Appeal from the Order entered July 14, 1986 in the Court of Common Pleas of Clarion County, Criminal Division, at No. 77 C.R. 1986.
William M. Kern, Clarion, for Com., appellant.
James J. Panchik, Assistant District Attorney, Kittanning, for appellee.
Rowley, Del Sole and Tamilia, JJ.
[ 365 Pa. Super. Page 119]
Defendant-Appellee was charged on March 24, 1986 with four (4) counts of Theft By Failure to Make Required Disposition of Funds Received (18 Pa.C.S.A. § 3927(a)). The Criminal Complaint and the Information stated that the Appellee had committed this crime of theft when, in his capacity as Treasurer of the Chiefs' of Police Association of Southwestern Pennsylvania, he intentionally took $2,350.00 for his own use. (He wrote three checks payable to himself and a fourth payable to a third party). On June 10, 1986, the Appellee filed an Omnibus-Pre-Trial motion, seeking, inter alia, to quash the information. The opinion and order of July 14, 1986, quashing the Information, appear to hold that the Treasurer of any organization may use the funds of that organization for his or her own purposes as long as they are able to pay the bills of the organization as they come due. The trial court found that since the Information did not charge that the Appellee failed to make any required dispositions of funds received (an element of 18 Pa.C.S.A. 3927(a)), that the statute did not apply to the Appellee's activities in this case.
[ 365 Pa. Super. Page 120]
"The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion." Commonwealth v. Niemetz, 282 Pa. Super. 431, 439, 422 A.2d 1369, 1373 (1980). After reviewing the record we find that such an abuse has occurred and we reverse the trial court's order quashing the Information and remand for trial on the Information as filed by the Commonwealth.
The sole issue in this case is whether the Information properly charged the Appellee with Theft by Failure to Make Required Disposition of Funds Received (18 Pa.C.S.A. 3927(a)). This section of the Crimes Code is comprised of the following elements:
1. The obtaining of property of another;
2. Subject to an agreement of known legal obligation upon the recipient to make specified payments or other disposition thereof;
3. Intentional dealing with the property obtained as the ...