of the stake of $9,980, plus accrued interest.
The United States acknowledges that the money recovered is held merely as a stake and waives any sovereign immunity by reasons of the indemnifying provisions of the bond filed by Parkvale Savings Association in support of the attachment.
It appears that our only remaining question is whether or not Parkvale Savings Association has properly brought an action of debt against Philip Haushalter and has properly secured jurisdiction in rem against the fund by the use of the Pennsylvania Fraudulent Debtor's Attachment proceeding.
We are not concerned at this time with the claims of Haushalter or Ashton to ownership of the fund, except as they give a basis to Parkvale's civil action of debt. It appears to be the general rule that in those jurisdictions where the statutes provide for attachment in actions of debt arising from contracts, express or implied, courts have generally held that where moneys or goods have been embezzled, stolen or converted, the injured person may waive the tort and sue on an implied contract. See Anno. 4 A.L.R. 832. It appears that a suit ex contractu would lie in such situation and support the issuance of a writ of foreign attachment in Pennsylvania as has been established by very early cases. Mechanic's National Bank v. Miner's Bank, 13 Wkly. Notes Cas., Pa., 236 [Phila. Co., 1883]; Hanson v. Watson, 13 Wkly. Notes Cas., Pa., 534 ; O'Neill v. Brown, 17 Pa. Dist. R. 1062 [York Co., 1908].
Commencement of suits for debt by attachment was established by the Act of 17 March 1869, P.L. 8 [12 P.S. § 2711], now superceded by Pennsylvania Rule of Civil Procedure 1285 et seq., 12 P.S. Appendix. O'Neill v. Brown, cit. supra, held that the obligation of a thief to return money stolen is a debt for which attachment lies under the Act of 1869. It is immaterial whether or not the property attached was the proceeds of a robbery since it is the debtor's claim of ownership of the property which gives support to the in rem jurisdiction of the Court. See United States v. Reefer, 243 F. Supp. 110 [W.D. Pa., 1965] in which the Court treated the claim of the surety to funds found in the possession of the bank robber to be a claim in the nature of interpleader in the replevin action filed by the convicted prisoner for the return of the funds so taken. Similarly, holding that the identification of the funds as the proof of the robbery to be immaterial, the court allowed the surety of the bank to execute upon its default a judgment against the robber on funds seized from the robber at the time of his arrest. Montgomery v. Dobbs, 311 F. Supp. 324 [W.D. Tex., 1970].
The defendant does not attack the regularity or sufficiency of the attachment and garnishment procedure employed here. He rather relies upon the possession and ownership of the moneys and the failure of the Parkvale Savings Association to identify the specific funds found in his constructive possession. We believe these to be immaterial.
We, therefore, conclude that the action of Parkvale Savings Association v. Philip Haushalter brought at Civil Action No. 69-755 should proceed to trial and final determination and that the funds in the hands of the Government should be turned over to the plaintiff subject to the terms of its bond to abide the final determination of the issue.
We have also here the claim by James Ashton, Esq. that on September 13, 1968, prior to his conviction, Haushalter made a valid assignment of these funds to Ashton. We believe that if Ashton wishes to pursue his alleged rights in this matter he should proceed by proper action under the Pennsylvania Rules of Civil Procedure governing fraudulent debtor's attachment to assert his claim in that case.
An appropriate order will be entered.
And now this 15th day of December, 1970, it is ordered that Petitions of Philip Haushalter, Parkvale Savings Association and James A. Ashton, Esq., in Civil Action No. 68-1100 for reclamation be dismissed, and The United States of America shall turn over to Parkvale Savings Association, plaintiff in Civil Action No. 69-755, the proceeds of the funds which it holds under Order of Court dated August 8, 1968, subject to the Bond of Parkvale Savings Association filed in said case, and Defendant shall file its Response pleading to the Complaint of Plaintiff in that case.
© 1992-2004 VersusLaw Inc.