Wirtz v. Phillips

• Decision Date: 25 May 1965
• Docket Number: Misc. No. 3357.
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. Retha PHILLIPS, individually and doing business under the name and style of Phillips Coal and Coke Company, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

251 F. Supp. 789

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. Retha PHILLIPS, individually and doing business under the name and style of Phillips Coal and Coke Company, Defendant.

Misc. No. 3357.

United States District Court W. D. Pennsylvania.

May 25, 1965.

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James P. McKenna, Jr., Asst. U. S. Atty., Pittsburgh, Pa., for plaintiff.

Alfred E. Jones, Jr., and William J. Franks, Uniontown, Pa., for defendant.

ROSENBERG, District Judge.

This is here for final determination on the issue of whether or not the plaintiff, W. Willard Wirtz, Secretary of Labor, United States Department of Labor, held a lien against certain property in Fayette County, Pennsylvania, on December 4, 1963. On that date the plaintiff had issued a writ of execution for the sale of such property presently held by Harry A. Montgomery and Bertha M. Montgomery, his wife, two of the present petitioners.

The plaintiff's direction to the United States Marshal was "to levy upon the property of the defendant and to sell her interest in that property * * *". In accordance with the direction contained in the writ of execution against the pertinent real estate, the United States Marshal proceeded with the process.

The petitioners filed a motion for a temporary restraining order and stay of sale by writ of execution. At a hearing on the motion, counsel for the parties agreed that the hearing be final and that the issue be determined on the basis of a stipulation submitted by them. Counsel have presented their separate briefs.

The particular real estate with which we are here concerned was acquired originally by Lindsey Phillips by recorded deed on June 30, 1942. On December 3, 1954, Lindsey Phillips was joined in a deed with his wife, Retha Phillips, in the conveyance and recording of the particular property to themselves as tenants by the entireties. On January 24, 1961, the plaintiff procured a judgment in the sum of $3,354.65 at Civil Action No. 60-794 in the United States District Court for the Western District of Pennsylvania, against Retha Phillips, individually, and dong business under the name and style of Phillips Coal and Coke Company. On March 3, 1961, a certified copy of the judgment was transmitted to and filed in the office of the Prothonotary of Fayette County, Pennsylvania.

On March 27, 1962, Lindsey Phillips procured a divorce from Retha Phillips by decree of the Court of Common Pleas of Fayette County at No. 402 September Term, 1960. On May 22, 1962, there was recorded in the office of the Recorder of Deeds of Fayette County, a deed dated October 5, 1960,¹ conveying the pertinent real estate from Lindsey Phillips and Retha Phillips, tenants of an estate by the entireties to Lindsey Phillips. Thereafter, on July 28, 1962, there was recorded a deed to the pertinent real estate from Lindsey Phillips, "a single man", to Joseph Lieber and Olga Lieber, his wife and Edwin A. Richter and Thelma G. Richter, his wife. Then followed the recording of a deed dated April 2, 1963 to the pertinent property from Joseph Lieber and Olga Lieber, his wife and Edwin A. Richter and Thelma G. Richter, his wife to Harold A. Montgomery and Bertha M. Montgomery, his wife. The successive holders of title here enumerated after Lindsey Phillips are the petitioners.

On March 20, 1964, the United States Marshal proceeded with the Writ of Execution against the pertinent property and the present motion followed.

The question for determination here then is, as of the date of the execution of the plaintiff's judgment, was that judgment a lien against the real estate or any part of it?²

The question arises here because of a Pennsylvania statute, Act No. 412, approved the 17th day of May 1949, P.L. 1394.³

This Act in § 1 provides in part "That whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced * * * they shall thereafter hold such property as tenants in common of equal one-half shares in value * * *". (emphasis contained in original indicating amendment). This section continues with the provision giving permission to either of the spouses to bring an action in equity in the court of common pleas where the property is situate and have the whole property sold and the net proceeds divided between the spouses.

The plaintiff contends that the real estate was held by Lindsey Phillips and Retha Phillips on March 3, 1961, when the judgment was liened in the Prothonotary's office of Fayette County; that at such time because the two spouses held the property as an estate by the entireties, that the plaintiff's lien was inchoate against the wife; that on March 27, 1962, Lindsey procured the decree of divorce from Retha and the estate by the entireties became automatically converted into an estate in common; that Retha automatically became the owner of a one-half undivided interest in the property as an estate in common, by virtue of the provision contained in § 1 of the Act of 1949; and that as such an owner she had an alienable and therefore lienable interest in the real property.

The petitioners disagree with the plaintiff's contention and argue that Retha at the time the certificate of judgment was filed on March 3, 1961, in Fayette County where the pertinent property is situate, had no lienable interest or title in the real estate because the estate by the entireties was never converted into an estate in common. This was so, the petitioners contend, because the provision contained in § 1 of the Act, upon which the plaintiff relies for the conversion of the Phillips's estate by the entireties into an estate in common, remained inert and inoperative as to this particular property failing fulfillment of the condition precedent contained in the proviso clause of § 3 of the Act. In other words, in order to have worked the conversion, as a preliminary requisite, the Phillips's divorce decree would have had to have been recorded in the recorder's office of Fayette County, and this was not done. There was accordingly no conversion of that property from an estate by the entireties to one in common.

This proviso clause reads as follows:

"* * * That no decree of divorce as aforesaid shall be effective to change the existing law relating to liens upon property held by tenants by the entireties except a decree of divorce that is valid in the Commonwealth, and not until the said decree of divorce or a certified copy thereof, shall be recorded in the office of the recorder of deeds of the county where the property is situate, which decree shall be indexed in the grantor's index against each of the said tenants by the entireties."

As the parties now present the issue here, the determinable questions upon which the final decision rests may be stated: (1) Does the provision contained in § 1 of the Act of 1949 automatically convert, upon the granting of a decree of divorce, an estate by the entireties to an estate in common? or (2) Is the proviso contained in § 3 of that Act a double barreled device which must be triggered before the edict in § 1 becomes operational to change, after the granting of a decree in divorce, estates by the entireties to estates in common?

The plaintiff says that the answer to question one is "yes" because the proviso is surplus verbiage. I shall discuss this later. The petitioners assert that the answer to the second question is "yes" because a State court has already said so. I shall discuss this also a little later.

The Applicable Law

Both of the parties disagree on whether the law applicable is Federal or State law. However, we have no problem here. Congress provided in the Act of June 25, 1948, c. 646, 62 Stat. 958, 28 U.S.C. § 1962⁴ that judgments rendered in a district court be made a matter of record in the state or county office, if the state required it. In compliance with this Act, the State of Pennsylvania legislated such a requirement by its Act of May 17, 1929, P.L. 1805, § 1, 17 P.S. § 1932.⁵ The procurement of the original judgment and the execution thereon as they relate to federal functioning of an administrative body in a federal court is without question governed by federal law. But when on March 3, 1961, the plaintiff filed a certified copy of the Federal judgment in the office of the Prothonotary of Fayette County, Pennsylvania, he not only committed himself to the provisions of § 1 of the Act of 1929, but also submitted to all State laws as they relate to liens on property in Pennsylvania and for the particular county in which the lien was filed. As far as execution process was concerned, it was done by virtue of federal law. So far as the lien on the property within the County of Fayette, Pennsylvania, was concerned, it was done and governed by virtue of the law of liening of the State of Pennsylvania.

There appears to be no decisions of the Appellate Courts of Pennsylvania on the issue here involved as they relate to the Act of 1949. The petitioners, however, rely almost entirely upon a decision of the Court of Common Pleas of Montgomery County. Hershey Creamery Company v. Heilman et al., 83 Montg.Co. L.R. 144 (1964). It was here held that the proviso clause contained in the Act of 1949 made the conversion of an estate by the entireties into an estate in common dependent upon the recording of the divorce decree in the recorder's office and that unless such a decree was recorded, the property remained as an estate by the entireties uneffected by the Act of 1949.

The petitioners argue that a federal court must be bound by this determination by virtue of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Erie case dealt with the application of law in diversity action. Where, as here, jurisdiction is not based upon diversity of citizenship, the Erie case does not apply. National Bank of Eastern Arkansas v. General Mills, Inc., C.A. 8, 1960, ...