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COMMONWEALTH PENNSYLVANIA v. EUGENE S. KYSLINGER (11/20/84)

decided: November 20, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
EUGENE S. KYSLINGER, APPELLANT



No. 15 W.D. Appeal Docket, 1983, Appeal from the Order of the Superior Court dated September 24, 1982, entered at No. 531 April Term, 1979, affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, entered on May 9, 1979 at No. CC7805961A, 305 Pa. Super. 626, 450 A.2d 1066 (1982).

COUNSEL

Gary B. Zimmerman, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Dara A. DeCourcy, Asst. Dist. Atty., Kemal Alexander, Mericli, Melinda G. Tell, Pittsburgh, for appellee.

Nix, C.j., and Larsen Flaherty McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a dissenting opinion.

Author: Flaherty

[ 506 Pa. Page 134]

Opinion OF THE COURT

In a trial by jury in the Court of Common Pleas of Allegheny County, the appellant, Eugene S. Kyslinger, was convicted of issuing a check with the knowledge that the check would be dishonored by the drawee, 18 Pa.C.S.A. § 4105, and a sentence of one to five years imprisonment was imposed. Superior Court affirmed the judgment of sentence. Commonwealth v. Kyslinger, 305 Pa. Super. 626, 450 A.2d 1066 (1982). The instant appeal ensued.*fn*

The events which culminated in appellant's issuance of the check in question were, in relevant part, as follows. Appellant, as president and sole owner of T.I.C. Corporation, a coal brokerage firm located in Pittsburgh, had a contract to supply coal to the United States Steel Corporation. To obtain the necessary coal, the appellant, on behalf of his company, entered into a contract with K.O.C., a company, located in Kentucky, which mines and supplies coal, operated by Mr. Cecil Lane.

Shortly after the contract was signed, two barges of coal were shipped to Pittsburgh from K.O.C. in Kentucky. On August 23, 1978, Mr. Lane, accompanied by two of his business partners, went to appellant's office in Pittsburgh to receive payment for the shipment. Appellant wrote a check, on behalf of the T.I.C. Corporation, in the amount of $98,689.50, payable to K.O.C. as per invoice. The check was presented for payment by Mr. Lane at his bank, but the check was dishonored for insufficient funds, due to the fact that at the time of presentment the T.I.C. Corporation had an account balance of only $123.88. Appellant was advised of the dishonor, but failed to make payment, and a criminal complaint was thereafter instituted.

At the ensuing trial, appellant was convicted of violating 18 Pa.C.S.A. § 4105, which provides that "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

[ 506 Pa. Page 135]

    not be honored by the drawee." Appellant contends the trial court erred in refusing to instruct the jury as to the availability of the defense of duress, inasmuch as appellant introduced evidence that the bad check was issued in response to coercion exerted by Mr. Lane and his business associates.

It is well established that, under 18 Pa.C.S.A. § 4105, supra., the legislature intended to denominate the passing of a check for which there are insufficient funds, where the insufficiency is within the knowledge of the issuer, as a crime regardless of whether the issuer possessed a specific intent to defraud. Commonwealth v. Mutnik, 486 Pa. 428, 406 A.2d 516 (1979). The mere fact that specific intent need not be proven as an element of the offense does not, however, negate the availability of the defense of duress. One who commits an act under the influence of duress does so in a manner that is, in effect, non-volitional. Indeed, one who is coerced into action serves as a mere conduit for the purposes of another, and, where duress is established, is relieved of responsibility for the act. The defense of duress, as set forth in 18 Pa.C.S.A. § 309(a), provides that it is a "defense that the actor engaged in the ...


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