35 Pa. Super. 235 | Pa. Super. Ct. | 1908
Opinion by
The legislature in conferring jurisdiction on justices of the .peace of causes of action arising from contract, either express or implied, had in view those contracts which arise immediately out of a course of dealing between the parties, and not that sort of contract that arises remotely out of the compact.of government: Zeigler v. Gram, 13 S. & R. 102; Zell v. Arnold, 2 P. & W. 292; Schaffer v. McNamee, 13 S. & R. 44; Common
But it is argued by plaintiff’s counsel that although the action was assumpsit in form, the cause of action was clearly ex delicto. It would require a wide stretch of the imagination to infer this from the transcript of the magistrate, wherein the sole statement of the cause of action is, the plaintiff “claims ten dollars and fifty cents, cost of repairing retaining wall belonging to defendants;” and it must' be borne in.mind that the cause of action, whatever change be made in the pleadings or evidence, cannot be departed from in- the common pleas: Knappenberger v. Roth, 153 Pa. 614; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476. But assuming that the-cause of action alleged in the statement of claim is the same as that alleged before the magistrate, we cannot assent to the proposition that a cause of action ex delicto is alleged of which justices of the peace have jurisdiction under the Act of March 22, 1814, 6 Sm. L. 182. According to the averments of the statement, the wall was not built by the defendants, nor was it upon or contiguous to the land to which they acquired title after it was built, nor- did it fall upon plaintiff’s land in consequence of anything that the defendants did. Hence the familiar’ illustration of the -force- that will sustain an action of trespass at common law for an act of the
As the magistrate did not have jurisdiction of the cause of
The judgment is reversed and judgment is now directed for the defendants upon the demurrer.