Commonwealth v. Hilton

*290Dissenting Opinion by

Judge Kramer:

I respectfully dissent. I agree entirely with the principles set forth in the majority opinion that a constructive trust (trust ex maleficio) may be imposed under the alleged facts of this case, except for one missing element: an alleged trust res.

One of the necessary elements of any trust, including a constructive trust, is property or a property interest, upon which the trust may be imposed. In the Commonwealth’s complaint there is not one word describing what property constitutes the trust res. There are allegations that Hilton illegally solicited, received, and extorted monies belonging to the Commonwealth or its agencies; but there is not one allegation relating to where those monies are, whether they still exist, or whether they were transformed into, or are represented by, some other properties in Hilton’s name.

To clarify the point I make, suppose Hilton (1) has given all of the alleged illegal monies to a third party; or (2) has purchased with the said money realty which is held in a tenancy by the entireties; or (3) has dissipated all of the alleged illegal monies and his remaining property was acquired years before the alleged improper incidents giving rise to the imposition of a constructive trust, in none of these instances would it be proper, as a matter of law (remembering that the matter is before us on preliminary objections), to impose a constructive trust without a joinder of additional defendants in whose name or point name the property may exist, or without allegations of the existence of the exact property upon which the trust is to be imposed.

In Mellon National Bank and Trust Company v. Esler, 357 Pa. 525, 55 A. 2d 327 (1947), our Supreme Court cited with approval Gray v. Leibert, 357 Pa. 130, 135, 53 A. 2d 132, 135 (1947), where the following definition is found: “ ‘a constructive trust arises where a person holding title to property is subject to an equitable duty to *291convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” (Emphasis added.) In Philadelphia v. Heinel Motors, Inc., 152 Pa. Superior Ct. 493, 502-503, 16 A.2d 761, 765 (1940), our Superior Court stated:

“A ‘constructive trust’ has been defined to be ‘a relationship with respect to property subjecting the person by whom the title to the property is held to an equitable duty to convey it to another on the ground that his acquisition or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property. . . .’ ” (Emphasis added.)

In all cases involving constructive trusts in this Commonwealth the courts consistently refer to the enforcement of a trust on specific property held in the name of a wrongdoer or a third party with knowledge of the wrongdoing. Even in those cases where the property, such as money, is commingled with other funds, the courts consistently refer to the tracing of a property interest into the commingled funds.

It is not possible to impose a trust upon an expectancy of a judgment, such as is alleged in this case. See Restatement (Second) of Trusts, §§74, 75, 86. An expectancy is not that kind of property, or interest in property, which can be held in trust. The subject matter (the trust res) must be definite and ascertainable at the time the trust is imposed. See Restatement (Second) of Trusts, §76. The trust res must be a property interest in praesenti, one that is subject to transfer. A mere hope on the part of the Commonwealth that it will obtain a judgment in this case, no matter how strong it may appear from the allegations of the complaint, may not be transformed into a trust res.

In other words, I observe a deficiency in the complaint of the Commonwealth in that it fails to allege with specificity any monies or property held by Hilton or traceable *292to Hilton upon which a trust can be imposed. Although my position may appear to be somewhat technical or academic, I believe it is based upon sound principles of trust law which cannot be ignored. If the majority is correct, in every criminal extortion, embezzlement, burglary, or larcency ease the defendant could have a constructive trust imposed upon all he owns (whether or not the money or property was obtained by the criminal act). While that has an appealing ring to it, it is just not the law.

I would sustain the preliminary objections, and, by order, permit the Commonwealth to amend its complaint to correct the defects I have described above, for if Hilton does hold monies or property received as a result of the alleged extortions, then the constructive trust described by the majority should be imposed.