Commonwealth v. Tucker

142 A.2d 786, 187 Pa. Super. 61, 1958 Pa. Super. LEXIS 640

• Court: Superior Court of Pennsylvania
• Decided: June 12, 1958
• Docket: Appeal, 41
• Status: Published

Opinions

Opinion by

Gunther, J.,

Edward E. Tucker, conducted a collection business in the City of New Castle registered under the name of Ideal Credit Adjusters. The Fictitious Names Docket states that defendant is the only person interested in the business.

Defendant was found guilty on a charge of violating the Act of June 24, 1939, P. L. 872, section 895, subsection g, which is as follows:

“It is unlawful for a collection agency to coerce or intimidate any debtor by delivering or mailing any paper or document simulating, or intending to simulate, a summons, warrant, writ, or court process as a means for the collection of a claim, or to threaten legal proceedings against any debtor; but nothing contained herein shall prohibit a collection agency from informing a debtor that if a claim is not paid, it will be referred to an attorney or attorneys at law for sueli action as lie or they may deem necessary, without naming a specific attorney or attorneys; and nothing herein contained shall be construed to prohibit a magistrate from sending out notices to debtors before the institution of suit.”

This appeal is from judgment and sentence imposed by the court. At the trial defendant demurred to the evidence and subsequently filed motions for a new trial and in arrest of judgment. Both motions were refused.

The evidence reveals that the case arose out of the following facts.

In 1954 John and Helen Polding purchased furniture on credit from Bolotin Furniture Store. On or about July 20, 1955, the Foldings received a letter from Ideal Credit Adjusters advising them that their account with the Bolotin Furniture Store had been placed with its firm for collection, and that unless the Poldings stopped at the office within five days it would be necessary to bring suit before a justice of the peace.

Sometime after this notice was received a levy was made on the furniture belonging to the Poldings. Thereupon, they agreed with the defendant, Tucker, to pay a stipulated sum each month on the balance due.

Mrs. Polding obtained a divorce from John Polding and married Charles McConnell. The McConnells moved to Akron, Ohio, taking with them the furniture purchased from Bolotin’s Store.

On December 14, 1956, the defendant prepared an information against Mr. and Mrs. Polding charging them with unlawfully and feloniously taking, stealing and carrying away against the wishes of the Bolotin Furniture Store, the merchandise which had been previously purchased by Mr. and Mrs. Polding, upon which a balance was still due and owing. On June 9, 1957, Mr. and Mrs. McConnell were arrested in New Castle by a constable and a city policeman, and taken to the Lawrence County Jail. The arrest was made on information sworn to on February 12, 1957, before an alderman and signed by the defendant, Edward E. Tucker. The McConnells were held in jail for 18 hours and were released only after the amount of the unpaid balance was paid to. the defendant. The alderman testified that he did not see the McConnells until after they had been released from the jail. Elgin McConnell, the father of Charles McConnell, testified that defendant informed him that the McConnells could be released from jail upon payment of the bill owed to the Bolotin Store.

Does the evidence introduced by the Commonwealth prove the commission of a violation of section 895 (g) of the Act of June 24, 1939, P. L. 872, 18 P. S. section 4895 (g)? The Act under which the defendant was tried and convicted defines the offense. It prohibits the coercion or intimidation of a debtor by delivering a court process as a means for collection of a debt.

The arrest and committal of the McConnells to the Lawrence County Jail for purposes of collecting a debt involved the McConnells in actual legal proceedings.

Defendant was the primary actor who moved to settle the delinquent account; he had the levy issued on the household goods and finally made out the information which led to the arrest. Is the evidence sufficient to prove that defendant’s actions were for the sole purpose of collecting the claim?

The evidence reveals, (1) a letter dated July 20, 1955, addressed to the Poldings from Ideal Credit Adjusters as a preliminary step to the arrest, (2) the information charging the McConnells with larceny was prepared by the defendant and the warrant for the arrest was served at the behest of the defendant.

Defendant contends that the evidence does not reveal that he acted as a collection agency, bnt only as an employe of the Bolotin Store. The Commonwealth did establish the registration of the fictitious name; that the agency sent a letter seeking to settle the account ; and that the defendant received a commission on all sums collected for Bolotin’s Store. The jury properly concluded that defendant carried on his own collection agency and committed the collection agency practices which the Act prohibited. Defendant in his argument for a new trial complains that the court committed certain reversible error.

The record clearly discloses that defendant was given every opportunity to call to the trial court’s attention any errors of inaccuracy. The defendant, however, said nothing. Under these circumstances the defendant cannot now claim that the court committed reversible error. In Commonwealth v. Barnak, 357 Pa. 391, 420, 54 A. 2d 865 it was said:

“Where counsel for defendant fails to ask further and fuller instructions or for corrections in the charge, although opportunity is given him, he cannot, on appeal, complain of error in the statement of facts by the trial judge either on the ground of inaccuracy or insufficiency ...”

Testimony pertaining to the events prior to the date of the arrest was relevant and admissible to show the circumstances surrounding the violation.

Judgment and sentence of the court are affirmed, and appellant is ordered to a/ppear in the court below at such time as he may be there called and that he be by that court committed until he shall have complied with his sentence or any part of it which had not been served at the time this appeal was made a supersedeas.