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COMMONWEALTH PENNSYLVANIA v. JOSEPH GIUGLIANO (08/12/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 12, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY,
v.
JOSEPH GIUGLIANO, APPELLANT

No. 245 Harrisburg, 1980, Appeal from Judgment of Sentence of the Court of Common Please, Criminal Division, of Snyder County at No. Sum Conv. 100 - 1980.

COUNSEL

Stephen P. Ellwood, Pottsville, for appellant.

William C. Steppacher, Dunmore, for appellee.

Cavanaugh, Beck and Montemuro, JJ.

Author: Per Curiam

[ 318 Pa. Super. Page 33]

This is an appeal from a conviction and judgment of sentence for a summary violation of the Wage Payment and Collection Law, 43 P.S. 260.1 et seq. Appellant was prosecuted by the Department of Labor and Industry for the summary offenses of failing to pay wages to forty-two (42) employees of Cheryl Ann, Inc., for the week ending March 16, 1979. A district justice found appellant guilty, and an appeal was taken to the Court of Common Pleas of Snyder County. The court found appellant guilty, sentenced him to a fine of one hundred dollars ($100.00) plus costs for each unpaid employee. This appeal followed.

[ 318 Pa. Super. Page 34]

On appeal, appellant raises the following contentions: (1) his right to appeal is not waived; (2) the evidence is insufficient to sustain the verdict because the Commonwealth failed to prove he was an officer of the corporation and that he was liable for payment of the wages in question; (3) the Commonwealth violated his equal protection rights by prosecuting him and dismissing the charges against the corporation's president. We cannot reach the merits on all of appellant's claims, however, since there is no indication in the record that appellant filed post-verdict motions in accordance with Pa.R.Crim.P. 1123. On the other hand, there is also no indication in the record that appellant was advised, after verdict, of his right to file post-verdict motions and the consequence of the failure to so file. Pa.R.Crim.P. 1123(c).

Appellant's de novo trial was held in December of 1980 which was prior to the decision of this court in Commonwealth v. Koch, 288 Pa. Super. 290, 431 A.2d 1052 (1981) (post-verdict motions are required to preserve issues for appeal following a de novo trial in summary cases). In Commonwealth v. Picker, 293 Pa. Super. 381, 383-384, 439 A.2d 162, 163-164 (1981), President Judge Cercone dismissed the application of Koch to cases predating the decision in that case:

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa. Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.Pr. 1123(c).

[ 318 Pa. Super. Page 35444]

A.2d 1222 (1982); Commonwealth v. McNelis, 297 Pa. Super. 4, 442 A.2d 1184 (1982).

We recognize appellant claims his right to appeal is not waived due to the applicability of Koch in this matter. However, appellant further contends a remand is unnecessary because the record is adequate for this court to dispose of all claims on the merits. We disagree that a remand is unnecessary. In Koch the lower court at least had the opportunity to justify and articulate the reason for its decision because it issued an order pursuant to Pa.R.App.P. 1925(b), although this is not a substitute for post-verdict motions. Commonwealth v. Koch, supra. In the instant appeal both post-verdict motions and a concise statement of matters complained of on appeal pursuant to Pa.R.App.P. 1925(b) are absent. Therefore, the lower court in this case did not have the opportunity to reconsider its decision in light of any alleged error nor did it have the chance to express the reasons for its decision on all the issues raised in this appeal.

Judgment of sentence vacated and case remanded for the filing of post-verdict motions nunc pro tunc.

19830812

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