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COMMONWEALTH BY TRUSCOTT v. BINENSTOCK (01/08/51)

January 8, 1951

COMMONWEALTH BY TRUSCOTT
v.
BINENSTOCK, APPELLANT



Appeal, No. 210, Jan. T., 1950, from judgment of Court of Common Pleas No. 5 of Philadelphia County, as of June T., 1943, No. 1123, Court of Common Pleas No. 1, in case of Commonwealth of Pennsylvania by Frank F. Truscott et al., Escheators v. Joseph Binenstock. Judgment affirmed; reargument refused March 20, 1951.

COUNSEL

Robert T. McCracken, with him Marchshall A. Coyne, and Richard E. McDevitt, for appellant.

Charles E. Kenworthey, with him William N. Trinkle, for appellee.

Before Drew, C.j., Stearne, Jones, Bell and Chidsey, JJ.

Author: Jones

[ 366 Pa. Page 520]

OPINION BY MR. JUSTICE JONES

This appeal by the defendant is from a judgment awarding certain moneys in his hands to the Commonwealth of Pennsylvania by escheat. The money has been involved in several appeals to this court and much of the appellant's present argument has been decided adversely to him. From the Tucker v. Binenstock litigation (310 Pa. 254, 165 A. 247 -- a proceeding in equity for an accounting), "it was clear [as we later expressly

[ 366 Pa. Page 521]

    recognized in Commonwealth, by Truscott et al. v. Binenstock, 358 Pa. 644, 646, 57 A.2d 884] that Binenstock had received money to which he was not entitled as owner. We decided that the money had been unlawfully acquired; neither Trucker nor Binenstock was the lawful owner."

Subsequently to the decision in the Tucker case, supra, the Commonwealth laid claim to the money in question by escheat under the Act of May 2, 1889, P.L. 66, Sec. 3, as amended by the Act of May 11, 1911, P.L. 281, 27 PS § 333, the money being at that time (in the eyes of the law) in the hands of Binenstock. For the purpose of pursuing the Commonwealth's claim, the present escheators were duly appointed on November 30, 1939. The first petition filed by them in the escheat proceeding which they instituted came before this court in Commonwealth et al. v. Binenstock, 348 Pa. 610, 614, 36 A.2d 333, on their appeal from an order of the court below sustaining the defendant's preliminary objections to the petition. Upon considering the question thus presented, "We all [agreed] that the petition states a prima facie case within Section 3 of the Act of May 2, 1889, P.L. 66, as amended, and requires an answer." Accordingly, we reversed and remitted the record for further proceedings.

Thereafter, an answer was filed and the case came on for trial by jury. The trial judge entered judgment for the defendant on the ground that the petitioners had failed to prove their allegations. Again, this court was appealed to and again we reversed the judgment and awarded a new trial: see Commonwealth, by Truscott et al., v. Binenstock, supra. The ratio decidendi in that case was that the trial judge had erroneously sustained objections to the petitioners' reading into evidence certain parts of the petition which were insufficiently denied and certain statements made by the

[ 366 Pa. Page 522]

    defendant in other litigations. An amended answer was then filed and, once more, the case went to trial, this time, before SMITH, J., of the court below, a jury being waived. Following a comprehensive adjudication containing thirty-one findings of fact, a well-reasoned discussion and twelve conclusions of law, all affirmed by the court en banc, a judgment was entered awarding the money to the Commonwealth by escheat. The court en banc held that the "averments in petition of the escheators are amply supported by the evidence thus incorporated in this action. In like manner, the same evidence, consisting of the testimony and pleadings under oath, so effectively ...


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