10 A.2d 108 | Pa. Super. Ct. | 1939
Argued November 20, 1939. Broadly stated, the question raised by this appeal is whether a tax collector may, upon the insolvency of a *173 bank, set off against his individual indebtedness to the bank a deposit, consisting of tax collections and standing in his name as "Collector," at the time of the insolvency.
The First National Bank of Darby originally confessed judgment against the appellees, H. Walter Weaver and his wife, Charlotte, on April 18, 1928, for $6,000. Availing themselves of the privilege accorded by our Rule No. 56, the parties in interest have signed a statement of the case showing how the question arose and was decided in the court below, and setting forth only so much of the pleadings as they deemed essential.
From this statement we gather these material facts: On March 25, 1933, the Comptroller of the Currency of the United States appointed Albert J. Crawford conservator of the bank; he served in that capacity until January 23, 1934, when W. Macklin Witherow, the appellant, was appointed its receiver. We are not concerned with an intervening revival in 1933. The present controversy arises out of the issuing by appellant on April 11, 1938, of a scire facias to revive the judgment which by that time had been reduced to $912.90.
An original and amended affidavit of defense were filed in which it was pleaded that H. Walter Weaver was entitled to a set-off, in the amount of $913.56, against the $912.90 due on the judgment. A rule for judgment for want of a sufficient affidavit of defense was taken by the appellant receiver, thereby raising the question of the sufficiency of the averments of the amended affidavit with respect to the claim of set-off. After full argument the court below discharged the rule and dismissed appellant's motion for judgment in his favor; hence this appeal by the receiver, under the Act of April 18, 1874, P.L. 64, 12 Pa.C.S.A. § 1097.
The amended affidavit of defense is open to the criticism that it contains a number of conclusions of law, but the facts upon which the defense is based are thus specifically pleaded: "At the time of the appointment *174 of the said Albert J. Crawford as Conservator of [the] bank and the time of the appointment of the plaintiff as receiver thereof, defendant, H. Walter Weaver, had a deposit of $913.56 in bank in a checking account entitled `H. Walter Weaver, Collector.' Said account was one in which said H. Walter Weaver deposited moneys collected by him as tax collector. He was a collector of county, township and school taxes in the Township of Darby, in said county. . . . . . He has paid to each of said taxing units, . . . . . . all collections which were deposited in said account and which constituted the balance therein at the time [the] bank closed. He opened said account of his own volition as a matter of personal convenience, and not because of any legal requirement; . . . . . . Wherefore, the defendants claim they are now entitled to set off the aforesaid account of `H. Walter Weaver, Collector,' for $913.56 against the aforesaid balance of $912.90 and in consequence there is nothing due on said judgment."
The respective rights of the parties became fixed as of the date of the insolvency of the bank: Shipler et al. v. New CastlePaper Products Corp.,
On the other hand, this averment amounts to a clear admission that the entire "balance" in the account when the bank closed consisted of tax "collections."
Manifestly, the pivotal issue in this case relates to theownership at the time of the bank's insolvency of the balance in appellee's "collector" account.
As stated by Mr. Justice (now Chief Justice) KEPHART in Gordonv. Union Trust Co.,
As applied to the case at bar, the question is: Were the funds, attempted to be set off by appellee against his individual indebtedness to the bank, his own money, or were they moneys received by him as a result of the discharge of his official duties and held by him in a fiduciary capacity?
The court below held the money belonged to him individually and could therefore be set off against his individual indebtedness.
Our consideration of the case has led us to a different conclusion. There seems to have been no decision by an appellate court of the proposition here involved *176 as applied to a tax collector's account. We have, however, a number of declarations by our Supreme Court of applicable general principles and, in addition, several legislative enactments declaratory of the capacity in which tax collectors hold the proceeds of their collections.
Hunter, Receiver, v. Henning,
The case of Franklin Trust Co. of Philadelphia, supra, [
Here, the ownership of the fund is the very point in issue. Apparently recognizing this to be the issue, appellee included in his affidavit an averment reading: "All moneys deposited in said account were deposited therein at his risk and were his moneys." These averments are merely conclusions of law. The question whether the funds comprising the balance in the account were so individually the property of appellee as to entitle him to set them off against his individual indebtedness cannot be summarily disposed of by his mere averment that they "were his money." If it could, this appeal would not be here. *177
As observed by the Supreme Court in Trestrail, Admr. v.Johnson, Sheriff,
As we have seen, appellee's affidavit contains no averments of any facts tending to rebut the presumption arising from the addition of the word "Collector." *178
When we turn to a consideration of the legislative declarations upon the subject with which we are concerned, we think it becomes quite clear that the fund now attempted to be used as a set-off was not the individual property of the appellee but was held by him in a fiduciary capacity.
Sections 18 and 19 of the Act of April 11, 1799, 3 Sm. L. 393, 72 PS Secs. 5733-5734, authorized the seizure of the person, and sale of the property, of a delinquent tax collector upon his failure to pay over to the treasurer of the county all sums due on his duplicate. Because this act provided a specific statutory remedy, it was held, prior to the Act of June 3, 1885, P.L. 72, hereinafter considered, that an indictment would not lie against a tax collector for embezzlement of the tax moneys received by him: Hellings v. Commonwealth, 5 Rawle 63.
The Act of April 15, 1834, P.L. 509, Sec. 49,
The next enactment upon the subject was the Act of June 3, 1885, P.L. 72, 18 Pa.C.S.A. § 2573. The first section thereof provides in part: "If any person charged with the collection, . . . . . . of any state, county, township, school, city, borough, or municipal taxes . . . . . . shall convert or appropriate the moneys so collected, or any part thereof, to his own use in anyway whatever, or shall use by way of investment in any kind of property or merchandise any portion of the money so collected by him from such tax or taxes, . . . . . . every such act shall be deemed . . . . . . an embezzlement . . . . . . which is hereby declared a misdemeanor." (Italics supplied.)
As the present Chief Justice, while a member of this *179
court, stated in Commonwealth v. Sitler,
The first headnote in Commonwealth v. Mahon,
Can it be doubted that if appellee had been permitted prior to the closing of the bank to apply the balance in his "collector's" account to the payment of the judgment held against him individually by the bank, he would have been guilty of an embezzlement of that money?
It follows, in our opinion, that he cannot now be permitted to use the $913.56 here in question as a set-off against the judgment upon which the scire facias issued, and that his amended affidavit of defense was insufficient.
The order discharging the rule for judgment for want of a sufficient affidavit of defense is reversed, the rule is reinstated, and the record is remitted with instructions to the lower court to enter judgment against the defendant for such sum as to right and justice may belong, unless sufficient legal or equitable cause be shown to the said court why such judgment should not be entered. *180