Appeal, No. 153, Jan. T., 1950, from order of Court of Common Pleas No. 1 of Philadelphia County, in the matter of Girard Trust Company, Trustee Under Mortgage Indenture, etc. Order reversed.
Ralph B. Umsted, Deputy Attorney General, with him H. Rook Goshorn and T. McKeen Chidsey, Attorney General, for appellant.
Claude C. Smith, with him Harold B. Steinberg and Duane, Morris & Heckscher, for appellee.
Before Drew, C.j., Stearne, Jones and Ladner, JJ.
OPINION BY MR. JUSTICE LADNER,
This is an appeal by the Commonwealth of Pennsylvania from the final order of the court below dismissing the petition of the Attorney General praying for the payment of certain unclaimed moneys into the State treasury without escheat. The order reads as follows: "... it is hereby Ordered and Decreed: 'That the said Petition of the Attorney General of the Commonwealth
of Pennsylvania praying for the payment of certain unclaimed moneys into the State Treasury, without escheat, is dismissed on the merits. (s) HARRY S. McDEVITT, J.'" No opinion was filed.
It is to be noted that Rule 43 requires the court below on receipt of notice of the appeal, to file of record at least "a brief statement, in the form of an opinion of the reasons for the ruling, order, judgment, or decree" appealed from. Explanation appears in the brief that the learned judge who signed the order die after the appeal and therefore no such opinion was written. In such circumstances counsel should be notified the surviving judges of this court, if any, or the deceased judge's successor, of the appeal and requested that Rule 43, which we regard mandatory, be complied with.
From the petition filed by the attorney general, the answer, and the record before us, we state the following material facts: "The Girard Trust Company was trustee under a mortgage indenture upon premises Northeast corner 18th and Locust Streets, Philadelphia, known as the Penn Athletic Club building. It was the usual trust mortgage to secure a bond issue. In 1939, pursuant to proceedings in bankruptcy under section 77B, the United States District Court for the Eastern District of Pennsylvania approved a plan by which, inter alia, the principal amount of the mortgage and outstanding bonds, viz., $3,308,850.00 was reduced to $2,580,000.00. The plan of reorganization required the outstanding bonds to be delivered to the Girard Trust Company, the indenture trustee, for modification and registration. In 1940, pursuant to a petition filed by the debtor (Penn Athletic Club) there was entered what was called a "bar order" in connection with the reorganization plan. This "bar order" in substance provided that all holders or owners of the first mortgage
bonds issued pursuant to the original indenture must transmit or present the same to the Girard Trust Company, trustee, for registration and modification within five years of the date of the entry of the final decree closing the estate in order to participate in distribution under the plan and, otherwise, bonds not so presented to be barred. Notice was directed to be mailed to all known holders of the bonds and to be advertised. Leave was granted any holder or owner to move to vacate or modify the order by February 18, 1940, ...