Original jurisdiction in case of Commonwealth of Pennsylvania by Robert P. Kane, Attorney General v. Frank C. Hilton.
J. Justin Blewitt, Jr., Deputy Attorney General, with him Howard M. Levinson, Deputy Attorney General, Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.
Harold Gondelman, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for defendant.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring Opinion by Judge Bowman. Dissenting Opinion by Judge Kramer.
[ 24 Pa. Commw. Page 286]
The Commonwealth of Pennsylvania by its Attorney General has filed in this Court its complaint in equity alleging that the defendant, Frank C. Hilton, while holding the position of Secretary of the Commonwealth's Department of Property and Supplies caused the Commonwealth to place insurance through brokers who, in conspiracy with the defendant, paid the defendant kickbacks of premiums in amounts exceeding $177,000, for which activities defendant was indicted, tried, convicted and sentenced in Pennsylvania Federal District Courts.*fn1 The complaint seeks our order that the defendant pay the plaintiff the amount of money unlawfully obtained by the means described in the complaint, that we impress a trust on property of the defendant, that we declare that the defendant holds title to such property as constructive trustee as to the amount unlawfully received, that the defendant be enjoined from transferring or otherwise disposing of property until the plaintiff's claim is satisfied and general relief.
The defendant has filed preliminary objections to the Complaint now before us for disposition, reading in full as follows:
"1. The plaintiff has a full, complete and adequate non-statutory remedy at law.
"2. The complaint fails to set forth a claim upon which relief can be granted.
[ 24 Pa. Commw. Page 287]
"3. The complaint as filed attempts to deprive the defendant of his rights to a trial by jury."
The preliminary objections are without merit and must be overruled.
The facts alleged in the complaint present a classic case for the imposition of a constructive trust on the kick-backs ...