*1 Irwin for appellant. Paul, for appellee. George Gershenfeld, Opinion 1962: November Per Curiam, Philadelphia Court order of the County Edward A. Judge opinion on the is affirmed &D. at 28 Pa. reported for the court below, Kallick C. 2d 520. Appellant.
Commonwealth v. Glass, *2 Argued September J., 1962. Before Rhodes, Ervin, Wright, Montgomery, Woodside, Watkins, JJ. Flood,
Leonard F. for appellant. Markel, *3 him Harold W. District with Spencer, Attorney, for G.W. Assistant District Cahall, III, Attorney, appellee. Commonwealth, by
Opinion 1962: November J., 15, Montgomery, sher- After served the elected having years twelve as appellant iff (third class) of Montgomery County January, from office on the Monday tired that first a bank continued control over 1956. he his Thereafter, Company Bank and Trust Montgomery account in the he in name sheriff opened had his as when he Which de- into had in and which he took office 1944, first operation had received in the he money all posited deputies of his salary and salary office. His his and not deducted County Montgomery paid by he collected.1 the fees from 150,000 County having population a of over had a Pennsylvania 14, provided §5 in art. Con as sheriff salaried 1876, 31, 13, §1, 7841; stitution; March L. P. 16 P.S. Act 1955, Aug. 9, 323, County §§1601-1604, P. L. Code and 1601-1604. P.S.
As of appellant’s date of the account retirement, showed a outstanding balance of to $112,651.73, subject checks which when cleared reduced it to $93,565.96. Said liti- deposits balance consisted made by of: (a) or for gants their attorneys to the sheriff indemnify and in costs expenses being processed by cases him, authorized Act 16 P.S. 2662, L. 347, 11303; and the Act of P. L. P.S. May 9,1949, §3,16 not (b) in money litigants uncompleted but cases, to (c) payable or claimable them of that time; from moneys completed parties then payable cases other than to which County of Montgomery right had been payees’ established; (d) possibly $810 of appellant’s had personal deposited which he money in open account 1944.
All fees been earned and commissions which had appellant retirement prior his office his under property Avhiehwere the of Montgomery set forth provision constitutional statutes for footnote had been accounted properly appel- at prior treasurer monthly county said part constituted no They retirement. lant’s balance. billed his was retirement,
Following for Peter J. costs Reilly, his monthly by successor, earned in completing he had cases commissions during appellant’s administration started had been as a result of such litigants litigation. due for *4 received, pay- honored and were bills The let- $60,000. From the approximately totaling ments appears there been exhibits have appearing ters adjust the two men to these between cooperation close 21, 1960, gen- there was no January Until accounts. upon Reilly Mr. for made demand eral in his moneys of all hands, or payment delivery provided of the as is litigation, status of the gardless Aug. P. L. County Code, 9, §407, 323, 1955 for in 546
16 P.S. 407. Appellant responded to that demand out closed the account check with the of a delivery dated June to the order of J. 21, Reilly, Peter 1960, of Sheriff, the amount Montgomery County, This check endorsed $35,119.87. Reilly was Sheriff of proceeds and the of same County Montgomery are now held its treasurer awaiting the outcome of of litigation now determine the pending ownership same.2 prosecutions
The in this other cases as well as the begun were about and resulted August 1960, 24, on appel- verdicts of five indictments guilty charging lant with of the Coun- fraudulently converting moneys between Janu- ty Montgomery January 2, 1959, Appellant was on one of 1960. sentenced ary 20, sentence on the others. suspended was indictments imposition followed the sentence. appeal This at various appellant made withdrawals Admittedly, per- account under from the discussion for his times of another. The total use and the use amount sonal Al- approximately $15,000. these withdrawals was redeposited and consti- subsequently were though they payment final to his successor and part tuted redeposit is not a defense, such County, Montgomery committed. Common- previously had been crime if the Pa. Ct. Superior A. 2d v. Spiegel, wealth 692. before us is the status of issue primary
The Appellant account. bank contends in the funds incident subject only obligations funds his they parties. third situation with debtor-creditor ato contends were the they properly attorney district Montgomery County, Pleas of No. Common In Court Glass, Equity, Term, Samuel M. Plaintiff Peter J. In 13 June Commissioners Reilly, Sheriff defendants, filed June 1960. Montgomery County, *5 the Montgomery approved County. lower court as the jury contention prosecution charged the and property á matter of that the law all of the funds were to or that treasurer entitled county its was L, ceive them; May and cited the Acts of 23, 1945, P. L. 16 P.S. and of 870, §2, May 17, 1949, Un- Municipal 27 P.S. §§1-6, known as the 491-496, claimed Moneys Act. it
From court the lower charge opinion the apparent account, is in the that it considered the funds per- the to as the exception with referred $810 two sonal but as within appellant, coming to (a) fees commissions categories, belonging money payable or unclaimed (b) County, Moneys its treasurer under Unclaimed Municipal Act. it fails adopt analysis We cannot this since Legislature recognize distinction made by recited 407 of The Code hereinbefore section de- funds that on payable P.S. between are (16 407), are which public and those mand to officers succeeding act to unclaimed relating funds, under the payable to the facts. contrary is fees that
At the record demonstrates all the outset, during appellant’s earned office by and commissions after paid Montgomery County, had been his terms controller’s by county cash book of his a review by such earned fees offered A office. statement from C-7) year shows each (Exhibit Commonwealth remaining a sizeable balance inclusive, office expenses salaries deducting the after rec We find nothing Earned”. “Fees from the of records or the with falsifying indicating any ord appellant. by and commissions fees earned holding and commissions were fees unearned all Since earned they successor appellant’s demanded withheld be said cannot it him, commissions owned Mont fees used improperly *6 over gomery County. court seems to have lower looked the distinction commis between earned fees and sions, deposits of to to sub cover fees be indemnity earned. In rel. sequently Margiotti Commonwealth ex v. status 337 Pa. 10 A. 2d the Cunningham, 289, 559, fur of such requires is no money fully discussed ther are until than to state that fees discussion, other earned deposits are not of either indemnity property the the or sheriff or the but to belong litigants county, their attorneys deposits. who made the Mu-
We have no doubt that the Legislature by the the nicipal Unclaimed Moneys Act intended to exercise of sovereignty the Commonwealth to take charge is abandoned or the owner of which property, property In unknown. Germantown Trust v. Company Powell, Pa. 108 A. “That the it is stated: 441, to fix a power presumption State has time when the death of or abandonment of the property, the owner, idea open arise cannot be to . .” The may . question, loss of abandonment reason disinterest, death, the reason for the vari- identity is basic owner’s Unclaimed Municipal acts the including ous escheat under discussion. Act Moneys Municipal Unclaimed Act Moneys Clearly, expira- while well as at the quired appellant, sheriff, county term of to to the pay of his last office, tion third parties in that moneys all his hands treasurer remained unclaimed; but but it is claimable were did not compel that it him to over clear pay equally litigants to either payable not as the result yet money from deposits refunds or as indemnity litigation his costs fees. These proper were to cover made to his successors. paid be to items does contain part record evidence that However, items that did cover should properly account this act. under to According Henry paid been have appellant’s in deputy there were office, a Pennington, such moneys payable sum a fines, lying-in expenses, due the county account library, etc., remaining as of the date retired from office. is There also some evidence that some of sub- paid these sequently by appellant directly parties entitled to receive them. money This should have been “for treasurer county safekeeping” payment rightful owners. there is However, nothing Municipal Unclaimed such Moneys Act declaring belong Montgomery County. conclude
Without this we prolonging discussion, from charges of the indictment find no support the facts or No the law. *7 appellant was converted to his use own An owner- allegation particular the use of others. in of funds to be converted is
ship alleged necessary Pa. indictment. Commonwealth v. 87 the Shanklin, Ct. 53. Superior these is reason why there another
Furthermore, is it fail. The under which prosecutions must act prop- it convert fraudulently makes crime a brought person.” Section 103 other “belonging any erty 18 June L. 872, Act of Code, 24, 1939, The Penal co- to include “person” “individual, defines P.S. and corporation.” association partnership, fall not within does political subdivision, a County, Pa. (No. v. Smith 2), Commonwealth definition. A. 73. Ct. Superior just for be sustained the reasons must appeal
This to decide unnecessary it therefore, is, discussed us as constitutionality before issues other Act which we have stated Moneys Unclaimed Municipal Stat- proper in this matter, application no has applicable. is which Limitations ute judgment of sentence reversed sustained, Appeal discharged. appellant Dissenting Opinion P. J.: Rhodes, Judge affirm on I dissent the court below would conviction of Honeyman'S opinion ap- sustaining funds for fraudulent conversion. pellant Plainly, in received on by appellant the account were behalf ap- they belong did not County Montgomery; converted substantial pellant. Admittedly, personal Ap- to his amounts these funds own use. in- guilty charged pellant was, substance, and the conviction should not be set aside dictments, on the adopt- unrealistic basis appellant discharged majority. ed Unemployment Compensation
Daniels Case. *8 1962. November Before J., Argued Rhodes, Watkins, Wright, Montgomery, Flood, Ervin, absent). J., JJ. (Woodside,