invariable rule in Pennsylvania

1975Creighan v. Pittsburgh, 389 Pa. 569 , 132 A.2d 867 ; Com. ex rel.

1975Creighan v. Pittsburgh, 389 Pa. 569 , 132 A.2d 867 ; Com. ex rel.

1939See also Buckley v. Holmes et al., 259 Pa. 176 ; Philadelphia v. Commonwealth, 270 Pa. 353 ; Endlich, Interpretation of Statutes, (1888) Section 216.

1928This is, indeed, the invariable rule whenever a conflict exists between specific and general provisions appearing in the same constitution, statute or agreement: Buckley v. Holmes, 259 Pa. 176, 188 ; Phila. v. Com., 270 Pa. 353 ; McCoach v. Phila., 273 Pa. 317, 321 .

1951Co. (No. 1), 338 Pa. 249 , 12 A. 2d 554 and Cobb v. Mut.

1951Co. (No. 1), 338 Pa. 249 , 12 A. 2d 554 and Cobb v. Mut.

1949It is still the invariable rule of law that “when an employe, going about his work in the usual way, is overcome by a lesion which may-be the natural result of a pre-existing condition it- cannot bé said to have been unexpected or unforeseen, in the absence of proof it was caused by some accidental preceding • means’’: Buck v. Arndt, 153 Pa. Superior Ct. 632 , 34 A. 2d 823 . *477 In the light of these legal principles, the 6th finding, quoted above, in reality a mixed finding of fact and a conclusion of law, is insufficient to support the award in the absence of specific findings supplying a f

1949It is still the invariable rule of law that “when an employe, going about his work in the usual way, is overcome by a lesion which may-be the natural result of a pre-existing condition it- cannot bé said to have been unexpected or unforeseen, in the absence of proof it was caused by some accidental preceding • means’’: Buck v. Arndt, 153 Pa. Superior Ct. 632 , 34 A. 2d 823 . *477 In the light of these legal principles, the 6th finding, quoted above, in reality a mixed finding of fact and a conclusion of law, is insufficient to support the award in the absence of specific findings supplying a f

1939For example, in Com. v. Kline, 294 Pa. 562 , we said (p. 567) : “This is, indeed, the invariable rule whenever a conflict exists between specific and general provisions appearing in the same constitution, statute or agreement,” that the specific provision will control the construction, so far as concerns the opposing matters dealt within it.

1936There remains the question whether the failure of the appellant to return, 2 ’of the 24 dresses purchased prevents it from rescinding the contract. • In Moskowitz v. Flock and Flock, 112 Pa. Superior Ct. 518 , at page 527, 171 A. 400 , at page 403, in an opinion by Judge Parkeb, this court said: “We conceive the true rule to be that while there cannot be a partial rescission, of an entire contract, it is not an invariable rule that there can never be a rescission of a divisible contract to sell or of a sale if it is beyond the power of the buyer to return to the seller all he received from him

1936There remains the question whether the failure of the appellant to return, 2 ’of the 24 dresses purchased prevents it from rescinding the contract. • In Moskowitz v. Flock and Flock, 112 Pa. Superior Ct. 518 , at page 527, 171 A. 400 , at page 403, in an opinion by Judge Parkeb, this court said: “We conceive the true rule to be that while there cannot be a partial rescission, of an entire contract, it is not an invariable rule that there can never be a rescission of a divisible contract to sell or of a sale if it is beyond the power of the buyer to return to the seller all he received from him

1935I think it was intended to provide against the abuse of a protracted trial, to provide not only against the malice of a prosecutor, but against his negligence, against all his delays whether with cause or without cause, against every possible act, or want of action, of the prosecutor; but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself.” In Commonwealth v. Jailer of Allegheny County, 7 Watts 366 (1838), the Supreme Court held: “There is no doubt that necessity, either moral or physical, may raise an invariable exception to the letter of

1928This is, indeed, the invariable rule whenever a conflict exists between specific and general provisions appearing in the same constitution, statute or agreement: Buckley v. Holmes, 259 Pa. 176, 188 ; Phila. v. Com., 270 Pa. 353 ; McCoach v. Phila., 273 Pa. 317, 321 .

1916As stated in People v. Wilcox, 207 N. Y. 86 , “It is the settled policy of the state, arising through an extended and instructive experience, to withdraw an unrestricted right of competition between corporations occupying, through special consents or franchises, the public streets and places, and supplying the public with their products or utilities which are well-nigh necessities.” If the power to regulate does not include the power to prevent unrestricted competition, then much of the beneficial effect of the Public Service Act is lost.

1908In Pepper v. Philadelphia, 114 Pa. 96 , a principle was enunciated which would entitle the defendant to go to the jury, unless he is precluded by the act of 1843 to which we shall refer later.

1907Our Pennsylvania cases are those under contract, but, as stated in Sedgwick on Damages sec. 175: “ The early cases, in both the English and American courts, generally concurred-m denying profits as any part of the damages to be coihpensated, and that, whether in cases of contract or of tort.” This rule has been followed very closely in Pennsylvania: Fleming v. Beck, 48 Pa. 309 ; Rogers v. Bemus, 69 Pa. 432 ; McConaghy v. Pemberton, 168 Pa. 121 , in which in the report of the master at page 132 the whole question is carefully considered : Duffield v. Rosenzweig, 144 Pa. 520 .

1907Our Pennsylvania cases are those under contract, but, as stated in Sedgwick on Damages sec. 175: “ The early cases, in both the English and American courts, generally concurred-m denying profits as any part of the damages to be coihpensated, and that, whether in cases of contract or of tort.” This rule has been followed very closely in Pennsylvania: Fleming v. Beck, 48 Pa. 309 ; Rogers v. Bemus, 69 Pa. 432 ; McConaghy v. Pemberton, 168 Pa. 121 , in which in the report of the master at page 132 the whole question is carefully considered : Duffield v. Rosenzweig, 144 Pa. 520 .

1907Our Pennsylvania cases are those under contract, but, as stated in Sedgwick on Damages sec. 175: “ The early cases, in both the English and American courts, generally concurred-m denying profits as any part of the damages to be coihpensated, and that, whether in cases of contract or of tort.” This rule has been followed very closely in Pennsylvania: Fleming v. Beck, 48 Pa. 309 ; Rogers v. Bemus, 69 Pa. 432 ; McConaghy v. Pemberton, 168 Pa. 121 , in which in the report of the master at page 132 the whole question is carefully considered : Duffield v. Rosenzweig, 144 Pa. 520 .

1907Our Pennsylvania cases are those under contract, but, as stated in Sedgwick on Damages sec. 175: “ The early cases, in both the English and American courts, generally concurred-m denying profits as any part of the damages to be coihpensated, and that, whether in cases of contract or of tort.” This rule has been followed very closely in Pennsylvania: Fleming v. Beck, 48 Pa. 309 ; Rogers v. Bemus, 69 Pa. 432 ; McConaghy v. Pemberton, 168 Pa. 121 , in which in the report of the master at page 132 the whole question is carefully considered : Duffield v. Rosenzweig, 144 Pa. 520 .

1900But a careful examination of the Pennsylvania cases cited in support of the proposition (Fasholt v. Reed, 16 S. & R. 266; McCormick v. Crall, 6 W. 207 ; Kester v. Rockel, 2 W. & S. 365 ) fails to show that this is an invariable rule; whilst the cases bearing directly upon the question as it is raised on this appeal show conclusively, that it does not apply where by the express terms of the contract the vendor is to have the rents, issues and profits up to a certain date and the vendee is given the right of immediate possession after said date, and instalments of the purchase money are made pay

1899In Osborne v. The Bank, 154 Pa. 134 , it is held that where the action is for the recovery of a penalty, no affidavit of defense is required.

1896In passing on such questions as these, the invariable rule is that all unequivocal traverses or denials of material allegations, in support of the claim, and all material allegations of fact contained in affidavits of defense must be accepted as verity* Knerr v. Bradley, 105 Pa. 190 .