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HAYES (ET AL. v. STEPHENSON. (06/15/60)


June 15, 1960


Appeal, No. 213, April T., 1959, from order of Court of Common Pleas of Erie County, May T., 1957, No. 85, in case of A. J. Hayes et al. v. R. N. Stephenson et al. Motion to quash refused; order affirmed.


Gerald A. McNelis, Sr., with him McNelis and McNelis, for appellant.

A. Grant Walker, with him Gifford, Graham, MacDonald & Illig, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 192 Pa. Super. Page 393]


A. J. Hayes and Emery Motor Sales Company, a corporation, brought an action in assumpsit for monies alleged to be owed them by defendants and recovered a joint verdict. From the grant of a new trial, Emery Motor Sales Company filed this appeal. A. J. Hayes did not appear or disclaim his right to appeal, and from the record before us it appears that the appeal was not filed in his behalf jointly with appellant. Defendants-appellees have filed a motion to quash the appeal because of the failure of Hayes to join in it.

Although the jury returned a verdict for the plaintiffs jointly, the claims upon which the suit is based

[ 192 Pa. Super. Page 394]

    appear not to have been jointly held. In the first count of the complaint plaintiffs sought to recover the proceeds of an insurance contract issued by Calvert Fire Insurance Company on a certain Ford automobile that had been owned by Guy B. Emery, the sole owner of Emery Motor Sales Company. The automobile had been destroyed by fire in an accident which caused the death of Mr. Emery. The policy named Emery Motor Sales and Commercial Credit Corporation as beneficiaries as their interest might appear. The proceeds of the policy were paid by Calvert Insurance Company to Commercial Credit Corporation, which applied it on an indebtedness of Emery Motor Sales Company for a loan on the car which was destroyed. A. J. Hayes, a large creditor of Emery Motor Sales Company, questioned whether Commercial Credit Corporation had advanced the money on the car and brought the suit on the basis that Commercial Credit Corporation and R. N. Stephenson, its manager, had agreed to collect the insurance money and pay it to him.

Count two was based on a claim that Commercial Credit Corporation had agreed to pay Hayes the proceeds of the insurance policy because he had purchased certain judgments which Commercial Credit Corporation held against Ermery Motor Sales Company. This count was not submitted to the jury because the court had previously eliminated it.

By count three plaintiffs sought to recover a balance in a reserve account which Commercial Credit Corporation held for Emery Motor Sales Company under various financing agreements. Hayes disputed certain credits against this fund although he appears not to have been a party to the agreements.

From these facts it appears that plaintiffs filed the suit under Pa. R.C.P. No. 2229, which permits persons to join as plaintiffs those "... who assert any right to

[ 192 Pa. Super. Page 395]

    relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the rights to relief of all such persons will arise in the action," and not strictly as joint holders of the cause of action.

Joint tenancies involve four basic elements. The "... four unities of time, title, interest and possession co-exist with the right of survivorship, which right is clearly manifested by the conveyance." Sheridan v. Lucey, 395 Pa. 306, 149 A.2d 444.

A joint tenancy is severable by the action, voluntary or involuntary, of either of the parties, and the effect of the severance is to make the parties tenants in common. Stanger v. Epler, 382 Pa. 411, 115 A.2d 197.

Parties making separate and distinct claims on a fund, with no joint or common right in the claims, have no right to take a joint appeal, Commonwealth v. Union Surety & Guaranty Company, 37 Pa. Superior Ct. 167; Appeal of Adamson, 110 Pa. 459, 1 A. 327; and although the claims be identical and depend upon the construction of the same instrument, a joint appeal may not be taken where the interest of each appellant is independent and distinct. Samson's Estate, 22 Pa. Superior Ct. 93.

This subject has been given an exhaustive review recently by this Court (Opinion by RHODES, P.J.) in Maloney v. Rodgers, 184 Pa. Superior Ct. 342, 135 A.2d 88, and certain conclusions were reached; viz., (a) a tenant in common can enforce his claim to the extent of his interest without the joinder of the other; and (b) the fact that tenants in common have joined their claims in one action under Pa. R.C.P. No. 2229 for the sake of convenience does not in itself require that a new trial granted to one be granted to the other.


The motion to quash this appeal is refused and the order granting a new trial affirmed.


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