No. 51 W.D. Appeal Docket, 1982, Appeal from the Order of November 30, 1981 of the Superior Court of Pennsylvania at Nos. 1595 and 1600 April Term, 1978, Affirming the Order of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC7704348A of November 22, 1978, Denying Appellant's Motion in Arrest of Judgment and Granting a New Trial.
H. David Rothman, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy Dist. Atty., Melinda G. Tell, Joel M. Kaufman, Asst. Dist. Attys., Pittsburgh, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., dissents.
This appeal is before the Court upon a grant of appellant's allocatur petition.*fn1 Appellant challenges the Court of Common
Pleas' grant and the Superior Court's, 239 Pa. Super. 78, 437 A.2d 999, affirmance of a new trial following their finding that a fatal variance existed between the indictment and the jury instructions at appellant's trial. The appellant was charged with criminal conspiracy and theft by deception. He now argues that his motion for arrest of judgment should have been granted. We agree.
Facts germane to the resolution of this case are summarized as follows:
Appellant, an attorney, entered into a business venture with Robert Todd, a client of the appellant, and one Stephen Levitt. They formed a coal brokerage firm called American International Company, which contracted to supply West Penn Power Company (hereinafter Utility Company) with low-sulfur coal. The contract provided that if the average sulfur content for any month's shipment exceeded a specified level, the Utility Company could cancel the remainder of the contract and pay only half the approximately $120,000-per-month contract price for the nonconforming shipment. To measure sulfur content, the Utility Company would accumulate samples of pulverized coal for each 10-day period, store them in a shed, and subsequently test them before making payment. American International's first twenty days of shipment drastically exceeded the specified sulfur level. The appellant met several times with Todd and Levitt to discuss the problem. Soon thereafter, Todd and Levitt went to the Utility Company's shed and replaced the last 10-day sample from their company with a similar quantity of extra-low sulfur, metalurgical grade coal. Although Todd told the appellant about the sample switch the following day, the testimony conflicts as to whether appellant actually believed Todd. In any event, the appellant did not notify the Utility Company. As a result of the switch, the month's sulfur content was within specified levels, and a few weeks later appellant accepted the Utility Company's full payment of $120,000 on behalf of American International.
Appellant was charged with criminal conspiracy and theft by deception as defined by 18 Pa.C.S.A. §§ 903(a)(1) and 3922(a)(1) respectively. He was named in the information individually, not ...