Commonwealth ex rel. Specter v. Rothman

40 Pa. D. & C.2d 637, 1966 Pa. Dist. & Cnty. Dec. LEXIS 71
CourtPhiladelphia County Court of Quarter Sessions
DecidedAugust 1, 1966
Docketmiscellaneous docket, no. 376
StatusPublished

This text of 40 Pa. D. & C.2d 637 (Commonwealth ex rel. Specter v. Rothman) is published on Counsel Stack Legal Research, covering Philadelphia County Court of Quarter Sessions primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth ex rel. Specter v. Rothman, 40 Pa. D. & C.2d 637, 1966 Pa. Dist. & Cnty. Dec. LEXIS 71 (Pa. Super. Ct. 1966).

Opinion

Griffiths, J.,

The court makes the following

Findings of Fact

1. Petitioner, Arlen Specter, is District Attorney of Philadelphia and a citizen of Philadelphia.

[638]*6382. Philip Rothman was appointed constable of the 22nd ward on January 17, 1964, to fill the vacancy created by the resignation on December 10, 1963, of George B. McLaughlin, 1239 E. Chelten Avenue, who had been elected constable on November 6, 1961, for a term of office extending from January 1, 1962, through December 31, 1967.

3. On or about January 17, 1964, said Philip Roth-man received his commission after entry of bond and entered upon his duties as a constable in the 22nd ward for the unexpired term of George B. McLaughlin, maintaining an office at the southwest corner of 42nd Street and Lancaster Avenue, Philadelphia, Pa.

4. Respondent resides at 6927 Ardleigh Street, Philadelphia.

5. From on or about March 1, 1965, and continuing for approximately a year thereafter, respondent, in his capacity as a constable and as the owner and operator of the B. & R. Collection Agency, was engaged in the collection of delinquent accounts for the Ritter Finance Company, Inc., a Pennsylvania corporation.

6. Respondent actively operates said collection agency at the same address, S.W. cor. 42nd and Lancaster Avenue, Philadelphia, as he maintains his constable office, employing certain identical persons as employes of both..

7. Respondent processed civil actions in magistrate’s courts of Philadelphia at or about the times hereinafter stated, even though he knew the real debts exceeded the $100 jurisdictional limit, as follows:

Defendant in Suit Approximate Real Debt Approximate Date of suit
Jane Morrow...........$205.00 March, 1965
Paul Richardson ........ 300.00 During 1965
Gerald Joseph Walters ... 150.00 March, 1966
Robert Plotcher......... 250.00 April, 1966
Richard A. Maxwell..... 147.00 March, 1966
Melvin Smith........... 200.00 Jan.-Apr., 1966
[639]*639Ida Gilbert............. 250.00 April or May, 1965
Thomas Walter......... 388.00 Early, 1966
Antoinette Huffnagle .... 150.00 July, 1965
Catherine Patricia Wheeler 400.00 January, 1966

8. Respondent committed acts of oppression as follows:

a. In 1965, by unlatching the safety catch on his gun in a threatening manner to Paul Richardson;

b. In April or May, 1965, by threatening Ida Gilbert she would go to jail if she didn’t pay her debt;

c. In January or February, 1966, by harrassing Julia Riley for a debt purportedly owed by others, although Julia Riley repeatedly told him she was not the person he was looking for, and by unlawfully levying on her furniture and furnishings and by unlawfully posting a sale sign on her premises.

9. Respondent failed to make proper levies upon personal property by not first entering the premises where the goods levied upon were located, by not taking possession of the goods, or by not having them in sight, as follows:

Approximate date Defendant in Suit of Respondent’s Unlawful Levy
Gerald Joseph Walters ................ March, 1966
Robert Plotcher ...................... April, 1966
Richard A. Maxwell .................. March, 1966
Melvin Smith ..............................., 1966
Antoinette Huffnagle.................. July, 1965
Catherine Patricia Wheeler ............ January, 1966
Charles R. Rice ...................... June, 1966
William Ferguson .................... January, 1966

10. In the case of all defendants named in paragraph 9 above, except Charles R. Rice, respondent posted sale signs although he had not made prior levies according to- law.

11. In the instances listed in the preceding paragraphs, respondent processed claims in the magistrates’ [640]*640courts of Philadelphia, in which claims he possessed a pecuniary interest, i.e., a 40 percent contingency fee upon collection, which fees he received in excess of the fees prescribed by law for a constable to receive for collecting debts.

Discussion

The Act of May 27, 1841, P. L. 400, sec. 14, as amended by the Act of May 7, 1929, P. L. 1581, sec. 1, provides that where the court is “satisfied that because of any act or acts of malfeasance or misfeasance in office committed by him, including any act or acts of oppression of any suitor or suitors, or witness or witnesses, such constable is unfit or incompetent to discharge his official duties . . .,” the court may remove him.

Malfeasance or misfeasance in office cannot be charged except for a breach of a positive statutory duty or for the performance of a discretionary act with an improper or corrupt motive: Commonwealth v. Peoples, 345 Pa. 576, 579 (1942); McNair’s Petition, 324 Pa. 48, 55 (1936) and cases cited therein, and see Application for Removal from Office of James C. Taylor, Constable, 5 Chester 81, 83 (1952); Flynn’s Case, 303 Pa. 198 (1931) and Schmidt v. Hill, 12 Del. Co. 10, for procedure.

Malfeasance in office involves an abuse of public justice: Commonwealth v. Miller, 94 Pa. Superior Ct. 499, 507 (1928).

From the evidence adduced at the hearing and set forth in the above findings, respondent has committed acts of malfeasance (or misfeasance) in office by violating the positive statutory duties imposed upon him relating to levies and sales. The Act of June 16, 1836, P. L. 755, sec. 41, 12 PS §2311, states that the officer to whom a writ of execution as here is directed “shall . . . proceed to levy and sell. ...” The Act of July [641]*6419, 1901, P. L. 614, sec. 1, cl. 16, 12 PS §318, makes the Act of 1836 equally applicable to constables. While the Act of 1836 is no longer applicable to courts of record, since the rules of civil procedure have been adopted (in particular here, see Pa. R. C. P. 3101), this act applies to magistrates’ courts and constables, as magistrates’ courts are not included under the authorizing Act of June 21, 1937, P. L. 1982, sec. 1, as amended, 17 PS §61. It is significant that the law relating to the manner of making a levy by virtue of a writ from a court of record has not been substantially changed by the new rules. See Pa. R. C. P. 3108, 3109. Innumerable cases have held that a lawful levy is made only when the executing officer either takes possession of the goods or has them in sight: Commonwealth v. Weglein, 147 Pa. Superior Ct. 257 (1942); Lowry v. Coulter, 9 Pa. 349 (1848); Welsh v. Bell, 32 Pa. 12 (1858); Duncan’s Appeal, 37 Pa. 500 (1860); Commonwealth Insurance Company v. Berger, 42 Pa. 285 (1862); Linton v. Commonwealth ex rel. Ford, 46 Pa. 294 (1863); Carey v. Bright, 58 Pa. 70 (1868).

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Related

McNair's Petition
187 A. 498 (Supreme Court of Pennsylvania, 1936)
Commonwealth v. Peoples
28 A.2d 792 (Supreme Court of Pennsylvania, 1942)
Flynn's Case
154 A. 368 (Supreme Court of Pennsylvania, 1931)
Commonwealth v. Weglein
24 A.2d 633 (Superior Court of Pennsylvania, 1941)
Commonwealth v. Miller
94 Pa. Super. 499 (Superior Court of Pennsylvania, 1928)
Lowry v. Coulter
9 Pa. 349 (Supreme Court of Pennsylvania, 1848)
Welsh v. Bell
32 Pa. 12 (Supreme Court of Pennsylvania, 1858)
Duncan's Appeal
37 Pa. 500 (Supreme Court of Pennsylvania, 1861)
Commonwealth Insurance v. Berger
42 Pa. 285 (Supreme Court of Pennsylvania, 1862)
Linton v. Commonwealth ex rel. Ford
46 Pa. 294 (Supreme Court of Pennsylvania, 1863)
Carey v. Bright
58 Pa. 70 (Supreme Court of Pennsylvania, 1868)
Trainer v. Saunders
113 A. 681 (Supreme Court of Pennsylvania, 1921)
Hartman v. Hefflefinger
47 Pa. Super. 1 (Superior Court of Pennsylvania, 1911)

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Bluebook (online)
40 Pa. D. & C.2d 637, 1966 Pa. Dist. & Cnty. Dec. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-specter-v-rothman-paqtrsessphilad-1966.