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COMMONWEALTH v. SOUDER (01/11/54)

January 11, 1954

COMMONWEALTH
v.
SOUDER, APPELLANT



Appeals, Nos. 184 to 197, incl., March T., 1953, from judgments of Superior Court, April T., 1952, Nos. 133 to 146, inclusive, reversing orders of Court of Quarter Sessions of Allegheny County, Feb. Sessions, 1951, in cases of Commonwealth of Pennsylvania v. George W. Souder et al., and Same v. Thomas Cairns et al. Judgments affirmed.

COUNSEL

James P. McArdle, for appellants.

Harry A. Estep, with him Charles D. Coll, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 376 Pa. Page 79]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from the decision of the Superior Court reported at 172 Pa. Superior Ct. 463, 94 A.2d 136, 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.

[ 376 Pa. Page 80]

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 is 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.

Disposition

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.

ING OPINION BY MR. JUSTICE MUSMANNO

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 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

[ 376 Pa. Page 81]

(allowed by Statute) and this fund was divided among the members with the understanding that they were "to purchase ...


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