defendant deposited certain shares of stock with the usual power to sell in case of default, an affidavit of defence is insufficient which alleges that plaintiff converted the stock to its own use by transferring it from the name of defendant to that of plaintiff, so that defendant was unable to obtain the dividends.
    2. The stock was pledged as security for the loan, and plaintiff had the option of keeping the stock in the name of defendant, with power to transfer it, or of exercising the power and placing the stock in its own name.
    3. Plaintiff was under obligation to return the stock, but not necessarily the identical certificates.

      Negotiable instruments — Rate of interest on loan after refusal of payment.

    4. When a note provides for interest at 5 per cent., 6 per cent, will be allowed only from the date of demand for payment.
    Rule for judgment for want of sufficient affidavit of defence. C. P. No. 3, Phila. Co., June T., 1921, No. 3887.

      Saul, Ewing, Remide & Saul, for plaintiff; Levi & Mandel, for defendant.
    Nov. 23, 1921.
   Ferguson, J.,

This is a suit upon a promissory note. The note appears to be a collateral note, the defendant having deposited with the plaintiff certain shares of stock with the usual authority to make sale in ease of default. The defendant admits the execution of the note and asserts that the plaintiff appropriated or converted the stock pledged to its own use. A counter-claim is set up, in which it is averred that at the time of the alleged conversion the stock was of sufficient value in the market to more than discharge the obligation, and the defendant claims of the plaintiff the difference between the market value and the amount due on the note.

We think the affidavit of defence is insufficient. To allege that the plaintiff appropriated and converted the stock to its own use is meaningless without showing in what manner the conversion took place. A supplemental affidavit of defence explains what was done. It appears that the stock was transferred from the name of the defendant to that of the plaintiff. As a consequence, the defendant was unable to obtain the dividends. This is not a sufficient allegation of a conversion. The stock having been pledged as security for a loan, the plaintiff had the option of keeping the stock in the name of the defendant, with power to transfer it, or of exercising the power and placing the stock in its own name: Hubbell v. Drexel & Co., 11 Fed. Repr. 115. The plaintiff was under obligation to return the stock, but not necessarily the identical certificates.

Had the defendant tendered the amount of the loan and the plaintiff refused or been unable to deliver the stock, it would have justified the inference that a conversion had been made. It is significant that there is no averment in the affidavit of defence that defendant made demand for the return of the securities pledged.

Upon the subject of interest, it appears that the note was originally made to bear interest at 5 per cent. The affidavit of defence asserts that no demand was made for payment until June 3, 1921, and that there was no agreement to pay interest at 6 per cent. We are of opinion, therefore, that the plaintiff is entitled to judgment for the principal of the note, with interest at 5 per cent, to June 3, 1921, and at 6 per cent, from that date to the day of judgment, less the amount of $713.31, which the plaintiff admits has been paid on account of interest. The averment in the counter-claim of the payment of a larger sum as interest is too indefinite for consideration, aside from the fact that it is not set up in the affidavit of defence.


author: STERN, J.,

text:
    Straus v. City of Philadelphia et al.

      Municipal corporations — Eminent domain — Condemnation of land for municipal power plant — Necessary municipal buildings — Acts of March 26, 190S, July 20, 1917, and July 8, 1919.

    1. Municipal corporations have no inherent right of eminent domain, but can appropriate private property only to the extent authorized by some act of the legislature.
    2. The Act of March 26, 1903, P. L. 63, authorizing cities to condemn real estate, to construct "necessary municipal buildings," does not include real estate on which to erect a municipal power plant for power, heat and light.
    3. The Acts of July 20, 1917, P. L. 1143, and July 8, 1919, P. L. 783, give municipalities the power to condemn property for public libraries and certain other public buildings; but a municipal power plant, as an adjunct to any such building, is not itself a necessary municipal building within the meaning of the Act of March 26, 1903, P. L. 63.
    4. Such buildings as the Free Library, the Museum of Art, the Academy of Pine Arts and the School of Industrial Art are not included within the terms of the Act-of 1903, and a power plant, to be used as an adjunct to such buildings, is not indirectly included' within that act.
    5. Acts granting the right of eminent domain must be construed strictly, and questions of doubt should be resolved against the existence of the right.
    Bill for injunction. C. P. No. 2, Phila. Co., Sept. T., 1920, No. 9767, in Equity.

      J. Sigmund Levin and Arthur S. Arnold, for plaintiffs.

      William T. Connor, for County Commissioners.

      Samuel Rosenbaum, Assistant City Solicitor, and David J. Smyth, City Solicitor, for defendants.
    Nov. 7, 1921.
   STERN, J.,

The complainants filed a bill in equity, alleging that they are the owners of certain real estate, situate at 24th and Vine Streets, in the City of Philadelphia, and that on Jan. 3, 1920, the Mayor of the City of Philadelphia approved an ordinance appropriating this property “for municipal purposes.” The bill further alleges that this ordinance is invalid and void, and that the City of Philadelphia is without authority to appropriate the property, and prays for an injunction restraining the defendants from taking possession of the property. The County Commissioners of Philadelphia demurred to the bill, but the City of Philadelphia and the Mayor of the City of Philadelphia filed an answer, in which it was alleged that the “municipal purpose” sought to be obtained by the acquisition of the property covered by the ordinance was to establish in that place a municipal power plant to furnish power, heat, &c., for a group of public buildings now in course of erection or contemplated in the immediate future, the said buildings including the Philadelphia Museum of Art, the Academy of Fine Arts, the School of Industrial Art, the Free Library of Philadelphia and the Municipal Court.

In the argument three questions were raised and discussed: (1) Has the City of Philadelphia the right to appropriate property for the purposes set forth in the City’s answer above referred to? (2) Even if it has such right, must those purposes be expressly set forth in the ordinance, or is the phrase “for municipal purposes” sufficient? (3) Is the ordinance invalid because it provides that possession of the property should be taken by the County Commissioners on behalf of the City?

The conclusion at which we have arrived in regard to the first of these questions makes it unnecessary to consider the other two.

The City of Philadelphia, like all other municipal corporations, has no inherent right of eminent domain. It is an agency of the Commonwealth and can appropriate private property only to the extent to which such appropriation is authorized by some specific or general act of the legislature.

In Lazarus v. Morris, 212 Pa. 128, it is said, per Mr. Justice Elkin: “. . , The right to take private property for this public use is asserted under the-power of eminent domain. Such power is an attribute of sovereignty. From the very nature of society and organized government, it must belong to the' State. It exists independent of constitutional mandate, and it existed prior to constitutions. It lies dormant, however, in the State until legislative; action points out the occasions, the modes and the agencies for its exercise: 10 Am. & Eng. Ency. of Law (2nd ed.), 1049. It can only be called into operation by the authority of the legislature, and must be exercised in the manner, by the tribunal and with the limitations provided by law: City of Madison v. Daley, 58 Fed. Repr. 751. This rule has long been recognized in our State. It, therefore, becomes necessary for any corporation, public or private, or individual claiming thereunder, asserting title under the power of eminent domain, to point to the provisions of the act of assembly under which the power is asserted. The grantee takes what the act gives,, and no more. . . .”

This statement of the law is quoted with approval in Philadelphia’s Petition, 60 Pa. Superior Ct. 594 (affirmed by the Supreme Court, per curiam, in 253 Pa. 434).

The right of eminent domain is not inherent in municipalities, but may, by appropriate legislation, be conferred upon them: 20 Corpus Juris, 536.

In Pennsylvania there exists a long series of acts conferring upon municipalities the right to condemn land for purposes therein specified. There is; admittedly no statute giving to the City of Philadelphia the specific power to-condemn private property for the purpose of a municipal power plant. What the City relies upon, however, as justifying the ordinance under consideration; is the Act of March 26, 1903, P. L. 63, which provides that “the several cities of this Commonwealth shall have power to acquire by purchase any real estate, within the city limits, which they may need, upon which to erect or construct necessary municipal buildings, fire engine-houses, gas and electric light works, and, within or without the city limits, within the same county, upon which to erect hospitals, water-works, and for the purpose of a poor-farm; and in ease they cannot agree with the owner or owners as to the price thereof, or in case the owner or owners thereof are absent or are incapacitated from any cause, or are unknown, by reason of which no agreement can be made, it shall be lawful for each respective city, and they are hereby authorized and empowered to take and appropriate for said purposes the necessary real estate within or without the city limits, as the case may be, after an ordinance shall have been passed providing for such taking and appropriation.”

The City contends that the phrase “necessary municipal buildings” is broad enough to include a building to be used for the purpose of a municipal power plant, which is to furnish power and heat to the buildings set forth in the defendants’ answer. Unfortunately for this contention, however, it was pointed out by Mr. Justice Kephart, in Philadelphia’s Petition, 60 Pa. Superior Ct. 594, that: “. . . These words, when followed by these specific designations, and preceded by the word ‘necessary,’ limit and define the words ‘municipal buildings,’ and have the effect of giving a meaning which we think most common to the words used in the sense intended, namely, buildings necessary to conduct the administrative affairs of the city government.” It was, therefore, held in that case (and affirmed by the Supreme Court in 253 Pa. 434) that a site for public library purposes did not come within the meaning of the words “necessary municipal buildings.” If, therefore, as far as the Act of March 26, 1903, P. L. 63, is concerned, the Free Library of Philadelphia is an institution, the land for which cannot be acquired by the City of Philadelphia under the right of eminent domain, it would seem to be clear that that act gives no such right in the case of the Philadelphia Museum of Art, or the Academy of Fine Arts, or the School of Industrial Art; indeed, such institutions are practically linked together in the opinion just referred to. It is true that in subsequent acts (July 20, 1917, § 23, P. L. 1143, and July 8, 1919, § 1, P. L. 783) municipalities are given the power to acquire, through condemnation proceedings, property for the purpose of erecting thereon public libraries and certain other public buildings. But the point is that no such power is granted by the Act of March 26, 1903, under the phrase “necessary municipal buildings” (which is the only act on the statute books as to which any argument could be made that a municipal power plant is included), because, if the phrase in question refers only to buildings necessary to conduct the administrative affairs of the city government, such a plant does not come directly within the meaning of the act; and if such buildings as the Free Library, the Museum of Art, the Academy of Fine Arts and the School of Industrial Art are not included therein, it would necessarily follow that a power plant to be used as an adjunct to such buildings is not indirectly included within the act in question.

It may be argued that if, under other statutes, the City has the right to acquire by condemnation a public library building, it would thereby impliedly gain the right to acquire a power plant for the purpose of furnishing power and heat to such a building. In answer to such an argument, it is to be pointed out that statutes conferring upon corporations, private or public, the right of eminent domain must be strictly construed. “Acts of assembly granting this right (the right of eminent domain) must be construed strictly. The language of the act should be clear and unmistakable, and questions of doubt should be resolved against the existence of this right. . . . Unless the right clearly appears, it should be denied:” Philadelphia’s Petition, 60 Pa. Superior Ct. 594; 253 Pa. 434. “There must be no effort to prove the existence of such high corporate right (the right to take private property), else it is in doubt; and, if so, the State has not granted it. ‘All grants of power by the Government are to be strictly construed, and this is especially true with respect to the power of eminent domain, which is more harsh and peremptory in its existence and operation than any other:’ Lewis on Eminent Domain, § 254;” Pennsylvania Telephone Co. v. Hoover, 209 Pa. 555. So, also, Wood v. Greensboro Natural Gas Co., 204 Pa. 606, and Pennsylvania Mutual Life Ins. Co. v. Philadelphia, 242 Pa. 47, 56.

Moreover, the municipal power plant, which the City says it intends to erect, is not to be a part of a public library building or directly connected with it, but, on the contrary, is to be situated several blocks distant therefrom. Then, again, the purpose of the building is to supply power and heat to various other buildings of a kind which admittedly the City cannot acquire by condemnation proceedings, and, therefore, a fortiori, a power plant incidental to such buildings cannot be acquired by eminent domain. Indeed, most of these buildings have not been erected or even definitely planned; they are merely said to be “contemplated.” It is true that, under the doctrine of Laird v. Pittsburgh, 205 Pa. 1, where land is condemned for a lawful purpose, the fact that a part of it is used for a purpose incidental to the lawful purpose will not destroy the right acquired or prevent the use for such incidental purpose. But the purpose of the municipal power plant, as stated in the City’s answer in the present case, to furnish power and heat to such contemplated buildings as the Philadelphia Museum of Art, the Academy of Pine Arts and the School of Industrial Art, can scarcely be said to be merely incidental to the furnishing of power and heat to the Free Library or to the Municipal Court. Moreover, as above pointed out, it would seem extremely doubtful whether such a power plant can be acquired by eminent domain, even with respect to such buildings as can be so acquired, where the power plant is located in a distant building, several city squares away from the main buildings which it is intended to serve.

The court has, therefore, come to the conclusion that the right to condemn the plaintiffs’ property- for the purpose of the proposed municipal power plant is not conferred by the Act of March 26, 1903, P. L. 63, nor by any other statute, and that being so, no such right exists in the City of Philadelphia under present legislation.

On bill and answer, therefore, it is ordered and decreed that the relief prayed for by the plaintiffs in the bill in equity be granted, and that the defendants and their agents be and they hereby are enjoined and restrained from taking possession of the whole or any part of the complainants’ property as described in the bill in equity, and from proceeding in any condemnation proceedings affecting said property under the Ordinance of Jan. 3, 1920, or otherwise. In order to make the record harmonious, the demurrer entered by the County Commissioners is overruled, although if the City had not filed an answer setting forth the purpose for which the land was to be taken, a different question, technically, might have been presented upon argument merely upon bill and demurrer.

Defendants to pay the costs of these proceedings.


author: Gest, J.,

text:
    Jacobs’s Estate.

      Decedents’ estates —• Intestacy — Widow’s allowance of $5000 —■ Cost of appraisement of widow’s share — Act of June 7, 1917.

    1. The expense of appraising securities chosen by the widow as a part of her special allowance of $5000, under section 2 of the Intestate Act of June 7, 1917, P. L. 429, is part of the cost of the administration, and payable out of the estate.

      Decedents’ estates — Widow taking assets at valuation greater than that in inventory — Surcharge of executor with the additional value.

    2. When a widow takes assets as part of her allowance at more than the inventoried value, the increase should appear as a charge against the executor in his account, just as if he had sold them at that increase.

      Decedents’ estates — Widow’s share • — • Residue applicable to payment of legacies.

    3. Where a testator marries after the execution of his will, so that his widow takes under the intestate law, his will remains effective as to all the residue that remains after the claim of the widow under the Intestate Act is satisfied; therefore, the pecuniary legacies must be paid in full from that residue only.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1921, No. 26.

      Neville D. Tyson, for widow, exceptant.

      Edgar N. Black, for executor, exceptant.
    Nov. 18, 1921.
   Gest, J.,

The testator made his will in 1912, married in 1916, and died without issue in 1920. His widow, under section 2 of the Intestate Act of June 7, 1917, P. L. 429, was entitled, in addition to her exemption, to her special allowance of $6000, to be chosen by her from real or personal estate, or both, and in addition to one-half part of the remaining real and personal estate. She presented her petition to the court, in which she chose and selected certain designated securities, and asked that appraisers be appointed in order that they might be set apart for her. The appraisers having filed their appraisement of the securities so selected, amounting, with cash, to $5000, the appraisement was confirmed by the court. At the audit the widow requested that she be further allowed the sum of $22.26 as the expenses of the appraisement, representing a $10 fee to each of the appraisers and the costs of the affidavits. The auditing judge, however, held that these expenses were not properly chargeable to the estate, but should be paid by her individually, and dismissed her claim, and the widow has filed exceptions to this ruling. The majority of the court are of the (opinion that these expenses should be considered as costs of the administration of the estate, and the exceptions 'of the widow are, therefore, sustained.

The exceptions of the accountant are without merit. The securities selected by the widow were appraised by the appraisers appointed on her petition in a sum greater by $685 than the appraisement thereof made in the inventory, and the auditing judge in making distribution added that sum to the balance shown by the account and awarded to the widow from the balance thus ascertained the securities, of course at the higher valuation, with some cash aggregating $5000; the residue being awarded, one-half to the widow and one-half to the legatees under the will. The auditing judge could have done nothing else; as he properly said; “The widow taking these assets at $685 more than they were appraised at for the purpose of administration is just as if the executor had sold them at that increase, and under the circumstances the increase should appear in the account. For purposes of distribution, this account will be surcharged with this item of $685.”

Of course, as the testator married after making his will, he must, under section 21 of the Wills Act of June 7, 1917, P. L. 403, 410, he deemed and construed to have died intestate so far as the widow is concerned: Shestack’s Estate, 267 Pa. 115; so that, as to her, the will does not exist; hut it remains effective as to all that remains after the legal claim of the widow is satisfied. It, therefore, follows that the pecuniary legacies must be paid in full from the remainder left after the award to the widow. They cannot he deducted from her share or any part of it, although the result may be unfortunate for the residuary legatees named in the will: Perry’s Estate, 18 Phila. 124; Bentz v. Nieman, 6 Watts, 85. It may be remarked that the surcharge is purely technical and for the purposes of distribution only, without implying any default on the part of the accountant.

The exceptions of the accountant are dismissed, and the adjudication, modified as to the allowance of the expenses of the widow’s special allowance, is confirmed absolutely.


author: WickeeshAM, J.,

text:
    Ehler v. Lower Paxton Township School Directors.

      School districts' — Indebtedness—Authority to increase — Special election— Return — Copies of resolution and advertisement — Tally-sheets—Mistake of election board.

    1. Where the returns of a special election to determine whether or not the bonded indebtedness of a school district shall be increased are certified to the Clerk of the Court of Quarter Sessions, as required by law, but without the certified copy of the resolution and advertisement providing for the election, such certified copies may be filed nunc ^¥0 tuno at a later date.
    2. A mistake of the election officers in a special election to determine whether or not the bonded indebtedness of a school district shall be increased, whereby they reported the number of favorable votes as 309 and the votes against 283, while in fact the correct number against was 238, is not fatal to the validity of the return. The tally-sheet showing the correct number of votes is the most important part of the return, and the election board was pr'operly allowed to come into court and correct the error on the return-sheets to make them correspond with the tally-sheets. To have done otherwise would have worked an injustice upon the electors.
    3. The return of a special election to determine whether or not the bonded indebtedness of a school district shall be increased is returnable to the Clerk of the Court of Quarter Sessions of the proper county, if the special election was held on a special date, not the date for holding general municipal elections.

      School districts — Indebtedness—Issuance of bonds — Injunction.

      4. An injunction will not be granted to restrain the issuance of bonds of a school district for the purpose of purchasing a proper site and erecting a high school thereon, where all the requirements of the Constitution and laws of the Commonwealth have been substantially complied with in the election necessary for the authorization of such an issue of bonds.
    Bill for an injunction. C. P. Dauphin Co., Equity Docket, No. 701.

      W. Harry Musser, for plaintiff; John Mcl. Smith, for defendant.
    Aug. 2, 1921.
   WickeeshAM, J.,

The plaintiff filed his bill of complaint, in which it is alleged, inter alia: That he is an elector and taxpayer of the Township of Lower Paxton, County of Dauphin, Commonwealth of Pennsylvania; that the defendant is the Board of School Directors of the School District of said Township of Lower Paxton, in said county; that the defendant, on April 4, 1921, passed unanimously resolutions signifying and expressing its desire that the indebtedness of the school district of said township be increased in and by the amount of $70,000, for the purpose of purchasing or acquiring a proper site for school buildings and the erection and equipping of a centralized vocational township high school; that on the said date the said school board also passed a resolution authorizing and providing for a special election to be held at the regular polling-place in said township on May 5, 1921, for the purpose of securing the assent or disapproval of the electors to said increase of indebtedness; that notices of said election were prepared and posted as required by law; that tickets were prepared by the County Commissioners of Dauphin County and said election was held on May 5, 1921, as required by act of assembly; that in making the returns covering the aforesaid election the election board of said township erroneously returned the number of votes actually cast against said increase of indebtedness, the error occurring in the transposition of figures, in that the two return-sheets showed that 283 votes were cast against the increase of indebtedness, while the tally-sheets showed that 238 votes were cast against said increase; that the returns were opened on May 10, 1921, in the presence of the Court of Quarter Sessions of Dauphin County, when said discrepancy was discovered, and the sitting judge ordered the election board of said township to be brought into court in order that the error might be corrected; that on May 11, 1921, the election board of said township appeared in court and, after an investigation, they were ordered to file corrected copies of the return-sheets as of May 6, 1921, the date of the original filing; that, pursuant to said order of court, the election board prepared and duly executed corrected return-sheets and filed the same as directed; that two of the judges of the Court of Quarter Sessions of Dauphin County, on May 16, 1921, signed a decree that they had computed and corrected the returns of said election, and that the final computation showed a majority of votes cast in favor of the increase of indebtedness; that on the same day the Clerk of the Court of Quarter Sessions of said county issued a certificate to the said school board certifying to the above stated facts, and that the assent of the electors of said township had been given to the increase of the indebtedness as aforesaid; that on May 17, 1921, the decree of the court certifying said election, together with certified copies of the resolution and the advertisement, were filed in the Court of Quarter Sessions to No. 156, March Sessions, 1921; that the said school board advertised the sale of the said bonds, amounting to $70,000, to the highest bidder, and on May 26, 1921, the defendant levied a tax upon the taxable property of said township, yielding $5520, commencing with the year 1921-1922, and for each and every year thereafter until and including the year 1950, or so long as should be necessary for the purpose aforesaid, which annual sum would have been sufficient to pay the interest on said bonds and the principal thereof as they severally would have become due, together with the State tax thereon; that the money derived from the sale of said bonds, authorized by the proceedings aforesaid, was to be used for the purchasing or acquiring a proper site for school buildings and the erecting and equipping of a centralized vocational township high school.

It was alleged in said bill that the defendant has not the power and authority claimed by it for the issuance of said bonds, and averred that the said election returns were not due and legal, but that the same, together with proceedings thereon, were invalid, illegal and void, for the reasons:

(a) There was no legal return made of the votes east at said election, in that there was a discrepancy between the number of negative votes shown on the tally-sheet and the number shown on the return-sheets. This error could not be corrected by the Court of Quarter Sessions, because the Court of Quarter Sessions does not have jurisdiction to correct or compute the returns cast at such an election.

(b) That the returns were filed in the wrong court, in that they should have been filed in the ofiiee of the Prothonotary of the Court of Common Pleas of said county.

(c) That the election return is invalid and illegal, in that it is not made to the Clerk of the Court of Quarter Sessions duly certified as is required by law, together with a certified copy of the resolution and the advertisement.

(d) That the destruction of the original return-sheet invalidates the proceeding.

Alleging that the proposed action of issuing bonds based upon the authority of said election, the returns thereof and the proceedings thereon on the part of the defendant, unless restrained by this court, will subject the orator to an unjust and illegal burden of taxation for which he has no adequate remedy at law, and further showing that the proposed issue of bonds and the sale of said bonds to meet the indebtedness so incurred are illegal and without warrant of law and to the prejudice of and injury to his rights, the orator prays:

1. That said election return and all proceedings thereon be declared illegal and void.

2. That an injunction be issued to restrain perpetually the Board of Directors of the School District of the Township of Lower Paxton, County of Dauphin, Commonwealth of Pennsylvania, and its successors, from issuing and selling bonds purporting to be legal obligations of the said school district, aggregating $70,000, and based upon the authority of the aforesaid election, the returns thereof and the proceedings thereon.

3. For such other and further relief as to your honors may seem just.and proper and as the facts and circumstances may warrant.

The defendant has filed its answer, admitting the averments of the first seventeeen paragraphs of the plaintiff’s bill. The averments of the 18th paragraph are denied generally and specifically by paragraphs (a), (b), (c) and (d); likewise the defendant denies the 19th and 20th paragraphs, and in the denial of paragraphs 18 to 20 the defendant alleges specifically:

(a) That the actual ballots or tickets in the ballot-box showed a majority of votes east in favor of increasing the indebtedness.

(b) That the plain provision of all the statutes dealing with this proceeding required returns to be filed with the Clerk of the Court of Quarter Sessions.

(o) That the certified copy of the resolution and the advertisement were filed with the Clerk of the Court of Quarter Sessions after the returns had been duly certified as is required by law.

(d) That the destruction of the incorrect return-sheet is amply covered and explained by the decree of the Court of Quarter Sessions ordering that the corrected sheets be filed nunc pro tunc. In any event, the original tally-sheet showing the number of votes cast for and against the proposed increase of indebtedness is in the record, free and clear from all doubt and immune from any possible attack.

Neither the plaintiff nor the defendant have filed with us any requests for findings of facts or conclusions of law. The court finds the facts to be as follows:

Findings of facts.

1. The Board of School Directors of the School District of the Township of Lower Paxton, County of Dauphin and Commonwealth of Pennsylvania, on April 4, 1921, adopted the following resolution:

“Now, therefore, be it resolved by the School Board of said School District of the Township of Lower Paxton, County of Dauphin, Commonwealth of Pennsylvania, in accordance with the Act of Assembly of the Commonwealth of Pennsylvania, approved the 20th day of April, 1874, P. L. 65, and the amendments thereof and the supplements thereto, that the corporate authorities of the School District of the Township of Lower Paxton, County of Dauphin, Commonwealth of Pennsylvania, hereby signify and express their desire for an increase of the bonded indebtedness of said school district for the amount of Seventy Thousand ($70,000.00) Dollars, for the following purpose, namely, the purchasing or acquiring a proper site for school buildings and the erection and equipping of a Centralized Vocational Township High School.”

2. April 4, 1921, the' said school board, after reciting the resolution above quoted, adopted the following resolution:

“Now, therefore, be it resolved by the School Board of said School District of the Township of Lower Paxton, County of Dauphin, Commonwealth of Pennsylvania, that a public election be and the same is authorized to be held on the 5th day of May, A. D. 1921, for the purpose of obtaining the assent of the electors of .said school district to an increase of the bonded indebtedness of said school district by the amount of Seventy Thousand ($70,000.00) Dollars, for the following purpose, namely, the purchasing or acquiring a proper site for school buildings and the erection and equipping of a Centralized Vocational Township High School.”

3. The form of notice of the said election so proposed to be held was also provided for in said resolution, which form complies with the act of assembly in such cases made and provided.

4. On April 5, 1921, the secretary of said school board caused to be posted in the most public places in said school district twenty notices of the public election to obtain the assent of the electors of said school district to said increase of indebtedness, and a copy of said election notice is on file among the records of this court to No. 156, March Sessions, 1921. Said notice is in compliance with the requirements of the act of assembly in such cases made and provided.

5. No newspaper was published in the School District of Lower Paxton Township, Dauphin County, Pennsylvania, during the period between April 5, 1921, and May 5, 1921; and no other election was held on the same subject within one year of the date of the aforesaid election, to wit, May 5, 1921.

6. Said election was held at the polling-place in the election district of Lower Paxton Township, at the warehouse of S. A. Fishburn in the election district, on Thursday, May 5, 1921.

7. After said election was held, the tickets received by the election officers were counted and a return thereof was made to the Clerk of the Court of Quarter Sessions of Dauphin County, duly certified as required by law, on May 6, 1921, at 9.10 o’clock in the forenoon.

8. In making their return of said election and the results thereof to the Clerk of the Court of Quarter Sessions of Dauphin County, duly certified as required by law, the election officers of said school district did not include a certified copy of the resolution and advertisement; but on May 17, 1921, a certified copy of said resolution, expressing the desire of the school directors for an increase in the bonded indebtedness of said school district, a certified copy of the resolution of said board of directors, providing for a special election for the purpose of obtaining the assent of the electors of said school district to said increase of bonded indebtedness thereof, and prescribing the form of notice of said election to be posted according to law, an affidavit that twenty notices of said public election had been posted on April 5, 1921, in the most public places, and that said election notices remained posted for a' period of not less than thirty days following the passage of the resolution of said school board, and that no newspaper was published in said school district during said period, and having annexed thereto a copy of said election notice so posted, were filed with the Clerk of the Court of Quarter Sessions to No. 156, March Sessions, 1921.

9. On May 10, 1921, Charles E. Pass, the Clerk of said Court of Quarter Sessions, presented the returns of said special election to the Court of Quarter Sessions of the County of Dauphin, and opened the same and computed said vote in the presence of said court, being assisted by Thomas B. Lighty and B. K. Booser, who were duly sworn as his assistants. It then appeared that the return of said election by the election officers was not correct; that said election officers returned 283 negative votes, whereas the tally-sheet included in said return showed that there were only 238 negative votes cast.

10. On May 11, 1921, the election board appeared before the said Court of Quarter Sessions of Dauphin County and corrected the said return so as to show the result of the election as it appeared upon the tally-sheet, and corrected copies of said return-sheets were ordered to be filed, and were filed nunc pro tunc by the election board with the Clerk of the Court of Quarter Sessions aforesaid.

11. The said Clerk of the Court of Quarter Sessions, assisted by the said Thomas B. Lighty and B. K. Booser, in the presence of the Hon. Prank B. Wickersham and the Hon. John E. Pox, two of the Judges of the Court of Quarter Sessions of Dauphin County, having carefully added together the votes east for and against the proposed increase of indebtedness of said school district, found that, in answer to the question submitted to the electors, “Shall the indebtedness of the School District of the Township of Lower Pax-ton, County of Dauphin, Commonwealth of Pennsylvania, be increased in and by the amount of Seventy Thousand ($70,000.00) Dollars, for the purpose of purchasing or acquiring a proper site for school buildings and the erection and equipping of a Centralized Vocational Township High School?” the number of votes polled in favor of said increase of indebtedness was 309; the number of votes polled against said increase of indebedness was 238, and the majority in favor of said increase of indebedness was 71, all of which was certified by said judges and assistants and filed with the Clerk of the Court of Quarter Sessions, May 17, 1921, to the number and term above mentioned.

12. The mistake made by the election officers in making the return of said election, wherein they certified that the number of votes east against said increase was 283 instead of 238, as appeared by the tally-sheet, would not in any way alter the result of said election, but would have shown a clear majority in favor of t'he increase of indebtedness of said school district even as returned by said election officers.

13. On May 16, 1921, Charles E. Pass, Clerk of the Court of Quarter Sessions of Dauphin County, Pennsylvania, made a record of said election returns, together with the computation of the vote in the presence of the court, as required by law, and furnished a certified copy thereof, under seal, showing the result to the Board of School Directors of said School District of Lower Paxton Township, and the same was placed of record upon the minutes thereof.

14. Having received said certificate from the Clerk of the Court of Quarter Sessions of Dauphin County, certifying the result of said election, the board of school directors of said school district, on May 26, 1921, levied a tax upon the taxable property of said township, yielding $5520, which tax was included in and was a part and parcel of the general levy of the school tax for the coming fiscal year, amounting to 11 mills, commencing with the year 1921-1922, and for each and every year thereafter, until and including the year 1950, or so long as should be necessary for the purpose aforesaid, which annual sum would be sufficient to pay the interest on said bonds and the principal thereof as they severally become due, together with the State tax thereon.

Discussion.

We think all the provisions of section 8, art. IX, of the Constitution of Pennsylvania, as amended Nov. 2, 1920, and the provisions of the Act of April 20, 1874, P. L. 65, entitled “An act to regulate the manner of increasing the indebtedness of municipalities, to provide for the redemption of the same, and to impose penalties for the illegal increase thereof,” and the acts supplemental thereto and amendatory thereof, have been substantially complied with.

It was contended by the plaintiff that there was no legal return made of the votes cast at said election, and that there was a discrepancy between the number of negative votes shown on the tally-sheet and the number shown on the return-sheets, and that this discrepancy could not be corrected by the Court of Quarter Sessions, because the Court of Quarter Sessions does not have jurisdiction to correct or compute the votes cast in such an election.

We cannot agree with this contention. It appears from the record that the return of said election as made by the election officers was filed with the Clerk of the Court of Quarter Sessions May 6, 1921, at 9.10 o’clock A. M. While the return was not accompanied by a certified copy of the resolution and the advertisement, said certified copy was afterwards filed and now forms a part of the record, and there is precedent for this practice. In the matter of the election for an increase of the indebtedness of the Williamstown School District, Judge Simonton, on July 11, 1899, permitted a certified copy of the ordinance or resolution and advertisement to be filed nunc pro tunc to No. 322, June Sessions, 1899. It is true there was a discrepancy between the number of negative votes shown on the tally-sheet and the number shown on the return-sheet, but the final result was not changed or affected by this discrepancy; for, whether the number of negative votes was 283 or 238 could make no possible difference, in view of the fact that there were 309 votes cast in favor of the increase of indebtedness, so that the correction of the error by the Court of Quarter Sessions could have made no difference, so far as the final result was concerned, even if the court did not have jurisdiction to correct or compute the return of votes cast at such election, a contention with which we are not in accord.

It is further contended by the plaintiff in sub-division (b) of the 18th paragraph of his original bill that the returns were filed in the wrong court, in that they should have been filed in the office of the Prothonotary of the Court of Common Pleas of said county; and in sub-division (c) of said paragraph it is contended that the election return is invalid and illegal, in that it was not made to the Clerk of the Court of Quarter Sessions duly certified, as is required by law, together with a certified copy of the resolution and the advertisement. The Act of May 1, 1909, P. L. 317, which is an amendment of the Act of 1891, which amended the Act of 1874, provides: “The tickets so received shall be counted and the return thereof made to the Clerk of the Court of Quarter Sessions of the proper county, duly certified, as is required by law, together with a certified copy of the ordinance and the advertisement.” We cannot agree that the return of this election, being a special election held on a special date, not the date for holding the general municipal elections of the county, should have been returned to the prothonotary’s office; nor can we agree that the failure of the election officers to include with their return a copy of the resolution authorizing the indebtedness and a copy of the notice invalidated the election, in view of the fact that this part of the law was complied with later on. The practice in such a case was carefully prescribed by act of assembly in order that the will of the majority of electors of the election district might be ascertained and a public record thereof made. This has been done, for it appears that a substantial majority of the electors of this school district desire that the bonded indebtedness thereof be increased for the purposes mentioned in the resolution and duly expressed their desire, and for the court to grant this injunction would result in defeating the will of the majority of the electors in that school district. We are not inclined to take any action in this case which would have the effect of defeating the will of such a substantial majority of the electors for what we regard as a mere and non-essential technicality.

It is further contended by the plaintiff in sub-division (d) of the 18th paragraph of his bill that the destruction of the original return-sheets invalidates the proceeding. Our attention' has not been directed to any authority in support of this contention, and we have not been able to reach that conclusion. The most important part of the return of the election board was the tally-sheet, and that remains intact. It has not been destroyed, and it shows the number of votes cast for and against the proposed indebtedness, a computation of which shows a majority in favor of the proposed increase of seventy-one. This court did not order the destruction of the return-sheets, but we ordered corrected return-sheets showing the result of said election as it appeared upon the tally-sheet to be filed nunc pro tuna. To have done otherwise would be working an injustice upon the electors of the school district, as it clearly appeared that in making the first return the clerk who wrote it transposed the figures 238 to 283 by mistake. The court permitted the election board to correct the mistake and ordered the corrected return to be filed nunc pro tuna. No one was injured by this correction, nor was the result changed, as we have heretofore stated.

We do not find substantial error in the proceedings, and, therefore, we find the following

Conclusions of law.

1. All the requirements of the Constitution of Pennsylvania and the acts of assembly relating to the increase of indebtedness by municipalities have been substantially complied with.

2. That the prayer for an injunction to restrain perpetually the Board of Directors of the School District of the Township of Lower Paxton, County of Dauphin, Commonwealth of Pennsylvania, and its successors, from issuing and selling bonds purporting to be legal obligations of the school district, aggregating $70,000, and based upon the authority of the aforesaid election, the returns thereof and proceedings thereon, is refused.

3. The costs of these proceedings to be paid by the plaintiff.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Hull, Dep. Att’y-Gen.,

text:
    Pure Food Law.

      Sale of milk — Milk containing less than IS per centum of solids — Dealer liable to prosecution — Acts of June 8,1911, and, June S, 1915.

    1. The Act of June 8, 1911, § 1, P. L. 712, makes it unlawful to sell milk having less than 12 per centum of milk solids, even though it contains more than the minimum amount of butter fat; and the amendment of June 2, 1915, P. L. 785, makes no change in this respect.
    2. A dealer who sells milk which contains less than 12 per centum of milk solids is liable to prosecution under the act, even though he flies an affidavit stating that nothing has been added to or taken from the milk in question, which is otherwise pure and wholesome.
    Attorney-General’s Department. Opinion to Hon. James Foust, Director, Bureau of Foods, Department of Agriculture.
    July 27, 1921.
   Hull, Dep. Att’y-Gen.,

This department is in receipt of your inquiry relative to the interpretation of the Act of June 2, 1915, P. L. 735, amending section 3 of the Act of June 8, 1911, P. L. 712. You ask to be advised whether, in view of this amendment, you should prosecute a dealer who sells milk which contains 3 per centum of butter fat, but less than 12 per centum of milk solids, if such dealer file with you an affidavit that nothing has been added to or taken from the milk in question, which is otherwise pure and wholesome, and is not below 3 per centum in butter fat.

Section 1 of the Act of 1911 declares: “That it shall be unlawful for any person . , . to sell , . . . milk which contains any added water, or milk which has had the butter fat or any portion thereof removed therefrom, or milk to which has been added any substance for the purpose of increasing its consistency or thickness, or milk which contains less than 3i per centum of butter fat and less than 12 per centum of milk solids. . . .”

Your inquiry presents first the question whether the word “and” in the last clause quoted above shall be read “and” or “or.” If it means “and,” then the offence of selling milk below standard is not complete unless the milk is below standard both with respect to its butter fat and its milk solids. If the word “and” means “or,” then it is a violation of the act to sell milk which is below the standard in either butter fat or milk solids.

Referring to the use of these conjunctions in penal statutes, Endlich, in his work on Interpretation of Statutes, says on page 415, section 305: “Both words are interchangeable where the sense and object of the enactment require the one to be substituted for the other, in penal statutes as well as in others, and as-against the offender as well as in his favor.”

In 11 Ruling Case Law, 1101, it is said: “Pure food laws are enacted as a means of protecting the people against the fraud and imposition of manufacturers and vendors of inferior and unwholesome food and medicinal products. Such statutes are of great public interest, and should be so interpreted, if possible, within sound canons of construction, as to secure to the public the benefit intended by the legislature.”

In Com. v. Kevin, 202 Pa. 23, Mr. Justice Mestrezat, referring to another of our pure food statutes, said at page 27: “The purpose of the legislature in the passage of the act is most commendable, and the statute should receive a construction by the courts that will fully and effectively accomplish the object of its enactment.”

Viewing this statute as a police regulation enacted in the interest of the public health and for the purpose of preventing fraud and deception, there is no doubt that the legislature intended to require that all milk sold should contain a minimum percentage of butter fat and should also contain a minimum percentage of milk solids, and that it should be unlawful to sell milk which is below the standard in either one or the other of these respects.

In my opinion, therefore, it is a violation of section 1 of the Act of 1911 to sell milk having less than 12 per centum of milk solids, even though it contain more than the minimum amount of butter fat, and does not otherwise offend against the law.

This brings us to the interpretation of section 3 of the Act of 1911, as amended by the Act of June 2, 1915, P. L. 735. It contains the following paragraph, excepting the words in parenthesis, which I have inserted: “If a person accused of violating section 1 of this act (in any particular hereafter mentioned) shall furnish satisfactory affidavit that nothing has been added to or taken from the milk in question, which is otherwise pure and wholesome, and is not below 3 per centum in butter fat, the Dairy and Food Commissioner shall file said affidavit with the records, and no prosecution shall be instituted against said person. . . .”

Section 4 of the act provides: “That the Dairy and Food Commissioner shall be charged with the enforcement of the provisions of this act.”

You are the officer charged with the enforcement of this law. Prior to the Act of 1915, it was your duty to prosecute a dealer whom you believed to be guilty of any of the several offences described in section 1. The amendment, however, authorizes and requires you to withhold prosecutions which it would otherwise be your duty to commence, if the person accused shall furnish a satisfactory affidavit of certain facts. These facts relate to certain specific offences defined in section 1, to wit, adding something to milk, taking something from it, and selling it with a butter fat content of less than 3 per cent., but do not refer to the amount of milk solids contained in it.

If the amendment be construed so that the filing of an affidavit as to these particular matters would prevent a prosecution for selling milk with less than the required amount of milk solids, it would, in effect, amend section 1 of the act by striking out that requirement. I am convinced that this was not the legislative intent. The amendment did change the required percentage of butter fat from 3i per centum to 3 per centum in cases where an affidavit is filed, and if the legislature had intended to change the required percentage of milk solids or to strike out the requirement altogether, it would have done so expressly. In the absence of such expression, the words which I have written in parenthesis are implied.

In my opinion, the amendment does not relate to or affect the requirement as to milk solids. Any prosecution for violation of that requirement is not prevented by the amendment.

From this it follows that when a dealer furnishes an affidavit, you need not require him to make any reference therein to the amount of milk solids, and if he should insert such an averment, you are, nevertheless, free to prosecute him for the sale of milk which falls below 12 per centum of milk solids.

I, therefore, specifically advise you that when a dealer sells milk which contains less than 12 per centum of milk solids, you should bring your prosecution, even though he should file an affidavit stating “that nothing has been added to or taken from the milk in question, which is otherwise pure and wholesome, and it is not below 3 per centum in butter fat.”

From Guy H. Davies, Harrisburg, Fa.


author: Van Swearingen, P. J.,

text:
    Aller v. Aller.

      Divorce — Cruel and barbarous treatment — Indignities to husband — Refusal of sexual intercourse — Act of June 25, 1895.

    1. Under the Act of June 25, 1895. P. L. 308, providing for a divorce to a wronged husband, “cruel and barbarous treatment” and “indignities to the person” are two distinct causes of divorce, and where “indignities to the person” only are alleged, cruel and barbarous treatment need not be shown.
    2. Refusal of sexual intercourse is not a ground for divorce in Pennsylvania.
    3. It is not sufficient ground for a divorce that when the husband made overtures to his wife or touched her when they were in bed together she would scream, loud enough to be heard by other persons in the house, and would cover herself up with the bedclothes and threaten to kill herself if her husband did not discontinue his approaches, or sometimes would jump out of bed and leave the room, at times going downstairs and out on to the porch in her nightclothes; that when her husband tried to reason with her she gave no excuse for her conduct, but requested him not to insist on having sexual intercourse with her, saying that then they would get along “fine;” that the wife told her mother and her husband’s mother that she never would have sexual intercourse with her husband; that upon one occasion she had her mother occupy the same bed with her and her husband, and at another time she took a young girl to bed with them; and that the situation was talked over generally by the mothers of the libellant and respondent.

      4. What acts or course of conduct will amount to such indignities as will justify the court in granting a decree of divorce seems to be nowhere defined, and they may be incapable of specification oi exact definition, but they must be such as, in the language of the act, render the libellant’s condition intolerable or life burdensome.
    5. A divorce will not be granted a husband where the indignities alleged are of a light and trivial nature, are such as the husband himself has provoked by his insistence upon having sexual intercourse with his wife, and are so unimportant in their effect as indignities under the law as to fail to justify the conclusion that the allegations in the libel have been sustained, and that the libellant’s alleged wrongs are such as to warrant the granting of a divorce.
    6. Divorce is purely a statutory right, and relief can be granted only where an actual statutory cause has been made to appear.
    In divorce. C. P. Fayette Co., June T., 1921, No. 7.

      J. Kirk Renner, for libellant; F. E. Younkin, lor respondent.
    May 31, 1921.
   Van Swearingen, P. J.,

This application is by the husband for a divorce from his wife on the ground, as set forth in the libel, that “the respondent has, since their marriage and until the present time, subjected the libellant to such indignities as to render his condition intolerable and his life burdensome.” The libel was filed under the Act of June 25, 1895, P. L. 308, making it lawful for the court to grant a divorce “where a wife shall have, by cruel and barbarous treatment or indignities to his persons, rendered the condition of her husband intolerable or life burdensome.” The wife filed an answer denying the alleged indignities, and at the hearing before the master she was represented by counsel, but she did not appear in person or offer any testimony. On the evidence on behalf of the libellant the master filed a report, finding as a fact that the respondent has subjected the libellant to such indignities to his person as to render his condition intolerable and his life burdensome, and recommending a decree of divorce.

The question has been raised at the threshold of the case whether the libellant is not bound to allege and prove, not only indignities to the person, but also cruel and barbarous treatment, it being alleged to have been said by the courts where the libel was by the husband that both of these statutory elements must concur. It is true it was said by President Judge Rice in Fay v. Fay, 27 Pa. Superior Ct. 328, and in Schulze v. Schulze, 33 Pa. Superior Ct. 325: “The acts or conduct of the wife towards her husband that will entitle the latter to a divorce under the clause of the statute now being considered must be not only such as render his condition intolerable or life burdensome, but such as amount to cruel and barbarous treatment. Both of these statutory elements must concur. If by other means, which do not constitute legal cruelty, his condition is rendered intolerable, this clause of the statute does not apply.” But in each of those cases a divorce was sought on the ground of cruel and barbarous treatment under the statute, and indignities to the person were not alleged. The force of Judge Rice’s statement evidently was to the effect that the cruel and barbarous treatment required to be proved was in addition to proof of intolerable conditions; This is made clear in Biddle v. Biddle, 50 Pa. Superior Ct. 30, where a divorce was sought by the husband on grounds of cruel and barbarous treatment and indignities to the person, and where, in delivering the opinion of the court, Judge Henderson said: “The complainant assumes the burden of showing by a preponderance of the credible competent evidence that the respondent has been guilty of one or both of the charges contained in the libel. The conduct of the wife that will entitle her husband to a divorce for the first cause set forth in the complaint must be not only such as renders his condition intolerable or life burdensome, but such as amounts to cruel and barbarous treatment. Both of these statutory elements must concur.” And such is the substance of the language used by Judge Orlady in Egolf v. Egolf, 53 Pa. Superior Ct. 254, where both cruel and barbarous treatment and indignities to the person were alleged in the libel.

The question is set at rest in Ponthus v. Ponthus, 66 Pa. Superior Ct. 257, 259, where a divorce was sought by a husband on grounds of indignities to the person only, and where, in delivering the opinion of the court, it was said by Judge Porter: “The report shows that the conclusion of the master was based upon the theory that in this proceeding' it was incumbent on the libellant to show not only that the conduct of the respondent was such as to render his condition intolerable or life burdensome, but also such as to amount to cruel and barbarous treatment; that both of these statutory elements must concur. In this we think that the learned master fell into error. It is important to notice that ‘indignities to the person’ and ‘cruel and barbarous treatment’ are two distinct causes of divorce. Prior to the Act of 1895, the law did not invest the courts with jurisdiction to grant a divorce to a husband upon the ground of ‘indignities to the person.’ The Act of May 8, 1854, P. L. 644, did confer jurisdiction to grant a divorce to a husband ‘where the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome.’ The amendment of this statute, by the Act of 1895, clearly indicates it to be the legislative intention that ‘indignities to the person’ which rendered the condition of a husband intolerable or life burdensome should be a cause for a divorce, even although they did not necessarily involve ‘cruel and barbarous treatment.’ ”

In Fay v. Fay, 27 Pa. Superior, Ct. 328, President Judge Rice said it was important to notice that, under the Act of 1895, “indignities to the person” and “cruel and barbarous treatment” are two distinct causes of divorce, and that in Butler v. Butler, 1 Parson’s Select Equity Cases, 329, Judge King arrived at this construction of the words “cruel and barbarous treatment” in the Divorce Act of March 13, 1815, 6 Sm. Laws, 286, which is applicable also to subsequent divorce acts: “That the cruelty within our statute which entitles a wife to a divorce from her husband is actual or personal violence or the reasonable apprehension of it, or such a course of treatment as endangers her life or health and renders cohabitation unsafe.” And that definition has been followed ever since: McMahen v. McMahen, 186 Pa. 485.

The evidence in the present case shows that the libellant and respondent were married on Feb. 23, 1921. They lived together six days and then separated, and the libel of the husband for a divorce was filed on March 8, 1921. The alleged indignities complained of by the husband are constituted almost wholly by his wife’s refusals to permit him to have sexual intercourse with her. The libellant did not at any time subsequent to their marriage have sexual intercourse with his wife. She gave him no reason for refusing his solicitations in that respect. When he would make overtures to her or touch her when they were in bed together, she would scream, loud enough to be heard by other persons in the house, and would cover herself up with the bedclothes and threaten to kill herself if her husband did not discontinue his approaches; or sometimes she would jump out of bed and leave the room, at times even going downstairs and out on to the porch in her nightclothes. When the libellant tried to reason with her, she gave no excuse for her conduct, but requested him not to insist on having sexual intercourse with her, saying that then they would get along fine. She told her mother and the libellant’s mother that she never would have sexual intercourse with her husband. On one occasion she had her mother occupy the same bed with her and her husband, and at another time she took a young girl to bed with them. The situation was known to, and talked over generally by, the mothers of the libellant and respondent, neither of whom, however, was able to persuade the respondent to change her mind in the matter, although both of them advised her to do so, and remonstrated with her in the course she was pursuing. The only indication as to the reason for respondent’s actions was a statement made by her to the libellant’s mother to the effect that she was afraid she was not like other women, that she was “not very large,” and, apparently, she feared to permit herself to become pregnant. Both of the older women testified that physically she was normal and all right. There was no evidence that anybody outside of the immediate families learned anything about the trouble between the libellant and respondent.

Refusal of sexual intercourse is not a ground for divorce in Pennsylvania: Eshbach v. Eshbach, 23 Pa. 343; Johnson v. Johnson, 31 Pa. Superior Ct. 53; Platt v. Platt, 38 Pa. Superior Ct. 551; Hexamer v. Hexamer, 42 Pa. Superior Ct. 226; Cunningham v. Cunningham, 60 Pa. Superior Ct. 622; Klopfer’s Appeal, 1 Monaghan, 81; Magill v. Magill, 3 Pitts. R. 25. The master in his report concedes that to be true. But the master was of opinion that the refusal of this wife to have sexual intercourse with her husband constituted an indignity, and that, taken with other indignities which he was of opinion appeared in the case, to wit, her screams at night, and threats to kill herself, her telling of the matter to her mother and to her husband’s mother, her running out of the house in her nightclothes, and her taking her mother and the young girl to bed with her, constituted sufficient ground upon which to warrant the granting of a divorce. We are not convinced, however, of the correctness of that conclusion.

“The cruel and barbarous treatment and indignities to the person, gendering the condition of the husband intolerable or life burdensome, which are, by the Act of June 25, 1895, made a cause for divorce, relate to the treatment of the husband by his wife and her conduct toward him personally:” Hexamer v. Hexamer, 42 Pa. Superior Ct. 226. What acts or course of conduct will amount to such indignities as will justify the court in making a decree of divorce seems to be nowhere defined, and perhaps they are incapable of specification or exact definition, but they must be such as, in the language of the act, render the libellant’s condition intolerable and life burdensome: May v. May, 62 Pa. 206; Crawford v. Crawford, 64 Pa. Superior Ct. 30; Cantor v. Cantor, 70 Pa. Superior Ct. 108. “Divorces are not to be granted upon the ground of ‘indignities to the person’ which are of a light and trivial nature, nor the result of mere occasional outbursts of temper; they must be such as amount to an habitual course of conduct which necessarily renders the condition of the conjugal partner intolerable and life burdensome. The indignities of which a husband complains must not be such as he himself has provoked:” Ponthus v. Ponthus, 66 Pa. Superior Ct. 257. In Cantor v. Cantor, 70 Pa. Superior Ct. 108, it was held that a husband was not entitled to a divorce from his wife, who had syphilis, where it appeared that, as soon as she discovered that she had the disease, she immediately withdrew from the marital relation, the husband not having contracted the disease from her. In Whiffen v. Whiffen, 72 Pa. Superior Ct. 593, an application for a divorce by a husband on grounds of indignities to the person and cruel and barbarous treatment was refused, where the evidence showed that the facts on which the libellant relied were so negative in character and so unimportant in effect as to justify the conclusion that the allegations in the libel were not sustained, and that the libellant’s alleged wrongs were not such as to warrant the granting of a divorce.

We conclude, therefore, under the evidence, that it has not been proved that the respondent has been guilty of such indignities to the person of her husband as to render his condition intolerable and life burdensome. Refusal of sexual intercourse of itself not being sufficient to warrant the granting of a divorce, and of itself not constituting an indignity under the Act of June 25, 1895, P. L. 308, under which this application is made, it is difficult to discover any overt act or word on the part of the respondent that will amount to an indignity to the person of her husband. The alleged indignities suggested by the master are of the lightest and most trivial nature, if, indeed, they constitute indignities at all, and they were such as the libellant himself provoked by his insistence upon having sexual intercourse with his wife. As his ownt testimony shows, his wife requested him not to insist on having sexual intercourse with her, saying that then they would get along fine. His persistence in the matter caused her screams at night, and her threats to kill herself, and was the occasion of her leaving the bed at times and going downstairs and sometimes out on to the porch in her nightclothes, and resulted in the respondent’s making known the trouble between herself and her husband to her mother and to her husband’s mother, and, finally, in her bringing her mother or the young girl to bed with her, although there is no evidence that the girl was old enough to know or understand the purpose of her presence there. These matters are so unimportant in their effect as indignities under the law that they fail to justify the conclusion that the allegations in the libel have been sustained and that the libellant’s alleged wrongs are such as to warrant the granting of a divorce. The libellant was rather hasty in instituting this proceeding. In Hexamer v. Hexamer, 42 Pa. Superior Ct. 226, the husband on the wedding night and for two months thereafter was denied sexual intercourse with his wife, she having a morbid fear of childbirth, yet later a child was born. And the other indignities there complained of apparently were of more merit than those shown here, but a divorce there was refused. As said in Cantor v. Cantor, 70 Pa. Superior Ct. 108, divorce is purely a statutory right, and relief can be granted only where an actual statutory cause has been made to appear.

And now, May 31, 1921, for the reasons stated in the opinion herewith filed, the finding of the master that the respondent has subjected the libellant to such indignities to his person as to render his condition intolerable and his life burdensome, and the master’s recommendation of a decree of divorce, are overruled, a decree of divorce is refused and the libel is dismissed.

From Luke H. Frasher, tTniontown, Pa.