Appeal from Order of the Court of Common Pleas, Civil Division, Cumberland County, No. 1174 Criminal, 1986.
Shawn C. Wagner, Assistant District Attorney, Carlisle, for Com., appellant.
Sally Jo Winder, Shippensburg, for appellees.
Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Del Sole, Montemuro, Beck and Tamilia, JJ.
[ 380 Pa. Super. Page 273]
The issue in this appeal is whether the two year statute of limitations within which to prosecute for writing a bad check in violation of 18 Pa.C.S. § 4105 is tolled or extended by the drawer's fraudulent promises to make the check good after the payee learns that the check has been dishonored by the drawee bank.
On April 15, 1984, Curtis and Carol Burruss issued a check in the amount of nine thousand, three hundred eighty ($9,380.00) dollars to Steven Best in payment for several horses which had been sold by Best to the Burrusses. Best deposited the check on the following day, but within five days it was returned unpaid because of insufficient funds in the drawer's account. Best was told to redeposit the check and did so. By the end of April or the beginning of May, however, the check had again been returned for insufficient funds. When Best contacted the Burrusses, he was told that their bank balance was insufficient to cover the check because they had deposited in their account a bad check taken in another business transaction. The Burrusses assured Best that the check would be made good. In June, 1984, in response to numerous inquiries by Best, the Burrusses offered to deliver as security for their debt a trailer which they represented to have a value of ten thousand ($10,000.00) dollars. Best accepted the offer. After several weeks had passed and the trailer had not been delivered, Best inquired and was told that the trailer had been totally destroyed in an accident. Throughout the ensuing autumn, the Burrusses continued to assure Best that they would pay Best the money which they owed to him. Finally, in December, 1984, the Burrusses promised to send to Best a series of twenty (20) post-dated checks, each in the amount of five
[ 380 Pa. Super. Page 274]
hundred ($500.00) dollars, and Best agreed to deposit one check per month until the debt was paid in full. These checks were delivered to Best in March, 1985. The first check was dated April 15, 1985. It was deposited and paid. During the next several months, however, all checks deposited by Best were returned unpaid because of insufficient funds. Then, after five or six months, another check was paid. On or about March 15, 1986, a third check was paid. All other checks were returned for insufficient funds. In the meantime, the Burrusses continued to assure Best that the bad checks would ultimately be paid. Finally, in April, 1986, Best decided that his debtors were not acting in good faith and took his claim to the District Attorney. A criminal complaint was filed on July 30, 1986, in which the Burrusses were charged with passing a single bad check on April 15, 1984.*fn1
The Burrusses were tried by jury and were found guilty. In response to a motion for post-trial relief, however, the trial court arrested judgment because prosecution had not been commenced within the two years allowed therefor by the statute of limitations. The Commonwealth appealed.
Except as otherwise provided, prosecution for an offense must be commenced within two years after it has been committed. 42 Pa.C.S. § 5552(a). An exception appears at 42 Pa.C.S. § 5552(c)(1) as follows:
(c) Exceptions. -- If the period prescribed in subsection (a) or subsection (b) has expired, a prosecution may nevertheless be commenced for:
(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this ...