Appeal, No. 325, Oct. T., 1962, from judgment of sentence of Court of Quarter Sessions of Montgomery County, June T., 1960, No. 495, in case of Commonwealth v. Samuel M. Glass. Judgment of sentence reversed.
Leonard F. Markel, for appellant.
Harold W. Spencer, District Attorney, with him W. C. Cahall, III, Assistant District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 199 Pa. Super. Page 544]
OPINION BY MONTGOMERY, J.
After having served twelve years as the elected sheriff of Montgomery County (third class) appellant retired from that office on the first Monday of January, 1956. Thereafter, the continued his control over a bank account in the Montgomery Bank and Trust Company which he had opened in his name as sheriff when he first took office in 1944, and into which he had deposited all money he had received in the operation of his office. His salary and the salary of his deputies were paid by Montgomery County and not deducted from the fees he collected.*fn1
[ 199 Pa. Super. Page 545]
As of the date of appellant's retirement, the account showed a balance of $112,651.73, subject to outstanding checks which when cleared reduced it to $93,565.96. Said balance consisted of: (a) deposits made by litigants or their attorneys to indemnify the sheriff for costs and expenses in cases being processed by him, as authorized by the Act of 1923, P.L. 347, 16 P.S. 2662, and the Act of May 9, 1949, P.L. 927, § 3, 16 P.S. 11303; (b) money of litigants in uncompleted cases, but not payable to or claimable by them as of that time; (c) moneys from completed cases them payable to parties other than the County of Montgomery to which the payees' right had been established; (d) possibly $180 of appellant's personal money which he had deposited to open the account in 1944.
All fees and commissions which had been earned by the appellant in his office prior to his retirement and which were the property of Montgomery County under the constitutional provision and statutes set forth in footnote 1, had been properly accounted for and paid monthly to the county treasurer at or prior to appellant's retirement. They constituted no part of said balance.
Following his retirement, appellant was billed monthly by his successor, Peter j. Reilly, for costs and commissions he had earned in completing cases that had been started during appellant's administration and for money due litigants as a result of such litigation. The bills were honored and paid as received, the payments totaling approximately $60,000. From the letters appearing as exhibits there appears to have been close cooperation between the two men to adjust these accounts. Until January 21, 1960, there was no general demand made by Mr. Reilly upon the appellant for delivery or payment of all moneys in his hands, regardless of the status of the litigation, as is provided for in the 1955 County Code, Aug. 9, P.L. 323, § 407,
[ 199 Pa. Super. Page 54616]
P.S. 407. Appellant responded to that demand and closed out the account with the delivery of a check dated June 21, 1969, to the order of Peter J. Reilly, Sheriff, and Montgomery County, in the amount of $35,119.87. This check was endorsed by Sheriff Reilly to the County of Montgomery and the proceeds of same are now held by its treasurer ...