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APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
Rehearing denied September 27, 1974.
This appeal arises from a lower court order sustaining intervening plaintiff's motion to dismiss defendant's counterclaim seeking indemnification from intervening plaintiff.
Plaintiff, John Kossifos (hereafter Kossifos), filed an amended complaint against the Louden Machinery Company, defendant and counterclaimant (hereafter Louden), alleging that he was an employee of the John Morrell Company, intervening plaintiff and counterdefendant (hereafter Morrell), and that, as a direct and proximate result of certain enumerated unreasonably dangerous conditions in certain equipment sold by Louden to Morrell, he suffered severe and permanent injuries. Specifically, Kossifos stated:
"That at the time and place aforesaid, the said equipment, * * * designed, manufactured, distributed and sold by the defendant to the plaintiff's employer, was at the time of its manufacture and at the time it left the possession or control of the defendant herein, unreasonably dangerous, by reason of one or more of the following defects or conditions of the said equipment:
(a) The said equipment was too heavy to be supported by the overhead suspension system;
(b) The said equipment was improperly designed, so as to support the racks and the traveling cage;
(c) The said equipment was not metalurgically [sic] sound, to support the traveling cage;
(d) The said equipment was improperly designed, so as to prevent the traveling cage from sliding off the rail;
(e) The said equipment was improperly designed in that it had no `stops' so as to prevent the traveling cage from sliding off the rail;
(f) The said equipment was improperly designed, in that the `splices' were not strong enough to support the traveling cage;
(g) The said `splices' were metalurgically [sic] unsound, in order to support the traveling cage;
(h) The said equipment was manufactured, distributed, and sold, without the defendant promulgating proper safety instructions for its use."
Morrell then intervened in the suit as a party plaintiff in order to protect its Workmen's Compensation lien.
Louden filed a counterclaim against Morrell seeking indemnity on the following basis:
"That any alleged negligence asserted against Louden arising out of the providing of component parts of the Monorail System to Morrell, and such negligence being again specifically denied by Louden, would be purely passive in nature whereas the installing of the Monorail System and the misuse of the Splice by Morrell contrary to good engineering practices and the specific instructions of Louden and the continuing nature of the allegedly unreasonably dangerous condition from 1957 until the Kossifos accident of August 20, 1965 would be active and affirmative in nature.
That any alleged proximate cause of injury to Kossifos would be distant and remote from any manufacture or sale of the component part by Louden but the installation and maintenance by Morrell would be a near and close proximate cause of the injury of Kossifos."
Pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 45), Morrell moved to dismiss the counterclaim, which motion was granted. Louden appeals from that order.
The sole issue presented to us on appeal, as conceded by Louden in its reply brief, is whether a manufacturer held strictly liable in tort may seek indemnity from a negligent intermediate third party.
Specifically, Louden contends that a manufacturer held strictly liable in tort for a plaintiff's injury should, in fairness, be able to seek indemnity from an intermediate third party whose negligent action, subsequent to the manufacturer's loss of control over the product, was the primary and more proximate cause of the injury, in a case where the plaintiff's rights and potential recovery are not affected.
Morrell, on the other hand, contends that the concept of strict liability, under Illinois law and the policy behind that law, precludes such indemnity. We agree. See Burke v. Sky Climber, Inc. (1973), 13 Ill. App.3d 498, 301 N.E.2d 41.
• 1, 2 Kossifos' amended complaint against Louden sounds in strict liability in tort. Louden's counterclaim against Morrell sounds in negligence. To impose strict liability on a manufacturer, a plaintiff "must prove that * * * [his] injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control." (Emphasis ours.) (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182.) In a cause of action based on ordinary negligence a plaintiff must show that a defendant owed the non-negligent plaintiff a duty of reasonable care and then either failed to do something which a reasonable careful person would have done, or did something which a reasonably careful person would not have done under circumstances identical to those in a given case. (Emphasis ours.) (Haymes v. Catholic Bishop of Chicago (1968), 41 Ill.2d 336, 339, 243 N.E.2d 203.) It is obvious that the basis of strict liability in tort is the condition of a product whereas the basis of negligence is the conduct of a person.
This distinction is manifest in the instant case. Kossifos' complaint against Louden seeks to impose liability on the ground that certain equipment was, at the time of its manufacture and at the time it left Louden's control, in an unreasonably dangerous condition. Louden, on the other hand, seeks to impose liability in its counterclaim against Morrell on the basis of Morrell's faulty installation, maintenance, and misuse of the same equipment.
• 3, 4 Clearly these are two fundamentally different types of torts. They are separate and distinct causes of action and the pleading and proof requirements for each are different. (Mieher v. Brown (1972), 3 Ill. App.3d 802, 278 N.E.2d 869.) In a strict liability situation, the conduct, as such, of the defendant-manufacturer is not in issue. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443, 266 N.E.2d 897.) In a negligence situation, the focus is not on the unreasonably dangerous condition of a product or instrument, but rather on the conduct of the defendant.
• 5 Confusion is ever-present, of course, because of the fact that the condition of a product will always have been ultimately caused by the conduct, whether by commission or omission, of someone. But this interrelationship between the condition of the product and the conduct of the person must not be permitted to blur the basic distinction between the type of tort being alleged. Where the product is in an unreasonably defective condition, the conduct of the person who caused it to be in that condition may or may not have been negligent; whether that conduct was or was not negligent is irrelevant to strict product liability, because the liability is predicated solely on the condition of the product.
• 6, 7 As a matter of public policy, Illinois still refuses to permit contribution between joint tortfeasors. But some exceptions exist to that policy on theories of indemnity. One such exception is the "active-passive negligence" theory of indemnity (as set forth, for example, in Campbell v. Joslyn Manufacturing & Supply Co. (1965), 65 Ill. App.2d 344, 212 N.E.2d 512), whereby one jointly negligent tortfeasor whose negligence is passive or secondary may seek indemnity from the other jointly negligent tortfeasor whose negligence is the primary and active cause of a plaintiff's injury. *fn1 In the instant case Louden seeks to use that exception against Morrell. But the exception applies only where the two tortfeasors are tortfeasors owing to their respective negligences, because the theory essentially involves a comparing of negligence to determine the more causative fault of the same type. Here, however, Louden's potential liability is not based on negligence, and the theory is therefore inapplicable. The theory of "active-passive negligence" is not applicable to compare apples with oranges. See Suvada v. White Motor Co., supra, at page 624; and Mr. Justice Davis' concurring opinion in Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill.2d 127, 295 N.E.2d 718.
We are aware, however, that, despite the inapplicability of the theory of "active-passive negligence", Louden is indeed asking us to compare apples with oranges and to create another exception to the policy against contribution between joint tortfeasors by holding that the tort of strict liability is a less culpable fault than the tort of ordinary negligence in terms of degree of social fault. Such an assessment, of course, must be made in the light of public policy, and the difficulty is that the assessment has already been made adversely to Louden's position. In Suvada v. White Motor Co., supra, the Illinois Supreme Court allowed indemnity against the strictly liable manufacturer of a brake system in favor of the negligent operator of a bus. The court stated its policy at page 619:
"Without extended discussion, it seems obvious that public interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user, as they are in food cases."
Commenting on this policy, the court in Texaco, Inc. v. McGrew Lumber Co. (1969), 117 Ill. App.2d 351, 254 N.E.2d 584, at page 358 said: "This statement manifests a strong public policy that insists upon the distribution of the economic burden in the most socially desirable manner, even to the extent of ignoring the indemnitee's fault." (Emphasis ours.) See also Wessell v. Carmi Elks Home, Inc., supra.
In Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305, the court held that a greater degree of culpability than ordinary negligence on plaintiff's part was necessary in order to preclude recovery from a manufacturer strictly liable in tort. In holding that contributory negligence was not a bar to recovery in a strict product-liability action against a manufacturer, the court, in effect, designated strict product liability as a more serious tort than the tort of ordinary negligence. See also Meador v. City of Salem (1972), 51 Ill.2d 572, 284 N.E.2d 266.
We note that Louden in its counterclaim for indemnity against Morrell, sought indemnification on the basis, inter alia, that Morrell's "misuse" of the splice was the primary cause of Kossifos' injuries.
"Misuse" (as narrowly defined) of a product by a plaintiff may bar recovery on the basis of strict product liability. Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305; Vlahovich v. Betts Machine Co. (1970), 45 Ill.2d 506, 260 N.E.2d 230.
In view of the availability of the "misuse by plaintiff" defense to strict product liability, one held strictly liable might conceivably attempt to assert "misuse" by an intermediate third party as a basis for indemnity against that third party.
• 8 In this case, however, we decline to reach that issue, because the issue cannot be regarded as having been raised by the mere employment of the noun "misuse" in a counterclaim clearly designed solely to invoke the indemnity doctrine of "active-passive negligence". Nor has the counterclaimant included such issue among the points and authorities in its brief.
• 9 We hold, therefore, that Louden's counterclaim against Morrell, based on the "active-passive negligence" theory of indemnity, was properly dismissed because that theory of indemnity is not available to one held to strict product liability. Conceptually, strict product liability is not a form of ordinary negligence; and policy-wise, the tort of strict product liability has been held to be a more serious tort than the tort of ordinary negligence. For these reasons, we affirm the trial court's dismissal of the counterclaim.
STAMOS and DOWNING, JJ., concur.
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Asian-style turkey steaks with pineapple salsa
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Ready in 40 minutes
Cooking time 15 minutes
Prep time 25 minutes
Serves 4
- 500 g British turkey breast steaks
- 175 ml teriyaki and ginger stir-fry sauce
- 1 tbsp olive oil
- 410 g fresh free-range egg noodles
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- 227 g tin pineapple slices in fruit juice, drained and finely diced
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Put the turkey steaks on a plate; pour over the stir-fry sauce, turning the steaks to coat them all over. Cover with cling film and put in the fridge to marinate for 10 minutes.
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Add the noodles to the pan along with the mange tout and remaining stir-fry sauce. Cook for 2 minutes, until heated through. Remove from the heat and stir in the chopped coriander. Divide the noodles between 4 plates and serve with a turkey steak and some salsa on the side.


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Having problems with your Canon PowerShot SD870 IS Digital Camera ?
How to transfer long video from Canon PowerShot SD870 IS to comp?
\015 I took a long video on my Canon PowerShot SD870 IS - about 10 minutes long. I'm trying to transfer it to my PC, but whenever I do it says the file has been compressed in a way no program (neither windows media player nor quicktime) can recognize. Furthermore, I don't even know if the video is transferring! In the Canon folder before I copy it over to the computer it says the file is 936MG but then once I save it to my computer is says the file is 0MG. What's going on and how do I fix this?\015
Answers :
Using a card reader is not a solution. It's a work-around. IT dos not solve the fact that many canon cameras have this problem with large files.
It is useless that you cannot copy it without using a card reader. Everybody should be able to transfer their files from camera to any computer anywhere, without having to bring anything but the usb cable.
It is useless that you cannot copy it without using a card reader. Everybody should be able to transfer their files from camera to any computer anywhere, without having to bring anything but the usb cable.
Try using a card reader to transfer the video to a folder you create on your desktop.
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How to transfer long video from Canon PowerShot SD870 IS to comp?
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Video Format Problem includes: Canon Powershot SD1000 iPhoto '08 Connecting camera via USB Status: Downloading Images = no problem Downloading Videos = Problem Downloading Images & Video = Problem Story: When trying to download videos from Canon SD1000 to iPhoto '08 a problem occurs. iPhoto crashes once it trys to import video into iPhoto. Upon relaunch iPhoto identifies photo files which were downloaded before crash and photos on camera and downloads duplicates until it tries to download v
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text:
Check in from 2:00 PM / Check out prior to 11:00 AM
Begonville Apartment Side: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Side, Turkey.
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« view all Benidorm Gay Bars & Clubs
Carrer de Santa Faç 5, Benidorm, Spain, 03501
| facebook | +34 638 28 02 22 |
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drift bar/Justins
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Ab Nicholas and wife to donate $10 million to Chicago Episcopal church
Milwaukee businessman Ab Nicholas and his wife, Nancy, are donating $10 million to create a community center for the Episcopal church in downtown Chicago.
To be called The Nicholas Center, the facility will hold overnight retreats and programs to develop leaders in the Episcopal church and foster vitality in congregations. »Read Full Article(7)


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A group of lawyers in Jos have sued the federal government, demanding the sum of one billion naira as compensation for unlawful arrest, torture, and detention against residents of the north central city of Jos.
The applicants seeking to enforce their fundamental rights are asking the court for the following reliefs.
"An order against the respondents jointly and severally to pay the applicants the sum of one billion naira only as compensation for unlawful arrest, torture, detention, embarrassment, pains and inconveniences coursed to the applicants by the respondents"
"an order directing the 1st to 4th respondents to surrender the 5th respondent and all other military officers that participated in the assault, embarrassment and torture of the applicants on the 18th July, 2012 for trail by court martial under section 104 of the armed forces act cap.a20 laws of the federation of Nigeria 2004"
The lawyers claimed that the members of the special task force attached to Gyel community had toured citizens of the community leading to the death of three people.
Those joined as respondents include Federal Government of Nigeria, Attorney General of the Federation, Chief of Defence Staff and the Special Task Force in Plateau state, Major General Henry Ayola as 1st, 2nd, 3rd and 4th respondents respectively.


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GARFIELD - The 400 commuters who use the Plauderville station, located on the Bergen County line, were pleasantly surprised this morning after some improvements were made to the station.
The multimillion-dollar improvements gave the station new high-level platforms.
Other improvements include heated waiting areas on the inbound platform, canopies and better lighting.


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September 12, 1983
CONSTANTIN CHRISTIDIS, IND. ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATEDv.FIRST PENNSYLVANIA MORTGAGE TRUST, ASSOCIATED ADVISERS, INC.: FIRST PENNSYLVANIA CORPORATION, FIRST PENNSYLVANIA BANK, N.A., PEAT, MARWICK, MITCHELL & CO., JOHN R. BUNTING, RALPH W. ERWIN, JR., ANTHONY G. FELIX, JR., PHILIP C. EHLINGER, SAMUEL EVANS, III DANIEL S. AHEARN, EDMUND N. BACON, RICHARD W. BAKER, JR. AND M. TODD COOKE. CONSTANTIN CHRISTIDIS, APPELLANT
Gibbons and Hunter, Circuit Judges and Cohen, District Judge.*fn*
GIBBONS, Circuit Judge:
Constantin Christidis appeals from a final judgment dismissing his third amended class action complaint for failure to state a cause of action. The complaint seeks money damages on behalf of a class of purchasers of shares of First Pennsylvania Mortgage Trust (the Trust) who purchased shares on or before December 29, 1977. It alleges that in issuing annual reports of the financial condition of the Trust for the fiscal years ending July 31, 1974, 1975, 1976 and 1977, the defendants violated the anti-fraud provisions of several federal securities acts.*fn1 The gravamen of Christidis' charge is that those financial statements understated the reserves which the Trust should have accrued for bad debts. The trial court held that the complaint did not allege fraud with the specificity required by Fed. R. Civ. P. 9(b),*fn2 and dismissed it prior to permitting discovery. We affirm.
The Allegations of the Complaint
Christidis' complaint contains general allegations summarized in this paragraph. The Trust was established in 1970 to invest in a diversified portfolio of short term development and construction first mortgage loans, other types of first mortgage loans, "wrap-around," interim, and junior mortgage loans. The Trust also invested in equity interests in real estate acquired through or in lieu of foreclosure. Until its annual report for the fiscal year ending July 31, 1977 the Trust maintained and reported a composite or aggregated reserve for possible losses, making no breakdown between reserves for losses on loans and reserves for losses on equity interests acquired through or in lieu of foreclosure. In its annual reports for fiscal years 1975, 1976 and 1977 the Trust represented "that the allowance for losses it had established and maintained for possible losses on loans it had outstanding and on property acquired by foreclosure was reasonable in the circumstances and determined in accordance with then existing reasonable and proper accounting practices and procedures when in fact it was not." App. 127. It also represented that in the opinion of the Trustees, the amount of the reserve is adequate to cover any losses which may be reasonably anticipated at the time. App. 129. In the notes to the financial statement Peat, Marwick, Mitchell & Co. disclosed various steps which were taken by the Trust to establish the value of real estate acquired by foreclosure including independent appraisals and market studies. App. 130.
The material allegation, therefore, is that the Trust made a misrepresentation that the reserve was established in accordance with existing reasonable accounting practices and procedures. Pressed through several successive motions for particulars as to how the 1975, 1976 and 1977 statements departed from those practices and procedures, Christidis added specific allegations respecting the deficiencies in each annual report.
The 1974 annual report is alleged to be a false representation of reasonable accounting practices and procedures in that:
(a) It reported a beginning balance for its composite allowance for possible losses on loans and property acquired by foreclosure of $421,365, additions thereto during that year of $479,790, which said additions were charged as an expense against current income, and an ending balance of $893,425 after taking into account a write-off of $10,730.
(b) It knew or should have known that the opening balance, additions to and the closing balance for its allowance for possible losses were understated and did not reflect the actual losses Trust Defendant had already sustained in the value of its loan and property acquired through foreclosure accounts, that the losses it had sustained thereto during that year were greater than those which it had accounted for and that its closing balance for its allowance for possible losses were inadequate resulting in a material and substantial overstating of its assets and profits.
(c) It knew and should have known that its use of and its reported composite allowance for possible losses on its loans and property acquired through foreclosure accounts were deceptive, incorrect and false, and cloaked the fact that its said allowance represented an accounting by it of its loans at greater than face or principal amount to the extent of $15,774.687 at the beginning of that year and of $15,317.687 at the end thereof when in fact its loans were subject to recognized and substantial losses; further that its reported allowance for possible losses for property acquired by foreclosure was substantially understated resulting in said property being accounted for at substantially more than its recognized value.
(d) It knew or should have known that by so doing it not only had materially overstated its assets and understated its losses but had improperly deferred recognition of actual losses it had incurred.
Complaint, para. 47, App. 130-32. The allegations with respect to the 1974 annual report are repeated, with different numbers, for the annual reports for 1975, 1976 and 1977.*fn3 Those allegations do not differ in substance. Thus for purposes of analysis we can focus on the allegations in paragraph 47 with respect to the 1974 annual report.
Subparagraph (a) of paragraph 47 establishes no more than the opening and closing amounts of the reserve. Subparagraph (b) alleges that the opening balance, additions, and closing balance did not reflect "actual losses . . . sustained in the value of its loan and property." In context, the term "actual losses" is meaningless, for actual losses are reflected elsewhere in a financial statement than in reserves. Thus subparagraph (b) merely reasserts that the estimate for future losses in the opening balance, the additions to, and the closing balance were wrong. The subparagraph says nothing about the method whereby those estimates were made or the manner in which that method departed from reasonable accounting practices and procedures.
Subparagraph (c) alleges that the Trust knew or should have known that its use of a composite allowance for possible losses on loans and property acquired through foreclosure was deceptive, and resulted in reporting its loans at greater than face or principal amount. Subparagraph (c) does not, however, set forth in what manner, in the year in question, the use of a composite loss reserve for loans and equity interests was a departure from reasonable accounting practices. The allegation that the "loans were subject to recognized and substantial losses" is meaningless, for the purpose of the reserve is to anticipate losses not yet recognized. The allegations that the allowance for possible losses for property acquired by foreclosure was substantially understated "in said property being accounted for at substantially more than its recognized value" is also meaningless, for it does not tell what is meant by "recognized value." Thus the quoted language cannot be construed as an allegation that the property appraisals relied on were either knowingly false, or so facially unreasonable as to be beyond the realm of reasonable reliance for accounting practices.
Subparagraph (d) merely states the conclusion that by doing what is alleged in subparagraphs (b) and (c) the defendants should have known they were materially overstating assets and understating losses. Thus it adds nothing to subparagraphs (b) and (c).
The defendants, relying on certain cases decided in the Second Circuit,*fn4 urge that we should read Rule 9(b) as a special pleading rule designed to facilitate the disposition, before discovery, of what they refer to as strike suits in the securities industry. We find more appropriate guidance, however, closer to home. In Cramer v. General Tel. & Electronics Corp., 582 F.2d 259, 272 (3d Cir. 1978), cert. denied, 439 U.S. 1129, 59 L. Ed. 2d 90, 99 S. Ct. 1048 (1979), we noted the distinction between the first and second sentences of Rule 9(b). The second sentence requires only that "intent, knowledge, and other conditions of mind . . . be averred generally." Id. at 273. The first sentence "requires that the complaint state with particularity the circumstances constituting the fraud." Id. at 272.
Historically, Rule 9(b) is derived from English common law practice. See Clark, Code Pleading § 48, at 312 (2d ed. 1947); Order 19, rule 6, The Annual Practice (London, 1937). As Judge Clark noted:
it has been the rule under both common-law and code pleading that allegations of fraud must be made with a great degree of particularity. Thus, it is said that the elements of fraud in an action for false representation are five, as follows: (1) A specific false representation of material facts; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) the plaintiff acted upon it to his damage.
Clark, Code Pleading § 48, at 312 (2d ed. 1947). It is the identification of these elements of a fraud claim which the first sentence of Rule 9(b) requires. The rule applies not only to fraud actions under federal statutes, but to fraud claims based on state law. In applying the first sentence of Rule 9(b) courts must be sensitive to the fact that its application, prior to discovery, may permit sophisticated defrauders to successfully conceal the details of their fraud. Moreover, in applying the rule, focusing exclusively on its "particularity" language "is too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules." 5 C. Wright & A. Miller, Federal Practice and Procedure, Para. 1298 at 407 (1969).
In this instance, however, no matter how flexibly we apply the first sentence of Rule 9(b), it requires that we affirm the dismissal of the complaint. Its defect is the complete absence of any disclosure of the manner in which, in establishing reserves for bad debts in the financial statements relied upon, the defendants knowingly departed from reasonable accounting practices. Those reserves were estimates or predictions of the likely collection or liquidation experience of the Trust in the future. They could be fraudulent only if, when they were established, the responsible parties knew or should have known that they were derived in a manner inconsistent with reasonable accounting practices. What those practices are and how they were departed from is nowhere set forth. In Part II above we have parsed the allegations of paragraph 47 to find the alleged inconsistency from the undisclosed norm. We cannot find it.
The trial court concluded, correctly, that the complaint fails to state a cause of action for fraud. The judgment appealed from will be affirmed.
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Every now and then someone wins a book in one of my Up for Grabs comps.
Dorte in Denmark won a copy of THE CRUELLEST MONTH back in April, and I dutifully sent it off. It didn't arrrive until early June, which really wasn't too bad for surface mail, almost 6 weeks.
Dorte heralded it's arrival here (But I don't think she's reviewed it yet).
Towards the end of April, Marie in Texas won a copy of THE IRON HEART so off it went. Marie has reported it's arrival today. This time nearly 8 weeks!
Why MYSTERIES? Because that is the genre I read.
Why PARADISE? Because that is where I live.
Among other things, this blog, the result of a 2008 New Year's resolution,
will act as a record of books that I've read, and random thoughts.
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29 June 2009
Posted by Kerrie at 6:37:00 pm
|My thoughts:
2 comments:
- Marg said...
Some times it is surprising how quickly books make it to the destination, or not, as the case may be!
- 29 June 2009 at 19:21
- Dorte H said...
Of course I haven´t reviewed it yet. If I reviewed the new books I got, I would never be able to build up a respectable TBR, would I???? LOL
But it is there - and almost flat by now.
- 29 June 2009 at 23:00
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filed: December 28, 1979.
ANDERSON CONTRACTING COMPANY, A CORPORATION,v.DAVID DAUGHERTY AND PEARL CURRIE, APPELLANTS
No. 525 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, at No. GD 75-28330, Sur. No. GS75-28329, Civil Division.
James M. Shilliday, Pittsburgh, for appellants.
Gary Kalmeyer, Pittsburgh, for appellee.
Cercone, President Judge, and Wieand and Hoffman, JJ.
[ 274 Pa. Super. Page 15]
This appeal finds its origin in an amicable action in ejectment instituted by plaintiff-appellee, Anderson Contracting Company, against defendant-appellants, David Laugherty and Pearl Currie. The action, which was commenced pursuant to a warrant of attorney contained in an installment land contract entered into by the parties, arose as a result of appellants' failure to make prompt installment payments under the land contract. A judgment in ejectment was confessed against appellants and execution proceedings
[ 274 Pa. Super. Page 16]
initiated. Presently before us is an appeal from the order of the court below denying appellants' petition to cure default, to stay execution, and to open or strike the judgment.
The facts are as follows. On March 26, 1974, appellant-vendees entered into an installment land contract with appellee-vendor for the purchase of a residential dwelling located in Allegheny County. Under the terms of the contract, appellants agreed to pay appellee the sum of $24,567.98 as follows: $367.98 on the signing of the contract and the balance of $24,200.00, together with interest at 8 1/4% on the unpaid balance, in monthly installments of $181.81 until paid in full. Although appellants took immediate possession and assumed all the burdens and incidents of ownership, the contract provided that the deed to the premises would not be delivered until appellants paid all sums due. The contract further provided that in the event appellants failed to make timely payment and continued in default for thirty days, appellee could then confess judgment against them in an amicable action of ejectment.
Appellants failed to make their monthly payment in September of 1975 and appellee confessed judgment against them in December of 1975. Appellants subsequently cured this default and appellee did not execute. Appellants next defaulted in June of 1976. Once more, however, they cured their default prior to execution and remained in possession. In January of 1977, appellants defaulted for the third time. This time, however, appellants filed a petition to open or strike the confessed judgment. On May 13, 1977, the petition was dismissed pursuant to an agreement between the parties whereby appellee agreed not to execute on the judgment prior to July 13, 1977, if appellants paid $400.00 at the date of agreement and an additional $300.00 prior to June 13, 1977. On July 29, 1977, appellants filed a petition alleging that appellee had refused to accept their payment of a sum sufficient to cure all prior default under the contract; and, therefore, requested the court to stay execution, to direct appellee to accept the cure, and to open or
[ 274 Pa. Super. Page 17]
strike the original confessed judgment. The petition was denied and this appeal ensued.
Appellants contend that a vendee in a land sale installment contract for the purchase of a residential dwelling has the right to cure a default thereunder in accordance with the provisions of Act No. 6 of January 30, 1974, P.L. 13, 41 P.S. § 101 et seq. (Supp.1979). Under Section 404(a) of Act No. 6, supra, 41 P.S. § 404(a), a default may be cured "at any time at least one hour prior to the commencement of bidding at a sheriff sale or other judicial sale on a residential mortgage obligation . . . ." Appellees, on the other hand, maintain that the instant transaction is governed by the "Installment Land Contract Law," Act of June 8, 1965, P.L. ___, No. 81, 68 P.S. § 901 et seq. (1965). Thus, the issue we must resolve is whether a vendee in land sales contract of the kind we have described should be permitted to cure a default in the same manner granted to a residential mortgagor under Act No. 6 supra. For the reasons which follow, we hold that the instant transaction falls within the purview of Act No. 6.*fn1
In essence, Act No. 6 is a comprehensive interest and usury law which, among other things, provides for a floating interest rate on "residential mortgages" and, most importantly, affords certain basic protections to "residential mortgage debtors." Accordingly, the crux of this case is whether
[ 274 Pa. Super. Page 18]
the instant transaction qualifies as a "residential mortgage" as that term is defined in Act No. 6.
Section 101 of Act No. 6 defines "residential mortgage" as:
"an obligation to pay a sum of money in an original bona fide principal amount of fifty thousand dollars ($50,000) or less, evidenced by a security document and secured by a lien upon real property located within this Commonwealth containing two or fewer residential units or in which two or fewer residential units are to be constructed and shall include such an obligation on a residential condominium unit."*fn2 41 P.S. § 101(f).
Thus, for a transaction to qualify as a "residential mortgage" four elements must coalesce: (1) an obligation to pay an original bona fide principal amount of $50,000 or less, (2) evidenced by a "security document," (3) secured by a lien upon real property in Pennsylvania, and (4) containing two or fewer residential units or on which two or fewer residential units are to be constructed. Only elements (2) and (3) are at issue in this case.
The lower court concluded that the instant transaction did not qualify as a "residential mortgage" because the appellant-vendees obligation to pay money was not evidenced by a "security document." In reaching this conclusion the court relied upon the fact that Act No. 6 defines a security document as "a mortgage, deed of trust, real estate sales contract or other document creating upon recordation a lien upon real property."*fn3 41 P.S. § 101(f). The lower court
[ 274 Pa. Super. Page 19]
held that since the parties installment land contract had not been recorded it did not qualify as a "security document." In our view, the lower court's emphasis upon the necessity of the recording of the contract, rather than whether it could have been recorded, was erroneous.
Section 601 of Act No. 6 directs the Secretary of Banking to "prescribe regulations to carry out the purposes of this act." 41 P.S. § 601. In accordance with this broad authority, the Department of Banking has promulgated several regulations designed to clarify various provisions of Act No. 6. Most importantly, the Department of Banking has ruled that the term "security document" shall include the following:
"(i) An installment land contract, land contract, or lease purchase agreement. It shall also include any similar document if it is a lease of real property where the lessee pays or agrees to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the real property involved and it is agreed that the lessee will become, or for no other (or a nominal) consideration has the option to become, the owner of the real property upon full compliance with the terms of the agreement.
(ii) Any document containing a confession of judgment which, when confessed, effects a lien upon real estate." (Emphasis added.) 10 Pa.Code § 7.2, PP. 2.11-2.12.
Accordingly, it cannot be disputed that the installment land contract here reviewed qualifies as a "security document" for the purposes of Act No. 6.
[ 274 Pa. Super. Page 20]
As to the requirement that the transaction be secured by a lien, the lower court held that "[t]he courts of this jurisdiction have long recognized the so-called lien which a vendor has before a conveyance, and which consists of his retention of title as security for the performance of the contract of the vendee. The lien created by the vendor's retention of the life estate has all the incidents of a mortgage, and is a lien upon the subject land for the unpaid purchase money. Stokely v. Trout, 3 Watts 163 (1834); New York & Cleveland Gas Co. v. Plumer, 96 Pa. 99 (1880); In Re Deardorf, 17 F.2d 294 (D.C.M.D.1927)." Lower court opinion at 22a-23a. As a general proposition, we agree with the learned trial court. However, it should also be acknowledged, as appellee points out, that "[a] person cannot own an article and at the same time have a lien upon it." Atlantic Finance Corp. v. Kester, 156 Pa. Super. 128, 136, 39 A.2d 740, 744 (1944). See also Penn Mutual Life Ins. Co. v. Finkel, 428 Pa. 11, 235 A.2d 396 (1967); Anania v. Serenta, 275 Pa. 474, 119 A. 554 (1923); Day v. Ostergard, 146 Pa. Super. 27, 21 A.2d 586 (1941). As one commentator has perceptively stated: "To call the vendor's security interest a lien seems a misnomer in view of the fact that he actually retains legal title to the property. It would be more accurate to maintain that the seller may enforce his interest in the property as a lien, rather than to insist that his interest is itself a lien." (Footnote omitted.) Comment, Forfeiture: The Anomaly of the Land Sale Contract, 41 Albany L.Rev. 71, 76-77 (1977). See also, Auten, A Review of the Pennsylvania Usury Law (Act No. 6 of 1974), 46 Pa.B.A.Q. 38 (Jan. 1975). Notwithstanding this apparent contradiction, several factors convince us that the framers of Act No. 6 did not intend the "fit" be so tight that the lien requirement be met with absolute precision.
Initially, despite an opinion*fn4 by the Attorney General to the contrary, it is obvious that the Regulations promulgated
[ 274 Pa. Super. Page 21]
by the Department of Banking support an expansive construction of the term "lien." As one practitioner*fn5 in this area of the law has cogently observed:
"[T]he inclusion of 'land contract,' a 'lease' and any 'document containing confession of judgment which, when confessed, effects a lien upon real estate' reveals the apparent interpretation of the Department of Banking that the term 'lien' in the Act was not used in the strict sense. The Regulations imply that the term 'lien' includes an estate or interest in real property and an 'inchoate lien' in a document which permits the lender to obtain an actual lien without further action by the borrower."
Secondly, it must be recognized that the term "lien" expresses a broad concept embracing a variety of security devices both legal and equitable. "The word lien is of the same origin as the word liable, and the right of lien expresses the liability of certain property for a certain legal duty, or a right to resort to it in order to enforce the duty." Wood's Appeal, 30 Pa. 274, 277 (1858). Moreover, it is well established that "[a]n express executory written contract sufficiently indicating an intention to make some particular property or fund therein identified a security for a debt or other obligation creates an equitable lien on the property so indicated which is enforceable against the property. . . ." (Citation omitted.) 22 P.L.E., Liens § 3 at 376-77. In short, a lien may be viewed as a party's right to proceed against a certain piece of property to enforce an obligation.
Under the typical installment land contract, such as in the case at bar, the vendee takes possession and makes periodic installment payments until the balance of the contract price is paid. Legal title to the property is, however, retained by the vendor until the terms of the contract are satisfied. Retention of title by the vendor serves as security for the vendee's performance of the contract. In essence,
[ 274 Pa. Super. Page 22]
then, a vendor who retains title has an interest which, although strictly speaking is not a lien, may be enforced as though it were. 92 C.J.S., Vendor & Purchaser §§ 378-380. "There can be no sensible distinction between the case of a legal title conveyed to secure the payment of a debt and a legal title retained to secure such payment." Lee, The Interests Created by the Installment Land Contract, 19 U. of Miami L.Rev. 367, 375 (1965). In other words, as the Supreme Court of Indiana so aptly stated: "Conceptually, therefore, the retention of the title by the vendor is the same as reserving a lien or mortgage. Realistically, vendorvendee should be viewed as mortgagee-mortgagor. To conceive of the relationship in different terms is to pay homage to form over substance." Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641, 646 (1973) (collecting cases from other jurisdictions). We find this analysis persuasive and reflective of the current trend in this country.*fn6 Accordingly, we adopt it and conclude that a real estate security transaction, such as the instant land installment contract, should not be denied treatment as a "residential mortgage" solely because the vendor retains legal title as security for payment of the contract price. In short, we hold that for the purposes of Act No. 6 a vendor under a land installment contract will be deemed to be "secured by a lien upon real property . . . ."
Lastly, we note, our agreement with the sentiments of the court in H & L Land Co. v. Warner, 258 So.2d at 296:
[ 274 Pa. Super. Page 23]
"With respect to rights, remedies, and safeguards, we believe that there should not be substantial differences based solely upon whether the buyer's obligation to pay the deferred portion of the sale price is evidenced and secured by an installment land sale contract or by a purchase money mortgage. In the absence of statutory direction to the contrary, we seek by our holding to afford well-established safeguards to an installment buyer and to allow an installment seller a reasonable and traditional remedy."
It is our opinion that the rights and remedies provided by Act No. 6, in particular, the cure provisions of Section 404 of the Act, 41 P.S. § 404, should not be denied to a class of Pennsylvania home purchasers solely because their obligation to pay the balance of the purchase price is evidenced and secured by a land installment contract as opposed to some other transaction also designed to create a security interest in real estate. Substance must prevail over form.
For all of the foregoing reasons, the order of the court below is reversed and the case remanded.
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Gene Francis Alan Pitney (February 17, 1940--April 5, 2006) was an American singer-songwriter, musician, and sound engineer. Through the mid-1960s, he enjoyed success as a recording artist on both sides of the Atlantic and was among the group of early 1960s American acts who continued to enjoy hits after the British Invasion. Pitney charted 16 Top-40 hits in the U.S., four in the Top 10. In the UK he had 22 Top-40 hits, and 11 singles in the Top Ten. He also wrote the early 1960s hits 'Rubber Ball' by Bobby Vee, 'He's a Rebel' by The Crystals, and 'Hello Mary Lou' by Rick Nelson. In 2002, he was inducted into the Rock and Roll Hall of Fame. Pitney was born in Hartford, Connecticut, and grew up in Rockville, now part of Vernon, Connecticut. His early influences were Clyde McPhatter, country-blues singer Moon Mullican and doo-wop groups like The Crows.
Contributions by Dreamlover50s, Don1962, and 18.104.22.168.


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Chicken and Dumpling Soup
Total Time
Prep 30 mins
Cook 1 hr
This is a favorite comfort food for our family on a cold night. Instead of chicken broth, I use water plus 3 T. Tone's Chicken Base available at Sam's Club.
Ingredients Nutrition
- 10 cups chicken broth
- 1 1⁄2 cups cooked chicken, shredded
- 1 bay leaf
- 3 whole cloves
- 1⁄4 teaspoon poultry seasoning
- 1⁄4 teaspoon pepper
- 1 can cream of chicken soup
- 1 can cream of mushroom soup
- 1 onion, chopped
- 1 potato, shredded
- 2 -3 stalks celery, chopped
- 3 -4 carrots, chopped
- 3 cups Bisquick baking mix
- 1 cup milk
- Place first 8 ingredients in a Dutch oven and simmer for 15 minutes.
- Add vegetables and simmer until vegetables are just tender (20 min.).
- Mix Bisquik and milk to make drop biscuits.
- Drop by large spoonfuls into soup which has been brought to a rolling boil.
- Cover and reduce heat to simmer for 20 minutes, or until dumplings are done.
- (Be sure to remove bay leaf and cloves.).
Most Helpful
WOW! This soup was pretty simple to prepare. I've never made dumplings before, so I was a little nervous... but at 20 minutes they looked perfect. This soup was even good the next day! I only made it because my husband has been wanting me to find a Chicken and dumpling recipe... and I served it to him and my aunt's family of five... even her 11 year old who has a list of about 8 meals he will eat (horribly picky!!!) asked for seconds. She had to have the recipe as well. A new favorite soup! Thanks for sharing!!! Kudos to the cook.
I cooked the chicken in water with the spices and just added enough broth to make 10 cups after removing chicken. That worked out well for me. My family loved it! Just enough for 2 lunches tomorrow. Thanks for posting!
This was delicious! I didn't have cream of mushroom soup so I just added another can of cream of chicken soup. I also made my dumplings from scratch. I will definitely be making this again.


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There seems to be a double agent in the Jets' locker room. Fortunately, he is loyal to Gang Green. Tight end Zach Sudfeld, whom the Jets claimed off waivers two weeks ago, began the season with New England and was even nicknamed "Baby Gronk" by some of the Patriots faithful during the preseason. Rex Ryan said Friday that the coaching staff approached the tight end about his inside knowledge.
Jets Hope Former Patriots TE Zach Sudfeld Could Give Rex Inside Info
From NYDailyNews.com
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Greg M. Cooper-USA TODAY Sports


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United States District Court, District of Columbia
May 21, 2014
CHARLES LEE GILLENWATER, II, Plaintiff,v.PRESIDENT OBAMA, Defendant.
BERYL A. HOWELL, District Judge.
This matter is before the Court on consideration of plaintiff's application to proceed in forma pauperis, his pro se complaint, and petition for an emergency writ of mandamus. The application will be granted, the complaint will be dismissed, and the petition will be denied as moot.
The plaintiff brings this action under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the President of the United States "for signing into law the unconstitutional provisions within the Affordable Care Act.'" Compl. at 4 (page numbers designated by the Court). He demands damages of $100, 000, 000.00. Id. The plaintiff's claim must fail because the President of the United States is absolutely immune from suit.
"It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities." Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998). Legislative activities include the signing by the President of the United States of a bill passed by the Congress. Edwards v. United States, 286 U.S. 482, 491(1932); see Nixon v. Fitzgerald, 457 U.S. 731, 749-757 (1982). The plaintiff therefore cannot maintain this action against the President of the United States simply because he signed the Affordable Care Act into law.[1]
For these reasons, the Court will dismiss this action with prejudice. See 28 U.S.C. §§ 1915(e)(1)(B)(iii), 1915A(b)(2). An Order is issued separately.
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" Can't Fail" Holiday Fruitcake
Total Time
Prep 30 mins
Cook 2 hrs
This is easy to make, although a bit pricey with the cost of mincemeat these days! But it's the best I ever tasted!
Ingredients Nutrition
- 2 1⁄2 cups sifted flour
- 1 teaspoon baking soda
- 2 eggs, lightly beaten
- 1 (28 ounce) jarready to use mincemeat (Borden's or Nonesuch)
- 1 (15 ounce) can sweetened condensed milk
- 1 cup walnuts, coarsley chopped
- 1 lb mixed candied fruit (2 cups)
- walnuts, for decorating
- maraschino cherry, for decorating
- Butter a 9 inch springform pan.
- Line with wax paper.
- Butter again.
- Sift flour and baking soda.
- Combine eggs, mincemeat, sweetened condensed milk, chopped walnuts and candied fruit.
- Fold in dry ingredients.
- Pour into pan.
- Bake in 300°F oven for 2 hours, until center springs back and top is golden.
- Cool thoroughly.
- Turn out and remove wax paper.
- Refrigerate, well wrapped, at least 24 hours before decorating, slicing and serving.
Most Helpful
Fantastic!! It was so easy to make and came out absolutely perfect! Just so I remember for next year - I put in dried apricots, dates, dried cranberries and dried mixed berries instead of the candied fruit. Soaked the fruit in dark rum overnight and used the brandy/rum flavored mincemeat. Delicious!!
I had forgotten that I made this fruitcake last Christmas. My story...I worked with a girl whom every year at our annual Christmas party would provide the fruitcake. It was golden, moist and filled with fruit. Each year I'd ask the same question...wanna share your recipe? Her dentures were LOCKED, I'm telling you. Well, time passed and I ran across this recipe on Zaar. BINGO! This can be made in a fluted bundt pan. I cut the cake into thick pieces and wrap in foil then slipp into a plastic bag to freeze. Joan, I'm indebted.
My mother in law makes this recipe and it actually is a pretty good fruitcake. People who don't like fruitcake should give it a try. We made it last Christmas for company, and the children liked it! The condensed milk gives it a wonderful, moist texture.


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NEHU Recruitment 2016 – Guest Faculty Posts: Department of Journalism & Mass Communication, North Eastern Hill University (NEHU), Meghalaya has published notification for the recruitment of Guest Faculty vacancies for teaching in the August – November 2016 semester. Eligible candidates may apply in prescribed application format on or before 24-08-2016. Other details like age, educational qualification, selection process & how to apply are given below….
NEHU Vacancy Details:
Total No. of Posts: 02
Name of the Post: Guest Faculty
Educational Qualification: Candidates should have Good academic record with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in the relevant subject from an Indian University, or an equivalent degree from an accredited foreign university with NET/ SLET/ SET Qualification.
Selection Process: Candidates will be selected based on interview.
How to Apply: Eligible candidates may send their applications on plain paper along with curriculum Vitae and supporting documents (certificates and marksheets etc.) to the Department of Journalism & Mass Communication, North Eastern Hill University (NEHU), Meghalaya on or before 24-08-2016.
Last Date for Receipt of Application: 24-08-2016.
For more details like experience, desirable qualification & other information click on the link given below…


text:
NO1 published recently a video where we can see their new smartwatch NO1 D6 being updated via FOTA.
This wireless update as we can see in the video don´t take too much time and also is very simple to a common user.
According to my NO1 source, the D6 will be updated soon also via WIRELESS from
Android 5.1 to Android 6.0 Marshmallow.
For those that don´t have time or simply don´t want to see all video
i prepared some screenshots where we can see the process:
If you are interested in knowing more about this device you can go here:


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Check in from 2:00 PM / Check out prior to 12:00 AM
Redondo Pier Inn: Find photos, reviews, information, amenities and compare prices for 2 stars hotels in Redondo Beach, United States.
Situated in Redondo Beach, Redondo Pier Inn is within a 20-minute drive of Los Angeles International Airport and offers a Jacuzzi. It is ideally located for those wishing to sightsee in the area.
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text:
You are here
This position is now filled
Senior Brand Manager
Bullet points
- Exciting opportuity for a Senior Brand Manager in an entrapenurial food business
- Based in a central and easily accessible location in West London
About Our Client
A market leader in it's sector, this business is part of a family owned global FMCG business with offices throughout the US, Europe and Australasia. The company has been operating in the UK since the early 2000s, however the rest of its European business is younger still and the company has significant ambition and opportunity for growth.
The office in West London operates as both UK and European head office. It's a small team, giving the Senior Brand Manager a great chance to shine at all levels of the business. The current structure is pretty fluid, offering a real opportunity to set the agenda, rather than be hindered by too much procedure. Marketing budget is sizeable and there's a willingness to invest in growth building opportunities.
Job Description
Working in a small marketing team of four based in the office in West London, this is a brilliant opportunity for a Senior Brand Manager to join an entrepreneurial food business where they can work with lots of autonomy and really make a difference.
This role is ideally best suited to a strong brand candidate from a bigger business who is looking for an opportunity to work with an environment where they can take true brand ownership and have their opinions heard. This is a key role within the business and offers a great opportunity for someone looking for more autonomy and to develop their wider marketing/general management skills.
The main element of the role is management of the brand which is still relatively new to the UK and significant opportunity exists to strengthen it both in terms of brand equity and through innovation & driving category growth.
The Successful Applicant
The successful Senior Brand Manager will have the following:
- Educated to degree level or equivalent
- A track record of FMCG brand management in the UK retail environment.
- Excellent knowledge of market data and in particular IRI/Kantar/Nielsen
- Strong windows skills
- Excellent communication skills, both in written terms and face to face
- Comfortable communicating with people at all levels of the organisation
- Excellent project manager - able to prioritise and work to budgets and timelines
- Comfortable working in a relatively fluid environment, with few strict procedures
- Resourceful - able to work on own initiative
- Excellent team player
- Ability to see the bigger picture
What's on Offer
Competitive salary + excellent benefits