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BRANDT v. HERSHEY. (06/13/62)

June 13, 1962

BRANDT, APPELLANT,
v.
HERSHEY.



Appeals, Nos. 316 and 317, Oct. T., 1961, from orders of Court of Common Pleas of Lebanon County, Dec. T., 1960, Nos. 198 and 223, in case of Joan M. Brandt v. Mark Hershey et al. Orders affirmed.

COUNSEL

John A. Erickson, with him Lewis, Lewis & Erickson, for appellant.

James R. Koller, with him Elmer E. Harter, Clavin D. Spitler, and Siegrist, Koller & Siegrist, for appellees.

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

Author: Flood

[ 198 Pa. Super. Page 540]

OPINION BY FLOOD, J.

This is a replevin case in which a wife seeks to recover one-half of a crop of corn (or its value) harvested by her estranged husband from a farm owned by the entireties.

In her complaints the plaintiff alleged only that the husband-defendant and certain other defendants harvested the corn contrary to her orders and directions and caused it to be delivered to the defendant, Mark Hershey, at his place of business, the Hy-Line Hatchery, and that they have refused to deliver any or all of it to her or to pay over the proceeds of the crop to her. In her prayers for relief she did not ask judgment for possession of the entire crop or damages for its value, but only for possession of her "share" of the crop or for one-half its value.

The defendants filed demurrers alleging that the complaints failed to state causes of action (1) because the plaintiff sought to recover only a share or the value of a share of a crop to which she did not have title, and (2) because title to crops growing on land owned by the entireties is exclusively in the husband.

[ 198 Pa. Super. Page 541]

The court below sustained the demurrers on the ground that replevin does not lie against a spouse to recover entireties property because neither spouse has sole title or the right to exclusive possession of such property. Holding that this disability or defect could not be cured by amendment, the court dismissed the complaints without prejudice to the plaintiff's right to pursue other remedies, including assumpsit, or an action in equity for an accounting.

Even if this were a suit against Hershey alone to preserve the entireties property, Mrs. Brandt could not succeed without the joinder of her husband as a plaintiff. "Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants." Pa. R.C.P. No. 2227(a). In these appeals the plaintiff does not seek an order authorizing an amendment of the pleadings enabling her to discontinue the actions against her husband, join him as an involuntary plaintiff, and proceed in replevin against the defendant, Mark Hershey, for the entire crop, or its value. Compare: Sielecki v. Sielecki, 107 Pa. Superior Ct. 291, 163 A. 375 (1932); Pastore v. Forte, 104 Pa. Superior Ct. 55, 158 A. 649 (1932); and Magee v. Morton B. & L. Association, 103 Pa. Superior Ct. 331, 158 A. 647 (1931). In each of those cases a wife-plaintiff brought an appropriate action to preserve entireties property but the lower court dismissed the action because the plaintiff failed to join her husband as a co-plaintiff. In each case this court reversed and remitted the record to the court below with directions to permit the plaintiff to amend by joining her husband as a co-plaintiff, involuntarily, if necessary, in order that the action might continue, no other, or more appropriate, remedy being available.

The plaintiff here does not seek an order permitting her to comply with the compulsory joinder provisions of Pa. R.C.P. No. ...


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