Pennsylvania Company vs. Carr et al.

Board-Wages-Attachment of Act of May 1, 1913-Constitutionality.

The Act of May 1st, 1913, amending the Act of April 10, 1905, which in turn amends the Act of May 8th, 1876, authorizing attachment of wages of persons indebted for boarding is unconstitutional, being in violation of Art. III, Sec. 7 of the Constitution prohibiting the passage of any local or special law changing the method of, inter alia, the collection of debts.

Sitting in Equity. No. 1696 April Term, 1914. C. P. Allegheny County.

Dalzell, Fisher & Hawkins, for plaintiff.

J. B. Hetherington, for defendant.

FINDINGS OF FACT.

BROWN, J., May 12, 1914.-First. The Pennsylvania Company is a railroad corporation; Samuel B. Carr is an alderman and ex officio justice of the peace of the City of Pittsburgh; J. J. Devine is his constable; and Mrs. C. F. Laughlin is plaintiff in a proceeding under the "Boarding-House Attachment Act of May 1, 1913, P. L. 132, wherein Michael McGonigle, an empleyee of the Pennsylvania Company is defendant, and said Company, garnishee. The proceeding was instituted January 31, 1914, and defendant and garnishee were summoned to appear before the alderman February 7, 1914. At the same time a rule was granted upon the garnishee to answer interrogatories-whether or not it owed its employee any moneys or wages. Service was had upon defendant and garnishee; and, February 7, 1914, judgment was entered for plaintiff against defendant in the sum of $15, with costs, $7.94. On February 28, 1914, the garnishee was notified by the alderman that judgment had been entered; that twenty days had elapsed; that defendant had neglected to satisfy the judgment; and that no appeal had been taken from the judgment; and notified to pay the amount of wages "so attached, or so much thereof as will fully satisfy said judgment and all costs attached thereto.".

Second. On March 5, 1914, the garnishee (Pennsylvania Company) filed this bill, accompanied by injunction affidavits-and a preliminary injunction was granted against defendants restraining them from further proceedings in said action instituted before said alderman. An injunction bond was filed; notice of the injunction was served upon the defendants; and at a hearing, March 10, 1914, upon plaintiff's motion, the court continued the injunction until final hearing, March 12, 1914, an appearance was entered in behalf of the alderman and constable. No answer was filed by defendants within thirty days from service of the bill-counsel appearing for the alderman and constable having advised plaintiff's counsel that he would not file an answer. April 13, 1914, a decree pro confesso in default of an answer was entered upon a praecipe filed with the prothonotary. At the same time-on a praecipe filed with the prothonotary— the case was placed upon the equity argument list, for the purpose of bringing the matter before the court, so that a formal decree might be entered.

Third. The case came on for hearing upon the equity argument list and was argued, ex parte plaintiff.

CONCLUSIONS OF LAW.

First. The Act entitled, "An Act to amend an Act entitled, 'An Act relating to boarding-house keepers and authorizing the attachment of wages of persons indebted for boarding,' approved the 8th day of May, 1876, with its amendments (Act April 10, 1905, P. L. 134; Act May 1, 1913, P. L. 132) providing for service of notice of the attachment upon persons, firms, associations and corporations," is unconstitutional, in conflict with Article III, Section 7, of

Pennsylvania Company vs. Carr et al.

the Constitution, forbidding the passage of any local or special law “providing or changing methods for the collection of debts.”

Second. The Act of May 1, 1913, P. L. 132, does not materially modify or change the provisions of the Act of April 10, 1905, P. L. 134.

Third. Plaintiff is entitled to a final decree restraining defendants, or any person acting for them, from levying on or in any manner attaching or seizing property, goods or chattels of the plaintiff company; and from further proceeding against it or its property in any boarding-house attachment or proceeding instituted under said acts of assembly.

DISCUSSION.

The legislation upon which plaintiff in her proceeding before the alderman attached for unpaid board defendant's wages in the hands of the Pennsylvania Company, violates Article III, Section 7, of the Constitution:

"The general assembly shall not pass any local or special law regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding or inquiry before courts, aldermen, justices of the peace or providing or changing methods for the collection of debts or the enforcing of judgments.

It is plainly in violation of the constitutional provision because-excluding the right of all other classes of creditors-it gives to "all keepers of hotels, inns, boarding-houses and lodging-houses" the special privilege, in advance of trial and judgment, of attaching wages of boarding and lodging debtors: Michaels et al. vs. Cunningham, 20 Dist. Rep., 170; Railway Co. vs. McMillan, 20 Dist. Rep., 327; Yosavich vs. Yereshun, 59 P. L. J., 78; Vulcanite Portland Cement Co. vs. Allison, 220 Pa., 382; Vulcanite Paving Co. vs. Philadelphia R. T. Co., 220 Pa., 603; Taylor Lumber Co. vs. Carnegie Institute, 225 Pa., 493.

DECREE.

And now, May 12, 1914, this matter came on for hearing upon the equity argument list-after entry of a decree pro confesso-and was argued by counsel for plaintiff; and upon consideration thereof it is ordered, adjudged and decreed: that Samuel B. Carr, J. J. Devine and Mrs. C. F. Laughlin, or any persons acting for them, refrain from levying upon or attaching or seizing property, goods or chattels of the Pennsylvania Company, and from further proceeding against saig company or its property in any attachment proceedings instituted under the Act of May 8, 1876, P. L. 139, and amendments-Act April 10, 1905, P. L. 134, and Act May 1, 1913, P. L. 132.

Kaminsky vs. Goldstein et al.

Landlord and tenant-Expiration of lease-Ouster-Expense of Recov ery of damages.

Where a landlord claims the termination of a lease and dispossesses a tenant under the Act of April 14th, 1863, he cannot subsequently claim rent for the time after the expiration of the lease during which he was engaged in ousting the tenant and he cannot in satisfaction of such claim distrain upon the goods of the tenant removed from the premises. The landlord's remedy is judgment for damages sustained by being compelled to eject the tenant.

Motion for judgment ex parte defendant. No. 1362 July Term, 1913. C. P. Allegheny County.

George H. Quaill, for plaintiff.

Carl C. Baldridge, for defendants.

FORD, J., March 8, 1915.-This proceeding is in replevin for goods distrained on a landlord's warrant. The verdict was for the defendant and the plaintiff moves the court for judgment non obstante veredicto.

The material facts are not disputed and are substantially as follows: By lease dated September 14, 1909, Amelia Sinnhuber let to M. Kaminsky a part of premises No. 568 Hawkins Avenue in the Borough of North Braddock for the term of two years from the first day of October at the monthly rental of $35.00, payable in advance. The lease provided that should the tenant continue to occupy the premises after the expiration of the term by consent of the lessor the lease should continue as applicable to such further term as the parties may occupy the relation of landlord and tenant. The plaintiff took possession and continued in occupancy of the leased premises until in April, 1913.

On December 31, 1912, the defendant, Mrs. Sinnhuber, by notice duly served upon the plaintiff notified him to surrender and deliver possession on or before April 1 following. On April 1, 1913, the plaintiff gave the defendant his check to her order for the sum of $35 in payment of rent for the month of April. The defendant, Mrs. Sinnhuber, accepted the check but later during the same day returned the check and refused to accept either a check or cash for the April rent unless plaintiff would enter into a new lease for a period commencing April 1. This, plaintiff refused to do.

Thereafter, on April 10, 1913, the defendant, Mrs. Sinnhuber, entered proceedings for possession under the Landlord and Tenant Act of April 14, 1863, before a Justice of the Peace and after hearing obtained a judgment of ouster. The judgment was entered and the writ of possession was issued on April 24th. Upon the same day, after the issuing but before service of the writ, plaintiff removed from the premises and surrendered possession.

On May 23, 1913, the defendant issued a landlord's warrant for the sum of $35 alleged to be rent in arrear for the month of April, 1913. In execution of the warrant the defendant, J. S. Goldstein, a constable, levied upon the goods and chattels claimed to have been removed by the plaintiff from the leased premises.

The lease contained the following covenant: That should the lessee at any time remove any of the goods and chattels from the premises without having paid the rent due or becoming due the lessor shall have the right to stop the lessee from removing the same by landlord's warrant "or in case of their having been removed to follow said goods, enter, levy and distrain for the rent so in arrear as if the goods had not been removed."

The attempt to remove or the removal of goods by a tenant during the continuance of the lease need not necessarily be fraudulent to authorize a

Kaminsky vs. Goldstein et al.

distress and it may well be that under certain circumstances a distress may be made notwithstanding the termination of the term. The Act of March 17, 1772, 1 Sm. L. 375, relied upon by the defendant provides that it shall be lawful for any person having rent in arrear to distrain for such arrears after the termination of the lease in the same manner they might have done if such lease had not been ended or determined, provided that such distress shall be made during the continuance of such lessor's title and interest.

In the case at bar, however, the contractual relations had ended by the act of the lessor. She gave notice to quit, refused to accept the rent for the month of April when tendered, brought the proceedings for possession and prosecuted the same to judgment. Her position was that the lease had expired, the relation of landlord and tenant had ended, the right of the plaintiff to occupy the property as a tenant had ceased and she was entitled to possession. The occupancy of the plaintiff was not with her consent nor under the terms of the lease but was in denial of her right. If defendant sustained loss by reason of plaintiff's refusal to surrender possession on April 1, the statute of 1863 under which she was proceeding gave her a full and complete remedy. The act provides that the "justice shall give judgment in favor of the lessor and against the lessee or tenant for such damages as in his opinion the said lessor may have sustained."

A judgment for rent without satisfaction will not take away a landlord's right to distress. Here the defendant's claim was not for rent in arrearshe could not at once deny the tenancy and yet claim rent under the terms of the lease which she said had expired prior to April 1. Her demand was for damages for the wrongful withholding of the property. This demand might have been determined by the justice, but she has no right after dispossessing the tenant to follow and levy upon goods for rent for the month during which plaintiff occupied the property in violation of the rights of the defendant.

We are of opinion that the motion should be granted.

Now, March 8, 1915, after hearing and consideration, it is ordered that the motion for judgment ex parte plaintiff be granted and that judgment be entered for the plaintiff notwithstanding the verdict upon payment of the verdict fee.

Blackman vs. Blackman.

Divorce-Indignities to person

-Sufficiency of Evidence.

Testimony in a divorce case on the ground of indignities to the person showed that both parties were sometimes irritable and that there were quarrels with some bad language and a few blows, but for the most part the couple were, generally speaking, happy together. Held that the testimony did not show sufficient grounds for divorce.

Libel in divorce. No. 772 January Term, 1914. C. P. Allegheny County.

R. P. Tannehill, for libellant.

R. R. Elder, for respondent.

MACFARLANE, J., April 1, 1915.-The charge is cruel and barbarous treatment and indignities. The parties were married in June, 1904, and lived part of the time in the West and part of the time in Chicago and came to Pittsburgh in November, 1910. The affidavit was made to the libel on October 31, 1913. The libel was filed November 1, 1913. On October 26th the libellant locked the door of their house and told her husband that she would not let him in and their relations were not afterwards resumed.

Most of the libellant's testimony before the master on the first hearing was very general, charging that her husband called her vulgar and profane names, threatened her life, kept a revolver in the house and she was afraid of him and that sometimes he did not give her the amount agreed upon for household expenses and invested some of her money with his. In November, 1912, the respondent's mother was visiting them and the libellant says that this was "the cause of all our troubles." Libellant made a remark about her in the presence of her husband and his mother and it is admitted that he struck her, although he does not admit that the blow was as severe as was claimed. There was great provocation, but this was not the cause of the breach between them for they were soon reconciled. About the middle of September, 1913, there was some coldness and on October 5th, she moved her husband's clothing and belongings into another bed room. About the 22nd she had determined to separate from him. October 26th she locked the door to the house and denied him admittance.

On the evening of October 30, 1913, acting under the advice of his attorney, after demanding admittance, he broke in the door and his wife with her sister left the building. Later she was brought back through the intercession of mutual friends and in their presence the husband accused her of taking papers from the safe of their employer and used terms that were objectionable but not profane nor threatening. All this was after she had shut him out of the house and not only was there some justification for his anger, but these are not the indignities which can be claimed to be the cause of her withdrawal.

Except the admission of the blow there was no corroboration of her accusations. Neighbors in the apartment house could hear through the thin walls and intimate friends not only failed to corroborate but their testimony is in favor of the respondent. It is plain that both parties were sometimes irritable and there were quarrels, but there was not sufficient evidence of a course of indignities causing the rupture. Her letters also corroborate his contention that generally speaking they were happy together. After argu

The master recommended that the libel be dismissed. ment an order was made by the judges then sitting referring the case again to the master "for re-consideration-for the purpose (a) of ascertaining more fully, with more definiteness and certainty-if possible-under what circumstances the threats and conduct alleged by libellant against