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COMMONWEALTH v. BURNS ET AL. (09/12/61)

September 12, 1961

COMMONWEALTH
v.
BURNS ET AL., APPELLANTS.



Appeals, Nos. 152 to 160, inclusive, April T., 1961, from sentence of Court of Quarter Sessions of Cambria County, June T., 1960, Nos. 102 to 106, inclusive, in case of Commonwealth v. Frank Burns et al. Judgments of sentence on charges of false pretense and conspiracy to cheat and defraud reversed; judgment of sentence on charge of extortion affirmed; reargument refused March 22, 1962.

COUNSEL

Vincent M. Casey, with him Arnold D. Sworto, Eugene A. Creany, and Margiotti & Casey, and Sworto & Creany, for Burns, appellant.

John W. Taylor, with him Myers, Taylor & Peduzzi, for Domenick, appellant.

Ferdinand F. Bionaz, District Attorney, with him W. Louis Coppersmith, Assistant District Attorney, for Commonwealth, appellee.

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

Author: Montgomery

[ 197 Pa. Super. Page 284]

OPINION BY MONTGOMERY, J.

Appellant Frank Burns was indicted for the crime of extortion; and both he and appellant Frank Domenick were indicted for obtaining property by false pretense, and conspiracy to cheat and defraud. They were tried jointly and the jury returned verdicts of guilty on all indictments. Motions for new trials and for arrest of the judgments were filed by both appellants and refused. Judgments of sentence were imposed and entered and these appeals followed.

The facts briefly stated are as follows: Frank Burns was the superintendent of the Cambria County Home located near Ebensburg, Pennsylvania, having been appointed to that office in July of 1940. Frank Domenick was the owner of the Home Baking Company also located in Ebensburg. Prior to 1954 the County Home operated its own bakery for the needs of its patients, but during 1954 the baking equipment became unusable and the County Commissioners resorted to other means of satisfying their bakery needs. For a while the county purchased bread commercially. Later, Burns suggested that he was able to have the bread baked for five cents a loaf at the Home Baking Company if the County of Cambria would furnish the ingredients. This was satisfactory to the County Commissioners and they subsequently procured the needed bakery products on this basis from Domenick and also from Barnett Sklar, who succeeded Domenick as owner of the Home Baking Company. The invoices, evidencing purchases of bread for all of the institutions under the control of the County Commissioners, were submitted to the County Controller and the County Commissioners bearing the approval of Burns. These invoices indicated payment

[ 197 Pa. Super. Page 285]

    for bread at the rate of five cents per loaf, the ingredients being supplied by the county. The false pretense and conspiracy indictments were based on the statements by Burns and Domenick that 509,750 loaves were delivered on this basis, whereas in fact, only 215,500 loaves had actually been delivered.

The extortion indictment is based on the charge that Burns received sums in excess of $3,000 from Domenick and Sklar, so that the contract for the purchases of bread by the county would be awarded to the Home Baking Company and continued with it after Sklar succeeded Domenick as the owner of same.

Testimony at the trial was to the effect that Sklar paid Burns a sum of $100 per month, beginning in October 1956, in order to continue the contractual relations that had existed between Domenick and the county, and that Domenick had made similar payments previously. Domenick and Burns conceded that these contributions had been made and received, but contended that they were political contributions to be used by Burns at his discretion. At no time were such contributions paid into the treasury of any political party. The appellants contended further that the agreement for the baking of bread at five cents a loaf, with the county providing the ingredients, had been superseded by an agreement to supply all needed bread and pastries to the county for $34.50 per day, plus ...


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