Supplemental Brief — Pursley v. Roberts

Supreme Court, U.S.

(9) FILED

NOV 17 2000

No. 00 - 687

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JOHN ARDELL PURSLEY, Petitioner

v.

P. CALVIN ROBERTS, RUTH LAUBMIER,

ROSALIE REGINA WILSON,

ANNA ELEANOR LONG, DONALD MILTON KELIUS,

FRANKLIN DAVID KELIUS AND RAY KELIUS,

Respondents

CONSTANCE KEHOE, EXECUTRIX FOR THE

ESTATE OF DOROTHY F. MESSERLY, Respondent

GEORGE W. PEDLOW III, Respondent

RESPONSE SUPPORTING THE PETITION

of John Ardell Pursley

For A Writ of Certiorari To

The Supreme Court of Pennsylvania

George W. Pedlow III, Pro Se, Respondent

224 Outer Dr.

State College, PA 16801

814-466-7454

November 17, 2000

lle?

i

TABLE OF CONTENTS

TABLES of CONTENTS and AUTHORITIES ....... pp.i-v

RESPONSE SUPPORTING THE PETITION

of John Ardell Pursley ............0.....c.cccssssesoseseseeee-... pp. 1-2

aes as ON Pr TN Cy ae Ee pp. Al - A8

APPENDIX: Cases Noted

Chevron Oil Co. v. Huson (404 U.S. 97;

92 S. Ct. 349; 1971 U.S. LEXIS 95;

eis ee ice Al

Gwendolyn Jenkins, Appellee v. Hospital

of The Medical College of Pennsylvania and

Dr. Carol Grabowski and Dr. Dorothy M. Barbo,

Appellants (535 Pa. 252; 634 A.2d 1099;

ROO EM, LAU BOR; TGR) nia ssnesnseseeeeesss..... A2

Philadelphia, Baltimore & Washington R.R.

to use v. Quaker City Flour Mills Co.,

Appellant (282 Pa. 362; 127 A. 845;

re es ROS A5

Burtt’s Estate (353 Pa. 217; 44 A.2d 670;

PAE OE MO icici g ce A6

Menges v. Dentler (33 Pa. 495; 1859) ............................ A8

TABLE of AUTHORITIES

(In both text and appendix quotations)

UNITED STATES CONSTITUTION

Fifth, Fourteenth Amendments,

Contract Clause, Art. I, Sec. 10 ........ccccccccccscocecescccoseseeeeeene, 2-

ii

UNITED STATES SUPREME COURT CASES

Allen v. State Board of Elections,

DOB UB. BiG snnesiidnnnsvinsincs cen eee ee Al

Barasch v. Pennsylvania Public Utility

Commission, 516 Pa. 142, 167,

532 A.2d 325, 337, aff’d., 488 U.S. 299,

109 S. Ct. 609, 102 L. Ed. 2d 646 (1989) ........... 1, A2

Cameron ¥v. U2... Baek ti ae eee tadiiaiienssentesdennecdsiaenens A5

Chevron Oil Co. v. Huson (404 U.S. 97;

92 S. Ct. 349; 1971 U.S. LEXIS 95;

DO Ts, Tk. Bik SE Ce a state sires cs eeniesenes 1,Al

Chicot County Drainage Dist. v.

Baxter State Baek, Diee Side be Wcrciscsicccietseniniesrncisncenss Al

Cipriano v. City of Houma, 395 U.S. 701...................:0e Al

England v. State Board of Medical Examiners,

S75 UB. GAB. nnnciccesiceissseteaemia dialed Al

Ettor v. Tacoma, 228 U.S. 148, 33 S.Ct. 428,

G7 LB. TTS (BRED ccivisnscccccccussovcieniccnsanaie niin A4

Forbes Pioneer Boat Line v. Board of Comm’rs,

258 U.S. 338, 42 S.Ct. 325,

66 L.Ed. GAT (1 G2E) CHR, ED osecsscnccencccscsssisosendensnessces A4

Hanover Shoe v. United Shoe Machinery Corp.,

SOB US. 4B1 .......rscssisiscseiiiciapiilcsaiiiaasiil il iatiissikasinaneasoneiinin Al

Linkletter v. Walker, 381 U.S. 618 .0............cccccccseseeeeeeeees Al

Lynch v. United States, 292 U.S. 571,

54 S.Ct. 840, 78 L.Ed. 1434 (1934) .

(Bramdlets, bi.) ecccccnceniiscnicsinateeecniateteaesadeasiedibededaaadd A4

—

Marbury v. Madison, 5 U.S. (1 Cranch) 87,

102, 2 L.Ed. 60 (1803) (Marshall, J.) ................cccccsessoeees A4

Schwab v. Doyle, 258 U.S. 529 ............ccscccccsssscccscsssseoccees A5

Simpson v. Union Oil Co., 377 U.S. 13 .00............ecseeseeeees Al

U.P.R.R. Co. v. Laramie Stock Yards Co.,

BERTI RT oth a el ar Sentence: nN Cae CaN A5

U.S. Fidelity & Guaranty Co. v.

Struthers Wells Co., 209 U.S. 306 ...............cccccsccssssseeeees A5

rs i Ba Oe I TI ico cccctsectionanecounsondicsesusasonnoce A6

United States Trust Co. v. New Jersey,

431 USS. 1, 26-7, 97 S.Ct. 1505, 1520,

Sn sce sa scsctnctibcinnenetnepemmnentnens A4

W. B. Worthen Co. ex rel. Bd. of Comm’rs v.

Kavanaugh, 295 U.S. 56, 55 S.Ct. 555,

79 L.Ed. 1298 (1935) (Cardozo, J.) ...............ccccccessesseeeeees A4

PENNSYLVANIA COURT CASES

Automobile Trade Association Of Greater

Philadelphia, et al., Appellants, v.

City Of Philadelphia, et al., Appellees,

528 Pa. 233; 596 A.2d 794;

ae ls I I on ccrcnctnssncsctnquoncoosnnsncctoenavecaosacs 1

Barasch v. Pennsylvania Public Utility

Commission, 516 Pa. 142, 167,

532 A.2d 325, 337, aff’d.,

488 U.S. 299, 109 S. Ct. 609,

ee ke Be ee CD cicedhaaeesecsacnicncdicccdbagecssccccsecccses 1, A2

|

iv

Barnes Foundation v. Keely et al.,

iS Me Es FE PORIRRER ee ener A6

Brubaker’s Est., 59 Pa. Superior Ct. 109 ....................00 A6

Buhl’s Estate, 300 Pa. 29, 150 A. 86 .......cc ce cccceeeeeceeeeees A6 .

Burtt’s Estate, 353 Pa. 217; 44 A.2d 670;

PE Aa as IE CE ease th dit erackceiisbascinisivsniigiaininsiindatiens A6

Chester School District’s Audit, 301 Pa. 203,

BE Ba; CP pacsitesnersseni lestecedindietininaeatisaicicdipiepaiciecne ita A6

Commonwealth v. National Oil Co., Ltd., 157 Pa. 516,

27 A. 374, 1893 Pa. LEXIS 1445 (1893)... A7

Commonwealth v. Wucherer , 351 Pa. 305,

BE BRB Oe wisacktibniskchthsinunecsttinnssstiniciadladibeanalcaiisdenssal A7

Consumer Party v. Commonwealth of Pennsylvania,

510 Pa. 158, 507 A.2d 323 (1986) ............cccccccscsssessssesenses A2

Davis v. Pennsylvania Co., etc ., 337 Pa. 456,

SSA. Be Ge ciaene iasceecichenpnhsiiahladilinniabaiesiiaacoilisaiadiiee A7

Gibson v. Commonwealth, 490 Pa. 156,

BE i Ce tasetacdnnntinhcriinatantnhtiaetindncibanintakinn A3, A4, A8

Gwendolyn Jenkins, Appellee v. Hospital

of The Medical College of Pennsylvania and

Dr. Carol Grabowski and Dr. Dorothy M. Barbo,

Appellants, (535 Pa. 252; 634 A.2d 1099;

FS FO, Ee Se CRD accgehnntveritceanssniconphinnasnteneranins 1, A2

Heisler v. Thomas Colliery Co., 274 Pa. 448,

I i Fa iinieschesibinin sein cepacia iektiesuniaaaiiniat A7

Horn & Brannen Mfg. Co. v. Steelman,

GND Rs TUE situa ntashaiceniscucnstbbindicas taataliaanial aa teaies ima ae A6

eS

Vv

Kilpatrick v. Commonwealth, 31 Pa. 198 .............c.cc00 A7

Lerch’s Estate, 309 Pa. 23, 159 A. 868 ............ccccccsseeeeees A6

Lower Nazareth Twp. App., 341 Pa. 171,

BRIA: OG Di issiesssnininssteisinipeinisbuaalianibiie Mihir Marian ae A7

Menges v. Dentler, 33 Pa. 495 (1859)................c000c00 A4, A8&

Monongahela St. Ry. v. Phila. Co. et al Pm

SBD Pn; GOR; BP A Be OO iiss Sein A7

DONGE A BO PO Oe ii waiciindntttnl A6

Philadelphia, Baltimore & Washington R.R.

to use v. Quaker City Flour Mills Co.,

Appellant 282 Pa. 362; 127 A. 845;

RODS Fe, Tee SOO CIOS) iscviscccicccecccccensccnicdscdessccseeiccsics A5

Salvation Army Case, 349 Pa. 105,

Ee aah isaac ites es oe ae en A6

Shrider v. Nargan, 1 Dall. 68 (1782)... cece 1, A5

Smith v. Fenner, 399 Pa. 633

TARE Re piesa es ile Bs os A3

Smith v. Glen Alden Coal Co. et al.,

347 Pa. 290, 32 A.2d 2927 ..................... sacplunisiestaioc al. A7

Taylor v. Mitchell, 57 Pa. 209 ...............sssssssosssssssssseseeeees A5

STATUTES

21 PS. 444, Recording Act of 1775 .............ccccccccccsdesessccecees 2

Note: Other mentions of statute are purely incidental

within quotations given in the Appendix herein. 4

THIS PAGE INTENTIONALLY LEFT BLANK

1

RESPONSE SUPPORTING THE PETITION

of John Ardell Pursley

Respondent George W. Pedlow III, member of the

Pursley interests, submits this RESPONSE SUPPORTING

THE PETITION of John Ardell Pursley, under Rule 12.6.

Although this case arose as disputed competing claims

to rights in property, the United States Supreme Court is

here asked to determine the Constitutional limits upon state

court power to disregard law upon which one claim rests,

while simultaneously creating new rights, as retrospectively

applied subsequent rules of law, to perfect the other claim,

itself insupportable under prior law. Pursley’s Petition cites

the doctrine of stare decisis (p. 11), and retrospective appli-

cation of new rules of property, several places.

The decisional history of the instant case with regard

to property rights does not comport with prior Pennsylva-

nia appellate holdings on the issue of retrospective changes

in law adversely impacting upon rights vested under prior

law, nor with the Pennsylvania Supreme Court’s current,

and earlier, reliance upon relevant United States Supreme

Court holdings. In Automobile Trade Association Of Greater

Philadelphia, et al., Appellants, v. City Of Philadelphia, et

al., Appellees (528 Pa. 233; 596 A.2d 794; 1991 Pa. LEXIS

169; 1991), the Pennsylvania Supreme Court subscribes to

the three factor test used by the United States Supreme

Court in Chevron Oil Co. v. Huson (404 U.S. 97; 92 S. Ct.

349; 1971 U.S. LEXIS 95; 30 L. Ed. 2d 296; 1971), for deter-

mination if a new principle of law may be applied only pro-

spectively, and nonretrospectively. [Appendix herein, p. Al]

See also Gwendolyn Jenkins, Appellee v. Hospital of The

Medical College of Pennsylvania and Dr. Carol Grabowski

and Dr. Dorothy M. Barbo, Appellants, (535 Pa. 252; 634

A.2d 1099; 1993 Pa. LEXIS 292; 1993), citing Barasch v.

Pennsylvania Public Utility Commission, 516 Pa, 142, 167,

532 A.2d 325, 337, aff'd., 488 U.S. 299, 109 S. Ct. 609, 102

L. Ed. 2d 646 (1989). [Appendix herein, p. A2]

This case is the first instance in 218 years [Shrider v.

Nargan, 1 Dall. 68, 1782 to present - see Appendix herein p.

2

A5] whereby the Pennsylvania Courts have abrogated title

derived from an older form of statutory judicial sale, by rea-

son of a purported failure by a purchaser to record the offi-

cial deeds in the Recorder of Deeds books pursuant to the

general recording act of 1775 at 21 P.S. 444, and thereby

contravened their own repeated prior precedents on that

issue. [see Pursley Petition, various]

It is the first instance whereby the BFP status neces-

sary for a purported subsequent purchaser to gain the pro-

tections of that recording act had been supported by a Court’s

‘judicial notice’ of a time limited title search [a nonexistent

‘statute of limitation’; see Appendix herein p. A5).

This is a case of first impression wherein entirely new

principles of law and rules of property were applied retro-

spectively to contravene a long history of statutory law and

precedent under which the Pursley rights had accrued,

vested, were ratified and validated, and had heretofore been

protected against retrospective change of law by the doc-

trine of stare decisis. [see Appendix herein pp. A6 - A8]

In conclusion, there is no prior existing basis, equitable

or otherwise, upon which to abrogate the Pursley title de-

rived, and maintained for over 100 years, in accordance with

long settled law, while simultaneously perfecting the com-

peting Roberts et al. claim to title, which was under prior

law a fatally defective nullity. The approach taken by the

Pennsylvania Courts in this case clearly violates Pursley

rights protected under the Fifth and Fourteenth Amend-

ments, and the Contract Clause of the United States Con-

stitution, and does not comport with prior relevant United

States Supreme holdings on the issue of retrospective

changes in law, as they affect prior existing rights.

Respectfully submitted,

George W. Pedlow III, Pro Se, Respondent

224 Outer Dr.

State College, PA 16801 Jn

814-466-7454

1A =

APPENDIX

Chevron Oil Co. v. Huson (404 U.S=-97; 92 S. Ct. 349; 1971

U.S. LEXIS 95; 30 L. Ed. 2d 296; 1971), in excerpt, states:

“,...in the last few decades, we have recognized the doc-

trine of nonretroactivity outside the criminal area many

times, in both constitutional and nonconstitutional cases.

Cipriano v. City of Houma, 395 U.S. 701; Allen v. State Board

of Elections, 393 U.S. 544; Hanover Shoe v. United Shoe

Machinery Corp., 392 U.S. 481; Simpson v. Union Oil Co.,

377 U.S. 13; England v. State Board of Medical Examiners,

375 U.S. 411; Chicot County Drainage Dist. v. Baxter State

Bank, 308 U.S. 371. [***18] ....

.... In our cases dealing with the nonretroactivity ques-

tion, we have generally considered three separate factors.

First, the decision to be applied nonretroactively must es-

tablish a new principle of law, either by overruling clear

past precedent on which litigants may have relied, see, e.

g., Hanover Shoe v. United Shoe Machinery Corp., supra, at

496, or by deciding an issue [***19] of first impression

whose resolution was not clearly foreshadowed , see, e. g.,

Allen v. State Board of Elections, supra, at 572. Second, it

has been stressed that “we must... weigh the merits [*107]

and demerits in each case by looking to the prior history of

the rule in question, its purpose and effect, and whether

retrospective operation will further or retard its operation.”

Linkletter v. Walker, [381 U.S. 618], at 629. Finally, we

have weighed the inequity imposed by retroactive applica-

tion, for “where a decision of this Court could produce sub-

stantial inequitable results if applied retroactively, there is

ample basis in our cases for avoiding the ‘injustice or hard-

ship’ by a holding of nonretroactivity. Cipriano v. City of

Houma, supra, at 706.”

2A

Gwendolyn Jenkins, Appellee v. Hospital of The Medical

College of Pennsylvania and Dr. Carol Grabowski and Dr.

Dorothy M. Barbo, Appellants (535 Pa. 252; 634 A.2d 1099;

1993 Pa. LEXIS 292; 1993) states:

ecaas [*262] On appeal to the Superior Court, Ms. Jenkins

challenged the constitutionality of the substantive and ret-

roactive application of § 8305(a). The Superior Court ad-

dressed only the challenge to the retroactive application of

this subsection because its determination that retroactive

application of § 8305(a) is unconstitutional rendered con-

sideration of the substance of the provision unnecessary.

Our review [***15] is also limited to the constitutionality of

the retroactivity [*263] provision. The Superior Court held

that the retroactive application of § 8305(a) to causes of ac-

tion accruing before its effective date was unconstitutional.

Because Ms. Jenkins’ cause of action accrued on March 8,

1984, more than four years before the promulgation and

effective date of § 8305(a), the Superior Court held that it

_could not constitutionally govern this action.

In Consumer Party v. Commonwealth of Pennsylvania, 510

Pa. 158, 175, 507 A.2d 323, 331-32 (1986) (Citations omit-

ted.), we stated that:

The strong presumption of constitutionality enjoyed by acts

of the General Assembly and the heavy burden of persua-

sion on the party challenging an act have been so often stated

as to now be axiomatic. Legislation will not be invalidated

unless it clearly, palpably, and plainly violates the Consti-

tution, and any doubts are to be resolved in favor of a find-

ing of constitutionality.

“Neither the federal constitution nor our state constitution

invalidates a non-penal statute merely because it is retro-

active, unless such legislation impairs contractual or other

vested [***16] rights.” Barasch v. Pennsylvania Public Util-

ity Commission, 516 Pa. 142, 167, 532 A.2d 325, 337, aff’d.,

488 U.S. 299, 109 S. Ct. 609, 102 L. Ed. 2d 646 (1989).

4

3A

“Retrospective laws may be supported when they do not dis-

turb any vested right, but only vary remedies, cure defects

in proceedings otherwise fair, and do not vary existing obli-

gations contrary to their situation when entered into and

when prosecuted.” Smith v. Fenner, 399 Pa. 633, 161 A.2d

150 (1960).

In Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980),

we addressed a constitutional challenge to the retroactivity

provision of the legislation creating statutory sovereign

immunity, Act of September 28, 1978, P.L. 788, §§ 1 et seq.

(Act 152). The issue presented was whether it was consti-

tutional to apply Act 152 to causes which became action-

able prior to its enactment. We held that Act 152 could not

constitutionally govern claims that accrued before its pro-

mulgation.

We set forth the analysis that gave rise to our holding in

Gibson [***17] at great length because it is controlling in

the instant case:

It is well-settled that the Legislature may not extinguish a

right of action which has already accrued to a claimant. This

Court has consistently held that the Legislature’s repeal of

a law which created a right of action does not disturb any

actions accrued thereunder:

“There is a vested right in an accrued cause of action.... A

law can be repealed by the law giver; but the rights which

have been acquired under it, while it was in force, do not

thereby cease. It would be an absolute injustice to abolish

with the law all the effects it had produced. This is a prin-

ciple of general jurisprudence; but a right to be within its

protection must be a vested right.”

The separation of powers doctrine suggests a fortiori that

the Legislature may not disturb actions which have accrued

under the Judiciary’s authority. As this Court has explained:

4A

“In the very nature of things, a law that is enacted after the

case has arisen can be no part of the case. Such a law can

have only a forced and unnatural relation to the case, and

must produce an untrue decision; a decision, not of the case

arising between the parties, as [***18] it ought to be, but of

a case partly created by the legislature.

[**1105] When therefore, the constitution declares that it is

the exclusive function of the courts to try private cases of

disputed right, and that they shall administer justice ‘by

the law of the land,’ and ‘by due course of law,’ it means

[*264] to say, that the law relating to the transaction in

controversy, at the time when it is complete, shall be an

inherent element of the case, and shall guide the decision;

and that the case shall not be altered in its substance, by

any subsequent law.” (Quoting Menges v. Dentler, 33 Pa.

495, 498-99 (1859); see Appendix herein p. A8]

This established view is consistent with federal decisional

law which squarely holds that a legislature may not consti-

tutionally eliminate in toto a remedy, whether judicially or

legislatively created which has already accrued. [Gibson v.

Commonwealth, 490 Pa. at 161-62; 415 A.2d at 83. Citing

Ettor v. Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773

(1913); Forbes Pioneer Boat Line v. Board of Comm’rs, 258

U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1922) (Holmes, J.);

Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed.

1434 (1934) (Brandeis, J.); W. B. Worthen Co. ex rel. Bd. of

Comm'rs v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed.

1298 (1935) (Cardozo, J.); accord, United States Trust Co. v.

New Jersey, 431 U.S. 1, 26-7, 97 S.Ct. 1505, 1520, 52 L.Ed.2d

92 (1977). As Chief Justice Marshall wrote, “[t]he very es-

sence of civil liberty certainly consists in the right of every

individual to claim the protection of the laws, whenever he

receives an injury.” Marbury v. Madison, 5 U.S. (1 Cranch)

87, 102, 2 L.Ed. 60 (1803)}

The Superior Court applied the principle stated in Gibson,

that a tort cause of action generally accrues on the date of

5A

the accident or injury, to the instant case and concluded

that Ms. Jenkins’ cause of action accrued on March 8, 1984,

the date on which the alleged wrongful birth of the child

occurred. The Superior [***19] Court properly held that §

8305(a) could not serve to bar her cause of action for wrong-

ful birth because § 8305(a) was not enacted until four years

after the cause of action had accrued.”

Shrider’s Leasee v. Nargan, (1 Dall. 68; 1/62) has been cited

under various spellings, including Schrider, Shryder or

Morgan, but that first given here seems to be the original.

Philadelphia, Baltimore & Washington R.R. to use v. Quaker

City Flour Mills Co., Appellant (282 Pa. 362; 127 A. 845;

1925 Pa. LEXIS 629; 1925), states:

“Statutes of limitation are statutes of repose enacted for

the common weal to quiet threatened disputes or litigation.

As a general rule a statute of limitation applies to actions

occurring after its passage, unless such limitation by ex-

press language, or necessary implication, is made to cover

existing rights of actions. Whether it does so apply becomes

a question of legislative intent to be found in the act. It is

an established rule in the interpretation of statutes that

they should be construed as operating prospectively unless

the language clearly expresses a contrary intent, or a nec-

essary implication to that effect: U.S. Fidelity & Guaranty

Co. v.Struthers Wells Co., 209 U.S. 306, 314; U.P.R.R. Co. v.

Laramie Stock Yards Co., 231 U.S. 190, 199; Cameron v.

U.S.,231 U.S. 710, 720; Schwab v. Doyle, 258 U.S. 529, 534.

“There is no canon of construction better settled than this,

that a statute shall always be interpreted so as to operate

prospectively and not retrospectively [***6] unless the lan-

guage is so clear as to preclude all question as to the inten-

tion of the legislature”: Taylor v. Mitchell, 57 Pa. 209, 211;

ee

6A

Neff’s App., 21 Pa. 243, 247; Horn & Brannen Mfg. Co. v.

Steelman, 215 Pa. 187,-191; Brubaker’s Est., 59 Pa. Supe-

rior Ct. 109, 113. “Words in a statute ought not to have a

retrospective operation, unless they are so clear, strong and

imperative that no other meaning can be annexed to them,

or unless the intention of the legislature cannot be other-

wise satisfied”: U.S. v. Heth, 3 Cranch 399, 413.”

-

Quoting from Burtt’s Estate (353 Pa. 217; 44 A.2d 670; 162

A.L.R. 1053; 1945):

Bete Ford’s Estate was decided on September 29,

1930. This Court construed the 20th Section of the Wills

Act of 1917, supra, and held an unprobatable will, signed

by a testator, was “another writing” within the Act. This

decision, unless changed by the legislature, has the same

effect as if written into the body of the statute. Since the

decision in Ford’s Estate , there have been eight regular

sessions of the Pennsylvania Legislature. If the legislature

believed that the decision was contrary to the intent and

language of the Wills Act, it could easily have so amended

the 20th section of that Act as to make the decision in Ford’s

Estate no longer controlling in cases arising subsequent to

the amendment. In Salvation Army Case, 349 Pa. 105, 36

A. 2d 479, we said at page 110: *... this [***23] Court’s

construction of an act has the same effect as if writien into

the body of the statute at the time of its enactment: Lerch’s

Estate, 309 Pa. 23, 28, 159 A. 868; see Buhl’s Estate, 300

Pa. 29, 32, 150 A. 86; Barnes Foundation v. Keely et al., 314

Pa. 112, 126, 171 A. 267. If our interpretation were not

consonant with the legislative purpose, it was within the

power of the legislature to amend the Act in order to effec-

tuate that [**677] purpose. It is most significant, there-

fore, that two legislature have convened and adjourned since

our former decision, and no amendment to the Act, as con-

strued by us, has been enacted by the legislative body. See

Chester School District’s Audit, 301 Pa. 203, 214, 151 A.

TA

801; Lower Nazareth Twp. App., 341 Pa. 171, 175, 19 A. 2d

92.

[(*231] The doctrine of stare decisis still prevails in Penn-

sylvania. To change a legal principle vitally affecting prop-

erty rights is a legislative and not a judicial function. This

Court has always rigidly adhered to the rule of stare deci-

sis. Astatutory construction, once made and followed, should

never be altered upon the changed views of new personnel

of the court. All of the cases reciting [***24] our policy to

adhere strictly to the rule of stare decisis need not be col-

lected and reviewed. What was said by us in a few of the

latest cases will suffice: Mr. Chief Justice MAXEY said in

Monongahela St. Ry. v. Phila. Co. et al ., 350 Pa. 693, 616,

39 A. 2d 909, “The doctrine of stare decisis is recognized

and applied by the courts of this Commonwealth. In Smith

v. Glen Alden Coal Co. et al., 347 Pa. 290, 32 A.2d 227, this

Court, speaking through the same Chief Justice, said (page

302): ‘A rule of property long acquiesced in should not be

overthrown except for compelling reasons of public policy

or the imperative demands of justice.’ The doctrine of stare

decisis is not confined to cases involving ‘rules of property.’

See Kilpatrick v. Commonwealth, 31 Pa. 198, 210, and Com-

monwealth v. National Oil Co., Ltd., 157 Pa. 516, ‘Stare de-

cisis simply declares that, for the sake of certainty, a con-

clusion reached in one case should be applied to those which

- follow, if the facts are substantially the same, even though

the parties may be different’: Heisler v. Thomas Colliery

Co., 274 Pa. 448, 452, 118 A. 394.” Mr. Justice HORACE

STERN said in Commonwealth v. Wucherer , 351 Pa. [***25]

305, at 308, 41 A. 2d 574: “Even were it deemed a doctrine

which should no longer prevail, certainly, in the face of so

venerable a history, the remedy should be sought, not in -

the courts, but in the legislature; the function of the former

(at least where principles have become firmly imbedded in

the warp and woof of judicial interpretation) being to de-

clare what the law is, and that of the legislature to change

existing law by statutory fiat”; and in Davis v. Pennsylva-

nia Co., ete ., 337 Pa. 456, at 464, 12 A. 2d 66: “An interpre-

8A

tation [*232] of law consistently followed by an appellate

court over so long a period that it has become fundamen-

tally imbedded in the common law of the Commonwealth

should not be changed except through legislative enactment,

which is a remedy always available and the proper one un-

der our scheme of government. Otherwise the law would

become the mere football of the successively changing per-

sonnel of the court, and ‘the known certain tie of the law’,

which Lord Coke so wisely said ‘is the safety of all’, would

be utterly destroyed.”

Furthermore, the published syllabus in Menges v. Dentler,

(33 Pa. 495; 1859) relates:

“The “law of the land,” which gives character to a case, and

by which it is to be decided, is the law that is inherent in

the case, and constitutes a part of it, when it arises as a

complete transaction between the parties.

If this law be changed or annulled, the case is changed, and

justice denied, and the due course of law violated. A law

that is enacted after a case has arisen can be no part of it,

nor is any law relating merely to the forms of the remedy.

The bill of rights requires that the law relating to the trans-

action in controversy, at the time when it is complete, shall

be an inherent element of the case, and shall guide the de-

cision; and that the case shall not be altered, in its sub-

stance, by any subsequent law”.

NOTE: Menges v. Dentler has been cited at least sixty one

(61) times in Pennsylvania appellate cases, recently in

Gibson v. Commonwealth, 490 Pa. 156; 415 A.2d 80; 1980

Pa. LEXIS 636, (1980), as cited in this Appendix.

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A