Opinion
March 2, 1942.
April 15, 1942.
Principal and surety — Liquor laws — Bond — Form — Affidavit of defense — Averments — Individual sureties — Acts of July 18, 1935, P.L. 1217, May 3, 1933, P.L. 252, and December 20, 1933, P.L. Sp. Sess. 1933-34, p. 75.
1. An order of the court below striking off a judgment, as against the petitioning sureties, entered on a paper purporting to be a bond signed by defendant A, as principal, and defendants B and C, as individual sureties, was affirmed on appeal, where it appeared that the bond, apparently, was intended as a compliance with the requirement of the Beverage License Law of July 18, 1935, P.L. 1217, amending the Act of May 3, 1933, P.L. 252, as amended by the Act of December 20, 1933, P.L. Sp. Sess. 1933-34, p. 75, but (1) it was in the form prescribed by the Act of May 3, 1933, rather than the Act of 1935, (2) it was not dated, and (3) the location of the particular place covered by the license and bond was left entirely blank; and where it further appeared that the affidavit of default averred violations by the licensee relating to the possession of alcoholic liquor, as distinguished from its manufacture, sale or transportation, and that the affidavit did not aver when the alleged violations had taken place or that any of them had occurred before the date of expiration of the license.
2. In such case, the liability of the individual sureties could not be extended beyond the terms of the bond they signed.
Appeal, No. 15, Feb. T., 1942, from decree of C.P. Lackawanna Co., Nov. T., 1938, No. 75, in case of Commonwealth v. Mrs. Mary Przekop et al.
Before KELLER, P.J., BALDRIGE, STADTFELD, RHODES, HIRT and KENWORTHEY, JJ. Appeal dismissed.
Petition and rule obtained by individual sureties to revoke order of board forfeiting license bond and to strike from record judgment on bond.
The facts are stated in the opinion of the Superior Court.
Rule made absolute, opinion by LEACH, P.J. Commonwealth appealed.
Error assigned was the order of the court below.
Horace A. Segelbaum, Deputy Attorney General, with him Peter J. Jurchak, Special Deputy Attorney General, and Claude T. Reno, Attorney General, for appellant.
Morris A. Glazier, with him E.F. McGovern, for appellees.
Argued March 2, 1942.
The Commonwealth has appealed from an order of the court below striking off a judgment entered September 16, 1938 on a paper purporting to be a bond signed by Mary Przekop, as principal, and William Kuchinski and Amelia Deresczuk, as sureties.
The bond, apparently, was intended as a compliance with the requirement of the Beverage License Law (Act of July 18, 1935, P.L. 1217, amending Act of May 3, 1933, P.L. 252, as amended by Act of December 20, 1933, P.L. Sp. Sess. 1933-34, p. 75), but (1) it was in the form prescribed by the Act of May 3, 1933, supra, rather than the Act of July 18, 1935, supra, and (2) it was not dated, and (3) the location of the particular place — see sections 11(b), 12(a) and 18 — covered by the license and bond, was left entirely blank. It merely stated in the recital clause that the above-bounden principal desired to "obtain a Retail Dispensers License for the year ending May 31, 1937 at ______ in the County of Lackawanna, under the provisions of the Act of Assembly of May 3, 1933 and Acts amendatory thereof, known as the Beverage License Law."
The statute requires that each application shall set forth the particular place for which the license is desired; and that a separate license must be secured for each place where malt or brewed beverages are sold; and a separate bond given for each licensed place.
The affidavit of default accompanying the praecipe for judgment averred violations by the licensee of certain provisions relating to the possession of alcoholic liquor — as distinguished from its manufacture, sale or transportation — prescribed in the form of bond required by the Act of 1935, supra, which were not included in the form prescribed by the Acts of 1933, supra, nor contained in the bond used here. See Nicholas Liquor License Case, 131 Pa. Super. 330, 200 A. 313. But the affidavit of default, which was sworn to on May 11, 1938 and averred that because of said violations the principal's license had been revoked on October 15, 1937, did not aver when said alleged violations had taken place, or that any of them had occurred before May 31, 1937, the date of the expiration of the license, and, in consequence, the period of limitation of the acts of the licensee, contrary to the laws regulating the manufacture, sale or transportation of liquor, for which the sureties had made themselves liable.
These were individual sureties, who are favorites in the law, and are to be distinguished from corporate sureties, organized to go on such bonds for profit, which are, in all essential particulars, insurance companies: Young v. American Bonding Co., 228 Pa. 373, 380, 77 A. 623. While the principal might be chargeable, as if the bond had been written in the terms prescribed by the Act of July 18, 1935, the liability of these sureties could not be extended beyond the terms of the bond they signed: Crawley v. Com., 123 Pa. 275, 282, 16 A. 416; Nicholas' Liquor License Case, supra; Com. v. Cohen, 140 Pa. Super. 361, 14 A.2d 362; Penelope Club Liquor License Case, 136 Pa. Super. 505, 509, 7 A.2d 558.
We agree with the learned court below that the paper signed by these sureties was too defective to warrant confession of judgment against them. If an incompetent clerk was employed by the county treasurer, who did not know the form of bond to be used, or how to fill up the blank form, the fault cannot be laid at the door of these sureties, one of whom could not even write her name. Furthermore the affidavit of default failed to aver sufficient essential facts to warrant a confession of judgment upon the bond, even if the form prescribed by the Act of 1935 had been used.
Being defective on its face, the court committed no error in striking off the judgment as against the petitioning sureties.
Appeal dismissed.