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J. RUSSELL BRODE v. VAN EMBURG (03/21/68)

decided: March 21, 1968.

J. RUSSELL BRODE, INC.
v.
VAN EMBURG, APPELLANT



Appeal from order of Court of Common Pleas of Montgomery County, No. 66-12436, in case of J. Russell Brode, Inc. v. Richard Van Emburg.

COUNSEL

J. Willard Schoelkopf, for appellant.

Stanford S. Hunn, with him Pearlstine, Salkin, Hardiman, Robinson & Hunn, for appellee.

Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Hoffman, J. Dissenting Opinion by Montgomery, J.

Author: Hoffman

[ 212 Pa. Super. Page 126]

Plaintiff, J. Russell Brode, Inc., brought this action in foreign attachment against its former employee, Richard Van Emburg. Its complaint alleged that Van Emburg overdrew his commissions in 1964, 1965 and 1966, caused personal insurance to be placed in his own behalf at plaintiff's expense, and fraudulently withdrew cash from plaintiff's cash drawer. Defendant left the employ of plaintiff and moved to New Jersey in 1966.

Defendant and his wife owned real estate in Montgomery County, Pennsylvania, as tenants by the entireties. This property was under agreement of sale to Robert K. and Dorothy E. Greaser. On October 11, 1966, the Van Emburgs and the Greasers gathered at the Red Hill Savings and Loan Association to make settlement. Also present, among others, was J. Willard Schoelkopf, attorney for the Van Emburgs. At that time, a deputy sheriff of Montgomery County, accompanied

[ 212 Pa. Super. Page 127]

    by Stanford S. Hunn, attorney for plaintiff, served the instant writs of foreign attachment on all those present.

In order to complete settlement, counsel for plaintiff and defendant entered into a stipulation which provided, in part:

"And now, this 11th day of October, 1966, it is stipulated and agreed by and between Stanford S. Hunn, Attorney for Plaintiff, and J. Willard Schoelkopf, Attorney for Defendant, as follows: . . .

"2. Proceeds of sale of Magazine Road, Sumneytown, Pennsylvania, premises shall be held in a savings account in Red Hill Savings and Loan Association entitled 'Stanford S. Hunn and J. Willard Schoelkopf subject to the Order of Court', to be distributed upon termination of this action in accordance with the Judgment of the Court."

This stipulation was filed of record on October 14, 1966, and approved by the Honorable Frederick B. Smillie. On that same date, plaintiff filed his complaint and J. Willard Schoelkopf, Esquire, filed a warrant of ...


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