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+"{\"id\": \"1008532\", \"name\": \"McDyer v. Eastern Pennsylvania Railways Company, Appellant\", \"name_abbreviation\": \"McDyer v. Eastern Pennsylvania Railways Co.\", \"decision_date\": \"1910-03-07\", \"docket_number\": \"Appeal, No. 192\", \"first_page\": \"641\", \"last_page\": \"648\", \"citations\": \"227 Pa. 641\", \"volume\": \"227\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T19:53:29.462159+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.\", \"parties\": \"McDyer v. Eastern Pennsylvania Railways Company, Appellant.\", \"head_matter\": \"McDyer v. Eastern Pennsylvania Railways Company, Appellant.\\nNegligence \\u2014 Street railways \\u2014 Contributory negligence \\u2014 Oblique angled collision \\u2014 Vehicles\\u2014Milk dealer.\\n1. In an action to recover damages for the death of a milkman who was struck by a trolley car while attempting between intersecting streets to cross from one side of a street to the other at an oblique angle over trolley tracks in the middle of the street, where the testimony of the son of the deceased, who was with him in the wagon, is that immediately before crossing the track they stopped about three feet from the nearest rail and looked and listened but did not see or hear a car; that they then started across the tracks very slowly; and that when the horse had cleared the tracks and about one minute after they had stopped and looked, a car ran into the rear wheel of the wagon, throwing deceased out and upsetting the wagon, pushing it possibly sixty or 100 feet; and where witnesses for the plaintiff testify that the car was going very fast, going from twenty-five to thirty-five miles an hour, that it was about 400 feet away when the horse was on the track, and a witness for the defense testifies that one could see in the direction from which the car approached at least 725 feet, the questions of negligence and contributory negligence are for the jury.\\nPractice, C. P. \\u2014 Evidence\\u2014Motion to strike out testimony \\u2014 Trial\\u2014 Physician \\u2014 Medical license \\u2014 Registration\\u2014Expert testimony \\u2014 Opinion based on conflicting testimony \\u2014 A ssignments of error \\u2014 Instructions.\\n2. After testimony has been received without objection, the refusal to strike it out is not reviewable. In such a case the only course is to request the court to instruct the jury to disregard the testimony and upon a refusal to assign error.\\n3. Where a physician, witness for plaintiff, states on cross-examination that he is licensed and duly registered in Pennsylvania and his testimony is admitted without objection, and thereafter counsel for defendant introduces evidence to show he is not a licentiate, followed by a motion to strike out all his testimony, the refusal of such a motion is not reviewable.\\n4. A doctor cannot be asked to express a professional opinion as to the cause of death based on the hearing of testimony which is conflicting in many essentials.\\n5. An expert witness after being first acquainted with the whole of the particular part upon which he is to pronounce, may be asked to express an opinion upon any defined portion of the testimony, which is not contradictory in itself, and the truth of which is expressly assumed; but he may not be asked to first ascertain and determine the conflicting elements, and then to express an opinion upon his conclusion.\\nPractice, C. P. \\u2014 Evidence\\u2014Earnings\\u2014Husband and, wife.\\n6. The question, \\u201cWhat were the average net earnings of deceased in a year during the time he was engaged in the milk business, per year, if you know?\\u201d addressed to the wife of the deceased, is relevant and competent, although the testimony sought to be elicited, standing alone, would not be sufficient to base an estimate of damages upon.\\nPractice, C. P. \\u2014Trial\\u2014Charge\\u2014Abstracts from charge.\\n7. Abstracts from the judge\\u2019s charge must be read in connection with the charge as a whole.\\nArgued March 7, 1910.\\nAppeal, No. 192,\\nJan. T., 1909, by defendant, from judgment of C. P. Carbon Co., Oct. T., 1908, No. 28, on verdict for plaintiff in case of Mary McDyer v. Eastern Pennsylvania Railways Company.\\nBefore Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.\\nAffirmed.\\nTrespass to recover damages for personal injuries resulting in death. Before Heydt, P. J.\\nVerdict and judgment for plaintiff for $6,000. Defendant appealed.\\nThe opinion of the Supreme Court states the case.\\nErrors assigned were in refusing to strike out testimony; in refusing to permit certain physicians called by the defense to testify as experts; and to portions of the charge of the court.\\nB. II. Koch, with him Frederick Bertolette, for appellant. \\u2014 -\\nThe testimony of the doctors called based upon a knowledge of all the medical testimony in the case was clearly admissible: Good v. Good, 1 Mona. 718; Yardley v. Cuthbertson, 108 Pa. 395; Olmstead v. Gere, 100 Pa. 127; Burkholder v. Tyson, 1 Berks, 37.\\nThe deceased was bound to look until he got to the rail, and to keep on looking: Ehrisman v. Ry. Co., 150 Pa. 180; Omslaer v. Traction Co., 168 Pa. 519; Burke v. Traction Co., 198 Pa. 497; Boring v. Traction Co., 211 Pa. 594; Timler v. Transit Co., 214 Pa. 475; Kannenberg v. Traction Co., 215 Pa. 555; Houston v. Traction Co., 28 Pa. Superior Ct. 374; Sontum v. Railway & Light Co., 226 Pa. 230; Smathers v. Ry. Co., 226 Pa. 212; McKee v. Harrisburg Traction Co., 211 Pa. 47.\\nProfits derived from an investment or the management of a business enterprise are not earnings: Goodhart v. R. R. Co., 177 Pa. 1; Miller v. Gas Co., 206 Pa. 254; Wallace v. R. R. Co., 195 Pa. 127.\\nE. O. Nothstein, with him Wm. G. Freyman, for appellee.\\u2014\\nThe refusal of a motion to strike out evidence received without objection is not re viewable: Yeager & German v. Weaver, 64 Pa. 425; Montgomery v. Cunningham, 104 Pa. 349.\\nThe case was for the jury: Boggs v. Railway Co., 216 Pa. 314; Mortimer v. Traction Co., 216 Pa. 326; Hamilton v. Traction Co., 201 Pa. 351; Woelfel v. Railway Co., 183 Pa. 213; Reilley v. Traction Co., 176 Pa. 335; Holt v. Railroad Co., 206 Pa. 356; Kroesen v. Ry. Co., 198 Pa. 26.\\nWhere loss of earning power is one of the principal items of damages the evidence presented should be sufficiently explicit to enable the jury to form an intelligent judgment: Wallace v. Penna. Co., 219 Pa. 327.\", \"word_count\": \"2856\", \"char_count\": \"16191\", \"text\": \"Opinion by\\nMr. Justice Moschzisker,\\nMarch 28, 1910:\\nMary McDyer, widow of James McDyer, recovered a ver diet for an injury to her husband resulting in his death al leged to have been caused by the negligence of the defendant company. The defendant has appealed.\\nJames McDyer was a milk dealer: On the day of the accident he was driving a one-horse wagon, and was accompanied by his son, a lad of seventeen. He had served a customer on the south side of a certain street, in the middle of which was a trolley line. He drove a short distance and before reaching the next intersecting street attempted to cross the trolley tracks at an oblique angle in order to get on the opposite side to serve another customer. According to the testimony of the son, immediately before crossing they stopped about three feet from the nearest rail and looked up and down the trolley line; he was listening, but did not see or hear any car; they then started across the tracks \\\"very slowly\\\"; when the horse had cleared the tracks and the wagon was between them, a car ran into the rear wheel; he says it was about one minute from the time they stopped and looked until they were struck by the car. The wagon was upset and pushed possibly sixty to 100 feet, McDyer being thrown out and so injured that he died about two and one-half months thereafter. Each side produced a number of witnesses, and there was much conflicting testimony, but the plaintiff's witnesses in a general way bear out the story as we have given it. One witness for the plaintiff stated that the car was going very fast; and another that just as the team crossed the track he saw the top of the car over the crest of the hill, and that it came at a rate between twenty-five and thirty-five miles an hour. Another witness stated that the car was about 400 feet away when the horse was on the track; and a witness for the defense testified that one could see in the direction from which the car approached at least 725 feet. On this state of facts it cannot be said as a matter of law that the motorman was free from negligence, or that McDyer was guilty of contributory negligence. Both of these points were for the jury, and were properly submitted in a comprehensive charge. McDyer was not bound to stop before crossing the track, but he did so; and we have positive testimony that he looked at a point about three feet from the nearest rail, and that his companion listened. In the absence of testimony to the contrary, the deceased is entitled to the presumption that he continued to exercise care by looking and listening; and whether or not this presumption was overcome would be for the jury to decide on all the evidence in the case. The only other person in the wagon was produced as a witness and could have been cross-examined on this point had counsel for the defense so desired. This is not a clear case where we can say that the story told by all of the plaintiffs witnesses is impossible and the car must have been in sight when McDyer entered upon the track. A car traveling at the rate of fifteen miles an hour will cover twenty-two feet in one second: Piatt v. Pittsburg Rys. Co., 219 Pa. 583. Here we have testimony that the car was traveling at least thirty miles an hour, which would be forty-four feet in one second, or over 800 feet in twenty seconds. That McDyer had to drive slowly and with care is made apparent by the testimony, \\\"because the rails and sills were so high it would smash your wagon to pieces if you drove fast.\\\" Under these circumstances we cannot say that he was obliged to give his exclusive attention to the possible approach of a trolley car which was not in sight when he started to cross the tracks. Nor can we say that he must have cleared the tracks in twenty seconds or less. On the other hand, we have the testimony produced by the defendant that the trolley car could. be stopped within the distance of sixty feet, and that there was a clear view on the track of over 700 feet. On the testimony as a whole the jury may have concluded that there was no car in sight when he first entered the tracks, or that the car was then at least 700 feet away; that the motorman must have seen the wagon, and had ample time to stop if he had kept his car under proper control. If so, they had the right to find that the motorman was guilty of negligence, and that McDyer was not guilty of contributory negligence.\\nMuch of the argument of counsel for the appellant goes to the weight of the evidence on the various points involved. Whether or not the jury properly weighed the evidence should have been submitted to the court below on a motion for a new trial; and this, so far as the record in the paper-book reveals, was not done.\\nIt is complained that the court erred in overruling defendant's objection to the question addressed to the plaintiff : \\\" What were the average net earnings of Mr. McDyer in a year during the time he was engaged in the milk business, per year, if you know? \\\" We see no error in the ruling. Although the testimony sought to be elicited, standing alone, would not have been sufficient to base an estimate of damages upon, yet the question itself was clearly relevant and competent, and the witness was in a position to give the desired information. As this is the only assignment going to the sufficiency of the evidence on the question of the proof of the damages, we will not further discuss that branch of the case.\\nOn cross-examination as to his qualifications as a physician, Dr. Gallagher, a witness for the plaintiff, stated that he had been licensed and duly registered in Pennsylvania and his testimony was admitted without objection. He stated that he was the attending physician, and gave the details as to McDyer's condition and ailments, expressing the opinion that the patient had died as a result of his injuries from the accident. After this, counsel for the defendant produced evidence to show that Dr. Gallagher was not a licentiate of the medical council of Pennsylvania, and that his statements to the contrary were untrue; which was followed by amotion to strike out all of his testimony.- This was refused, the trial judge stating: \\\"The court declined to strike out the testimony of Dr. Gallagher. He was one of the physicians who attended upon Mr. McDyer, the deceased, and he was the physician de facto if not de jure. It may affect his credibility, but it would not be a warrant for the court to strike out his testimony, the fact he was not registered.\\\" After testimony has been received without objection, the refusal to strike it out is not reviewable. In such a case the only course is to request the court to instruct the jury to disregard the testimony, and upon a refusal, to assign error: Ashton v. Sproule, 35 Pa. 492; Oswald v. Kennedy, 48 Pa. 9; Yeager & German v. Weaver, 64 Pa. 425; Geist's App., 104 Pa. 351. In these days when there is a possible tendency to abuse the privilege of informing the court and jury by medical experts, where one is convinced in any particular instance that the testimony from such a source is in any respect impossible, insincere or unjustified, the matter should be called to the attention of the trial judge by appropriate requests for charge, so that the court may be in a position to properly exercise discretion in submitting the evidence to the jury; but in the present case this course was not pursued. For the reasons stated the assignments going to the point in question cannot be sustained. Before leaving the subject it is but fair to say that the testimony shows Dr. Gallagher to lie a graduate of a medical school of standing in Pennsylvania and a practitioner of many years.\\nSeveral doctors were called by the defendant, and after stating that they had either heard the evidence or read the notes of testimony of the witnesses named in the following question, they were asked: \\\"From your experience as a doctor and your knowledge of medicine, and the information you received from the evidence of Dr. Gallagher, supplemented by the evidence of Drs. Hill, Schnifferstein, and Young, do you have any fixed opinion as to the cause of McDyer's death?\\\" In each instance an objection to this question was sustained. All of the doctors mentioned, with the exception of Dr. Gallagher, were witnesses for the defendant, and their testimony was conflicting in many essentials with the testimony given by him. An expert witness, after being first acquainted with the whole of the particular part upon which he is to pronounce, may be asked to express an opinion upon any defined portion of the testimony, which is not contradictory in itself, and the truth of which is expressly assumed; but he may not be asked to first ascertain and determine the conflicting elements, and then to express-an opinion upon his conclusion: Yardley v.- Cuthbertson, 108 Pa. 395. As the question was framed, this is precisely what the witnesses would have been obliged to do, and for that reason the objection was properly sustained.\\nIn the fifth, sixth and seventh assignments counsel for the defendant complains of three short abstracts from the charge of the trial judge. When these portions are read in connection with the charge as a whole, the criticisms made are found to be unwarranted. The plaintiff's case to a degree rests upon the presumption, to which she was entitled, that the decedent acted with care, and therefore the trial judge made no misstatement of fact in saying that the contention was that McDyer approached the track carefully, and that he listened. As this was followed by a fair statement of the contentions of the defense, and by full instructions as to the care which McDyer was bound to take in order to avoid contributory negligence, no harm could possibly have been done by the manner in which the plaintiff's contention was stated. The charge contains an ample statement of the law on the measure of damages. It is true that the abstract assigned for error simply refers to the sum total of decedent's net yearly earnings as stated in the testimony of his widow; but there was considerable other testimony in detail upon this subject which counsel could have had called to the attention of the jury had he submitted proper requests to the trial judge. Not having pursued this course, he is not in a position to complain.\\nUpon the whole case we discover no reversible error, and no useful purpose will be served by a further discussion of the assignments. They are all overruled and the judgment is affirmed.\"}"

pa/1017270.json

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+"{\"id\": \"1017270\", \"name\": \"The Pennsylvania Railroad Company versus Goodman\", \"name_abbreviation\": \"Pennsylvania Railroad v. Goodman\", \"decision_date\": \"1869-07-06\", \"docket_number\": \"\", \"first_page\": \"329\", \"last_page\": \"339\", \"citations\": \"62 Pa. 329\", \"volume\": \"62\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:18:45.914530+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Pennsylvania Railroad Company versus Goodman.\", \"head_matter\": \"The Pennsylvania Railroad Company versus Goodman.\\n1. If a traveller in crossing a railroad is injured either by his own misfortune or fault, the company is not liable.\\n2. Where a traveller is injured crossing a railroad on a public road, negligence is not to be presumed against the company.\\n3. In such case each is in the lawful use of a highway; the traveller is bound to^approach the railroad cautiously and to' observe the approach of trains, and the company to give proper and timely warning of their coming.\\n4. In an action by a husband for the death of his wife by negligence the court charged: \\u201c That damages should be given as a pecuniary compensation, the jury measuring the plaintiff\\u2019s loss by a just estimate of the services and companionship of the wife, of which he was deprived by this accident; that is, of their value in a pecuniary sense \\u2014 nothing is allowable for the suffering of the deceased, nor for the wounded feelings of the plaintiff. Of course, the j ury will examine the testimony to aid them in ascertaining the damages. But if damages are to be given at all, there is no reason why they should be nominal merely; they should be a just compensation for the value of the companionship and services lost to him by reason of this unfortunate collision.\\u201d Held not to be error.\\nMay 24th and 25th 1869. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Bead, J., absent.\\nError to the Court of Common Pleas of Lancaster county: No. 42, to May Term 1868. <\\nThis was an action by Jacob K. Goodman against The Pennsylvania Railroad Company for negligence which occasioned the death of his wife. On the 5th of November 1864, about 3 o\\u2019clock P. M., the plaintiff, who was a farmer, and his wife were riding in a small market-wagon without a top, drawn by one horse. They were returning from Lancaster to their home, about, ten miles distant, on a much travelled road known as the Colebrook road. About four or five miles from Lancaster the railroad of the defendants crosses the Colebrook road. As the plaintiff and his wife were crossing the railroad at this point, the \\u201cEast Line\\u201d of the defendants struck the hinder part of the plaintiff\\u2019s wagon, upset and broke it, threw him and his wife out, and so injured her as to cause her death in a few hours. The case will be understood from the points of the parties, their answers, and the charge of Judge Hayes, who tried the ease below, and the opinion of the Supreme Court, without any further statement.\\nThe verdict was for the plaintiff for $9150.\\nThe following are points submitted by the plaintiff and their answers:\\u2014\\n2d point. \\u201c If the jury believe that the defendants approached this crossing at an imprudent, unreasonable and dangerous rate of speed (this crossing being upon the Colebrook road, being an ancient, well-known and much travelled road), this would be negligence for which they must answer.\\u201d\\nAnswer: \\u201cIf they did this without the observance of their own regulations, with respect to giving the proper signals for notice and warning, they were guilty of negligence, and if the plaintiff neglected no precaution he ought to have taken under the circumstances, they would be responsible in damages.\\u201d\\n4th point. \\u201c The rules of defendants requiring that notice shall be given a quarter of a mile off, by a railroad train approaching the crossing of a public road, the plaintiff had a right to expect such rules would be observed, and it not even being alleged that such notice was given in this case, negligence is admitted, and the plaintiff, in consequence thereof, would be excused from exercising the same vigilance called for under different circumstances.\\u201d\\nAnswer: \\u201c If such notice was not given, although the plaintiff would not be required to exercise the extreme caution which he would be if he heard the alarm, or saw and heard the train approaching, yet he was bound, as every man in crossing the railroad in ordinary prudence is bound, to look in all directions in which trains may approach, and to pause until he found he could cross with safety.\\u201d\\n9th point. \\u201c In estimating the damages and compensation of the plaintiff, the jury will consider all the circumstances, the situation, that of the family, the frugality, industry and usefulness of the wife 'and mother, and the loss to them, and also the charges and expenses incurred in consequence of the injury to her, and her death.\\u201d\\nAnswer: \\u201c I think the jury may take into consideration the facts and circumstances mentioned in this proposition, if they find the defendants, upon the entire evidence in' this case, responsible, when they are estimating the damages and compensation. of the plaintiff.\\u201d\\nThe following are points submitted by the defendants and the answers:\\u2014\\n6th point. \\u201cBefore the plaintiff can recover in this case he must show affirmatively that he stopped before he reached the. track, and looked along the same and saw no approaching train, and that there is no evidence whatever to sustain a finding that he so stopped or looked, and therefore the law presumes negligence on his part, and the verdict must be for the defendants.\\u201d\\nAnswer: \\u201c So far as this proposition involves the order of proof in the trial of the cause, it seems to. be unnecessary after the evidence is all before the jury, so far as it is intended to exhibit the onus probandi its correctness may be doubted. The plaintiff\\u2019s action may be sustained by showing his injury to have been done by the defendants, and to have been the consequence of their negligence; then the defendants may controvert the fact, and may show also in their defence that the injury was caused wholly or partially by the negligence of the plaintiff himself; and the defendants\\u2019 showing of this defeats his action.\\u201d\\n7th point. \\u201cIt is a fact established by the weight of the evidence in this case, that the approach of the westward-going train was clearly visible to a person passing northward on the Colebrook road for the distance of about 1700 feet along said road; the railroad itself, a single track railroad, being clearly visible for more than 2000 feet all the way to the crossing, and it was negligence in the plaintiff .not to have perceived its approach under these circumstances, he riding in an open wagon, between the hours of 2 and 8 o\\u2019clock in the afternoon, and that such negligence prevents his recovery in this case.\\u201d\\n8th point. \\u201cIt is shown by the evidence on both sides, and is a fact established by the weight of the evidence in this case, that the approach of a train from the east was both visible and audible to one passing along the Colebrook road from the south, at ample distance to have enabled one, either looking or listening, to have stopped in time to have prevented the possibility of a collision; and, under these circumstances, the law presumes negligence in the plaintiff, who was approaching the crossing in an open wagon, between the hours of 2 and 3 o\\u2019clock in the afternoon, and requires that the verdict should be for the defendants.\\u201d\\nAnswer: \\u201c That if, upon a full, careful and deliberate review of all the evidence in this case, the jury find that the approach of the westward-going train was clearly visible to a person passing northward on the Colebrook road, for the distance of about 1700 feet along the said road, the railroad itself, a single track railroad, being visible for more than 2000 feet all the way to the crossing, and that the plaintiff was riding in an open wagon along the Cole-brook road, between the hours of 2 and 3 o\\u2019clock in the afternoon, towards the crossing of the railroad; that the approach of the train from the east was both visible and audible to him, thus passing along the Colebrook road from the south, at ample distance to have enabled one, either looking or listening, to stop in time to prevent the possibility of a collision; if, under these circumstances, he did not stop, but drove on and thereby encountered the collision, these facts so found would amount to such negligence on the part of the plaintiff as would legally debar him from a recovery, and the verdict in that case should he for the defendants.\\u201d\\n9th point. \\u201c Upon the whole evidence, the law of the case is with the defendants, and the plaintiff cannot recover.\\u201d\\nAnswer: \\u201c If, upon the whole evidence, it is proved to the conviction of the jury that the plaintiff, in riding along the Colebrook road, towards the crossing, might have seen, if he had looked for the approaching train, and that he either did not look, or seeing, did not regard its approach, nor stop, but drove forward, and was. struck by it on the crossing, this state of facts would, in point of law, constitute negligence on his part, and prevent his recovery in this suit.\\u201d\\n10th point. \\u201c Damages, if recoverable at all, are to be strictly limited to a pecuniary compensation for a pecuniary loss suffered by the plaintiff, and nothing can be allowed for the suffering of the deceased, or as solace for the wounded feelings of the plaintiff.\\u201d\\n11th point. \\u201c The jury are not at liberty to conjecture these damages, but must find their measure in the evidence actually given in the case, and, as the plaintiff has failed to furnish such proof, damages, if given at all, must be merely nominal.\\u201d\\nAnswer: \\u201c Damages in a case like this, where the plaintiff is entitled to recover, should he given as a pecuniary compensation, the jury measuring the plaintiff\\u2019s loss by a just estimate of the services and companionship of the wife of which he was deprived by this accident \\u2014 that is, of their value in a pecuniary sense \\u2014 nothing is allowable for the suffering of the deceased, nor for the wounded feelings of the plaintiff. Of course, the jury will examine the testimony to aid them in ascertaining the damages, as well as every other point in the issue they are trying. But if damages are to be given at all, there is no reason why they should be nominal merely; they should be a just compensation for the value of the companionship and services lost to him by reason of this unfortunate collision.\\u201d\\nThe court charged:\\u2014\\n\\u201c On the 6th of November 1864, Jacob K. Goodman and his wife, returning home from Lancaster, in the afternoon, came in collision with the fast train of the Pennsylvania Railroad Company passing west, at the intersection of the railroad with the public road or highway over which they were travelling, between 4 and 5 miles from this town; in consequence of which collision, his wagon was broken to pieces and his wife thrown out, caught upon the truck of one of the cars, dragged- to some distance, and crushed, bruised, and mangled to such an extent that she died in seven hours afterwards. The evidence, I think, has enabled you to follow both the train in its schedule speed of 27 miles an hour, and the plaintiff passing over the Colebrook road towards the crossing, at a rate of probably not more than 4 miles in the same time, and to have found a just and true idea of all the incidents accompanying the progress of each, up to the moment of the unfortunate collision.\\n\\u201c Had there been no testimony except what pertained to a single fact of the collision and its result in the injury and death of Mrs. Goodman, your investigation would have been directed to the inquiry alone, whether the injury was owing to the negligence of the defendants or their agents; and in that ease, if the plaintiff showed any want of care or due management on his part \\u2014 no matter how grievous and terrible his loss \\u2014 he would .not have been entitled to recover damages from the defendants.\\n\\u201c On the other hand, if, in such a case, he could have shown and convinced the jury that the company or their agents, the engineers and conductors of the train, had neglected any precautions they were bound to take, and that the accident and injury had occurred in consequence of their negligence, he would be entitled to recover such damages by the verdict of the jury as would afford a pecuniary compensation for his loss.\\n\\u201c If, therefore, the jury, after sifting all the evidence in this case, should come to the conclusion that there was no undue want of care and precaution on the part of the defendants or their agents in approaching the intersection of the Colebrook road with the railroad, on the occasion when this collision took place, the plaintiff would not be entitled to recover.\\n\\u201c But should you believe that something was omitted by them, which they ought to have done, that there was some fault, some negligence in their proceedings, then you will inquire whether the plaintiff encountered this great misfortune by any want of care, of proper vigilance, or by any fault on'his part; whether he did anything or omitted anything, the doing or omission of which contributed to the accident. If he did, though there were negligence or fault on the part of the defendants, yet he cannot recover. If the plaintiff, in driving towards the crossing, heard the train and saw it approaching, and instead of stopping, drove on, under a mistaken belief that he could cross the railroad before it reached the intersection, the fault of such miscalculation was his own, and a proof of such negligence as would prevent a recovery against the defendants. If he saw and heard the train, and yet drove so near that his horse became ungovernable, and ran upon the railroad, it was his fault not to have stopped his horse further from the railroad, and was such negligence as would preclude a recovery by him.\\n\\u201c If, from the relative situation of the Colebrook road and the railroad in the neighborhood of this crossing, the plaintiff, driving along the former towards the intersection, could with ordinary care and attention have seen and heard the train for such a distance on its approach as to have checked his horse, and remained at a safe distance until the train passed by, and he took no care and paid \\u2022 no attention and drove heedlessly on and encountered the collision, this was such negligence as the law condemns, and would preclude him from recovering any damages in a suit against the defendants.\\n\\u201c In all these cases, though there may have been some fault or neglect on the part of the defendants, yet the plaintiff cannot recover because his own negligence contributed to the disaster, and the law is clear that if such be the case, he can have no just claim of damages from another.\\n\\u201c The law is founded in reason, is held to be, and ought to be, the perfection of reason. It is reasonable and just that no man should derive advantage from his own wrongdoing; that no man should claim a benefit from his own mistake; that as no man can come into court seeking equity but with clean hands, so no man should be allowed to recover from another for hurt or damage suffered by him from an accident occasioned wholly or in part by his own misconduct, mistake or carelessness.\\n\\u201c If it be wholly the effect of his own fault, there cannot be a shadow of doubt that his complaint .against another is perfectly groundless, and if he has united by his carelessness or recklessness or want of caution in producing the disaster \\u2014 if, says the law, he has contributed to it \\u2014 the wrong is his own, and he has no right to complain, and no cause of action.\\n\\u201c I thus lay down the law as applicable to cases of this sort. The questions which are raised in regard to the actual history of this case, I leave to the jury, whose province it is to decide them, and who are under a solemn obligation to decide them according to the evidence; that is to, say, you are bound to find the real truth of the facts guiding jour judgment by all the testimony in the case. In considering the diverse statements of the witnesses, you are the sole judges of their credibility, and you also must determine for yourselves the weight to whic\\u00edi their testimony is entititled, where there is a conflict or contrariety in the statements, as there may be without contradiction, as in eases of affirmative and negative testimony, when, for instance, one passenger swears he heard the alarm whistle at a certain time, and another swears that he did not hear it \\u2014 both may speak the truth, though their testimony be diverse; yet in such a \\\"case the whistle did sound, otherwise he who swore that he heard it did not speak truly.'\\n\\u201c And it is a general duty, where there is a contradiction among witnesses, to reconcile the evidence, if possible, and to ascertain the truth by the most careful scrutiny of all the testimony given; the whole testimony, in other words, must be carefully examined by the jury, and the truth must be found as shown by all the evidence thoroughly sifted and-weighed. Of the facts of sounding the alarm whistle by the defendants\\u2019 agents in their train, when approaching the intersection of their road with the Colebrook road, at the proper time, according to the company\\u2019s regulations and in the proper manner, and of the actual speed with which they approached the crossing,, you are thus to judge. Of'the facts with respect to the relative situation of'the two roads, the opportunity of seeing and hearing the approaching train by the plaintiff when driving along the Colebrook road to this crossing; of his having seen and heard the train; whether he tried to cross before it passed, seeing and hearing its approach, or not, you are also to judge by the same means.\\n\\u201c After commending this case to your most careful consideration, I have only to add, that if you should arrive at the conclusion that, according to the evidence in regard to the facts and the law as given to you by the court applicable to the facts which you find to be proved, the plaintiff is entitled to recover, you will inquire and assess the amount of the damages to be awarded to him for the injury he has sustained. The law is, that the damages for such an injury are to be a pecuniary compensation, to be measured by the value of the loss of service and companionship sustained by the plaintiff. -There is evidence before you hi relation to the condition of the family of the plaintiff, his occupation and business, the age, health and character of his wife for industry and careful management. These are all considerations that may enable you to form a correct judgment as to the amount of damages you should award the plaintiff if, according to the law and the evidence, he ought to recover.\\n\\u201c You will have observed, from what has been said, that the natural and. convenient course of your inquiries will be:\\n\\u25a0 \\u201c 1. To consider whether, according to the evidence, negligence on the part of the defendants, or their agents, has been proved in this case. If it has not, you need'not inquire further, but your verdict should be for the defendants.\\n\\u201c 2. If it has, then you will inquire whether the evidence shows that there was also negligence on the part of the plaintiff contributing to this disaster. If there was such negligence, then your investigation will there terminate, and you should find a verdict for the defendants.\\n\\u201c 3. But if negligence be proved on the part of the defendants, and it be not proved that there was negligence on the part of plaintiff, then your verdict ought to be for the plaintiff; and you should proceed to ascertain the damages which will afford him a just pecuniary compensation for his loss.\\u201d\\nThe defendants removed the case to the Supreme Court, and there assigned for error the answers to the points as given above.\\nGr. F. Brenneman and T. Quyler, for plaintiffs in error.\\nThe defendants had a right to change their own regulations : Skelton v. London and N. W. Railway Co., Law Rep. 2 C. P. 631. As to measure of damages: Penna. Railroad Co. v. Kelly, 7 Casey 372; Same v. Zebe, 9 Id. 318; Same v. Ogier, 11 Id. 60; Heil v. Glanding, 6 Wright 493; Penna. Railroad v. Vandever, 12 Casey 298. On the facts, negligence on the part of the plaintiff was a conclusion of law: Railroad Co. v. McClurg, 6 P. F. Smith 297. The law required the plaintiff to prove affirmatively that he stopped and looked along the track: Catawissa Railroad v. Armstrong, 13 Wright 191; Gahagan v. B. & L. Railroad, 1 Allen 190; Wilson v. Charlestown, 8 Id. 187; Shaw v. B. & W. Railroad, 8 Gray 73; Warren v. Litchburg Railroad Co., 8 Allen 137; Butterfield v. Western Railroad Co., 10 Id. 532; O\\u2019Brien v. The Philada. Wilmington & Balt. Railroad Co., 3 Phila. R. 76. The plaintiff is chargeable with knowledge if he had such opportunities of knowledge as with ordinary caution would have saved him from danger: Penna. Railroad v. Henderson, 7 Wright 453; Stubley v. London and N. W. Railway Co., Law Rep. 1 Exch. 13 ; P. F. W. & C. Railroad v. Evans, 3 P. F. Smith 250 ; Heileman v. The N. P. Railroad Co., 13 Wright 60; Telfer v. The Northern Railroad Co., 1 Vroom 188.\\nO. J. Dickey and N. Fllmaker, for defendant in error.\\nThe question of negligence was for the jury: Philada. & T. Railroad v. Hagan, 11 Wright 248; Steamboat N. World v. King, 16 How. 469. Not blowing the whistle was negligence: Penna. Railroad v. Ogier, 11 Casey 71; Reeves v. Del. Lackaw. & W. Railroad, 6 Id. 454; Beatty v. Gilmore, 4 Harris 463; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 401.\\nJuly 6th 1869,\", \"word_count\": \"5186\", \"char_count\": \"29213\", \"text\": \"The opinion of the court was delivered,\\nby Agnew, J.\\nThe verdict in this case appears to us to have been very unwarranted, and ought to have been set aside. The evidence of negligence on part of the plaintiff below in approaching the railroad crossing is very strong. An accurate survey of the road travelled by the plaintiff and the railroad has been made. Seventeen Jhundred feet of the Colebrook road by which the plaintiff approached the crossing has a descending grade to the railroad of 48 feet, diminishing gradually and with very little unevenness. The civil engineer, in walking these 1700 feet, kept his eye on the whistling post from which the train had come, and which stood 825 feet from the crossing, and he testifies he had the post in sight all the way to the crossing, except at a single spot where he lost the view, but could regain it by a single step backward or forward. The plaintiff's witnesses admit that the railroad track is in sight all the way except at a spot from 15 to 20 yards from the crossing. Thus, for 1700 feet the railroad is clearly in view until the traveller on the Colebrook road reaches within 60 feet of the crossing, and then the view is intercepted only a few feet. This was to the eyes of persons on foot; but the seat of an ordinary light wagon is about 4 feet from the ground, while to the eye of\\\" a man of ordinary height it is about 2J feet more from the seat, making about 6J feet from the ground, thus giving 'to one seated in a wagon a foot or more height. The speed of the train at this point was according to schedule-time 27 miles an hour, and by the testimony of the engineer and another, 28 miles. The speed of the plaintiff was 4 miles an hour or more \\u2014 but assume 4-|- miles. The train then travelled at a speed of 6\\u2020\\u00b6 greater than the plaintiff, the former going 41 feet in a second, and the latter 6\\u00a1% in the same time. Their relative distances from the crossing were therefore as follows: When-the plaintiff was 60 feet off the train was 372 feet \\u2014 plaintiff 133, the train at the whistling post 825 feet, and when the train was one-third of a mile 1760 feet off, the plaintiff was 284 feet. The civil engineer testifies that when standing at a point on the Colebrook road, 50 feet from the- crossing, he could see the rodmen on the railroad 1222 from the crossing \\u2014 at 150 feet he could see 1750 \\u2014 at 250 feet he could see to the mile-post 2000 feet from the crossing, and at the stable 734 feet, he could see along the railroad 2600, and more \\u2014 while at the top of the rise (1700 feet off) he could see from 3000 to 4000 feet along the railroad. Thus it is ascertainable, from the testimony of both sides, that when the train was 1760 feet from the crossing, and the plaintiff 284 feet, he could see the train approaching while he travelled 224 feet, until.ho reached the point 60 feet from the crossing where it is said the view is intercepted a few yards, and when he .had arrived at this point the train was within 372 feet of the crossing. The fact that he did see the train is also testified to by seven witnesses, of whom four were passengers having no interest in the suit, all of whom prove his admissions that he saw the train, but his horse became unmanageable, and he could not hold him. Another important fact is, that the locomotive struck the hind wheel of the wagon, showing that the plaintiff must have crossed just in front of#the train. Now, the seat of an ordinary wagon to the head of the horse is from 12 to 15 feet. Assuming the latter, and the train was within 93 feet when the horse came to the railroad. Thus we have the case of a traveller in an open wagon, in broad daylight, descending a gradual slope for more than a quarter of a mile within plain view of a railroad upon which a train could be seen coming at a great distance, meeting that train and crossing the track so exactly in time that the hind end of his wagon is-struck by the engine. There cannot be a doubt that the event happened either from the unruliness of the horse or from the most culpable negligence of the plaintiff in not looking out for a coming train. It was either his misfortune o.r his fault, for neither of which was the company liable. And as to the company, the weight of the evidence is, that the engineer gave the signal for crossing the road. Eight witnesses, of whom four were passengers, swear affirmatively that they heard the whistle. On part of the plaintiff, five Say they heard no whistle, and five that they heard a whistle at or near the crossing, which some called the downbrake signal. Thus one half contradict the other half, while those who say they heard the downbrake whistle are clearly mistaken, as from the testimony it is clear this train used the Lockridge patent chainbrake, which is controlled by the engineer on the engine. Handbrakes cannot be used with the patent brake, so that there is no need of a signal to the brakeman. The truth, therefore, clearly is, that five of the plaintiff's witnesses corroborate the defendants' witnesses, that the road signal was given, only differing in the place where it was given; to'wit, nearer to the crossing.\\nThis is not a case where negligence can be presumed against the railroad company, the plaintiff not being a passenger. Each party was in the lawful use of an appropriate highway, and each was bound to a correlative duty, the plaintiff to approach the crossing cautiously, and to observe the approach of trains, and the defendants to give the timely and proper warning of the coming of the train. From the facts before us we think the verdict ought to have been different and that the court below should have set it aside. Yet we perceive no means of reaching the injustice on a writ of error, without ourselves undertaking to decide the facts which fell within the province of the jury. The credibility of the witnesses, together with the varied facts and contradictions in the testimony, necessarily carried the case to them; and our difficulty is, we cannot say the court erred in point of law without deciding that the judge should have taken the facts from the jury and instructed them peremptorily that the plaintiff was guilty of concurring negligence. The charge of the court is fair and sound. A judge is not bound to express his opinion on the facts; though we think in this case he would have done a service to justice, had he pointed out to the jury with some emphasis the true attitude of the case on its facts.\\nLooking at the entire charge on the subject of damages, we think it clearly confined the damages to a pecuniary compensation for the loss of Mrs. Goodman's service. The court told the jury in express language that nothing is allowable for the suffering of the deceased, nor for the wounded feelings of the plaintiff. They said also that the plaintiff's loss was to be measured by a just estimate of the services and companionship of the wife. It is thought that this meant by way of solace for the loss of companionship. But all the judge said on this point made it evident he did not mean compensation by way of solace, and could not have been so understood by the jury. Companionship was evidently-used to express the relation of the deceased in the character of the service she performed. He merely meant to say that the loss should be measured by the value of her services as a wife or companion. The form- of expression perhaps was not the best selection of words, yet it certainly meant no more than that the pecuniary loss was to be measured by the nature of the service characterized as it was by the relation in which the parties stood to each other. Certainly the service of a wife is pecuniarily more valuable than that of a mere hireling. The frugality, industry, usefulness, attention, and tender solicitude of a wife and the mother of children, surely make her services greater than those of an ordinary servant, and therefore worth more. These elements are not to be excluded from the consideration of a jury in making a mere money estimate of value. Finding no error we can reach, the judgment must be affirmed.\"}"

pa/103159.json

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+"{\"id\": \"103159\", \"name\": \"Commonwealth v. Holloway, Appellant\", \"name_abbreviation\": \"Commonwealth v. Holloway\", \"decision_date\": \"1978-06-28\", \"docket_number\": \"Appeal, No. 1583\", \"first_page\": \"607\", \"last_page\": \"607\", \"citations\": \"257 Pa. Super. 607\", \"volume\": \"257\", \"reporter\": \"Pennsylvania Superior Court Reports\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:05:57.258281+00:00\", \"provenance\": \"CAP\", \"judges\": \"SPAETH, J., did not participate in the consideration or decision of this case.\", \"parties\": \"Commonwealth v. Holloway, Appellant.\", \"head_matter\": \"390 A.2d 292\\nCommonwealth v. Holloway, Appellant.\\nArgued March 22, 1978.\\nJay S. Gottlieb, for appellant; W. Turnoff, Assistant District Attorney, with him Edward G. Rendell, District Attorney, for Commonwealth, appellee.\", \"word_count\": \"48\", \"char_count\": \"331\", \"text\": \"Judgment of sentence affirmed.\\nSPAETH, J., did not participate in the consideration or decision of this case.\"}"

pa/1035032.json

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+"{\"id\": \"1035032\", \"name\": \"West Mahanoy Township's Contested Election\", \"name_abbreviation\": \"West Mahanoy Township's Contested Election\", \"decision_date\": \"1917-05-14\", \"docket_number\": \"Appeals, No. 260 and 261\", \"first_page\": \"176\", \"last_page\": \"180\", \"citations\": \"258 Pa. 176\", \"volume\": \"258\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T20:31:44.146605+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Brown, C. J., Mestrezat, Stewart, Mosctizisker and Frazer, ,JJ.\", \"parties\": \"West Mahanoy Township\\u2019s Contested Election.\", \"head_matter\": \"West Mahanoy Township\\u2019s Contested Election.\\nElections\\u2014Contests\\u2014Opening of ballot boxes\\u2014Fraud\\u2014Coercion \\u2014Illegal election. ' * ,\\n1. A petition for the opening of a ballot box should be refused where the petitioners fail to show fraud, irregularity, illegal voting, or illegal counting of votes.\\n2. An election is not to be held void for mere irregularities in the conduct of the election, even though the election officers may be'subject to punishment for misconduct; the rights of voters are not to be prejudiced by the errors or wrongful acts of election officers.\\n3. Where a fair election and honest count were prevented 'so that no election was legally held in an election precinct, the Returns from it may be thrown out.\\n4. The mere casting of fraudulent votes is not sufficient ground\\nfor throwing out returns from an election district, the remedy in such case being to eliminate by striking out fraudulent votes if possible. . >\\n5. At the hearing of an election contest it appeared that in a certain precinct the ballots, tally and return sheets and supplies were generally tampered with; that the records were illegally kept; that voters were threatened before the election and on election day, were prevented from voting, were intimidated,' were coerced by physical violence, were not allowed to vote as they wished, and that personal attacks under the direction of election officers, were made on voters, overseers and watchers while in the performance of their duties. Held, the court did not err in throwing out all the votes polled in such precinct.\\nArgued Feb. 27,1917.\\nAppeals, No. 260 and 261, January T., 1916, by Thomas McCoy and Frank J. Donahue, from order of Q. S. Schuylkill Co., decreeing null and void an election for school directors in Lost Creek precinct, In re Petition of Citizens of the Township of West Mahanoy, County of Schuylkill, to contest the election of Thomas McCoy to the office of School Director in said Township; and In Be Petition of Citizens of the Township of West Mahanoy, County of Schuylkill, to contest the election of Frank J. Donahue to the office of School Director in said Township.\\nBefore Brown, C. J., Mestrezat, Stewart, Mosctizisker and Frazer, ,JJ.\\nAffirmed.\\nPetition for an election contest. Before Brumm, J.\\nThe opinion of the Supreme Court states the facts.\\nThe court decreed that the election in Lost Creek precinct was null and void; threw out the returns from such precinct, and found that John D. Edmunds and John Cosgrove were properly elected school directors in the West Mahanoy Township School District. Thomas McCoy and Frank J. Donahue appealed.\\nErrors assigned\\nwere in dismissing various exceptions of fact and law and the order of the court.\\nO. E. Berger, with him M. M. Burke and P. E. Burke, for appellants.\\nM. J. Ryan, for appellees.\\nMay 14,1917:\", \"word_count\": \"1292\", \"char_count\": \"7803\", \"text\": \"Opinion by\\nMe. Chief -Justice Beown,\\nAt an election held November 2, 1915, two school directors were to be elected in the West Mahanoy Township School District, Schuylkill County. There are four election precincts in the township\\u2014Lost Creek, William Penn, Brownsville and Haven Bun. Thomas McCoy and Prank J. Donahue, the appellants, were candidates for school directors on the Democratic ticket, and John D. Edmunds and John Cosgrove, the appellees, were candidates for the same office on the Bepublican ticket. McCoy and Donahue were returned as elected, but, within the period fixed by the statute for contesting an election, qualified electors of West Mahanoy Township instituted a proceeding to contest the election of the appellants, on the ground of fraud and gross irregularities in connection with the election in the Lost Creek precinct. This proceeding was discontinued shortly afterwards by counsel for the petitioners. Subsequently, on the petition of the electors of the township, the discontinuance was stricken off by the court, and the petition for the contest was reinstated. After a full hearing and the taking of a mass of testimony, the court decreed that the election in the Lost Creek precinct was null and void, and its entire returns were thrown out. With the returns from that precinct not counted, those from the other three showed Edmunds and Cosgrove to be elected. Prom the decree so holding, McCoy and Donahue have appealed.\\nThe action of the court below in striking off the discontinuance of the proceeding instituted to contest the election of the appellants, and in reinstating the petition of the contestants after the expiration of the statutory period within which a contest must be instituted, has not been assigned as error, and we do not, therefore, pass upon the authority of the court to reinstate the proceeding.\\nThis appeal brings up a most voluminous record, and there are ninety-two assignments of error, but the sole . question for determination is whether the court erred in throwing out the returns from Lost Creek. Before passing upon this question it is proper that we say no error was committed in refusing to open the ballot box from the William Penn precinct upon the petition of the respondents. They failed to show fraud, irregularity, illegal voting or counting of votes in that precinct, which called for the opening of the box, and the ninetieth assignment of error is overruled.\\nFor mere irregularities in conducting an election it is not to be held void, even though the election officers maybe subject to punishment for misconduct. This is so .because the rights of voters are not to be prejudiced by the errors or wrongful acts of the officers of the election, unless it appears that a fair election and honest count were prevented: Krickbaum's Contested Election, 221 Pa. 521. Nor is the mere casting of fraudulent votes sufficient to throw out the return from an election district. \\\"The remedy in such case is to purge the polls by striking out the fraudulent votes, if possible\\\": Melvin's Case, 68 Pa. 333. But where no election is legally held in an election precinct, the returns from it may be thrown out.\\nIn the case now under consideration the conditions that existed at the election at Lost Creek were as disgraceful as they are inconceivable, and are thus properly summarized by the learned court below, after a review of the testimony and the facts to be found from it: \\\"The ballots, tally, return sheets, and supplies generally, were tampered with; records were irregularly and illegally kept; voters were threatened before the election and on election day; were prevented from voting; were intimi dated; coerced and not allowed to vote as they wished; blackjacks and pistols were used, and personal attacks made on legal voters, overseers and watchers while in the performance of their duty. All of this was done by, or under the direction of the election officers, aided by their 'buffer' and his assistant.\\\" It clearly appeared from the testimony that these ruffians intimidated the overseers, and for this reason the court below was expressly authorized to throw out \\\"all votes polled in the precinct\\\" : Act of January 30, 1874, P. L. 31, Section 4.\\nEach appeal is dismissed on the following correct conclusions reached by the court below: \\\"The whole election was illegally and fraudulently conducted. The number of voters prevented from voting by intimidation, threats and violence, and the number of voters coerced by interference in the booths could not be known, and the correctness or legality of the vote cast and returned could not be ascertained. There was practically no election or opportunity for the voters at this poll to express and have recorded their wish or choice by their ballot, and there is no possible way to ascertain the correct, or approximately correct, result out of this seething mass of corruption, blackguardism and brute force.\\\"\\nAppeals dismissed at costs of appellants.\"}"

pa/1037063.json

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+"{\"id\": \"1037063\", \"name\": \"Rea, Appellant, v. Pittsburgh Railways Company\", \"name_abbreviation\": \"Rea v. Pittsburgh Railways Co.\", \"decision_date\": \"1941-10-06\", \"docket_number\": \"Appeal, No. 73\", \"first_page\": \"251\", \"last_page\": \"256\", \"citations\": \"146 Pa. Super. Ct. 251\", \"volume\": \"146\", \"reporter\": \"Pennsylvania Superior Court Reports\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T00:08:44.360349+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Keller, P. J., Baldrige, Stadteeld, Rhodes, Hirt and Kenworthey, JJ.\", \"parties\": \"Rea, Appellant, v. Pittsburgh Railways Company.\", \"head_matter\": \"Rea, Appellant, v. Pittsburgh Railways Company.\\nArgued April 29, 1941.\\nBefore Keller, P. J., Baldrige, Stadteeld, Rhodes, Hirt and Kenworthey, JJ.\\nOctober 6, 1941:\\nJ. Thomas Hoffman, for appellant.\\nArthur W. Henderson, with him J. R. McNary, for appellee.\", \"word_count\": \"1427\", \"char_count\": \"8177\", \"text\": \"Opinion by\\nHirt, J.,\\nPlaintiff in the late evening of June 20, 1937 was driving south on Sixth Avenue in Pittsburgh intending to cross the bridge into the Liberty Tunnel and thence to his home in Washington County. He was stopped by traffic signals at Forbes Street but on the change of the lights to green, proceeded into the intersection. He did not see an approaching westbound street car until the front of his automobile was near the first rail of the tracks; he name to a stop but it was then too late to avoid being struck. Plaintiff was permanently injured in the collision. On the trial the jury found in his favor but the verdict was set aside by the court and judgment entered for defendant n. o. v. The entry of this judgment is the one error assigned, raising the single question of plaintiff's contributory negligence.\\nThe lower court accepted the rule as controlling, that a traveler upon a highway when about to cross a street railway track must use his senses and must continue to look and listen for an approaching street car until he has reached the track (Moore v. Erie Rys. Co., 308 Pa. 573, 162 A. 812) and that an absolute duty is imposed upon him to look for street cars immediately before going upon the track and the failure to do so is negligence per se. Goldfine & Brenner, Inc., v\\\" P. R. T., 119 Pa. Superior Ct. 581, 181 A. 514. In its application to the admitted fact that plaintiff did not see the street car until it was 50 or 60 feet from him, when it was too late to avoid being struck, he was held to be barred by his failure to perform an absolute duty imposed on him by law. The above is the familiar rule of a long line of cases and there is no doubt as to its general application. A driver need not stop his automobile before entering a crossing or at a point in the intersecting street where he can see the approaching car but he must be vigilant for his safety and, in a situation where the rule is applicable, must look and listen as he nears the track and must have his car under such control that he can stop in time to avoid his injury. Smathers v. P. & B. St. Ry. Co., 226 Pa. 212, 75 A. 190; Goldfine & Brenner, Inc., v. P. R. T., supra; Kalter v. Phila. R. T. Co., 95 Pa. Superior Ct. 116.\\nThe list of cases recognizing and applying these prin ciples might be further extended. But if the cases be examined it will be found that for the most part they have to do with the drivers of vehicles in the ordinary intersection of two streets, with occasional varying conditions insufficient to affect the \\\"absolute\\\" or \\\"unbending\\\" application of the rule, where the facts are clear.\\nBut this was no ordinary intersection of two lines of travel as the undisputed facts and the plot in evidence will show. The intersection of Sixth Avenue and Forbes Street is within the triangle between the Allegheny and Monongahela Rivers in a most congested section of the City of Pittsburgh near their juncture. Traffic from two boulevards and from many streets, a number of which are main arteries of travel from the east, converge in the neighborhood of the crossing. Sixth Avenue, extended beyond the intersection with Forbes Street, connects with Liberty Bridge which is the sole approach, from the section north of the Monongahela River, to the Liberty Tunnels, a gateway to the densely populated Ohio River valley and to cities and towns in southeastern Pennsylvania. Sixth Avenue also is subjected to much interstate traffic because of its access to the Liberty Tunnels. There probably are few places in the city where motor vehicle traffic is more concentrated than at and in the vicinity of the intersection involved.\\nThe complexity of the traffic problem and the necessity for more than ordinary care on the part of the motorman is indicated by a reference to the map in evidence. In proceeding westwardly on Forbes Street after crossing Boyd Street it is about 150 feet to the intersection of Shingiss Street. The approach to the Liberty Street Bridge is parallel with Shingiss Street and is almost contiguous. To the west of Sixth Avenue along the north side of Forbes Street there is a continuous driveway in front of a gas station and, a short distance further to the west, Forbes Street con verges with Diamond Street at an acute angle. A motorman in operating his street car, therefore, must be alert to the .movement of traffic into Forbes Street from four other highways within a distance of about 500 feet.\\nIn the light of all the attendant circumstances, we think the question of plaintiff's negligence was for the jury. There were four traffic lights at or near the crossing, connected in series, directing traffic at the intersection of Forbes Street and Sixth Avenue. If we give the plaintiff the benefit of reasonable inferences from the testimony, the street car ran through .red \\\"stop\\\" lights convicting defendant of gross negligence. Byrne et al. v. Schultz, 306 Pa. 427, 160 A. 125. From necessity in the solution of the traffic problem presented at this intersection, two things were necessary, namely, multiple lanes of travel for automobiles on Sixth Avenue and its extension to the tunnel, and to keep traffic moving.\\nThere were three southbound vehicular lanes in Sixth Avenue and plaintiff was driving in the westernmost lane next to the curb. In the two lanes to his left there were automobiles approaching the crossing. At Forbes Street they were stopped by red lights but when the signals changed, they all proceeded into the intersection. At that time plaintiff looked to the east and saw no car approaching. As he continued across the intersection his view was obstructed by these automobiles and his first intimation of the approaching street car was when the automobiles in the lanes to his left stopped suddenly. He then applied his brakes but could not stop in time. He had relied upon the invitation of the traffic signals and from necessity, to some extent upon the movement of automobiles to his left and to the judgment ,of those drivers who were in a position to see. But plaintiff inferentially was in the intersection before the street car and he therefore was justified in assuming that his superior right of way would be respected by a street car approaching the intersection thereafter. Galliano v. East Penn Electric Co., 303 Pa. 498, 154 A. 805. In the circumstances the jury undoubtedly found that plaintiff, with traffic signals in his favor, regarded the intersection as a through highway and that he had the right to consider as a factor in his favor the duty of the motorman to obey the law and the probability that he would do so. Rhinehart v. Jordan, 313 Pa. 197, 169 A. 151. If there was an absolute duty on every driver of an automobile to enter upon defendant's track in this intersection only after he had seen for himself that there was no street car approaching, the purpose of the traffic -signals near the intersection and the utility of the multiple lanes of travel would be defeated. Conceivably during rush hours every driver in two of the three lanes would have to come to a stop and await an opportunity for an unobstructed view along defendant's tracks before proceeding, thus causing unnecessary congestion with possible increased hazards of travel.\\nAt the ordinary intersection the duty upon a driver of an automobile is to look for an approaching street car before entering upon the track, with his car under such control that he can stop to avoid injury. This duty is imposed by law and is absolute. In the unusual situation here presented, involving a complex traffic problem, where adequate traffic signals were provided for the direction of travel, we think whether that duty was imposed upon plaintiff was not one of law for the court, but for the jury in applying the test of .reasonable diligence and care under the circumstances.\\nJudgment reversed and directed to be entered for plaintiff on the verdict.\"}"

pa/1050883.json

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+"{\"id\": \"1050883\", \"name\": \"Commonwealth, Appellant, v. Mitchell\", \"name_abbreviation\": \"Commonwealth v. Mitchell\", \"decision_date\": \"1943-12-09\", \"docket_number\": \"Appeal, No. 99\", \"first_page\": \"582\", \"last_page\": \"587\", \"citations\": \"153 Pa. Super. 582\", \"volume\": \"153\", \"reporter\": \"Pennsylvania Superior Court Reports\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T19:11:01.398035+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ. (Reno, J., absent).\", \"parties\": \"Commonwealth, Appellant, v. Mitchell.\", \"head_matter\": \"Commonwealth, Appellant, v. Mitchell.\\nArgued October 5, 1943.\\nBefore Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ. (Reno, J., absent).\\nFranklin E. Barr, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellant.\\nAngelo L. Scaricamazza, with him Thomas J. Minnick, Jr., for appellee.\\nDecember 9, 1943:\", \"word_count\": \"1571\", \"char_count\": \"9107\", \"text\": \"Opinion by\\nBaldrige, J.,\\nThis appeal presents this question: Does a discharge of the defendant in a habeas corpus proceeding under the \\\"two term\\\" rule, established by section 3 of the Habeas Corpus Act of February 18, 1785, 2 Sm, L. 275, and re-enacted by section 54 of the Act of March 31, 1860, P. L. 427, 19 PS \\u00a7781, prevent trial or is it a discharge from imprisonment only?\\nJohn Mitchell was arrested September 9, 1938, charged with robbery, held without bail, and seven days thereafter was indicted by the grand jury. On October 1, 1938, he was arraigned and plead \\\"not guilty.\\\" His case was listed for trial several times and he and his attorney in each instance were in court, but it was never reached due to the trial of other eases. On February 6, 1939, Mitchell petitioned the court for a writ of habeas corpus, alleging he was entitled to his discharge under the provisions of section 54 of the Act of 1860, supra. On February 9, 1939, he moved the court to quash the indictment. On February 10, 1939, Judge Bok, after a hearing in the habeas corpus proceeding, discharged the defendant. Judge Finletteu on June 8, 1942, dismissed the motion to quash the indictment. No further action was taken until March 17, 1943, when the case was again listed for trial. The defendant, with his counsel, appeared in court. Relying on his discharge in the habeas corpus proceeding he moved, through his attorney, for his absolute discharge under the \\\"two term\\\" rule, claiming that he should not be subjected to a trial. Judge Bluett, against the protest of the Commonwealth, granted defendant's motion and this appeal by the Commonwealth followed.\\nSection 3 of the Habeas Corpus Act of February 18, 1785, supra, was re-enacted with an immaterial addition in section 54 of the Act of 1S60, supra. The pertinent portion provides: \\\"If any person shall be committed for treason or felony, or other indictable offense, and shall not be indicted and tried some time in the next term, session of oyer and terminer, general jail delivery, or other court where the offense is properly cognizable, after such commitment, it shall and may be lawful for the judges or justices thereof, and they are hereby required on the last day of the term, sessions or court, to set at liberty the said prisoner upon bail, unless it shall appear to them, upon oath or affirmation, that the witnesses for the commonwealth, mentioning their names, could not then be produced; and if such prisoner shall not be indicted and tried the second term, session or court after his or her commitment, unless the delay happen on the application or with the assent of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment(Italics supplied.)\\nThe usual three month term of criminal courts in other counties was changed to a one month term in Philadelphia County by the Act of March 13, 1867, P. L. 420, \\u00a71, 17 PS \\u00a7471. Section 4 of that act, 17 PS \\u00a7473, reads as follows: \\\"Nothing herein contained shall be construed, or taken, to affect the act of February 18, 1785, as now applicable to said court; and no person shall be bailed, under said act, except upon the expiration of the second term, herein created, [i. e. two months] nor be discharged, under said act, except upon th\\u00e9 expiration of the fourth term, herein created [i. e. four months].\\\"\\nNo decision of an appellate court in this state on the question we are now considering has been cited and we have found none. In other jurisdictions there is a conflict in the decisions as to whether a release on habeas corpus of a prisoner held in jail for trial beyond one or more terms, is a final release, or one from imprisonment only: 25 Am. Jur., Habeas Corpus, \\u00a7157, citing In Re Begerow, 136 Cal. 293, 68 P. 773, 56 L. R. A. 528, holding a discharge is not final, and People ex rel Nagel v. Heider, 225 Ill. 347, 80 N. E. 291, 11 L. R. A. (NS) 257, contra.\\nIn Morse v. U. S., 267 U. S. 80, 85, 86, 69 L. Ed. 522, 45 Sup. Ct. 209, the Supreme Court stated that while the authorities passing upon the discharge of a defendant in a habeas corpus proceeding are not entirely harmonious, a rule may be deducible therefrom that when the proceedings are' preliminary and ancillary to the trial upon the merits, \\\"a decision discharging the prisoner neither annuls the indictment nor blots out the offense.\\\"\\nIn U. S. v. Cadarr, 197 U. S. 475, 478, the court said that \\\"generally speaking where the statute has provided that the discharge shall be from imprisonment or bail, without other language, it has been held not to operate as a statute of limitation.\\\"\\nJudge Mitchell, later Chief Justice, when sitting on the Common Pleas, in Commonwealth v. Brown, 11 Phila. Rep. 370, in discussing the act of 1785 said that \\\"all circumstances of physical, moral, or legal necessity, which prevent trial, are exceptions which take a case out of the statute.\\\"\\nThe opinions in our lower courts, which have had this matter for consideration, are not in accord. Only in a very feiv cases was the question of an absolute discharge squarely raised. Judge Bkewstee in Commonwealth v. McBride and Graveland, 2 Brewster 545, where the defendant was charged with homicide, held his discharge from imprisonment for want of trial after two terms (four in Philadelphia County) was absolute.\\nIn Commonwealth v. Sukena, 11 D. & C. 340, also a murder case, the opposite point of view was taken. The defendant there moved for his discharge from imprisonment under section 54 of the Act of 1860, supra, on the ground that his case could have been, but was not, called for trial during two terms of criminal court. Judge Koch held that the language of the act requiring a prisoner's discharge is imperative, but that \\\"his discharge from prison does not imply an end of the case against him. His case simply remains open for trial hereafter upon due and proper notice given to the de fendant of the time when his case will be called.\\\"\\nIn Commonwealth v. Henry, 19 District 393, defendant was charged with statutory rape, and was discharged from imprisonment where delay in trial beyond two terms was caused by the prosecutrix' inability to appear against him. Judge Scott in granting the discharge said, p. 395: \\\"The act of assembly requires the court to discharge the defendant from imprisonment only.\\\" The question of whether an indictment could be prosecuted further or whether the district attorney could authorize a new complaint was not passed upon as those matters did not arise.\\nSection 3 of the Habeas Corpus Act of 1785, supra, which, as above noted, was re-enacted in the Act of 1860, supra, was in substance copied from the British statute of Charles II, chapter 2, and had for its primary purpose the prevention of indefinite imprisonment of a defendant awaiting trial. In William John Clark v. The Commonwealth, 29 Pa. 129, where delay in trial was due to errors in drawing the panel of grand jurors, the court in refusing to discharge the prisoner under the Act of 1785 stated, p. 135: \\\"The statute was made to restrain the malice and oppression of prosecutors, and to relieve wrongful imprisonment; not to embarrass the administration of the criminal law; not to relieve righteous imprisonment, and to defeat public justice.\\\"\\nA discharge in a habeas corpus proceeding does not mean that under all circumstances it is the end of the prosecution: John Zebley, Jr. v. John W. Storey, 117 Pa. 478, 12 A. 569. See, also, a well considered opinion by Judge Braham in Commonwealth v. Seevers, 26 D. & C. 344, 346; Commonwealth v. Trost and Gunkel, 21 District 1081; Commonwealth ex rel McGurk v. Supt. of the County Prison, 97 Pa. 211, 214; Commonwealth v. Zec, 262 Pa. 251, 256, 105 A. 279.\\nThe plain literal meaning of the act is clear \\u2014 \\\"he shall be discharged from imprisonment\\\" \\u2014 nothing more than that. Nor does the constitutional provision in Article 1, Section 9, of our Constitution of 1874, which provides that \\\"in all criminal prosecutions the accused hath a right to......a speedy public trial by an impartial jury of the vicinage;......\\\" warrant the granting of anything beyond a discharge from imprisonment. Our interpretation of the constitution and our statute permits a prisoner to be discharged from unlawful imprisonment, but does not permit the guilty to escape prosecution because of a fortuitous circumstance which delays the trial. If we accept the construction as contended for by the appellee, it would mean that a defendant out on bail after two terms must stand trial, while a defendant imprisoned for two terms without trial goes free. Such a result was never intended by the framers of the act.\\nThe judgment is reversed and defendant is ordered to stand trial upon proper notice being given him.\"}"

pa/1056568.json

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+"{\"id\": \"1056568\", \"name\": \"Greenwald & Co. versus Kaster\", \"name_abbreviation\": \"Greenwald & Co. v. Kaster\", \"decision_date\": \"1878-01-21\", \"docket_number\": \"\", \"first_page\": \"45\", \"last_page\": \"48\", \"citations\": \"86 Pa. 45\", \"volume\": \"86\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:25:09.201865+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.\", \"parties\": \"Greenwald & Co. versus Kaster.\", \"head_matter\": \"Greenwald & Co. versus Kaster.\\n1. The rule of the common law that a release of one partner operates as a release of his co-partners does not apply where it is manifest that the intention was to confine the release to the one partner.\\n2. Where a firm debt is contracted in Pennsylvania and judgment therefor is recovered in that state against one partner alone, and afterwards a release is executed to the other partner in another state, the>effect of the release upon the judgment is to be determined by the law of Pennsylvania.\\nJanuary 7th 1878.\\nBefore Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.\\nError to the Court of Common Pleas, No. 3; of Philadelphia county: Of January Term 1877, No. 206.\\nThis was a feigned issue, ordered upon the opening of a judgment which had been obtained by Greenwald & Co. against Lazarus H. Kaster, in assumpsit, for goods sold and delivered. Defendant pleaded payment. The facts are sufficiently stated in the opinion of this court.\\nWalter J. Budd, for plaintiff in error.\\n\\u2014 The principle of the common law, that a release of one joint obligor or partner operates as a release of all, is applicable only to technical releases under seal: Bennett v. Cadwell, 20 P. F. Smith 253; Burke et al. v. Noble, 12 Wright 168; Solby et al. v. Forbes et al., 6 E. C. L. R. 11; Thompson et al. v. Lack, 54 E. C. L. R. 540. The release to Eckhouse was not under seal. The proceedings to open the judgment were an application for the exercise of the equity powers of the court. There was no equity in the application. The defendant relied on a purely technical defence to release him from the payment of an honest debt, and the court permitted him to prove, under the plea of payment, not that he had ever paid the judgment, or any part thereof, or any facts which in conscience and equity were equivalent to payment; but that the plaintiffs had accepted from Eckhouse, his former co-partner, a sum of money as his share of, and had given him a qualified release from, a debt which, at common law and in the Indiana court, was discharged as against him by this judgment.\\nSharp Alloman, for defendant in error.\\n\\u2014 By the law of Indiana a release of one partner is a release of all, and the release being effective by the law of the place of its delivery, is effective everywhere: Story on Conflict of Laws, sect. 411; Burge on Suretyship 301; Searight v. Calbraith, 4 Dallas 325; Born v. Shaw, 5 Casey 288; Allshouse v. Ramsey, 6 Whart. 332; Levy v. Levy, 2 W. N. C. 117.\\n[Sharswood, J. \\u2014 Which is to be applied, the law of the forum, or of the locus of the contract ?\\nAgnew, C. J. \\u2014 What would be the effect of the law of Indiana, upon a judgment which is fixed by the law of Pennsylvania ? Is not greater effect to be given to the judgment than to the release; and will a payment by a less solemn instrument suffice to release the other partner ?]\\nThe authority was to \\u201ccompromise and compound\\u201d the claim against Josfeph Eckhouse, as late partner in the firm of Easter & Eckhouse, reserving all rights, claims and liens against Lazarus Easter, &c. The release, in terms, reserves all rights against Easter; but it followed, as a legal consequence to the release of Eckhouse, that Easter should be released. The law does not allow Easter to invoke the release so much in his own protection as in protection of Eckhouse. If recovery were allowed against Easter, he would have a right of action over at common law, against Eckhouse, independent of their agreement for contribution; and thus the release to the latter would be a nullity.\\nJanuary 21st 1878.\", \"word_count\": \"1402\", \"char_count\": \"7968\", \"text\": \"Mr. Justice Trunkey\\ndelivered the opinion of the court,\\nLazarus PI. Easter and Joseph Eckhcuse, late partners, doing business in the state of Indiana, contracted a debt for goods, purchased of E. Greenwald & Co., in Philadelphia. In the action brought for recovery of that debt, judgment was taken against Easter for want of appearance. The summons was returned \\\"nihil habet\\\" as to Eckhouse. Afterwards suit was brought against Eckhouse in Indiana. The plaintiffs, by their attorneys in fact, on the 4th February 1875, in consideration of $700 paid by Eckhouse, released all rights of action against him, and surrendered all claims on account of indebtedness of him, or of. the firm of Kaster & Eckhouse, reserving all rights, claims and liens against said Kaster by reason of their judgment against him in the District Court of Philadelphia, for the sum of $4547.98. Upon Raster's application an issue was ordered to determine- the question whether that release operated as a satisfaction of the judgment. At the trial of the issue-the learned judge instructed the jury to find for the defendant, for the reason that a release to Joseph Eckhouse, the defendant's partner, executed in Indiana, is a release of both. .This direction is assigned for error, and is the only assignment that requires consideration.\\nThough the writing is not a technical release, and possibly cOuld be construed as an- agreement not to sue, it may be conceded that, by the laws of Indiana, it is a valid release, and governed by the principles of the common law. The rule that a release of one joint obligor or promisor operates as a release of his co-obligors or promisors -has long been confined to technical releases, and these, by means of recitals and provisos, may be limited to one alone. In Solby v. Forbes, 6 E. C. L. R. 11, a release of one of two partners, with a proviso that it should not prejudice the releasor's claim against the other, was held not to be a discharge of the other. And in Thompson v. Lack, 54 Id. 540, the release of one of two joint and several obligors, with a pro viso,, was held not a release of the other; because the whole deed should be.looked at in order to see the intention of the parties, and when the intention of the parties is clear, strong grounds should be laid to- induce the court not to give effect to the deed according to such intention. So in Burke et al. v. Noble, 12 Wright 168, it was held that a release of one of several joint debtors on payment of his proportion of the debt does not discharge the others, if it was not the intention of the parties. If a deed can operate in two ways, one consistent with the intention and the other repugnant to it, courts will ever be astute so to construe the law as to give effect to the'intent. Therefore, by the rules of the common law, the intention of the parties, clearly expressed in the release to Eckhouse, shall -have effect.\\nAside from the principles stated, how is Kaster discharged from the judgment ? The debt was contracted and judgment thereon obtained in Pennsylvania. By the law of this state the plaintiffs could compromise with and discharge Eckhouse from his proportion of the debt, which would be deemed as payment to them of such proportion, without prejudice to their right to recover the other portion from Kaster, and without prejudice to his right for contribution against Eckhouse. As to the extent of contribution, on settlement between Kaster and Eckhouse, we say nothing No act has been done to defeat the right. The judgment fixed Kaster for the whole indebtedness. The plaintiffs are considered as having received half of it from his former partner, and, in equity, have no claim for more than half the judgment. When Raster comes and demands discharge from the whole, upon averment that he himself has paid no part of it, but that, for a small sum, they released Eckhouse, expressly reserving their rights against him on the judgment, he makes an unconscionable claim, which should not be granted, except in obedience to positive law. No law requires courts to open their judgments to such end. Had the plaintiffs entered credit for a moiety of the judgment, there would have been no reason for an issue.\\nThe jury should have -been instructed to find for the plaintiffs for one-half the amount of the judgment.\\nJudgment reversed, and venire de novo awarded.\"}"

pa/1057732.json

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+"{\"id\": \"1057732\", \"name\": \"Bauer v. Hill, Appellant\", \"name_abbreviation\": \"Bauer v. Hill\", \"decision_date\": \"1920-05-17\", \"docket_number\": \"Appeal, No. 249\", \"first_page\": \"559\", \"last_page\": \"564\", \"citations\": \"267 Pa. 559\", \"volume\": \"267\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T17:08:56.241193+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Brown, C. J., Moschzisker, Frazer, Walling and Simpson, JJ.\", \"parties\": \"Bauer v. Hill, Appellant.\", \"head_matter\": \"Bauer v. Hill, Appellant.\\nLandlord and tenant \\u2014 Lease\\u2014Surrender of possession on sale \\u2014 \\u2022 Time of notice \\u2014 Agreement to sell \\u2014 Title\\u2014Ejectment\\u2014Judgment hy confession \\u2014 Proceedings to open \\u2014 Equity\\u2014Technicality.\\n1. A written agreement for the sale of a building constitutes a sale within the meaning of a lease providing for the surrender of possession by the tenant on notice that the property has been sold, so that a notice to the tenant to vacate is valid although given prior to the passing of the legal title.\\n2. Technical questions in ejectment under a lease, not suggested in the petition to open the judgment, cannot be considered inasmuch as proceedings to open a confessed judgment are purely equitable in form, wherein the petition and answer comprise the pleadings, and the court grants relief only upon the grounds embraced therein.\\n3. Not decided, as to authority to confess judgment on warrant in lease after the lessor has, in efEect, surrendered possession of the premises occupied by him, or whether such judgment could be confessed, under the terms of the lease, before an action of ejectment had actually been brought.\\n4. An application to open a judgment is equitable in substance and must rest on a meritorious and not on a mere technical defense.\\nJudgments \\u2014 Proceedings to open \\u2014 Appeals\\u2014Review of order\\u2014 Merits of case \\u2014 Discretion of court.\\n5. An appeal from an order refusing to open a judgment which depends upon legal questions and deductions from undisputed facts, is before the appellate court for review on the merits, and not to determine whether the court has properly exercised its discretion.\\nArgued April 27, 1920.\\nAppeal, No. 249, Jan. T., 1920, by defendant, from judgment of C. P. No. 1, Phila. Co., Dee. T., 1919, No. 3773, discharging rule to open judgment, in the case of Benjamin Bauer, Jr., v. Peter A. Hill.\\nBefore Brown, C. J., Moschzisker, Frazer, Walling and Simpson, JJ.\\nAffirmed.\\nRule to open judgment confessed in amicable action of ejectment under authority in lease. Before Shoemaker, J.\\nThe facts appear by the opinion of the Supreme Court.\\nThe court discharged the rule. Defendant appealed.\\nError assigned was order discharging rule.\\nJames Francis Ryan, with him Michael J. Ryan, for appellant.\\nThe word \\u201csale\\u201d as applied to real estate, when it affects others than the vendor and vendee, refers only to completed sale: Insurance Co. v. Updegraff, 21 Pa. 513; Walter v. Sun Fire Office, 165 Pa. 381; Hall v. Sugar Val. Mut. F. Ins. Co., 64 Pa. Superior Ct. 333; Strange v. Austin, 134 Pa. 96.\\nJoseph Neff Ewing, with him Clinton O. Mayer and Prichard, Saul, Bayard & Evans, for appellee.\\nThe action of the lower court in refusing to open a judgment will not be reviewed on appeal in the absence of an abuse of power or discretion: Gump\\u2019s App., 65 Pa. 476; Augustine v. Wolf, 215 Pa. 558; Wright v. Linhart, 243 Pa. 221.\\nThere are cases and circumstances where a meaning can be given to the word \\u201csale\\u201d that included a mere ex-ecutory agreement to sell: Williamson v. Berry, 8 Howard (U. S.) 495; Bigley v. Risher, 63 Pa. 152.\\nMay 17, 1920:\", \"word_count\": \"1814\", \"char_count\": \"10474\", \"text\": \"Opinion by\\nMr. Justice Walling,\\nThis appeal involves the validity of a judgment confessed in an amicable action of ejectment, between landlord and tenant. Prior to the time in question the Wilson estate, as owner of the building situate on the northwest corner of 13th and Market streets, Philadelphia, made a lease of a part thereof to the United Cigar Stores Company, for a term of years, which provides, inter alia, \\\"It being agreed that should the building of which the demised premises are a part be sold by the under signed and the undersigned desires possession of the premises under lease by you at the end of any year during the extended term, you agree to give possession to the undersigned upon the payment of ten thousand dollars ($10,000) in cash, by the undersigned to you and upon ninety (90) days' written notice to vacate.\\\" Thereafter said company sublet a portion of the demised premises, including the basement, to Benjamin Bauer, Jr., the plaintiff herein, the lease to him being made subject to the conditions in the original lease and with the right to terminate the same at the end of any year, on sixty days' notice, in the event of a termination of the lease to the cigar company; Bauer in turn sublet the basement to Peter A. Hill, the defendant. The lease to the latter provides, inter alia, \\\"This lease and all the terms, covenants and conditions hereof are in all respects subject and subordinate to the rights of the lessor's landlord and to the lease under which the lessor holds the premises, and to the lease or renewal agreement for the new term, presently given to the said lessor herein.\\\" The leases to both Bauer and Hill were extended until 1922, subject to the right of cancellation as above stated.\\nIn July, 1919, the Wilson estate made and executed an unconditional written agreement for the sale of the building to Jacob Marcus et al., to be consummated by payment of consideration, delivery of deed and possession on January 2, 1920, of which the Wilson estate forthwith gave notice to the cigar company, demanding possession on the day last above mentioned, and the latter gave a like notice and demand to Bauer and he in turn to Hill. Meantime both the cigar company and Bauer made amicable arrangements for the vacation, etc., of the portions of the building embraced in their respective leases, but Hill declined to do so or to vacate the premises occupied by him. Pinal settlement was made and deed for the property delivered according to the agreement, and thereafter Bauer, in order that he might surrender up the property as obligated, entered judgment against Hill in an amicable action of ejectment, pursuant to a stipulation in the latter's lease as follows, viz: \\\"and where the lease shall be so determined by condition broken and notice as aforesaid, and also when and as soon as the term hereby created shall have expired by its own limitation, it shall be lawful for any attorney of any court of this county to appear for the lessee in an action of ejectment to be therein brought by the lessor for the recovery of the demised premises, and therein confess judgment,\\\" etc. The defendant petitioned the court below to open the judgment, to which an answer was filed and testimony taken. Thereafter, upon due consideration, the court discharged the rule to open the judgment, from which defendant brought this appeal.\\nHis main contention is that the building was not sold within the terms of the lease, until delivery of the deed and, hence, the notice to vacate was premature; with this we cannot agree. \\\"Sale is a word of precise legal import, both at law and in equity. It means a contract between parties to pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought and sold\\\": Williamson v. Berry, 8 How. 544; Huthmacher v. Harris's Administrators, 38 Pa. 491, 498; Bigley v. Risher, 63 Pa. 153, 155. Land may be sold by an article of agreement as well as by deed: Fryer v. Rishell, 84 Pa. 521; Phillips v. Swank, 120 Pa. 76. In popular language property under contract of sale is often referred to as sold: see vol. 5, Words & Phrases, p. 654. Whenever an unconditional agreement has been made for the sale of land, such as equity will specifically enforce, it may properly be referred to and treated as sold; then the vendee becomes the equitable owner and the vendor holds the legal title as trustee: see Bender v. Luckenbach, 162 Pa. 18, 25; Morgan v. Scott, 26 Pa. 51; Rangler's App., 3 Pa. 377; Simmons's Est., 140 Pa. 567; Longwell v. Bentley, 23 Pa. 99. The fact that the vendor as holder of the legal title may insure the property, or recover for a fire loss, does not control the question here involved. When the equities require it, he is treated as trustee of such insurance money: Insurance Co. v. Updegraff, 21 Pa. 513; Peoples Street Ry. Co. v. Spencer, 156 Pa. 85. Such sale by agreement, when bona fide, justifies the landlord in warning Ms tenant to vacate, where the lease provides it may be done in case of sale of the premises. It is not a question as to whether, under such circumstances, a tenant can be forced to surrender possession, but of whether notice to do so may be given, prior to the passing of the legal title, and of that we have no doubt; to hold otherwise would unduly hamper sales of leased property. Moreover, the original lease here says, \\\"should the undersigned [lessor] desire possession,\\\" not the vendee, it shall be given, etc.; which strengthens the conclusion that the parties had in mind a sale by agreement rather than one finally consummated by deed. Hence, the sale made by the agreement in July, 1919, followed by due notice given the defendant, operated to terminate his lease at the end of that year, and gave rise to conditions justifying the entry of the judgment in question, especially as the sale had been fully consummated prior to the entry of such judgment.\\nTechnical questions are suggested as to the authority to confess judgment after plaintiff had in effect surrendered possession of the premises occupied by him, and also as to whether such judgment could be confessed, under the terms of the lease, before an action of ejectment had actually been brought; but, as neither is suggested in the petition to open judgment, they cannot be considered. For proceedings to open a confessed judgment are purely equitable in form, wherein the petition and answer comprise the pleadings, and the court grants relief only upon the grounds embraced therein: State Camp of Pennsylvania of the Patriotic Order Sons of America v. Kelley et al., 267 Pa. 19; Carr v. \\u00c6tna A. & L. Co., 263 Pa. 87, 93; Fisher v. King, 153 Pa. 3; Wyman & Colegrove's App., 3 Walker 410; Pfaff v. Thomas, 3 Pa. Superior Ct. 419.\\nAn application to open a judgment is also equitable in substance and must rest on a meritorious and not on a mere technical defense: State Camp of Pennsylvania of the Patriotic Order Sons of America v. Kelley et al., supra, and authorities there cited. As the present case depends upon legal questions and deductions from undisputed facts, it is before us for review upon the merits, rather than to determine whether the chancellor has properly exercised his discretion (see case last above cited), but we find nothing to justify a reversal.\\nThe order discharging the rule to open the judgment is affirmed.\"}"

pa/11089490.json

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+"{\"id\": \"11089490\", \"name\": \"In the Matter of Andrea Yvette PRINCE\", \"name_abbreviation\": \"In re Prince\", \"decision_date\": \"2001-02-20\", \"docket_number\": \"No. 628 Disciplinary Docket No. 3\", \"first_page\": \"728\", \"last_page\": \"728\", \"citations\": \"774 A.2d 728\", \"volume\": \"774\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T20:32:20.065162+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Andrea Yvette PRINCE.\", \"head_matter\": \"In the Matter of Andrea Yvette PRINCE.\\nNo. 628 Disciplinary Docket No. 3.\\nSupreme Court of Pennsylvania.\\nFeb. 20, 2001.\", \"word_count\": \"169\", \"char_count\": \"1023\", \"text\": \"ORDER\\nPER CURIAM:\\nAND NOW, this 20th day of February, 2001, Andrea Yvette Prince having been indefinitely suspended from the practice of law before naval tribunals and also having been indefinitely suspended from providing individual legal assistance in the Department of the Navy by Order of the Judge Advocate General of the Navy dated April 26, 2000; the said Andrea Yvette Prince having been directed on November 17, 2000, to inform this Court of any claim she has that the imposition of the identical or comparable discipline in this Commonwealth would be unwarranted and the reasons therefor; and upon consideration of the responses filed, it is\\nORDERED that Andrea Yvette Prince is suspended from the practice of law in this Commonwealth consistent with the Order of the Judge Advocate General of the Navy dated April 26, 2000, and she shall comply with all the provisions of Rule 217, Pa.R.D.E.\"}"

pa/11124884.json

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+"{\"id\": \"11124884\", \"name\": \"Theresa ALBERICI, Appellee, v. RICHARD, DISANTI, HAMILTON & GALLAGHER, P.C., Howard Richard and Alexander Disanti, Appellants\", \"name_abbreviation\": \"Alberici v. Richard, Disanti, Hamilton & Gallagher, P.C.\", \"decision_date\": \"2001-02-16\", \"docket_number\": \"\", \"first_page\": \"548\", \"last_page\": \"548\", \"citations\": \"767 A.2d 548\", \"volume\": \"767\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T20:27:44.007607+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Flaherty, C.J., Zappala, Cappy, Castille, Nigro, Saylor, JJ.\", \"parties\": \"Theresa ALBERICI, Appellee, v. RICHARD, DISANTI, HAMILTON & GALLAGHER, P.C., Howard Richard and Alexander Disanti, Appellants.\", \"head_matter\": \"Theresa ALBERICI, Appellee, v. RICHARD, DISANTI, HAMILTON & GALLAGHER, P.C., Howard Richard and Alexander Disanti, Appellants.\\nSupreme Court of Pennsylvania.\\nArgued Jan. 29, 2001.\\nDecided Feb. 16, 2001.\\nJohn Curchman Smith, Philadelphia, for Richard, Disanti, Hamilton & Gallagher, P.C. et al.\\nMarc Lamer, Philadelphia, for Theresa Alberici.\\nBefore Flaherty, C.J., Zappala, Cappy, Castille, Nigro, Saylor, JJ.\", \"word_count\": \"77\", \"char_count\": \"565\", \"text\": \"ORDER\\nPER CURIAM:\\nAppeal dismissed as having been improvidently granted.\\nJustice NEWMAN did not participate in the consideration or decision of this case.\"}"

pa/11376077.json

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+"{\"id\": \"11376077\", \"name\": \"COMMONWEALTH of Pennsylvania, Appellee v. Chamroeun BY, Appellant\", \"name_abbreviation\": \"Commonwealth v. By\", \"decision_date\": \"2002-12-02\", \"docket_number\": \"\", \"first_page\": \"1250\", \"last_page\": \"1259\", \"citations\": \"812 A.2d 1250\", \"volume\": \"812\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T17:10:33.116616+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: JOYCE, BECK and POPOVICH, JJ.\", \"parties\": \"COMMONWEALTH of Pennsylvania, Appellee v. Chamroeun BY, Appellant.\", \"head_matter\": \"COMMONWEALTH of Pennsylvania, Appellee v. Chamroeun BY, Appellant.\\nSuperior Court of Pennsylvania.\\nArgued April 16, 2002.\\nFiled Dec. 2, 2002.\\nMaryJean Glick, Public Defender, Lancaster, for appellant.\\nVincent Mazeski, Assistant District Attorney, Lancaster, for Commonwealth, ap-pellee.\\nBefore: JOYCE, BECK and POPOVICH, JJ.\", \"word_count\": \"4109\", \"char_count\": \"24961\", \"text\": \"POPOVICH, J.\\n\\u00b6 1 Appellant Chamroeun By appeals from the judgment of sentence entered on February 6, 2001, in the Court of Common Pleas, Lancaster County. Following a non-jury trial, Appellant was convicted of possession with intent to deliver cocaine and firearms not to be carried without a license. He was sentenced to time served to 23 months, plus five years of probation. Appellant filed the present appeal challenging the suppression court's denial of his motion to suppress the evidence. Upon review, we affirm.\\n\\u00b6 2 The relevant facts are as follows. On the evening of January 9, 2000, Officer Charles Wildt, III, of the East Lampeter Township Police Department was on patrol on Lincoln Highway East when he observed a dark gray Mazda RX-7, with darkly tinted windows, in a Super 8 Motel parking lot. The vehicle was parked alongside vehicles known to the police as belonging to persons who dealt narcotics. Officer Wildt observed four individuals enter the Mazda and drive out of the parking lot. He followed the vehicle and initiated a traffic stop based upon the tinted windows violation. Due to the number of persons in the vehicle coupled with the fact that it was beginning to get dark, Officer Wildt radioed for backup. Officers George Quickel of the Lancaster City Police Department and Michael Neff of the East Lampeter Township Police Department arrived on the scene as a safety precaution.\\n\\u00b6 3 Appellant, the driver of the vehicle, identified himself as Chamroeun By and provided his driver's license and vehicle documents to Officer Wildt. Officer Wildt also obtained the identity and birth dates of the remaining persons in the Mazda. He then returned to his police cruiser to conduct a check on the persons in the vehicle. As a result of the check, Officer Wildt learned that one of the passengers gave false information, ie., he gave an incorrect name and birth date. Officer Wildt returned to the Mazda and asked Appellant to exit the vehicle. Appellant did so. Officer Wildt issued Appellant a warning for the tinted windows violation and returned the driver's license and vehicle documents to Appellant. He then advised Appellant that he was free to leave. At this point in time, Officer Wildt asked Appellant if he could ask a couple of questions. Officer Wildt asked him if he had any weapons or drugs. He observed Appellant hesitate, become noticeably nervous and begin to perspire. Officer Wildt then asked Appellant if he could search the vehicle. Appellant hesitated. Again, Officer Wildt reminded Appellant that he was free to leave. Officer Wildt asked again if he could search the vehicle. Appellant consented to a search.\\n\\u00b64 The passengers exited the vehicle. Officer Wildt conducted a search. In the center console, a clear plastic bag contain ing ten smaller bags, which contained a substance later positively identified as crack cocaine, was found. During the search, a female passenger asked to retrieve her coat from the vehicle because she was cold. Before the officers would give her the coat, they patted the coat down to make sure there were no weapons. In doing so, a .25 caliber magazine was found in one of the pockets. The female passenger was asked if there was a handgun in the vehicle. She responded in the affirmative and that it was located behind the driver's seat. A loaded Beretta .25 caliber semi-automatic handgun was recovered. Subsequently, all of the passengers were taken into custody and were transported back to the police station.\\n\\u00b6 5 At the police station, Appellant received his Miranda warnings. He then provided a handwritten, signed confession in which he admitted that the crack cocaine and the handgun were his, that a room at the Super 8 Motel was rented in his name and that he consented to a search of that room.\\n\\u00b6 6 Appellant was charged with possession with intent to deliver cocaine and firearms not to be carried without a license. He filed a motion to suppress the physical evidence and the statement taken at the police station on the basis that each was the product of an illegal detention. The suppression court denied the motion. Appellant waived his right to a jury trial, and he was found guilty on both charges. That same day, Appellant was sentenced. This timely appeal followed.\\n\\u00b6 7 On appeal, Appellant alleges the suppression court improperly denied his motion to suppress evidence where his consent to search the vehicle was the product of an unlawful investigative detention in the absence of reasonable suspicion.\\n\\u00b6 8 In considering the denial of a suppression motion, our standard of review is well-settled. We must \\\"determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from these findings.\\\" Commonwealth v. Ayala, 791 A.2d 1202, 1207 (Pa.Super.2002). In doing so, we \\\"may consider only the prosecution's [evidence]\\\" and the defendant's evidence to the extent it is not contradictory. Id., 791 A.2d at 1207. If the evidence presented at the suppression hearing supports these findings of fact, we may not reverse the lower court unless its accompanying legal conclusions are in error. See Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa.Super.1998).\\n\\u00b6 9 The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the \\\"right of each individual to be let alone.\\\" Schneckloth v. Bustamonte, 412 U.S. 218, 236, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593, 596 (1990). Specifically, police officers may not conduct a warrantless search or seizure unless one of several recognized exceptions applies. See Schneckloth, 412 U.S. at 219, 93 S.Ct. 2041; Blair, 575 A.2d at 596-97. One such exception is a search conducted pursuant to consent voluntarily given. See Blair, 575 A.2d at 597 (citation omitted). The Fourth Amendment inquiries in consent cases entail a two-prong assessment: first, the constitutional validity of the citizen/police encounter giving rise to the consent and, second, the voluntariness of said consent. See Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (2000) (citation omitted). Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus. See id., 757 A.2d at 889 (citation omitted). If a defen dant's initial detention violates the Fourth Amendment, then any evidence seized during that stop must be excluded as fruit of an unlawful detention absent a demonstration by the government both of a sufficient break in the causal chain between the illegal detention and the seizure of evidence, thus assuring that the search is not an exploitation of the prior illegality, and of voluntariness. See id., 757 A.2d at 889 (citation omitted).\\n\\u00b6 10 To secure the right of citizens to be free from such intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive. See Commonwealth v. Key, 789 A.2d 282, 288 (Pa.Super.2001) (citation omitted).\\n\\u00b6 11 The first of these interactions is a \\\"mere encounter,\\\" or request for information, which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. See Strickler, 757 A.2d at 889. The second level is an \\\"investigative detention,\\\" or Terry stop, which must be supported by reasonable and articulated suspicion that the person seized is engaged in criminal activity, and the detention may continue only so long as is necessary to confirm or dispel such suspicion. See id., 757 A.2d at 889. It subjects a suspect to a stop and period of detention but does not involve such coercive conditions as to constitute the functional equivalent of arrest. See id., 757 A.2d at 889. Finally, an arrest or \\\"custodial detention\\\" must be supported by probable cause. See id., 757 A.2d at 889. To guide the crucial inquiry as to whether or not a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether, in viewing the totality of the circumstances, a reasonable person would have believed that he was free to leave. See id., 757 A.2d at 889 (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen's movement has in some way been restrained. See id., 757 A.2d at 889 (citing Mendenhall, 446 U.S. at 553, 100 S.Ct. 1870).\\n\\u00b6 12 In Strickler and its companion case, Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), our Supreme Court has used these principles regarding seizure to examine a subsequent citizen/police interaction following a valid traffic stop. In these cases, the Court recognized that \\\"the transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred.\\\" Strickler, 757 A.2d at 892 (citation omitted). Although there may be no question regarding the validity of the initial traffic stop, the crucial question is when the validity of that stop ceased. See id., 757 A.2d at 891.\\n\\u00b6 13 Where the purpose of an initial, valid traffic stop has ended and a reasonable person would have believed that he was free to leave, the law characterizes a subsequent round of questioning by the officer as a mere encounter. See Strickler, 757 A.2d at 898. Since the citizen is free to leave, he is not detained, and the police are free to ask questions appropriate to a mere encounter, including a request for permission to search the vehicle. However, where the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. See Freeman, 757 A.2d at 907. In the absence of either reasonable suspicion to support the investigative detention or probable cause to support the arrest, the citizen is considered unlawfully detained. Where a consensual search has been preceded by an unlawful detention, the exclusionary rule requires suppression of the evidence obtained absent a demonstration by the commonwealth both of a sufficient break in the causal chain between the illegality and the seizure of evidence. This assures of the search's voluntariness and that the search is not an exploitation of the prior unlawful detention. See Strickler, 757 A.2d at 889 (citation omitted).\\n\\u00b6 14 In this case, Appellant does not challenge the constitutionality of Officer Wildt's decision to stop his vehicle, the first stop. He challenges the subsequent detention after the valid traffic stop. Appellant contends that Officer Wildt's interrogation of Appellant after he had returned the driver's license and vehicle documents constituted an investigative detention and not a mere encounter. Since Officer Wildt did not have reasonable suspicion to detain .Appellant, he argues that the evidence obtained from the unlawful detention and search should be suppressed. Therefore, we focus solely on the constitutionality of the officer's conduct in obtaining consent to search Appellant's vehicle.\\n\\u00b6 15 The first citizen/police interaction between Appellant and Officer Wildt ended when Officer Wildt advised Appellant that he was free to leave. The subsequent citizen/police interaction, which is the one we are analyzing, began when Officer Wildt questioned Appellant after the officer had informed Appellant that he was free to leave.\\n\\u00b6 16 The factors militating against finding an unlawful detention are the following. Officer Wildt's 'conduct was restrained and non-confrontational. Officer Wildt did not restrain Appellant's freedom of movement by use of or threatened use of force. He spoke in a casual and nonthreatening tone of voice. See N.T., 2/6/2001, at 14. He did not issue any orders to Appellant, such as instructing Appellant to stand at a particular location. See id., at 14. He did not remove his weapon from his holster. See id., at 14. Most importantly, Officer Wildt did not block Appellant's path of exit. See id., at 14. Appellant was free to leave. After Officer Wildt had asked Appellant's permission to search the vehicle but prior to Appellant consenting to the search,. he again informed Appellant that he was free to leave. See id., at 16. Officer Wildt asked again if he could search the vehicle. See id., at 16. Appellant hesitated again and then consented to the vehicle search. See id., at 16.\\n\\u00b6 17 The following factors support a finding of an unlawful detention. The subsequent interaction stemmed from a valid traffic stop, the encounter took place at night and three police officers were present during the interaction. However, the effects of these factors on a reasonable person's belief that he was free to leave were minimal. The valid traffic stop ended when Officer Wildt returned to Appellant the documents and informed him that he was free to leave. Additionally, the three police officers were present during the subsequent interaction but their presence was not of a nature that would make a reasonable person believe that he was not free to leave. We previously addressed Officer Wildt's conduct and found it to be non-coercive. Officer George Quickel stood behind Officer Wildt during the second interaction. He did not prevent Appellant from leaving the scene. He did not speak to Appellant nor did he remove his weapon. We find that there is no evidence in the record that Officer Quickel's conduct was coercive. That leaves Officer Michael Neff. Officer Neff was standing next to the passenger's side of Appellant's vehicle and was speaking with the passengers in the vehicle when the second interaction occurred. See N.T., 2/6/2001, at 12. Appellant argues that Officer Neffs location and conduct would lead a reasonable person to believe that he was not free to leave.\\n\\u00b6 18 In the recent United States Supreme Court case of United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), the Supreme Court noted how the location and conduct of a second police officer acted on the reasonable person's belief that he was free to leave. In Drayton, Officer Hoover, once aboard the bus, knelt on the driver's seat and faced the rear of the bus. From this position, he could observe the passengers and ensure the safety of the other two police officers without blocking the aisle or obstructing the exit. The defendant argued that Officer Hoover's position caused the interaction to arise to the level of a seizure or detention because a reasonable person would not feel free to leave. The Supreme Court disagreed. \\\"Officer Hoover's position at the front of the bus also does not tip the scales in respondents' favor. Hoover did nothing to intimidate passengers, and he said nothing to suggest that people could not exit and indeed he left the aisle clear.\\\" Id. 536 U.S. at-, 122 S.Ct. at 2112.\\n\\u00b6 19 Likewise, we conclude that Officer Neffs location and conduct in this case does not tip the scales in Appellant's favor. Officer Neffs and Officer Hoover's location and conduct are analogous. Officer Neff had no contact, intimidating or otherwise, with Appellant, and, to ensure the safety of everyone involved, he stood in a location where he could observe what was transpiring. While standing alongside Appellant's vehicle, Officer Neff conversed with the passengers. However, nothing in this conversation would indicate to a reasonable person that they were not free to leave. At the time Officer Neff was talking to the passengers, Officer Wildt was asking Appellant if he would consent to a search of his vehicle. Officer Wildt then told Appellant that he was free to leave. Officer Neff did nothing that would cause a reasonable person to feel that he was not free to leave. Officer Neffs conversation with the passengers was merely that, a conversation. At that point in time, Officer Neff was not conducting an interrogation of the passengers, and, therefore, Officer Neffs conduct was not intimidating. Additionally, Ms location was on the passenger's side of the veMcle. He was not near the driver's door nor was he standing in front of the vehicle, and, therefore, he did not stand in such a manner that would have prevented Appellant from exiting the scene. Most importantly, Officer Neff did not have any contact with Appellant. His contact was limited to a conversation with the passengers in the vehicle. In fact, the parties stipulated that Officer Neff \\\"in no way impeded [Appellant] from leaving the scene.\\\" N.T., 2/6/2001, at 39. Accordingly, we find that Officer Neffs location and conduct did not convey a belief to a reasonable person that they were not free to leave.\\n\\u00b6 20 Weighing the above factors in light of Striekler and Freeman, we conclude that the trial court did not err when it found that Appellant was not being seized or detained when Officer Wildt asked him if he would consent to a search of his vehicle. Since we concluded that the request to search was a mere encounter and did not rise to a second or subsequent seizure under the Fourth Amendment, we now proceed to a voluntariness assessment.\\n\\u00b6 21 In connection with such an inquiry, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice \\u2014 not the result of duress or coercion, express or implied, or a will overborne \\u2014 under the totality of the circumstances. See Strickler, 757 A.2d at 901 (citing Ohio v. Robinette (II), 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). While knowledge of the right to refuse to consent to the search is a factor to be taken into account, the Commonwealth is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. See Strickler, 757 A.2d at 901 (citing Schneckloth, 412 U.S. at 227-28, 93 S.Ct. 2041; Commonwealth v. Cleckley, 558 Pa. 517, 527, 738 A.2d 427, 433 (1999)). Additionally, although the inquiry is an objective one, the maturity, sophistication and mental or emotional state of the defendant are to be taken into account. See Strickler, 757 A.2d at 901 (citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). The United States Supreme Court has also rejected the argument that a defendant's consent is necessarily involuntary where it is given at a time when the defendant knows the search will produce evidence of a crime. See Strickler, 757 A.2d at 901 (citing Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (finding that the reasonable person test presupposes an innocent person)).\\n\\u00b6 22 Since both the tests for a seizure and voluntariness of. consent entail an examination of the objective circumstances surrounding the citizen/police interaction, there is a substantial, necessary overlap in the analyses. The aforementioned reasons supporting the conclusion that Appellant was not seized at the time he gave his consent to search the vehicle also support a determination that his consent was voluntary. Nothing in the record supports a determination that Appellant's individual maturity, sophistication or mental state should have any bearing in this regard.\\n\\u00b6 23 Thus, the Commonwealth's unchallenged evidence was sufficient to satisfy its burden of demonstrating that, under the totality of the circumstances, a reasonable person would have felt free to leave, and Appellant's consent to search was given freely. See Strickler, 757 A.2d at 884; Freeman, 757 A.2d at 903.\\n\\u00b6 24 Judgment of sentence affirmed.\\n\\u00b6 25 BECK J. files a Dissenting Opinion.\\n. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the United States Supreme Court explained that there is no \\\"litmus-paper\\\" test for distinguishing a mere encounter from a seizure as follows:\\nThe test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to \\\"leave\\\" will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.\\nRoyer, 460 U.S. at 506, 103 S.Ct. at 1329.\\n. Nor would it appear that such an argument could be sustained. Officer Wildt testified that he observed that tinted windows on Appellant's vehicle were in violation of the Vehicle Code. See 75 Pa.C.S. \\u00a7 4524(e).\\n. We note that the trial court did not address Officer Neff's location or conduct during the interaction nor did the court discuss what effect this may have on a reasonable person's belief that he was free to leave. However, since we have found Officer Neff's conduct to be non-coercive, we find that omission did not effect the disposition.\"}"

pa/11551154.json

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+"{\"id\": \"11551154\", \"name\": \"COMMONWEALTH of Pennsylvania, Appellant, v. Phares Shirk HURST, Appellee\", \"name_abbreviation\": \"Commonwealth v. Hurst\", \"decision_date\": \"1999-09-09\", \"docket_number\": \"\", \"first_page\": \"1286\", \"last_page\": \"1286\", \"citations\": \"734 A.2d 1286\", \"volume\": \"734\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T22:55:48.746673+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.\", \"parties\": \"COMMONWEALTH of Pennsylvania, Appellant, v. Phares Shirk HURST, Appellee.\", \"head_matter\": \"COMMONWEALTH of Pennsylvania, Appellant, v. Phares Shirk HURST, Appellee.\\nSupreme Court of Pennsylvania.\\nSubmitted Aug. 11, 1999.\\nDecided Sept. 9, 1999.\\nJoseph C. Madenspacher, Dist. Atty., Susan E. Moyer, Asst. Dist. Atty., District Attorney\\u2019s Office, for Com.\\nJames J. Karl, Public Defender, Public Defender\\u2019s Office, for Phares Shirk Hurst.\\nBefore FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.\", \"word_count\": \"112\", \"char_count\": \"749\", \"text\": \"ORDER\\nPER CURIAM.\\nBased upon our disposition in Commonwealth v. Williams, \\u2014 Pa.-, 733 A.2d 593 (1999), we affirm the Order of the Lancaster County Court of Common Pleas dated April 30, 1999. Furthermore, we remand the matter to the common pleas court for disposition of any remaining issues.\\nJurisdiction is relinquished.\"}"

pa/1163613.json

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+"{\"id\": \"1163613\", \"name\": \"Cooper's Estate\", \"name_abbreviation\": \"Cooper's Estate\", \"decision_date\": \"1936-01-31\", \"docket_number\": \"Appeal, No. 139\", \"first_page\": \"418\", \"last_page\": \"421\", \"citations\": \"320 Pa. 418\", \"volume\": \"320\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T22:00:03.113119+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Kephart, C. J., Schaffer, Drew, Linn and Barnes, JJ.\", \"parties\": \"Cooper\\u2019s Estate.\", \"head_matter\": \"Cooper\\u2019s Estate.\\nJanuary 31, 1936:\\nArgued January 6, 1936.\\nBefore Kephart, C. J., Schaffer, Drew, Linn and Barnes, JJ.\\nE. Spencer Miller, for appellant.\\nWill M. Boenning, Special Deputy Attorney General, with him Charles J. Margiotti, Attorney General, and E. Russell Shockley, Deputy Attorney General, for appellee.\", \"word_count\": \"461\", \"char_count\": \"2770\", \"text\": \"Opinion by\\nMr. Chief Justice Kephart,\\nWhere a trust is created in which the settlor reserves a life interest in the income, such interest is subject to the tax imposed by the Act of June 20, 1919, P. L. 521: Dean's Est., 279 Pa. 582; Leffman's Est., 312 Pa. 236. Appellant, trustee, claimed decedent's interest as a gift through a release of the income from the settlor. She had therefore the burden of proof: Smith's Est., 237 Pa. 115; Sullivan v. Hess, 241 Pa. 407.\\nIn 1924 Harriet Cooper sold a property and took a purchase-money mortgage for $45,000. She assigned this mortgage to Grace Corliss, under an agreement wherein Grace Corliss was to pay the income on this mortgage to Harriet Cooper for life. In 1931 Harriet Cooper died and the value of this mortgage was appraised as part of her estate so as to subject it to the tax above mentioned. Grace Corliss resisted the assessment and appealed from the appraisement, claiming that the life interest in the income was surrendered to her by Mrs. Cooper in 1930. The court below approved the appraisement.\\nThe Commonwealth, in making out its prima facie case, offered the appraisement in evidence. To this appraisement two affidavits were attached. They were prepared by appellant and her attorney a year or two before the present proceeding as an aid to the inheritance tax appraisers. These affidavits contained statements that decedent had released her interest in the trust in the spring of 1930. Appellant now argues that the Commonwealth, having placed these affidavits in evidence without qualification, is irrevocably bound by the statement that decedent's interest in the trust was released. We held in Heyman v. Hanauer, 302 Pa. 56, 62, that the party who presents in evidence written documents of another party to a dispute, must present the writing in its entirety but that he may thereafter disprove allegations contained therein adverse to his interests. See also Yearsly's App., 48 Pa. 531. The affidavits were not pleadings or part of them. No issue was made therefrom and the cases cited by appellant are therefore not applicable.\\nThe issue depended on the evidence and it supported the court's conclusion that no release of decedent's interest in the trust had taken place. This finding, having been approved by tbe court in banc is, by our settled rule, binding upon us: Foley v. Barnet, 303 Pa. 218; Belmont Lab. v. Heist, 300 Pa. 542, 546.\\nDecree affirmed at appellant's cost.\"}"

pa/11817569.json

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+"{\"id\": \"11817569\", \"name\": \"TITUS & McCONOMY, Appellee, v. Hasan JALISI, Appellant\", \"name_abbreviation\": \"Titus & McConomy v. Jalisi\", \"decision_date\": \"1998-06-02\", \"docket_number\": \"No. 1433\", \"first_page\": \"646\", \"last_page\": \"649\", \"citations\": \"713 A.2d 646\", \"volume\": \"713\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T17:13:00.547262+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before POPOVICH, STEVENS and MONTEMURO , JJ.\", \"parties\": \"TITUS & McCONOMY, Appellee, v. Hasan JALISI, Appellant.\", \"head_matter\": \"TITUS & McCONOMY, Appellee, v. Hasan JALISI, Appellant.\\nSuperior Court of Pennsylvania.\\nSubmitted Jan. 5, 1998.\\nFiled June 2, 1998.\\nJohn T. Bender, Pittsburgh, for appellant.\\nDavid G. Oberdick, Pittsburgh, for appel-lee.\\nBefore POPOVICH, STEVENS and MONTEMURO , JJ.\\nRetired Justice assigned to Superior Court.\", \"word_count\": \"1779\", \"char_count\": \"10997\", \"text\": \"POPOVICH, Judge:\\nThe defendant/appellant, Hasan Jalisi, appeals the order compelling arbitration on the basis that the trial court erred in finding that his \\\"uncounseled consent to arbitrate a fee dispute cannot be withdrawn[.]\\\" We reverse.\\nThe facts of record disclose that the appellant was provided legal services by the plaintiffiappellee, Titus & McConomy. The appellant disputed the legal fees and filed a complaint with the Special Fee Determination Committee of the Allegheny County Bar Association (ACBA) to resolve the matter. Thereafter, both parties executed an \\\"Agreement to Arbitrate\\\" on December 16, 1996, which read:\\nThe undersigned, intending to be legally bound hereby, agree to submit the above captioned fee dispute to the Special Fee Determination Committee of The Allegheny County Bar Association for arbitration and determination, hereby waiving any objection to the arbitrators who are to determine this matter, and agreeing that the award made shall be binding in accordance with the terms of the award and in accordance with the laws of the Commonwealth of Pennsylvania pertaining to arbitration matters. [Emphasis added]\\nPrior to arbitration, the appellant withdrew his complaint and consent to have the dispute heard by the ACBA Committee. After receipt of the appellant's withdrawal, the ACBA Committee informed the parties that resolution of the dispute would go forward despite the notice of withdrawal. A hearing was held on March 10, 1997, and resulted in an award of $28,691.50 for the appellee. A Petition to Confirm Arbitration Award was filed by the appellee alleging that the ACBA Committee's decision was \\\"binding\\\" per the terms of the \\\"Agreement to Arbitrate\\\". The appellant's rejoinder was his \\\"discontinuance\\\" of the complaint prior to arbitration rendered any healing thereafter \\\"a nullity\\\". The court disagreed and held \\\"the defendant [wa]s bound by the arbitration agreement[.]\\\" Also, the court referred the dispute back to the ACBA Committee \\\"for resolution in accordance with the executed arbitration agreement\\\" because the appellee was willing to permit the appellant to offer evidence. This appeal ensued challenging the court's directive to arbitrate.\\nInitially, we need to decide the finality of the order appealed, an issue which was reserved by this Court after the appellee filed a post-appeal \\\"Motion to Quash\\\".\\nGenerally, our Courts have held that an order which has the effect of compelling arbitration is not final and appealable. Maleski v. Mutual Fire, Marine and Inland Ins. Co., 534 Pa. 575, 633 A.2d 1143, 1145-1146 (1993); Erie Ins. Exchange v. Midili, 450 Pa.Super. 279, 675 A.2d 1267, 1269 (1996); Gardner v. Prudential Ins. Co., 332 Pa.Super. 358, 481 A.2d 654, 655 (1984); see also 42 Pa.C.S.A. \\u00a7 7320. At bar, however, this does not translate into a foreclosure of the appellant's appeal. Albeit the court directed the parties to binding arbitration, the directive was beyond the court's authority to order given the stage of the litigation, i.e., the dispute had been decided. Cf. Brown v. D. & P. Willow, Inc., 454 Pa.Super. 539, 686 A.2d 14 (1996) (Court acted ultra vires when in ordered the parties, absent an agreement, to binding arbitration).\\nTo explicate, \\\"[t]he only matter properly before [the court] was whether an agreement to arbitrate the dispute existed.\\\"' Santiago v. State Farm Ins. Co., 453 Pa.Super. 343, 683 A.2d 1216, 1218 (1996). Once such a finding had been made, the court could order arbitration. Id. Here, such a directive need not have been issued because the dispute had already been resolved by the (first) arbitration.\\nStated otherwise, the (first) arbitration process was not subject to unilateral withdrawal by the appellant absent (as in any contract) a mutual mistake of fact, fraud in the inducement or coercion in its securement. Schneider, Inc. v. Research-Cottrell, Inc., 474 F.Supp. 1179 (D.C.1979) (A fraudulently induced agreement to arbitrate is not enforceable); Project Builders, Inc. v. Zeiders, 87 Dauphin Cty.Rpts. 344, 346-347 (1967) (Arbitration agreement can be revoked only by mutual consent); Dunn v. Lewis, 11 Chester Cty.Rpts. 370, 372 (1964) (Semble); Rosenfeld v. Rosenfeld, 52 Lackawanna Jur. 226, 228 (1952) (\\\"The parties are bound by their own promises, and, if the dispute is such as the parties contract to arbitrate, redress cannot be sought elsewhere until the arbitration is carried out.\\\"). No such grounds were proffered by the appellant. Accordingly, the contract to arbitrate was valid, enforceable and irrevocable after both disputants executed the \\\"Agreement to Arbitrate\\\", of which the submission was the moving consideration.\\nIn Mendelson v. Shrager, 432 Pa. 383, 248 A.2d 234 (1968), our Supreme Court reversed the trial court's holding that one party may unilaterally revoke an agreement to arbitrate a dispute between members of the Allegheny County Bar, both of whom consented to submit disputes arising under the agreement to the final and conclusive decision of an arbitrator. When a dispute did arise relative to the division of fees and the appellant sought submission of the controversy to arbitration, the trial court's sustaining the appellee's preliminary objections and dismissing the complaint in favor of allowing the action to proceed in assumpsit was held to be error. In doing so, the Mendelson Court wrote:\\nWe have held on numerous occasions that a submission to arbitration is not revocable when it is part of a contract containing other terms to be performed by the parties. \\\"... a submission is not revocable when it is part of a contract containing other terms to be performed by the parties, especially where those terms have been wholly or partly executed, or where it partakes of the nature of a contract by which important rights reciprocally are gained and lost, and of which the submission is the moving consideration.\\\"\\n. Settlement of disputes by arbitration are no longer deemed contrary to public policy. In fact, our statutes encourage arbitration and with our dockets crowded and in some jurisdictions congested arbitration is favored by the courts.\\nContracts that provide for arbitration are valid, enforceable and irrevocable, save upon such grounds as exist in law and equity for the revocation of any other type of contract. This is equally true of common law arbitration and the arbitration provided in the Act of 1927.\\n432 Pa. at 385, 248 A.2d 234 (Citations omitted). Accord Bashford v. West Miami Land Co., 295 Pa. 560, 567, 145 A. 678 (1928); Frederick v. Margwarth, 221 Pa. 418, 420, 70 A. 797 (1908); McCune v. Lytle, 197 Pa. 404, 412-413, 47 A. 190 (1900); White's Appeal, 108 Pa. 473 (1885); 19 Stand.Pa.Prac.2d, \\u00a7 103:1, 103:8, 103:13, 103:18 (1983).\\nSub judice, the parties entered into an agreement to arbitrate a fee dispute. A panel of three attorneys would be appointed to hear the case, and their decision was to be final and conclusive, implying that the parties renounced the right to except thereto or to take an appeal. However, when an award was issued, the appellee's effort to confirm it was'objected to by the appellant as invalid by his withdrawal.\\nThe court acted properly in denying the appellant's efforts to render the award a nullity. Nevertheless, the court exceeded its authority when it ordered the case to be reheard because the appellee had agreed to allow the appellant to present evidence before a new board of arbitrators. This was error.\\nQuestions which were the subject of dispute in the arbitration proceedings may not be retried in an action brought upon the award. As Mr. Justice Stem stated in Goldstein et al. v. International Ladies' Garment Workers' Union et al., 328 Pa. 385, 196 A. 43 [(1938)], at page 389 [196 A. 43]: \\\"An arbitrator, in the absence of any agreement limiting his authority, is the final judge of both law and fact, and his award will not be reversed or set aside for mistake of either; otherwise arbitration proceedings, instead of facilitating the settlement of controversies, would serve but to delay the final determination of the rights of the parties: Pierce Steel Pile Corporation v. Flannery, 319 Pa. 332, 339 [179 A. 558].\\\" See also Canuso et al. v. Philadelphia, 326 Pa. 302, 308, 192 A. 133.\\nGowen v. Pierson, 166 Pa. 258, 31 A. 83, was a' suit on an award made by certain architects as named arbitrators in a building contract. The lower court discharged plaintiff's rale for judgment for want of a sufficient affidavit of defense. In reversing and ordering judgment entered for plaintiff, Chief Justice Sterret, pointed out that a party to an arbitration agreement who refuses to take part in arbitration proceedings \\\"is not in a position to raise questions which he might have presented to the arbitrators, or to re-open, in this action on their award, questions upon which they were authorized to pass and did in fact determine in making up their award.\\\"\\nUnder these authorities, it is clear that the rale principally relied , upon by the court below is not applicable here.\\nBritex Co. v. Schwab & Sons, 139 Pa.Super. 474, 480-481, 12 A.2d 473 (1940). See also Wyoming Radio, Inc. v. Nat'l Ass'n of Broadcast Employees & Technicians, AFL-CIO, 398 Pa. 183, 157 A2d 366, 367 (1960).\\nAt bar, the court below attempted to ameliorate the appellant's voluntary absence from the initial arbitration hearing by availing him the opportunity to appear at a second arbitration hearing. As in Britex, the court's efforts to accommodate the appellant and reopen the case does violence to the precepts upon which arbitration is based \\u2014 a conclusive tribxmal from which no appeal may be perfected except for common law reasons, i.e., fraud, not here applicable. Mendelson, supra. Therefore, the order of the court below is reversed and judgment is to be entered in favor of the appellee on remand.\\nOrder reversed, case remanded for a pro-cedendo, and jurisdiction is relinquished.\\nMONTEMURO, J., concurs in the result.\\n. The provisions for submission, showing the intent of the parties, contemplate common law arbitration. No specific reference is made in the terms of submission to the Uniform Arbitration Act of 1980. P.L. 693, No. 142, \\u00a7 501(a), 42 Pa.C.S.A. \\u00a7 7301 et seq., and by their conduct the parties have not undertaken in any particular to follow the provisions of the Act. Therefore, contrary to the appellee's citation to Section 7303 of the Act at page 7 of its brief, we hold the Act does not apply. Cf. Dunn v. Lewis, 11 Chester Cty.Rpt. 370, 371 (1963) (Arbitration Act of 1927 not applicable to an arbitration-dispute-clause where parties made neither mention of it nor acted in a fashion to make it germane to the case).\"}"

pa/12143760.json

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+"{\"id\": \"12143760\", \"name\": \"Holingsworth versus Ogle et. al.\", \"name_abbreviation\": \"Holingsworth v. Ogle\", \"decision_date\": \"1788-04\", \"docket_number\": \"\", \"first_page\": \"257\", \"last_page\": \"260\", \"citations\": \"1 Dall. 257\", \"volume\": \"1\", \"reporter\": \"Dallas\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:19:22.748618+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rush, and Bryan, Justices, concurred.\", \"parties\": \"Holingsworth versus Ogle et. al.\", \"head_matter\": \"Holingsworth versus Ogle et. al.\\nTHIS was an action of debt brought upon a bond, dated the 5th June, 1779; the penalty of the bond being in \\\"\\u00a3 200 hard Money computing half Joes at \\u00a33;\\\" and the condition, for the payment of \\\"the full and just sum of \\u00a3 100 hard Money, or Specie, computing half Joes at \\u00a3 3; on the expiration of five Years, from the date with lawful interest &c.\\\" The Defendants pleaded Payment, to which the Plaintiff replied, Non Solverunt, and issue was thereupon joined.\\nIt appeared at the trial, that the bond was given in consideration of a sum of \\u00a3 500 Continental Currency, lent by the Plaintiff to the Defendants in June, 1779, when the scale of depreciation estimates that money at twenty for one.\\nIngersol and Sergeant, for the Defendants,\\ncontended, that the Plaintiff\\u2019s demand was of an usurious nature, and so unreasonable, that it ought not in equity and good conscience to be allowed. They admitted, that the Jury could not sett aside the contract of the parties; but insisted, that they might, and in this case ought to give only damages, according to what was just and reasonable; and that they were not bound to find the sum expressed in the bond. 2 Vern. 402. 121. 1 Atk. 351. 2. Kaims Princ. Eq, 70. 2 Eq. Abr. 186. pl. 9. 2 Vern. 14. 10 Mod. 503.\\nLewis, for the Plaintiff\\nThis is an action of debt upon a bond, and therefore the case of damages is not applicable, unless the Jury shall think proper to give any thing beyond the penalty. There is nothing usurious or unreasonable in the contract; for, at the expiration of the five years, in which the bond was made payable, if the continental money had appreciated, the Plaintiff would have been a considerable loser. Besides, an Act of Assembly declared, that a continental dollar should be equal to gold and silver; and the money, being a legal tender when lent, the Defendant may have paid a specie debt with it. Nor can a question of usury be considered in this action; for, the Act of Assembly does not make the contract void on that account, as the English statute does, but only inflicts a forfeiture, equivalent to the money or other article lent, which must be recovered in another suit. In the case of Lee vs. Biddis, ant. 175. this Court refused to let in evidence to shew what was meant by current lawful Money, expressed in the contract, because it would tend to contradict, not only the contract, but likewise the Act of Assembly establishing the scale. Here the contract is expresly for the payment of hard Money, and as the law only fixes a scale for the payment of contracts in continental Money, where no Tender has been made, the Jury cannot set aside the solemn act of the parties, but ought to find a verdict generally for the Plaintiff. 2 State Laws 7. 448. 494. 1 State Laws 120.\", \"word_count\": \"2008\", \"char_count\": \"11378\", \"text\": \"M'Kean, Chief Justice.\\nThe Plaintiff states that the Defendants owe him \\u00a3 100, and in order to prove his allegation, he produces their bond, dated on the 5th of January, 1779, payable five years afterwards, that is, on the 5th of June, 1784. In answer to this demand, the Defendants have pleaded Payment (which in such cases, is made the general issue by a law of this State) and they have shewn in support of their plea, that the bond in question was given in consideration of \\u00a3 500 of continental paper, lent by the Plaintiff to the Defendants, at their instance, when it was worth no more than at the rate of twenty continental dollars for one in specie. Upon these circumstances it is to be determined, how much, if any thing, the Plaintiff ought to recover in the present action.\\nIn cases for which the positive law has clearly and expresly provided, it is the duty of Courts and Juries to be governed in their decisions, by the rule that is there prescribed; for Courts of Chancery, and the general principles of equity, can never be allowed to contradict or defeat the express provisions of a statute: And even where there is no Act of Assembly to direct us, the common law, recognized and ascertained by the adjudications of the Courts upon the same subject, often furnishes a guide to which we are bound to yield attention and obedience; for, the maxim is certainly just, that it is better the law should be determinate and fixed, although it were originally erroneous, than that it should be precarious and fluctuating, according to the different talents and dispositions of the Judges, who are appointed to administer it. But, in the present case, the positive law is silent; and, though many authorities in the books have been refered to, not one has been discovered, which is strictly analogous to the question under our immediate consideration. There is, indeed, an Act of Assembly, passed on the 21st of June, 1781, 2 State Laws 494. the 5th section of which seems to relate, in some degree, to the present controversy, when it enacts, that \\\"all debts \\\"&c. granted and contracted for by any deed, will &c. since the \\\"1st day of January, 1777, which were expressed to be paid and\\n\\\"discharged in any foreign money, or in gold or silver money of a-\\\"ny denomination, or in bullion, or in any commodity, and which \\\"have not since been paid and satisfied or discharged, shall be \\\"deemed,construed and taken to be yet due and owing from debtors \\\"to creditors, in such money or other commodity, as in the said \\\"contracts were expressed, and the same may be sued for and re\\\"covered in any Court &c. in so much gold or silver money as shall \\\"be equal in value to the debt or duty, according to the contract.\\\" But the meaning of this section (and in the interpretation of laws, recourse must always be had to the meaning of the Legislature) is only this; that, where a contract had been made for payment in specie,\\nin foreign gold, in bullion, or in any specific commodity, the creditor is entitled to recover according to the stipulations of that contract. This therefore, does not reach the present point; for, although the bond is payable in hard money, the dispute arises upon the actual depreciation, which rendered \\u00a3 500, continental money of considerably less real value, at the time of entering into the Contract, notwithstanding the laws of the State had declared it to be equivalent to specie, of any denomination then circulating. If, indeed, this had been a bond for the payment of continental money, there is no doubt that, by the Act of Assembly just cited, only so much specie, as the \\u00a3 500 was really worth, could be recovered by the Plaintiff; but it is a bond for the payment of hard Money, in consideration of a loan of continental Money, and hence the difficulty occurs.\\nIt is unnecessary to review all the authorities that have been read, from the different reports of decrees in chancery; which have, in general, proceeded upon the ground either of fraud, of surprize, of the suggestion of a falsehood, of the suppression of a truth, or of the unreasonable and unconscionable nature of the contract itself. The last of these being the only case that can be applicable to the subject before us, our enquiry is reduced to one point, to wit, whether the contract now litigated is so unreasonable in its nature, at to have become iniquitous, and, therefore, ought not to be countenanced in a Court of Justice? The arguments appear to be strong on both sides, particularly in the two cases, which have been opposed to each other, by the contending council. On the one hand, where a man has borrowed, \\u00a3 1000 in continental money which, before the day of payment, had unexpectedly risen seventy-sold in value, it would certainly he hard to compel him to return \\u00a3 70,000, for the use of the \\u00a3 1000 which he received: And, on the other hand, it is equally true, that where \\u00a3 500 continental money has been loaned in consideration of a bond for \\u00a3 100 specie, the lender can never claim any more than the last mentioned sum, though a change in the public credit and circumstances, should have made the \\u00a3 500 continental money equal to specie, and by that means he has sustained a loss of the difference between the two sums.\\nIt is likewise to be considered that when the contract was entered into between the Plaintiff and Defendants, the paper medium of the United States was in a very fluctuating condition; and, though the event has shewn the fallacy of the opinion, there were not wanting many good and intelligent men, who strongly maintained, that the continental money would eventually be redeemed, according to its nominal value. This far, however, is clear, that the law, at that time, did not acknowledge the current depreciation, so that the Defendant might legally have satisfied any specie debt, with the money which the Plaintiff had advanced. Nor was it then customary to lend merely for the interest; but a practice had prevailed of making loans upon bonds payable in dollars, or for bills of exchange payable in France; and, although very usurious and exhorbitant profits were thus accumulated, yet it is said (and I believe it to be true) that there was no law that could prevent, or suppress the mischief. Indeed, after much consideration, this Court entertains the opinion, that there would not be any thing illegal in taking a bond for \\u00a3 200 of the last state emission of bills of credit, when only 100 had been lent; for that paper-money is only made a tender and payment of debts due to the Commonwealth, and, in every other respect, must be considered merely as an article of merchandize. But the case before us, is of another nature; it is that of a bond payable in hard Money, given in consideration of a sum lent in continental Money, which the law then declared to be, in all cases, a good and sufficient tender and payment.\\nSince, therefore, we have no rule to guide us, but the exercise of a legal discretion, it may be proper to reflect, that it will be as inconsistent with equity to give too little, as to give too much. If the Plaintiff's demand would amount to seventy or a hundred sold the value of the money he advanced, it would, perhaps, be wrong to allow it; but,whether a less, and what,sum would be an unreasonable profit, must depend upon a consideration of the advantage which the Defendant might have derived from the loan, the loss which the Plaintiff might have sustained, the length of the credit given upon the bond, and the possible insolvency of the obligors. These circumstances certainly entitle the Plaintiff to something more than the common interest of money;-what advance a Court of Chancery would decree, we cannot ascertain with precision; but, it seems, that more than double the sum, has been generally determined to be unreasonable and unconscionable.\\nThe Court, upon the whole, are unanimously of opinion, that in an action of debt, brought upon a bond, and where the issue is joined upon a plea of payment, the Jury may, and ought to presume every thing to have been paid, which ex equo et bono, in equity and good conscience, ought not to be paid. Such is the current of the determinations in the Court of Chancery of England; and the same principle is recognized in the case of Moses and M'Parian; 2 Burr. 1005. for, though the Courts of Justice cannot alter or destroy the contract of the parties, they may interpose to render it conformable to reason, justice, and conscience.\\nRush, and Bryan, Justices, concurred.\\nThe Jury found a verdict for the Plaintiff in the sum of \\u00a3 76. 10. with six-pence costs.\"}"

pa/122110.json

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+"{\"id\": \"122110\", \"name\": \"TURNWAY CORPORATION, a Pennsylvania Corporation, Appellant, v. Joseph SOFFER and Violet Soffer, his wife, Appellees, v. The SHERIFF OF ALLEGHENY COUNTY, Pennsylvania\", \"name_abbreviation\": \"Turnway Corp. v. Soffer\", \"decision_date\": \"1979-04-13\", \"docket_number\": \"No. 550\", \"first_page\": \"357\", \"last_page\": \"363\", \"citations\": \"265 Pa. Super. 357\", \"volume\": \"265\", \"reporter\": \"Pennsylvania Superior Court Reports\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T01:46:50.466800+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before VAN der VOORT, SPAETH and LIPEZ, JJ.\", \"parties\": \"TURNWAY CORPORATION, a Pennsylvania Corporation, Appellant, v. Joseph SOFFER and Violet Soffer, his wife, Appellees, v. The SHERIFF OF ALLEGHENY COUNTY, Pennsylvania.\", \"head_matter\": \"401 A.2d 1345\\nTURNWAY CORPORATION, a Pennsylvania Corporation, Appellant, v. Joseph SOFFER and Violet Soffer, his wife, Appellees, v. The SHERIFF OF ALLEGHENY COUNTY, Pennsylvania.\\nSuperior Court of Pennsylvania.\\nArgued Oct. 24, 1978.\\nDecided April 13, 1979.\\nJohn Daley, Pittsburgh, for appellant.\\nDavid H. Ehrenwerth, Pittsburgh, for appellees.\\nBefore VAN der VOORT, SPAETH and LIPEZ, JJ.\", \"word_count\": \"1644\", \"char_count\": \"10096\", \"text\": \"SPAETH, Judge:\\nThis is an appeal from an order directing that execution upon a judgment may proceed only against a supersedeas bond.\\nThe origins of the present case lie in an action in equity brought by appellant to require appellees to remove certain sanitary and storm sewer lines from appellant's property. The decree entered in that case directed the removal of the lines and awarded appellants damages of $7,500 per year, starting August 1970 and continuing until such time as the lines were removed, plus the additional sum of $245 for expenditures on repairs. Appellees appealed the decree and posted a bond of $75,000, so that the appeal would act as a supersedeas. In April 1975 the Supreme Court affirmed the decree. 461 Pa. 447, 336 A.2d 871 (1975). Appellees petitioned the lower court to modify the decree as affirmed, and to stay execution, but the lower court denied the petition, and on June 10, 1976, by per curiam order, we affirmed. 241 Pa.Super. 564, 358 A.2d 64 (1976).\\nThus, it cannot be questioned that appellees were subject to a final decree requiring them to remove the sanitary and storm sewer lines from appellant's property. However, on November 19, 1976, before appellees had removed the lines, the Department of Environmental Resources issued an order stating that if the appellees removed the sanitary sewer lines there would be a \\\"discharge of sewage onto the surface of the ground and into the waters of the Commonwealth.\\\" Record at 30a. The order went on to say that this would be a \\\"nuisance\\\" under Section 202 of the Clean Streams Act, 35 P.S. \\u00a7 691.202 (Purdon's 1977), since appellees did not possess a discharge permit. Record at 31a. Accordingly, the order directed appellees to \\\"take no steps to comply with [the final decree in this case] as to any sewers covered by Sewerage Permit 464S37, which steps would cause or permit a violation of the Clean Streams Law, supra, to occur in Wilkins Township.\\\" Record at 32a.\\nWilkins Township has appealed this order to the Pennsylvania Environmental Hearing Board. In the meantime, however, in early 1977, appellant caused a writ of execution to be issued against appellees in the amount of $57,306.20 and instructed the sheriff of Allegheny County to post appellees' residence for sale. Appellees petitioned to strike or stay the execution. On June 30,1977, the lower court did stay the execution \\\"until further order of this Court.\\\" On January 9, 1978, the court entered the order that is the subject of this appeal. This order precluded appellant from recovering any damages incurred after November 19, 1976, that is, after the order issued by the Department of Envi ronmental Resources. The order further provided that in recovering damages incurred before November 19,1976, that is, damages of $7,500 per year starting August 1970, appellant could proceed only against appellees' bond of $75,000, entered incident to the original appeal.\\nAppellant argues that the lower court was without power to enter its order, and also that the court should not have limited execution to appellees' supersedeas bond.\\nIt is settled that an aggrieved party may petition for reconsideration of a final decree in equity. See Pa.R.Civ.P. 1522. There is a paucity of case law as to whether the same possibility exists once the final decree has been affirmed by an appellate court. However, in In re Estate of Bell, 463 Pa. 109, 114, 343 A.2d 679, 681 (1975), the Supreme Court stated that the Orphan's Court \\\"may still, in accordance with the long-established practice, entertain a petition for review notwithstanding a decree of confirmation by this Court, but only where the questions were not raised or passed upon appeal. This would naturally include cases of after-discovered evidence or fraud.\\\" (Emphasis supplied.)\\nIn the case before us, neither after-discovered evidence nor fraud was alleged in the petition to strike or stay execution. Nevertheless, the petition did allege a compelling change of circumstances; for if the allegations of the petition are accepted, it would appear that appellees are caught in a most awkward position, with one branch of the government \\u2014 the courts \\u2014 requiring them to remove the sanitary sewer lines, while another \\u2014 the Department of Environmental Resources \\u2014 forbids them to remove the lines. It is arguable that these allegations set out a more convincing reason to grant relief than if appellees had alleged after-discovered evidence. The parties had no control over the entry of the Department of Environmental Resources order; a party alleging after-discovered evidence must show not only that the evidence might result in relief, but that he had previously exercised \\\"due diligence\\\" in proceeding to trial without it. See Hydro-Flex Inc. v. Alter Bolt Company, Inc., 223 Pa.Super. 228, 296 A.2d 874 (1972); Commonwealth v. Rambo, 250 Pa.Super. 314, 378 A.2d 953 (1977). We therefore conclude that the lower court may have had the power to enter its order modifying the original final judgment.\\nThis conclusion, however, does not end our consideration of the issue of the lower court's power, for appellant argues that in any event the court's procedure was defective. We agree. In the first place, it was somewhat anomalous to modify a final decree in the context of a stay of execution proceeding. Goodrich-Amram state that \\\"[ujnder the guise of controlling execution process, a court may not rewrite the judgment.\\\" 9 Goodrich-Amram 2d \\u00a7 3121(c):1.1. It would have been preferable if the lower court had directed appellees to file a separate petition seeking modification of the judgment. Of greater concern, however, is that the lower court decided the case on the basis of the petition to strike or stay execution, the answer, and the accompanying exhibits. No testimony was taken. Evidently the lower court believed that testimony was unnecessary, for it stated in the opinion accompanying its order that \\\"[t]he facts are not in dispute.\\\" Slip opinion at 1, Record at 34a. This is a puzzling conclusion, however, inasmuch as appellant's answer to appellees' petition specifically disputed appellees' claim that the prior final decree of the court and the Department of Environmental Resources order were in conflict. The case must therefore be remanded to the lower court to give appellant, and appellees, an opportunity to present testimony on the issue of whether the final decree and the Department of Environmental Resources order were in conflict.\\nGiven this conclusion, we need not determine whether the lower court erred in limiting execution to appellees' supersedeas bond. We do note, however, that Pa.R.Civ.P. 3121 states that\\n(a) Execution shall be stayed as to all or any part of the property of the defendant\\n# \\u2021\\n(2) upon the entry of bond with the prothonotary, by any person or party in interest, with security approved by the prothonotary, in the amount of plaintiff's judgment, including probable interest and costs, or in such lesser amount as the court may direct, naming the Commonwealth of Pennsylvania as obligee, and conditioned to pay the amount due within ninety (90) days of the entry of bond, unless the for payment be further extended by the court; time\\nReversed and remanded for proceedings consistent this opinion. with\\n. Pa.R.Civ.P. 1522 states: \\\"A petition for a rehearing shall set forth the special matter or cause for which such rehearing is sought. The petition for rehearing shall be filed within a reasonable time after the discovery of the grounds for rehearing and in no event later than the time for taking an appeal.\\\"\\n. We disagree with appellees' assertion that appellant has waived, by not making, the argument that the lower court's procedure was defective. Appellees' Brief at 6. Appellant's Brief states: \\\"It is submitted that the lower court converted the petition to strike or stay the execution filed on behalf of the Soffers in the lower court into a Bill of Review and on the basis of same and without taking any testimony it modified a decree which had been reviewed and affirmed by both the Supreme and Superior Courts of this Commonwealth.\\\" Appellant's Brief at 13.\\n. Traditionally, the proper procedure would have been to file a bill or review, which Goodrich-Amram describe as \\\"in effect a new suit in equity to set aside or reexamine an outstanding final decree in a prior equity suit.\\\" 5 Goodrich-Amram 2d \\u00a7 1522:4 n. 6. Apparently, the bill of review has been replaced by the petition for rehearing. 5 Goodrich-Amram 2d \\u00a7 1522:4.\\n. Appellant's view of the effect of the order issued by the Department of Environmental Resources differs from appellees'. Appellant's answer stated in pertinent part: \\\"The Department of Environmental Resources of the Commonwealth of Pennsylvania at no time directed the Defendants not to comply with the Decree of Judge LEWIS. It only directed the Defendants to make provisions for complying with Judge LEWIS'S Order not to create a nuisance or to endanger the health and safety of the public. There is no reason for the failure on the part of the Defendants to have complied with Judge LEWIS'S Decree following June 10, 1976. It was the Defendants who trespassed on the Plaintiffs property by placing the sanitary and storm sewer lines on same and it is their responsibility under the law to remove same. Naturally, in removing the sanitary sewer line they must comply with state and local ordinances that apply.\\\" Supplemental Record at 6. On remand, the lower court should resolve this issue. Also, as was noted above, Wilkins Township has appealed the Departmental or Environmental Resources order. The outcome of this appeal may have some bearing on the lower court's decision.\"}"

pa/12281687.json

@@ -0,0 +1 @@
+"{\"id\": \"12281687\", \"name\": \"Gray v. Denaples; Faruqi v. Solfanelli; Solfanelli, In re\", \"name_abbreviation\": \"Gray v. Denaples\", \"decision_date\": \"2016-06-22\", \"docket_number\": \"91 MAL (2016)\", \"first_page\": \"650\", \"last_page\": \"650\", \"citations\": \"636 Pa. 650\", \"volume\": \"636\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T18:28:01.933928+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gray v. Denaples; Faruqi v. Solfanel-li; Solfanelli, In re\", \"head_matter\": \"Gray v. Denaples; Faruqi v. Solfanel-li; Solfanelli, In re\\n06/22/2016\\n91 MAL (2016)\", \"word_count\": \"18\", \"char_count\": \"116\", \"text\": \"Denied\\nPa.Super., 136 A.3d 1024\"}"

pa/12285625.json

@@ -0,0 +1 @@
+"{\"id\": \"12285625\", \"name\": \"Mangan v. Safe Auto Ins. Co.\", \"name_abbreviation\": \"Mangan v. Safe Auto Ins. Co.\", \"decision_date\": \"2016-08-10\", \"docket_number\": \"126 WAL (2016)\", \"first_page\": \"678\", \"last_page\": \"678\", \"citations\": \"636 Pa. 678\", \"volume\": \"636\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T18:28:01.933928+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mangan v. Safe Auto Ins. Co.\", \"head_matter\": \"Mangan v. Safe Auto Ins. Co.\\n08/10/2016\\n126 WAL (2016)\", \"word_count\": \"15\", \"char_count\": \"86\", \"text\": \"Denied\\nPa.Super., 135 A.3d 666\"}"

pa/12286852.json

@@ -0,0 +1 @@
+"{\"id\": \"12286852\", \"name\": \"Com. v. Baldwin\", \"name_abbreviation\": \"Com. v. Baldwin\", \"decision_date\": \"2016-05-11\", \"docket_number\": \"992 MAL (2015)\", \"first_page\": \"768\", \"last_page\": \"768\", \"citations\": \"635 Pa. 768\", \"volume\": \"635\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:24:32.320788+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Com. v. Baldwin\", \"head_matter\": \"Com. v. Baldwin\\n05/11/2016\\n992 MAL (2015)\\n. Justice WECHT did not participate in the consideration or decision of this matter.\", \"word_count\": \"25\", \"char_count\": \"158\", \"text\": \"Denied\\nPa.Super., 135 A.3d 648\"}"

pa/12286936.json

@@ -0,0 +1 @@
+"{\"id\": \"12286936\", \"name\": \"Com. v. Burik\", \"name_abbreviation\": \"Com. v. Burik\", \"decision_date\": \"2016-05-04\", \"docket_number\": \"58 MAL (2016)\", \"first_page\": \"769\", \"last_page\": \"769\", \"citations\": \"635 Pa. 769\", \"volume\": \"635\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:24:32.320788+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Com. v. Burik\", \"head_matter\": \"Com. v. Burik\\n05/04/2016\\n58 MAL (2016)\\n. Justice DONOHUE did not participate in the consideration or decision of this matter.\", \"word_count\": \"25\", \"char_count\": \"157\", \"text\": \"Denied\\nPa.Super., 135 A.3d 662\"}"

pa/12331098.json

@@ -0,0 +1 @@
+"{\"id\": \"12331098\", \"name\": \"Robert W. HILL, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW\", \"name_abbreviation\": \"Hill v. Unemployment Compensation Board of Review\", \"decision_date\": \"2017-08-01\", \"docket_number\": \"No. 75 EM 2017\", \"first_page\": \"1080\", \"last_page\": \"1080\", \"citations\": \"169 A.3d 1080\", \"volume\": \"169\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T18:13:16.683938+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert W. HILL, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW\", \"head_matter\": \"Robert W. HILL, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW\\nNo. 75 EM 2017\\nSupreme Court of Pennsylvania.\\nAugust 1, 2017\", \"word_count\": \"43\", \"char_count\": \"253\", \"text\": \"ORDER\\nPER CURIAM\\nAND NOW, this 1st day of August, 2017, the \\\"Petition for Allowance of Appeal Nunc Pro Tunc\\\" is DENIED.\"}"

pa/12350593.json

@@ -0,0 +1 @@
+"{\"id\": \"12350593\", \"name\": \"COM. v. EBO, M.\", \"name_abbreviation\": \"Com. v. Ebo\", \"decision_date\": \"2017-06-21\", \"docket_number\": \"92 WDA 2016\", \"first_page\": \"91\", \"last_page\": \"91\", \"citations\": \"174 A.3d 91\", \"volume\": \"174\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T02:18:45.103399+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COM. v. EBO, M.\", \"head_matter\": \"COM. v. EBO, M.\\n92 WDA 2016\\nSuperior Court of Pennsylvania.\\n06/21/2017\", \"word_count\": \"15\", \"char_count\": \"131\", \"text\": \"CP-02-CR-0002821-2012\\n(Allegheny)\\nAffirmed/Vacated/Remanded\"}"

pa/12353798.json

@@ -0,0 +1 @@
+"{\"id\": \"12353798\", \"name\": \"COMMONWEALTH of Pennsylvania, Petitioner v. Rishad WILLIAMS, Respondent\", \"name_abbreviation\": \"Commonwealth v. Williams\", \"decision_date\": \"2017-11-07\", \"docket_number\": \"No. 480 EAL 2016\", \"first_page\": \"562\", \"last_page\": \"562\", \"citations\": \"174 A.3d 562\", \"volume\": \"174\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T02:18:45.103399+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COMMONWEALTH of Pennsylvania, Petitioner v. Rishad WILLIAMS, Respondent\", \"head_matter\": \"COMMONWEALTH of Pennsylvania, Petitioner v. Rishad WILLIAMS, Respondent\\nNo. 480 EAL 2016\\nSupreme Court of Pennsylvania.\\nNovember 7, 2017\", \"word_count\": \"38\", \"char_count\": \"243\", \"text\": \"ORDER\\nPER CURIAM\\nAND NOW, this 7th day of November, 2017, the Petition for Allowance of Appeal is DENIED.\"}"

pa/1240407.json

@@ -0,0 +1 @@
+"{\"id\": \"1240407\", \"name\": \"Crane v. Crane (et al., Appellant)\", \"name_abbreviation\": \"Crane v. Crane\", \"decision_date\": \"1953-02-13\", \"docket_number\": \"Appeal, No. 21\", \"first_page\": \"1\", \"last_page\": \"7\", \"citations\": \"373 Pa. 1\", \"volume\": \"373\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T00:38:31.692687+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Stern, C. J., Stearne, Jones, Bell, Chidsey and Arnold, JJ.\", \"parties\": \"Crane v. Crane (et al., Appellant).\", \"head_matter\": \"Crane v. Crane (et al., Appellant).\\nArgued January 9, 1953.\\nBefore Stern, C. J., Stearne, Jones, Bell, Chidsey and Arnold, JJ.\\nreargument refused March 24, 1953.\\nW. Davis Graham, for appellant.\\nWilliam J. Kenney, for appellee.\\nFebruary 13, 1953:\", \"word_count\": \"1561\", \"char_count\": \"9093\", \"text\": \"Opinion by\\nMr. Chief Justice Horace Stern,\\nThe issue here is one of jurisdiction.\\nPlaintiff, Jean M. Crane, a resident of Armstrong County, brought a bill of complaint in that county against her husband, Radford R. Crane, and Eljer Company, a corporation incorporated under the laws of the Commonwealth of Pennsylvania, with its principal office in Armstrong County. Th\\u00e9 bill alleged that her husband had separated himself from h\\u00e9r without reasonable cause and was now living in Miami, Florida; that he has refused and neglected to contribute to her maintenance and has fled from the Commonwealth for the purpose of evading his obligation to support her; that he has property within the jurisdiction of the court consisting of (a) approximately $16,000 on deposit in a bank in Kittanning; (b) real property situate in Kittanning, the title to which is held by them as tenants by the entireties; (c) a large number of shares of stock of Eljer Company, the certificates evidencing the ownership of this stock being in their names jointly; (d) dividends declared upon the stock but remaining unpaid by the Company.\\nThe prayer of the bill was that the Eljer Company be enjoined from distributing any portion of the stock or paying out the accumulated dividends in which her husband has an interest until his liability for her support is determined by decree of the court; that the court fix the amount of money to which plaintiff is entitled for past and future maintenance; and that the court decree the seizure, sale or mortgage of the real estate and make such order for payment from the personal property as may be required to provide the necessary funds for her maintenance.\\nThe court made an order that the defendant husband be served with a copy of the bill of complaint at Miami or wherever he may be found; whether or not such service has been made does not appear in the record. The Eljer Company filed a petition raising a question of jurisdiction under the Act of March 5, 1925, P. L. 23, contending that jurisdiction as to it depends upon the situs of its stock and the dividends declared thereon, and that any interest or right of the husband in such stock and dividends has its situs only where he resides; it was also asserted that the Act of May 23, 1907, P. L. 227, pursuant to which the proceedings were instituted, was unconstitutional, and that any decree which would result in the taking of the stock and dividends would be in violation of the 14th Amendment to the Constitution of the United States; apparently, however, these latter contentions have been abandoned. The court refused to dismiss the case for want of jurisdiction and directed the Eljer Company to answer the averments of the complaint. The Eljer Company appeals from that order.\\nThe Act of May 23, 1907, P. L. 227, as amended, provides that if any man shall separate himself from his wife without reasonable cause, and, being of sufficient ability, shall neglect or refuse to provide suitable maintenance for his wife, she shall be empowered to bring her action, at law or in equity, against her husband for maintenance, in the court of common pleas of the county where the desertion occurred, or where she is domiciled. It is further provided that proceedings may be had against any property, real or personal, of the husband necessary for the suitable maintenance of the wife, and the court may direct a seizure and sale, or mortgage, of sufficient of such estate as will provide the necessary funds for such maintenance. It further provides for service upon the defendant in the manner provided by the Act of April 6, 1859, P. L. 387.\\nAn action such as the present is in the nature of an attachment proceeding \\u2014 in rem or at least quasi in rem \\u2014 and if service cannot be made on the principal defendant within the jurisdiction of the court it is imperative that there be property, real or personal, within the jurisdiction: Jones v. Jones, 344 Pa. 310, 312, 25 A. 2d 327, 328.\\nThere are two questions here involved: (1) Are the shares of stock in the Eljer Company to be deemed property within the jurisdiction of the Court of Common Pleas of Armstrong County such as to confer jurisdiction upon the court? (2) Can plaintiff in this proceeding obtain satisfaction out of property the title of which is in the name of herself and husband as tenants by the entireties?\\nIt was generally held in most jurisdictions prior to the enactment of the Uniform Stock Transfer Act that shares of stock should be considered as located at the domicile of the state of incorporation of the company, the certificate being merely evidence of the fact of ownership of the shares and not itself constituting attachable property (see cases cited 122 A.L.R. 340, 358). What the Uniform Stock Transfer Act (in Pennsylvania, the Act of May 5, 1911, P. L. 126) aimed to remedy was the possibility that where shares of stock were attached in the state of incorporation the certificate evidencing the ownership of such shares might be transferred in another jurisdiction to a purchaser for value and without notice of the attachment: Leff v. N. Kaufman's Inc., 342 Pa. 342, 348, 349, 20 A. 2d 786, 790. Accordingly it was provided, section 13, that no attachment or levy upon shares of stock for which a certificate was outstanding should be valid until such certificate be actually seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined. In the present case, however, the danger thus sought to be avoided could not possibly exist, inasmuch as no effective transfer of the certificates of the stock could be made without the plaintiff's joinder; therefore, the purpose of the Act not being affected, the statute is here inapplicable. The Uniform Stock Transfer Act has not changed the actual situs of the shares nor deprived the courts of this state from exercising jurisdiction over stock in a Pennsylvania corporation owned by nonresidents (cf. Harvey v. Harvey, [C.C.A. 7], 290 Fed. 653, 659). What it has done is to make the certificate also a res for the. purpose of attachment and levy; thus, in Mills v. Jacobs, 333 Pa. 231, 4 A. 2d 152, it was held that, where the state of incorporation had adopted the Uniform Stock Transfer Act, the certificates of stock of a corporation of that state might be the subject of attachment execution in our own state. In short, as stated in Restatement, Conflict of Laws, \\u00a753 and 104, shares in a corporation are subject to the jurisdiction of the state in which the corporation was incorporated, and the share certificate is subject to the jurisdiction of the state within whose territory it is. The only requirement is that where the shares are attached in the state where the company was incorporated the certificate evidencing the ownership of the shares must be seized or surrendered or its transfer enjoined, except where, as in the present case, such a requirement becomes unnecessary by reason of the fact that the defendant cannot convey title by transfer of the certificate without the joinder of the attaching creditor.\\nAs far as the declared, but unpaid, dividends On the stock of the Eljer Company are concerned, they constitute a debt of the corporation (Given's Estate, 323 Pa. 456, 185 A. 778) and, as such, have a situs in this state for proceedings in the nature of a foreign attachment: Restatement, Conflict of Laws, \\u00a7108.\\nThe second question for consideration is whether plaintiff can obtain satisfaction of her claim for maintenance out of the stock held in the joint names of herself and husband as tenants by the' entireties and the dividends declared thereon. This question does not really go to the matter of jurisdiction, but becomes a proper subject of inquiry only after the court has assumed jurisdiction of the proceeding. It may be pointed out, however, that the Act of May 23, 1907, P. L. 227, \\u00a72, provides that proceedings ' for' a \\u2022 decree for '\\u2022 main tenance of the wife \\\"may be had against any property, real or personal, of said husband, necessary for the suitable maintenance of the said wife.\\\" The husband certainly has an interest in all property owned as tenants by the entireties, and there is no reason why that interest should not be applied to the support of the wife whom he has deserted; (see Acts of June 11, 1913, P. L. 468, and May 24, 1923, P. L. 446, as to execution against real property owned by the entireties). Accordingly, after an order shall have been made by the court for plaintiff's maintenance it may be implemented by proceedings which will enable her to enforce it by liquidation of the shares of stock and the accumulated dividends thereon owned by them as tenants by the entireties so as to enable her to obtain satisfaction out of her husband's interest therein.\\nOrder affirmed.\"}"

pa/12421291.json

@@ -0,0 +1 @@
+"{\"id\": \"12421291\", \"name\": \"COM. v. LARAMY, E.\", \"name_abbreviation\": \"Com. v. Laramy\", \"decision_date\": \"2017-07-19\", \"docket_number\": \"150 MDA 2017\", \"first_page\": \"397\", \"last_page\": \"397\", \"citations\": \"175 A.3d 397\", \"volume\": \"175\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T21:55:08.220270+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COM. v. LARAMY, E.\", \"head_matter\": \"COM. v. LARAMY, E.\\n150 MDA 2017\\nSuperior Court of Pennsylvania.\\n07/19/2017\", \"word_count\": \"22\", \"char_count\": \"182\", \"text\": \"CP-01-CR-0000143-2010, CP-01-CR-0000146-2010 (Adams)\\nAffirmed \\u2014 Application to Withdraw as Counsel Granted\"}"

pa/12425357.json

@@ -0,0 +1 @@
+"{\"id\": \"12425357\", \"name\": \"COM. v. HERNANDEZ, T.\", \"name_abbreviation\": \"Com. v. Hernandez\", \"decision_date\": \"2017-08-22\", \"docket_number\": \"1974 MDA 2016\", \"first_page\": \"1104\", \"last_page\": \"1104\", \"citations\": \"175 A.3d 1104\", \"volume\": \"175\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T21:55:08.220270+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COM. v. HERNANDEZ, T.\", \"head_matter\": \"COM. v. HERNANDEZ, T.\\n1974 MDA 2016\\nSuperior Court of Pennsylvania.\\n08/22/2017\", \"word_count\": \"15\", \"char_count\": \"128\", \"text\": \"CP-14-CR-0000980-2016\\n(Centre)\\nReversed/Remanded\"}"

pa/1309564.json

@@ -0,0 +1 @@
+"{\"id\": \"1309564\", \"name\": \"Ei Bon ee Oscar Holly, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Crime Victim's Compensation Board, Respondent\", \"name_abbreviation\": \"Holly v. Commonwealth\", \"decision_date\": \"1983-06-06\", \"docket_number\": \"No. 145 C.D. 1983\", \"first_page\": \"609\", \"last_page\": \"614\", \"citations\": \"74 Pa. Commw. 609\", \"volume\": \"74\", \"reporter\": \"Pennsylvania Commonwealth Court Reports\", \"court\": \"Commonwealth Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T18:47:43.440047+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\u25a0 Submitted on briefs to Judges Rogers, Craig and MacPhail, sitting as a panel of three.\", \"parties\": \"Ei Bon ee Oscar Holly, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Crime Victim\\u2019s Compensation Board, Respondent.\", \"head_matter\": \"Ei Bon ee Oscar Holly, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Crime Victim\\u2019s Compensation Board, Respondent.\\n\\u25a0 Submitted on briefs to Judges Rogers, Craig and MacPhail, sitting as a panel of three.\\nEi Bon ee Oscar Holly, petitioner, for himself.\\nGregory R. Neuhauser, Deputy Attorney General, with him Francis R. Filipi, Deputy Attorney General, and LeRoy 8. Zimmerman, Attorney General, for respondent.\\nJune 6, 1983:\", \"word_count\": \"1172\", \"char_count\": \"7181\", \"text\": \"Memorandum Opinion and Order,\\nBefore us for disposition are the preliminary objections of the Crime Victim's Compensation Board to a pro se application filed in this court by Ei Bon ee Oscar-Holly (applicant) and styled a \\\"COMPLAIN [sic] IN EQUITY AND/OR PETITION FOR TEMPORTARY [sic] INJUNCTION.\\\"\\nThe dispute between the parties evidently concerns the failure of the board to respond affirmatively to the applicant's request for \\\"hardship money\\\" pur suant to Section 477.8 of the Administrative Code, 71 P.S. 180-7.8 having to do with emergency awards and providing that the board member to whom a crime victim's compensation claim is assigned may, if it appears that a compensation award probably will be made and that undue hardship will result if immediate interim payment is not forthcoming, grant an emergency award in an amount no greater than $1,000. The applicant here avers that he requested such an emergency award; that he will be irreparably harmed by the failure of the board to make the emergency award; and that the emergency award has not been granted. The applicant then prays that this court compel or enjoin the board to grant an emergency award in the maximum amount permitted, $1,000.\\nThe board has interposed preliminary objections in which it asserts that the applicant has failed to pursue available remedies at the administrative level and that the applicant has here improperly invoked the original jurisdiction of this court because the exclusive judicial remedy in this class of case is by way of an appeal from the board's refusal to grant an emergency award. We agree with the principle contained in the board's preliminary objection last described but disagree that the application of the principle in the instant case, without more, requires the dismissal of the applicant's petition with prejudice. Instead, we are constrained to dismiss the petition without prejudice to the applicant's right to renew the appeal and to remand the matter to the board for the further proceedings we are about to describe.\\nThis court will not interfere with the due course of administrative proceedings by means of injunction, mandamus, or prohibition where, as in this case, there is an adequate remedy by means of an appeal. Robertshaw Controls v. Pennsylvania Human Relations Commission, 67 Pa. Commonwealth Ct. 613, 447 A.2d 1083 (1982); Pye v. Insurance Department, 29 Pa. Commonwealth Ct. 545, 372 A.2d 33 (1977). See also Brew v. Mathews, 425 F. Supp. 727 (E.D. Pa. 1977) (injunctive relief will not be granted to compel payment of disability insurance benefits; exclusive remedy is by means of appeal from decision of Secretary of HEW). However, an appeal improvidently sought by means of a complaint in mandamus or an application for injunctive or extraordinary relief in the form of a request for the issuance of a prerogative writ may not for that reason alone be dismissed. Section 708(c) of the Judicial Code, 42 Pa. C. S. \\u00a7708(c); Pa. R.A.P. No. 1503. Instead, we will treat the petition as if it had been addressed to our appellate jurisdiction. Bronson v. Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980).\\nUnfortunately, we are unable to now decide the cause as an appeal. First, the petition contains only conclusory averments as to the propriety of injunctive relief and contains no averments relevant to the central issues on appeal, whether the applicant probably would have been granted a crime victim's compensatory award and whether the board abused a sound discretion in refusing the application for an interim emergency award. In addition, the adjudication of the board from which this appeal has been taken cannot be reviewed in its present form because it does not include an order of the board or factual findings or an evidentiary record certified to this Court. In this regard, Section 477.7 of the Administrative Code, 71 P.S. \\u00a7180-7.7, provides that appeals from the board's adjudications shall be governed by the requirements of the Administrative Agency Law which in turn, in Sections 504 and 507, 2 Pa. C. S. \\u00a7504 and 507, provides that adjudications of Commonwealth agencies shall be invalid unless predicated on reasonable notice to the applicant of a hearing stenographically recorded and further requires that all adjudications of Commonwealth agencies be in writing and contain factual findings and a statement of reasons.\\nFor these reasons we are compelled to return this matter to the board for further proceedings consistent with this opinion and to dismiss the applicant's petition without prejudice to the right to renew the appeal in the event of an adverse decision of the board following the required hearing.\\nOrder\\nAnd Now, this 6th day of June, 1983, the record in the above-captioned matter is remanded to the Crime Victim's Compensation Board for further proceedings consistent with this opinion. Jurisdiction is hereby relinquished.\\nWhen the complaint was first filed we entered an order directing that the so-called complaint be regarded as a petition for review seeking relief within our original jurisdiction.\\nAct of April 9, 1929, P.L. 177, No. 175, added ^y Section 2 of tlie Act of July 9,1976, P.L. 574, No. 139.\\nIt is clear that the applicant's petition does not state a cause of action in mandamus or aver the necessary factual predicates to the issuance of injunctive relief. A writ of mandamus will not is sue where the duty sought to be compelled is one charged to the discretion of a public official. Shaler Area School District v. Salakas, 494 Pa. 630, 432 A.2d 165 (1981). Here, the decision as bo whether the emergency award should be granted and, if so, the amount of the award is within the board's discretion. Injunctive relief will be granted only when, inter alia, the rights of the applicant are clear. Christoffel v. Shaler Area School District, 60 Pa. Commonwealth Ct. 17, 430 A.2d 726 (1981). The applicant's right to an award in the maximum amount permitted is far from clear since, as we have indicated, the applicable provision of the Administrative Code provides for an emergency award only when the crime victim's compensation claim \\\"probably\\\" will be upheld and the petition contains no averments from which the existence of such a probability could be deduced.\\nIt is not even clear whether the board bias taken final action to deny the applicant's emergency request. The petition contains only the following averment: \\\"5. Said [board] did not award to [the applicant] said hardship money as required by law.\\\" Since the board has not asserted or argued that it is still considering the emergency request, we infer that a final negative determination has been reached and that the pro se petition's ambiguity is insignificant.\"}"

pa/1316226.json

@@ -0,0 +1 @@
+"{\"id\": \"1316226\", \"name\": \"Elijah Gauden, Appellant v. Borough of Roscoe, Appellee\", \"name_abbreviation\": \"Gauden v. Borough of Roscoe\", \"decision_date\": \"1984-01-17\", \"docket_number\": \"Appeal, No. 2659 C.D. 1982\", \"first_page\": \"589\", \"last_page\": \"594\", \"citations\": \"79 Pa. Commw. 589\", \"volume\": \"79\", \"reporter\": \"Pennsylvania Commonwealth Court Reports\", \"court\": \"Commonwealth Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T02:26:31.755949+00:00\", \"provenance\": \"CAP\", \"judges\": \"before Judges Williams, Jr., MaoPhail and Blatt, sitting 'as a panel of three.\", \"parties\": \"Elijah Gauden, Appellant v. Borough of Roscoe, Appellee.\", \"head_matter\": \"Elijah Gauden, Appellant v. Borough of Roscoe, Appellee.\\nArgued October 5, 1983,\\nJanuary 17, 1984:\\nbefore Judges Williams, Jr., MaoPhail and Blatt, sitting 'as a panel of three.\\nPaul A. Tershel, with him D. Keith Melenyser, for appellant.\\nJohn E. Costello, for appellee.\", \"word_count\": \"1220\", \"char_count\": \"7519\", \"text\": \"Opinion by\\nJudge Williams, Jr.,\\nElijah Gauden appeals from an order of the Court of Common Pleas of Washington County dismissing his exceptions and affirming \\u00a1the trial court's opinion and order which dismissed his complaint in mandamus against the Bor ough of Roscoe.\\nSeeking reinstatment and back pay, Gauden filed a complaint in mandamus .alleging that he was dismissed as chief of police in violation of the provisions of the Act of June 15, 1951, P.L. 586, as amended, 53 P.S. \\u00a7811-816 (known as the Police Tenure Act) in that he was never furnished with a written statement of the charges against him and was not granted a hearing prior to dismissal. Section 4 of the Act, 53 P.S. \\u00a7814. The Borough denied that Gauden had been dismissed and averred that he had chosen not to con tiime as the Borough's chief of police under .a mew condition of employment.\\nThe 'Common pleas court, ,afte>r a hearing on the mandamus complaint, decided, inter alia, that G-auden Was not discharged hut voluntarily chose not to work under \\u00a1the new condition of \\u00a1employment; that the Police Tenure Act was therefore not applicable; and, that the mandamus 'action was not appropriate. This appeal followed.\\nAfter a thorough review of the record w\\u00e9 conclude that the trial court .erred in finding that Ganden had resigned from his \\u00a1chief \\u00a1of police position. In 1981, Ganden's personal vehicle was .twelve years old, could not pass inspection and was not economically \\u00a1serviceable. Additionally, Ganden apprised -the Borough that he could not afford to purchase a vehicle suitable for police work. Although Ganden never abandoned his employment (when the Borough police ear was sold he performed foot patrol duties), the borough council declared .the chief of police position vacant upon Ganden's failure to accept 'the new condition of employment.\\nUnless there is some special meaning to be attributed to it, the word \\\"resign\\\" should be given its nor mal and customary meaning which is \\\" [t]o give up deliberately: renounce by a considered or formal act. . . .\\\" Webster's Third New International Dictionary 1932 (1966). Thus in light of the absence of an expression of intention to relinquish his duties and the accompanying act of relinquishment, Ganden did not resign from his position. See, City of Chicago v. O'Malley, 69 Ill. 2d 474, 372 N.E. 2d 671 (1978); see also, 67 C.J.S. Officers, \\u00a7103 (1978).\\nBecause Ganden was dismissed by the Borough, it follows that such removal was governed by the provisions of the Police Tenure Act which prohibit 'the discharge of a covered police officer for reasons other than those set forth in Section 2 of the Act, 53 P.S. \\u00a7812. Further, Section 4 of the Act expressly requires the filing of written charges and the adjudication of the propriety of the disciplinary action (suspension or removal) in a hearing if demanded by the police officer. The statutory remedy is completed by the 'according of a right of appeal to common pleas court to the suspended or dismissed police officer. Section 5 of the Act, 53 P.S. \\u00a7815.\\nInstead of availing himself of the Act's adequate and appropriate administrative remedy by demanding the furnishing of written \\u00a1charges and the benefit of a hearing, Ganden immediately instituted an action in mandamus seeking, not Borough compliance with the Act's procedural requirements, but reinstatement and back pay. As \\u00a1our Supreme Court stated in Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 824-25 (1972),\\nmandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appro priate and adequate remedy. (Citation omitted.) (Emphasis added.)\\nTherefore when an appropriate and adequate statutory remedy exists it must be pursued and mandamus does not lie. See Packler v. State Employes' Retirement Board, 33 Pa. Commonwealth Ct. 452, 382 A.2d 158 (1978), aff'd, 487 Pa. 51, 408 A.2d 1091 (1979) (mandamus action dismissed because of failure to exhaust adequate and appropriate statutorily mandated administrative hearing and appeal process).\\nThe Police Tenure Act clearly provides adequate procedures by which Gauden could have challenged the Borough's .actions. See Stull v. Robinson, No. 1977-0977 \\u2014 Civil Division (C.P. Pa., filed April 24, 1978), aff'd mem., 49 Pa. Commonwealth Ct. 96, 411 A.2d 270 (1980) (mandamus action for .reinstatement to position of acting police chief was improper where no resort had been made to the administrative remedy available in the Police Tenure Act); see also, Spaulding v. Township Supervisors, 22 Cumb. L.J. 56 (C.P. Pa. 1972) .(Police Tenure Act provided an adequate remedy thus rendering unavailable a former police chief's mandamus remedy where he .sought reinstatement and back pay).\\nAlthough the instant mandamus action is inappropriate, Section 708(c) of the Judicial Code, 42 Pa. C. S. \\u00a7708'(c), precludes a simple affirmance .of the trial court's dismissal of Gauden's complaint. In light of Ganden's removal and the consequent applicability of the Police Tenure Act, we remand for additional proceedings and findings necessary to determine whether Ganden was properly discharged under the provisions of the Police Tenure Act.\\nAccordingly, we reverse the order .of the common pleas' court and remand for proceedings consistent with this Opinion.\\nOrder\\nAnd Now, this 17th day of January, 1984, the order of the Court of Common Pleas of Washington County, dated October 5, 1982, is vacated and the matter is remanded for proceedings consistent with this Opinion.\\nJurisdiction relinquished.\\nThe dispute arose upon the Borough's decision in May 1981 to sell, for reasons of economy, \\u00a1the 'Borough's sole police oar. Ganden was advised that \\u00a1he would be reimbursed 'ait a fixed rate for the use 'of \\u00a1his personal automobile while on' police business. After advising the Borough that he lacked 'access to a suitable automobile, Gauden did not comply with \\u00a1the Borough's directive that he provide his own vehicle as a condition for continued employment. By letter dated July 27, 1981, the Borough apprised Gauden that a positive response to the new requirement should be made by August 21, 1981. Upon Gauden's failure to accept .the new condition of employment, borough council declared the chief of police position to be vacant on August 24,1981.\\nOur scope of review is to determine whether the common pleas court committed an abuse of discretion or an error of law. In Re: Appeal of Redo, 42 Pa. Commonwealth Ct. 468, 401 A.2d 394 (1979).\\nSection 708(c) of the Judicial Code pertinently states:\\nIf a complaint in .the mature of . . . mandamus . is commenced in any court against a government unit . . . objecting to a governmental determination . . . where the proper mode of relief is an appeal from the determination of the government unit, this alone shall not .be ground for dismissal, but the papers whereon the process against the government unit . . . was commenced shall be regarded and acted on as an appeal from such determination of the government unit and as if filed at the time such process was commenced.\"}"

pa/1356764.json

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+"{\"id\": \"1356764\", \"name\": \"Raymond Russo, Appellant v. Zoning Hearing Board of Perkiomen Township, Appellee\", \"name_abbreviation\": \"Russo v. Zoning Hearing Board\", \"decision_date\": \"1987-02-20\", \"docket_number\": \"Appeal, No. 1894 C.D. 1986\", \"first_page\": \"155\", \"last_page\": \"159\", \"citations\": \"104 Pa. Commw. 155\", \"volume\": \"104\", \"reporter\": \"Pennsylvania Commonwealth Court Reports\", \"court\": \"Commonwealth Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T20:03:36.872372+00:00\", \"provenance\": \"CAP\", \"judges\": \"before Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three.\", \"parties\": \"Raymond Russo, Appellant v. Zoning Hearing Board of Perkiomen Township, Appellee.\", \"head_matter\": \"521 A.2d 111\\nRaymond Russo, Appellant v. Zoning Hearing Board of Perkiomen Township, Appellee.\\nArgued December 8, 1986,\\nbefore Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three.\\nMarc D. Jonas, Silverman, Jonas & Lawrence, for appellant.\\nFrank R. Bartle, Dischell, Bartle, Yanoff & Dooley, for appellee.\\nJohn F. Walsh, Philip R. Detwiler & Associates, P.C., for intervenor, Perkiomen Township Board of Supervisors.\\nJames J. Heffernen, for intervenor, Cranberry Corporation.\\nFebruary 20, 1987:\", \"word_count\": \"952\", \"char_count\": \"6168\", \"text\": \"Opinion by\\nSenior Judge Kalish,\\nAppellant, Raymond Russo, appeals from an order of the Court of Common Pleas of Montgomery County which dismissed his appeals from the trial courts approval of the decision of the Zoning Hearing Board of Perkiomen Township (Zoning Hearing Board) affirming the Perkiomen Township Board of Supervisors (Board of Supervisors) approval with conditions of an application from the Cranberry Corporation for a planned residential development.\\nOn December 7, 1976, Cranberry Corporation submitted to the Supervisors an application for tentative approval of a planned residential development. Following public hearings, the Board of Supervisors unanimously voted to reject the application. On appeal, the trial court remanded the matter to the Board of Supervisors, directing it to make adequate findings of fact and conclusions of law. On April 10, 1979, the Board of Supervisors granted tentative approval subject to certain conditions.\\nRusso, a neighboring landowner, filed an appeal from the Board of Supervisors' decision with the Zoning Hearing Board. The Zoning Hearing Board filed a petition for declaratory judgment in the trial court seeking a determination as to whether it had jurisdiction to act on Russo's appeal. Russo filed a complaint in mandamus in the trial court, asking the court to require the Zoning Hearing Board to hold hearings on the appeal. These cases were consolidated for appeal, and in 1985 the trial court remanded the 1979 appeal to the Zoning Hearing Board for a hearing. The Zoning Hearing Board held a hearing, and on February 10, 1986, issued a decision approving the decision of the Board of Supervisors. Russo appealed the decision to the trial court.\\nDuring the pendency of the Zoning Hearing Boards petition for declaratory judgment and Russos complaint in mandamus in the trial court, Cranberry Corporation filed an appeal in the trial court from the Board of Supervisors' grant of tentative approval subject to conditions, alleging that the conditions were onerous. The trial court dismissed the appeal on October 10, 1979, on the ground that Cranberry Corporation had failed to timely notify the Board of Supervisors of its objections to the conditions, and therefore had constructively accepted the conditions. Cranberry Corporation appealed the decision to this court.\\nPrior to this court's reaching a decision in Cranberry Corporation's appeal, Cranberry Corporation and the Board of Supervisors entered into an agreement which terminated the litigation. The agreement followed two years of negotiation, and ended the litigation in exchange for the tentative approval of Cranberry Corporation's application with modifications of the conditions set forth in the April 10, 1979 tentative approval. This agreement was approved at a public hearing on July 7, 1981, and Cranberry Corporation withdrew its pending appeal in this court. Russo, who had not been a party to this agreement because he had not intervened at any stage of these proceedings, filed an appeal with the Zoning Hearing Board, challenging the agreement.\\nThe Zoning Hearing Board held four public hearings, and issued a decision stating that Russo lacked standing to file an appeal. However, the Zoning Hearing Board's decision went on to consider the merits, and made extensive findings of fact, affirming the Board of Supervisors. Russo appealed to the trial court, which held that Russo lacked standing to file the appeal. On appeal, this court, by opinion and order dated November 26, 1984, remanded the case to the Zoning Hearing Board for a decision on the merits.\\nOn August 22, 1985, the Zoning Hearing Board dismissed Russos appeal on the merits. Russo again appealed to the trial court. The trial court consolidated this appeal with Russos appeal from the Zoning Hearing Boards decision dated February 10, 1986. On June 11, 1986, the trial court dismissed both of Russos appeals. Russo now appeals from the trial courts decision dismissing both of his appeals.\\nRusso argues that: (1) the Board of Supervisors' agreement with Cranberry Corporation which granted tentative approval of a planned residential development should be overturned because the plan approved by the agreement was a new and illegal sketch plan; (2) the agreement violates substantive and procedural requirements of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. \\u00a710101-11108A and the Perkiomen Township Zoning Ordinance; (3) the Zoning Hearing Board's conclusions misapplied the law and exercised manifestly unreasonable judgment in blatant disregard of the evidence; (4) the Board of Supervisors lacked the authority and power to enter into the agreement with Cranberry Corporation; (5) the tentative approval of the planned residential development was deemed revoked because development plans for final approval were not submitted in accordance with the terms of the conditions of the tentative approval; and (6) the tentative approval of the planned residential development should be reversed because the plan does not comply with the Perkiomen Township Planned Residential Development Ordinance.\\nJudge Salus of the Court of Common Pleas of Montgomery County addressed and rejected all of these arguments. After a careful review of the record, we are satisfied with that disposition. Accordingly, we will affirm on the basis of the well-reasoned opinion authored by Judge Salus, reported at 40 Pa. D. & C. 3d 505 (1986).\\nOrder\\nNow, February 20, 1987, the order of the Court of Common Pleas of Montgomery County, Nos. 83-07806 and 86-03112, dated June 11, 1986, is affirmed.\"}"

pa/1391677.json

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+"{\"id\": \"1391677\", \"name\": \"Stella TAYLOR, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE EMPLOYES' RETIREMENT SYSTEM, Respondent\", \"name_abbreviation\": \"Taylor v. Commonwealth\", \"decision_date\": \"1989-05-31\", \"docket_number\": \"No. 2147 C.D. 1988\", \"first_page\": \"606\", \"last_page\": \"610\", \"citations\": \"127 Pa. Commw. 606\", \"volume\": \"127\", \"reporter\": \"Pennsylvania Commonwealth Court Reports\", \"court\": \"Commonwealth Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T18:35:59.911531+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CRAIG and DOYLE, JJ., and KALISH, Senior Judge.\", \"parties\": \"Stella TAYLOR, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE EMPLOYES\\u2019 RETIREMENT SYSTEM, Respondent.\", \"head_matter\": \"562 A.2d 920\\nStella TAYLOR, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE EMPLOYES\\u2019 RETIREMENT SYSTEM, Respondent.\\nCommonwealth Court of Pennsylvania.\\nArgued May 4, 1989.\\nDecided May 31, 1989.\\nPublication Ordered Aug. 15, 1989.\\nThomas A. Crawford, Jr., Pittsburgh, for petitioner.\\nRichard D. Michlovitz, Harrisburg, for respondent.\\nBefore CRAIG and DOYLE, JJ., and KALISH, Senior Judge.\", \"word_count\": \"860\", \"char_count\": \"5390\", \"text\": \"KALISH, Senior Judge.\\nThis is a petition to review the decision and order of the State Employes' Retirement Board (Board), which denied Stella Taylor's (petitioner) application for disability retirement benefits. We affirm.\\nPetitioner worked for the State Department of Public Welfare, beginning March 17, 1972, and was enrolled in the State Employes' Retirement System. She was hospitalized with a foot injury in February, 1978, and returned to work on a part-time basis. On September 22, 1978, she was notified that her part-time work would terminate as of October 2, 1978. She was advised that she could request either a leave of absence without pay for six months, or a full time job if released by her physician. She was instructed to communicate with the personnel department.\\nPetitioner's job was terminated on October 2, 1978. Petitioner did not withdraw her pension contributions and admits that she could have done so, and admits that she was further advised that she may have been qualified for a disability annuity. Instead, she filed a grievance with her union, which was subsequently settled with the Commonwealth. The agreement contained the proviso that petitioner would be placed on leave without pay status from October 3, 1978 through February 15, 1981. In addition, she could apply for disability retirement if she were on leave without pay. Her employer placed her on leave without pay, but petitioner did not apply for disability retirement. Petitioner rejected the agreement, and instead filed with the Pennsylvania Labor Relations Board (PLRB) an unfair practices charge against the state and her union. This charge was dismissed and petitioner appealed to this court, which affirmed the PLRB.\\nOn August 15, 1986, about eight years after the termination of her employment, petitioner sought disability retirement, which was denied.\\nOur scope of review is limited to a determination of whether the Board violated constitutional rights, committed an error of law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. \\u00a7 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).\\nThe present issue is whether the Board committed an error of law in interpreting the provisions of the State Employees' Retirement Code (Code), 71 Pa.C.S. \\u00a7 5101-5956. The Code provides:\\nDisability Annuity.\\u2014An active member or inactive member on leave without pay . shall, upon compliance with section 5907(k), be entitled to a disability annuity if prior to attainment of superannuation age he becomes mentally or physically incapable of continuing to perform the duties for which he is employed and qualifies in accordance with the provisions of section 5905(c)(1)____\\nSection 5308(c) of the Code.\\nAn active member is defined as, \\\"A state employee, or a member on leave without pay, for whom pickup contributions are being made to the fund.\\\" Section 5102 of the Code.\\nAlthough petitioner was neither an active member nor a member on leave without pay when she requested her disability retirement benefits, she relies on section 5704(a) of the Code which provides that one found to be eligible for a disability annuity shall receive a disability annuity payable effective from the date of disability as determined by the Board.\\nPetitioner's reliance on this provision is misplaced. This Code provision must be read in its proper context, not only in connection with sections 5102 and 5308(c) as cited above, but also in conjunction with section 5907(k). Section 5907(k) of the Code provides that a member under superannuation age, who is terminated because of a physical incapacity, may file an application for disability annuity. Section 5704(a) of the Code must also be read in conjunction with section 5905(c)(1), which describes the duties of the Board upon the filing of such application, namely, a finding of disability and the date of such disability.\\nHere, the petitioner did not file a disability retirement application when she became physically incapacitated and, of course, the Board could not find disability nor establish its date. Pursuant to the limitations on eligibility set forth in section 5308(c), petitioner was required to be either an active member or an inactive member on leave without pay in order to be eligible for a disability annuity. Petitioner failed to apply while she was either an active or inactive member.\\nPetitioner must qualify first for disability retirement before it becomes effective. The fact that petitioner had been contesting her employment termination during this period did not relieve her of this obligation.\\nAccordingly, we affirm.\\nORDER\\nNOW, May 31, 1989, the order of the State Employes' Retirement Board, dated August 5, 1988, is affirmed.\\nORDER\\nNOW, August 15, 1989, it is ORDERED that the above-captioned opinion filed May 31, 1989, shall be designated OPINION, rather than MEMORANDUM OPINION, and it shall be reported.\"}"

pa/1401286.json

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+"{\"id\": \"1401286\", \"name\": \"In re Estate of Abdoe\", \"name_abbreviation\": \"In re Estate of Abdoe\", \"decision_date\": \"1999-12-21\", \"docket_number\": \"no. 10054 of 1997, O.C.A.\", \"first_page\": \"564\", \"last_page\": \"576\", \"citations\": \"45 Pa. D. & C.4th 564\", \"volume\": \"45\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Lawrence County Court of Common Pleas\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T21:19:58.991884+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Estate of Abdoe\", \"head_matter\": \"In re Estate of Abdoe\\nC.P. of Lawrence County,\\nno. 10054 of 1997, O.C.A.\\nLawrence M. Kelly, for petitioner.\\nDavid E. Henderson, for respondent.\\nDecember 21, 1999\", \"word_count\": \"3343\", \"char_count\": \"20275\", \"text\": \"MOTTO, J.,\\nThis case is before the court on exceptions to a duly-filed master's report. Exceptions were initially filed by Omar Abdoe, petitioner, to the estate's first and final account and proposed decree of distribution. A master was appointed, and after a hearing, he filed his report. The report makes recommendations to the court regarding executor and counsel fees, and distribution of the decedent's property.\\nThe petitioner excepts to executor and attorney fees as determined in the master's report. The petitioner also objects to the distribution of decedent's personal property, and the manner in which the stock holdings were distributed. All exceptions are now properly before the court for disposition.\\nFindings and conclusions of a master may only be set aside by trial court upon finding an error in applying the law to the facts, or failure by the master to fully consider all matters required to be heard. In re Sweeney, 695 A. 2d 426, 428 (Pa. Super. 1997). Upon the trial judge's review, the trial court has the power to accept or reject the master's report and recommendations in whole or in part. Id. The role of the orphans' court judge in reviewing a master's report is similar to a review by a judge of the findings of a jury. Krepinevich Estate, 433 Pa. 78, 248 A.2d 844 (1969). With this standard in mind, the following is a discussion and disposition of all exceptions.\\nAccording to the master's report, the decedent, Al S. Abdoe died testate on June 1, 1990. Julie Abdoe, decedent's sister, executrix, was named executor in the will. The will, dated January 25, 1991, bequeathed all tan gible personal property and residue to the decedent's children, the petitioner, Martha Jo Jensen, and Greg Abdoe, in equal shares. The decedent's home was devised to the executrix. To help her administer the estate, the executrix retained the assistance of Attorney S. Sanford Kantz.\\nI. EXECUTOR FEES\\nThe petitioner's first exception to the master's report is that the executor's fee is excessive. In the report, the master recommends that the executrix be paid $16,500. The court disagrees with the petitioner, and adopts the master's facts and legal conclusions as set forth in the report.\\nSection 3537 of the Pennsylvania Probate, Estates and Fiduciaries Code sets forth the standard the court must use in establishing compensation for executors. Section 3537 states as follows:\\n\\\"The court shall allow such compensation to the personal representative as shall in the circumstances be reasonable, and just, and may calculate such compensation on a graduated percentage.\\\" 20 Pa.C.S. \\u00a73537.\\nAn executor is entitled to reasonable and just compensation for the services he/she provides. In re Estate of Sonovick, 373 Pa. Super. 396, 541 A.2d 374 (1988). The basis for determining whether compensation is reasonable depends upon the value of the services actually rendered, and not upon some arbitrary formula. In re Estate of Geniviva, 450 Pa. Super. 54, 675 A.2d 306 (1996), alloc. denied, 546 Pa. 666, 685 A.2d 545 (1996); In re Estate of Rees, 425 Pa. Super. 490, 625 A.2d 1203 (1993); see In re Estate of Breyer, 475 Pa. 108, 119, 379 A.2d 1305, 1311 (1977). While, as a matter of convenience, compensation of a fiduciary may be arrived at by way of a percentage, the true test is always what the services were actually worth and to award a fair and just compensation thereof. Estate of Rees at 497, 625 A.2d at 1206. \\\"[E]xecutors seeking compensation from an estate have the burden of establishing facts which show the reasonableness of their fees and entitlement to the compensation claimed.\\\" Estate of Rees at 497, 625 A.2d at 1206. The determination of whether the executor's fees are reasonable is left to the sound discretion of the orphans' court, and the Superior Court will not disturb the orphans' court determination absent a clear error or an abuse of discretion. Id. The orphans' court also has the authority to reduce to a \\\"reasonable and just\\\" level those fees and commissions claimed by the fiduciary. Id.\\nHere, the executrix presented both testimonial and written evidence of the services she provided to the estate of the decedent. The executrix met with Attorney Kantz regularly and often. She dropped off mail at Attorney Kantz's office and frequently met with him to sign documents and to discuss the estate. The executrix also performed the general executor duties such as being sworn in, obtaining death certificates, transferring the decedent's titles to property, and overseeing the disposition of the decedent's property to the beneficiaries.\\nA long and detailed log was presented to the master by the executrix. The log describes in detail each of the executrix's activities and the dates she performed them. The court notes that although the executrix's duties were not difficult, the executrix had to perform her duties with great care and diligence because the value of the estate was significant, and the executrix was responsible for handling a substantial quantity of mail and documents. If the executrix had not performed her duties in a careful manner, she could have disturbed the efficient administration of the estate.\\nFor the reasons listed above, as well as those stated in the master's report, the court agrees with the executor fee recommendation made by the master. The executrix has proven that a fee of $16,500 is a reasonable and just fee. Therefore, the petitioner's first exception regarding the executor's fee is denied.\\nII. ATTORNEY FEES\\nPetitioner next argues the attorney fee of $24,400, as recommended by the master, is excessive. The court is bound to agree.\\nIn the case sub judice, Attorney Kantz originally set his fee at $24,440 based on a flat 5 percent calculation of the gross probate estate. In response to the petitioner excepting to the fee, Attorney Kantz prepared an itemized bill setting forth the hours he worked on the estate. The itemized bill indicates Attorney Kantz expended a total of 135.5 hours. Attorney Kantz charged $150 per hour for a total of $20,325. Attorney Kantz was paid $15,000 by the estate for his services. The amount of $6,187 of that money was paid to Attorney David E. Henderson for his services in administering the estate. Attorney Henderson's fee is not contested.\\nAttorney fees in an estate are to be based on the reasonable value of the service actually rendered. Estate of Rees at 497, 656 A.2d at 1206; Dorsett v. Hughes, 53 Pa. Super. 129, 509 A.2d 369 (1986). Attorneys seeking compensation from an estate have the burden of establishing facts which show the reasonableness of their fees and entitlement to the compensation claimed. Estate of Sonovick at 400, 541 A.2d at 376 (1988). The court has the authority to reduce to a \\\"reasonable and just\\\" level those fees and commissions claimed by counsel. Id. at 399, 541 A.2d at 376. The test for determining the appropriateness of a fee for legal services in an estate is reasonableness. Dorsett, 353 Pa. Super. 129, 509 A.2d 369. Primarily, the responsibility for passing upon the reasonableness of counsel fees rests with the auditing judge. Thompson Estate, 426 Pa. 270, 232 A.2d 625 (1967).\\nIn In re Estate of Preston, 385 Pa. Super. 48, 560 A.2d 160 (1989), an attorney and executor calculated their fees based on a fixed fee schedule. The court found the use of the schedule for the purpose of setting fees was clearly proscribed. Compensation for the administration of an estate cannot be awarded based simply upon a percentage basis. Id. An inquiry must be made by the orphans' court into the reasonableness of fees and commissions disbursed. The court ultimately held that egregious error is committed when a court awards commissions and fees simply on a percentage basis without inquiry into the reasonableness of the compensation. Id.\\nIn the instant case, the master correctly found, in accordance with Estate of Preston, that Attorney Kantz's bill based upon the 5 percent flat fixed fee was improper. The proper method to be employed by the court to calculate attorney fees in an estate case is to determine the reasonable value of the services actually rendered. Estate of Rees at 497, 656 A.2d at 1206.\\nThe issue of what is a fair and reasonable attorney fee in an estate case can sometimes be a delicate and difficult question. The facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed, the character of the services rendered, the difficulty of problems encountered, the importance of the litigation, the value of the property in question, the degree of responsibility involved, whether the fund involved was \\\"created\\\" by the attorney, the professional skill of the attorney rendering services, the standing of the attorney in her profession, the results the attorney was able to obtain, and the ability of the estate to pay a reasonable fee. LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968). See Estate of Bruner, 456 Pa. Super. 705, 691 A.2d 530 (1997); In re Estate of Burch, 402 Pa. Super. 314, 586 A.2d 986 (1991).\\nHere, the facts contained within the record indicate that the type of work performed by Attorney Kantz was basically administrative in nature. Attorney Kantz was required to identify stocks owned by the decedent at the time of his death. It was Attorney Kantz's duty to either locate the stock certificates or prepare forms necessary to replace the stock certificates. There were a total of 10 lost stock certificates.\\nAccording to his itemized bill, Attorney Kantz prepared letters testamentary, spoke to the executrix on the telephone, checked and reviewed documents, met with a stockbroker, and performed the general services of an attorney retained to help administer an estate. Attorney Kantz wrote letters to the petitioner's attorney, and met with the petitioner and executrix on numerous occasions as well.\\nAlthough the value of the estate is significant, $488,805.45, it was not complicated or procedurally involved. The only real difficulty encountered in the case was that some of the decedent's stock certificates owned by the decedent at the time of his death were lost. Attorney Kantz had to determine which stock certificates were missing and then he had to replace them. In order to replace the stock certificates, Attorney Kantz was required to fill out a basic application to send to the corporation along with some informational documents. No fund was created by Attorney Kantz, and he was aided by the executrix in administering the estate.\\nThe master suggests that the behavior of the petitioner in the administration of the estate is a significant factor in setting the attorneys' fee. The court does not agree.\\nAfter a close reading of the testimony at the master's hearing and a detailed review of the record, the court cannot agree with the master that the acts of the petitioner provides strong justification for the attorney's fee. The petitioner contacted Attorney Kantz often and was a bit intrusive into the details of the estate administration. On two occasions, the petitioner told Attorney Kantz that he would attempt to locate the missing stock certificates, and both times the petitioner delayed in informing Attorney Kantz regarding the results of the search.\\nThe court notes that the petitioner's acts did not substantially interfere with the administration of the estate. The petitioner's intrusiveness is best characterized as that of a beneficiary son concerned over the administration of his father's estate. An attorney must many times come into contact and deal with the children and beneficiaries of a decedent on whose estate he works. As a result, the court will not give as great weight to the petitioner's behavior as the master did in setting the attorney's fee.\\nA fee based upon an itemized bill is not in and of itself necessarily proper. It is questionable to automatically assume a lawyer's efforts and time are always worth his hourly rate. Estate of Burch at 318-19, 586 A.2d at 988. In Homer Trust, 10 Fiduciary Rep.2d 382, 383 (O.C. Chester Cty. 1990), the court stated: \\\"[I]t has long been recognized that time alone does not measure the value of services, nor hourly rate the quality.\\\" The determination of reasonable compensation to an attorney for an estate is not relegated to a clock and computer. Estate of Burch at 318-19, 586 A.2d at 988. The time expended does not replace the test of reasonableness, and while time involved is a factor in setting a fair and reasonable fee, it is only one of several factors set forth in LaRocca.\\nAttorney Kantz is a skilled lawyer of good standing in the community, but the court cannot justify a $150 per hour bill for Attorney Kantz's services, especially in light of the nature of the work he performed. It is of significance that Attorney Kantz did not prepare the inheritance tax return, nor did he prepare the final account and audit. Those services were performed by Attorney Henderson. Attorney Kantz's duty was primarily to determine and/or replace the decedent's stock certificates.\\nIn performing his duty, Attorney Kantz charged the estate first for $24,400 based on the 5 percent flat fee calculation. Attorney Kantz then charged the estate for 135.5 hours at $150 in lieu of the $24,400 amount. In his itemized bill, Attorney Kantz charged the estate 30.5 hours at $150 per hour solely to determine the stocks and investments held by the decedent at the time of his death. Attorney Kantz then logged 23 hours at $150 per hour to prepare the forms to replace the stock certificates. As for telephone calls, Attorney Kantz charged the estate $3,712.50 for an indeterminable number of telephone calls to the executrix which the executrix herself testified usually lasted \\\"a couple of minutes.\\\"\\nAttorney Kantz's bill did not state the charges with particularity. Instead, many hours appearing on the bill are grouped together. For example, Attorney Kantz has charged the estate for nine hours for \\\"mise, calls with client for 1996\\\" and for five hours at $150 for \\\"mise, calls with client for 1997.\\\"\\nIn consideration of the foregoing factors, especially that most of the work performed by Attorney Kantz was principally administrative in nature, the court cannot justify an hourly rate of $150 per hour; rather, the court finds that the reasonable services provided by Attorney Kantz are valued at $100 per hour. Attorney Kantz expended 135.5 hours administering the estate. Therefore, Attorney Kantz is entitled to attorney fees in the amount of $13,550.\\nAttorney Henderson's payment of $6,187 is uncontested and must be paid by the estate. The total attorney fees due, therefore, are the amount that Attorney Kantz is entitled ($13,550) plus Attorney Henderson's payment ($6,187), equaling $19,737.\\nIII. DISTRIBUTION IN KIND\\nThe petitioner next argues that he has the right to accept in kind any stocks which are included in the estate so long as there is no objection from the other benefici aries. The court cannot agree and adopts the conclusions and recommendations of the master.\\nThe petitioner, during the course of the administration of the estate, requested AT&T and Lucent stocks in kind. However, the executrix had sold the stocks for distribution to the beneficiaries.\\nArticle Four of the decedent's will states as follows:\\n\\\"In addition to the power conferred by law, my executor shall have the discretionary power to retain for distribution in kind, without duty of diversification, all property owned by me at my death, or to sell any part of such property, upon such terms as my executor shall deem advisable . \\\" (emphasis added)\\nA plain reading of the decedent's will shows that it was the decedent's intent to give the executrix the power to liquidate the stocks and distribute the proceeds. The executrix had no duty to retain the assets for distribution in kind. Petitioner cites no law in his brief supporting his contention that he be entitled to an in-kind distribution of the stock certificates, and the court is not persuaded by his argument.\\nIn conclusion, the petitioner did not show cause for the court to order the stock be distributed in kind. The master's factual and legal findings are adopted, and the petitioner's exception is denied.\\nIV. DISPOSITION OF PERSONAL PROPERTY\\nFor his final exception, the petitioner argues that the executrix did not properly dispose of the decedent's personal property. The court does not agree, and adopts the factual and legal findings as set forth in the master's report.\\nIn his will, the decedent leaves all tangible personal property to his surviving children to be divided amongst them as they may agree, or in the absence of such agreement, as the executrix shall determine. The record indicates that much of the decedent's personal property was left inside his residence, to which the executrix had a key. The executrix allowed each of the decedent's three children to enter the residence and retrieve personal property as they chose. After the children went to the residence on numerous occasions to take the decedent's personal property, few items remained. The remaining items all had either a de minimis value or no value at all, and the executrix donated the items to charity.\\nAn executor, as a fiduciary of the estate, \\\"is required to use such common skill, prudence and caution as a prudent man, under similar circumstances, would exercise in connection with the management of his own estate.\\\" Lohm Estate, 440 Pa. 268, 273, 269 A.2d 451, 454 (1970).\\nAlthough the executrix could have been more careful in itemizing the property and controlling entry into the residence, her actions were understandable. The beneficiaries were children of the decedent, and the beneficiaries' aunt, the executrix, was the decedent's sister. As an aunt, to not permit the decedent's own children into the house of their father would certainly have caused unnecessary family discord. Once the beneficiaries all had ample opportunity to take whichever property they chose from the residence, the executrix could assume that the few, valueless items remaining were not wanted by the beneficiaries and were abandoned.\\nIn conclusion, the court adopts the findings of fact and law made by the master. The items left in the home by the children were abandoned and had no value. The executrix exercised the skill and prudence that a common person would have used under similar circumstances. Therefore, the petitioner's exception is denied.\\nORDER\\nAnd now, December 21, 1999, exceptions to the supplemental master's estate hearing report having been filed and argued, after consideration of the argument of counsel and briefs filed on behalf of the parties, it is ordered, adjudged and decreed as follows:\\n(1) Petitioner's exception 1 regarding the executor's fee is denied. The total fee of the executrix, Julie Abdoe, is fixed at $16,500.\\n(2) Exception 2 regarding attorneys' fees is granted in part. The attorney fee of Attorney S. Sanford Kantz is fixed at $13,550 for services he provided to the estate. The fee of Attorney David E. Henderson is fixed at $6,187. Total attorney fees in the case are therefore fixed at $19,737.\\n(3) Exception 3 is denied. The executrix's disposition of the personal property of the decedent was proper. The remaining items of decedent's personal property not taken from his residence by the beneficiaries had no value and was abandoned.\\n(4) Exception 4 is denied. The beneficiaries have no right to an in-kind distribution of the decedent's stock.\\n(5) The first and final account and proposed decree of distribution of the executrix, as modified by the terms of this order, are hereby confirmed absolutely, and distribution shall be made in such manner as to conform with the account and modifications contained herein.\\n. The executrix submitted an inheritance tax return which first calculated her fee at $24,400. The fee was computed on a flat 5 percent calculation of the gross estate.\\n. The schedule used by the attorney and executor in arriving at fees was that recommended by the attorney general's office.\"}"

pa/140610.json

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+"{\"id\": \"140610\", \"name\": \"Commonwealth v. Johnson, A., Appellant\", \"name_abbreviation\": \"Commonwealth v. Johnson\", \"decision_date\": \"1979-10-26\", \"docket_number\": \"No. 1172\", \"first_page\": \"605\", \"last_page\": \"605\", \"citations\": \"275 Pa. Super. 605\", \"volume\": \"275\", \"reporter\": \"Pennsylvania Superior Court Reports\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T18:09:24.070917+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before VAN der VOORT, SPAETH and WATKINS, JJ.\", \"parties\": \"Commonwealth v. Johnson, A., Appellant.\", \"head_matter\": \"423 A.2d 1315\\nCommonwealth v. Johnson, A., Appellant.\\nArgued April 11, 1979.\\nDennis B. Rafferty, for appellant; John F. Dent, Assistant District Attorney, for Commonwealth, appellee.\\nBefore VAN der VOORT, SPAETH and WATKINS, JJ.\", \"word_count\": \"43\", \"char_count\": \"281\", \"text\": \"The judgment of the lower court is hereby affirmed.\"}"

pa/142641.json

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+"{\"id\": \"142641\", \"name\": \"COMMONWEALTH of Pennsylvania ex rel. Edith B. MAGAZINER v. David A. MAGAZINER, Jr., Appellant\", \"name_abbreviation\": \"Commonwealth ex rel. Magaziner v. Magaziner\", \"decision_date\": \"1980-03-21\", \"docket_number\": \"No. 1974\", \"first_page\": \"169\", \"last_page\": \"175\", \"citations\": \"276 Pa. Super. 169\", \"volume\": \"276\", \"reporter\": \"Pennsylvania Superior Court Reports\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T21:48:27.423886+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WIEAND, LOUIK and ROBINSON, JJ.\", \"parties\": \"COMMONWEALTH of Pennsylvania ex rel. Edith B. MAGAZINER v. David A. MAGAZINER, Jr., Appellant.\", \"head_matter\": \"419 A.2d 149\\nCOMMONWEALTH of Pennsylvania ex rel. Edith B. MAGAZINER v. David A. MAGAZINER, Jr., Appellant.\\nSuperior Court of Pennsylvania.\\nArgued June 28, 1979.\\nFiled March 21, 1980.\\nSamuel Reveron, Philadelphia, for appellant.\\nSidney Ginsberg, Philadelphia, for Commonwealth, appellee.\\nBefore WIEAND, LOUIK and ROBINSON, JJ.\\nJudge DONALD E. WIEAND is sitting by special designation. President Judge OTTO P. ROBINSON of the Court of Common Pleas of Lackawanna County, Pennsylvania, and Judge MAURICE LOUIK of the Court of Common Pleas of Allegheny County, Pennsylvania, are sitting by designation.\\nThis decision was reached following the death of ROBINSON, J.\", \"word_count\": \"1283\", \"char_count\": \"7746\", \"text\": \"WIEAND, Judge:\\nOn January 18, 1968, an agreed order was entered directing appellant, David A. Magaziner, Jr., to pay the sum of $100 per week for the support of three minor children, Robert, Jonathan and Diane. The amount of the order was not allocated in any way among the children. Robert, having attained his majority, was removed from the order on January 24, 1974. Appellant, however, did not seek a reduction in the amount of the order. Therefore, it continued at $100 for the support of the remaining two children. Jonathan reached the age of eighteen on June 19, 1976, and in October, 1976, Diane went to live with her father. A petition was thereafter filed in the court below by which appellant sought to have the support order vacated. Diane reached the age of eighteen on February 6,1978, prior to the date on which appellant's petition to vacate was heard.\\nAt the hearing it was stipulated that Jonathan should be removed from the support order as of June 19, 1976. It was also stipulated that the order should be fully terminated and vacated as of February 6, 1978. Additional stipulations fixed arrearages as of June 15,1978, the date of the hearing in the court below, at $12,500 and the amount paid by appellee, Edith B. Magaziner, for Diane's high school tuition while she lived with her father at $5,368.95. It was agreed finally that arrearages as of February 6, 1978, according to the trial court's modification of the 1968 order, should be reduced to a judgment which was to be entered against appellant.\\nThe trial court determined that no one of these circumstances or any cofhbination thereof warranted a modification in the amount of the order. Therefore, it calculated arrearages to February 6, 1978 at the rate of $100 per week, and directed the entry of judgment for $10,600. It is from this order that the present appeal is taken.\\nIn Bell v. Bell, 228 Pa.Super. 280, 282, 323 A.2d 267, 268-69 (1974), this Court reviewed the pertinent legal principles as follows:\\n\\\"Orders of support are not final and may be increased or decreased where the financial conditions of the parties change. Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa.Super. 163, 280 A.2d 456 (1971); Commonwealth ex rel. Meth v. Meth, 188 Pa.Super. 553, 149 A.2d 488 (1959). However, the order may be modified only by a good faith showing that circumstances existing when the original order was made have materially and substantially changed. Commonwealth ex rel. Naselsky v. Naselsky, 199 Pa.Super. 270, 184 A.2d 288 (1962); Commonwealth ex rel. Crandall v. Crandall, 145 Pa. Super. 359, 21 A.2d 236 (1941). In considering whether the support order should be reduced, the court must take into consideration all relevant facts, Commonwealth ex rel. Fryling v. Fryling, 220 Pa.Super. 68, 283 A.2d 726 (1971), and it is the burden of the party seeking to modify the order to show by competent evidence such a change in conditions as will justify a modification. Commonwealth ex rel. Brennan v. Brennan, 202 Pa.Super. 255, 195 A.2d 150 (1963); Commonwealth ex rel. Bassion v. Bassion, 199 Pa.Super. 541, 185 A.2d 822 (1962).\\\"\\nIn proceedings to modify existing support orders, an appellate court will not interfere with the determination of the trial court unless there has been a clear abuse of discretion. Bell v. Bell, supra, 228 Pa.Super. at 283, 323 A.2d at 269; Commonwealth ex rel. Friedman v. Friedman, 223 Pa.Super. 66, 67, 297 A.2d 158, 159 (1972); Commonwealth ex rel. Kreiner v. Scheidt, 183 Pa.Super. 277, 280, 131 A.2d 147, 149 (1957).\\nIt cannot be questioned that Jonathan's attaining majority and Diane's going to live with her father constituted changes in circumstances which are usually sufficient to justify modifications in an existing order. Despite the changed circumstances, the trial court ordered appellant to continue paying $100 per week for the support of Diane from June 19, 1976, until she attained majority on February 6,1978. The trial judge found that appellant had the ability to pay such an order and based its refusal to reduce the amount thereof upon (1) the cost of psychiatric care for Jonathan, and (2) the cost of Diane's high school education.\\nUnder normal circumstances, a parent's duty to support a child may continue even after the child attains majority where the child requires psychiatric care and is unemployable or otherwise unable to support himself or herself. Commonwealth ex rel. Cann v. Cann, 274 Pa.Super. 274, 418 A.2d 403 (1980); Commonwealth ex rel. Welsh v. Welsh, 222 Pa.Super. 585, 588, 296 A.2d 891, 893 (1972). In the instant case, however, there was no evidence that Jonathan was unemployable or unable to support himself. More importantly, the parties had stipulated that he was to be removed from the order as of June 19,1976. The trial court could not properly ignore this stipulation and, under the guise of an order for the support of Diane, compel appellant in these proceedings to contribute to the cost of Jonathan's psychiatric care. The cost of such care was relevant only to the extent that it adversely affected appellee's ability to contribute to the support of Diane. The trial court's concern, in fixing the amount of the order after June 19, 1976, should have been for the needs of Diane and for the financial abilities of her parents to meet those needs. See: Commonwealth ex rel. Berry v. Berry, 253 Pa.Super. 268, 384 A.2d 1337 (1978). The record, however, discloses insufficient facts to permit a finding of Diane's needs between June 19, 1976 and the date she went to live with appellant.\\nAfter Diane went to live with her father, he provided her with most of her needs. Appellee, however, paid Diane's high school tuition for two years in the amount of $5,368.95. Because, as the trial court observed, appellant had agreed to contribute to the cost of Diane's education, the trial judge determined that the amount of the order for Diane's support, even after she went to live with the appellant, should be in an amount that would reimburse appellee for her daughter's tuition. The trial court required appellant to pay support for Diane at the rate of $100 per week during a period estimated to be from November 1, 1976 to February 6, 1978. The total amount assessed against appellant for this period was $6,600. This amount was greater than the amount of tuition which appellee had paid for Diane from September, 1976 to June, 1978. The order, therefore, was exorbitant.\\nAn appropriate order would be determined not only according to appellant's financial ability to pay support but should also reflect the cost to appellee of providing for Diane's care, support, maintenance and education between June 19,1976 and February 6,1978. This cost might well be greater before October, 1976 than after that time when Diane took up residence with and was provided for by appellant.\\nUpon remand, the trial court should receive evidence which will enable it to fashion an order and enter judgment in accordance with the foregoing opinion.\\nReversed and remanded for proceedings consistent with the foregoing opinion.\"}"

pa/1438724.json

@@ -0,0 +1 @@
+"{\"id\": \"1438724\", \"name\": \"WORLD'S FINEST CHOCOLATE, INC., Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent\", \"name_abbreviation\": \"World's Finest Chocolate, Inc. v. Unemployment Compensation Board of Review\", \"decision_date\": \"1992-11-05\", \"docket_number\": \"No. 1158 C.D. 1992\", \"first_page\": \"370\", \"last_page\": \"377\", \"citations\": \"151 Pa. Commw. 370\", \"volume\": \"151\", \"reporter\": \"Pennsylvania Commonwealth Court Reports\", \"court\": \"Commonwealth Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T01:02:16.227799+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CRAIG, President Judge, PELLEGRINI, J., and BLATT, Senior Judge.\", \"parties\": \"WORLD\\u2019S FINEST CHOCOLATE, INC., Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.\", \"head_matter\": \"616 A.2d 1114\\nWORLD\\u2019S FINEST CHOCOLATE, INC., Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.\\nCommonwealth Court of Pennsylvania.\\nSubmitted on Briefs Sept. 25, 1992.\\nDecided Nov. 5, 1992.\\nLawrence A. Nathanson, for petitioner.\\nRandall Brandes, Asst. Counsel, and Clifford F. Blaze, Deputy Chief Counsel, for respondent.\\nBefore CRAIG, President Judge, PELLEGRINI, J., and BLATT, Senior Judge.\", \"word_count\": \"2288\", \"char_count\": \"13953\", \"text\": \"PELLEGRINI, Judge.\\nWorld's Finest Chocolate, Inc. (Employer/WFC) appeals from an order of the Unemployment Compensation Board of Review (Board) which reversed the Referee's decision and granted William Witkowski (Claimant) unemployment compensation benefits. The Board reversed on the basis that Claimant was an employee of WFC during the time he worked there and not an independent contractor, and he had voluntarily terminated his employment from WFC for a necessitous and compelling reason.\\nClaimant was hired by WFC in early October of 1991 as a sales representative to sell its chocolate for fund raising purposes. Prior to beginning his employment, Claimant signed a Distributor Agreement (Agreement) with his Employer which stated that he would be considered an independent contractor and not an employee for federal tax purposes or any other purposes. The Agreement further stated that Claimant would be paid on a straight commission basis, the Employer would provide Claimant with price schedules and an assigned territory to which he would be restricted, Claimant would be required to file weekly status reports for the first year, and would be prohibited from working for any competitors while employed by WFC for two years after he left its employment.\\nClaimant had worked for WFC for approximately one and one-half months when he terminated his employment. On November 29, 1991, he began working part-time as a salesclerk in the appliance department at K-Mart at the rate of $4.35 per hour plus commission. In December of 1991, Claimant filed a claim petition for unemployment compensation benefits in which he indicated that he had voluntarily left his previous employment at WFC because his expenses had exceeded his income. The Office of Employment Security (OES)granted Claimant benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. \\u00a7 802(b), on the basis that his reason for leaving his employment at WFC was necessitous and compelling. The OES further determined that although Claimant was subsequently employed by K-Mart and had earned a total of $70.53, he was partially unemployed due to conditions which were not disqualifying pursuant to Section 401(f) of the Law, 43 P.S. \\u00a7 801(f), and was not precluded from receiving benefits.\\nThe Employer filed an appeal from the OES' decision and a hearing was held. At the hearing, the Referee indicated that he would hear testimony on the issue of Claimant's voluntary termination, as well as on the type of employment relationship Claimant had with WFC, even though the OES did not rule on that subject. Regarding the issue of voluntary termination, Claimant testified that he had left WFC of his own volition because he could not pay his bills and his expenses were exceeding his income.\\nAs to his employment relationship with WFC, Claimant testified that regardless of the language in his Agreement stating he was an independent contractor, he was treated as an employee because he was subject to supervision during the time he was being trained, was required to submit weekly status reports to a supervisor, and was restricted in terms of his territory. Claimant also testified that he made cold calls to customers in addition to the leads he received from WFC, had no control over setting prices of WFC's product, was not responsible for collecting payments from his customers, and made no deliveries to the customers. More importantly, Claimant testified that he was prohibited from working for another fund-raising company while working for WFC, and was not allowed to do any other work as far as income was concerned. The Employer agreed that Claimant had left its employ because he could not make a go of the job as far as money was concerned, but contrary to Claimant's testimony, testified that Claimant was aware that he was an independent contractor from the beginning of the employment relationship because he signed the Agreement which specified as much.\\nBased on the testimony presented, the Referee reversed the OES' decision and denied Claimant benefits. The Referee determined that because Claimant had voluntarily left his employment at WFC due to his dissatisfaction with his earnings, he did not establish a necessitous and compelling cause for resigning. The Referee further determined that although Claimant was an employee of WFC rather than an independent contractor pursuant to Section 4(7)(2)(b) of the Law, 43 P.S. \\u00a7 753(/, )(2)(b), he had not earned six times his weekly benefit rate at K-Mart as required by Section 401(f) of the Law and did not qualify for benefits.\\nClaimant appealed the Referee's decision to the Board which affirmed that portion of the Referee's decision determining that Claimant was an employee of WFC rather than an independent contractor, but reversed that portion of the decision concluding that Claimant had not voluntarily terminated his employment for a necessitous and compelling reason. The Board concluded that leaving one job to take another job is a necessitous and compelling reason for resigning, and because the only relevant consideration is whether the new job is available, Claimant's lack of income as a reason for leaving WFC was irrelevant because he had a job waiting for him at K-Mart. The Board then ordered the Employer to pay Claimant benefits, and the Employer filed this appeal.\\nA claimant who becomes unemployed by voluntary termination bears the burden of proving that his termination was for a cause of a necessitous and compelling nature. Kligge v. Unemployment Compensation Board of Review, 89 Pa. Commonwealth Ct. 30, 491 A.2d 325 (1985). The Employer argues that the Board erred in its determination that Claimant met this burden because there is no evidence in the record to support its finding that Claimant had obtained the job at K-Mart prior to his resignation at WFC. The Employer directs our attention to Claimant's testimony which indicated that he did not have a position with K-Mart until after he left WFC's employ:\\nQ. All right, now then the Unemployment Compensation Office made mention in its determination that you had alternate employment when you left World's Finest Chocolate, is that true?\\nA. Yeah, I went from there to K-Mart.\\nQ. Well, did you already have the job?\\nA. Yes, sir.\\nQ. Was that .\\nA. Well, it was a couple of days later, I don't recall the exact circumstances, but I was within my unemployment right, I do know that.\\n(Reproduced Record at 12a.)\\nThe Employer further argues that even if Claimant had been employed by K-Mart prior to leaving WFC, he did not leave WFC because he had a job at K-Mart lined up, but rather because he was dissatisfied with his wages at WFC:\\nQ. And did you leave that job (WFC) voluntarily?\\nA. Yes, sir.\\nQ. For what reason or reasons?\\nA. My expenses were exceeding my income, I could \\u2014 just couldn't afford to meet my bills at the present time with the job itself, I just couldn't do it.\\nQ. Did the employment at K-Mart have anything to do with your decision to leave World's Finest Chocolate?\\nA. No, sir.\\n(Reproduced Record at 10a, 12a-13a.)\\nThe Employer contends that dissatisfaction with one's wages is not a compelling reason for terminating employment, and cites Leshock v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 486, 406 A.2d 1182 (1979) in support of this contention. In Leshock, claimant worked as a truck driver hauling fill in his own truck at a construction site. He agreed with other truck drivers working on the site to be paid $17 per hour by the employer. Claimant voluntarily quit his job and filed a claim for benefits alleging that he quit for a necessitous and compelling reason because the wages were inadequate. On appeal, this court affirmed the Board's decision denying him benefits because his complaint was not that his employer failed to pay him in accordance with their agreement, but simply because the expenses of maintaining his truck made the compensation inadequate. \\\"His complaint in this regard rises to no more than dissatisfaction with the compensation, not a compelling reason for quit ting work.\\\" Leshock, 46 Pa. Commonwealth at 489, 406 A.2d at 1184.\\nThe law is well settled that dissatisfaction with one's wages is insufficient to establish the necessary justification for terminating employment. See also Querry v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 170, 437 A.2d 1048 (1981); Snyder v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 425, 421 A.2d 530 (1980); Mosley v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 447, 327 A.2d 199 (1974). Nonetheless, the Board argues that the reason Claimant left his job at WFC was because he had a job waiting for him at K-Mart, as evidenced by his testimony, as well as the fact that he had applied and interviewed for the job at K-Mart while still employed with WFC, and voluntarily leaving work to go to another job constitutes cause of a necessitous and compelling nature. In support of this argument, the Board cites Brennan v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 114, 504 A.2d 432 (1986), where we granted claimant benefits when she left her position as a nurse paying $6.49 for another position which paid her more money.\\nHowever, while Claimant may have interviewed for the position at K-Mart while employed at WFC, there is no evidence in the record to indicate that Claimant was, in fact, hired prior to leaving WFC. Also, Claimant's testimony seemingly implies that he did not accept the position with K-Mart until after he had left WFC's employ. Regardless, though, of whether Claimant actually left his position at WFC because he had a position waiting at K-Mart, Claimant is not entitled to benefits. The Board misinterprets our decision in Brennan because claimant in that case was granted benefits because she had accepted an offer for a new position, had quit her job based on her acceptance, and was notified prior to beginning that new job that the position was no longer available.\\nIn this case, Claimant did not quit his job at WFC and then find out that the position at K-Mart was no longer available. Claimant began working at K-Mart and, as of the date of this appeal, was still working there. Consequently, because the purpose of unemployment compensation is to assist those individuals who have become unemployed by no fault of their own, not those who simply want to change jobs to earn more money, and Claimant voluntarily terminated his employment simply because he was dissatisfied with his wages at WFC, his termination was not for a necessitous and compelling reason.\\nAccordingly, the decision of the Board is reversed and Claimant is precluded from receiving benefits for that reason.\\nORDER\\nAND NOW, this 5th day of November, 1992, the order of the Unemployment Compensation Board of Review, dated April 30, 1992, No. B-298451, is reversed.\\n. The record is devoid of information indicating Claimant's last day of employment with WFC.\\n. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. \\u00a7 802(b). Section 402(b) of the Law provides in pertinent part that an employee will be ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling' nature, irrespective of whether such work is \\\"employment\\\" as defined in this act.\\n. Section 401(f) of the Law provides:\\n[CJompensation shall be payable to any employee who is or becomes unemployed and who has earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b) \\u2014 voluntary termination without a necessitous and compelling reason, 402(e) \\u2014 unemployment due to discharge for willful misconduct, and 402(h) of this act \\u2014 claimant is self-employed, remuneration for services in an amount equal to or in excess of six times his weekly benefit rate irrespective of whether or not such services were in \\\"employment\\\" as defined in this act.\\nThe OES determined that the $70.53 earned by Claimant was less than the amount of $1,506 required to remove the disqualification from employment benefits.\\n. Because the OES did not rule upon the type of relationship which Claimant had with WFC, the parties stipulated that the Referee could rule on that issue rather than remand it to the OES for disposition.\\n. Section 4(/)(2)(b) of the Law defines \\\"employment\\\" in pertinent part as follows:\\nServices performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that \\u2014 (a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.\\n. Our scope of review is limited to determining whether an error of law was committed, constitutional rights were violated, or the Board's findings of facts were not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. \\u00a7 704.\\n. Because we have determined that Claimant is precluded from receiving benefits under Section 402(b) of the Law, we need not address the type of employment relationship which Claimant had with his Employer or whether he was entitled to benefits pursuant to Section 401(f) of the Law.\"}"

pa/1439902.json

@@ -0,0 +1 @@
+"{\"id\": \"1439902\", \"name\": \"Raymond H. SMITH, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (Gary L. MILLER and James Skinner), Respondents\", \"name_abbreviation\": \"Smith v. Workmen's Compensation Appeal Board\", \"decision_date\": \"1992-12-02\", \"docket_number\": \"No. 2637 C.D. 1991\", \"first_page\": \"77\", \"last_page\": \"84\", \"citations\": \"152 Pa. Commw. 77\", \"volume\": \"152\", \"reporter\": \"Pennsylvania Commonwealth Court Reports\", \"court\": \"Commonwealth Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T17:53:59.239124+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SMITH and PELLEGRINI, JJ., and LORD, Senior Judge.\", \"parties\": \"Raymond H. SMITH, Petitioner, v. WORKMEN\\u2019S COMPENSATION APPEAL BOARD (Gary L. MILLER and James Skinner), Respondents.\", \"head_matter\": \"618 A.2d 1101\\nRaymond H. SMITH, Petitioner, v. WORKMEN\\u2019S COMPENSATION APPEAL BOARD (Gary L. MILLER and James Skinner), Respondents.\\nCommonwealth Court of Pennsylvania.\\nArgued Oct. 19, 1992.\\nDecided Dec. 2, 1992.\\nPamela Cochenour, for petitioner.\\nRichard G. Spagnolli, for respondents.\\nBefore SMITH and PELLEGRINI, JJ., and LORD, Senior Judge.\", \"word_count\": \"2077\", \"char_count\": \"12845\", \"text\": \"SMITH, Judge.\\nRaymond H. Smith (Smith) appeals from the order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision granting the claim petition filed by Gary L. Miller (Claimant) against Smith and awarding Claimant total disability benefits. The issue raised on appeal is whether Smith is a statutory employer secondarily liable to Claimant for the payment of compensation benefits pursuant to Section 302(b) of. The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. \\u00a7 462. For the following reasons, the Board's order is reversed.\\nSmith has been a self-employed developer since 1982. In 1984, he purchased approximately twenty-two acres of land in the Borough of Oakmont, Allegheny County, for the purpose of constructing a townhome development. After obtaining the Borough's approval for subdivision, Smith solicited bids for development work such as roads, sewers, and other common facilities. One of the successful bidders for carpentry work was James W. Skinner (Skinner) who was to erect wooden framing for the townhomes and later perform the trim work. Thereafter, Skinner hired Claimant to do rough carpentry work at the construction site. On December 20, 1988, approximately one month after beginning work for Skinner, Claimant sustained a work-related injury to his left ankle. He filed claim petitions against Skinner and Smith which were consolidated by the referee.\\nAt hearings before the referee, the parties stipulated, inter alia, that Smith is in the business of developing land and that he is building the townhomes for sale. The referee found that Claimant sustained a work-related injury which rendered him totally disabled; Skinner did not carry worker's compensation insurance on the date of Claimant's injury; Smith was in a dual capacity as an owner and a general contractor for the development; and the construction site was under the control of Smith through his employees who oversaw that the work of various contractors was done properly and who occasionally directed Claimant as to the manner in which his work was to be performed when Skinner was not on the job site. The referee concluded that Smith was liable as a statutory employer to Claimant and awarded him total disability benefits to be paid by Smith who then would have the right to recover from Skinner the amount paid. On appeal, the Board affirmed the referee's decision.\\nOn appeal to this Court, Smith does not challenge the referee's finding that Claimant was totally disabled due to his work-related injury. He contends, however, that because he was an owner of the development, he cannot be considered a statutory employer under Section 302(b) of the Act which provides:\\nAny employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer's regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employe or contractor, if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable therefor.\\nFor purposes of this subsection (b), the term 'contractor' shall have the meaning ascribed in section 105 of this act.\\nSection 105 of the Act, 77 P.S. \\u00a7 25, defines \\\"contractor\\\" as follows:\\nThe term 'contractor,' as used in article two, section two hundred and three, and article three, section three hundred and two (b), shall not include a contractor engaged in an independent business, other than that of supplying laborers or assistants, in which he serves persons other than the employer in whose service the injury occurs, but shall include a subcontractor to whom a principal contractor has sublet any part of the work which such principal contractor has undertaken.\\nIn Section 302(b) of the Act, the legislature evinced a clear intent to place primary responsibility for payment of worker's compensation benefits upon the first financially responsible employer in the subcontractor chain, even if that employer is not the one primarily liable. Ace Tire Co. v. Workmen's Compensation Appeal Board (Hand), 101 Pa.Commonwealth Ct. 186, 515 A.2d 1020 (1986), appeal denied, 515 Pa. 610, 529 A.2d 1083 (1987).\\nThe Courts of this Commonwealth have consistently held that in order for the statutory employer doctrine to apply, five elements must be present: (1) an employer who is under contract with an owner or someone in the position of an owner; (2) premises occupied by or under the control of such employer; (3) a subcontract made by such employer; (4) part of the employer's regular business is entrusted to such subcontractor; and (5) a claimant who is an employee of such subcontractor. McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930); Caldarelli v. Workmen's Compensation Appeal Board (Mastromonaco), 115 Pa.Commonwealth Ct. 611, 542 A.2d 181, appeal denied, 520 Pa. 592, 551 A.2d 218 (1988). These elements are to be strictly construed by the appellate courts. Mathis v. United Engineers & Constructors, Inc., 381 Pa.Superior Ct. 466, 554 A.2d 96, appeal denied sub nom. Mathis v. Philadelphia Elec. Co., 523 Pa. 632, 637, 564 A.2d 1260, 1261, 565 A.2d 445 (1989).\\nIn McDonald, the Levinson Steel Company hired Uhl, another steel company, to construct a shed for Levinson on property which it leased. Levinson argued that it was the statutory employer of an injured worker hired by Uhl. The Supreme Court rejected this argument and held that an owner in erecting his or her own building does so as an owner, not as a principal contractor or statutory employer, although his or her regular course of business may be that of a builder. The Court stated:\\nWhere an owner contracts with another for work on his premises in furtherance of his regular business, the employment is an independent one, establishing the relation of contractee and contractor and not that of master and servant or statutory employer and employee, and a workman injured on that work is not entitled to compensation from the owner as statutory employer or master unless the relation of master and servant is established by the contract reserving control over the means of accomplishing the work as well as over the result to be accomplished.\\nId. at 296-97, 153 A. at 427.\\nSmith argues that a property owner may be liable for negligence at common law, but cannot be held liable as a statutory employer under the Act. According to Smith, a statutory employer status may not be found unless the owner and the employer hiring the subcontractor are two different people. Thus, he asserts, the dual capacity theory advanced by the referee and the Board is not consistent with the McDonald holding that an owner is not a principal contractor or employer although his or her regular course of business may be that of a builder.\\nWhile the analysis applied by the referee and the Board is an enticing one, it simply is not the law in this Commonwealth. The Supreme Court's holding in McDonald is clear that the Act \\\"specifically excludes an owner from liability to the employees of an independent contractor.\\\" Id. at 294, 153 A. at 426. The finding that Smith exercised occasional direction over Skinner's employees does not justify the conclusion that there was between Smith and Skinner's employees the master-servant relationship necessary under the Act to hold that Smith was a statutory employer. It is undisputed that Skinner hired and paid Claimant, directed Claimant's day-to-day activities, and provided him with the necessary equipment.\\nFurthermore, even if this Court were to assume that Smith had a dual capacity of owner and general contractor, statutory employer status cannot be found because there is no evidence of the existence of a contract between a builder/developer and the owner as required by McDonald. There is no evidence to support the Board's inherent assumption that Smith contracted with himself to build on his own property. Consequently, the first element set forth in McDonald for determining statutory employer status has not been met, thus rendering unnecessary this Court's examination of the remaining elements.\\nClaimant contends, however, that Section 302(b) makes no exception for property owners and instead provides that the general contractor, or in this case a builder/developer, require subcontractors to secure the payment of worker's compensation benefits to their employees. He points to this Court's observation in Ace Tire that a general contractor could have avoided its liability by requiring the subcontractor to procure insurance coverage but chose not to do so. Ace Tire is inapposite to the matter sub judice because it was not a case in which one of the parties was an \\\"owner\\\" for purposes of the Act.\\nClaimant and the Board attempt to distinguish McDonald and Caldarelli by noting that the properties upon which the employees were injured were being held for the owners' personal use, whereas Smith's development was held in ownership for the purpose of resale once the townhomes were constructed. Such a position at once both misperceives the holdings of those cases and attempts to carve out exceptions for which no authority may be found. McDonald clearly states: \\\"[a]n owner in erecting his own building, does so as an owner, not as a principal contractor or its synonym, 'employer,' although his regular course of business may be that of a builder.\\\" Id., 302 Pa. at 295, 153 A. at 427 (emphasis added). Furthermore, the Board's reliance on Caldarelli is misplaced. In that case, the owner of the property on which the claimant was injured was constructing a model home in furtherance of a residential construction business. Despite the clearly-expressed business intent of the owner, this Court held that the owner could not be a statutory employer under the Act. See also Zizza v. Dresher Mechanical Contractors, Inc., 358 Pa.Superior Ct. 600, 518 A.2d 302 (1986), appeal denied, 516 Pa. 643, 533 A.2d 714 (1987). This Court therefore specifically rejects the Board's approach, which Claimant terms a \\\"profit-oriented business purpose\\\" analysis, since it has no basis in the law.\\nThe Board also concluded that Claimant was a \\\"borrowed employee\\\" of Smith because his employees directed Claimant as to his work responsibility when Skinner was not available. In order to fall within the scope of the borrowed employee doctrine, the borrowing employer must control or have the right to control the borrowed employee with regard to both the work to be done and the manner of performing it. Mathis. Claimant's testimony establishes that only Skinner had the right to control the details of Claimant's work, and there is no finding by the referee that Smith assumed control of the manner in which Claimant performed his job. Therefore, the borrowed servant doctrine cannot justify an award of benefits against Smith. In light of this Court's holding, the other issues raised by Smith need not be further addressed. Accordingly, the Board's order is reversed.\\nORDER\\nAND NOW, this 2nd day of December, 1992, the order of ' the Workmen's Compensation Appeal Board dated November 20, 1991 is reversed.\\n. Skinner appeared without counsel at the first hearing before the referee, but failed to appear at tiny further hearings or depositions despite being duly notified.\\n. This Court's scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether there was a violation of constitutional rights. Yezovich v. Workmen's Compensation Appeal Board (USX Corp.), 144 Pa.Commonwealth Ct. 601, 601 A.2d 1341 (1992).\\n. The Board also attempts to distinguish the line of statutory employer doctrine cases by noting that in most of these cases the employer was defensively using the doctrine in an attempt to obtain immunity from common law negligence actions. While this is an accurate assessment of the procedural aspect in many of these cases, it is nevertheless a meaningless distinction and does not affect the proper McDonald analysis to be applied in determining statutory employer status.\"}"

pa/1511116.json

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+"{\"id\": \"1511116\", \"name\": \"In re Slovak American Beneficial Union of Philadelphia\", \"name_abbreviation\": \"In re Slovak American Beneficial Union\", \"decision_date\": \"1933-12-30\", \"docket_number\": \"no. 4771\", \"first_page\": \"93\", \"last_page\": \"94\", \"citations\": \"20 Pa. D. & C. 93\", \"volume\": \"20\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Philadelphia County Court of Common Pleas\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T01:02:24.384219+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Slovak American Beneficial Union of Philadelphia\", \"head_matter\": \"In re Slovak American Beneficial Union of Philadelphia\\nWilliam C. Schwebel, for petitioners.\\nDecember 30, 1933.\", \"word_count\": \"361\", \"char_count\": \"2158\", \"text\": \"Alessandroni, J.,\\nThe master in his report finds that the proposed corporation is in all respects legitimate and proper except that:\\n(\\u0430) The application does not recite the post office address of the proposed corporation's initial registered office.\\n(\\u0431) The application does not recite the amount of assets which the corporation will have to start its corporate functions, which according to the testimony consists of $150 to $175 in cash.\\n(c) The name of the proposed corporation contravenes the provisions of section 202 of the Nonprofit Corporation Law of May 5, 1933, P. L. 289, and he accordingly recommends that, upon the amendment of the application to show the proposed post office address and the amount of assets and to change the corporation's name to one in accordance with law, and upon the further registration of the new name with the Department of State and the re-advertising of this application, if no remonstrance be received, the court grant a decree incorporating the proposed corporation.\\nThe objections found by the master are predicated upon his opinion that this application for charter is ruled by the provisions of the Nonprofit Corporation Law of 1933. The Act of Assembly was approved May 5, 1933, but was not to become effective until July 3, 1933. This application -was filed with the prothonotary of our court on July 1, 1933, two days before the effective date of the new act. The Secretary of the Commonwealth accepted and approved the registration of the title of the proposed corporation on June 15,1933, and the petition for charter was signed by the applicants on June 3d. We cannot agree with the master that, in the absence of a saving clause in the new Nonprofit Corporation Law, this application is subject to the provisions of the new act. We believe the effective date to be controlling, and since the application is in proper form and the testimony shows the corporation to be otherwise lawful and not injurious to the community, we grant the prayer of the petition in the manner and form prayed for.\"}"

pa/1531305.json

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+"{\"id\": \"1531305\", \"name\": \"Stoddart, etc., v. Frank & Seder of Phila., Inc.\", \"name_abbreviation\": \"Stoddart v. Frank & Seder of Phila., Inc.\", \"decision_date\": \"1937-11-26\", \"docket_number\": \"no. 2156\", \"first_page\": \"572\", \"last_page\": \"575\", \"citations\": \"30 Pa. D. & C. 572\", \"volume\": \"30\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Philadelphia County Court of Common Pleas\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:04:53.382485+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Stoddart, etc., v. Frank & Seder of Phila., Inc.\", \"head_matter\": \"Stoddart, etc., v. Frank & Seder of Phila., Inc.\\nBlumberg & Sork, for plaintiff.\\nZoob & Matz, for defendant.\\nRaymond A. White, Jr., for additional defendant.\\nNovember 26, 1937.\", \"word_count\": \"1008\", \"char_count\": \"5996\", \"text\": \"MacNeille,\\nA rule was taken by the additional defendant to quash the writ of sci. fa. One ground assigned by the additional defendant is that the sci. fa. was not issued within 60 days after service of the statement of claim. But, on May 24th, defendant's petition was granted allowing an additional period of 30 days in which to issue a sci. fa., and during this time the sci. fa. was issued. We find no merit, therefore, in this contention.\\nThe additional defendant further contends that it should not be joined in this case because its liability to defendant, if any, is based on its contract of indemnity, whereby it issued a \\\"depositor's and/or commercial forgery policy\\\" to defendant.\\nThe additional defendant issued to the original defendant a policy wherein it provided that it would indemnify defendant against any loss by reason of the forgery of the signature or of any endorsement of any checks issued by defendant.\\nPlaintiff brought an action in assumpsit against defendant, alleging that he supplied truck service to defendant and that there is a balance due on account thereon. Defendant filed an affidavit of defense, alleging payment and also new matter to the effect that the payments were made to David L. Wagner, the duly authorized representative of plaintiff, by means of checks payable to plaintiff. Plaintiff filed an answer to defendant's new matter, denying the authority of Wagner and alleging in substance that Wagner improperly endorsed and retained certain of the checks. Whereupon, defendant issued a sci. fa. to the New Amsterdam Casualty Company, the sci. fa. defendant, on the theory that it was liable over to defendant in the event that the checks were improperly endorsed by Wagner, on account of the forgery policy referred to above.\\nIt is, therefore, apparent that the original defendant is proceeding against the additional defendant on an indemnity agreement, and that this cannot be done was held by the Supreme Court in the case of Murray v. Pittsburgh Athletic Co. et al., 324 Pa. 486, 497, where the court said:\\n\\\"Subsequently, on November 9, 1933, the writ of scire facias was amended by adding an averment that the additional defendants were liable over to the original defendant, not only because of their employee's negligent act, but also by reason of an alleged indemnity agreement, whereby the Jacobs Brothers agreed to indemnify and hold harmless appellant 'of and from all actions and injuries arising out of [the additional defendant's] activi ties'. . . . But such a cause of action, based on contract, is separate and distinct from the cause of action forming the basis of plaintiff's suit, which is the injury caused plaintiff by defendant's negligence. Under the decision in Jones et al. v. Wohlgemuth, 313 Pa. 388, 169 A. 758, the additional defendants were improperly joined, and on application the scire facias could have been stricken off for this reason. In that case we said, at page 390: 'The Act of 1929, supra, was not intended to complicate legal proceedings by combining entirely separate causes of action in one suit. By the wording of the act, defendant may bring in as an additional defendant \\\"any person alleged to be liable over to him for the cause of action declared upon.\\\" [Italics supplied.] In the present case, the liability, if any, of the parents to appellant arises, not on account of the injuries received by the minor plaintiff (which are alleged to have resulted from defendants' negligence) but by virtue of the indemnity agreement. . . . One action is in trespass and the other in assumpsit. The causes of action are separate and distinct and no sufficient reason exists for joining them in one proceeding,\\u2014 indeed, such result was never contemplated by the Act of 1929, supra.' \\\"\\nA similar conclusion was reached in the case of Bass v. Bass et al., 19 D. & C. 230.\\nOn behalf of the original defendant, there have not been cited any cases in which the exact question was involved and in which a different conclusion was arrived at, and we have not been able to find any. Under those circumstances, we are bound by the decisions indicated above to hold that an additional defendant could not be brought by sci. fa. into a proceeding on an indemnity agreement.\\nThe case of Gentile et al. v. American State Bank & Trust Co. et al., 315 Pa. 123, cited by defendant, is the only case in which an indemnity contract was involved, but there the propriety of issuing a sci. fa. under those circumstances was not raised. The other cases cited by defendant have very little bearing on the question here involved. Cases involving endorsers on cheeks are in a different classification, because the suit against them is based on the same instrument as against the principal defendant.\\nIt has always been well settled law that at least in negligence cases there must be excluded from the trial the fact that defendants are insured, and there is nothing in the sei. fa. acts to indicate any change in this policy, and it is apparent that indemnity or insurance contracts must, to make the law uniform, either be excluded or admitted in all cases.\\nMoreover, while apparently a great deal of time of the court would be saved in trying both cases together, yet, when it is remembered that in the vast majority of cases the insurance company pays without any litigation as soon as the amount of its liability is determined in the suit between plaintiff and original defendant, it is apparent that to open the door to insurance companies being brought in as additional defendants in cases like these would clog the courts with suits involving insurance companies which have every intention to pay.\\nFor the reasons indicated, the motion to quash the writ of sei. fa. to join the New Amsterdam Casualty Company as additional defendant is made absolute.\"}"

pa/1570579.json

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+"{\"id\": \"1570579\", \"name\": \"Sewage in Second Class Townships\", \"name_abbreviation\": \"Sewage in Second Class Townships\", \"decision_date\": \"1947-09-11\", \"docket_number\": \"\", \"first_page\": \"325\", \"last_page\": \"336\", \"citations\": \"60 Pa. D. & C. 325\", \"volume\": \"60\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Pennsylvania District and County Reports\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T01:49:24.616425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sewage in Second Class Townships\", \"head_matter\": \"Sewage in Second Class Townships\\nSeptember 11, 1947.\", \"word_count\": \"3680\", \"char_count\": \"21891\", \"text\": \"Gafford, Deputy Attorney General,\\nThis department is in receipt of your communication reinstating a former request for an opinion as to whether the Sanitary Water Board has the authority to require the supervisors of a second class township, the population of which discharges sewage into the waters of the Commonwealth, to abate such discharge or to submit for the approval of the board plans for the construction of sewers or a sewer system and a sewage disposal works, or a plant for the treatment of such sewage. In the latter instance, it would follow that after the approval of the submitted plans, the board would issue a subsequent order to such supervisors either to construct the sewer system and the plant called for by the plans designed to render the discharge of such sewage innocuous or to abate the discharge. It is our understanding that the sewers of the second class townships discharging sewage into the waters of the Commonwealth to which you refer are not municipal sewers but are private sewerage systems which fall into three general categories: (a) those which are laid under the surface but in or across township thoroughfares or township property; (6) those which are laid under the surface but in and across State highways and which may not lie in or across township thoroughfares or township property; and (c) those which are laid in private property from the point of origin to the point of discharge.\\nThe Sanitary Water Board was created by section 202 of The Administrative Code of June 7, 1923, P. L. 498, as amended, 71 PS \\u00a712, as a departmental administrative board within the Department of Health. The board was continued under the corresponding section of The Administrative Code of April 9, 1929, P. L. 177, as amended, 71 PS \\u00a762.\\nUnder the recent amendment to section 439 of The Administrative Code of 1929, by the Act of May 2, 1947 (no. 65), H. B. no. 1016, the board now consists of seven members including the Secretary of Health, the Secretary of Forests and Waters, the Secretary of Mines, the Commissioner of Fisheries and three appointive members. Certain powers and duties relating to the study of the means to eliminate pollution of the waters of the Commonwealth, the adoption of rules and regulations in conformity with existing laws prohibiting such pollution, the exercise of powers previously exercised by the \\\"former Department of Fisheries, the former Commissioner of Fisheries and the former Water Supply Commission of Pennsylvania\\\" to prevent such pollution, and the exercise of all powers which were formerly exercised by the Department of Health or the \\\"Commissioner (now Secretary) of Health\\\" with regard to the granting of permits for the construction of sewage disposal plants and sewer systems were vested in the board by section 2110 of the same code, as amended by the Act of June 21, 1937, P. L. 1865, 71 PS \\u00a7540. The Department of Health is specifically charged with the duty of acting as the enforcement agent of the board (section 2109 of the code, supra, 71 PS \\u00a7539) and the board may call upon that department to do such \\\"acts as may be necessary and proper in the exercise of the powers and the performance of the duties of the board\\\": sec. 2110 {g) of the code, supra, 71 PS \\u00a7540 (g).\\nThe general statute concerning anti-pollution, which has been frequently referred to as the \\\"Pure Streams Law\\\", is the Act of June 22, 1937, P. L. 1987, as amended by the Act of May 8, 1945, P. L. 435, 35 PS \\u00a7691.1 et seq. The'pollution of the waters of the Commonwealth by the discharge therein of sewage, industrial waste, or any noxious and deleterious substance which is or may become inimical and injurious to the public health, or to animal or aquatic life, or to the uses of such waters for domestic, industrial or recreational purposes is declared in section 3 of the act, 35 PS \\u00a7691.3, to be against public policy and to constitute a public nuisance. Under the provisions of the statute the Sanitary Water Board is charged with the important duty of protecting the Commonwealth's waters from pollution and, in turn, has conferred upon it great powers to regulate the same or to abate any nuisance resulting therefrom: Sanitary Water Board Records, 36 D. & C. 27 (1939).\\nJudicial recognition has long been taken of the fact that the drainage of untreated sewage into any flowing stream is a menace to public health. The reason was clearly stated by the Supreme Court of Pennsylvania in Commonwealth v. Kennedy, 240 Pa. 214, 219 (1913), as follows:\\n\\\"Because sewage is the most efficient medium for the dissemination of infecting germs which do their deadly work in such an infinite variety of insidious ways, not at all dependent upon free access of the public to the stream which the germs pollute, it cannot be said that the 'riparian owners alone have an interest in the stream'. When this deleterious substance pollutes any running stream the public health is endangered thereby.\\\"\\nThe legislature's presently applicable enactment on the subject is the Act of June 22,1937, P. L. 1987, 35 PS \\u00a7691.1 et seq. Inasmuch as the amendatory Act of May 8, 1945, P. L. 435, makes no change in the original act with reference to sewage pollution, and in the absence of any duty imposed by any other statute on the supervisors of second class townships to abate the discharge of sewage into the Commonwealth's waters caused by private persons through private sewer lines or to comply with, orders of the Sanitary Water Board with respect thereto (which will be hereafter considered), it is the interpretation of the provisions of the 1937 act that is here controlling.\\nAn analytical consideration of the provisions of the Act of June 22, 1937, P. L. 1987, supra, 35 PS \\u00a7691.1 et seq., discloses that there was a manifest intent on the part of the legislature to carefully designate those provisions applicable to \\\"municipalities\\\" and those applicable to \\\"persons\\\".\\nSection 201 of the act, 35 PS \\u00a7691.201, flatly prohibits either persons or municipalities from discharging any sewage into any of the waters of the Commonwealth except as provided in the act. Section 202, 35 PS \\u00a7691.202, requires any municipality discharging sewage \\\"from any sewer system owned and maintained by the municipality\\\" and any person discharging sewage into waters of the Commonwealth, or in such a manner as to cause pollution thereof, to discontinue such discharge upon the order of the Sanitary Water Board at such time as the board shall be of opinion that the discharge is or may become inimical or injurious to the public health, animal or aquatic life, or to the use of the water for domestic, industrial or recreational purposes.\\nSection 203 of the act, 35 PS \\u00a7691.203, provides that orders of the board to discontinue existing discharges of sewage, in the case of a municipality, shall be by written notice, after investigation and hearing and an opportunity for all persons interested to be heard, which notice shall be served personally or by registered mail on the corporate authorities of the municipality \\\"owning or maintaining and using the sewage system\\\". The same section of the act provides that an order of the board directed to a person to discontinue existing discharges of sewage shall be by written notice served on such person but does not set forth any requirement for a prior hearing. Such order, whether against a municipality or a person, must specify the time within which the offending discharge shall be discontinued, which in the case of a municipality shall not exceed two years and in that of a person one year. Section 204 of the act, 35 PS \\u00a7691.204, prescribes the penalty to be imposed upon persons, convicted in summary proceedings, who continue to discharge sewage contrary to the act or after the time fixed in the notice of the board for discontinuance. Municipal officers are not designated in this section.\\nSection 205 of the act, 35 PS \\u00a7691.205, requires the corporate authorities having \\\"charge of the sewer system of each municipality\\\" from which sewage is discharged into the Commonwealth's waters to file reports with the board from time to time as the board may require. Under this same section of the act it is declared that \\\"no municipal sewer system\\\" shall be exempt from the provisions of the act for which a satisfactory report shall not be filed. It is further declared that the continued discharge of sewage \\\"from any such sewer system\\\" without the filing of such reports constitutes a nuisance and is abatable as such.\\nSection 206 of the act, 35 PS \\u00a7691.206, provides that upon application made to the board by the \\\"corporate authorities having by law the charge of the sewer system of any municipality\\\", otherwise prohibited by the act from discharging sewage into the waters of the Commonwealth, the board may permit such discharge under stipulated conditions provided it finds said discharge necessary and not injurious to the public health or to animal or aquatic life, or to domestic, industrial or recreational uses. The section also provides that a similar application may be submitted by persons.\\nSection 207 of the act, 35 PS \\u00a7691.207, provides that all plans for the construction or extension of a sewer system \\\"by a municipality\\\" or for the construction of treatment works or intercepting sewers \\\"by a person or municipality\\\" shall be approved by the board prior to construction.\\nSection 208 of the act, 35 PS \\u00a7691.208, provides for the revocation or modification of permits issued by the board for the discharge of sewage from a sewer system or for the construction of a sewer system or treatment works after investigation and hearing and upon due notice served on the \\\"corporate authorities of the municipality or the person owning, maintaining or using the sewer system, or the person or municipality operating the treatment works\\\". Such notice shall state the time when the discharge or inadequate treatment of such sewage shall be discontinued which shall not exceed \\\"two years in the ease of a municipality, or a reasonable time, not exceeding one year, in the case of a person\\\".\\nSection 210 of the act, 35 PS \\u00a7691.210, provides that whenever the board serves an order upon a municipality to abate \\\"its discharge of untreated or inadequately treated sewage\\\" which is not reversed on appeal, such municipality shall take steps for the acquisition, construction, alteration, repair, extension or completion of a sewerage system or sewage treatment works or both, \\\"as may be necessary for the treatment of its sewage\\\" in compliance with such order.\\nSection 302 of the act, 35 PS \\u00a7691.302, relates to the discharge of industrial wastes, as differentiated from sewage, into the Commonwealth's waters. It provides that after due investigation by the board and a declaration that such discharge is or may become inimical and injurious to the public health, to animal or aquatic life, or to the use of the waters for domestic, industrial or recreational purposes, the board may order any person to discontinue the discharge of such industrial wastes into said waters or \\\"into any municipal sewer system\\\". Section 306 of the act, 35 PS \\u00a7691.306, forbids either a \\\"municipality or person\\\" to discharge into the clean waters of the Commonwealth any sewage or industrial waste.\\nSection 606 of the act, 35 PS \\u00a7691.606, provides that notwithstanding the pollution of the waters of the State by other sources, nothing contained in existing law of the Commonwealth shall estop the board from proceeding under the act against \\\"any particular municipality or person\\\" discharging polluting substances into said waters.\\nAll of the foregoing statutory provisions, considered as a whole, impel us to the conclusion that there was no intent on the part of the legislature to impose upon municipalities the responsibility for the pollution of the State's waters by private persons discharging sewage into said waters through private sewer lines. It is immaterial whether such private sewer lines lie wholly in private property, or partly in township property, or run beneath township or State thoroughfares, for it is the persons causing the unauthorized discharge in the manner indicated who alone are made responsible by the statute for the pollution. By its very terms the act imposes liability for such offending discharges upon a municipality only when it is the municipality which \\\"owns and maintains\\\", or \\\"owning, maintaining and using\\\" the particular sewer system or whose cor porate authorities have by law \\\"charge of the sewer system\\\" which causes the pollution.\\nA like result was reached in a judicial consideration of previous statutory provisions relating to the discharge of sewage into the waters of the State and embodied in the statute known as the \\\"Purity of Waters Act\\\" of April 22, 1905, P. L. 260, secs. 4 to 11 inclusive, now superseded by the Act of June 22,1937, P. L. 1987, supra, and specifically repealed by section 801, 35 PS \\u00a7691.801, of the latter act. With respect to the prior act, the Supreme Court of Pennsylvania adopted the opinion of the Superior Court in Commonwealth v. Emmers, 221 Pa. 298 (1908), wherein it is stated as follows (p. 310) :\\n\\\"These public sewer systems and the house drains which lead into them have by the legislation of the state been made subject to the regulation, inspection and control of the municipalities, and the duty of exercising such supervision has been imposed upon the municipal authorities.\\\" (Italics supplied.)\\nIn this connection it should be also noted that when a municipality does own and maintain a sewer system it does so in its proprietary capacity and not in its governmental cacapity. As stated by the Supreme Court of Pennsylvania in Hamilton's Appeal, 340 Pa. 17, 20 (1940) :\\n\\\" 'The construction, operation, or maintenance of sewer systems, water systems and gas systems by a municipal corporation is in the nature of a private enterprise. A municipality is not required to construct, own, or operate such public utilities.' \\\"\\nSimilarly, we find nothing in the provisions of The Second Class Township Law of May 1,1933, P. L. 103, 53 PS \\u00a719093-101 et seq., which was reenacted, amended and revised by the last session of the legislature as the Act of July 10, 1947 (no. 567), and en titled \\\"The Second Class Township Code\\\", which would impose upon the supervisors of such municipalities the duty to abate or to submit to the Sanitary Water Board plans calling for the construction of sewers or treatment plants, or both, which when constructed would bring about the abatement of pollution of the State's waters caused by the discharge of untreated sewage into such waters, not by municipal sewerage systems, but by private sewers. It is true that under section 31 of the code, which reenacts and amends section 1501 of the former act (53 PS \\u00a719093-1501) such supervisors are vested with the authority to construct sewer systems for that section provides, in part, as follows:\\n\\\"Townships may establish and construct a system of sewers and drainage, locating the same as far as practicable along and within the lines of the public roads of the townships as seems advisable to the board of supervisors. The supervisors may permit and, where necessary for the public health, require adjoining and adjacent property owners to connect with and use the same. .\\\"\\nHowever, the mere grant of authority to a municipal corporation to construct sewers does not amount to the imposition of a duty to do it: Carr v. The Northern Liberties, 35 Pa. 324, 330 (1860). It is only where a person has a right to demand the exercise of a public function, and authority, which is not discretionary in character, is vested in an officer or set of officers to exercise that function, that the right and the authority give rise to a duty: Carr v. The Northern Liberties, idem.\\nIt is also true that section 9 of the code, supra, which reenacts and amends section 702 (XII) of The Second Class Township Law, 53 PS \\u00a719093-702 (XII), empowers the supervisors of such municipalities to prohibit nuisances and authorizes them \\\"to remove any nuisance . on public or private grounds after notice to the owner to do so\\\". However, in the absence of an appropriate ordinance on the subject, a municipality is under no duty to abate a nuisance for which it is in nowise responsible, although it may be authorized by statute to abate the same. As was stated by the Superior Court of Pennsylvania in Allebrand v. Borough of Duquesne, 11 Pa. Superior Ct. 218, 223 (1899) :\\n\\\"There is a wide difference between the commission of an act, which, whether committed by a municipal corporation or by a private person, would be an actionable nuisance, and the mere failure of the corporation to exercise its charter power to abate nuisances, not rendering its streets unsafe, and for the creation of which it was nowise responsible: 2 Dill. Mun. Corp. See. 951; McDade v. Chester, 117 Pa. 414.\\\"\\nSee also Martinowsky v. City of Hannibal, 35 Mo. App. 70 (1889); St. Albans v. Noble, 58 Vt. 525 (1884); Crystal Spring Brook Trout Hatchery Co. v. Lomira, 165 Wis. 515, 162 N. W. 658 (1917); Wilson v. City of Ottumwa, 181 Iowa 303, 164 N. W. 613 (1917), and 19 R. C. L. 1102, \\u00a7385.\\nThe case of Commonwealth ex rel. v. Borough of Dravosburg, 38 Mun. L. R. 169 (1947), which is referred to in your request for advice, is not, by reason of its factual differences, applicable to the question before us. In that case an individual developer of land induced the municipality to apply to the Sanitary Water Board for a sewerage permit for a tract of land on which he was engaged in building houses. The board issued the permit to the borough to construct the sewer system in accordance with the plans which the individual developer, as agent for the borough, had prepared and submitted to the board. The developer finished the building project but left the sewerage system uncompleted. The court awarded a mandatory injunction against the borough directing it to complete the sewer system in compliance with the permit issued to it, and ordered that the developer reimburse the borough for the costs of completing the work. In the question here presented to us, the second class townships have not applied to the board for permits, nor have permits been issued, to allow private persons to discharge sewage through presently existing private sewer lines. On the contrary, these persons are using these lines and effecting unauthorized discharges without permits.\\nOf greater weight in the situation before us is the ease of Wanamaker v. Benzon, 63 Pa. Superior Ct. 401 (1916). In that case a syndicate purchased land and built houses thereon from which sewage was discharged into a covered stream which ran under a street in the Borough of Jenkintown. The street was dedicated to and accepted by the municipality. The borough cut openings into the covered drain to provide for surface drainage. It was contended that the mandatory injunction sought by a lower riparian owner against the upper proprietors to discontinue the use of the covered stream as a sewer was improper and that the action should have been brought against the borough on the ground that the sewer was a borough sewer. However, the Superior Court rejected this contention, refused to hold the municipality liable for the pollution, and sustained the injunction awarded against the individual defendants. The court's reasoning is set forth, in part, as follows (p. 405) :\\n\\\"The borough never adopted the underground stream as part of its sewerage system. In fact, in the entire borough the ordinary method of disposing of sewage was by means of cesspools. The conduit in question was not built or constructed by the borough, and the borough never exercised any control or supervision over it. The stream of water that passes through the covered watercourse would naturally be augmented at times by surface water. Where the borough drained surface water into this conduit, it was merely putting the water to the place where it would have naturally gone. We cannot see that by this action the borough became responsible for the act of the defendant in the depositing of sewage into it. . . . As the defendant with others is directly responsible for the pollution of this stream, unless compelled by the facts, we would not shift the responsibility of the defendant onto the borough, nor can we disturb the finding of the learned trial judge that 'under the facts, the enclosed water course under Mather Road is not a sewer of the Borough of Jenkintown.' There is nothing that the borough has done that has contributed to the damage complained of.\\\"\\nWe are, therefore, of the opinion and you are accordingly advised that the Sanitary Water Board has no authority to require supervisors of second class townships to abate the pollution of the waters of the Commonwealth caused by the discharge of sewage therein by private persons through private sewer lines \\u2014irrespective of whether said lines lie wholly in private property, partly in township property, or under State highways or township thoroughfares \\u2014 or to require such supervisors to submit plans to the board with the ultimate view that the board will subsequently order the construction of a sewerage system or' treatment works, or both, in accordance with such plans when approved by the board, in order, in that manner, to bring about the abatement of the discharge of such untreated sewage. Although section 701 of the Act of June 22, 1937, P. L. 1987, 35 PS \\u00a7691.701, provides that the remedies prescribed in the act to abate pollution are not exclusive, it would be necessary, nonetheless, that any proceeding taken by the board on any cause of action arising by reason of any pollution of the character such as is herein considered be instituted against the person or persons responsible therefor.\"}"

pa/1594516.json

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+"{\"id\": \"1594516\", \"name\": \"Wards of Juvenile Courts\", \"name_abbreviation\": \"Wards of Juvenile Courts\", \"decision_date\": \"1951-10-08\", \"docket_number\": \"\", \"first_page\": \"279\", \"last_page\": \"282\", \"citations\": \"78 Pa. D. & C. 279\", \"volume\": \"78\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Pennsylvania Department of Justice\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T00:38:23.489723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wards of Juvenile Courts\", \"head_matter\": \"Wards of Juvenile Courts\\nOctober 8, 1951.\", \"word_count\": \"991\", \"char_count\": \"5930\", \"text\": \"Woodward, Deputy Attorney General,\\n\\u2014 The Department of Justice is in receipt of your letter requesting us to clarify the extent of authority and jurisdiction of a juvenile court, acting as a substitute parent of its ward, where the natural parents are still alive and available.\\nYou state that your question arises out of the case of a 20-year-old mental defective of moron grade who was declared a dependent child by the Juvenile Court of Bedford County, housed in the county home, and subsequently committed to Polk State School for care and training as a mental defective; and that it developed that the patient has an inguinal hernia which is of opportune condition for surgical correction and repair, in order to restore the patient's physical condition and ability, but that this condition of hernia is as yet uncomplicated, and not a matter of life and death, but only a matter of restoring physical health to its best possible condition.\\nYou further state that the father, who has been deprived of the custody of his son, and who protested the admission of his son to the institution, absolutely refused to grant permission for the operation; and that the juvenile court, on being approached in behalf of the boy, stated:\\n\\\"This boy is a ward of the juvenile court. If you think he should have an operation for hernia, I see no reason why you need the father's consent. You may consider this letter as authority to proceed.\\\"\\nYou further inquire whether the juvenile court, whose ward is a minor, and mentally handicapped, and an inmate duly committed by that court to the custody of a State institution for mental defectives, may consent and authorize an elective surgical operation to be performed upon its ward in the interest of his physical welfare and improvement, notwithstanding the lack of consent and the protest of the parents; and if so, whether the superintendent and an attending surgeon are relieved of any and all liability in any subsequent legal action instituted by the parent.\\nIt is an elementary principle of the law of torts that any touching of the person whatever, without his consent, constitutes a battery. Clearly, a surgical operation would fall within this definition. The following statement appears in Bonner v. Moran, 126 F. (2d) 121, 122 (1941):\\n\\\"We think there can be no doubt that a surgical operation is a technical battery, regardless of its re- suits, and is excusable only when there is express or implied consent by the patient; or, stated somewhat differently, the surgeon is liable in damages if the operation is unauthorized. . . .\\\"\\nIt is likewise well settled that should the person involved be a minor or otherwise incapable of giving consent, the consent of his parent or guardian should be obtained. A. L. I. Restatement of the Law of Torts, \\u00a759, is as follows:\\n\\\" (1) If a person whose interest is invaded is at the time by reason of his youth or defective mental condition, whether permanent or temporary, incapable of understanding or appreciating the consequences of the invasion, the assent of such a person to the invasion is not effective as a consent thereto.\\n\\\"(2) The assent of a parent, guardian or other person standing in like relation to one described in Subsection (1) has the same effect as though given by the person whose interest is invaded, if such parent, guardian or other person has the power to consent to the invasion.\\\"\\nThe principal question presented is whether such consent may be given by a person or agency other than the parent.\\nBy definition, the adjudication as a dependent child constitutes a finding that the parent is incapable of exercising the ordinary parental functions. The term \\\"dependent child\\\" is thus defined in section 1(6) of The Juvenile Court Law of June 2, 1933, P. L. 1433, 11 PS \\u00a7243, as follows:\\n\\\"(6) The words 'dependent child' include:\\n\\\" (a) A child who is homeless or destitute, or without proper support or care, through no fault of his or her parent, guardian, custodian or legal representative;\\n\\\"(b) A child who lacks proper care by reason of the mental or physical condition of the parent, guardian, custodian or legal representative.\\\"\\nIn such case the State provides for the performance of certain parental functions; the following statement appears in Commonwealth ex rel. Children's Aid Society v. Gard et ux., 162 Pa. Superior Ct. 415, 421 (1948) :\\n. . the Commonwealth is the paramount guardian (parens patriae) and will look to the interests of the minor and to the interests which the sovereign has in the proper care and training of children upon which it is to depend for its future existence. . . .\\\"\\nAccordingly, through the medium of The Juvenile Court Law, supra, this duty is delegated to the juvenile court. The juvenile court, with regard to its wards, stands in the place of the parent from whose custody the ward has been removed. It is stated in Commonwealth v. Jordan, 136 Pa. Superior Ct. 242, 251 (1939), inter alia, as follows:\\n\\\" 'Every statute which is designed to give protection, care and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other guardianship fails. . . (Italics supplied.)\\nSince the court's authority is substituted for that of the parent, the court's consent should be sufficient to authorize the operation herein mentioned.\\nWe are of the opinion, therefore, and you are accordingly advised, that the juvenile court, whose ward is a minor, mentally handicapped, and an inmate duly committed by that court to the custody of a State institution for mental defectives, may consent and authorize an elective surgical operation to be performed upon its ward in the interest of his physical welfare and improvement, notwithstanding the lack of consent and the protest of the parent.\"}"

pa/163608.json

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+"{\"id\": \"163608\", \"name\": \"Kevin TOOGOOD, Respondent, v. OWEN J. ROGAL, D.D.S., P.C. and Owen J. Rogal, D.D.S., Individually and Both d/b/a the Pain Center and Hrant Stone, M.D., by Thomas Stone, Executor of the Estate of Hrant Stone, M.D., Petitioners\", \"name_abbreviation\": \"Toogood v. Owen J. Rogal, D.D.S., P.C.\", \"decision_date\": \"2002-03-19\", \"docket_number\": \"Appeal Nos. 95, 96 EAL 2001\", \"first_page\": \"38\", \"last_page\": \"38\", \"citations\": \"568 Pa. 38\", \"volume\": \"568\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T21:24:15.181134+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kevin TOOGOOD, Respondent, v. OWEN J. ROGAL, D.D.S., P.C. and Owen J. Rogal, D.D.S., Individually and Both d/b/a the Pain Center and Hrant Stone, M.D., by Thomas Stone, Executor of the Estate of Hrant Stone, M.D., Petitioners.\", \"head_matter\": \"791 A.2d 1154\\nKevin TOOGOOD, Respondent, v. OWEN J. ROGAL, D.D.S., P.C. and Owen J. Rogal, D.D.S., Individually and Both d/b/a the Pain Center and Hrant Stone, M.D., by Thomas Stone, Executor of the Estate of Hrant Stone, M.D., Petitioners.\\nSupreme Court of Pennsylvania.\\nMarch 19, 2002.\", \"word_count\": \"94\", \"char_count\": \"584\", \"text\": \"ORDER\\nPER CURIAM.\\nAND NOW, this 19th day of March, 2002, appeal is allowed, limited to the question of whether the trial court erred in failing to grant Petitioner's motions for nonsuit and/or directed verdict based upon the absence of expert liability evidence to establish medical malpractice.\"}"

pa/1697809.json

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+"{\"id\": \"1697809\", \"name\": \"Weston v. Reading Company\", \"name_abbreviation\": \"Weston v. Reading Co.\", \"decision_date\": \"1967-01-17\", \"docket_number\": \"no. 6107\", \"first_page\": \"231\", \"last_page\": \"236\", \"citations\": \"41 Pa. D. & C.2d 231\", \"volume\": \"41\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Philadelphia County Court of Common Pleas\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T22:51:42.727024+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Weston v. Reading Company\", \"head_matter\": \"Weston v. Reading Company\\nBernard J. Smolens, for plaintiffs.\\nErnest R. von Starck and Fairfax Leary, Jr., for defendants.\\nJanuary 17, 1967.\", \"word_count\": \"1309\", \"char_count\": \"8044\", \"text\": \"Spaeth, J.,\\nReading Company and Baltimore & Ohio Railroad Company have filed preliminary objections to the complaint.\\nThe complaint may be summarized generally as follows : Plaintiffs are minority shareholders of Reading. Reading is controlled by B & O and C & 0, which together own 49 per cent of Reading's voting stock, and B & 0 is controlled by C & 0, which owns 90 percent of B & O's voting stock. C & 0 has used the power it thus has to nominate and elect Reading's officers and directors, who have operated Reading not in Reading's interests, but B & O's and C & O's, to the end that Reading will be made poorer and may be merged more easily into the B & O-C & 0 system. This may be illustrated by certain transactions, each disadvantageous to Reading: In 1963, Reading transferred certain warehouse and terminal facilities to B & 0 and some rehabilitated boxcars to 'a C & 0 subsidiary; in 1964, Reading leased to B & 0 some reconditioned hopper cars; and at a time not stated, Reading leased some other railroad equipment from B & O. Accordingly, B & O and C & 0 must be enjoined from voting their Reading stock, from continuing their mismanagement of Reading and from misusing Reading's assets for their advantage; they must 'account not only with respect to the transactions just described, but with respect to all intercorporate transactions that have resulted in injury to Reading; and they must pay such sums as the accounting shows are due.\\nReading and B & 0 will quarrel with this summary. For example, they say that the complaint also charges that their stock in Reading was illegally acquired, and that some of the complaint is so generally worded that one cannot tell what it means and, hence, cannot summarize it. For present purposes, however, the summary as stated will do.\\nReading's and B & O's preliminary objections are not quite alike, but among the issues they raise are these: First, the objections say that the Interstate Commerce Commission has exclusive or primary jurisdiction to determine whether B & O and C & 0 have properly acquired control of Reading, and whether B & O and C & 0 may be enjoined from voting their Reading stock. Second, the objections say that the transactions between B & O, C & 0, and Reading have not been pleaded specifically enough to state either when they occurred or why they should be considered to have been illegal. Third, the objections demur to the complaint. And finally, they say that plaintiffs have not shown capacity to sue.\\nInteresting as many of the questions presented by the preliminary objections are, and they are interesting and may later become critical, it is necessary and hence appropriate at this point to consider only one issue, which fits most easily under the demurrer, and which is raised by paragraph 3 of the complaint.\\nParagraph 3 says: \\\"Plaintiffs bring this action on behalf of themselves and, representatively and derivatively, on behalf of themselves and all other stockholders of Reading similarly situated. Reading 'has approximately 2,800,000 shares of voting stock outstanding held by shareholders so numerous as to make it impractical to bring them all before the Court. The rights herein sought to be enforced involve common questions of law and fact affecting the rights of all shareholders of Reading and common relief is sought\\\".\\nThe difficulty with this paragraph is the opening sentence. An action cannot be brought \\\"on behalf of [shareholders] . . . representatively and derivately. . . .\\\" In a representative action, a shareholder sues in his own right and on behalf of others like himself; he must, therefore, show an injury to himself as compared to an injury to the corporation. In a derivative action, the shareholder complains of no injury to himself, but rather of an injury to the corporation, which he is attempting to redress because the corporation will not: Reifsnyder v. Pittsburgh Outdoor Advertising Co., 405 Pa. 142 (1961); Reader, \\\"Suits Against Corporations\\\", 12 PS, pages 1-4, preceding \\u00a71221.\\n'Because of these differences, there used to be some question whether a representative action and a derivative action could be joined: Hornsby v. Lohmeyer, 364 Pa. 271, 274 (1950). Under Pennsylvania Rule of Civil Procedure 1508, however, if both actions are cognizable in equity, they may be joined, provided each is stated in a separate count: Wolf v. Young Supply Co., 19 D. & C. 2d 404, 409-10 (C. P. Delaware Co., 1959).\\nThe difficulties created by not pleading the two actions separately may be illustrated by considering the complaint here. For example: Why was the transfer of the warehouse and terminal facilities wrong? The complaint says because the consideration \\\"was grossly inadequate and resulted in a substantial loss to Reading\\\". Assuming this averment to be sufficiently specific, why do plaintiffs say it states a \\\"representative\\\" action? No injury to them is suggested; only an injury to Reading. Perhaps plaintiffs recognize this and mean that with respect to this transaction their complaint is \\\"derivative\\\". If so, Why must they assert it on Reading's behalf? In a derivative action, plaintiff must plead and prove that he asked the corporation to assert its rights and that it refused, or that if he had asked, it would have refused: Pa. R. C. P. 1506. Plaintiffs here only say that C & O and B & 0 dominate Reading and its officers and directors; they do not plead a request that Reading assert its rights; perhaps they do imply that the request would have been futile, but implication is not allegation.\\nTo illustrate again: Plaintiffs pray for an accounting of \\\". . . transactions between defendants which have resulted in loss or injury to Reading\\\", and for an order \\\"That defendants pay such sums as shall be found due as a result of such accounting\\\". But pay to whom? If to Reading, how is the action \\\"representative?\\\" And if to plaintiffs, why?\\nSimilar questions may be asked of each act referred to in the complaint in uncomplimentary terms. Plaintiffs' answer to such questions, that \\\". . . there is only the single set of operative facts, defendants' wrongful .exercise of control over Reading, from which may be distilled as many rights of action as these facts warrant\\\", is insufficient. For who is to do the distilling, if not plaintiffs? The art of drafting a complaint may be said to be to plead with such exactness that one's opponent in answering must make damaging admissions, and yet to be vague enough so that if something surprising turns up at the trial, somewhere in the complaint there will be room for it. Here, however, plaintiffs have saved so much room that their entire complaint is vague, not just its edges. The complaint must, therefore, be dismissed.\\nPlaintiffs will, however, be given leave to plead again; for they may be able to plead either a representative cause of action, or a derivative one, or both. If plaintiffs can plead both causes of action, and if they distinguish in their amended complaint between them with sufficient specificity, it will become apparent whether they do have capacity to seek relief, and if they do, whether what they seek can or should be granted only by the Interstate Commerce Commission; it will also become apparent to what extent plaintiffs and defendants need discovery.\\nAccordingly, the court enters the following:\\nOrder\\nAnd now, January 17, 1967, the demurrers filed by defendants Reading 'Company and Baltimore and Ohio Railroad Company are sustained, and the complaint is dismissed with leave to file within 20 days an amended complaint in accordance with the opinion accompanying this order.\\nChesapeake & Ohio Railway Company has also filed preliminary objections, which challenge the jurisdiction of this court, and each party has filed various motions regarding discovery; consideration of these was continued pending decision on Reading's and B & O's preliminary objections.\"}"

pa/1704272.json

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+"{\"id\": \"1704272\", \"name\": \"Commonwealth v. Carroll\", \"name_abbreviation\": \"Commonwealth v. Carroll\", \"decision_date\": \"1968-07-01\", \"docket_number\": \"no. 6\", \"first_page\": \"632\", \"last_page\": \"635\", \"citations\": \"45 Pa. D. & C.2d 632\", \"volume\": \"45\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Cumberland County Court of Quarter Sessions\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T23:07:49.041771+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth v. Carroll\", \"head_matter\": \"Commonwealth v. Carroll\\nJohn B. Fowler, 3rd, Assistant District Attorney, for Commonwealth.\\nGeorge Carroll, p. p.\\nJuly 1, 1968.\", \"word_count\": \"917\", \"char_count\": \"5324\", \"text\": \"Weidner, J.,\\nDefendant, George Carroll, was charged with operating a motor vehicle at 80 miles per hour on Interstate Route 81 where the speed limit is 65 miles per hour, on December 10, 1967.\\nThe charge was brought under The Vehicle Code of April 29, 1959, P. L. 58, sec. 1002(b) (9), as amended, 75 PS \\u00a71002(b) (9), which provides as follows:\\n\\\"Subject to the provision of subsection (c) of this section, the Secretary of Highways may after due investigation, establish certain speed zones with a sixty (60) mile an hour speed limit on State highways outside of business and residence districts, where traffic conditions and other conditions of the highway make it safe to operate motor vehicles at the maximum speed provided by this clause.\\n\\\"Any such established speed zone shall be indicated by the erection of official signs, spaced not less than one-eighth (1/8) of a mile apart, on the right-hand side of the highway facing the traffic to be controlled, and at the end of the speed zone there shall be an official sign indicating the end of such speed zone\\\".\\nDefendant waived a summary hearing before the justice of the peace and the hearing was held before the court on May 6, 1968. At the hearing, Trooper Roberts, of the Pennsylvania State Police, and Trooper Rendish, of the Pennsylvania State Police, testified for the Commonwealth that defendant was traveling 80 miles per hour for a clocked distance of 2.4 miles in Penn Township, Cumberland County, Pa. The Commonwealth offered no evidence that official speed signs were erected on the highway. .\\nDefendant moved to dismiss the action on two grounds:\\n1. That section 1002(b) (9) of the act does not authorize the secretary to set a 65 mile per hour limit on Interstate Highway Route 81 and that the violation should have been brought under section 1002 (b) - (8) of The Vehicle Code;\\n2. That official speed limit signs were not erected as required by the act.\\nUnder section 1002(b) (9) of the act, the Secretary of Highways is authorized to establish certain speed zones with a 60 mile-an-hour speed limit on State highways where traffic conditions and other conditions of the highway make it safe to operate motor vehicles at the maximum speed provided by this clause. It is apparent that under this section the secretary may set a speed zone with a 60 mile-per-hour speed limit but there is no authority under this section for the secretary to set a speed zone with a 65 mile an hour speed limit.\\nIt is obvious that section 1002(b) (8) of the act is the section under which the prosecution should have been brought.\\nSection 1002(b) (8) of The Vehicle Code was amended August 23,1961, P. L. 1118, sec. 2, to provide as follows:\\n\\\"The Secretary of Highways may, after due investigation, establish any speed limit on State highways where traffic conditions or other conditions of the highway make it safe to operate motor vehicles at the speeds other than as provided by this act.\\n\\\"Any such established speed limit shall be indicated by the erection of official signs, spaced not less than one-eighth (%) of a mile apart, on the right-hand side of the highway facing the traffic to be controlled, and at the end of the speed zone there shall be an official sign indicating the end of such speed zone, except that on limited access highways the signs shall be placed at the beginning and end of said limited access highways and at reasonable intervals in the discretion of the Secretary of Highways\\\".\\nUnder section 1002(b)(8) of The Vehicle Code, it is obvious that the secretary may establish \\\"any speed limit\\\", which would include the 65-mile-speed limit here established on Interstate Highway Route 81. Actually, under section 1002(b)(9), the Secretary of Highways had no authority to affix a limit higher than 60 miles per hour and, therefore, the limit of 65 set by the Secretary of Highways for Interstate Highway Route 81 had to be under section 1002(b)-(8) of The Vehicle Code.\\nIn further support of this interpretation, the amendment of 1961 to section 1002(b) (8) mentions for the first time limited access highways in the section dealing with the placing of signs. Therefore, in enacting the amendment of 1961 to subsection 1002-(b) (8), the legislature must have had in mind lim ited access highways such as Interstate Highway Route 81.\\nAccordingly, any violation of the speed limitation of 60 miles per hour set by the Secretary of Highways should be brought under section 1002(b) (9) and any alleged violation of the 65-mile-per-hour limit should be brought under section 1002(b) (8), and if brought otherwise, is defective. Section 1002(e) requires that reference be made to the section and subsection alleged to have been violated.\\nDefendant also objected and moved to dismiss on the ground that there was no evidence introduced as to the posting of signs as required by the act setting the speed limit. However, the posting of signs limiting the speed limit, where over the minimum of 55 miles per hour, is discretionary and not mandatory: Commonwealth v. Holte, 209 Pa. Superior Ct. 498 (1967).\\nOrder\\nAnd now, July 1, 1968, defendant's motion is sustained and the action dismissed. Costs on the County of Cumberland.\"}"

pa/1746605.json

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+"{\"id\": \"1746605\", \"name\": \"Commonwealth v. Estes\", \"name_abbreviation\": \"Commonwealth v. Estes\", \"decision_date\": \"1973-11-21\", \"docket_number\": \"no. 73-1631-02-6\", \"first_page\": \"330\", \"last_page\": \"336\", \"citations\": \"63 Pa. D. & C.2d 330\", \"volume\": \"63\", \"reporter\": \"Pennsylvania District and County Reports\", \"court\": \"Bucks County Court of Common Pleas\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T19:38:57.337943+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth v. Estes\", \"head_matter\": \"Commonwealth v. Estes\\nAlfred F. Shea, for appellant.\\nMaurice Levin, for Commonwealth.\\nNovember 21, 1973.\", \"word_count\": \"1545\", \"char_count\": \"9078\", \"text\": \"MONROE, J.,\\nThis is an appeal from the order of the Secretary of Transportation suspending appellant's operating privileges, under section 619.1 of The Vehicle Code of April 29, 1959, P. L. 58, as amended, 75 PS \\u00a7619.1. The matter was before the undersigned on a prior occasion, but was dismissed as premature inasmuch as the appellant's driving privilege had not yet been suspended. A hearing de novo having been held herein on June 4, 1973, we make the following\\nFINDINGS OF FACT\\n1. On July 18, 1968, at or around 12:30 a. m., appellant was clocked for speeding while operating his vehicle on Route 95 in Philadelphia.\\n2. Upon being stopped, the arresting police officer issued to appellant a \\\"Traffic Violation Information\\\" which stated on its face that appellant had violated section \\\"1002 B 9\\\" of The Vehicle Code by \\\"speeding\\\" in a \\\"posted speed zone\\\" at a rate of \\\"78 MPH in a 68 MPH Zone.\\\"\\n3. Upon examining the information which the officer had given him, appellant did not notice the reference to the code section \\\"1002 B 9\\\" but observed \\\"the figures 78 and 68\\\" and was \\\"quite amazed\\\" thereby. The numbers did not make sense to him and he realized that he was 10 miles over the speed limit and did not believe that he would get a license suspension therefor.\\n4. On July 24, 1968, appellant voluntarily paid a fine of $10 to the Philadelphia Traffic Court. Hearing was not held on the violation.\\n5. At the time that appellant paid the fine, he was not acquainted with section 1002(b)(9) of The Vehicle Code nor had he made any attempt to inform himself about the subject.\\n6. In his report of disposition of this case, filed with the Secretary of Transportation, the magistrate to whom appellant had paid the fine reported that the violation was for speeding in a posted speed zone, a violation of section 1002 B 9, \\\"lawful speed 60 clocked speed 78\\\" and that appellant waived a hearing, paid fine and costs. The report does not state that the appellant pleaded guilty or that he was found guilty or found not guilty.\\n7. By official notice dated December 17, 1968, the secretary assigned six points to appellant's record and ordered him to attend a driver improvement school. Defendant appealed therefrom to this court which, by order dated September 11, 1972, dismissed the appeal on the ground that appellant's driving privileges had not yet been suspended, and on September 29, 1972, the secretary reissued the order.\\n8. By official notice dated February 5, 1973, received February 8, 1973, the secretary suspended appellant's operating license for 15 days and reduced his point total to five on account of satisfactory completion of the driver training course.\\nDISCUSSION\\nIn a case such as this, the burden is upon the Commonwealth to produce the records of conviction received by the Department of Transportation from the district justices or magistrates and courts of record in the proper form, and the Secretary of Transportation s records compiled therefrom, which justified the suspension. If these documents show that the suspension was given in accordance with the mandate of section 619.1 of The Vehicle Code, the Commonwealth has produced a prima facie case for suspension. If defendant wishes, he may then proceed to prove by the preponderance of the evidence that he was not convicted or that the records or computations of the secretary are incorrect. He may not go into the facts of his violation or mitigating circumstances thereof because the issue is whether he was convicted and not whether he should have been convicted: Schaefer, Jr. v. Commonwealth, 8 Comm. Ct. 539 (1973), at page 543; Commonwealth v. James, 6 Comm. Ct. 493 (1972). Here, the Commonweath has placed in evidence the appropriate records to sustain its prima facie case. This is so even though the report of disposition of the case forwarded by the magistrate to the Secretary of Transportation does not show a plea of guilty or a finding of guilt, as the payment of the fine and costs constitutes an admission of conviction. See Wilson Motor Vehicle Operator License Case, 218 Pa. Superior Ct. 309 (1971); Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359 (1968); Commonwealth v. Halteman, 192 Pa. Superior Ct. 379 (1960); Commonwealth v. James, 6 Comm. Ct. 493, 496 (1972).\\nThe traffic violation information issued to appellant by the arresting officer at the time of the alleged offense is in evidence as a part of paragraph 5 of appellant's petition on this appeal, the averments of which said paragraph were admitted by the Commonwealth at the time of the hearing herein. That shows upon its face an apparent repugnancy, i.e., that the alleged violation was speeding at 78 MPH in a 68-mile zone and a violation of section 1002(b)(9) of The Vehicle Code, which section authorized the secretary to establish speed limit zones of 60 MPH. We know of no areas where the secretary has established a speed limit zone of 68 MPH, but it does not follow that he has not done so and that the area in which appellant was clocked was not such a zone. Section 1002(b)(8) authorizes the secretary, after due investigation, to \\\"establish any speed limit on State highways where traffic conditions or other conditions of the highway make it safe to operate motor vehicles at the speeds other than as provided by [The Vehicle Code].\\\"\\nThere is no evidence of record before us as to what, in fact, the speed limit was in the area in which appellant was clocked. Therefore, the apparent repugnancy in the traffic violation information, which could only be resolved by evidence outside of the information and outside of the present record, remains. The purpose of an information, as with a criminal complaint or citation, is to give a defendant fair and reasonable notice of the violation supposedly com mitted. See Commonwealth v. Olson, 20 D. & C. 2d 709 (1959). The herein information fails its purpose.\\nIt cannot be convincingly argued that the citation of section 1002(b)(9) in the traffic violation information is controlling as to the offense charged. At the time of this alleged offense, Rule 104 of the Pennsylvania Rules of Criminal Procedure required that \\\"Every complaint shall be substantially in the form set forth in Rule 105 and shall contain: . . . (6) . . . a summary of the facts sufficient to advise the defendant of the nature of the offense charged, but neither the evidence nor the statute allegedly violated need be cited in the complaint, nor shall a citation of the statute allegedly violated, by itself, be a sufficient compliance with this sub-section.\\\"\\nThis rule indicates that the recitation of the statute allegedly violated is surplusage in the complaint or information and that the factual situation related is controlling. To what then did appellant plead guilty? And, there having been no hearing before the magistrate in connection with the violation by what authority did he make the election or determination that the section of the code violated was, in fact, section 1002(b)(9)? We are of the opinion that appellant by his evidence has overcome the prima facie case of the Commonwealth tending to establish the conviction of appellant for a violation of section 1002(b)(9).\\nORDER\\nAnd now, November 21, 1973, the within appeal is sustained and the order of the Secretary of Transportation dated September 29, 1972, assigning six points to appellant's driving record and the order of the secretary dated February 5, 1973, suspending appellant's operator license for a period of 15 days, are vacated.\\nSection 1002(b)(9) provides as follows:\\n\\\"(b) Subject to the provisions of subsection (a) of this section, speeds in excess of the maximum limits hereinafter provided shall be unlawful:\\n\\\"(9) Subject to the provisions of subsection (c) of this section, the Secretary of Highways may, after due investigation, establish certain speed zones with a sixty (60) mile an hour speed limit on State highways outside of business and residence districts, where traffic conditions of the highway make it safe to operate motor vehicles at the maximum speed provided by this clause.\\\"\\n\\\"The use of the capital letter 'B' instead of the lower case (b) in referring to a violation of Section 1002 is not a fatal error to the Commonwealth's case\\\": Commonwealth v. Thomas, 4 Chester 139 (1949).\\nSection 619.1 of The Vehicle Code, 75 PS \\u00a7619.1, directs that upon the conviction of an operator of a motor vehicle for a violation of section 1002(b)(9) by a speed of 16 to 20 miles in excess of the lawful speed limit his driving record shall be assigned six points and his license suspended for 15 days.\\nThe provision of subsection (e) of section 1002 of The Vehicle Code, requiring every information charging a violation of section 1002 to contain a statement of that section and the subsection violated and the speed at which defendant is alleged to have driven, was suspended by the rule quoted. See Act of July 11, 1957, P. L. 819, sec. 1, 17 PS \\u00a72084.\"}"

pa/1787681.json

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+"{\"id\": \"1787681\", \"name\": \"In re Petition of Edward J. THOMPSON for the Nomination of the Republican Party for the Forty-Fifth (45th) Senatorial District\", \"name_abbreviation\": \"In re Thompson\", \"decision_date\": \"1984-03-16\", \"docket_number\": \"Appeal No. 17 M.D. Appeal Dkt. 1984\", \"first_page\": \"366\", \"last_page\": \"367\", \"citations\": \"504 Pa. 366\", \"volume\": \"504\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T01:01:46.612118+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.\", \"parties\": \"In re Petition of Edward J. THOMPSON for the Nomination of the Republican Party for the Forty-Fifth (45th) Senatorial District.\", \"head_matter\": \"474 A.2d 41\\nIn re Petition of Edward J. THOMPSON for the Nomination of the Republican Party for the Forty-Fifth (45th) Senatorial District.\\nSupreme Court of Pennsylvania.\\nArgued March 13, 1984.\\nDecided March 16, 1984.\\nThomas L. Wenger, Harrisburg, for appellant.\\nJohn F. Lyons, Harrisburg, for appellee.\\nBefore NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.\", \"word_count\": \"64\", \"char_count\": \"428\", \"text\": \"ORDER\\nPER CURIAM:\\nOrder affirmed.\"}"

pa/1809571.json

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+"{\"id\": \"1809571\", \"name\": \"The Commonwealth against Deacon\", \"name_abbreviation\": \"Commonwealth v. Deacon\", \"decision_date\": \"1822-04-01\", \"docket_number\": \"\", \"first_page\": \"47\", \"last_page\": \"50\", \"citations\": \"8 Serg. & Rawle 47\", \"volume\": \"8\", \"reporter\": \"Reports of cases adjudged in the Supreme Court of Pennsylvania (Sergeant & Rawle)\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T18:11:07.099911+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Commonwealth against Deacon.\", \"head_matter\": \"The Commonwealth against Deacon.\\nThe keeper of the prison \\u00a1abound tore, an-estertTn\\u2122 }>;\\u2019ousht to him by a constable, and charged with a breach of the peace in his presence.\\nTHIS was an indictment found in the Mayor\\u2019s Court J of the city of Philadelphia, against Israel Deacon, keeper of the prison of Philadelphia, and removed to this Court by certiorari. It charged the defendant with refusing to receive into his custody, Albert Canjire, who was arrested \\u00a1-,y John Topham, a constable of the said city, for committing a breach of the peace in his presence. The indictment was tried in December last, before Duncan J. at Nisi Prius, when a verdict was found for the Commonwealth, subject to the opinion of the Court, whether the offence described in the indictment was indictable.\\nKilter a, for the Commonwealth.\\nThe inspectors of the prison wish the question decided, whether the keeper of the prison is bound to receive into his custody, persons arrested by a constable, under the circumstances described in the indictment. There can be no doubt that the constable had a right to arrest the party, and keep him safe till he could have a hearing before a magistrate. Where is he to keep him? His own house is not safe. The authorities shew, that in every case of treason, feiony, and actual breach of the peate, the offender may be apprehended without warrant; and even though no crime were actually committed, a peace officer would be justified if he acted on the information of another. 6 Bac. Ab. 572. 1 Chitt. Cr. L. 14. 16. 40. Hawk. B. 2. Ch. 16. S. 3. A justice who detains one for further hearing, (which should not exceed three days,) should keep him in the common jail.\\nBradford, contra.\\nThe object is to settle the law as respects the duty of the keeper. We contend, that he is not bound to receive a prisoner without a previous warrant from a justice. Dalton, (Justice 4,) lays it down, that if any man shall make an affray or assault upon another, in the presence of the constable, or threaten to kill, beat, or hurt another, or shall be in a fury ready to break the peace, the constable may commit the offender to the stocks, or to some other safe custody for the present, as his or their quality requireth, and after, may carry them before some justice of the peace or to the jail, until they shall find surety for the peace, which the constable may take by obligation, &c. Hawkins, in treating of this subject, confines it to cases of felony or treason. It would be of dangerous consequence to say that a constable .may arrest whom he chooses to charge, and lodge him in jail. This Court has held, that common report will not justify a Judge ia issuing a warrant. 3 Binn. 38. At all events, if the constable can commit, he should do it in writing, so that the ground of it may be distinctly stated.\", \"word_count\": \"1033\", \"char_count\": \"5688\", \"text\": \"Gibson J.\\ndelivered the opinion of the Court.\\nAlthough the authorities are not decisive on this subject, they go a considerable length to establish the right of a constable to deposit a prisoner arrested without warrant, in the common jail for safe keeping, till he can be carried before a magistrate. Even a private person, who may have apprehended another for treason or felony, may convey him to the jail of the county; although it is said, the safer course is to cause him, as soon as convenience will permit, to be brought before a justice of the peace, and I cannot see any reason why a private person should not have the same authority on an arrest during an affray, which has taken place in his presence. A constable may put a party arrested for an affray in the stocks; and, in case of any offence for which the party suspected may be arrested, may convey him to the Sheriff, or jailer of the county ; although in this case also, and in every other of the kind, it is said to be the safest and best course, to carry the offenders before a magistrate as soon as circumstances will permit. This is the sum of what is found in the books on the subject; and without saying what would be the duty of a jailer in case of an arrest by a private person, I think it may fairly be inferred, he is bound to receive a prisoner offered by a constable for safe keeping. A constable is a known officer, charged with the conservation of the peace, and whose business it is to arrest those who have violated it. It would therefore be strange if, while all private persons are bound to obey and assist him in suppressing an affray, an officer of justice should be at liberty to refuse the most efficient assistance of all, the confinement of the parties engaged. The officers of justice are bound to assist each other in their several departments, and to afford each other all the facilities which the public means have put in their power. There may be cases of such urgency as not to admit of delay till a warrant of commitment can be procured,-\\u2014 as in the case of an affray near the jail; and there the necessity of the case would prove that the jailer ought to take charge of the parties actually engaged ; and if he is bound t0 receive in one case, on the bare charge of a peace officer, I know not why he should not be in another. There is no danger to the liberty of the citizen in this ; for if the arrest anc* detention be improper, the prisoner can have instant redress by the writ of habeas corpus, and the constable may be punished by-indictment, or subjected to damages in an action of trespass. On the other hand, were the law otherwise, .the means- of securing the. persons of prisoners, and of acting with decisive effect in quelling affrays and riots, would be greatly and unnecessarily lessened. I am therefore of opinion, that the indictment is sufficient.\"}"

pa/1809869.json

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+"{\"id\": \"1809869\", \"name\": \"COMMONWEALTH of Pennsylvania v. Troy ANDREWS, Petitioner\", \"name_abbreviation\": \"Commonwealth v. Andrews\", \"decision_date\": \"1987-09-24\", \"docket_number\": \"No. 1080 E.D. Allocatur Docket 1986\", \"first_page\": \"1\", \"last_page\": \"1\", \"citations\": \"517 Pa. 1\", \"volume\": \"517\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T02:26:15.387565+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COMMONWEALTH of Pennsylvania v. Troy ANDREWS, Petitioner.\", \"head_matter\": \"534 A.2d 452\\nCOMMONWEALTH of Pennsylvania v. Troy ANDREWS, Petitioner.\\nNo. 1080 E.D. Allocatur Docket 1986.\\nSupreme Court of Pennsylvania.\\nSept. 24, 1987.\", \"word_count\": \"93\", \"char_count\": \"570\", \"text\": \"ORDER\\nAND NOW, this 24th day of September, 1987, the Motion for Appointment of Counsel is remanded to COMMONWEALTH COURT for the consideration of the eligibility of petitioner for appointed counsel. If it is determined that petitioner is entitled to the appointment of counsel, the Court is to appoint counsel. Amended petition for allowance of appeal is to be filed within 30 days of the entry of the order below.\"}"

pa/182987.json

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+"{\"id\": \"182987\", \"name\": \"Commonwealth v. Brown, Appellant\", \"name_abbreviation\": \"Commonwealth v. Brown\", \"decision_date\": \"1981-11-30\", \"docket_number\": \"Nos. 1415 and 1628\", \"first_page\": \"634\", \"last_page\": \"634\", \"citations\": \"296 Pa. Super. 634\", \"volume\": \"296\", \"reporter\": \"Pennsylvania Superior Court Reports\", \"court\": \"Superior Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T17:33:05.176005+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SPAETH, POPOVICH and MONTGOMERY, JJ.\", \"parties\": \"Commonwealth v. Brown, Appellant.\", \"head_matter\": \"440 A.2d 1256\\nCommonwealth v. Brown, Appellant.\\nArgued September 9, 1981.\\nDavid R. Black, for appellant; Kristine F. Hughey, Assistant District Attorney, for Commonwealth, appellee.\\nBefore SPAETH, POPOVICH and MONTGOMERY, JJ.\", \"word_count\": \"37\", \"char_count\": \"267\", \"text\": \"Judgment of sentence and order affirmed.\"}"

pa/1892971.json

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+"{\"id\": \"1892971\", \"name\": \"Commonwealth ex rel. Gaito, Appellant, v. Maroney\", \"name_abbreviation\": \"Commonwealth ex rel. Gaito v. Maroney\", \"decision_date\": \"1964-11-24\", \"docket_number\": \"Appeals, Nos. 315 and 316\", \"first_page\": \"199\", \"last_page\": \"204\", \"citations\": \"416 Pa. 199\", \"volume\": \"416\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T02:07:40.244576+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Bell, C. J., Musmanno, Jones, Cohen, Eagen, O\\u2019Brien and Roberts, JJ.\", \"parties\": \"Commonwealth ex rel. Gaito, Appellant, v. Maroney.\", \"head_matter\": \"Commonwealth ex rel. Gaito, Appellant, v. Maroney.\\nArgued October 6, 1964.\\nBefore Bell, C. J., Musmanno, Jones, Cohen, Eagen, O\\u2019Brien and Roberts, JJ.\\nStanley J. Reisman, with him Zigmund L. Dermer, for appellant.\\nEdwm J. Martin, Assistant District Attorney, with him Louis \\u00c1bromson, Assistant District Attorney, and Robert W. Duggan> District Attorn\\u00e9y, for appellee.\\nNovember 24, 1964:\", \"word_count\": \"1030\", \"char_count\": \"6132\", \"text\": \"Opinion by\\nMr. Chief Justice Bell,\\nAppellant filed a petition for a writ of habeas corpus which was dismissed without hearing. The Superior Court affirmed the Order dismissing petition, and we allowed an allocatur. The Order must be reversed.\\nFrank Gaito and Joseph Gaito, brothers, were tried and convicted by a jury of (1) burglary, and (2) assault with intent to kill. On July 12, 1960, substantial prison sentences were imposed on both brothers.\\nThe judgments were affirmed by the Superior Court in Commonwealth v. Gaito, 195 Pa. Superior Ct. 356, 172 A. 2d 184. This Court denied an allocatur. The United States Supreme Court denied certiorari, 368 U.S. 998. As a result of the above mentioned convictions, Gaito was recommitted to prison for violation of parole to serve the balance of previously imposed sentences. The prior sentences have not yet expired and consequently Gaito has not commenced to serve the sentences imposed for his aforesaid crimes of burglary and assault with intent to kill. Cf. Ex Parte Cleio Hull, 312 U.S. 546.\\nGaito's petition for a writ of habeas corpus alleges, inter alia, that his oral confession of (1) burglary, and (2) assault with intent to kill was erroneously admitted at the trial of his case. The pertinent facts may be thus summarized:\\nSeveral burglaries had been committed in Dormont Borough, Allegheny County, Pennsylvania. On the occasion involved, an off-duty policeman was hiding in his darkened home anticipating a visit by the burglars. They arrived. Shots were exchanged. The policeman and one of the burglars suffered shotgun wounds. The burglars escaped.\\nSeveral hours later, Frank Gaito was found outside the Mercy Hospital in a critical condition, suffering from a bullet wound in the abdomen. He was operat ed on almost immediately. About four hours after the operation was completed, Gaito was questioned by an assistant district attorney, who testified at Gaito's trial that Gaito orally admitted participating in the burglary. Gaito testified that he had no recollection of anything that happened for about twenty-four hours after the operation. The hospital records show that at the time of the questioning, Gaito was under the influence of drugs injected before and after the operation, and that about the time involved, he was speaking incoherently.\\nGaito's oral confession was admitted at his trial, over his objection, and the question of its voluntariness was left to the jury who, as above noted, found him guilty. This practice of having a jury determine the voluntariness of a confession was in accord with the long established principles enunciated and the practice followed in Pennsylvania for more than a century, and had been approved by the Supreme Court of the United States. See: Stein v. New York, 346 U.S. 156 (1953).\\nJackson v. Denno, 378 U.S. 368 (June 22, 1964) abruptly changed the law. It decided: (1) that the voluntariness of a confession made by an accused or by a defendant in a criminal case must be determined in the first instance by the Court, either prior to the jury trial or in any event outside the presence of the jury trying his guilt; (2) that an accused is entitled to a hearing in a State Court \\u2014 (a) by a Judge, or (b) by a Court, or (c) by a jury which is not the jury deciding guilt or innocence, if the State requires or allows such jury determination \\u2014 on the issue of the voluntariness of his confession; (3) thereafter, if the Judge or Court or jury finds the confession was voluntary, it is admissible in the trial of the case on the merits of guilt or innocence and may be considered by this jury together with all the other evidence in the case, with, however, the right of this jury to itself determine the voluntariness of the confession and of course its truthfulness and weight; (4) if the Court decides that the confession was involuntary (or coerced), it is a violation of due process (a) to admit it in evidence; or (b) to support a conviction which is based in whole or in part thereon, regardless of the truth of the confession and even though there may be other evidence amply sufficient to support the conviction; and (c) in such a case, a new trial must be granted. (5) If, on appeal from the conviction or in habeas corpus, the record discloses that prior to Jackson v. Denno, (a) a defendant had been found guilty in a trial in which the voluntariness of the confession was controverted or was in issue under the evidence, and (b) the confession was admitted without a prior hearing and ruling thereon by the Court as to its voluntariness, the case must be remanded to the trial Court for a hearing on the question of voluntariness of the confession. If the Court of original jurisdiction or the appellate Court, in the event of an appeal, decides that the confession was voluntary, the judgment and sentence shall be sustained.\\nGoverned by Jackson v. Denno, supra, and the mandate therein contained, we make the following Order:\\nThe Order of the Superior Court is reversed; the Order of the Court of Common Pleas of Allegheny County is reversed; and the record is remanded to the Court of Quarter Sessions with directions to promptly hold a hearing, in the presence of the defendant and consistent with the requirements of due process, to determine the voluntariness of Gaito's oral confession which was introduced in evidence at his trial before that Court for burglary and assault with intent to kill. If Gaito is without counsel at that hearing, the Court shall appoint counsel to represent Gaito in said proceedings. After such hearing, that Court shall enter an appropriate Order based upon its findings and conclusions and consistent with this Opinion.\\nRecord remanded, with directions.\\nand in 15 other states.\"}"

pa/1897691.json

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+"{\"id\": \"1897691\", \"name\": \"Joseph H. Reiter, Petitioner v. Commonwealth of Pennsylvania, Department of Justice and Governor of Pennsylvania, Respondents\", \"name_abbreviation\": \"Reiter v. Commonwealth\", \"decision_date\": \"1979-05-24\", \"docket_number\": \"No. 2351 C.D. 1977\", \"first_page\": \"61\", \"last_page\": \"64\", \"citations\": \"43 Pa. Commw. 61\", \"volume\": \"43\", \"reporter\": \"Pennsylvania Commonwealth Court Reports\", \"court\": \"Commonwealth Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-10T22:55:19.917211+00:00\", \"provenance\": \"CAP\", \"judges\": \"before Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three.\", \"parties\": \"Joseph H. Reiter, Petitioner v. Commonwealth of Pennsylvania, Department of Justice and Governor of Pennsylvania, Respondents.\", \"head_matter\": \"Joseph H. Reiter, Petitioner v. Commonwealth of Pennsylvania, Department of Justice and Governor of Pennsylvania, Respondents.\\nArgued February 5, 1979,\\nbefore Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three.\\nHarry D. Shargel, for petitioner.\\nJoseph L. McCann, Deputy Attorney General, with him Norman J. Watkins, Deputy Attorney General, and J. Justin Blewitt, Jr., Acting Attorney General, for respondents.\\nMay 24, 1979:\", \"word_count\": \"758\", \"char_count\": \"4766\", \"text\": \"Opinion by\\nJudge Crumlish, Jr.,\\nThe Governor and the Department of Justice of Pennsylvania, by preliminary objections, demur to a mandamus action instituted by Joseph H. Reiter. Reiter asks us to order the Department to reinstate him with back pay as Deputy Attorney General and to enjoin the Governor from future interference with Reiter's employment.\\nWe sustain the preliminary objections.\\nDid the Governor dismiss him without the consent and over the objection of the Attorney General arbitrarily, without cause, and without authority in law so as to support an action in mandamus?\\nReiter's complaint recites that the Attorney General appointed him Special Deputy Attorney General and Director of the Office of Drug Law Enforcement in August, 1973, and that his performance in both capacities was satisfactory to the Attorney General. The then-Governor Shapp sent Reiter a letter of dismissal on March 30, 1977, which was confirmed by a letter dated the same day from the Personnel Director of the Justice Department, a copy of which was also sent to the Attorney General.\\nOur cases have repeatedly stressed the extraordinary nature of a writ of mandamus and hold that mandamus \\\"lies only to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other adequate remedy.\\\" Kaplan v. Smith, 40 Pa. Commonwealth Ct. 95, 97, 396 A.2d 493, 494 (1979).\\nAs an appointed Assistant Attorney General, Reiter was an employee-at-will afforded neither tenure nor protection against dismissal without cause. See Rosenthal v. Rizzo, 555 F.2d 390 (3rd Cir. 1977); Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960); Mahoney v. Philadelphia Housing Authority, 13 Pa. Commonwealth Ct. 243, 320 A. 2d 459 (1974). This being so, can we compel his reinstatement on the grounds that he was peremptorily dismissed without cause? Obviously, no.\\nReiter contends that, because he was appointed by the Attorney General pursuant to Section 906 of The Administrative Code of 1929, 71 P.S. \\u00a7296, the Attorney General alone is constitutionally empowered to displace him.\\nIt is axiomatic that \\\"the power of removal is correlative with the power of appointment.\\\" Commonwealth ex rel. Schofield v. Lindsay, 330 Pa. 120, 123, 198 A. 635, 636 (1938). Unless the legislature, when creating an office of public employment, provides a method of removal, Article VI, Section 4 of the Pennsylvania Constitution by which one ' ' shall be removed at the pleasure of the power by which they shall have been appointed\\\" controls. Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59 (1943).\\nThe Attorney General serves at the pleasure of the Governor who is constitutionally empowered to appoint and, thus, may remove him at will. The legislature gives the Attorney General authority to appoint assistants \\\"with the approval of the Governor.\\\" Appointed Assistant Attorneys General remain accountable to the Attorney General who, in turn, remains accountable to the Governor. See Gwinn v. Kane, 465 Pa. 269, 348 A.2d 900 (1975). Argument that the Governor may not \\\"interfere with the employment\\\" of an Assistant Attorney General is patently untenable.\\nFinally, Reiter's argument that only the Attorney General is empowered to dismiss him is also without merit. The Attorney General's power to dismiss an appointed assistant on his own initiative does not militate against a similar power in the Governor who, as the elected Chief Executive of the Commonwealth, may dismiss Ms subordinates in the Justice Department, at will.\\nAccordingly, we\\nOrder\\nAnd Now, this 24th day of May, 1979, the preliminary objections in the nature of a demurrer raised by Respondents are hereby sustained and Petitioner Joseph H. Reiter's complaint is hereby dismissed.\\nThe Petition for Review in Mandamus was filed during Governor Milton Shapp's term of office.\\nFormer Attorney General Israel Packel.\\nFormer Attorney General Robert Kane.\\nSection 906 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. \\u00a7296.\\nWe Rave considered cases dealing with legislative attempts to restrict the Chief Executive's power to remove appointed officers at will and find them to be inapposite to the case at bar.\"}"

pa/1921119.json

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+"{\"id\": \"1921119\", \"name\": \"Basehore v. Hampden Industrial Development Authority; Walker, Appellant, v. Butler County Industrial Development Authority\", \"name_abbreviation\": \"Basehore v. Hampden Industrial Development Authority\", \"decision_date\": \"1968-11-22\", \"docket_number\": \"Appeal, No. 167\", \"first_page\": \"40\", \"last_page\": \"67\", \"citations\": \"433 Pa. 40\", \"volume\": \"433\", \"reporter\": \"Pennsylvania State Reports\", \"court\": \"Supreme Court of Pennsylvania\", \"jurisdiction\": \"Pennsylvania\", \"last_updated\": \"2021-08-11T02:07:51.552096+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Bell, C. J., Musmanno, Jones, Cohen, Eagen, O\\u2019Brien and Roberts, JJ.\", \"parties\": \"Basehore v. Hampden Industrial Development Authority. Walker, Appellant, v. Butler County Industrial Development Authority.\", \"head_matter\": \"Basehore v. Hampden Industrial Development Authority. Walker, Appellant, v. Butler County Industrial Development Authority.\\nArgued April 24, 1968; reargued June 27, 1968.\\nBefore Bell, C. J., Musmanno, Jones, Cohen, Eagen, O\\u2019Brien and Roberts, JJ.\\nRichard G. Snelbalcer, for plaintiff (Basehore).\\nPaul E. Rhoads, with him Walter K. SwarMcopf, Jr., and Rhoads, Sinon and Reader, for defendant, Ralston Purina Company.\\nTom E. Bietsch, for defendant, Hampden Industrial Development Authority.\\nWilliam, C. Sennett, Attorney General, and Vincent X. Yakowicz, Deputy Attorney General, with them Edward Friedman, Counsel General, for Commonwealth, intervenor.\\nEdward G. Bauer, Jr., City Solicitor, with him James L. J. Pie, Deputy City Solicitor, and Matthew W. Bullock, Jr., Second Deputy City Solicitor, for City of Philadelphia, intervenor.\\nWalter Stein, with him Frederick D. Wood, for Philadelphia Authority for Industrial Development, intervenor.\\nSilvio P. Gerchie, with him Saul J. Bernstein, for plaintiff, Walker, appellant.\\nPaul G. Perry, with him David E. Johnson, and Burgwin, Puffin, Perry, Pohl \\u00e9 Springer, for defendant, Armco Steel Corporation, appellee.\\nNorman D. Jaffee, for Butler Authority, appellee.\\nCharles T. Chew, for Board of County Commissioners of Butler County, appellee.\\nNovember 22, 1968:\\nThe above appeals were consolidated for argument specially on June 27, 1968.\", \"word_count\": \"7573\", \"char_count\": \"46828\", \"text\": \"Opinion by\\nMe. Justice Jones,\\nBoth these cases originated as equity actions to enjoin the respective defendants (municipal authorities, certain officials and private concerns) from taking any action pursuant to acquisition agreements (\\\"Agreements\\\") entered into by the respective defendants pursuant to the Industrial Development Authority Law (Act of August 23, 1967, P. L. 1609, 73 P.S. \\u00a7371) (\\\"Act\\\"), and the Amendment to the County Code (Act of January 12, 1968, P. L. , \\u00a71999g, 16 P.S. \\u00a71999g) (\\\"Amendment\\\"), authorizing the issuance of nondebt revenue bonds by counties of the third to eighth class. In effect, these are taxpayers' suits to test the constitutionality of the Industrial Development Authority Law, supra, and the amendment to The County Code and to test the constitutionality and legality of Agreements entered into between the Butler County Industrial Development Authority and Armco Steel Corporation and between the Hampden Industrial Development Authority and Ralston Purina. Company. In both cases, the parties have stipulated the facts. In appeal No. 167, the Court of Common Pleas of Butler County upheld the constitutionality both of the Act and of the Acquisition Agreement and in appeal No. 91, this Court granted special certiorari to the Court of Common Pleas of Cumberland County.\\nThe two Agreements here in question are similar in their provisions. The Hampden Authority was formed pursuant to an ordinance of the Board of Township Commissioners of Hampden Township for the purpose of constructing or acquiring industrial development projects. On January 16, 1968, the Authority and Ralston entered into an Acquisition Agreement under which the Authority agreed to buy the industrial site on which the proposed factory will be built and the site would be leased to Ralston for a term of 30 years and the Authority will provide funds for the construction of the new industrial plant by floating revenue bonds issued by the Authority in the principal amount of $8 million. Ralston agreed to construct the industrial plant with the funds and to lease it from the Authority at an annual rent sufficient to pay the interest on and amortization of the principal of all bonds and other obligations incurred by the Authority in setting up the project; if the amount raised by the bonds does not cover the cost of construction, Ralston agreed to complete the project and, in addition, to pay all costs of maintaining and operating the project once it is completed. Moreover, Ralston agreed to pay annually in lieu of taxes an amount equal to the taxes it would have to pay if the project were not owned by a tax-exempt authority.\\nRalston was the assignee of an option to purchase the site on which the project will be built. On July 13, .1967, Ralston gave notice of its election to exercise the option and paid $12,000 toward the purchase price; no conveyance was made, but Ralston proposes to assign the contract to purchase the site to the Authority. Under the Agreement, Ralston has the right to assign or sublet the project once it is completed, but, if it does so, it will remain primarily liable for the performance of the Agreement.\\nRalston has the further right to purchase the project during the term of the lease or after retirement of all debt obligations and, under no circumstances, would Ralston purchase the project without first providing sufficient funds to retire all debt obligations; in addition to paying all expenses of the Authority in winding up the project, Ralston would pay $1000 upon purchase of the project.\\nThe bonds to be issued will be revenue bonds. It will be stated on the bonds that all principal and interest will be payable exclusively from the income, rentals and revenues of the project and that neither the general credit nor the taxing power of the town ship or the Commonwealth is pledged for payment of the bonds. The bonds will state further that they are not obligations of the township or Commonwealth. All bonds will mature before the life of the Authority expires. The bond indenture prohibits foreclosure or execution on any property involved in the project.\\nThe project envisages the construction of a new plant which will employ 100 persons at the outset and will not replace a plant already in existence in Pennsylvania. Under Section 12 of the Act, Ralston will let the construction contracts and purchase machinery without competitive bidding.\\nThe Secretary of Commerce of the Commonwealth approved the project on January 18, 1968, as required by Section 7(f) of. the Act.\\nIndustrial development authorities are not new, the first such authority having been set up in Mississippi in 1936. Today over 40 states have established such authorities. The principle behind the projects is relatively simple. Tax-exempt authorities are established to build plants for private manufacturing companies and the funds used to construct the projects come from revenue bonds which are tax-exempt under Section 103(a) (1) of the Internal Revenue Code of 1954. Obviously, the projects are enticing to private manufacturers since the authority can build the plant at a lower cost utilizing tax-exempt revenue bonds than the company could by utilizing its own nontax-exempt bonds. The projects are enticing to the Commonwealth since presumably they will attract industry to the state or encourage industries already located in Pennsylvania to increase their facilities and increase employ ment. In effect, the federal government subsidizes the construction of plants for private manufacturers to enhance and increase employment.\\nIn most states having such projects, taxpayers have brought suits to test their constitutionality and, in most instances, the courts have held that the projects are constitutional. As in most of these suits, the taxpayers in the present suit have alleged that the Act and the Agreements violate several provisions of the State and National Constitutions. We will deal with their major contentions in turn.\\nI.\\nThere is no question that the Authorities are instrumentalities of the Commonwealth, that the projects are owned by the Authorities and that these requirements are essential in order for the revenue bonds to receive a tax-exempt status under Section 103(a) (1) of the Internal Revenue Code. The instant taxpayers claim that the Authorities are using public money for what is essentially a private purpose, i.e., constructing plants for two private manufacturing corporations. The Authorities argue, on the other hand, that the projects are primarily public in nature, that the Act is designed to attract businesses to Pennsylvania or enhance existing businesses and to increase employment, that new plants will create jobs, and that taking steps to create jobs is within the police power of the Commonwealth.\\nThe Act details legislative findings that unemployment is a serious problem in the state and that industrial development projects are effective means to fight unemployment. The taxpayers argue that it is for the courts and not the legislature to evaluate the public purpose of a statute when that statute's constitutionality is attacked. On several occasions, this Court has stated that legislative findings of fact are entitled to a prima facie acceptance of their correctness: \\\"It is to be noted, too, that the Housing Authorities Law declares the purposes of the act to be 'public purposes for which public money may be spent and private property acquired by the exercise of the power of eminent domain,' and, while such a legislative declaration is not conclusive \\u2014 it being for the ultimate decision of the courts as to whether a proposed use is a public one \\u2014 it is entitled not only to respect but to a prima facie acceptance of its correctness.\\\": Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 222, 200 Atl. 834 (1938). See also: McSorley v. Fitzgerald, 359 Pa. 264, 268, 59 A. 2d 142 (1948); Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 334, 54 A. 2d 277 (1947). Such a rule is salutary for courts are not in a position to assemble and evaluate the necessary empirical data which forms the basis for the legislature's findings. The Authorities present data indicating that there is and has been an unemployment problem in Pennsylvania and that industry is and has been declining and the taxpayers counter with evidence that demonstrates that the unemployment problem is not presently very serious and acute. Courts should not be called upon to sift through such data. It is the province of the legislature, not the judiciary, to determine the extent of the unemployment problem in Pennsylvania and to determine the means necessary to combat that problem. Furthermore, the concept of \\\"public purpose\\\" changes through the years. \\\"Views as to what constitutes a public use necessarily vary with changing conceptions of the scope and functions of government, so that today there are familiar examples of such use which formerly would not have been so considered. As governmental activities increase with the growing complexity and integration of society, the concept of 'public use' naturally expands in proportion.\\\": Dornan, supra, at 221. Generally, the legislature, which is more responsive to the people and has more adequate facilities for gathering and assembling the requisite data, is in a better position to evaluate and determine public purpose than are the courts, especially at the appellate level.\\nAll parties are agreed that unemployment is a problem which falls within the police power of the state. See: Commonwealth v. Perkins, 342 Pa. 529, 21 A. 2d 45, aff'd, 314 U.S. 586 (1941). The legislature has found that the unemployment problem is sufficiently serious now to warrant that steps be taken to remedy the problem and such legislative finding is entitled to great respect by us. The taxpayers have not convinced us that the legislative findings are unrealistic nor are we convinced by their argument that the legislature has not proved that there is a present unemployment problem but that the Act is designed to prevent unemployment in the future. Even if their characterization of the legislature's findings were correct, the taxpayers have not cited any cases holding that it is not within the police power to prevent a potentially serious problem from developing in the future. There is no requirement in the law that the legislature wait until the proverbial horse has escaped before acting.\\nThe taxpayers' main concern is that the party who is really benefiting from this program is the private manufacturer who acquires an industrial plant at a much lower cost than he would have incurred had he built it himself. It is beyond question that private manufacturers receive a very large benefit from this program; however, this fact alone should not invalidate the program. If the legislative program is reasonably designed to combat a problem within the competence of the legislature and if the public will benefit from the project, then the project is sufficiently public in nature to withstand constitutional challenge.\\nIn the cases at bar, the parties have stipulated that the plants will employ 500 persons at the outset and that the projected plants will not replace already existing plants in Pennsylvania. The projects would, therefore, appear to be effective means of combating unemployment since they will create jobs directly. Moreover, there is no constitutional requirement that the entire public benefit from a program before that program can be termed \\\"public.\\\" \\\"It is not essential that the entire community or even any considerable portion of it should directly enjoy or participate in an improvement in order to make its use a public one.\\\": Dornan, supra, at 222. There is another important factor to consider. Industrial development authorities are so prevalent throughout the country that Pennsylvania is at a competitive disadvantage in attracting industry to this state should we declare this act unconstitutional. Even the taxpayers do not maintain that it is not within the police power of the legislature to attract industry into the state or aid industry presently located in the state if such attraction and aid will alleviate unemployment and increase the opportunities for employment.\\nOn at least three previous occasions we have upheld the creation of authorities which have substantially benefited private citizens. In Doman, we upheld an act creating authorities for the purpose of slum clearance, a project of primary benefit to those persons living in slums for the authorities built new housing for them and we held that the act was an effective means to combat the spread of slums, a problem admittedly within the police power, and the fact that certain private persons benefited substantially and that the public in general received no direct benefit did not derogate from the fact that this was a public project. In Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A. 2d 277 (1947), we upheld the constitutionality of the Urban Redevelopment Law of Philadelphia; Belovshy involved essentially the same issues as in Doman and we held that Doman was controlling. In McSorley v. Fitzgerald, 359 Pa. 264, 59 A. 2d 142 (1948), we upheld the constitutionality of the Parking Authority Law under the provisions of which authorities were set up to acquire areas for parking lots. The taxpayer in MeSorley made a similar argument to that made in the instant cases: the authority, although a public body, was engaging in what is essentially a private activity. This Court responded, \\\"It is no constitutional objection to the statute, nor does it derogate from the public character of its objective, that the Authority will to some extent conduct what may heretofore have been regarded as a private enterprise; to hold otherwise would mean that the State would be powerless, within constitutional limitations, to act in order to preserve the health and safety of its people even though such action were imperative and vital for the purpose.\\\": McSorley, supra, at 270.\\nWe conclude, therefore, the Agreements entered into by the Authorities pursuant to the Act are for a public purpose, a conclusion which effectively answers several of \\u2022 the taxpayers' objections. First, the taxpayers maintain that public money is being used for private purposes; while we agree that the money raised through the bonds is public money, the expenditure of this money under this program is for a public, not a private, purpose. Second, the taxpayers maintain that the Act violates the State Constitution in that the plants are tax-exempt as long as the Authorities own the properties, but that in reality it is the private manufacturers who are receiving the benefit of the tax exemption. The taxpayers rely on a line of eases holding that public bodies may not use their property for private purposes and still receive a tax exemption. See: Moon Township Appeal, 387 Pa. 144, 127 A. 2d 361 (1956); West View Borough Municipal Authority Appeal, 381 Pa. 416, 113 A. 2d 307 (1955); Pittsburgh v. Allegheny County, 351 Pa. 345, 41 A. 2d 639 (1945); Pittsburgh School District v. Allegheny County, 347 Pa. 101, 31 A. 2d 707 (1943); Kittanning Borough v. Armstrong County, 347 Pa. 108, 31 A. 2d 710 (1943). The Authorities counter with a series of cases holding that, if the public body is acting for a public purpose, it does not lose the tax exemption even though the activity in question seems to be nongovernmental in nature. See: Pittsburgh Public Parking Authority v. Board of Property Assessment, Appeals and Review, 377 Pa. 274, 105 A. 2d 165 (1954); Commonwealth, Department of Public Assistance v. Schuylkill County, 361 Pa. 126, 62 A. 2d 922 (1949); Commonwealth v. Dauphin County, 354 Pa. 556, 47 A. 2d 807 (1946); Commonwealth, State Employes' Retirement System v. Dauphin County, 335 Pa. 177, 6 A. 2d 870 (1939). The distinction between the lines of authorities lies in whether a definite public purpose exists in the proposed project. Since we conclude that the instant Authorities are acting for a public purpose in erecting the plants, the line of cases cited by the Authorities must control. In Pittsburgh Public Parking Authority v. Board of Property Assessment, Appeals and Review, 377 Pa. 274, 105 A. 2d 165 (1954), the parking authority leased some of its garages to private parties and the taxing authorities claimed that the garages were no longer tax-exempt. We responded: \\\"Without some element of private profit to someone the enterprise could not be conducted at all; the determinative question is whether these public properties are being used for a public purpose.\\\" Pittsburgh, supra, at 280. In the instant cases, even though the properties are tax-exempt while still owned by the Authorities, the two manufacturing companies are required to pay an amount equal to the taxes which would have to be paid if the properties were not tax-exempt.\\nThe taxpayers place great reliance on our decision in Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A. 2d 138 (1966). In Price the parking authority agreed with two private concerns to build combination parking garages and high rise apartments and, under the project as planned, when the buildings would have been completed, very little additional parking space would have been made available to the public. \\\"This net increment to the public, in light of the magnitude of the garage project and the substantial benefits accruing to public therefrom, is not sufficient to warrant the public involvement here proposed.\\\" Price, supra, at 338. Not only will there be a substan tial benefit to the public in the instant projects but Price is inapposite in another respect. We held that the agreements in Price violated the enabling act and not the State Constitution whereas, in the instant cases, we are, of course, dealing with a different enabling act and we find no conflict between the enabling act and the two projects.\\nII\\nThe taxpayers next allege that the Act and Agreements violate Sections 4 and 8 of Article IX of the State Constitution in that the Authorities are empowered to create debts in excess of the limits imposed on the Commonwealth by Section 4 and on municipalities by Section 8. The taxpayers urge that the word \\\"debt\\\" should not be given a limited, technical meaning intended to emasculate the intent of these two Sections. \\\"Debt and indebtedness in the section in question are not used in any technical way, but in their broad general meaning of all contractual obligation to pay in the future for considerations received in the present.\\\": Keller v. Scranton, 200 Pa. 130, 135, 49 Atl. 781 (1901). Relying on this definition, the taxpayers argue that the debt of the Authorities is in reality the debt of the Commonwealth and of the municipalities and thus in contravention of Sections 4 and 8.\\nThe Act specifically states that any money borrowed by an authority shall not be the debt of either the Commonwealth or any political subdivision: \\\"6(c) An authority created hereunder shall have no power at any time or in any manner to pledge the general credit or taxing power of the Commonwealth of Pennsylvania or any political subdivision, and the obligations of the authority shall be limited as provided in section 7(a) hereof. The bonds of the authority shall on the face thereof clearly set forth the foregoing limitation.\\\"\\nThe instant revenue bonds issued by the two authorities were issued pursuant to the Amendment, which states: \\\"The board of commissioners of any county are empowered to issue non-debt revenue bonds of the county pursuant to provisions of the act of June 25, 1941 (P. L. 159), known as the 'Municipal Borrowing Law,' and its amendments, to provide sufficient moneys for the . . . construction . . . and . . . equipping . of an industrial development project . . . .\\\" Section 621(f) of the Municipal Borrowing Law requires that the bond ordinance state \\\"That the bonds are not general obligations of the municipality and that no property or revenues of the municipality shall be pledged to the payment thereof or the interest and state taxes cove nanted to be paid thereon . . . and that no tax shall in any event be levied for the payment of the interest or principal of, or state taxes on, such bonds.\\\" (Act of June 25, 1941, P. L. 159, Art. VI, \\u00a7621 (f), 53 P.S. \\u00a76621(f).) In short, the statutes controlling the bonds issued by the Authorities and the bonds themselves explicitly and unequivocally state that the bonds are not debts of the Commonwealth nor of any political subdivision of the Commonwealth. Such revenue bonds are quite common in this Commonwealth and purchasers of such bonds are well aware that they cannot look to the Commonwealth or any political subdivision for security.\\nOur case law supports this position. On numerous occasions we have held that revenue bonds are not debts of the Commonwealth or of any political subdivision : Conrad v. Pittsburgh, 421 Pa. 492, 218 A. 2d 906 (1966); Beam v. Ephrata Borough, 395 Pa. 348, 149 A. 2d 431 (1959); Detweiler v. Hatfield Borough School District, 376 Pa. 555, 104 A. 2d 110 (1954); Greenhalgh v. Woodworth, 361 Pa. 543, 64 A. 2d 659 (1949); Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A. 2d 277 (1947); Williams v. Samuel, 332 Pa. 265, 2 A. 2d 834 (1938); Gemmill v. Calder, 332 Pa. 281, 3 A. 2d 7 (1938); Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 Atl. 834 (1938); Kelley v. Earle, 325 Pa. 337, 190 Atl. 140 (1937); Tranter v. Allegheny County Authority, 316 Pa. 65, 173 Atl. 289 (1934).\\nThe Authorities raise two other points for our consideration. First, the Authorities argue that Section 8 does not apply because the Authorities are creatures of the State and cannot be considered alter egos of the municipalities: however, since we have concluded that no debt was created in the sense that word is used in Sections 4 and 8, this contention need not be con sidered. Second, the Authorities urge that we consider Section 10 of Article IX of Proposal 6 of the recently enacted Amendments to the State Constitution which provides that the municipal debt limitation shall not include indebtedness for any project to the extent that it is self-liquidating or self-supporting. Since we believe this to be the present law, we need not consider the effect of this Amendment.\\nThe taxpayers maintain that an illegal debt is created because the Act permits the Authorities \\\"to pledge, mortgage, hypothecate or otherwise encumber all or any part of the property, real or personal, including but not limited to the revenues or receipts of the authority as security for all or any of the obligations of the authority.\\\" [\\u00a76(b) (13) ]. The taxpayers maintain that the right to mortgage the Authorities' property makes the bonds debts of the municipalities, relying on Lesser v. Warren Borough, 237 Pa. 501, 85 Atl. 839 (1912). In Lesser we held that the constitutional debt limit was violated when the borough floated bonds to buy the water works and used the property of the water works as security for the bonds.\\nThe Authorities counter with the arguments that Sections 4 and 8 do not apply to the Authorities because the Authorities are public corporations and not either departments of the Commonwealth or alter egos of the municipalities and, further, that while the Act permits the Authorities to mortgage the property, both Agreements in the instant cases specifically state that the Authorities shall not have this right. In view of this factual posture of the instant litigation we need not consider this contention of the taxpayers because it is clearly irrelevant.\\nIll\\nThe taxpayers argue that the Act and the Agreements violate Sections 6 and 7 of Article IX which prohibit the Commonwealth and any municipality from pledging or loaning their credit to \\\"any individual, company, corporation or association . . . .\\\" In effect, the taxpayers maintain that both the Commonwealth and the two municipalities are lending their credit to the manufacturing companies who are parties to the Agreements.\\nThe Act specifically states that the Authorities shall not have the power to pledge the credit of the Commonwealth or any political subdivision of the Commonwealth. However, we need not rest on the language of the Act alone for there is a fatal flaw in the taxpayers' chain of logic. The money raised by the bonds will go to the Authorities and not to the industrial corporations; the Authorities will own the fac tories; the corporations will lease the plants from the Authorities. Therefore, if credit is being lent to anyone, it is being lent to the Authorities. On several occasions we have held that authorities similar to the Industrial Development Authorities involved in this case were not individuals, companies, corporations or associations within the meaning of Sections 6 and 7. See: Bernstein v. Pittsburgh, 366 Pa. 200, 210, 77 A. 2d 452 (1951); McSorley v. Fitzgerald, 359 Pa. 264, 271, 59 A. 2d 142 (1948); Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 345, 54 A. 2d 277 (1947); Williams v. Samuel, 332 Pa. 265, 275, 2 A. 2d 834 (1938); Tranter v. Allegheny County Authority, 316 Pa. 65, 81, 173 Atl. 289 (1934).\\nThe Authorities have also directed our attention to Section 9, Article IX, Proposition 6 of the newly-adopted Constitutional Amendments. The second sentence of that Section states: \\\"The General Assembly may provide standards by which municipalities or school districts may give financial assistance or lease property to public service, industrial or commercial enterprises if it shall find that such assistance or leasing is necessary to the health, safety or welfare of the Commonwealth or any municipality or school district.\\\" The taxpayers do not maintain that this Section does not control the present situation but they argue instead that this Section should only be applied prospectively. However, since we have already determined that the Act does not violate old Sections 6 and 7 of the Constitution, we need not consider the impact of the newly adopted Section 9, Article IX, Proposition 6 of the new Constitutional Amendments. We note in passing, however, that we should be most reluctant to declare this Act unconstitutional and then state that the legislature coTild re-enact the same law after January 1, 1969 when it would become constitutional.\\nIV\\nThe taxpayers allege that the Act, bond ordinances and Agreements all violate Section 81 of Article III of the State Constitution in three particulars. Section 31 states: \\\"The General Assembly shall not delegate to any special commission, private' corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.\\\"\\nThe taxpayers argue initially that the Authorities are special commissions within the meaning of Section 31 because the primary beneficiaries of the Act are private corporations and not the public. First, we have already rejected this latter argument in the first part of this opinion. Second, we have held on several occasions that authorities similar to these Industrial Development Authorities are not special commissions in the sense that term is used in Section 31. See: Evans v. West Norriton Township Municipal Authority, 370 Pa. 150, 154, 87 A. 2d 474 (1952); Williams v. Samuel, 332 Pa. 265, 274, 2 A. 2d 834 (1938); Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 230, 200 Atl. 834 (1938); Poor District Case (No. 1), 329 Pa. 390, 404, 197 Atl. 334 (1938); Tranter v. Allegheny County Authority, 316 Pa. 65, 78, 173 Atl. 289 (1934).\\nThe taxpayers next contend that the provisions whereby the Authorities are empowered to lease the property to private industrial concerns violates Section 31 since the industrial concerns are \\\"private corporations\\\" within the meaning of the Section. Section 31 does not prohibit the leasing of public property to private individuals. While the taxpayers have cited no authorities holding that public property cannot be leased to private individuals, several cases have come before us in which we have, impliedly, approved the leasing of public property to private concerns. See: e.g., Pittsburgh Public Parking Authority v. Board of Property Assessment, Appeals and Review, 377 Pa. 274, 105 A. 2d 165 (1954); Clark v. Public Parking Authority of Pittsburgh, 372 Pa. 481, 94 A. 2d 576 (1953).\\nFinally, the taxpayers object to provisions in the bond ordinances appointing local banks as depositories for the funds of the Authorities. All moneys received from the sale of the bonds will be handed over to the Authorities which will deposit the funds in an account held with the depositories and all rentals will go into separate accounts with the depositories. The Authorities will maintain various accounts such as a Principal and Interest Account, Redemption Account and Special Redemption Account. The taxpayers allege that the depositories are \\\"private corporations\\\" within the meaning of Section 31, relying on Beam v. Ephrata Borough, 395 Pa. 348, 149 A. 2d 431 (1959) and Lighton v. Abington Township, 336 Pa. 345, 9 A. 2d 609 (1939). In both Beam and Lighton the depository had definite duties in addition to holding the money whereas in the instant cases, the depositories are banks, nothing more, and they do nothing except hold the Authorities' money. While we have held that the delegation of details of administration is not a violation of the State Constitution (Evans v. West Norriton Municipal Authority, 370 Pa. 150, 160, 87 A. 2d 474 (1952)) it is difficult to conclude in this case that even administrative details have been delegated to the depositories. We conclude that there is no violation of Section 31.\\nV\\nThe taxpayers allege that the provisions in the Agreements permitting the two companies to purchase the properties for $1000 after all debts have been paid violate Sections 1 and 9 of Article I, Section 31 of Article III and Section 7 of Article IX of the State Constitution. In effect, they argue that a sale for such a small sum amounts to a wasting of public assets and, when the bonds have been retired, the property still has great value and should be sold at a competitive price. Moreover, they argue that the public purpose still exists and property used for a public purpose should not be conveyed to private companies.\\nUnder no circumstances can the two companies purchase the properties without assuring that the bonds will be retired. When the Authorities sell the properties, they are not losing money for, through their rent payments, the companies have paid for the projects. The $1000 is a windfall of sorts. Furthermore, if the Authorities are going to charge competitive prices for the plants, private corporations will be less interested in industrial development projects because the cost in the long run will be no cheaper than if they constructed the plants themselves. What is more, just because a plant is sold to a private corporation does not mean that the public benefit ceases for, as long as the plant is used, citizens of the Commonwealth will be employed. Finally, our case law supports this position. In the redevelopment cases, we have approved the sale-of homes acquired by the redevelopment authorities to private individuals. See: Starkey v. Philadelphia, 397 Pa. 512, 156 A. 2d 101 (1959); Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A. 2d 277 (1947); Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 Atl. 834 (1938).\\nThe taxpayers have raised s\\u00e9veral other objections, to the Act many of which have been raised in earlier cases attacking the constitutionality of similar acts and have been rejected. We have considered all of, the taxpayers' remaining objections and find them without merit.\\nIn Basehore (Appeal No. 91 Mise. Dkt. 16) injunction is denied.\\nIn Walker (Appeal No. 167 March Term, 1968) decree affirmed.\\nEach party to pay own costs.\\nMr. Justice Cohen dissents.\\nMr. Justice Musmanng did not participate in the decision of this case.\\nWe will set forth the terms of the agreement between Hampden Industrial Development Authority (Hampden Authority) and Ralston Purina Company (Ralston). Differences between this Agreement and the Agreement between Butler County Industrial Development Authority (Butler Authority) and Armco Steel Corporation (Armco) will be noted in the footnotes.\\nThe cost of the Armco Steel project will be $26 million.\\nThe land on which the Armco Steel plant will be located has not been purchased yet.\\nThe Armeo Steel plant will employ 400 persons.\\nA new Subsection O dealing specifically with industrial development bonds has recently been added to Section 103. See 1 O.C.H. 1968 Stand. Fed. Tax Rep. \\u00a7103, \\u00b6942A.\\nThe latest count indicates that 26 state Supreme Courts have validated industrial development programs and 10 have invalidated such programs. For a complete list as of 1966, see City of Gaylord v. Beckett, 378 Mich. 273, 144 N.W. 2d 460, 469 n. 9 (1966).\\nIndustrial Development Authority Daw, Act of August 23, 1967, \\u00a72, P. D. 1609, 73 P.S. \\u00a7371(2). Some commentators have argued that industrial development bonds have not been nearly as successful as hoped. See: Note, The Proliferation of Industrial Revenue Bond Financing: Ban the Bond?, 41 Temple D. Rev. 289 (1968) ; Comment, Financing Industrial Development with Municipal Revenue Bonds, 1967 Ill. L. Forum 331; 7 C.C.H. 1968 Stand. Fed. Tax Rep. \\u00b66128A. See also: Abbey, Municipal industrial Development Bonds, 19 Vand. D. Rev. 25 (1965) ; Pinsky, State Constitutional Dimitations on Public Industrial Financing: An Historical and Economic Approach, 111 \\u00dc. Pa. L. Rev. 265 (1963).\\nSee: Note, The Proliferation of Industrial Revenue Rond Financing: Ban the Bond?, 41 Temple L. Rev. 289, 309, n. 86 (1968).\\n\\\"No debt shall be created by or on behalf of the State, except to supply casual deficiencies of revenue, repel invasions, suppress insurrection, defend the State in war, or to pay existing debt; and the debt created to supply deficiencies in revenue shall never exceed, in the aggregate at any one time, one million dollars . . . .\\\": Section 4, Article IX.\\n\\\"The debt of any county, city, borough, township, school district, or other municipality or incorporated district, except as provided herein, and in section fifteen of this article, shall never exceed fifteen (15) per centum upon the assessed value of the taxable property therein, nor shall any such county, municipality or district incur any debt, or increase its indebtedness to an amount exceeding five (5) per centum upon such assessed valuation of property, without the consent of the electors thereof at a public election in such manner as shall be provided by law. . . Section 8, Article IX.\\n\\\"An authority shall have the power to issue bonds for any of its corporate purposes, provided, however, the principal, interest and other charges thereon are payable solely and exclusively (i) from the income, revenues and property of the project financed, in whole or in part, with the proceeds of such bonds; (ii) from the income and revenues of certain designated projects whether or not they were financed, in whole or in part, with the proceeds of such bonds; or (iii) from its revenues generally.\\\"\\n\\\". . . The debt limit to be prescribed in every such case shall exclude all indebtedness (1) for any project to the extent that it is self-liquidating or self-supporting or which has heretofore been defined as self-liquidating or self-supporting. . . .\\\"\\n\\\"This bond is not a general obligation of the County and no tax shall in any event be levied for the payment of the principal of, the interest on, the premium (if any), or state taxes (if any) \\u00f3n this bond, such principal, interest, premium and state taxes being payable solely from the aforesaid rentals derived by the County from the Project.\\\": Article III, Acquisition Agreement, between Butler Authority and Armeo. The other Agreement contains a similar provision.\\n\\\"The credit of the Commonwealth shall not be pledged or loaned to any individual, company, corporation or association, nor shall the Commonwealth become a joint owner or stockholder in any company, association or corporation.\\\" Section 6 of Article IX.\\n\\\"The General Assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association, institution or individual.\\\" Section 7 of Article IX.\\nindustrial Development Authority Law, Act of August 23, 1967, \\u00a76(c), P. L. 251, 73 P.S. \\u00a7371(6) (c).\\nBond Ordinance, Article VII, Sections 7.1, 7.3; Article VIII, Sections 8.1-8.4, Agreement between Butler Authority and Armco. The Bond Ordinance in the Agreement between Hampden Authority and Ralston contains similar provisions.\\n\\\"All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.\\\": Article I, Section 1.\\n\\\"In all criminal prosecutions the accused [shall not] . be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.\\\": Article I, Section 0.\"}"