Appeal from judgment of Court of Common Pleas of Lackawanna County No. 843 of 1971, in case of Commonwealth of Pennsylvania v. Robert H. Bomersbach.
Jerome T. Foerster, with him Smith, Fox, Roberts, Foerster & Finkelstein, for appellant.
William J. McDonald, Assistant District Attorney, with him Paul R. Mazzoni, District Attorney, submitted a brief, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., would affirm on the opinion of Judge Conaboy.
[ 224 Pa. Super. Page 41]
Appellant contends that the lower court erred in failing to arrest judgment on the grounds that his demurrer to the Commonwealth's evidence should have been sustained in a prosecution for obtaining money by false pretenses.*fn1 We agree, and reverse the lower court's refusal to arrest judgment.
The prosecution arose out of an investment plan proposed by appellant to the two complaining witnesses, William Duck and Clarence McLaughlin. Through an employee, appellant was introduced to Duck and Mc-Laughlin, and, in a series of meetings, explained a business venture to them. Appellant proposed to form a company which would make use of a chemical process for the refining and reclamation of hydraulic fluid. The process was a secret known only to one Patrick Nappi. The complainants knew that no company had yet been formed, that Nappi was the only person who knew the process, that the success of the venture depended upon obtaining from Nappi the rights to use the process, and that Nappi was under no obligation to allow the proposed company to use the process.
The complainants invested $5,000.00 each in the proposed company. That sum was paid by checks endorsed in a manner indicating that the checks were paid for the organizational and promotional expenses of a proposed new company. The checks were then deposited in a bank account in appellant's name as escrow agent. For various reasons, paramount of which was Nappi's
[ 224 Pa. Super. Page 42]
refusal to join the venture, the company failed to progress, and the investors demanded a return of their money. Receiving no satisfactory answer to their requests, they filed a criminal complaint against appellant. An indictment was returned charging that appellant obtained money from the complainants on the pretense that he was going to form a corporation and that appellant knew such a pretense to be false. Verdicts of guilty were returned on these indictments after which appellant filed motions in arrest of judgment and for a new trial. From the denial of those motions, this appeal followed.
In order to sustain a verdict on an indictment charging false pretenses, the Commonwealth must show: (1) a misrepresentation of an existing fact; (2) reliance by the victim on the false statement; (3) the obtaining of money as a result thereof; and (4) an intent to defraud. Commonwealth v. Silia, 194 Pa. Superior Ct. 291, 166 A.2d 73 (1960). The first element of the offense has clearly not been established by the Commonwealth. The only representation of appellant was that he was going to form, in the future, a company utilizing a formula controlled by a third party. The complainants were fully aware that no company had been formed, and that no rights to the formula had been obtained.
In the opinion of the lower court, the evidence presented was sufficient to sustain a verdict of guilty if the jury believed, as the indictment charged, that appellant did not intend to form the company. That this is insufficient to establish the crime of false pretenses has long been the law of this Commonwealth. In Commonwealth v. Moore, 99 Pa. 570 (1882), the defendant induced another to execute a note to him ...