personal privilege in Pennsylvania

1939The right of the widow, for herself and on behalf of the family, is a personal privilege and as such may be waived by neglecting to demand an appraisement: Davis’ Appeal, 34 Pa. 256 , and it has been held that “if such surviving widow waives the privilege of the act, it is lost to the family:” Henkel’s Estate, 13 Pa. Superior Ct. 337 .

1907Ve have also held that the right of a widow to retain real or personal property of her deceased husband’s estate to the value of $300 is a personal privilege, which she may waive: Davis’s Appeal, 34 Pa. 256 .

1990As stated in Kaufmann v. Pittsburgh, 248 Pa. 41 , 93 Atl. 779 (1915), “The right to such damages is personal, belonging to the owners of the land when the entry and injury takes place, and the damages do not run with the land nor pass by a subsequent conveyance of it although not specifically reserved.” Again, in Breigel v. Breigel, 307 Pa. 93 , 160 Atl. 581 (1932), the court held “The right to an award of damages in eminent domain proceedings is a personal claim of the person owning the property at the time the appropriation takes place ...

1990As stated in Kaufmann v. Pittsburgh, 248 Pa. 41 , 93 Atl. 779 (1915), “The right to such damages is personal, belonging to the owners of the land when the entry and injury takes place, and the damages do not run with the land nor pass by a subsequent conveyance of it although not specifically reserved.” Again, in Breigel v. Breigel, 307 Pa. 93 , 160 Atl. 581 (1932), the court held “The right to an award of damages in eminent domain proceedings is a personal claim of the person owning the property at the time the appropriation takes place ...

1973They do not run with the land; nor do they pass by deed, even though not specifically reserved, unless it is expressly so provided: McFadden v. Johnson, 72 Pa. 335 , 13 Atl. 681 (1872); Nittany Valley Railroad Co. v. Empire Steel & Iron Co., 218 Pa. 224 , 67 Atl. 349 (1907); Wagner v. Purity Water Co., 241 Pa. 328 , 88 Atl. 484 (1913); Stoops v. Kittanning Telephone Co., 242 Pa. 556 , 89 Atl. 686 (1914); Kaufmann v. Pittsburgh, 248 Pa. 41 , 93 Atl. 779 (1915); Carlisle Borough v. Fladger, 157 Pa. Superior Ct. 206 , 42 A. 2d 187 (1945).

1897The right to the damages for such appropriation is a personal claim belonging to the owner of the land when the entry and injury takes place, and does not run with the land: McFadden v. Johnson, 72 Pa. 335 .

1970This prerequisite is not in the nature of a personal privilege or safe-guard which the respondent may waive, or the court, in its discretion, dispense with.’ “ ‘Residence’ within the meaning of the statute means a ‘permanent one with domiciliary intent.’ Gearing v. Gearing, 83 Pa. Superior Ct. 423 ; Huston v. Huston, 130 Pa. Superior Ct. 501 , 197 A. 774 .

1970This prerequisite is not in the nature of a personal privilege or safe-guard which the respondent may waive, or the court, in its discretion, dispense with.’ “ ‘Residence’ within the meaning of the statute means a ‘permanent one with domiciliary intent.’ Gearing v. Gearing, 83 Pa. Superior Ct. 423 ; Huston v. Huston, 130 Pa. Superior Ct. 501 , 197 A. 774 .

1970This prerequisite is not in the nature of a personal privilege or safe-guard which the respondent may waive, or the court, in its discretion, dispense with.’ “ ‘Residence’ within the meaning of the statute means a ‘permanent one with domiciliary intent.’ Gearing v. Gearing, 83 Pa. Superior Ct. 423 ; Huston v. Huston, 130 Pa. Superior Ct. 501 , 197 A. 774 .

1954This prerequisite is not in the nature of a personal privilege or safe-guard which the respondent may waive, or the court, in its discretion, dispense with.’ ” “ ‘Residence’ within the meaning of the statute means a ‘permanent one with domiciliary intent.’ Gearing v. Gearing, 83 Pa. Superior Ct. 423 ; Huston v. Huston, 130 Pa. Superior Ct. 501 , 197 A. 774 .” The unity of person created by marriage is a legal fiction to be followed for all useful and just purposes, but not to be pursued in a proceeding by nature making husband and wife opposite parties to the extent of the destruction of the r

1964The basis for this rule is set forth in Koontz v. Messer, 320 Pa. 487, 493 , 181 A. 792 : ". . . the personal immunity which protects [the husband] is based simply upon the policy of preserving domestic peace and felicity." In Koontz v. Messer, supra, a wife instituted a trespass action against the employers of her husband for injuries alleged to have been sustained by her through the negligence of her husband while in the course of *529 his employment; upon the theory that the husband-employee was liable over to his employers, the husband was brought upon the record as an additional defendant

1964The basis for this rule is set forth in Koontz v. Messer, 320 Pa. 487, 493 , 181 A. 792 : ". . . the personal immunity which protects [the husband] is based simply upon the policy of preserving domestic peace and felicity." In Koontz v. Messer, supra, a wife instituted a trespass action against the employers of her husband for injuries alleged to have been sustained by her through the negligence of her husband while in the course of *529 his employment; upon the theory that the husband-employee was liable over to his employers, the husband was brought upon the record as an additional defendant

1944As Justice Stearns concedes in his dissent, in Pennsylvania “there exists no legal requirements for obligatory shares to the surviving spouse.” As the majority opinion points out, a widow’s “right” to take against her husband’s will is merely “a personal privilege.” It is “not an asset” of the wife’s estate “or a right which” she “can be compelled to éxercise.” Fleming’s Estate, 217 Pa. 610, 615 , 66 A. 874 .

1944As Justice Stearns concedes in his dissent, in Pennsylvania “there exists no legal requirements for obligatory shares to the surviving spouse.” As the majority opinion points out, a widow’s “right” to take against her husband’s will is merely “a personal privilege.” It is “not an asset” of the wife’s estate “or a right which” she “can be compelled to éxercise.” Fleming’s Estate, 217 Pa. 610, 615 , 66 A. 874 .

2020“Even more fundamental to a personal defense than the right of self-representation . . . is an accused’s right to present his own version of events in his own words.” Id. -9- J-S64010-19 information that could have been utilized to impeach G.B., namely that: (1) G.B. had continued to attend some family functions after the assaults took place; and (2) G.B. visited Appellant’s home during his teenaged years.

1992“Even more fundamental to a personal defense than the right of self-representation ... is an accused’s right to present his own version of events in his own words.” Id.

1981Thus in Leonardziak, supra, 210 Pa. Superior Ct. 512 , 233 A. 2d 607 , the Pennsylvania Superior Court stated: “While it is true, ‘[a]s between the Commonwealth and the licensee . . . the license is simply a personal privilege subject to termination for cause or uppn the death of the licensee;’ Feitz Estate, 402 Pa. 437, 444 , [ 167 A. 2d, 504, 507 ] (1961), the statute insures that the holder of the license \ . . may pass on the right to apply for a transfer of the license ... a clear recognition that the right to apply for a transfer of the license is a property right’ id., at 445 , [ 167 A.

1981Thus in Leonardziak, supra, 210 Pa. Superior Ct. 512 , 233 A. 2d 607 , the Pennsylvania Superior Court stated: “While it is true, ‘[a]s between the Commonwealth and the licensee . . . the license is simply a personal privilege subject to termination for cause or uppn the death of the licensee;’ Feitz Estate, 402 Pa. 437, 444 , [ 167 A. 2d, 504, 507 ] (1961), the statute insures that the holder of the license \ . . may pass on the right to apply for a transfer of the license ... a clear recognition that the right to apply for a transfer of the license is a property right’ id., at 445 , [ 167 A.

1981Thus in Leonardziak, supra, 210 Pa. Superior Ct. 512 , 233 A. 2d 607 , the Pennsylvania Superior Court stated: “While it is true, ‘[a]s between the Commonwealth and the licensee . . . the license is simply a personal privilege subject to termination for cause or uppn the death of the licensee;’ Feitz Estate, 402 Pa. 437, 444 , [ 167 A. 2d, 504, 507 ] (1961), the statute insures that the holder of the license \ . . may pass on the right to apply for a transfer of the license ... a clear recognition that the right to apply for a transfer of the license is a property right’ id., at 445 , [ 167 A.

1981Thus in Leonardziak, supra, 210 Pa. Superior Ct. 512 , 233 A. 2d 607 , the Pennsylvania Superior Court stated: “While it is true, ‘[a]s between the Commonwealth and the licensee . . . the license is simply a personal privilege subject to termination for cause or uppn the death of the licensee;’ Feitz Estate, 402 Pa. 437, 444 , [ 167 A. 2d, 504, 507 ] (1961), the statute insures that the holder of the license \ . . may pass on the right to apply for a transfer of the license ... a clear recognition that the right to apply for a transfer of the license is a property right’ id., at 445 , [ 167 A.

1973They do not run with the land; nor do they pass by deed, even though not specifically reserved, unless it is expressly so provided: McFadden v. Johnson, 72 Pa. 335 , 13 Atl. 681 (1872); Nittany Valley Railroad Co. v. Empire Steel & Iron Co., 218 Pa. 224 , 67 Atl. 349 (1907); Wagner v. Purity Water Co., 241 Pa. 328 , 88 Atl. 484 (1913); Stoops v. Kittanning Telephone Co., 242 Pa. 556 , 89 Atl. 686 (1914); Kaufmann v. Pittsburgh, 248 Pa. 41 , 93 Atl. 779 (1915); Carlisle Borough v. Fladger, 157 Pa. Superior Ct. 206 , 42 A. 2d 187 (1945).

1919In Wagner v. Purity Water Co., 241 Pa. 328 , Elkin, J., said (333) : “It is further urged that the appropriation of the water of the stream about which complaint is here made was of a permanent nature; this permanent taking occurred before plaintiff acquired title to the mill property which it is alleged was injured by diverting the water from its natural channels; and that any damages resulting therefrom were a personal claim of the owner when the injury occurred and do not run with the land nor pass by deed unless it is expressly so provided.

1973They do not run with the land; nor do they pass by deed, even though not specifically reserved, unless it is expressly so provided: McFadden v. Johnson, 72 Pa. 335 , 13 Atl. 681 (1872); Nittany Valley Railroad Co. v. Empire Steel & Iron Co., 218 Pa. 224 , 67 Atl. 349 (1907); Wagner v. Purity Water Co., 241 Pa. 328 , 88 Atl. 484 (1913); Stoops v. Kittanning Telephone Co., 242 Pa. 556 , 89 Atl. 686 (1914); Kaufmann v. Pittsburgh, 248 Pa. 41 , 93 Atl. 779 (1915); Carlisle Borough v. Fladger, 157 Pa. Superior Ct. 206 , 42 A. 2d 187 (1945).

1949Others are authority for the proposition that damages are a personal claim of the owner of the property at the time the injury occurs, and do not run with the land or pass by deed thereof although not specially reserved: Losch Appeal, 109 Pa. 72 ; Carlisle Borough v. Fladger, 157 Pa. Superior Ct. 206 .

1970In Starr v. Starr, 78 Pa. Superior Ct. 579 , in a per curiam opinion, this court stated:’ “Domicile” is a matter of intention; “residence” is a physical fact, and the term “bona fide residence” means residence with domiciliary intent, i.e., a home in which the party actually lives.’ The general meaning and significance of domicile has been thoroughly considered and reviewed in Pennsylvania decisions.

1924Actual residence for one year within this State is an absolute prerequisite for a divorce and unless the libellant shall have resided in Pennsylvania at least one whole year previous to filing the libel, no State court has jurisdiction of the libel: Starr v. Starr, 78 Pa. Superior Ct. 579 .

1958(Emphasis supplied); Kaczorowski v. Kalkosinski, Admr., 321 Pa. 438, 443 , 184 A. 663 .

1958(Emphasis supplied); Kaczorowski v. Kalkosinski, Admr., 321 Pa. 438, 443 , 184 A. 663 .

1949Others are authority for the proposition that damages are a personal claim of the owner of the property at the time the injury occurs, and do not run with the land or pass by deed thereof although not specially reserved: Losch Appeal, 109 Pa. 72 ; Carlisle Borough v. Fladger, 157 Pa. Superior Ct. 206 .

1931The right to an award for damages in eminent domain proceedings is a personal claim of the person owning the property at the time the appropria *100 tion takes place: Losch’s App., 109 Pa. 72 ; Kaufmann v. Pittsburgh, 248 Pa. 41 ; Safe Deposit and Title Guaranty Co. v. Linton, 256 Pa. 274 ; Sloan v. Hoyt, 40 Pa. Superior Ct. 181 .

1943It is argued that the exemption of wages from attachment was not intended merely to confer a personal privilege upon laborers but was enacted for the protection of their employers as well (Little v. Balliette, 9 Pa. Superior Ct. 411, 413 ).

1906For this reason, as well as upon grounds of public policy, it was held that, the laborer could not waive its provisions, and thereby subje'ct his employer to the liability to the expense and annoyance of attachments: ” Little v. Balliette, 9 Pa. Superior Ct. 411 .

1937The opinion, in commenting on the effect of the Act of 1772, supra, states at p. 335: “It is true certain personal defenses must be affirmatively set up and established, otherwise they are treated as waived; so, a failure to expressly aver the fact that the suit is barred by the statute of limitations prevents objection on this ground (Barclay v. Barclay, 206 Pa. 307; Murphy v. Taylor, 63 Pa. Superior Ct. 85 ), and a like ruling has been made where the attempt was to take advantage of the statute of frauds, enacted March 21,1772, —a copy of the English statute of 29 Car.

1930It is not a defense absolute of which the court will take judicial notice: Barclay v. Barclay, 206 Pa. 307 (1903).

1922Her legal exemption from liability was a personal privilege, of which she might or might not choose to avail herself: Leonard v. Duffin, 94 Pa. 218 ; Rathfon v. Locher, 215 Pa. 571 .” Under these decisions, there seems to be no room for doubting that the essentials of a contract of novation are sufficiently set forth in the plaintiff’s statement, and that the defendant’s application for judgment must be refused.

1912Leonard v. Duffin, 94 Pa. 218 , Rathfon v. Locher, 215 Pa. 571 .

1922Her legal exemption from liability was a personal privilege, of which she might or might not choose to avail herself: Leonard v. Duffin, 94 Pa. 218 ; Rathfon v. Locher, 215 Pa. 571 .” Under these decisions, there seems to be no room for doubting that the essentials of a contract of novation are sufficiently set forth in the plaintiff’s statement, and that the defendant’s application for judgment must be refused.

1912Leonard v. Duffin, 94 Pa. 218 , Rathfon v. Locher, 215 Pa. 571 .

1907Notwithstanding regrets expressed in Firmstone v. Mack, 49 Pa. 387 , that the court had not held differently at the beginning, nothing was better settled in Pennsylvania than that the right of a debtor to claim the benefit of the exemption law of 1849, was a personal privilege which could be waived.

1899For this reason, as well as upon grounds of public policy, it was held that the laborer could not waive its provisions, and thereby subject his employer to the liability to the expense and annoyance of attachments. “ It is to be observed,” said Chief Justice Woodwabjd, “that the garnishee has rights in the premises, and he is under the act of assembly, but is not a party to the agreement which the laborer makes with his creditor: ” Firmstone v. Mack, 49 Pa. 387 .

2022Hohlstein, 296 A.2d at 889 ; see Fennell v. Guffey, 25 A. 785, 785 (Pa. 1893).5 There are three grounds available to challenge venue: (1) improper venue, (2) forum non conveniens, and (3) inability to hold a fair and impartial trial.