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COMMONWEALTH v. BOLLINGER (03/21/62)

March 21, 1962

COMMONWEALTH
v.
BOLLINGER, APPELLANT.



Appeals, Nos. 37 to 41, inclusive, March T., 1962, from judgments of Court of Quarter Sessions of York County, Oct. T., 1960, Nos. 84, 85, 86, 87, and 92, in case of Commonwealth of Pennsylvania v. Clair L. Bollinger. Judgments reversed.

COUNSEL

Victor Dell'Alba, with him Bergdoll, Dell'Alba & Noll, for appellant.

Frank B. Boyle, District Attorney, with him Jesse L. Crabbs, First Assistant District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 197 Pa. Super. Page 493]

OPINION BY WRIGHT, J.

Clair L. Bollinger was brought to trial in the Court of Quarter Sessions of York County on five bills of indictment, each charging extortion in the first count and cheating by fraudulent pretenses in the second count. The trial covered a period of four days, and there is a voluminous record. In each case the jury returned a verdict of guilty on both counts. Motions by the defendant for a new trial and in arrest of judgment were overruled, and sentences were imposed. These appeals followed.

The record discloses that appellant was the duly authorized constable in and for the Borough of Spring Grove in York County. He was also licensed to conduct a private detective business under The Private

[ 197 Pa. Super. Page 494]

Detective Act,*fn1 and maintained an office at 54 South Beaver Street in the City of York. For over twenty-five years, William M. Nickey has been Alderman for the Sixth Ward of the City of York, maintaining an office at 249 East Poplar Street. By virtue of an arrangement with Nickey, appellant was called upon to serve a substantial portion, if not all, of the process originating in the alderman's office. Some of the work was performed by the appellant personally, and some by persons in appellant's employ. One such person was the Sixth Ward Constable, Harvey A. Stambaugh. Another such person was William A. Caffero, a duly appointed Deputy Sheriff in and for York County. Alderman Nickey had a large volume of business and employed two secretaries, Mildred G. Hunt and Eva M. Harlock. The appeals before us arise out of five criminal prosecutions originating in his office, as follows: Commonwealth v. Phillips, 239 January Sessions, 1959; Commonwealth v. Williams and Kirkland, 152 January Sessions, 1960; Commonwealth v. Leonard, Hickman and Mallory, 74 April Sessions, 1959; Commonwealth v. Dorsey, 163 April Sessions, 1959; Commonwealth v. Zinc, 112 April Sessions, 1959.

It was the theory of the Commonwealth that, in each of the aforesaid cases, appellant submitted bills of costs and received payment for services which he did not perform and to which payment he was not entitled; that this was done (1) wilfully and fraudulently by color of appellant's public office wherefore he was guilty of extortion; and (2) as a result of false pretenses by virtue of which appellant intended to cheat and defraud the County of York wherefore he was guilty of cheating by fraudulent pretenses. Appellant frankly admitted that, in large part, he had not performed the services personally. He also admitted that

[ 197 Pa. Super. Page 495]

    he signed the bills of costs in blank, and that they were subsequently filled in by one of the alderman's secretaries. His theory was that the services were performed by authorized persons acting under his direction, that the fees received were proper in amount, that in no instance was the County of York called upon to make double payment, and that he had no criminal intention for the reasons (a) that the practice which he followed was in accord with the custom which prevailed in York County, and (b) that he ...


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