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RIGHT LUMBER CO. v. KRETCHMAR. (03/19/63)

March 19, 1963

RIGHT LUMBER CO., INC., APPELLANT,
v.
KRETCHMAR.



Appeal, No. 279, Oct. T., 1962, from judgment of County Court of Philadelphia, Feb. T., 1958, No. 3629, in case of The Right Lumber Co., Inc. v. Henry Kretchmar et al. Judgment affirmed.

COUNSEL

James F. Monteith, with him C. Gilpin Gibbon, and Witney, Thornton and Gibbon, for appellant.

Martin Greitzer, with him Takiff and Bolger, for appellees.

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

Author: Flood

[ 200 Pa. Super. Page 337]

OPINION BY FLOOD, J.

The Right Lumber Co., Inc., the appellant, having obtained judgment against Henry Kretchmar, the defendant, issued an attachment execution, serving Flower Construction Company, inc. and Bayard Corporation as garnishees. To the interrogatories filed by the plaintiff, the garnishees' answers admitted that they were indebted to Kretchmar in the sum of $47,632.50, the amount of a judgment obtained by him against them but averred by way of new matter that this judgment was for wages and salary and exempt or immune from attachment. The garnishees attached to their answers a copy of Kretchmar's complaint in the suit in which he obtained judgment against them. From this it appeared that the judgment represented part of contract under which he was to receive$150 per week and 25% of the gross profits. The weekly sums had been paid when due and the suit was brought for 25% the compensation due him for his services as general superintendent of a building operation under an oral of the gross profits, and the judgment represented the amount alleged to be due under this provision of the contract.

The court below sustained the garnishees' contention that the amount of the judgment represented wages or salary. Such a judgment is exempt from execution under the Act of April 15, 1845, P.L. 459, § 5, 42 PS § 886. Steel v. McKerrihan, 172 Pa. 280, 33 A. 570 (1896); Malloy v. McCollum, 18 Dist. 672, 36 Pa. C.C. 226 (1909).

[ 200 Pa. Super. Page 338]

The appellant contends that "25% of the gross profits" cannot be considered as wages or salary under the act. It argues that the judgment represents an amount due as profit on a partnership arrangement between Kretchmar and the garnishees, rather than wages or salary.

There is no allegation of partnership in Kretchmar's complaint against the garnishees, and there is no indication in the testimony that he was a co-owner of the business of the garnishees. Nothing short of this will make him a partner. "A partnership is an association of two or more persons to carry on as co-owners a business for profit". Uniform Partnership Act of March 26, 1915, P.L. 18, § 6(1), 59 PS § 11(1). The act further provides in § 7(4) (59 PS § 12(4)): "The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment ... (b) As wages of an employe". The contention, in the total absence of other evidence, that Kretchmar was a partner because he received a share of profits for his services and that therefore the share of profits cannot be considered as wages or salary because he is a partner, is in the teeth of the language of the act. Tax Review Board v. Green, 409 Pa. 448, at page 452, 187 A.2d 572, at page 574 (1963). The plaintiff's case falls because there is nothing anywhere else in the pleadings or evidence to contradict the averment in Kretchmar's complaint that the share of profits was "to be paid for his services in acting as the general superintendent of Defendants' building activities". To the contrary uncontradicted testimony indicated that Kretchmar had no financial interest in either of the corporations, that he had no authority except that which was given to him by Mr. Fineman, the president of the garnishee companies, and that the records of the garnishee, Flower

[ 200 Pa. Super. Page 339]

Construction Company, Inc., showed that Kretchmar was carried on the books at all times as an employe with the usual deductions for federal income tax, social ...


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