
    Nestle v. Waltman
    
      William C. Rehm, for rules; Charles W. Eaby, contra. 1 ' J
    October 10, 1931.
   Atlee, J.,

— Charles J. Nestle, the plaintiff in this action, brought suit before John F. Burkhart, an alderman of the City of Lancaster, to recover the sum of $50.85 under the provisions of the Act of June 14, 1923, P. L. 718, section 30, amending section 36 of the Act of June 30,1919, P. L. 678, and judgment was entered in favor of the plaintiff. From said judgment the defendant appealed and duly entered the transcript of the docket in the Court of Common Pleas of Lancaster County.

On July 31, 1931, the plaintiff filed plaintiff’s statement, and in paragraph 10 of said statement alleges: “That the plaintiff’s automobile was worth the sum of $200 less after it was repaired than it was worth immediately preceding the collision,” and in paragraph 12 of said plaintiff’s statement alleges: “Wherefore to recover said sums of $50.85 and $200 or $250.85, together with a sum equivalent to interest thereon for the deprivation of the use of said sums since the 24th of January, 1930, this suit is brought.”

The question now before the court is, can the plaintiff, on appeal being taken from the magistrate’s judgment, increase the amount which he claims in this action? The plaintiff alleges that the alderman had jurisdiction and that the plaintiff has the right to include in his statement the items above mentioned.

In behalf of his contention, the defendant cites to the court the case of Smith v. Sechrist, 40 Lanc. Law Rev. 537. In this case President Judge Landis ruled that where there was a suit before an alderman for less than $100, and, upon appeal, the plaintiff’s statement made claim for a larger amount, there could be no recovery for the additional amount thus claimed. Judge Landis there said that the way to reach the difficulty was by a motion to strike the additional claim from the statement, which is the practice followed by the defendant in this ease. The plaintiff cites an opinion by Judge Hassler in the case of Wenger v. Dull, 10 D. & C. 163, in which the plaintiff claimed from the defendant before the alderman the sum of $150. Judge Hassler decided that the alderman had jurisdiction for a claim over $100 under the provisions of the Act of June 14,1923, P. L. 718, and sustained in favor of the plaintiff the point of law raised by the defendant.

It is to be noted that in the case of Wenger v. Dull, supra, the amount claimed in the suit before the alderman was $150. It seems that the defendant here has followed the practice laid down by President Judge Landis in Smith v. Sechrist, supra, has moved to strike off the excess claim, and has brought himself within the reasoning of the opinion of President Judge Landis in Smith v. Sechrist, 40 Lanc. Law Rev. 537.

The court, therefore, makes absolute the defendant’s rule to strike from the plaintiff’s statement paragraphs 10 and 12, so that the case will now proceed on the claim of the plaintiff to recover from the defendant the sum of $50.85, which is the amount the plaintiff claimed from the defendant in the original suit before Alderman Burkhart, from whose judgment the appeal was taken.

Rule absolute, paragraphs 10 and 12 of plaintiff’s statement struck out.

Prom George Ross Eshleman, Lancaster, Pa.  