Pittsburg Const. Co. v. West Side Belt R. Co.
| Decision Date | 06 July 1911 |
| Docket Number | 34 |
| Citation | 81 A. 884,232 Pa. 578 |
| Parties | Pittsburg Construction Company v. West Side Belt Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Argued May 1, 1911
Appeal, No. 34, Oct. T., 1911, by Francis H. Skelding and Henry W. McMaster, Receivers, and the Colonial Trust Company, Trustee, from order of C.P. No. 4, Allegheny Co., Second Term, 1910, No. 595, making absolute rule for judgment for want of sufficient affidavit of defense in case of Pittsburg Construction Company, a corporation, v. West Side Belt Railroad Company, a corporation, with notice to Francis H. Skelding and Henry W. McMaster, Receivers of the West Side Belt Railroad Company, and the Union Trust Company of Pittsburg, Trustee, Mortgagee, and the Colonial Trust Company, Trustee, Mortgagee, Terre-Tenants. Affirmed.
Action on a scire facias sur judgment.
The facts appear by the opinion of SWEARINGEN, P.J., making absolute rule for judgment, as follows:
By this proceeding the plaintiff seeks to secure to itself the benefits of the resolutions of the general assembly of Pennsylvania, approved January 21, 1843, P.L. 367, and approved April 4, 1862, P.L. 235, whereby contractors, in the building of railroads, are given prior liens.
The Pittsburg Construction Company, the plaintiff, is a corporation duly incorporated and organized under the laws of the state of West Virginia. The West Side Belt Railroad Company, the defendant, is also a corporation duly incorporated and organized under the Act of legislature of Pennsylvania, approved April 4, 1868, P.L. 62. On April 25, 1901, the West Side Belt Railroad Company entered into a contract with A. S. Petrie for the construction of an extension of its railroad. Petrie, in turn, made a contract with the plaintiff, May 24, 1901, for the construction of the said extension, which contract was guaranteed by the West Side Belt Railroad Company, John S. Scully and T. N. Barnsdall. The work was commenced by the plaintiff on May 20, 1901, and it prosecuted the same continuously until completion, June 11, 1903. An arbitration followed, and an award was made by the arbiter, to whom all disputes were referred by the terms of the contract. At No. 30, May Term, 1906, of the circuit court of the United States for the western district of Pennsylvania, the plaintiff brought an action against the West Side Belt Railroad Company, John S. Scully and T. N. Barnsdall, to recover upon the said guaranty. That litigation resulted in a decision that the plaintiff could not recover, because it was a foreign corporation and had not established a place of business and designated agents for the transaction of its business in Pennsylvania, at or prior to the time of the contract with the said A. S. Petrie, and, therefore, it was precluded from maintaining the action by the provisions of the Act of the legislature of Pennsylvania, approved April 22, 1874, P.L. 108. The plaintiff was, in fact, duly registered in Pennsylvania on June 15, 1901, twenty-two days after said contract was signed.
By an Act of the legislature of Pennsylvania, approved May 23, 1907, P.L. 205, it was enacted:
"That whenever any corporation organized and existing under the laws of any other State, and doing business within this Commonwealth, shall have heretofore entered into any contract, bond, or obligation with any person, firm, or corporation, without having first established a known place or places of business and designated an authorized agent or agents for the transaction of its business in this Commonwealth, the said contract, bond, or obligation shall be binding upon the parties thereto, and such corporations may enforce the same in the Courts of the Commonwealth:" then follow provisos naming certain requirements with which such a corporation must comply before it can avail itself of the provisions of said act.
It is not disputed that the Pittsburg Construction Company did properly comply with all of the said requirements prescribed. Thereupon it brought an action against the West Side Belt Railroad Company at No. 398, Fourth Term, 1907, of this court. It declared both upon the award of the arbiter aforesaid and upon a quantum meruit. After trial, a judgment was entered in favor of the plaintiff and against the said defendant in the sum of $398,471.78, which was upon the said award, and was not upon the quantum meruit. The said judgment was affirmed upon an appeal to the Supreme Court. The plaintiff then issued this writ of scire facias, with notice to the receivers of the West Side Belt Railroad Company, having first obtained leave to join them, and with notice to the Union Trust Company of Pittsburg, trustee in a mortgage given by the West Side Belt Railroad Company to secure an issue of bonds, and also with notice to the Colonial Trust Company, trustee in another mortgage given by the West Side Belt Railroad Company to secure its guaranty of an issue of bonds of the Pittsburg Terminal Railroad & Coal Company. All of said parties have appeared and have answered the writ.
The Union Trust Company of Pittsburg averred that the mortgage, in which it appears as trustee, was dated September 1, 1897, and was recorded in the recorder's office of said county of Allegheny on February 1, 1898, in Mortgage Book, vol. 837, page 1; that said mortgage was given to secure an issue of bonds aggregating $1,000,000 which were issued, certified and delivered, prior to the date of the plaintiff's contract, and of which issue $383,000 are now outstanding; and that the plaintiff is, therefore, not entitled to a lien prior to said mortgage.
The Colonial Trust Company denied that the plaintiff was a contractor within the meaning of the said resolutions of 1843 and 1862. It averred that the plaintiff had defined its position as a subcontractor, in the said suit in the United States circuit court, and cannot now claim as a contractor. It also averred that its said mortgage was executed prior to the time the plaintiff performed the labor and furnished the material, for which it claims a lien, to wit, from May 20, 1901, to June 11, 1903.
In its amended answer, the West Side Belt Railroad Company, by its receivers, averred that the plaintiff was not a contractor, but was only a subcontractor, and that, therefore, it was not within the provisions of the said resolutions of 1843 and 1862. It further averred that the plaintiff had no claim against it, prior to the passage of said act of May 23, 1907; and it submitted that, in so far as the said act attempted to create a lien prior to said mortgage, it was unconstitutional, as being a taking of property without due process of law, and impairing the obligation of contracts.
The Colonial Trust Company adopted said amended answer of the West Side Belt Railroad Company.
The plaintiff then took this rule for judgment for want of sufficient affidavit of defense, and the case was argued and submitted.
It cannot be seriously disputed that the plaintiff is entitled to a judgment upon this record. Whether or not it is entitled to the priority of lien, which it claims is a different question. It was admitted upon argument that this question can be determined upon this motion, and that the parties are not obliged to await a contest over the proceeds of a sale of the property.
The plaintiff claims a lien upon the railroad of the defendant from the date of its said contract, to wit, May 24, 1901, under and pursuant to the said resolutions of 1843 and 1862, which are as follows:
If it be held...
To continue reading
Request your trial