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COMMONWEALTH v. DIEMIDIO ET AL. (06/15/62)

June 15, 1962

COMMONWEALTH
v.
DIEMIDIO ET AL., APPELLANTS.



Appeals, Nos. 141 and 143, April T., 1962, from judgments of Court of Quarter Sessions of Armstrong County, Sept. T., 1961, No. 74, in case of Commonwealth of Pennsylvania v. Andrew A. DiEmidio et al. Judgments affirmed; reargument refused July 14, 1962.

COUNSEL

Vincent M. Casey and Paul A. Cleason, with them Arnold M. Smorto, Richard S. Graff, and Andrew J. Gleason, and Margiotti & Casey, and Smorto & Creany, and Gleason & Krumenacker, for appellants

Harry A. Heilman, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Woodside

[ 198 Pa. Super. Page 573]

OPINION BY WOODSIDE, J.

This is an appeal from the judgments of sentence imposed upon two defendants after motions for arrest of judgments were refused by the court below.

Andrew A. DiEmidio and Joseph E. Yobbagy were each indicted for statutory extortion, common law extortion and conspiracy. A jury found DiEmidio guilty of common law extortion and conspiracy and he was sentenced to a fine and five months in jail. It found Yobbagy guilty of conspiracy only, and he was sentenced to a fine and three months in jail. Both defendants contend that they should be discharged because of an omission in the indictments and, in addition, Yobbagy contends that there was insufficient evidence to sustain his conviction.

Both defendants were employes of the Department of Health of the Commonwealth of Pennsylvania, and

[ 198 Pa. Super. Page 574]

    were assigned to the Mine Drainage Unit of the sanitary Water Board. DiEmidio, who was a Mine Drainage Engineer I, had been with the department 12 years, and Yobbagy, who was a Water Pollution Investigator, had been with the department since 1958. One of the duties of the defendants was to investigate and examine strip mining operations to determine whether they were being conducted according to law

On March 15, 1960, the defendants inspected the strip mining operation of the P. & L. Coal Company, a partnership of Peary Farester and Lucille E. Farester, his wife. It appeared to DiEmidio that the Faresters were stripping beyond the area for which they had secured a permit from the Sanitary Water Board. After DiEmidio and Yobbagy discussed the possible violation with Peary Farester at the scene of the mining operation, they went to the company's office to examine the permit and the blueprints and maps of the area. Because it was late in the afternoon when they arrived at the office, they agreed to meet there the following morning to discuss the matter further.

The next morning the defendants and the Faresters met at breakfast and then went to the company's office. Mr. Farester walked up the steps to the office with DiEmidio, and Mrs. Farester and Yobbagy followed them. Mrs. Farester said to Yobbagy that she was worried because they would lose everything if they were forced to close their operation for two or three months. Yobbagy ...


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