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M. GLOSSER & SONS v. JOSEPH J. MICCO (09/18/73)

decided: September 18, 1973.

M. GLOSSER & SONS, INC. AND HARRY SAVLOV, PLAINTIFFS,
v.
JOSEPH J. MICCO, COMPTROLLER, DEPARTMENT OF HIGHWAYS, COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS



Original jurisdiction in case of M. Glosser & Sons, Inc. and Harry Savlov v. Joseph J. Micco, Comptroller, Department of Highways, Commonwealth of Pennsylvania.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans & Katzman, for plaintiffs.

Reynold J. Kosek, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 10 Pa. Commw. Page 322]

The plaintiffs herein, M. Glosser & Sons, Inc. (Glosser) and Harry Savlov, have instituted this action in mandamus against the defendant, the Comptroller of the Department of Highways of the Commonwealth, seeking to compel payment to the plaintiffs of $11,000.00 which is held by the defendant.

In 1965, plaintiff Savlov, an employee of plaintiff Glosser, received an award from the Commonwealth for a purchase of steel pipe and other materials. Thereafter, Savlov entered into a contract with Tioga Pipe Supply Co. (Tioga) for the purchase of those items covered by the Commonwealth's award, but for a price higher than that Savlov was to receive from the Commonwealth. The contract was completed and Savlov received payment from the Commonwealth, but allegedly Savlov's payment to Tioga was $10,570.00 less than the price called for in their contract. Thereafter, Tioga filed an action in the Court of Common Pleas of Dauphin County and had a Fraudulent Debtor's Attachment Writ issued against funds in excess of $25,000.00 held by the Commonwealth and due to Savlov for materials purchased from him other than the materials supplied Savlov by Tioga.

As part of this above action, the defendant filed a Report in Form of Affidavit stating that he was holding for the Commonwealth certain sums in excess of $25,000 which were "due" to Savlov but that he would "retain said check and said money in its possession pending further order of the Court." The parties to that action thereafter entered into a Stipulation by which all sums held by the defendant in excess of $11,000.00 were released from the attachment and were to be paid to Savlov. It was asserted by Tioga and the defendant, as garnishee, that "said garnishee and plaintiff have asserted [that the sum attached] is the property

[ 10 Pa. Commw. Page 323]

    of defendant Harry Savlov." It was also agreed, however, that: "This Stipulation, or anything contained herein, shall not have any effect whatever on the issue of ownership of the attached property or on any other issues raised or hereafter raised by any party in the within matter."

Thereafter, upon motion of Savlov and following several hearings, the attachment was dissolved.*fn1

Upon the dissolution of the attachment, the plaintiffs herein*fn2 sought to have the remaining funds being held by the defendant for the Commonwealth paid over to them, but were refused. They, therefore, instituted this action in mandamus in the Court of Common Pleas of Dauphin County. Preliminary Objections were filed to the complaint in the nature of a Motion to Strike because there was no clear legal right on the part of the plaintiffs to receive the money claimed nor a corresponding clear legal duty on the part of the defendant to pay such money; a petition raising the defense of a lack of capacity to sue; and a general demurrer. These Objections ...


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