Appeal, No, 143, March T., 1950, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1946, No. 3277, in case of Ruth Shechter v. Oscar Shechter et al. Decree reversed.
Donald B. Hirsch, for appellant.
Elder W. Marshall, with him James R. Orr, Reed, Smith, Shaw & McClay and A. S. Fingold, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
Ruth Shechter filed a bill in equity against her husband, Oscar Shechter, his sister, Sarah Shechter and John Doe, seeking to collect arrearages due for support and reduced to a judgment of $1,983.00 with interest as of September 7, 1945, and also for accumulated arrearages of a support order for the period from September 7, 1945, to August 29, 1946, making the total due as of August 29, 1946, $3,296.00.
The bill was filed September 19, 1946, and its purposes was to reach the assets of a business conducted under the name of Pittsburgh Paper Stock Company which it was charged was established by Shechter and was still owned by him in spite of a colorable attempt to transfer the same to his sister Sarah. Shechter, although claiming to be now a nonresident, and his sister, both appeared and filed answers. The cause proceeded to a hearing and at the conclusion of plaintiff's testimony counsel for the defendants moved the court to dismiss the bill for failure of plaintiff to establish a cause of action, which motion the chancellor granted. Later, after argument of exceptions filed the court en banc upheld the dismissal in a brief general opinion, without any discussion or analysis of the testimony, on the ground that the plaintiff failed to prove Oscar Shechter's ownership of the assets. From that final decree we have this appeal.
The action of the court below was pursuant to Equity Rule 66 under which a dismissal of the bill without hearing defendants' evidence is stated to have the effect of a non-suit at law. Like a non-suit at law, therefore, such a decree should only be entered in a clear case where the plaintiff cannot recover under any view
of the evidence with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff: Gordon v. Gordon, 277 Pa. 53, 120 A. 709 (1923); Stinson v. Smith, 329 Pa. 177, 181, 196 A. 843 (1938). As a general rule unless there are no conflicting inferences to be drawn it is far better to hear the defense so that the appellate court may have the benefit of findings of fact and conclusions of law by the chancellor confirmed by the court en banc.
What the plaintiff here sought to show was a fraudulent transfer by Oscar Shechter of his assets with the design to "hinder, delay and defraud" a creditor. The fact that his wife was that creditor in our opinion is a matter of no consequence. In fact the bitterness engendered by matrimonial differences if anything was more apt to induce a husband to go even farther to defeat his estranged family's claim for support, than in the case of an ordinary creditor. In any event the Statute of 13 Elizabeth Ch. 5, Rob. Dig. 295, 39 P.S. page 262, is undoubtedly applicable here since she is a judgment creditor under the County Court's decree.
Before analyzing the evidence adduced to support the charge it should be remembered that fraud of this nature is never proclaimed from the housetops nor is it done otherwise than surreptitiously with every effort usually made to conceal the truth of what is being done. So fraud can rarely if ever be shown by direct proof. It must necessarily be largely inferred from the surrounding circumstances. As was written by one of the great Chief Justices of this Commonwealth (BLACK) in Kaine v. Weigley, 22 Pa. 179, at p. 183-184 (1853), "It is said that fraud must be proved, and is never to be presumed. This proposition can be admitted only in a qualified and very limited ...