Appeal, No. 315, Jan. T., 1954, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1953, No. 5210, in case of Milton E. Selig v. Philadelphia Title Insurance Company. Judgment affirmed; reargument refused February 3, 1955.
Samuel A. Goldberg, with him Wolf, Block, Schorr & Solis-Cohen, for appellant.
Daniel Marcu, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This action in assumpsit was brought by the plaintiff, Milton E. Selig, an attorney, to recover $11,855.27
with interest from the defendant, Philadelphia Title Insurance Company, for the alleged conversion of certain bonds which plaintiff pledged to the defendant. After filing an answer to the complaint containing new matter and plaintiff's reply thereto, defendant moved for judgment on the pleadings. The court being of the opinion that no liability existed, entered judgment for the defendant. This appeal by the plaintiff followed.
The litigation arose out of the following factual situation as disclosed by the pleadings. By a sheriff's deed, dated January 20, 1947, Penn Bond and Mortgage Co., hereinafter referred to as Penn, acting through its straw party, Noah Parker, became the owner of premises 1231-35 Race Street in Philadelphia, Pennsylvania. Subsequently by deed, dated November 19, 1948, Noah Parker conveyed the property to Joseph S. Finkel, another straw party for Penn. Prior to this last conveyance plaintiff, acting on behalf of Penn, applied to the defendant to insure the title of the conveyance and to insure a mortgage on the premises in the amount of $60,000 which was to be created directly in favor of Penn. On March 22, 1948 defendant sent a copy of its settlement certificate to the plaintiff. The certificate listed as unpaid and delinquent certain city and school tax obligations amounting to approximately $17,000. At settlement, on November 19, 1948, plaintiff presented tax receipts to defendant's settlement clerk which showed payment of the city taxes and satisfaction of the liens for such taxes. The plaintiff admitted in his reply that acting in behalf of Penn, he paid the principal amount of the taxes due but did not pay the interest and penalties in connection therewith for he assumed that they had abated in accordance with the Tax Abatement Act then in effect. Although the interest and penalties had not been paid,
the liens for all the city taxes were marked satisfied of record in the Prothonotary's office. However, in April or May, 1948 the Receiver of Taxes of the City of Philadelphia, having discovered that these taxes were erroneously marked satisfied, caused the city tax account on the Delinquent Records for interest and penalties of the City of Philadelphia to be reopened and the records marked "interest and penalty due" as to the property in question.
Following this course of events, on December 6, 1948 one Max N. Carol, acting on behalf of Daniel J. Sheeran who was purchasing the property from Penn's straw man, Joseph S. Finkel, applied to the defendant for title insurance. Settlement for this conveyance took place on November 22, 1949. Defendant asserted in its answer under new matter that before settlement was completed it notified the plaintiff, as Penn's representative at the settlement, that it would not issue its policy of insurance until all taxes affecting the property had been paid. Plaintiff alleged in his reply that any request by defendant for the payment of interest and penalties was immaterial and irrelevant because no liens of record remained unsatisfied. However, plaintiff did admit that subsequent to the date of settlement he paid approximately $6,000 toward the interest and penalties on the tax claims at the request of W. Frank Marshall, Receiver of Taxes. He also admits that at defendant's request he delivered to the defendant United States Treasury bonds of the par value of $12,000, enclosed in the following letter, dated May 2, 1950: "... Phila. ...