Original jurisdiction in case of Commonwealth of Pennsylvania and William H. Wilcox, Chairman, Governor's Council of State Agencies for Flood Recovery in the Wyoming Valley, v. Richard Chesney, A & B Wiper Supply, Inc., P.H. Berman, Inc. and Dipcom, Inc.
Michael Minkin, Assistant Attorney General, with him Robert S. Kravitz, Assistant Attorney General, James W. Sutton, Jr., Assistant Attorney General, Hermann Rosenberger, II, Assistant Attorney General, and Dante Mattioni, Deputy Attorney General, for plaintiffs.
Michael I. Luber, with him Stanton Dubin and Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for defendants.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Wilkinson.
[ 11 Pa. Commw. Page 380]
This is an action brought before us in our original jurisdiction, wherein the Commonwealth seeks: to obtain an accounting from the defendants for certain towels "seized" by them from the Scranton-Wilkes-Barre Airport or any other flood relief center and for the funds received from their sale; to have defendants
[ 11 Pa. Commw. Page 381]
declared "trustees for the flood victims" for the towels in their possession, and "for the reasonable or fair market value" of those previously sold; and to have defendants ordered to pay over to the Pennsylvania Emergency Relief Fund, or other suitable charity, any sum to be due, and to deliver the remaining towels.
The complaint, very briefly summarized, alleges that a donor delivered on June 29, 1972, a quantity of towels to the flood relief center at the Scranton-Wilkes-Barre Airport for use by flood victims for clean-up operations in the aftermath of the June-July, 1972 flood. The fair market value of the towels is alleged to be $15,000.00. It is alleged that on or about July 12 to July 14, 1972, the defendants took the towels from the Airport and subsequently disposed of the towels to their personal advantage.
The three critical paragraphs of the complaint here involved are:
"16. Mr. Chesney, A & B [Wiper Supply, Inc.], PHB [erman, Inc.], and DC [Dipcom, Inc.] knew or should have known that the Tracel Shop Towels taken had been donated for the use, benefit and enjoyment of the flood tragedy's victims.
"17. The taking of the shop towels as aforesaid was accomplished without the knowledge, consent or authority of either an individual or group competent to give the same.
"18. Insofar as the aforesaid taking was authorized, such consent was procured by fraud and/or was predicated on the assumption that the said towels would be used by Chesney, A & ...