Appeal, No. 25, March T., 1963, from judgment of Superior Court, April T., 1962, No. 141, affirming judgment of Court of Quarter Sessions of Armstrong County, Sept. T., 1961, No. 74, in case of Commonwealth of Pennsylvania v. Joseph E. Yobbagy. Judgment reversed.
Vincent M. Casey, with him Richard S. Graff, Arnold D. Smorto, and Margiotti & Casey, and Smorto & Creany, for appellant.
Harry A. Heilman, Jr., District Attorney, with him D. Dale Claypool, Assistant District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Joseph E. Yobbagy (Yobbagy) and Andrew A. DiEmidio (DiEmidio) on March 15, 1960 were employees of the Commonwealth assigned to the duties of the Mine Drainage Unit of the Sanitary Water Board of the Department of Health.*fn1
"On March 15, 1960 [Yobbagy and DiEmidio] 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 [DiEmidio and Yobbagy] 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 said he did not think she needed to worry, and then suggested that she walk down the hall with him."*fn2
Mrs. Farester testified as to what took place at that time between Yobbagy and herself: "Q. What did [Yobbagy] say, to the best of your recollection, to you? A. The best of my recollection was that this thing could be taken care of. And at first, I had a hard time getting it through my head exactly what he meant, and finally I said to him, 'Co you mean that this would be a payoff.' And I don't recall his exact words, but he gave me to believe - By the Court: No, what he said as near as you can. A. As near as I can recall [Yobbagy], said, yes, that Mr. DiEmidio could be talked to, that he was the eyes and the ears of the Sanitary Water Board, and only what he saw - . ... A. - what he saw was reported to the Ebensburg office." Mrs. Farester then told her husband of this conversation with Yobbagy in the hall.
"The four of them [Mr. and Mrs. Farester, DiEmidio and Yobbagy], along with a stenographer and the company's manager, went into the company's office. For a time they examined the permit, a map and other documents together. Then Mr. Farester, the company's business manager, and DiEmidio went into a private office.*fn3 There DiEmidio told Farester that if he made this 'pay-off' they would see to it that he was not bothered, - that they would take care of it, and the Faresters could hurry up and strip that coal out and back-fill and everything would be all right. Farester bothered, - that they would take care of it, and the but maybe he could scrape up a couple hundred dollars a piece. A check was then made out for $400 and taken to the bank and cashed by a stenographer who gave the cash to DiEmidio. He put it into his pocket, joined Yobbagy in the other room and the two of them left the company's office together. The Faresters continued to operate without interference but several weeks later
DiEmidio returned alone and collected another $300. DiEmidio subsequently signed a confession admitting the collection of $700. There is no evidence that Yobbagy received any of the money."*fn4 In DiEmidio's written ...