Friedline v. Somerset Borough

• Citation: 173 A. 434,114 Pa.Super. 49
• Decision Date: 13 July 1934
• Docket Number: 274-1934
• Parties: Friedline, Appellant, v. Somerset Borough
• Court: Superior Court of Pennsylvania

173 A. 434

114 Pa.Super. 49

Friedline, Appellant, v. Somerset Borough

No. 274-1934

Superior Court of Pennsylvania

July 13, 1934

Argued April 12, 1934

Appeal by plaintiff from judgment of C. P., Somerset County September T., 1933, No. 479, in the case of Leo S. Friedline v. Somerset Borough.

Affidavit of defense in the nature of a demurrer in an action of assumpsit to recover money paid as license fee to a municipality. Before Boose, P. J.

The facts are stated in the opinion of the Superior Court.

The court sustained the affidavit of defense and directed that judgment be entered for defendant in default of the filing of an amended statement of claim. Plaintiff appealed.

Error assigned, among others, was the order of the court.

Affirmed.

John A Berkey, for appellant.

Clarence L. Shaver, and with him Daryle R. Heckman of Shaver & Heckman, and Budd B. Boose, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Stadtfeld, J.

This is an appeal by plaintiff from the order of the court in directing judgment to be entered in favor of defendant, in an action of assumpsit, in default of an amended statement within fifteen days, after sustaining an affidavit of defense in the nature of a statutory demurrer.

The statement of claim in substance alleges that plaintiff was a merchant engaged in the jewelry business in the Borough of Somerset; that the defendant's chief of police, acting under the authority and direction of W. H. Beachy, the burgess of said borough, acting under the direction of the town council, entered the plaintiff's place of business, and demanded and collected from the plaintiff the sum of $ 100 for the privilege of conducting a retail jewelry business, informing plaintiff that he, the said chief of police, would arrest the plaintiff and imprison him unless plaintiff paid to him the said sum of $ 100 for the use of the defendant, Somerset Borough; that in order to prevent plaintiff's arrest and imprisonment, and closing of plaintiff's place of business, plaintiff, under protest, paid the said sum of $ 100 to the said Borough of Somerset.

To this statement of claim defendant filed an affidavit of defense in the nature of a statutory demurrer, averring, in substance, (1) that plaintiff's statement fails to aver facts sufficient in law to sustain the plaintiff's form of action, and (2) that the plaintiff's averred facts do not constitute an involuntary payment.

The lower court, in an opinion by Boose, J., sustained the questions of law raised by the statutory demurrer, with leave to plaintiff to file an amended statement of claim within 15 days, and in default thereof, judgment to be entered in favor of defendant. Plaintiff failing to file an amended statement, judgment was accordingly entered. From that judgment this appeal was taken.

Appellant contends (1) that the action is in assumpsit for money had and received, the alleged tort having been waived; (2) that the payment of the money was not voluntary, but under duress.

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