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BERTAB INC. v. PATRICIA A. FOX AND CRAIG L. FOX V. BLAISE DEL VAGLIO (02/13/80)

filed: February 13, 1980.

BERTAB INC., AND ITS SUBSIDIARY, AMERICAN HEATING COMPANY AND FIDELITY & DEPOSIT COMPANY OF MARYLAND
v.
PATRICIA A. FOX AND CRAIG L. FOX V. BLAISE DEL VAGLIO, A/K/A WILLIAM DEL VAGLIO AND FLORENCE DEL VAGLIO, HIS WIFE. APPEAL OF BLAISE DEL VAGLIO, A/K/A WILLIAM DEL VAGLIO AND FLORENCE DEL VAGLIO



No. 1026 April Term 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division at No. G.D. 75-4473, D.S.B. 1601 January 1975.

COUNSEL

John P. Joyce, Pittsburgh, for appellants.

James R. Farley, Pittsburgh, for appellee, Bertab Inc., etc., and Fidelity & Deposit Company of Maryland.

Van der Voort, Spaeth and Watkins, JJ.

Author: Spaeth

[ 275 Pa. Super. Page 77]

This is an appeal from an order granting a new trial in a garnishment action on the ground that the jury's verdict was against the weight of the evidence.

Patricia A. Fox, who is the daughter of appellants, Blaise and Florence Del Vaglio, worked for appellee American Heating Company from June 1972 until December 1974, when it was discovered that she had been embezzling money. She admitted the embezzlement and on December 17, 1974, signed a judgment note payable to American Heating in the amount of $159,276.50. Later it was discovered that Mrs. Fox had also misappropriated additional funds amounting to approximately $100,000, and judgment was also entered against her in that amount.

[ 275 Pa. Super. Page 78]

In the meantime, on December 10, 1974, the Del Vaglios bought a house for $19,500 in Wilkinsburg, Allegheny County. They paid for the house with a cashier's check, made payable to them and drawn on Equibank. Mrs. Fox had purchased the cashier's check on December 6, 1974. The theory of the present action is that in purchasing the cashier's check, Mrs. Fox used funds she had embezzled from American Heating, and that from this fact it follows that the Del Vaglios may not keep the house.

In support of this theory, appellees presented the following evidence. On December 6, 1974, Mrs. Fox deposited several American Heating checks in her account and then wrote herself a personal check in the amount of $17,500. An Equibank teller testified that Mrs. Fox bought the cashier's check for $19,500 by using this personal check and additional American Heating checks in the amount of $2,000. The teller testified that Mrs. Fox did not use any cash but only the checks, and that she requested the cashier's check to "purchase a house for her mother and father."

The Del Vaglios testified as follows. They had been renting the house for many years from a relative. In September 1974, he informed them that he was no longer interested in renting the house to them but wanted to sell it. They decided to buy it and sent their daughter, Mrs. Fox, to the bank to get a check for the purchase price, giving her $19,500 in cash. Not trusting banks, they had kept the money hidden at home. When they gave Mrs. Fox the money to take to the bank for the check, they put it in a brown paper shopping bag. Copies of the deed to the house and tax and insurance receipts were admitted as evidence that the Del Vaglios owned the house.

The trial judge instructed the jury that "the issue is very simple -- did Patricia Fox purchase this property from funds that had been misappropriated from [American Heating]? And, secondly, did she buy this property for herself and put it in the name of her parents?" N.T. at 140-41. During its deliberations the jury asked two ...


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