Commonwealth v. Barfod

• Decision Date: 05 October 1945
• Docket Number: 329
• Citation: Commonwealth v. Barfod, 58 Pa. D. & C. 13 (Pa. Commw. Ct. 1945)
• Parties: Commonwealth v. Barfod et al
• Court: Pennsylvania Commonwealth Court

58 Pa. D. & C. 13

Commonwealth v. Barfod et al

No. 329

Common Pleas Court of Philadelphia County, Pennsylvania

October 5, 1945

April sessions, 1941

John H. Maurer, District Attorney, and Franklin E. Barr, Assistant District Attorney, for Commonwealth.

Richard A. Smith and Stephen J. McEwen, for defendants.

OPINION

Application for forfeiture of bonds.

CRUMLISH, J.

This is an application by the Commonwealth for an order of forfeiture of bonds filed by defendants and surety sur appeal from sentence.

1. Defendants, Van Buskirk and Barfod, were tried together on two joint bills of indictment to April sessions, 1941. The one (no. 329) charged them, as officers of a certain corporation, to wit, Coal Operators Casualty Company (a casualty insurance company), with embezzlement and fraudulent conversion, in eight counts, under different applicable sections of The Penal Code, but all covering the same transaction, and therefore subjecting each of them to but one sentence. The other (no. 330) charged them with conspiracy to defraud Coal Operators Casualty Company for the benefit of themselves and of the United States Plate Glass and Liability Insurance Company of Philadelphia, a corporation of which they were officers and the record owners. The court withdrew from the jury the fifth and sixth counts of no. 329, charging fraudulent conversion by defendants, acting with certain associates, but left the other six counts of no. 329 and no. 330 to the jury, which rendered general verdicts of guilty on both indictments. Defendants were sentenced on bill no. 329 only. The sentences imposed were: Van Buskirk, two years in the county prison and a fine of $ 1,000 and costs, and Barfod, one year in the county prison and a fine of $ 1,000 and costs. Defendants took separate appeals from their respective sentences to the Superior Court. Both convictions were sustained in the following terms:

" The assignments of error are all overruled. The judgments are severally affirmed; and it is ordered that the defendants, Houghton E. Van Buskirk and Einar Barfod, severally appear in the court below at such time as may be fixed by that court and that each of them be committed by said court until he has complied with his sentence or such part thereof as had not been performed when his appeal was made a supersedeas" : Commonwealth v. Van Buskirk et al., 155 Pa.Super 613 (1944).

Defendants in appealing from their respective sentences entered bonds, each in the sum of $ 2,500, whereon the Maryland Casualty Company was surety.

The bonds provided:

" We, and each of us, Einar Barfod (Houghton E. Van Buskirk) and Maryland Casualty Company do acknowledge ourselves jointly and severally indebted to the Commonwealth of Pennsylvania in the sum of Twenty-five hundred ($ 2500.00) dollars, to be levied of our and each of our lands and tenements, goods and chattels, conditioned that the said Einar Barfod (Houghton E. Van Buskirk) will prosecute his appeal from the judgment and sentence of the Court of Quarter Sessions of the Peace and General Jail Delivery for the City and County of Philadelphia to the Superior Court of the State of Pennsylvania in the above case with effect, pay all costs and charges awarded against him, and will be and appear at the said Superior Court for the State of Pennsylvania to be holden on the first Monday of November or any subsequent term or terms thereof, then and there to answer all such charges as may be preferred against the said Einar Barfod (Houghton E. Van Buskirk) and to abide the decision of the said Court, and not to depart the said Superior Court of the State of Pennsylvania and the Court of Quarter Sessions of the Peace and General Jail Delivery for the City and County of Philadelphia without leave, and upon the affirmance of the sentence and judgment of the said Court of Quarter Sessions of Peace and General Jail Delivery for the City and County of Philadelphia or upon the discontinuance or entry of a non pros of said appeal, the said Einar Barfod (Houghton E. Van Buskirk) will surrender himself to the Sheriff of Philadelphia County, so that the sentence heretofore imposed upon the said Einar Barfod (Houghton E. Van Buskirk) by the said Court of Quarter Sessions of the Peace and General Jail Delivery for sentence or any other purpose that may be required by law then this recognizance to be void and of no effect; otherwise in full force and virtue."

An allocatur to the Supreme Court having been refused, Van Buskirk and Barfod appeared for execution of their sentences and were committed to the county prison. They have not paid either the fines imposed or the costs of prosecution as sentenced. The Commonwealth made formal demand upon defendants to pay the fine and cost and upon their failure to comply the district attorney moved the court to enter an order of forfeiture on the surety bonds. Subsequently, the district attorney filed a petition for judgment of forfeiture of the bonds, which was discontinued, without prejudice, on June 21, 1945, by Smith, P. J.

2. The district attorney's present action is opposed by the surety which contends: (1) The quarter sessions court is without jurisdiction; (2) the surety's obligation, which has been discharged, was limited to the liability of defendants for payment of " costs and charges awarded against them and surrender to the sheriff" ; (3) the terms of the bond should be construed most strongly against the Commonwealth because it was prepared by it; (4) " as there was no order of supersedeas by the Superior Court or the quarter sessions court, there was no stay of execution of the penalty imposed except by the grace of the Commonwealth."

3. These contentions resolve themselves into two questions: ( a ) Is the quarter sessions court without jurisdiction to declare a forfeiture of an appeal bond? ( b ) Has there been a breach of the terms of the bond warranting an order of forfeiture?

( a ) Is the quarter sessions court without jurisdiction?

The Commonwealth seeks to have the recognizances of defendants and surety declared forfeited. Forfeiture is a judicial act and conclusive of a breach: Pierson v. Commonwealth, 3 Grant 314 (1861).

" Forfeiture . . . is the judgment of the court upon condition broken, and can be entered only upon proper hearing and adjudication" : per Finletter (Thomas K.), J., Commonwealth v. Bauer, 9 Phila. 589, 29 L. I. 68 (1872).

The Act of April 22, 1846, P. L. 476, sec. 4, 17 PS § 503, provides:

" All recognizance of bail, for the appearance of anyone charged with a criminal offense, which are or shall be forfeited, before the court of oyer and terminer and general jail delivery, and quarter sessions of the peace, in the city and county of Philadelphia, which have been or shall be taken before either of the judges of the said court, or before any alderman or justice of the peace for the said county, and returned to the said court, shall be sued and prosecuted in the said court, and in no other court ; and that the fees and commissions, for services rendered by the clerk of the said court, shall be the same as those prescribed for the prothonotaries of the courts of common pleas, for like services." (Italics supplied)

The surety, however, takes the position that this statute gives no judicial authority " to declare a judgment of forfeiture for the amount of the fine under an appeal bond." With this, we cannot agree. The Act of April 4, 1837, P. L. 377, sec. 2, 17 PS § 502 provides, inter alia:

" . . . and that the said Court of Quarter Sessions shall have full power and authority to issue process on all forfeited recognizances whatsoever, now or hereafter forfeited in said court, and in the court of Oyer and Terminer, holden by the judges of the said court of Quarter Sessions, now or hereafter forfeited in the said courts, and to prosecute the same to final judgment and recovery, . . ." (Italics supplied).

The Act of May 19, 1897, P. L. 67, sec. 5, 12 PS § 1137, provides:

" Bail upon any appeal shall be entered in the court from which the appeal is taken, shall be in the name of the Commonwealth to the use of all parties interested, and shall be sued upon in like manner as official bonds." (Italics supplied).

A reading of these statutes requires no extended discussion to support the proposition that the quarter sessions court has jurisdiction to declare the appeal bonds of defendants and their surety forfeited upon proof of a breach of any of the conditions thereof.

While it is not necessary to a determination of the immediate question of jurisdiction, it may not be amiss to say a few words regarding the surety's contention that an adjudication of forfeiture would be " superfluous and unnecessary." In this connection, it is contended " if the court had the authority and entered a decree of forfeiture on an appeal bond, the procedure provided by the statute (and even suggested by Smith, J.), would be superfluous and unnecessary, as there would be no issue left to be tried by a court and jury. The decree of forfeiture would, in itself, adjudicate the issue of the surety's compliance or non-compliance with the bond." It is further contended that the statutes require the Commonwealth to act in assumpsit in the court of common pleas and to proceed to trial after issue is joined. In taking this position, the surety goes on the erroneous assumption that an adjudication or order of forfeiture is an absolute judgment requiring no further proceedings. The answer is that the statutes make it clear that final judgment cannot be entered upon a recognizance on a bond without further proceedings after the forfeiture. Thereafter, the action will be in assumpsit on a forfeiture of recognizance in this court. See Commonwealth v....