*1 to be it pays this market value is all taken, it. This is the in order to avoid necessary measure, favouritism, attend oppression that would other measure. subject man Every property holds his to this eminent ownership domain, dominion, whole needs Re must it when society. up society give it, paid its value estimate being according on it put in the market, common' consent.” is, by (Emphasis supplied.) See Kimball also, Laundry United States, supra.

I see no or moral legal justification for treating case as an exception from the law as it has been formu- lated and followed for over a the ma- Since century. opinion jority departure offers no reasons its well-settled appears law, to me to invite favoritism toward utility with a burden owners, unjust resulting on those who pay condemnation damages.

I dissent. Esslinger’s,

Gretz v. Appellant. Inc., Mus- January J., C. Argued Before 1967. Bell, *2 Roberts, O’Brien Cohen, Eagen, Jones, manno, JJ. January

reargument 17, refused 1968. Shapiro, Henss, him G.

Abraham L. with Norman Shapiro, Greenberg, Berger Harold & and Cohen, appellant. Cohen,

Lester him Herman N. Silver, J. Schaffer, with appellee.

Opinion 14, Mr. November Justice Cohen, 1967:

Appellee, received Karl Gretz, December, judgment ultimately an arbitration award of $40,000; was entered on the award and was affirmed Esslinger’s, A. Court. Gretz 416 Pa. Inc., (1964). Subsequent 2d of the to the rendition adjudicated bankrupt judg Gretz was award, ment was marked the use trustee of the bank rupt February judg estate. On the trustee 2, 1965, as appellant’s garnished (Esslinger’s) ment creditor one of then accounts; bank the amount of plus judgment and costs to date and the attorney judgment creditor’s ordered the against garnishee. satisfied Thereafter, appellant present petition filed the have the main In his satisfied of record. answer to the ad- petition, trustee mitted receipt of payment of the amount of the judg- ment plus interest and costs; but asserted that be- cause the funds were “tied further up” as a result of proceedings instituted after to him by appel- lant in the federal district court which enjoined trus- tee from distributing to creditors of the money bankrupt he estate, would not satisfy until appellant paid interest estate. The court below denied appellant’s motion for judgment on the pleadings.

The effect of the lower opinion permit court’s tois who fiduciary has been paid the full amount of a judgment plus interest and costs, refuse to satisfy *3 the judgment even though two of acts the' legislature make the satisfaction mandatory. Act of March 14, P. L. 1876, 12 P.S. j1 Act of March 27, §978 P. 12 L. 52, P.S. §977.2 judgment “In oM cases any where a has been . . . in entered court of Commonwealth, in record juris having . . . the court shall, upon application by diction the defendant in ... said the judgment, setting forth, oath, . . . same, under that the with all legal thereon, fully costs paid, grant accrued has been a on rule plaintiff why the judgment ... to show cause the said should not record, costs; be marked upon satisfied of at his . . . the hear

ing rule, appear such should it to the the court of satisfaction of judgment fully paid, that appli has been as set forth in the ., cation of the defendant . . the said court shall then direct the prothonotary judgment record, to marh such of and shall satisfied decree, requiring plaintiff pay a the also enter ... all costs premises.” (Emphasis supplied.) incurred the judgment a “In all cases where has . . . been . . . entered commonwealth, appear, in this . . and it of record . shall record, fully production by the the same has . . . the been of paid, an execution virtue or executions issued there under of judgment not been entered on, has the index and satisfaction court, duty court, it shall be judgment of said docket of judg- garnishee At the moment unquali- plus an date, in full interest and costs ment original appellant right to have fied accrued to the judgment that when It is clear marked satisfied. against judgment on trustee executed the defendant- full thereof, and received satisfaction judgment full appellant original had met on the plaintiff-appellee, obligation judgment required original of satisfaction plain of Act. intendment either principally cases: two The court below relied (1880) O’Connor ; Felt v. Cook 95 Pa. 247 Hackett, & (1919), held we Flick, 265 Pa. 49 wherein requir to a decree to be entitled order for a defendant produce ing judgment, com he must satisfaction of a payment petent support finding actual of evidence according view, in full. to the lower court’s Since, competent produced, it concluded evidence was defendant-appellant of to satisfaction not entitled was judgment. relied two cases unlike the However, defendant-appellant upon by here the the lower court, sup competent produced requisite evidence has proof port payment finding in full. Since actual prerequisite necessary only of actual is the unqualified right have a establish admitting that the answer marked satisfied, plus interest and costs full amount compe supplied quantum paid clearly had been required. tent evidence *4 appellant that since the chose lower court held petition taking proceed and answer rather than accept

depositions, bound to all the court was as true entered, . has at . . been the instance of said in which twenty-five interested, of a fee of party prothonotary prothonotary, to direct to enter cents docket, index satisfaction supplied.) (Emphasis thereof.” record plead- properly averments of fact in answer Accordingly, accepted averment ed. as true the appellant proceeds judgment to be caused the of the Admitting by unavailable for trustee. distribution as true denied the averment that the trustee was availability purposes, of the funds distribution preclude deter- not and from should does not a court mining legal consequences flowing from the ad- mitted averment. unwittingly

The court below foreclosed considera- bankruptcy tion of the that be- law when it asserted cause the funds were “unavailable for distribution” appellee’s claim for be sus- interest owed must fortiori admittedly tained. Since the is a trustee bankruptcy, it is our ana- view that this Court must lyze meaning language of the “unavailable for dis- tribution” in the framework of a trustee in situation. §47a(2) Bankruptcy

Under 11 U.S.C. Act, §7?a(2),3 deposit by a trustee shall him in funds held interest-bearing savings deposits, by if authorized though pre- restraining court. Even there is a order venting distributing the trustee from the funds, precluded investing trustee at all such funds. Since the trustee this case did not seek court approval deposit money in an account which generated would have he should interest, not now be permitted appellant to obtain from him- which he self could by have secured for the estate proper management of its funds. In a situation such fiduciary as the instant one, has the can funds, invest them with consent of thereby court, earn Trustees; (a) (2) deposit duties “§75. Trustee shall ... all money designated depositories initially them in received in de subsequently, deposits; court, if mand authorized savings deposits, interest-bearing deposit, time certificates account; deposits-open . . . .” time *5 trus- If the beneficiaries. interest for the creditors or pos- his tee could on the funds have earned interest claim has a it cannot be that he now session, has against appellant way interest an who on such interest prevented realizing the trustee funds. in this distribution restraining order

Moreover, federal case commenced was the result of action no juris- and the courts of have system, Pennsylvania in a fed- impose upon disputant diction to sanctions argu- eral indicated at bankruptcy case. as fact, appellant to required the federal district court ment, post appel- bond distribution, before it restrained if lee he any has claim has suffered any harm whatsoever out of proceedings, the federal courts should alone pursue the bond which remedy he has The if appellant’s any, recourse. liability, should be and not imposed by the federal courts by the courts of Pennsylvania.

The order of below is reversed case satisfaction remanded to the lower court so that of the be judgment may required.

Dissenting Opinion Mr. Justice Roberts: has decided this two majority wholly case assumptions: erroneous when the (1) that, on amount February 2, plus appellant interest and costs to date, acquired that judgment unqualified right marked satis- action taken regardless appellant fied of record federal law not only deprives and (2) award interest jurisdiction appellee Court but was mandates the author of also his own injury. the court

I below believe correctly concluded accept as bound it was admitted appellee’s al- appellant’s actions tied legation effectively up the for dis- them unavailable and made garnished elected below, party the moving tribution.1 Esslinger, proceed rather depositions to take but *6 209(b), Pa. R. C. P. petition answer. Under respon- of posture “all averments procedural .this fact answer in the petition pleaded to the and properly sive supplied.) be deemed admitted. . . (Emphasis shall as the therefore to proceed It is necessary sufficient the trustee received sumption though that, the through satisfy funds action garnishment the trustee appellant prevented outstanding judgment, been from It has utilizing these funds. distributing Miller Bank Whar rule since v. New 5 Orleans, of the: ton of 502 that fide tender (1840), only bona rule amount due of This stops interest. running flows the function directly performed by of Pa. grant interest. We said in 30 Murphy, v. Kelsey 340, 341 and reiterated in Carbondale (1858), City School District Fidelity Deposit Company of 346 Pa. 31 A. Maryland, (1943), 2d 280 491, 492, “ that: ‘Interest been compensa has defined “to be a tion to the creditor for allowed of delay payment and is said to be “due debtor,” impliedly whenever ’ ” of sum withheld.” liquidated money unjustly Ap admitted that pellee’s allegation, by appellant, the funds was unable distribute received demon payment by garnishee strates was, fact, at all. payment contention sole is that

Appellant’s the trial court, petition with a under the confronted Act of 1876, must appellee’s Paragraph of answer states: “Pillion bank [the paid by ruptcy trustee] avers further effectively up attachment execution were tied result of as a referee, proceedings by petitioner’s before the Court the District' Appeals, and since said funds were not available of and the Court solely petition estate in the because of distribution actions, run thereon.” should er’s directing judgment marked that the be enter order appears been satisfied if it “paid.”2 has light allegation the fed- of litigation prevented court eral distribution of the funds bankrupt’s I man- fail see what creditors, paid. ner Al- can be been have possession though the trustee did funds, under the admitted state facts the was appellant relinquished until its claim. To proceeds majority, as does the conclude, garnishment ignore action constitute is to appellant’s subsequent both the admitted facts and ac- proverbial tions. The rabbit has never been con- better cealed. majority spectre raises the that the lower *7 permit fiduciary paid

decision would a who has been judgment full satisfy the of amount to refuse to judgment. given that Of the set of course, admitted paid. the trustee here has facts, not been Furthermore, position analogous the trustee’s is not to of that an exceptant ordinary orphans’ an to account in the court complainant or fiduciary’s other to a accounts. In such situations the usual rules that interest runs from liquidated the date a sum becomes due and from the unliquidated of date ap- on sum would ply. gee, e.g., Estate, 313 Pa. 169 127, Atl. Crawford’s (1933). In 438 instant the the case, crucial distinction 2 proposition Cited for this are Harrison, Atkinson v. 153 Pa. (1893) ; Smith, Atl. Melan v. 294 134 Pa. 19 Atl. 738 Hackett, (1890) Felt & Co. v. Cook & (1880). 95 Pa. 247 None support theory appellant’s of these cases that the lower court is merely to an examination of whether confined the ac judgment. tually Atkinson we held the that the Act of only undisputed applicable payment; in clear of cases is investigate original equities trial cannot court Melan demands; and in Felt might apply evidence which cross pending adversary proceeding in a show admitted be under not admissible the act. is prior verdict began proceedings after that the federal

is exceptions filed be would while rendition of present situa- prior not thus and would requiring interest. the accrual of tion upon places majority reliance The substantial Bankruptcy (2) §47(a) Act 1963 amendment deposit approval permitting trustee with court bearing accounts. of in interest opinion contain of the court below briefs relevant. a hint law is here that federal precedents legion asserted1 are that a matter not Our theory recovery defense of either a of a matter as upon successfully be for the time cannot appeal. asserted first Ap in 2 cited P. L. E., See cases and discussed peals majority justifies Apparently its §§81-85. sponte (2) theory §47(a) treatment sua jurisdiction Pennsylvania im> “the courts of pose upon disputant in a bank sanctions federal ruptcy Although general agree I with this case.” can Bankruptcy authority proposition, I find no can ma cases or decisions for bald federal our Act, jority assertion that court’s lower order would intrude the federal domain. Nor I find a can support majority’s shred conclusion remedy posted is sole the bond in the §47(a) (2) applicable, Even if federal courts. it were merely would decrease the amount of recovera highly deposit unlikely approved ble for *8 legal a federal court would have returned rate my of interest which entitled to is, view, owing, with Therefore, receive. interest still the lower properly refused court order the satisfied of record. certainty it be said with

Nor can that the trustee injury of his the author own was petition because he failed to permission deposit court gar- bearing in interest nished funds accounts. Prior to subject to sur- the 1963 the trustee was amendment deposited charge designated, non- if were not bearing, depositories con- all creditors unless deposit. bearing Huttig Mfg. sented an interest See 1908) (8th re ; Co. v. Edwards, 160 Fed. 619 Cir. Dayton (E.D. Coal Iron Fed. Co., 239 Tenn. & 1916); Congressional Ad- 1963 United States Code Report reprinting No. ministrative News Senate accompany Cong., 147 to HJR. 88th Sess. 1st govern- yet federal courts construct standards ing apply those situations which the trustee should permission bearing deposit. to utilize an interest pure conjecture Absent those standards, assume procure the trustee would have been able to necessary approval obtain thus interest. majority opinion

Reduced its holds essentials, may pay that a debtor with one hand debt while simultaneously deprive with the other his creditor yet use those funds and have the satis- proposition accept fied. This is a I cannot and must therefore dissent. M join Mr. u sm a no Justice and Mr. Justice Eagen n dissenting opinion.

in this Commonwealth v. Kizer, Petitioner.