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COMMONWEALTH v. NEFF ET AL. (06/15/61)

June 15, 1961

COMMONWEALTH
v.
NEFF ET AL., APPELLANTS.



Appeals, Nos. 1, 2, 3, and 4, April T., 1961, from judgments of Court of Quarter Sessions of Beaver County, Sept. T., 1959, No. 22, in case of Commonwealth of Pennsylvania v. Samuel G. Neff et al. Judgments of sentence affirmed.

COUNSEL

John Alan Conte, with him Paul E. Courtney, Blair F. Gunther, and Conte & Courtney, for appellants.

Richard P. Steward, District Attorney, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Nontgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 195 Pa. Super. Page 422]

OPINION BY ERVIN, J.

Samuel G. Neff, chairman of the Democratic Party of Beaver County, James S. Macry, secretary of the Democratic Party in Beaver County, Robert Yoho, assistant superintendent of the Pennsylvania Department of Highways, and Leon Kaleta, foreman of the Department of Highway in Beaver County, were convicted of (1) common law extortion and (2) conspiracy to extort money from contractors leasing equipment to the Department of Highways in Beaver County. The court below concluded that Neff and Macry were not public officers or quasi-public officers within the meaning of the common law relating to extortion and arrested judgment as to them on the extortion charge. After dismissing the motion in arrest of judgment as to Yoho and Kaleta on the extortion charge and as to all defendants on the conspiracy charge and after dismissing the motions for a new trial as to all defendants, the court below imposed sentence upon all four defendants. They have appealed.

From the evidence the jury could have found that Edward Nitsche, who was an employe of the highway department and who plead guilty and was the principal witness for the Commonwealth, was taken to Neff's home by Yoho sometime in the winter of 1955-56; that shortly after they arrived, Macry came in; that the discussion in Neff's home related to raising funds for Neff's campaign; that Nitsche was designated to secure money from contractors whose equipment was being used by highway department; that Neff said

[ 195 Pa. Super. Page 423]

    they ought to pay "at least five per cent"; that Neff said Nitsche knew the county better than anyone else and that he should go and contact the contractors; that in January 1956 Nitsche began collecting five per cent from contractors who rented the use of equipment to the highway department; that on one occasion a contractor named Rocco paid Nitsche $200.00; that he said to Nitsche, "You know you can be arrested for this."; that Nitsche reported to Neff what Rocco had said and Neff told Nitsche, "Well, don't ask him for anything more"; that Edward Biardo told Nitsche, "I will give $1000.00 toward the campaign if you get me a grader on for summer work"; that Nitsche informed Neff of the offer and Neff said, "Well, go ahead and see if you can get an agreement through for him"; that Yoho and Kaleta collected money from renters of equipment and they gave the money to Nitsche; that Nitsche delivered the money to Neff with a paper showing who had paid the money; that on two occasions Nitsche turned the money over to Macry pursuant to the understanding at the initial meeting; that subsequently Neff told Nitsche, "Turn the money over to me. I don't trust Macry"; that Neff instructed Nitsche not to cancel agreements but if contractors did not pay, not to let them work; that Nitsche secured from the payroll clerk a list of the amounts paid to contractors, thereby enabling him to compute the five per cent to be collected by him; that subsequently Nitsche secured the checks from the chief clerk and delivered them to the contractors from whom he collected; that Harry Harden arranged with Neff to put his equipment on highway work; that Yoho and Nitsche requested that Harden pay five per cent; that he refused to do this and his equipment was not used after the spring of 1957; that Nitsche told Leland Peters, who had equipment on highway work in May 1956, that he would have to kick back five per cent;

[ 195 Pa. Super. Page 424]

    that Peters refused to do so and was replaced by a Democratic committeeman; that Clarence Corbin agreed with Nitsche to pay five per cent for the benefit of the party; that he paid money to Nitsche, Yoho and Kaleta; that Nitsche told Grayn Denny in January 1956 that there had been a meeting with Neff and Macry and they decided the contractors should pay five per cent for campaign funds; that Denny paid five or six hundred dollars; that Kaleta had told Denny to pay the money before Nitsche had approached him; that Denny paid on one occasion when Neff was present and Nitsche said to Neff, "I have yours"; that in January 1948 Denny picked up four five per cent checks from Carl Tragesser, Sr.; that previously Kaleta had said to him, "You can be replaced; you collect it or else"; that Edware Walton testified that Nitsche approached him relative to the five per cent payments and told him he would have to kick in or he wouldn't work; that John S. Brkich said Yoho told him he should inform Joseph Bogovich that it had been decided that Bogovich should give five per cent for a fund for campaign purposes; that Brkich collected and paid the money to Yoho; that Bogovich, on another occasion, paid money to Nitsche in the presence of Buttermore, the superintendent of the highway department; that Buttermore was present when Mrs. Corbin gave money to Nitsche; that in the latter part of 1956 Buttermore observed Nitsche, on two occasions, giving money to Neff; that Hasenkopf, a superintendent in the county, said he observed Nitsche giving money to Neff on one occasion; that the names of Harden, Corbin, Denny and Walton do not appear as contributors in any political campaign expense account filed in the Burean of Elections of Beaver County for the primary or election of any pertinent year.

[ 195 Pa. Super. Page 425]

Counsel for the appellants first argued that the court erred in ruling that the six-year statute of limitations was applicable to the crime of extortion by a public officer or employe and to the crime of conspiracy to extort. The Act of April 6, 1939, P.L. 17, § 1, 19 PS § 211, amended the Act of 1860 as follows: "... And provided also, That indictments for malfeasance, misfeasance, or nonfeasance in office, or for extortion or blackmail by color of office, or for embezzlement of public moneys or property or fraudulent conversion of public moneys or property, or for any misdemeanor in office, or for any conspiracy to commit any of said offenses heretofore or hereafter committed by any Officer or employe of this Commonwealth or of any agency thereof, or of any city, county, borough, township, or school district or of any agency thereof, and their accomplices and confederates, may be brought or exhibited at any time within two years from the time when said public officer or said employe shall have ceased to occupy such office or such employment, but in no event more than six years from the commission of the offense." (Emphasis supplied) It is argued that "The provision of two years from the leaving of office or employment and its alternative of in no event more than six years from the date of the offense cannot stand alone. Its construction requires the addition of these words - 'whichever is shorter.'" The only defendant in the extortion charge to which this argument applies is Robert Yoho. He left office on March 29, 1957 and was not indicted until September 18, 1959. It is argued that since more than two years intervened after he left office that the 1939 amendment does not apply and that the statute of limitations is two years in his case. We do not agree with this argument. The indictment was presented or found within six years from the commission

[ 195 Pa. Super. Page 426]

    of the offense and the amendment of 1939 is applicable to his case.

Counsel have not furnished the court with any appellate court decisions interpreting the 1939 amendment as applied to the facts of this case. Our independent research has revealed no appellate court decision on this point. It is our opinion that the legislature never intended an interpretation such as is now presented by counsel for the appellants. We believe that it was the intention of the legislature to fix a six-year period of limitation from the commission of the offense, notwithstanding the fact that the indictment may have been presented or found more than two years after the officer or employe left his employment. If we were to adopt the reasoning suggested by the appellants, we would be obliged to rule as follows:

Offense Left Employment Indictment Found

A Jan. 1, 1956 Jan. 1, 1957 Jan. 1, 1960

B Jan. 1, 1952 Jan. 1, 1957 Jan. 1, 1958

A could not be indicted because he left his employment more than two years before the indictment was found. In A's case the indictment was found within four years of the offense. B could be indicted because he left his employment one year before the indictment and the indictment was within six years of the commission of the offense. A, who was indicted four years from the offense, would go free and B, who was indicted six years from the offense, would have to stand trial. ...


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