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decided: October 1, 1979.


No. 774 January Term, 1977, Appeal from the Order of the Superior Court of Pennsylvania at No. 584 October Term, 1977 Affirming the Judgment of Sentence entered December 7, 1976 by the Court of Common Pleas, Criminal Division, of Luzerne County, at No. 2169 of 1975.


Charles P. Gelso, Moses & Gelso, Wilkes-Barre, Luzerne County, for appellant.

Thomas J. Glenn, Jr., J. P. Giovannini, Asst. Dist. Attys., Luzerne County, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion.

Author: Nix

[ 486 Pa. Page 429]


Appellant Marvin Mutnik was convicted under 18 Pa.C.S.A. § 4105 (1973) of the charge of passing a "bad check" in the amount of $3,269.44 drawn on the corporate account of the M & M Construction Company, of which he is an officer. The check was made payable to Thomas Roper as part payment of an existing past-due account owed by the company to Roper. Appellant admitted at trial that he had issued the check, that he had been informed by Roper that it had been returned for insufficient funds, and that he never made a deposit to cover the check after receiving notice that it had not been honored by the bank. The Superior Court affirmed per curiam without opinion, although Judge Hoffman wrote a dissenting statement. Commonwealth v. Mutnik, 249 Pa. Super. 603, 377 A.2d 988 (1977). We granted allocatur and now affirm the judgment of sentence.

The two issues presented for our review are whether section 4105 requires a showing of intent to defraud, and if it does not, is article I, section 16 of our State Constitution violated. Section 4105 provides:

[ 486 Pa. Page 430]

§ 4105. Bad checks

(a) Offense defined. -- A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.

(b) Presumption. -- For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a post-dated check or order) would not be paid, if:

(1) the issuer had no account with the drawee at the time the check or order was issued; or

(2) payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal.

(c) Grading. -- An offense under this section is a misdemeanor of the second degree if the amount of the check or order exceeds $200; otherwise it is a summary offense.

This statute differs in one important aspect from its repealed predecessor, the Act of June 24, 1939, P.L. 872, § 854, as amended, 18 P.S. § 4854.*fn1 Former section 4854 expressly

[ 486 Pa. Page 431]

    required an intent to defraud as one of the essential elements of the crime, see Commonwealth v. Horton, 465 Pa. 213, 217, 348 A.2d 728, 730 (1975). In redrafting the Crimes Code in 1972, the legislature deliberately omitted the requirement of an intent to defraud as a constituent element of the crime of issuing a bad check.

Prior to this case the Superior Court had not had an occasion to interpret the new statute. Two courts of common pleas, however, had interpreted the statute and concluded that the element of intent to defraud must be read into the statute by the courts to enable the act to pass constitutional scrutiny. Commonwealth v. Willet, 74 Pa.D.&C.2d 368 (Monroe County, 1976); Commonwealth v. Ulsh, 68 Pa.D.&C.2d 124 (Cumberland County, 1974). Contra, Commonwealth v. Keown, 6 Pa.D.&C.3d 720 (Bucks County, 1978); see also Petition of Allentown Osteopathic Hosp., 67 Pa.D.&C.2d 790 (Lehigh County, 1974) (wherein the court reached the conclusion that the new statute had eliminated "an intent to defraud" but did not reach the constitutional question). In Keown the court analyzed the Willet and Ulsh opinions and came to the conclusions that the legislature had in fact decided to remove the element of intent to defraud from the crime and that without such an element the statute, nevertheless, was constitutional.

We agree with the ruling in Keown that:

[ 486 Pa. Page 432]

    to defraud as an element of forgery, see 18 C.P.S.A. [Pa.C.S.A.] § 4101, in the crime of simulating objects of antiquity, see 18 C.P.S.A. [Pa.C.S.A.] § 4102, and in the fraudulent destruction, removal or concealment of recordable instruments, see 18 C.P.S.A. [Pa.C.S.A.] § 4103. See also 18 C.P.S.A. [Pa.C.S.A.] § 4104 defining tampering with records or identification. We believe, therefore, that by the omission of the specific element of intent to defraud from the bad check charge the legislature intended to denominate passing a check for which there are insufficient funds with knowledge of the issuer as a crime regardless of whether present consideration passes at the time of the passing of the check or not.

6 Pa.D.&C.3d at 723.

Moreover, we are permitted to consider the prior act only when the words of the present statute are not explicit. When, as here, "the words of a statute are clear and free from all possible ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. § 1921(b) (1979 Pamphlet). We therefore hold that section 4105 does not require the Commonwealth to prove an intent to defraud on the part of the defendant.*fn2

Appellant contends that unless an intent to defraud is an element of the crime of passing bad checks, then section 4105 contravenes our constitutional proscription against imprisonment for debt. Article I, section 16 of our constitution provides: "The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law." Although both

[ 486 Pa. Page 433]

    the Ulsh and Willet cases agree with appellant's contention,*fn3 we believe that section 4105 is constitutional even without a requirement of an intent to defraud.

Article I, section 16 has rarely been interpreted by our courts. It is clear, nonetheless, that "[i]mprisonment for civil debt is abhorrent to the law of this Commonwealth." Young's Petition, 327 Pa. 267, 271, 192 A. 911 (1937). The constitutions of 1776, 1790, and 1838 all had provisions equivalent to the present section, and legislative implementation of these provisions has followed. See e. g. Act of July 12, 1842, P.L. 339, § 1, as amended, 12 P.S. § 257 (1953) (repealed by JARA, effective June 27, 1980); Act of February 28, 1787, P.L. 396, 2 Smith Laws of Pennsylvania 1781-1790.*fn4 See generally, Miller's Petition, 119 Pa. Super. 283, 291, 180 A. 904 (1935).

The very language of section 16 precludes its applicability to the present case: appellant, although a debtor, is not being "continued in prison after delivering up his estate for the benefit of his creditors." The few cases that have interpreted this section have concluded that it seeks to prevent the continuing imprisonment, under civil arrest, of a debtor who has surrendered his assets for the payment of

[ 486 Pa. Page 434]

    the claims of his bona fide creditors. See, e. g., Young's Petition, supra; Bloomington v. Shapiro, 129 Pa. Super. 218, 195 A. 642 (1937). Neither case law nor the language of the constitutional provision precludes the imprisonment of one who knowingly passes a bad check. Such a person is not being imprisoned for being a debtor. Rather, he is being imprisoned for intentionally disrupting the flow of and undermining the soundness of commercial paper in this Commonwealth. Our interpretation is in agreement with that reached in Keown, wherein the court stated:

6 Pa.D.&C.3d at 724.

We therefore affirm the judgment of sentence.

MANDERINO, Justice, dissenting.

I dissent. I agree with Judge Hoffman, dissenting in the Superior Court, that a construction of § 4105 which does not require an intent to defraud, invites litigants to use the criminal justice system to collect civil debts.

The majority opinion states that appellant is not being imprisoned for being a debtor but "for intentionally disrupting

[ 486 Pa. Page 435]

    the flow of and undermining the soundness of commercial paper in this Commonwealth." Under this guise or a similar one, every civil default could be converted into a criminal offense by stating that the accused is not being imprisoned for the civil default but rather is "being imprisoned for intentionally disrupting the flow of and undermining the soundness of [something] in this Commonwealth" -- undermining deeds (trespass actions) support agreements (nonsupport actions), newspapers (defamation actions), traffic flow (negligence actions), any written contract (breach of contract actions). In all civil actions, it can be said that someone intentionally disrupted the flow of something and undermined the soundness of something. What is sacred about checks that they deserve special protection in the world of private commerce?

Moreover, the majority opinion starts out with the proposition that it was not proven that the defendant had an intent to defraud -- the opinion ends up by concluding that the defendant had an intent to disrupt and undermine something. Where is the evidence as to the intent to disrupt and undermine? It is as lacking in the record as the intent to defraud.

I completely disagree with the majority's interpretation of Article I, § 16. The majority opinion says that you cannot be imprisoned for debt only if you voluntarily show up at the courthouse and hand over your assets. That is not the meaning of Article I, § 16. In the civil law, there is an entire system in existence for reaching the assets of debtors including judgment, levy, execution, and sale. A citizen must deliver his assets for the benefit of creditors, under the constitutional provision, in such manner as shall be prescribed by law. This means he must not conceal nor assign assets from the process of judgment, levy, execution, and sale. Even in the case of concealment or the assignment of assets to a third party there must be a strong presumption of fraud. See In Re Young's Petition, 327 Pa. 267, 192 A. 911 (1937). The burden is not on the citizen to prove he showed up at the courthouse and deposited his assets in the

[ 486 Pa. Page 436]

    courtroom. The burden is on the prosecution to establish fraud, beyond a reasonable doubt, in the concealment of assets from the established processes of the law.

I must respectfully dissent from a conclusion that takes a dangerous step in bringing back debtors' prisons.

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