DocketNumber: Appeals, 7-11
Citation Numbers: 40 A.2d 167, 156 Pa. Super. 254, 1944 Pa. Super. LEXIS 601
Judges: Keller, Baldrige, Rhodes, Hirt, Reno, James
Filed Date: 9/25/1944
Status: Precedential
Modified Date: 10/19/2024
Argued September 25, 1944. Appellants, School Directors of the School District of Jenkins Township, Luzerne County, were convicted on two counts of an indictment charging wilful misbehavior or misfeasance in office.
The first count of the indictment charged appellants with wilfully, wrongfully, maliciously, and unlawfully misbehaving themselves in office, in that they unlawfully and wilfully purchased from Joseph Jackson, for the School District of Jenkins Township, certain heating stokers and equipment connected therewith involving a sum over $300, to wit, the sum of $11,120, the said Joseph Jackson not being the lowest bidder, and no contract for said purchase, in writing, having been signed and executed in the name of the school district, and no public notice having been given asking for competitive bids. In the second count of the indictment appellants were charged with wilfully, wrongfully, maliciously, and unlawfully misbehaving themselves in office, in that they unlawfully and wilfully ordered, *Page 256 sanctioned, directed, and recommended, at a meeting of the school board of the said school district, and caused to be made payment of the sum of $11,120 to Joseph Jackson for said heating stokers and equipment.
The case was tried before VALENTINE, P.J., and, the jury having found them guilty, appellants moved to arrest judgment and for a new trial. Both motions were denied. The court sentenced appellants as follows: Fahey and Nowak, secretary and president of the board, respectively, each to pay a fine of $100, and undergo imprisonment in Luzerne County prison for a term and period of one year; King, the treasurer, and Nauyokas each to pay a fine of $100, and undergo like imprisonment for a term of six months; Waxmonsky to pay a fine of $100, and to undergo like imprisonment for a term of six months, and be removed from the office of school director. This appeal followed.
The evidence presented established certain material facts. The five appellants were, during the year 1941, school directors of the School District of Jenkins Township, a third class school district. On April 30, 1941, at a special meeting of the board of school directors, a motion was passed that the board advertise for bids on repairs to plumbing and heating in the school buildings known as Inkerman, Memorial, Port Griffith, and Sproul; the bids were to be opened at the regular meeting on June 10, 1941. Appellants voted affirmatively on that motion. The advertisement, which was inserted in the newspapers, called for proposals on only two of the buildings, to wit, the Memorial and Inkerman. The advertisements asked for "proposals for furnishing all necessary labor, equipment, and material for improvement to the heating and ventilating system at the Memorial and Inkerman school buildings." At the regular meeting of the board, on June 10, 1941, two bids having been submitted they were opened and referred to the finance committee for tabulation. At that meeting a motion was passed that no more bids be *Page 257 received "on heating alteration to the Inkerman and Memorial, Sproul and Port Griffith school buildings." Appellants voted affirmatively on that motion. A bid from R.A. Davis for four stokers was in the amount of $7,100. His price for five stokers would have been approximately $9,000. The bid from Joseph Jackson, a plumbing and heating contractor, for two stokers for the two buildings advertised was in the amount of $4,860; he submitted no bid for the installation of the remaining three stokers. On June 24, 1941, at a special meeting of the board, a motion was passed "that Joseph Jackson be granted a contract to furnish stokers for the Inkerman and Memorial buildings for a price of $4,860 and for the Sproul and Port Griffith buildings for a price of $6,260, and the proper officers be authorized to issue checks in accordance with the contract." Appellants were present at the meeting and voted affirmatively. On June 25, 1941, the day after the meeting awarding the contract to Jackson, a written contract was entered into between Jackson and the school district covering the installation of the two stokers in the Memorial and Inkerman buildings. The stokers were accordingly installed in those buildings in August, 1941, and, before installation, Jackson was paid therefor the sum of $4,860-$1,950 on July 9, 1941, and $2,910 on August 14, 1941. From the amount paid he returned to two of the appellants, Fahey and Nowak, the sum of $1,350. Subsequently, in December, 1941, Jackson installed the three additional stokers in the Sproul and Port Griffith buildings, and received in payment therefor $6,260-$3,660 on November 18, 1941, $2,100 on December 18, 1941, and $500 on December 29, 1941. From these payments Jackson gave to Fahey and Nowak the additional sum of $3,460. There was no written contract for these three stokers; there was no bid submitted for the installation thereof; and no competitive bids were sought. All of the appellants except Waxmonsky had been removed from office by order of the *Page 258 Court of Common Pleas of Luzerne County.
Appellants' first contention is that they were not indictable under the common law. This position was submitted to the court below, and properly rejected. They rely on Com. v. Peoples etal.,
In Com. v. Rosser et al.,
The sufficiency of the evidence to sustain the convictions of three of the appellants, King, Nauyokas, and Waxmonsky is questioned. The evidence which the Commonwealth submitted was sufficient for the jury to conclude that the acts of these appellants, as well as the other two, were wilful, intentional, and deliberate. The credibility of their explanation was for the jury under all the circumstances. They must have known that the contract was not awarded to the lowest responsible bidder, that there was no proposal by Jackson for the three stokers, that the only proposal related to the installation of the first two stokers, that the advertisement referred to two buildings, that there were no advertisements for bids for the three stokers, and that no performance bond was required for the installation of any *Page 260 of the stokers. Although these appellants may not have received any moneys from Jackson, they were chargeable with knowledge that checks were given to Jackson in advance of delivery and installation. King signed the checks as treasurer. Nauyokas and Waxmonsky also were fully aware of the nature of the transaction, as a result of the method followed at the meeting on June 24, 1941, in awarding the contract for five stokers to Jackson who had obviously not submitted the lowest bid for the two stokers, and who had submitted no bid at all for the three additional stokers. We think the charges in the indictment were adequately sustained by the proofs.
Appellants' further contention is that Jackson was an accomplice, and that the trial judge should have so instructed the jury, with the usual precaution applicable to the evidence of accomplices, although no such request for charge was made. This point was not raised in the court below, nor is there any basis for it here. Appellants were charged with wilful misbehavior in office, and there is nothing in the record which makes Jackson an accomplice with them in that crime. Com. v. Minker,
We find no merit in the third assignment of error which complains of that part of the sentence removing appellant Waxmonsky from the office of school director. *Page 261
The argument in support thereof is predicated on the statement inFudula's Petition,
There was only a general exception taken to the charge of the court. The trial judge complied with all requests for additional instructions. We find no basic or fundamental error in the charge, and the complaints made relative thereto are devoid of any merit.
All of the assignments of error are overruled, and the judgment and sentences are affirmed and it is ordered that the defendant in each appeal appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time his appeal was made a supersedeas.
Fudula's Petition , 297 Pa. 364 ( 1929 )
Commonwealth Ex Rel. v. Davis , 299 Pa. 276 ( 1930 )
Commonwealth v. Peoples , 345 Pa. 576 ( 1942 )
Commonwealth v. Minker , 1923 Pa. Super. LEXIS 9 ( 1923 )
Commonwealth of Pa. v. Rosser , 102 Pa. Super. 78 ( 1930 )