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COMMONWEALTH v. YARMARK (01/21/58)

January 21, 1958

COMMONWEALTH
v.
YARMARK, APPELLANT.



Appeal, No. 227, Oct. T., 1957, from sentence of Court of Oyer and Terminer and General Jail Delivery of the Peace of Adams County, Nov. T., 1956, No. 12, in case of Commonwealth of Pennsylvania v. Ronald W. Yarmark. Judgments affirmed.

COUNSEL

Morris Ploscowe, with him H. Thomas Pyle, and Brown, Swope and MacPhail, for appellant.

Daniel E. Teeter, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 185 Pa. Super. Page 278]

OPINION BY HIRT, J.

On February 13, 1956, the defendant, intending to buy a new Cadillac automobile, entered into a conditional sales contract with the dealer for $3,932.64, the amount of the unpaid purchase price, payable in 18 installments of $218.48 per month. The car was delivered to him but under the contract title to the car remained in the dealer, W. Raymond Black. Black assigned his interest in the contract to General Motors Acceptance Corporation. On April 10, 1956, by common consent, a different Cadillac automobile (the one here involved) was substituted for the car originally purchased, subject however to all of the terms, conditions, and schedule of payments of the remaining purchase price contained in the conditional sales contract. This substituted agreement was also assigned to General Motors Acceptance Corporation. The defendant defaulted his monthly payments due under the contract in March, in May 1956 and in subsequent months. He did make some payments therafter, however, but when the financing company repossessed the car on October 11, 1956, the defendant was in arrears in the total sum of $658.44. Because of the failure of defendant to perform on his contract and the unsatisfactory status of

[ 185 Pa. Super. Page 279]

    the account, General Motors Acceptance Corporation had elected to terminate the contract and defendant was notified to that effect. The automobile was repossessed by GMAC (as we will refer to the financing company) only after many futile attempts to contact the defendant. The corporation's agent, Woll, finally located the car on October 11, 1956 and after repossessing it stored it in a garage in Gettysburg operated by one C. W. Epley. On leaving the car with Epley he received from him storage Claim Check No. 43-585 in the usual form with the date "10-11-56" noted thereon. Woll notified Epley that the car was not to be removed from his garage except on surrender of the customer's portion of the claim check by one properly identified as a GMAC representative. Thereupon the registration plates were removed from the car and were returned to the defendant. Epley, as a precaution against unauthorized removal, deflated one front and one rear tire and removed a distributor wire from the engine. Woll then reported to his superior GMAC officer in Harrisburg and delivered the claim check to him.

One Vernon Thompson had worked for Epley for a number of years. On October 12, 1956, the defendant with one Miller, his chauffeur, talked with Thompson and again on October 15. As a result it was arranged among them that Thompson (when the opportunity was afforded without danger of being observed) would put air in the deflated tires and would have a new coil wire installed, which the defendant obtained in Harrisburg, thus readying the car for removal on its own power. According to Thompson and Cullison, another employe in the Epley garage, the defendant agreed to pay Thompson $25 for helping him get the car out of the garage. On October 17, Cullison with the defendant and Miller his chauffeur, left defendant's home in Aspers,

[ 185 Pa. Super. Page 280]

Adams County with the intention of removing the Cadillac automobile from the Epley garage. When they arrived in Gettysburg defendant sent Miller and Cullison to get a Ford automobile owned by a Miss Oates. When they returned with the Ford it was driven to the Epley Garage. Defendant then went up the steps into an apartment house across the street from the windows of which he could look into the Epley Garage and determine when the "coast was clear". He had told Cullison to follow Epley who, later reported that Epley was on the golf course. In the meantime Thompson, in order to account for the removal of the car from the garage had taken claim check No. 43-685 from a pack of similar storage tickets intended for future use. The number of the check selected was exactly 100 higher than the number on the original claim check delivered to GMAC on receiving the Cadillac car for storage. Thompson wrote the figures "10-11-56" on both parts of the spurious check and later gave the customer-part of the storage ticket to Cullison or Miller who delivered it to defendant, for presentation by him to another employe at the garage, in the attempt to get possession of the car. The other half of the spurious check was placed on the defendant's key ring hanging in the office of Epley's garage in place of the original which was removed and destroyed. The license plates from the Ford automobile were put on the Cadillac. Defendant paid the storage charges of $6 which was placed in the cash register ...


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