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decided: October 6, 1977.


Appeal from the Judgment of Sentence Dated March 17, 1976, of the Court of Common Pleas of Butler County, at C.A. No. 172 June Term, 1975. Criminal Division


William C. Robinson, Butler, for William J. Brown.

Thomas J. Schuchert, Pittsburgh, for George L. Will.

Robert F. Hawk, Assistant District Attorney, and John H. Brydon, District Attorney, Butler, submitted a brief for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Price, J., dissents.

Author: Spaeth

[ 250 Pa. Super. Page 507]

During July and August of 1974 Anderson Asphalt, Inc., was engaged in the performance of a contract to pave a road for PennDOT (Pennsylvania Department of Transportation). Appellant William J. Brown was the owner of a trucking company under contract with Anderson to haul asphalt from Anderson's plant to the job site. The procedure for weighing the trucks was as follows. A truck would be driven under the loading mechanism, and the driver would press a button that released hot asphalt into the bed of the truck. When the driver thought the truck was properly loaded he would (in some manner not quite clear from the record -- perhaps by pressing another button) stop the flow of asphalt. The driver would then drive the truck onto Anderson's scale.

[ 250 Pa. Super. Page 508]

Inside the scale house Anderson's weighmaster and the state inspector would independently read the scale and prepare PennDOT weight slips, which were given to the driver. If a truck were overweight, the driver would have to dump some asphalt from it, and it would be re-weighed. Anderson was paid according to the weight of the asphalt delivered to the job site, as recorded on the weight slips, and the drivers were paid an arranged percentage.

On August 1, 1974, appellant George L. Will was Anderson's weighmaster. He was a retired employee -- he was 67 years old -- and was filling in as weighmaster for three days at the request of his son, George W. Will, who was president of Anderson. A detail of state police arrived at the Anderson plant and stopped six trucks that had just been loaded with asphalt and weighed. Appellant Brown was driving one of the trucks and the others were driven either by his employees or by drivers whose trucks were leased to him. The police had the trucks driven to the Muddy Creek Township scale house, where five of the trucks were unloaded and weighed, and the sixth was weighed as loaded. Then the police had the trucks driven back to the Anderson plant and weighed again. By this procedure the police determined that the weight of asphalt actually loaded onto the trucks was 17.25 tons less than the weight of asphalt indicated on the weight slips prepared by appellant Will. Both appellants Will and Brown were charged with deceptive business practices*fn1 and with conspiring to commit that offense.*fn2 Appellant Will was additionally charged with falsification of official records.*fn3

At trial the Commonwealth introduced testimony describing the police procedure by which the 17.25 ton discrepancy had been determined. The Commonwealth also introduced

[ 250 Pa. Super. Page 509]

    testimony of the results of tests made of the paved road. By examining core samples of the surface, engineers calculated how much asphalt had in fact been laid on a particular day. This amount was then compared with the amount shown on the weight slips for that day. This procedure showed that for July 31 the weight slips showed 67.7 more tons as having been delivered than were in fact laid; for August 1, .1 ton more delivered than laid (it will be recalled that for August 1 the police procedure, on which the indictment was based, had shown a discrepancy of 17.25 tons). N.T. 626-643.*fn4

George W. Will, president of Anderson, introduced a study he had made of the amount of asphalt laid on August 1. His study showed that Anderson had delivered 6.42 tons more asphalt than shown on the weight slips, i.e., than Anderson had billed the state for. N.T. 414. The defense also called several witnesses who testified that there had been problems with the scale at the Anderson plant. N.T. 441-481. Mitchell Andres, the state inspector, testified that his recorded weights matched those recorded by appellant Will, and that although he had worked right next to appellant Will, he had observed no evidence of any cheating. When asked, "If he's cheating, you would have to be cheating, wouldn't you?", Mr. Andres replied, "That's right." N.T. 336.

The defense also presented evidence regarding the manner in which the Commonwealth had dealt with Anderson. On May 23, 1975, an assistant attorney general wrote a district

[ 250 Pa. Super. Page 510]

    engineer that Anderson should not be paid for the (then still disputed) 17.25 ton discrepancy; the amount thus at issue was $273. N.T. 664. However, the day before, on May 22, the same assistant attorney general wrote Anderson's attorney that "it is the determination of PennDOT that there is not sufficient evidence to warrant a continuance of the suspension of your client, Anderson Asphalt, Inc. As of this date, your client is restored to full status as a bidder and supplier for Commonwealth projects. Due to the lack of evidence regarding alleged shortages, all outstanding invoices are to be paid in full." N.T. 666. Mr. Will, president of Anderson, testified that as a result of this letter he agreed not to sue PennDOT for having wrongfully suspended Anderson. (The suspension had resulted in the loss of the opportunity to bid on contracts for 10,000 to 11,000 tons of asphalt.) N.T. 670.

To prove the conspiracy the Commonwealth introduced the testimony of trucker Ralph Grey, who said that on the evening of July 30 appellant Brown told him to "load light" but that "we'll get paid for a full load." N.T. 289. Mr. Grey said that on July 31 he did try to make his load light but that (as has been discussed above) the trucker has no means of knowing exactly how much asphalt is in his truck until he gets a weight slip. N.T. 290. Mr. Grey also said that on July 29 he had been overweight and had had to dump some asphalt. N.T. 295. In response to this testimony appellant Brown testified that on the instructions of Mr. Will, the president of Anderson, he had told Mr. Grey and other drivers to lighten their loads. He explained the reason as follows:

[ 250 Pa. Super. Page 511]

    this is a continuous mix plant. When the plant had to shut down because the bins went empty from the highlift setting with a bucket full of asphalt waiting for the next truck to come, this caused production loss and the whole thing was disturbed, and this was the reason that we were told to lighten, and I told my drivers to ...

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