Commonwealth v. Souder

• Decision Date: 11 January 1954
• Citation: 376 Pa. 78,101 A.2d 693
• Parties: COMMONWEALTH v. SOUDER et al. COMMONWEALTH v. CAIRNS et al. (two cases).
• Court: Pennsylvania Supreme Court

101 A.2d 693

376 Pa. 78

COMMONWEALTH v. SOUDER et al.

COMMONWEALTH v. CAIRNS et al. (two cases).

Supreme Court of Pennsylvania.

January 11, 1954

Defendants were convicted in the Court of Quarter Sessions of Allegheny County, February Sessions, John J. Kennedy, J., of conspiracy and fraudulent conversion, but they were subsequently discharged by order dismissing the case for insufficiency of evidence, and the commonwealth appealed. The Superior Court at Nos. 133 to 146 inclusive, April term 1952, W. Heber Dithrich, J., 172 Pa.Super. 463, 94 A.2d 136 reversed and reinstated verdicts, and defendants appealed. The Supreme Court at Nos. 184 to 197, inclusive, March term 1953, Chidsey, J., held that order directing defendants to appear before sentencing, entered at time defendants' motions for new trial remained undisposed of, was erroneous.

Judgment reversing order sustaining defendants' motion in arrest of judgment affirmed; order directing defendants to appear for sentencing reversed, with directions.

Musmanno, J., dissented.

Where defendants' motions for new trial remained undisposed of, order directing defendants to appear for sentencing was premature, and would be reversed for prior disposition of motions for new trial.

James P. McArdle, Pittsburgh, for appellants.

Charles D. Coll, Harry A. Estep, William H. Colvin, Pittsburgh, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, and MUSMANNO, Jj.

CHIDSEY, Justice.

This is an appeal from the decision of the Superior Court reported at 172 Pa.Super. 463, 94 A.2d 136, 139, which reversed the order of the Court of Quarter Sessions of Allegheny County sustaining motions in arrest of judgment made by the defendants following their conviction by a jury of conspiracy and fraudulent conversion. The Superior Court entered the following judgment: ‘ The order is reversed, the verdicts are reinstated, and the defendants are ordered to appear in the court below for sentence at such time as the court shall direct.’

In addition to their motions in arrest of judgment, defendants moved for a new trial. The lower court made no disposition of the latter motions, stating that because of its arrest of the judgments, it was unnecessary to consider the motions for new trial.

For the reasons given by the late Judge Dithrich in his opinion for the Superior Court, we will affirm its conclusion that the lower court erred in sustaining the motions in arrest of judgment but we must reverse the action of the Superior Court in directing the defendants to appear for sentence, for the reason that defendants' motions for new trial remain undisposed of.

Accordingly, the judgment of the Superior Court reversing the lower court's order sustaining defendants' motion in arrest of judgment is affirmed, with direction that the record be remanded to the lower court for disposition of the defendants' motions for new trial.

MUSMANNO, Justice (dissenting).

The defendants are firemen of the Borough of McKees Rocks. In 1931 the then firemen of that municipality formed, through a first class charter obtained from the Court of Common Pleas, a non-profit corporation known as the McKees Rocks Firemen's Relief Association. It later also became known as the McKees Rocks Firemen's Protective Association.

In 1939 the Borough of McKees Rocks passed an ordinance providing that the McKees Rocks Firemen's Protective Association was to be officially recognized by the Borough Council ‘ as an organization formed for the purpose of maintaining an association for beneficial and protective purposes, to its members and their families in case of death, sickness, temporary or permanent disability or accident, from the funds collected therein.’ The ordinance did not set up any machinery for the collection, depositing, investing and distribution of funds. Each year the Borough Treasurer paid over to the Association the foreign insurance tax fund (allowed by Statute) and this fund was divided among the members with the understanding that they were ‘ to purchase self-insurance protection wherever they could.’

For eleven years this procedure was followed with the full knowledge of the borough officials, the fiscal officers and all those who had anything to do with the disposition of the foreign insurance tax fund. At no time during all those years did the firemen have any reason to believe that there was anything improper, much less illegal, about receiving these fees in addition to their modest wages.

The statute which authorized in the first instance the payment of these foreign insurance tax moneys to the fire departments throughout the State did not specify that the money was to be used in any particular manner except for the benefit of relief associations. It is common knowledge that the duties of a fireman subject him to hazards which in many respects imperil life and limb as much as those which press upon a soldier in battle. Pennsylvania has hundreds of volunteer fire companies composing thousands of firemen who are ready day and night to dash into the murky arena of fire, smoke, explosion and combustion without thought of compensation save the satisfaction of discharging one's duty to one's fellow man and one's community.

When the legislation here involved was enacted, there were more volunteer fire departments than paid departments, as indeed there are today. The assignment of the moneys in question partook of the nature of assistance vitally needed by the volunteer fire departments. Since even a paid fireman can never receive a salary commensurate with his risk of life and limb (as indeed who could ever pay a soldier adequately for what he undergoes?) it was decided to make no distinction between paid and unpaid fire departments.

In 1950, as the result of a grand jury investigation which initially was in no way concerned with fire departments or fire department funds, the defendants were charged with criminally accepting the foreign insurance tax funds which had duly and officially been paid to them by the Treasurer of the Borough of McKees Rocks. At the ensuing trial the firemen were convicted of fraudulent conversion and conspiracy.

A court en banc made up of Judges Kennedy, Adams and Drew found that the evidence was insufficient to sustain the verdicts, and discharged the defendants. The Commonwealth appealed to the Superior Court which reinstated the verdicts. The defendants then appealed to this Court which has affirmed the decision of the Superior Court.

By affirming the decision of the Superior Court, this Court has in effect legislated a new crime; it has created, through a decision which gives no reasons for its conclusions, a criminal offense which did not theretofore exist. It has, without so stating, overruled prior decisions of this Court covering similar transactions. The present Chief Justice, speaking for this Court in the case of Commonwealth v. Wiener, 340 Pa. 369, 375, 17 A.2d 357, 360, said, where a defendant had been convicted of fraudulent conversion:

‘ The question was not whether defendant had the right to withhold this money but whether in good faith he believed he had such right. He would be guilty of conversion under the statute only if at the time he retained the money he knew he was not entitled to it .’ (Emphasis supplied.)

The record in this case is absolutely barren of any evidence that the defendants were ever informed they were not entitled to the money officially paid to them by the treasurer of the borough. There was no evidence that the Auditor General, the State Treasurer, the borough officials, or any member of the McKees Rocks Fire Department, or any one else, officially or unofficially, ever even suggested that they should not accept the foreign insurance tax collections duly turned over to them by the Borough treasurer.

But there is something even more significant than this to emphasize the innocence of the defendants. Not only were they not informed that their acceptance of the foreign insurance tax fund was tainted with illegality; they were affirmatively notified by the decision of a Court of this Commonwealth that it was legal and proper for the McKees Rocks firemen to collect the tax fund paid to them by the Treasurer of their employer municipality.

In 1937 the McKees Rocks Firemen's Relief Association entered a suit against the First National Bank of McKees Rocks for $850.85, being funds which had been paid over by the Commonwealth from foreign fire insurance tax collections. The bank petitioned for an interpleader because another group of firemen also using the name of the McKees Rocks Firemen's Relief Association was claiming the same money. An issue was framed between Group A and Group B. Both groups were in fact the Relief Association, but at different times. Since civil service did not then and does not yet wholly protect firemen of McKees Rocks in permanency of position, a fireman's tenure can be as shaky as the ladder on which he stands in reaching through space to achieve a precarious burning ledge. Thus the members of Group A banked the money while they were the Relief Association. When they were ousted, Group B became the Relief Association. Not long afterward Group B fell in a political turnover and Group A again donned helmet and rubber boots, only themselves once more to slide down the slippery pole of dismissal. Thus, when the case was argued and decided in Court, Group A was not the Firemen's Relief Association of the day. The Court nonetheless decided for Group A on the basis that they were the Association when the money was paid by the Commonwealth. This established conclusively in law that title to the funds vested permanently in the Firemen's Association when paid. If what the Supreme Court says today...