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decided: May 8, 1984.


NO. 57 EASTERN DISTRICT APPEAL DOCKET, 1983, Appeal of the Commonwealth from the Judgment of the Superior Court of Pennsylvania, Philadelphia District, dated December 17, 1982, docketed to No. 2731 Philadelphia 1981 which affirmed the Order of October 5, 1981, of the Court of Common Pleas of Chester County, which dismissed Count I of Information No. 1055-81, Pa. Superior Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., concurs in the result. Zappala, J., files a dissenting opinion.

Author: Hutchinson

[ 504 Pa. Page 602]


The Commonwealth appeals by allowance Superior Court's order affirming an order of Chester County Common Pleas. Common Pleas had granted appellee's motion to dismiss a felony count under the Crimes Code in a two count information because it felt the other count, a misdemeanor under the Public Welfare Code, encompassed identical activity. Common Pleas then concluded that appellee could be prosecuted only under the latter specific statute. On this record we disagree and therefore reverse.

Appellee was charged with theft by deception under the Crimes Code*fn1 and violation of a former version of the Public Welfare Code's prohibition against false statements.*fn2 The complaint alleged that appellee had unlawfully obtained $2,967.68 in Public Assistance funds by representing to the Chester County Board of Assistance that she had no income during the period January, 1978 through June, 1979. In fact she had received nearly $7,000.00 in wages from Chester County Headstart, Inc.

At issue is the legislative intent in enacting these penal provisions and the relationship between them. The Commonwealth asserts authority to prosecute welfare fraud cases under the felony theft provisions of the Crimes Code as well as the misdemeanor false statements provision of the Welfare Code. Because there is no facially irreconcilable conflict between the offenses as these statutes then defined them,*fn3 and because any actual conflict between them cannot be determined before the facts of this case are

[ 504 Pa. Page 603]

    developed, we reverse Superior Court and remand the case for trial on both counts of the original information.

Appellee first applied for welfare in October of 1977. At that time she was not receiving any income from employment. In January of 1978, she began receiving income from her employment with Chester County Headstart, Inc. From January, 1978 until April 24, 1978, appellee did not report this income to the Chester County Board of Assistance. On April 24, 1978, at an interview to redetermine her eligibility, appellee expressly denied that she was earning any income. She repeated these denials at subsequent redetermination hearings in October, 1978 and April, 1979.

In May of 1981, the Pennsylvania Department of Public Welfare filed a private complaint against appellee. The Chester County District Attorney approved the complaint and filed an information against her on July 2, 1981. Count I contained the charge of theft by deception; Count II contained the charge of violation of the Welfare Code. Appellee moved to dismiss Count I. The trial court, relying on Commonwealth v. Bidner, 282 Pa. Superior Ct. 100, 422 A.2d 847 (1980), and Commonwealth v. Buzak, 197 Pa. Superior Ct. 514, 179 A.2d 248 (1962), granted the motion. Superior Court affirmed, holding that "the specific crime of welfare fraud, in every conceivable circumstance, has been made criminal also by the general provisions of the Crimes Code," 309 Pa. Superior Ct. 386, 390, 455 A.2d 663, 665 (1982) (emphasis added). It then held that the Welfare Code was a comprehensive enactment which gave no indication that a prosecution for furnishing false information can proceed under both the Welfare Code and the Crimes Code and applied the rule that a specific statute precludes prosecution under a general statute.

We begin with a consideration of the relevant penal statutes. 18 Pa.C.S. § 3922 (Theft by Deception) provides:

§ 3922. Theft by deception

(a) Offense defined. -- A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:

[ 504 Pa. Page 604]

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the ...

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