Commonwealth v. Rogers

• Decision Date: 16 September 1958
• Citation: 187 Pa.Super. 471,144 A.2d 662
• Parties: COMMONWEALTH of Pennsylvania v. Joseph ROGERS, Robert Havard, Roger A. Hines, Francis Chiazza, William Lipferg, Evan Moses, Donald Burkert, Appellants.
• Court: Pennsylvania Superior Court

144 A.2d 662

187 Pa.Super. 471

COMMONWEALTH of Pennsylvania v. Joseph ROGERS, Robert Havard, Roger A. Hines, Francis

Chiazza, William Lipferg, Evan Moses, Donald Burkert, Appellants.

Superior Court of Pennsylvania.

September 16, 1958.

Application for Allocatur Denied Nov. 17, 1958.

Eugene Nogi, Russell J. O'Malley, Bernard Rothman, Scranton, Nogi, O'Malley & Harris, Scranton Handler & Rosenberg, Harrisburg, of counsel, for appellant Rogers.

Warren G. Morgan and David S. Kohn, Harrisburg, for appellant Burkert.

Frank McGuigan, Wilkes-Barre, for appellant Evan Moses.

Huette F. Dowling, Dist. Atty., Charles J. Ware, Sp. Asst. Atty Gen., Alfred P. Filippone, Sp. Asst. Atty. Gen., Thomas D McBride, Atty. Gen., for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

RHODES, President Judge.

Thirteen defendants ^[1] were indicted in the Court of Quarter Sessions of Dauphin County for conspiracy to cheat and defraud the Pennsylvania Turnpike Commission, an instrumentality of the Commonwealth of Pennsylvania. Prior to trial four of the defendants ^[2] entered pleas of guilty; another defendant ^[3] was seriously ill and could not appear, and his case was continued. The remaining eight defendants ^[4] pleaded not guilty, and were convicted after trial before a jury. Each filed motions in arrest of judgment and for a new trial which were overruled by the court below, and sentence was imposed. Subsequently one of the defendants, Walter G. Ketas (also known as Walter J. Ketas) withdrew his motions and presented himself for sentence. Seven defendants have appealed to this Court.

Each appellant has questioned the jurisdiction of the Court of Quarter Sessions of Dauphin County to try the offense charged in the indictment. Two of the appellants, Donald Burkert and Evan Moses, also contend that the evidence was insufficient to sustain their convictions. No other question has been raised on appeal.

On February 28, 1955, the Pennsylvania Turnpike Commission entered into a contract with Manu-Mine Research and Development Company relating to certain phases of the construction of the Northeastern Extension of the Pennsylvania Turnpike. Subsequently, on August 10, 1955, the commission, at Harrisburg, entered into a contract with Joseph Rogers and Amos Rogers, trading as Rogers Construction Company, for the slushing of mine areas on the turnpike in the vicinity of Scranton, Lackawanna County. Another contract, dated August 29, 1955, executed at Harrisburg, provided for the slushing of mine areas by the Rogers Construction Company along the line of the Northeastern Extension also in the vicinity of Scranton.

Under these two contracts Rogers Construction Company was to furnish an estimated 716,742 tons of silt and 563,130 tons of sand at $1.71 and $1.81 per ton, respectively. These materials were obtained from nearby sources and hauled in trucks by the Rogers Construction Company to boreholes drilled by Manu-Mine. At the boreholes the truck loads of silt and sand were slushed through a pipe and used to fill the mined-out areas under the proposed turnpike extension. The work was to be performed under the supervision of Manu-Mine Research and Development Company. Manu-Mine maintained inspectors who checked the material at the loading points and at the boreholes where the material was deposited. Weight or delivery slips were issued by Manu-Mine inspectors at the loading point in the form of an original and four copies. Of the five slips one copy was retained by the Manu-Mine inspector at the delivery point, one copy was remitted to the office of Manu-Mine at Moosic, one copy was retained at the loading point; Rogers Construction Company received two copies, one of which was sent to Harrisburg.

George Oswald, one of the thirteen defendants originally indicted, was superintendent of Rogers Construction Company; he entered a plea of guilty before trial and testified for the Commonwealth. His testimony clearly established the formation and the existence of the conspiracy. This witness said that from the Lackawanna River to Taylor the mined-out areas were numerous and the holes bored accommondated substantial fill, but that beyond Main Street in the Borough of Taylor the holes drilled by Manu-Mine took much less material than had been estimated. He also testified that in October, 1955, Walter G. Ketas, general manager of Rogers Construction Company, in the presence of Joseph Rogers, requested him (Oswald) to attempt an arrangement with the Manu-Mine inspectors so as to secure delivery slips for material not actually furnished. Oswald testified: 'So, one day I was called up to the office, and Mr. Ketas said, 'George, your tonnage is slipping. What is the matter down there?' I said, 'Well, we just can's get the estimated quantities down the holes. The holes aren't taking it. They are not open on the bottom. All we can get in is what is filling up the hole.' He said, 'Can't you do anything down there with those inspectors?''

Accordingly, Oswald contacted the inspectors of Manu-Mine and ascertained that they would furnish extra slips in return for payment of $50 a week to each. Oswald named the Manu-Mine employes who were paid by him as Fronduti, Williams, Chiazza, Hines, Munley, Jones, Lipferg, and Moses. Fronduti, Munley, and Williams testified for the Commonwealth. Chiazza, Havard, Hines, and Lipferg testified before the investigating grand jury. Their testimony was read into evidence against them, and limited by the trial judge to each of them alone.

Havard was employed by the Rogers Construction Company and performed the same service at night as Oswald did in the daytime. They collected the spurious slips from the inspectors at the loading point and delivered them to the inspectors at the delivery point. Apparently the truck drivers did not receive copies of such slips. Burkert was superintendent of the slushing operation for Manu-Mine.

Oswald stated that, from November 1, 1955, to February, 1956, when the work was suspended, he received the money in the form of $50 bills from Joseph Rogers and Ketas, and paid the inspectors on Friday night or Saturday morning. In the beginning truck loads of material that could not be used to fill the mine areas were dumped at convenient places, while false slips were issued for trucks which were not in service. Later those involved developed a plan known as 'Ring-Around-the-Rosey,' whereby the truck drivers hauled the same load back and forth, and false slips were signed by the inspectors falsely representing that the material had been deposited at the boreholes. Credit was given for each such trip, and the undelivered load was repeatedly charged to the Turnpike Commission. Originally the inspectors furnished about ninety bogus slips every twenty-four hours, at an average of fifteen tons per load. Later as high as one hundred fifty fraudulent claims were furnished by the inspectors in a twenty-four hour period. Oswald further stated that 60 per cent of the materials charged to the Turnpike Commission was never delivered.

Rogers Construction Company prepared a monthly estimate for partial payment under their contracts with the Turnpike Commission. These estimates were based on copies of delivery slips retained by Rogers Construction Company. The periodic estimate was then turned over to the Turnpike Commission at its field office in Dupont, Luzerne County, and was there subjected to a preliminary check by the district construction engineer of the Turnpike Commission on the basis of copies of the delivery slips sent to the Dupont field office of the Turnpike Commission. No final approval was made at the field or district office, and no bills were paid therefrom. But after approval by the district engineer, the periodic estimate was dispatched by automobile to the commission at its main office in Harrisburg. Following re-check by the engineers at Harrisburg, the periodic estimates or bills of Rogers Construction Company were processed by the officers of the Turnpike Commission. Checks in payment were drawn on the Fidelity-Philadelphia Trust Company of Philadelphia and mailed to Rogers Construction Company at Scranton. The latter received and cashed two checks under their contracts, one dated December 14, 1955, in the amount of $86,023.41, and the second dated January 9, 1956, in the amount of $160,603.51. A third check in the amount of $237,862.88, dated February 6, 1956, issued and signed by officers of the Turnpike Commission, was canceled prior to receipt by Rogers Construction Company.

In the court below and on this appeal, appellants Burkert and Moses have questioned the sufficiency of the evidence to establish their guilt. Both were employes of Manu-Mine. Burkert, an employe since July 18, 1955, was in charge of the slushing operation. Moses was supervisor of inspectors under Burkert. Burkert sixty-five years of age, was experienced as a mining engineer. He had not been financially successful and needed work in July, 1957, when he was hired by Manu-Mine. According to his testimony he was then receiving unemployment benefits of $30 per week. Representing Manu-Mine he laid out the boreholes for Manu-Mine on the job of the Rogers Construction Company; he was in complete charge of the operation for Manu-Mine, including the inspectors, some of whom were hired by him. His obvious interest in Rogers Construction Company was inconsistent with his duty to Manu-Mine under its contract with the Pennsylvania Turnpike Commission. Fronduti, an inspector, testified: 'Mr. Burkert told me that Rogers Brothers was having a hard time, and he asked me if I would lean over backwards for them.' On one occasion Burkert also directed Fronduti to release six trucks which were...