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DISTRICT 65

October 14, 1953

DISTRICT 65, DISTRIBUTIVE, PROCESSING AND OFFICE WORKERS UNION OF NEW YORK AND NEW JERSEY et al.
v.
McKAGUE et al.



The opinion of the court was delivered by: GOURLEY

The question before the court arises out of defendants' motion to dismiss plaintiffs' Bill of Complaint, Rule 12(b) of the Federal Rules of Civil Procedure, 18 U.S.C.

The question was originally argued before my late associate, The Honorable William Alvah Stewart, but no conclusion or adjudication was entered prior to his death.

 Written stipulation had been executed by counsel for the parties wherein it has been agreed the court shall consider the question presented without additional hearing, and no useful purpose could be served by further argument or presentation.

 Certain persons in whom the plaintiffs were interested were indicted in the Court of Quarter Sessions of Westmoreland County, Pennsylvania, for the violation of a law of the Commonwealth of Pennsylvania. Cash bail was posted with the Alderman for each of the defendants in the state proceeding by Attorney Joseph Bonidy, Sr., which cash bail was made available to him by the plaintiffs in the proceeding before this court. Subsequent thereto, the persons for whom said bonds were posted with the Clerk of the State court requested the Clerk in writing to return the cash bail to Patrick McKague, Esq., their counsel, with authorization given to their counsel to use the bail returned as he sees fit. On the basis of said written authorization, the Honorable John M. O'Connell, Judge of said court, directed Jay W. Kromer, Clerk of Courts, to turn over the amount of said cash bail to Patrick McKague, counsel for the defendants in the state proceeding.

 The defendants in the proceeding in this court, in support of their motion to dismiss, contend that the complaint fails to state a claim upon which relief can be granted on behalf of the plaintiff Union against Jay W. Kromer, Clerk of Courts, and/or Patrick McKague, Esq.

 On a motion to dismiss, the complaint must be viewed in the light most favorable to the plaintiff and should not be dismissed unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 1948, 169 F.2d 580; Continental Collieries, Inc., v. Shober, 3 Cir., 1942, 130 F.2d 631.

 Claim Against Defendant Kromer

 In the plaintiffs' claim against Kromer, it is contended that Kromer knew that McKague had no right to accept the cash bail and, therefore, his action was illegal even though the defendants in the State proceeding agreed the cash bail should be delivered to McKague and the court authorized said payment by Kromer to McKague.

 The applicable provisions of the law of Pennsylvania as to the authority of the Clerk of a State court provide as follows:

 'In all criminal or quasi criminal prosecutions, in any of the courts of quarter sessions and oyer and terminer or other courts of record having jurisdiction, desertion or non-support and surety of the peace, pending in the said courts of this Commonwealth, in lieu of bail and recognizances with surety or sureties thereon required and approved by the court, the party or parties required to give and enter said bail or recognizances, or any other person or persons in their behalf, are hereby authorized and allowed to deposit, with the clerk of the respective court in which said prosecution or proceeding is pending, the amount in which bail or recognizance is required, in current funds of the United States, and said deposit shall be sufficient bail or recognizance, upon the defendant or defendants entering his or their own bail or recognizance in the prosecution or proceeding, to which said defendant or defendants would be entitled under existing laws by entering bail or recognizance with sufficient surety or sureties approved by the said court.' 19 P.S. ยง 71.

 Section 72 of Title 19 of Purdon's Pennsylvania Statutes Annotated contains provisions relating to the disposition of these cash deposits in lieu of bail and recognizances with surety and provides that:

 'In case there is no forfeiture or breach of condition of the bail or recognizance entered by the defendant or defendants in the prosecution or proceeding, and the same is terminated, then, upon the order of the court, the clerk shall pay said money deposited to the defendant or defendants, or to the person or persons depositing the same in their behalf, after the deduction of his commission as hereinbefore provided.'

 According to the allegations of the complaint, there was no forfeiture or breach of condition of the bail so that this provision is applicable hereto.

 Plaintiffs advance the thesis that the Clerk of the Court of Quarter Sessions is personally liable for following an order of a judge of that court which he deems to be erroneous in nature. To accept this view would necessarily repose upon the Clerk of the Court of Quarter Sessions the responsibility of ruling on the legality or illegality of an order entered by a judge of that court. No legal authority exists to support such a radical proposition. Had the Legislature intended that the Clerk have the final responsibility for the disposition of these funds, I would be required to treat the language of the statute 'upon the order of the court' as surplusage. It seems obvious that this provision places the responsibility on the court and not on the Clerk. *fn1" To construe the provision ...


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