author: TAMILIA, Judge: JOHNSON, Judge, SPAETH, Judge

text:
    487 A.2d 1000
    COMMONWEALTH of Pennsylvania v. Richard ROBICHOW, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Jan. 25, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

This appeal arises from the denial of appellant’s petition for a writ of certiorari by the Court of Common Pleas of Philadelphia County. Appellant was charged by Municipal Court No. 78-07-1082, with theft by failure to make required disposition of funds received, 18 Pa.C.S.A. § 3927. Appellant was convicted in a non-jury trial of violating section 3927 and sentenced to make restitution of $75 to the complainant, to pay $10 to the Victims’ Compensation Fund, to pay $10 pursuant to the Domestic Abuse Act, and to pay costs of prosecution. Appellant filed a petition for writ of certiorari to the lower court alleging that the evidence was insufficient to support his conviction. The lower court denied the petition and appellant brought this appeal. We affirm.

The relevant facts are these:

On December 7, 1977, appellant contracted with the complainant, Rachel Word, to perform certain repairs to her home. A written agreement that had been prepared by appellant was admitted into evidence at trial. Among other things, appellant was to replace the door of complainant’s home and fix her leaky roof. The contract price for the job was $135. Ms. Word gave appellant $75 at the time of contracting, and he refused to sign a receipt for the $75 advance payment made to him by complainant. Appellant neither performed any of the agreed upon work nor returned the $75 advanced payment to Ms. Word. Ms. Word neither saw nor heard from appellant after contracting with him. At trial, testimony was given by Ms. Word. Appellant proffered no testimony.

The single issue for our determination is whether there was sufficient evidence to convict appellant of the crime of theft by failure to make the required disposition of funds received. 18 Pa.C.S.A. § 3927. The test of sufficiency of evidence is:

... whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all the elements of the crime have been established beyond a reasonable doubt ...

Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); Commonwealth v. Henry, 323 Pa.Super. 260, 470 A.2d 581 (1983).

Applying this test, we conclude, as did the court below, that all elements of the crime were proved beyond a reasonable doubt.

Section 3927 of the Crimes Code reads as follows: § 3927. Theft by failure to make required disposition of funds received.
(a) Offense defined. — A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition.

This Court reviewed this section in Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976); allocatur denied, where we outlined the four elements necessary to complete the crime. They are:

1. The obtaining of property of another;
2. Subject to an agreement of [sic] known legal obligation upon the recipient to make specified payments or other disposition thereof;
3. Intentional dealing with the property obtained as the defendant’s own; and
4. Failure of the defendant to make the required disposition of the property.

Id., 240 Pa.Superior Ct. at 16, 367 A.2d at 1094-95. See also, Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). Herein, appellant challenges the sufficiency of the evidence regarding only the first two elements.

Thus, we must determine if the evidence establishes beyond a reasonable doubt that appellant obtained property of another subject to an agreement or known legal obligation to make specified payments or other disposition. See Commonwealth v. Crafton, supra; 18 Pa.C.S.A. § 3927.

The evidence establishes that from the inception of the subject contract, appellant intended not to perform as contractually obligated. At the time of contracting, appellant refused to give complainant a receipt for the money advanced. Subsequently, he neither performed the work promised nor contacted the complainant to explain his failure to do the work. Because the evidence clearly establishes that the advance money was fraudulently obtained at the inception of contracting, title did not pass to appellant, and appellant’s possession of the money was “... property of another____” Accordingly, appellant’s reliance on Commonwealth v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978), is misconceived. In Austin, we held that a defendant did not fraudulently take the money of another since he performed on the construction contract for almost two months after receipt of the money, and it was only after economic problems, that defendant ceased to work. Compare Commonwealth v. Bhojwani, 242 Pa.Super. 406, 364 A.2d 335 (1976) (evidence produced led to conclusion that from the inception of the contract, defendant never intended to place the order for the clothes of his customers).

The dissent perceives no distinction between Austin and the present case, but we believe the distinction detailed above is an obvious one. If we were to adopt the dissent’s view, we would give a blanket immunity to the scam operators who sweep through neighborhoods, giving glib promises and authentic looking agreements, taking whatever money they can obtain, particularly from trusting and dependent elderly people, then never to be seen again. It is the intent that controls and not the superficial appearance of legality upon which the dissent relies. The larcenous intent can be inferred from all of the circumstances, and we are unable to say that the trial court abused its discretion in finding its existence here.

We also find that appellant obtained the property of another “upon agreement ... to make specific payment or other disposition____” 18 Pa.C.S.A. § 3927. Appellant had a clear legal duty to make disposition of the funds in a certain manner, namely, by procuring necessary materials to begin his repairs. See generally, Commonwealth v. Shapiro, 275 Pa.Super. 28, 418 A.2d 594 (1980). The evidence, viewed in the light most favorable to the Commonwealth, establishes that pursuant to the party’s contract, money was advanced at least in part, so that appellant would purchase necessary construction materials. As complainant testified at trial: “... [appellant] was supposed to do some work for me and one thing he was to put [sic] up a door and there was a leak on my roof, he was supposed to do that ... [for] $135.” (N.T. p. 4) Possessed with fraudulent intent at the time of obtaining the advance money, appellant never used the money to fulfill his contractual obligations. Compare Commonwealth v. Austin, supra.

The dissent disagrees with the majority’s footnote 1 that “we perceive no difference in the proof required for theft by deception, section 3922, and the charge found here, theft by failure to make required disposition, section 3927.” In his dissenting opinion, Judge Johnson would distinguish between the proof of the elements of the two offenses and find that since the manner of committing the crimes is different, the elements of the crimes are different. This is precisely what section 3902 of the Crimes Code was drafted to eliminate. It provides as follows:

§ 3902 Consolidation of theft offenses.
Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise, (emphasis added)

The plain intent of this statute was to consolidate all theft charges into one, and “has as its aim the removal of all artificial distinctions between different forms of theft.” Commonwealth v. Belcher, 233 Pa.Super. 212, 335 A.2d 505 (1975).

In Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980), our Court in passing on distinctions in proof between theft by unlawful taking or disposition, section 3921, and receiving stolen property, section 3925, found that a “thieving state of mind” is the essence of the theft charge, and the purpose of section 3902 is to reduce the opportunity for technical defenses based upon legal distinctions between thefts of various kinds.

This crime of “theft” was intended to embrace the offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. It is intended by this subsection and this article to eliminate the technical distinctions between larceny, fraudulent conversion, etc. The basic philosophy adopted is that if a person takes something which does not belong to him, this constitutes theft. It is contemplated that the indictment will state facts justifying the conclusion that a theft was committed.

Commonwealth v. Shaffer, supra, 279 Pa.Superior Ct. at 24-25, 420 A.2d at 725-26, quoting Toll, Pennsylvania Crimes Code Annotated § 3902 at 420 (1974), reprinting the Comment of the Joint State Government Commission (1967) (emphasis added).

Thus the proof of theft, per se, is sufficient to establish the commission of the crime, whether it was titled theft by deception or theft by failure to make required disposition, the manner of taking simply being the specific details of the theft and not constituting different elements of the crime. Where the legislature intended a distinction, it did so in regard to various crimes which resembled theft but are not to be treated as theft under the Crimes Code, and “therefore, provided separate provisions for each crime on the grading of offenses. See, e.g. § 3928 (unauthorized use of automobiles or other vehicles), § 3929 (retail theft), and § 3930 (theft of trade secrets).” Commonwealth v. Belcher, supra, 335 Pa.Superior Ct. at 217-18, n. 4, 335 A.2d at 507, n. 4. The fact that the two sections under discussion here, section 3922 and section 3927, carry identical penalties pursuant to section 3903, grading of theft offenses, further supports the unitary concept of theft regardless of the specific manner of its commission. In Commonwealth v. Lewis, 299 Pa.Super. 367, 445 A.2d 798 (1982), this Court held that the trial judge was in error in granting a demurrer to the Commonwealth’s evidence when that evidence was sufficient to establish theft by receiving stolen property, even when the crime charged was theft by unlawful taking. In construing section 3902, Judge Wieand in his Opinion stated:

This statute means that a specific charge of theft will permit evidence showing another type of theft; provided only, that the defendant must be given adequate opportunity to respond so that he or she will not be prejudiced or surprised.

(Citations omitted). Id., 299 Pa.Superior Ct. at 371, 445 A.2d at 800. As considered by the standards discussed above, the elements stated in Commonwealth v. Crafton, supra, for section 3927, Theft by failure to make required disposition of funds received: 1.) The obtaining of property of another; 2.) Subject to an agreement of [sic] known legal obligation upon the recipient to make specific payments or other disposition thereof; and 3.) Intentionally dealing with the property obtained as the defendant’s own, established the “thieving state of mind” which is the unitary element of theft derivative of section 3902, the consolidation section of which Commonwealth v. Shafer, supra, speaks. The facts of the theft, whether they make out the particulars of section 3927, Theft by failure to make required disposition of funds received, or section 3922, Theft by deception, are sufficient to establish guilt of theft, if they establish the taking and a “thieving state of mind.” Commonwealth v. Lewis, supra.

Thus we believe the analysis proposed in the dissent is inappropriate in its application to theft charges generally, and in particular, to the instant case.

We conclude that the evidence establishes beyond a reasonable doubt that appellant obtained property of the complainant subject to an agreement to dispose of it in a certain manner which are the two elements challenged by appellant. As appellant does not challenge the findings as to the last two elements of the crime, intentionally dealing with the property obtained as his own and failure to make the required disposition of the property, we accordingly affirm the lower court’s order and the judgment of sentence.

Order affirmed and judgment of sentence affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I conclude that the evidence was totally lacking to justify a rational trier of the facts to find guilt beyond a reasonable doubt on the only charge upon which appellant was tried. Appellant contends that the Commonwealth failed to adequately prove the first two elements of the crime of theft by failure to make required disposition of funds received. I agree and would therefore reverse the judgment of sentence and discharge appellant. Hence this dissent.

The only evidence presented by the Commonwealth was the testimony of the alleged victim, Rachel Word, and the written agreement upon which the charge was based. The agreement was not transmitted with the record to this court. Word testified that appellant agreed to do some work on her home for the agreed price of $135. Part of that work involved installing a door and repairing a leak in the roof. Word gave appellant $75 at the time the agreement was made. She testified that appellant did not want to acknowledge in writing his receipt of that money. None of the agreed work was ever done. Appellant did not return any of the initial $75 payment.

On these facts, the Municipal Court of Philadelphia found appellant guilty of violating 18 Pa.C.S. § 3927 for failing to make required disposition of funds received. Certiorari was denied by the Court of Common Pleas, prompting this appeal.

Section 3927(a) sets forth:

§ 3927. Theft by failure to make required disposition of funds received
(a) Offense defined. — A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.

Preliminarily, I note my strong dissent to the majority’s assertion in footnote 1 that it “perceive[s] no difference in the proof required for theft by deception, [18 Pa.C.S.] section 3922, and the charge found here, theft by failure to make required disposition, section 3927.” Majority opinion, at 1002. The Commonwealth virtually concedes that the conviction cannot stand under Section 3927 when it seeks to argue in its brief to this court: “II. DEFENDANT’S CONVICTION SHOULD BE AFFIRMED UNDER 18 PA. C.S.A. § 3902, CONSOLIDATION OF THEFT OFFENSES.” Brief for Commonwealth at 7-10. The thrust of the Commonwealth’s argument appears to be that since “[t]he record plainly shows that defendant could alternatively have been convicted of Theft by Deception,” appellant’s “ ‘thieving state of mind,’ evidence by his refusal to sign a receipt, provide any materials, do an iota of work, return any of the money, or even face his victim, is ample grounds upon which to affirm his conviction.” Id. at 9-10.

The majority directly adopts this argument of the Commonwealth, acknowledging its acceptance of the argument’s validity both in its footnote 1 and in the last third of its opinion. In my view, none of the cases relied upon by the majority justify such a stance.

Admittedly, our court in Commonwealth v. Belcher, 233 Pa.Super. 212, 335 A.2d 505 (1975) engaged in dicta to the effect that:

It would be illogical to construe the new Crimes Code, which has as its aim the removal of all artificial distinctions between different forms of theft (including receiving stolen property), as introducing a distinction in grade of offense between receivers and other thieves which did not even exist under the old statutes.

Id., 233 Pa.Superior Ct. at 217, 335 A.2d at 507. However, the only issue before the Belcher court was whether 18 Pa.C.S. § 3903(a), involving grading of theft offenses, should be construed so as to require that a defendant charged with receiving stolen property could only be found guilty of a third degree felony where it is proven that he is in the business of buying or selling stolen property.

Unlike the appeal now before us, Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980), involved an appeal from a conviction on one count of receiving stolen property (18 Pa.C.S. § 3925) where the defendant had been acquitted of another count of theft by unlawful taking or disposition (18 Pa.C.S. § 3921). The defendant argued on appeal that since he had been acquitted of theft by unlawful taking or disposition, the jury must have believed that the goods which he had sold — and which supported his conviction on receiving stolen property — could not have been stolen. In a panel opinion, our court held that consistency in a jury’s verdict is unnecessary, provided there is sufficient evidence to support the convictions the jury has returned, and that inconsistency in verdicts affords an accused no cause for relief, even though it may be difficult to reconcile the verdicts. Id., 279 Pa.Superior Ct. at 22, 420 A.2d at 724. I am unable to read the rather extended dicta following the holding in Shaffer as finding that Section 3902 of the Crimes Code can be interpreted as removing the distinction between the proof required for theft by deception in Section 3922 and the proof required for theft by failure to make required disposition, in Section 3927.

Nor do I find Commonwealth v. Lewis, 299 Pa.Super. 367, 445 A.2d 798 (1982) conclusive as to the majority’s position. In that case, two juveniles were arrested and charged with homicide, robbery, aggravated assault, theft by unlawful taking and conspiracy. At the conclusion of the Commonwealth’s case in the adjudication phase of the delinquency proceeding, the hearing court sustained demurrers to all charges, holding that the evidence was sufficient to show only theft by receiving stolen property. In reversing, a panel of our court agreed with the hearing court that the evidence was sufficient to prove theft by receiving stolen property. We reversed on two distinct and alternative grounds. Speaking for the three-judge panel, Judge WIEAND stated:

The statute [18 Pa.C.S. § 3902] means that a specific charge of theft will permit evidence showing another type of theft; provided only, that the defendant must be given adequate opportunity to respond so that he or she will not be prejudiced or surprised. See Commonwealth v. Morin, 237 Pa.Superior Ct. 533, 541-2 n. 3, 352 A.2d 189, 193 n. 3 (1975), rev’d on other grounds, 477 Pa. 80, 383 A.2d 832 (1978). See also Commonwealth v. Adams, 236 Pa.Superior Ct. 534, 345 A.2d 192 (1975) (Concurring Opinion by Hoffman, J.), aff'd, 479 Pa. 508, 388 A.2d 1046 (1978). It has also been held that because theft is a lesser included offense of robbery, an indictment charging robbery will support evidence of theft committed in any manner specified in the chapter of the Crimes Code which defines the several offenses of theft.2 See Commonwealth v. Stevens, 237 Pa.Superior Ct. 457, 465-66, 352 A.2d 509, 512-14 (1975).
We conclude, therefore, that the court below erred when, despite prima facie evidence of theft by receiving stolen property, it sustained appellees’ demurrers to charges of delinquency.

Id., 299 Pa.Superior Ct. at 371-72, 445 A.2d at 800.

My research does not disclose that Commonwealth v. Lewis has been cited for any purpose since its publication. With respect to the first ground advanced as supporting reversal, I find that neither of the cases relied upon to support the court’s interpretation of Section 3902 involved facts which afford a reasoned foundation for the Lewis pronouncement. In Commonwealth v. Morin, supra, the defendant was tried and convicted on a charge of theft by deception and our court found the evidence sufficient to warrant conviction on that very charge. In a footnote, the opinion writer opined that if the evidence had been insufficient, the defendant could have been found guilty of theft by unlawful taking or disposition. The concurring opinion of Judge [now President Judge] SPAETH in Morin, in my view, provides a correct and complete answer to the footnote:

SPAETH, Judge

(concurring):

I agree with the majority that the judgment of sentence in this case should be affirmed. I do not agree, however, with the majority’s dicta in footnote three. Section 3902 of the Crimes Code, 19 Pa.C.S. § 3902, does not mean that on appeal an appellate court can substitute a different theft offense for the one the defendant was convicted of in the court below. It merely permits the trial court to consolidate theft offenses where the evidence differs from the indictment or complaint and where the defendant has had adequate notice and preparation time to ensure a fair trial on the consolidated offenses.

Commonwealth v. Morin, 237 Pa.Super. at 542-3, 352 A.2d at 194. (emphasis in original).

In Commonwealth v. Adams, supra, also relied upon by the Lewis panel as to the first ground for reversal, the conviction of theft by unlawful taking or disposition was affirmed per curiam without a majority opinion being filed. In a published concurring opinion, (in which Judge Spaeth joined), Judge HOFFMAN found that the evidence was ample to sustain a conviction on receiving stolen property on Judge Hoffman’s rationale that the defendant had “retained movable property of another knowing that it had been stolen.” That rationale has only been accepted by the author, thereof, in another concurring opinion to Commonwealth v. Farmer, 244 Pa.Super. 334, 368 A.2d 748, 753 (1976), and in the citation by Judge Wieand in Lewis.

Turning to the second alternative ground for the holding in Lewis, our court cites to Commonwealth v. Stevens, supra, for the proposition that an indictment charging robbery will support evidence of theft committed in any manner specified in Chapter 39 of the Crimes Code. Our court did hold in Stevens that a conviction for theft would be sustained where the indictment had been for robbery, on the basis that one must be “in the course of committing a theft” in order to commit a robbery, see 18 Pa.C.S. § 3701, and that the evidence was sufficient to prove theft by unlawful taking under Section 3921(a).

As to the precedential value of Commonwealth v. Lewis, it is worthy of note that the decision resulted in the case being returned to the juvenile court for further proceedings, following the reversal of the order sustaining the demurrer. Lewis did not involve an appeal from judgment of sentence, as in the present case, where the issue is whether a conviction may stand without proof of all the elements of the only crime charged.

In summary, I dissent from the majority’s conclusion that the dicta appearing in Belcher, Shaffer, and Lewis provide any support for the very novel proposition advanced in the opinion of the majority here: “The facts of the theft, whether they make out the particulars of section 3927, theft by failure to make required disposition of funds received, or section 3922, theft by deception, are sufficient to establish guilt of theft, if they establish the taking and a ‘thieving state of mind’ ”. Majority Opinion at 1005.

The record is quite clear that until this case came to this court on review, there was never a suggestion that appellant had committed any crime except theft by failure to make required disposition of funds received, found in Section 3927. Although the majority notes that the appellant proferred no testimony, I should think that no person is required to respond to charges that have not been advanced!

It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

I believe that the discussion of the “plain intent” of Section 3902 of the Crimes Code, in which our court has engaged in the past, is both misleading and mistaken, and fraught with potential constitutional problems. Section 3902 provides:

§ 3902. Consolidation of theft offenses
Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise. (emphasis supplied.)

The emphasis of the majority, and the prior statements of our court, have been on the constitution of theft as a “single offense” and the “consolidation” of all theft charges into one, whatever that means. Insufficient respect has been paid to the necessity that the trial court “ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.” Without the latter, the former poses severe constitutional problems. At the very least, the entire section must be read to mean that a defendant be given ample notice, at trial and as part of the Commonwealth’s case, of all of the elements of a crime upon which the state seeks conviction.

Neither the Commonwealth in its brief nor the majority in its opinion suggests that appellant was afforded any notice that his conviction would depend upon a finding that he had violated Section 3922, theft by deception, rather than Section 3927 upon which he was, in fact, charged and convicted. It is both unnecessary and inappropriate, therefore, to dwell on whether the evidence was sufficient to prove theft by deception.

Returning then to the primary issue on this appeal, were the facts at trial sufficient to prove that appellant had obtained the property of another subject to an agreement to make specified payments or other disposition thereof? I conclude that they were not, and that the conviction should be reversed.

Our supreme court, citing to Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094-96 (1976), has set forth the four elements necessary to complete the crime:

As defined by Section 3927 of our Crimes Code, theft by failure to make required disposition of funds received has four elements:
1. The obtaining of property of another;
2. Subject to an agreement or known legal obligation upon the recipient to make specified payments or other disposition thereof;
3. Intentional dealing with the property obtained as the defendant’s own; and
4. Failure of the defendant to make the required disposition of the property.

Commonwealth v. Ohle, 503 Pa. 566, 581, 470 A.2d 61, 69 (1983) (footnote setting forth Section 3927 in its entirety omitted).

Appellant’s contention that the Commonwealth failed to prove either of the first two elements of the crime is well taken. One does not obtain “the property of another” by accepting an advance payment on a service contract which does not require a specific disposition of the funds, since title and possession of the funds passes to the recipient. In Commonwealth v. Bartello, 225 Pa.Super. 277, 301 A.2d 885 (1973), we reversed a conviction for fraudulent conversion under the old Section 4834 of the Penal Code of 1939 which the present Section 3927 has replaced. The defendant in Bartello, like the appellant in the case now before us, had entered into a construction contract, received an advance payment under the contract, and failed to either finish the job or return the money. There, we said:

While the appellant was undoubtedly guilty of breach of contract and perhaps even of fraud, he was not guilty of the crime of fraudulent conversion ...
The complainant must have title in the property at the time the conversion accrues to sustain a finding of fraudulent conversion. Commonwealth v. Yocum, [211 Pa.Super. 17, 234 A.2d 43 (1967) ]. Here clearly title passed to the appellant as the payments were within the contract price ... and render the appellant liable to perform the services under the contract ...
It seems apparent that in a simple contract providing for certain services at certain prices that where there is a transfer of money, within the contract price, even in advance of a due date, that title as well as possession passes and only a contractual obligation remains.

Id., 225 Pa.Superior Ct. at 279, 280, 301 A.2d at 886, 887.

I am unable to discern how the Commonwealth has established the first element set forth in Ohle, supra, “the obtaining of property of another,” since both title and possession of the $75 would have passed to appellant. The majority would hold, without citation to any authority to support it, that because the evidence “clearly establishes that the advance money was fraudulently obtained at the inception of contracting, title did not pass to appellant, and appellant’s possession of the money was ‘property of another.’ ” The factual basis for this conclusion appears to be that appellant refused to give complainant a receipt for the money advanced, did not perform the work, and did not contact complainant to explain his failure to do the work.

The difficulty I have with this analysis is that deceit is not one of the elements involved under Section 3927, which is before us, but rather an element under Section 3922, theft by deception, which is not before us. Even if this court were permitted to make an analysis of deception on appeal, which the trial court did not do, I could not agree with the majority that the evidence “clearly establishes” fraudulent intent. This is so because our legislature has properly mandated that deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise. 18 Pa.C.S. § 3922(a)(1).

Both the trial court and the majority attempt to distinguish Commonwealth v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978), a plurality decision of this court construing Section 3927, and relying on Bartello. In Austin, the contractor had agreed to do home improvement work under a written agreement. A portion of the contract price was paid to the defendant in advance, as per the terms of the agreement. At the homeowner’s request, a receipt was given for the advance to permit the homeowners to satisfy a bank which was to finance the project. After the work had progressed for two months, the defendant stopped work, resulting in a charge of theft by unauthorized disposition of the advance money paid on the contract. In reversing the conviction under Section 3927, Judge CERCONE stated:

with respect to the first element, “the obtaining of property of another,” we do not feel the acceptance of advance money on a construction contract is the property of another.

Id., 258 Pa.Superior Ct. at 466, 393 A.2d at 38 (emphasis in original).

In deciding Austin, Judge Cercone had occasion to consider and distinguish two other cases already construing Section 3927. He found, as I find, that both Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976) and Commonwealth v. Bhojwani, 242 Pa.Super. 406, 364 A.2d 335 (1976) involved cases where the conviction had been upheld on a clear showing that the property obtained and held by the defendant involved an agreement where the defendant served as an intermediary. See Commonwealth v. Crafton, supra, (travel agent); Commonwealth v. Bhojwani, supra, (monies received to purchase clothing from Hong Kong tailor); cf. Commonwealth v. Shapiro, 275 Pa.Super. 28, 418 A.2d 594 (1980).

Since I conclude that appellant had not “obtained the property of another,” it is unnecessary to determine whether the $75 paid to appellant was subject to an agreement or known legal obligation upon the appellant to make specified disposition thereof. Even if one were to assume that the money remained the property of the homeowner, the facts here involved fall far short of establishing either an agreement or known legal obligation as to how this particular down payment was to be spent or used by appellant. As in Austin, the agreement is silent on the subject of specific dispositional requirements. While it is certain that appellant was obligated to ultimately purchase the materials necessary to install the door and repair the leak in the roof, it is equally clear that there is absolutely no testimony or other evidence that appellant was either expected or required to use the advance payment solely for the purchase of construction materials. Nor do I understand the Commonwealth to argue otherwise.

Since the Commonwealth has not established either of the first two elements necessary for a conviction under Section 3927, I would reverse and discharge appellant.

      . We note that in its Reply Brief, counsel for defendant responds to the Commonwealth’s exposition concerning interchangeability of enumerated theft charges and the proof thereof, pursuant to 18 Pa.C.S.A. § 3902, Consolidation of Theft Offenses. This issue was not raised in the Petition for Writ of Certiorari and never considered by the lower court. In addition, had the matter properly been raised, we perceive no difference in the proof required for theft by deception, section 3922, and the charge found here, theft by failure to make required disposition, section 3927. Thus, the requirement of notice, with allowance of continuation where necessary provided in section 3902 to prepare for a defense to meet the proof of a different charge, is inapplicable here, and the decision of the lower court that a theft was committed could properly follow on the evidence. See Commonwealth v. Morin, 237 Pa.Super. 533, 352 A.2d 189, 193 n. 5 (1975), rev'd on other grounds, 477 Pa. 80, 383 A.2d 832 (1978).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    487 A.2d 1010
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard E. HENKEL.
    Superior Court of Pennsylvania.
    Submitted June 19, 1984.
    Filed Jan. 25, 1985.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Paul R. Gettleman, Zelienople, for appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is a consolidated Commonwealth appeal from two orders of March 11, 1983, granting appellee’s motions to dismiss and/or quash informations charging him and others with conspiracy to commit extortion. We reverse.

On April 15, 1981, complaints were filed against appellee, Henry Ford and Gary Small, charging conspiracy to commit extortion. After a preliminary hearing before a judge acting as committing magistrate, all those charged were held for court and informations were subsequently filed. Appellee’s pre-trial omnibus motion to suppress was granted and the Commonwealth appealed. During the pendency of this appeal the Commonwealth petitioned to amend the informations against co-conspirators Ford and Small. This was denied and the informations, identical to that lodged against appellee, were quashed. No Commonwealth appeal was then filed, but new informations were lodged and these too were quashed. At this point the lower court’s order granting appellee’s suppression motion was reversed by this Court and the case was remanded for trial. A Commonwealth petition requesting that the original information against appellee be amended was denied. Appellee was rearrested and after a preliminary hearing a new information was filed. On appellee’s motions that both informa-tions against him be quashed the court entered the Orders from which the Commonwealth now appeals.

The original information reads as follows:

The District Attorney of Allegheny County, by this information, charges that on (or about) the summer months of 1977 through and continuing until October 1980, in the said County of Allegheny, RICHARD HENKEL, hereinafter called actor, did commit the crime or crimes indicated herein; that is, 09031A, count 1, criminal conspiracy, felony 2. The actor, with the intent of promoting or facilitating the crime of criminal homicide of Arthur Rooney and/or Edward Ryan; and/or theft by extortion from said Arthur Rooney and Edward Ryan; and/or kidnapping of said Arthur Rooney and/or Edward Ryan, and/or robbery of said Arthur Rooney and Edward Ryan, and/or an attempt to commit said crimes, conspired and agreed with Henry Ford and/or Roy Travis, and/or Jack David Siggson, and/or Gary Edward Small, and/or Junior Krip-plebair, and/or others, that they or one or more of them would engage in conduct constituting such crime or crimes, and in furtherance thereof, to commit the overt act of procuring, receiving, building, maintaining or testing a device or devices capable of carrying out part of the illegal agreement or providing weapons to co-conspirator or soliciting one or more of the co-conspirators to select a person as an appropriate victim of the illegal agreement or conducting a surveillance upon the homes of a prospective victim in violation of § 903(a)(1) of the Pennsylvania Crimes Code, Act of Dec. 6,1972,18 Pa.C.S.A. § 903(a)(1).

The amended information differed only in the following particulars: the deletion of all mention of the names of Arthur Rooney and Edward Ryan, and substitution of the phrase “against persons in Pennsylvania or California” (where co-conspirator Jack Siggson had relocated, maintaining continuous telephone contact with appellee).

The conspiracy was revealed by Siggson upon an offer of immunity in return for his testimony. Its basic elements involved the kidnapping and physical attachment to the victim of a bomb removable only upon payment of a large sum of money. Appellee’s ransom expectations were in the nature of three to four million dollars. Electronic devices, to control, both the movement of the victim’s car from which the abduction(s) would take place, and the explosive device, were supplied by a Canadian associate. The initial (tentative) targets of the plot were, as the original information indicated, Arthur Rooney, Sr., the owner of the Pittsburgh Steelers Football Team, and Edward Ryan, a prominent local businessman. The trial court found that the Rooney/Ryan designation was a sub-plot, abandoned in 1977, of a general conspiracy and, therefore, not actionable under the applicable two year Statute of Limitations, 42 Pa.C.S.A. §§ 5551, 5552. The court further found that because appel-lee’s statute of limitations defense would be defeated by refinement of the original information, the second information was improper and both were quashed consistent with the holding in Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979).

Although the court’s conclusion is syllogistically sound, we find that the major premise from which it proceeds, that is the focus upon plots and sub-plots, is legally improper. Semantics notwithstanding, conspiracy has been held to be a continuing offense. Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982), Commonwealth v. Cardonick, 444 Pa. 322, 292 A.2d 402 (1972). It requires no quantum leap in logic to conclude that if conspiracy is not severable as to diverse crimes contemplated by a single agreement, Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), it is even less so as to the proposed victims of such crimes. Although Braverman speaks to the question of punishment, the principle to be applied is yet the same for determining the application of such pre-trial matters as the statute of limitations; no incidental division is appropriate where the offense is on-going, as the dates in the preamble to both informations, and the evidence adduced at the preliminary hearing demonstrate it to have been.

There is no argument that the very definition of conspiracy demonstrates its integrity as a discrete offense:

18 Pa.C.S.A. § 903 Definition: a. A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: (1) agrees with such other person or persons they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) agrees to aid such other person or persons in the planning or commission of such crime, or of an attempt or solicitation to commit such crime.

To superimpose a delineating structure upon what is descriptive of a continuum of planned unlawful activity violates both the integrity of the definition and the requirements of legal precedent.

In the instant case the possession of the electronic and explosive devices, the overt act providing the actualization of illegal intent, continued from 1977 until appellee’s arrest in 1980 and supplies the “repetitions” which case law characterizes as regenerative in effect. Volk, supra; Commonwealth v. Dunie, 172 Pa.Super. 444, 94 A.2d 166 (1953); Commonwealth v. Kirk, 141 Pa.Super. 123, 14 A.2d 914 (1940), aff'd., 340 Pa. 346, 17 A.2d 195 (1941). Here, even such regeneration was unnecessary as only the identity of prospective victims, never the object of the conspiracy, was abandoned in favor of (a) more acceptable target(s).

Because the conspiracy is not severable, the Statute of Limitations provides appellee with no viable defense. The information was, therefore, properly subject to amendment under Pa.R.Crim.P. 220 and 229. The lower court found that “to add the words ‘and/or others’ by amendment would have resulted in broadening the group of prospective victims of the conspiracy ...” (Slip Op. at 3) rendering their inclusion an amendment “of substance rather than form, which if permitted, would result in prejudice to the rights of the defendant and his co-conspirators.” (Slip Op. at 5)

These conclusions are based on the notion that the identity of the potential victims somehow affects the structure of the conspiracy, delimiting it by targeted individuals and activating the Statute of Limitations. This, in turn, by affecting the qualitative character of the proposed amendment, and hence the scope of the conspiracy, creates a substantive emendation. We can only reiterate that this central postulate misses the essence of what constitutes conspiracy — a continuous agreement of unlawful purpose evidenced by an overt act in furtherance of the implementation of the criminal intent. How many or who the victims may be is entirely irrelevant. Admittedly, the original information was inartfully drawn, names of victims should not have been mentioned, as they were not contained in the complaint. But their inclusion, so far from providing a basis for fragmentation of the plan into “sub-plots” or any other equivalent configuration, constituted merely an unnecessary personification in an otherwise valid information, timely filed. The trial court’s further conclusion that the proffered defense barred the subsequent and purely formal amendment merely embellishes an already untenable result.

Our conclusion serves also to counter the holding, relied on by the trial court, in U.S. v. Oppenheimer, 242 U.S. 85, 87-88, 37 S.Ct. 68, 69, 61 L.Ed. 161 (1916), that:

[A] judgment for the defendant upon the ground that a prosecution is barred (by limitations) goes to his liability as a matter of substantive law____ A plea of the statute of limitations is a plea to the merits (citation omitted) and, however, the issue was raised in the former case, after judgment upon it, it could not be reopened in a later prosecution.

This assumes that the statute of limitations is a viable defense; here, however, it is not. Oppenheimer applies to a second prosecution under a new indictment for the same offense, and not as here, to a properly amended complaint timely filed. Thus, the original information was improperly quashed and amendment improperly disallowed.

For the foregoing reasons the order of the lower court quashing the informations is reversed and this case is remanded for trial on the merits.

JOHNSON, J., concurs in the result.

      . Orders dismissing the 1981 (original) informations against co-conspirators Ford and Small were entered January 20, 1982. However, Commonwealth appeals in these cases were not taken within the 30 day time limit for such actions, with the result that the appeals were quashed as untimely. In the instant case Orders dismissing both the original and the amended informations against appellee were filed on March 11, 1983 and the appeals by the Commonwealth were filed March 22, 1983, well within the designated time frame. We are therefore able to discuss the merits of both the 1981 and 1982 informa-tions and are not restricted to examination of the amended documents only.

      . Rooney and Ryan were dismissed as potential victims because of the former’s advanced age and because the conspirators were unable conclusively to identify Ryan.

      . Rule 220. Amendment of Indictments
      The court may allow an indictment to be amended where there is a defect in form, the description of the offense, the description of any person or any property, or the date charged provided the indictment as amended does not charge an additional or different offense. Upon amendment the court may grant such a postponement of trial or other relief as is necessary in the interests of justice. Adopted June 30, 1964, effective Jan. 1, 1965. (Emphasis added) Rule 229. Amendment of Information
      The court may allow an information to be amended when there is defect in form, the description of the offense, the description of any person, or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice. Adopted and effective Feb. 15, 1974. (Emphasis added)


author: HOFFMAN, Judge: SPAETH, President Judge,

text:
    487 A.2d 1327
    SCHNABEL ASSOCIATES, INC. v. The BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1984.
    Filed Jan. 4, 1985.
    Reargument Denied March 13, 1985.

      Richard B. Sigmond, Philadelphia, for appellant.
    Lawrence S. Coburn, Philadelphia, for appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order holding appellant in civil contempt and imposing fines. Appellant challenges the propriety of the proceedings below, the sufficiency of the evidence supporting the finding of contempt, and the assessment of the fines. We affirm in part and vacate in part.

In November of 1981, appellee, a construction company, began developing the Bethesda House project in Upper Chichester Township, Delaware County. Disputes over wage and employment benefit policies caused appellant, a labor organization comprised of building and construction unions in the Philadelphia area, to establish a picket line at appellee’s construction site. On November 12, 1981, appel-lee filed a complaint against appellant seeking to enjoin the illegal mass picketing and misconduct and to limit the number of pickets. On December 3, 1981, the lower court entered an order (1) enjoining appellant, or any of its agents, employees and representatives, from interfering with appellee’s job site by obstructing ingress or egress, mass picketing, violence or intimidation; and (2) limiting the number of pickets to six, with each picket at least three feet apart and more than 50 yards from any entrance to the site. Following the entry of that order, several of appellant’s members committed acts of violence on the picket line. Consequently, on December 15, 1981, appellee filed petitions for attachment for civil contempt and for indirect criminal contempt. A series of evidentiary hearings were held on December 30, 1981, January 12, 1982, February 16-17, 1982, May 27, 1982 and June 24, 1982. Finally, on October 22, 1982, the lower court filed an Opinion containing findings of fact and conclusions of law and the following Order:

AND NOW, to wit, this 20th day of October A.D. 1982, after hearing testimony and reviewing Briefs by respective counsel, the following is ORDERED and DECREED:
1. The Council [appellant] is found to be in civil contempt of the Court’s Order of December 3, 1981 as amended;
2. Clarence Ridle is found to be in civil contempt of the Court’s Order of December 3, 1981, as amended;
3. Edward McClintock is found to be in civil contempt of the Order of December 3, 1981 as amended;
4. David Lyons is found to be in civil contempt of the Court’s Order of December 3, 1981 as amended;
5. Jack Scott is found to be in civil contempt of the Court’s Order of December 3, 1981 as amended;
6. John Garvey is found to be in civil contempt of our Order of December 3, 1981 as amended;
7. The Council [appellant] is ordered to pay a [prospective] fine of Twenty-five Thousand ($25,000.00) Dollars, returnable upon there being no further contemptuous acts at the Bethesda House job site.
8. The Council [appellant] is ordered to pay the attorneys’ fees of the Plaintiff.
9. The Council [appellant] is further ordered to post a [bond] in the amount of Five Hundred Thousand ($500,-000.00) Dollars to compensate Plaintiff for any additional damages.
10. The Council [appellant] is ordered to pay two-thirds (%) of the Sheriff’s bill incurred by the Plaintiff.
11. Individual Defendants Clarence Riddle, Edward McClintock, David Lyons, Jack Scott and John Garvey are fined the sum of One Hundred ($100.00) Dollars each and are further Ordered not to commit any further acts of contempt, under threat of being attached for indirect criminal contempt.[]

On November 15, 1982, appellant filed the instant appeal. On December 22, 1982, appellee filed a motion to quash the appeal because of appellant’s failure to file timely exceptions. This Court, in a February 8, 1983 per curiam order, denied the motion without prejudice to the parties to raise the jurisdictional issue at argument.

The first issue we must resolve is whether the appeal should be quashed because of appellant’s failure to file exceptions to the October 20, 1982 contempt order. Appellee argues that the order was a decree nisi and, therefore, appellant was required to file timely exceptions pursuant to Pa.R.Civ.P. 1518. Appellant asserts that the order was final and required no exceptions. Under Pa.R.Civ.P. 1517(a),

[t]he adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi.

Pa.R.Civ.P. 1518 provides that exceptions may be filed by any party to the decree nisi within ten days after notice of the filing of the adjudication and that matters not covered by exceptions are deemed waived. Pa.R.Civ.P. 1519(a) provides that, if no exceptions are filed within the ten-day period, then the decree nisi is to be entered by the prothono-tary on praecipe as the final decree. See Commonwealth v. Tolleson, 462 Pa. 193, 340 A.2d 428 (1975) (failure to file exceptions resulted in order becoming final and waiver of issues on appeal). However, in Commonwealth v. Derry Township, Westmoreland County, 466 Pa. 31, 351 A.2d 606 (1976), our Supreme Court held that failure to file exceptions did not preclude raising arguments on appeal where the court’s order contained no findings of fact, no conclusions of law, nor any language which would indicate that the order was anything other than a final order, or that the parties were required to file exceptions to perfect a right of appeal. The Court stated: “Where the court’s order neither comports with the requirements of Rule 1517 nor indicates on its face that the order is a decree nisi, it should not be presumed that exceptions must be filed in order to preserve a right of appeal.” Id., 466 Pa. at 41, 351 A.2d at 611. See also Patrick & Wilkins Co. v. Adams, 456 Pa. 566, 322 A.2d 341 (1974) (parties were deprived of an opportunity to file exceptions where chancellor’s adjudication included findings of fact, conclusions of law and a “final decree”).

In the instant case, although the lower court opinion accompanying the contempt order included findings of fact and conclusions of law, the order itself did not indicate on its face that it was a decree nisi. On the contrary, the order appeared final. See College Watercolor Group, Inc. v. William H. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976) (“[A] contempt order is final and appealable when it is entered.”); Commonwealth v. Morrisey, 150 Pa. Superior Ct. 202, 27 A.2d 446 (1942) (order committing for contempt is final and subject to review). While it is true that appellee filed what it titled a “Petition by Schnabel Associates, Inc. For Exceptions” pursuant to Pa.R.Civ.P. 1518, this petition only sought to make certain technical amendments to the October 20, 1982 Opinion and Order, namely, substituting the terms “prospective” and “bond” for the terms “perspective” and “bail”, respectively, in the Order, and changing a statement in the Opinion from “The following acts are alleged to have occurred on December 9, 1981:” to “The following acts occurred on December 9, 1981:”. Appellant did not object to the requested amendments to the Order in its answer and later withdrew its objection to the amendment in the Opinion. The lower court then granted the petition. We find that the lower court’s correcting these technical errors was more appropriately covered by Pa.R.A.P. 1701(b)(1), which provides that, after an appeal is taken, the trial court may “[t]ake such action as may be necessary to ... correct formal errors in papers relating to the matter[.j” Additionally, we note that appellee’s petition was filed 21 days after the entry of the contempt order, far exceeding the ten-day limit set by Rule 1518 for filing exceptions. Further, upon the expiration of the ten-day period without either party filing exceptions within that period, the Prothonotary did not, on praecipe, enter the order as a final decree pursuant to Rule 1519(a). Under these circumstances, we find it reasonable to conclude that neither the lower court nor the parties construed the contempt order as a decree nisi requiring exceptions. We also find that appellant received insufficient notice of the need to file exceptions so as to justify our quashing its appeal. Accordingly, we hold that the contempt order was final and appealable.

Appellant contends that the lower court (1) improperly commingled civil and indirect criminal contempt proceedings, thereby depriving appellant of constitutional due process rights, and (2) failed to comply with the mandatory procedural steps for civil contempt proceedings. “It is axiomatic that courts have always possessed the inherent power to enforce their orders and decrees by imposing sanctions for failure to comply with said orders.” Rouse Philadelphia Inc. v. Ad Hoc '78, 274 Pa. Superior Ct. 54, 71, 417 A.2d 1248, 1257 (1979). “Contempt [of court] may be civil or criminal; criminal contempts are further divided into direct and indirect classifications.” Grubb v. Grubb, 326 Pa. Superior Ct. 218, 222, 473 A.2d 1060, 1062 (1984). “Direct criminal contempt involves those contumacious acts committed in the presence of the court.” Rouse Philadelphia Inc. v. Ad Hoc '78, supra. See also Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956).

The distinction between criminal contempt and ... civil contempt lies in the judicial response to the contumacious acts and the judicial responses are classified according to the dominant purpose of the court in issuing the order. If the dominant purpose of the court is to punish an offender for past contumacious acts in disobedience to a court directive then the contempt is criminal. If the purpose of the court is to coerce the contemnor to comply with the court directive then the contempt is civil contempt.

Rouse Philadelphia Inc. v. Ad Hoc '78, supra.

... The “[d]ominant purpose of coercion or punishment is expressed in the sanction imposed. A civil adjudication of contempt coerces with a conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance”____ Where the contempt is civil in nature, “the court must impose conditions on the sentence so as to permit the contemnor to purge himself; he must be allowed to carry the keys to the jail in his pocket.” ... “[A] contemnor who will be sentenced to a determinate term of imprisonment or a fixed fine, which he is powerless to escape by purging himself of his contempt, is entitled to the essential procedural safeguards that attend criminal proceedings generally.” ...

Grubb v. Grubb, supra, 326 Pa.Superior Ct. at 222-223, 473 A.2d at 1062 (citations omitted).

The factors generally said to point to a civil contempt are these: (1) Where the complainant is a private person as opposed to the government or a governmental agency; (2) where the proceeding is entitled in the original injunction action and filed as a continuation thereof as opposed to a separate and independent action; (3) where holding the defendant in contempt affords relief to a private party; (4) where the relief requested is primarily for the benefit of the complainant; and (5) where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion.

Knaus v. Knaus, supra, 387 Pa. at 378, 127 A.2d at 673.

“[Ejven where the same facts might give rise to criminal as well as civil contempt, each has its own distinct procedures and confers distinct procedural rights; the two may not be casually commingled.” Barrett v. Barrett, 470 Pa. 253, 260, 368 A.2d 616, 619 (1977). A direct criminal contempt proceeding is summary, involving arrest and imprisonment. Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicini ty et al., 449 Pa. 194, 220, 296 A.2d 504, 518 (1972). In an indirect criminal contempt proceeding, the defendant is entitled to the right to bail, the right to be notified of the accusations against him and reasonable time to prepare a defense, the assistance of counsel, and the right, upon demand, to a jury trial; he can only be found guilty if every element of the crime is proven beyond a reasonable doubt. 42 Pa.C.S.A. § 4135; Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicinity et al., supra, 449 Pa. at 221, 296 A.2d at 519; Knaus v. Knaus, supra, 387 Pa. at 375, 127 A.2d at 671; Cipolla v. Cipolla, 264 Pa. Superior Ct. 53, 59, 398 A.2d 1053, 1056 (1979). In order to hold one in civil contempt, a five-step process must be followed: (1) a rule to show cause why an attachment should not issue, (2) an answer and hearing, (3) a rule absolute, (4) a hearing on the contempt citation, and (5) an adjudication. Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicinity, et al., supra, 449 Pa. at 220-21, 296 A.2d at 518-519; Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 6, 253 A.2d 263, 266 (1969); Village Gentry, Inc. v. West Village, 316 Pa. Superior Ct. 404, 407, 463 A.2d 427, 428 (1983). Improper commingling occurred in Philadelphia Marine Trade Association v. International Longshoremen’s Association, Local Union No. 1291, 392 Pa. 500, 140 A.2d 814 (1958). In that case, the lower court apparently held the defendants guilty of criminal contempt whereas the plaintiffs had requested civil contempt relief. In reversing the contempt orders, our Supreme Court held that the defendants were deprived of their procedural rights. The Court stated that, as civil contempt proceedings, the contempt orders were improper because they punished the defendants for past acts of misbehavior rather than setting forth conditions of compliance to which defendants were required to conform and conditioning its punitive measures on failure to comply therewith. The Court further stated that, even if the proceedings were viewed as indirect civil contempt, the defendants were not afforded trial by jury, which they had timely demanded, and the penalties imposed were in excess of the permissible statutory limits. Id., 392 Pa. at 513, 140 A.2d at 821. See also Barrett v. Barrett, supra (Because the civil contempt power is used to compel performance, not inflict punishment, “a court may not convert a coercive sentence into a punitive one by imposing conditions that the contemnor cannot perform and thereby purge himself of the contempt”.).

Here, having reviewed the record, we find that appellant was afforded adequate procedural safeguards prior to the finding of civil contempt and that the lower court did not improperly commingle civil and criminal contempt proceedings. Appellee’s two petitions for attachment sought the court to grant a rule to show cause why appellant (1) “should not be adjudged in civil contempt of court” and (2) “should not be attached and subsequently tried for indirect criminal contempt”. The lower court granted these rules to show cause and appellant answered the petitions. Six hearings were then held over the course of several months before the court entered the final civil contempt order. It is clear that the procedures utilized by the lower court and the final order itself were consistent with the finding of civil contempt. The sanctions imposed were proper for civil contempt and reflected the lower court’s dominant purpose, which was to coerce appellant’s compliance with the December 3, 1981 preliminary injunction. Additionally, all the factors indicated civil contempt: the complainant (appellee) was a private entity rather than a governmental entity; the contempt proceeding was entitled in the original injunction action and filed as a continuation thereof; holding appellant in contempt afforded relief to a private party; and the contemptuous acts were primarily civil in character.

Although appellant correctly asserts that the lower court omitted two steps out of the five-step process mandated for civil contempt, namely, entering a rule absolute and holding a hearing on the contempt citation, we do not find that fact determinative. In Rouse Philadelphia Inc. v. Ad Hoc ’78, supra, the defendant and a large group of demonstrators massed at and around the entrances to a downtown shopping mall, shouting and urging a boycott of the businesses. Following a full hearing, the trial court entered an injunction order against picketing, handbilling, speechmaking, demonstrating, and boycotting. After the defendant and 37 others were arrested for violating the order, the court held a hearing at which the defendant was given the opportunity to address the court. The defendant again led a demonstration at the mall and was again arrested. After another hearing, he was found in civil contempt and committed for 90 days, conditioned upon his right to purge himself of the contempt by assuring the court that he would, in the future, comply with the court order, and fining him $5,000. On appeal, the defendant claimed a violation of his due process rights because he was not accorded the five-step procedure required by Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicinity et al., supra. In rejecting this claim, this Court held that the Altemose procedure was inapplicable where the attachment and contempt proceedings were predicated upon the violation of an order, which was served on the contemnor and entered after a full hearing. We further stated:

[EJven if we were to hold that the Alternóse multi-step procedure applied to this situation we would hold that appellant had been provided with the procedural safeguards guaranteed therein as the court below conducted three hearings at which appellant had the opportunity to be heard prior to holding appellant in contempt of court.

Rouse Philadelphia Inc. v. Ad Hoc '78, 274 Pa.Superior Ct. at 74, 417 A.2d at 1259. We concluded that “due process requires no more than notice of the violations alleged and opportunity for explanation and defense.” Id. See also Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974) (contemnor should have reasonable notice of the specific charges against him and an opportunity to be heard in his own behalf before being sentenced for contempt); Crislip v. Harshman, 243 Pa.Superior Ct. 349, 365 A.2d 1260 (1976) (five-step procedure for civil contempt substantially complied with where appellant was informed of the charge against him, given two hearings before official sanctions were imposed, and apprised of the means of purging himself of the contempt). The conclusion we draw from the above caselaw, therefore, is that the essential due process requisites for a finding of civil contempt are notice and an opportunity to be heard. In the instant case, those requisites were certainly satisfied by the extensive pleadings and the six hearings at which both parties had ample opportunity to present their cases.

Having concluded that appellant was afforded sufficient procedural safeguards prior to the finding of contempt, we also determine that there was no improper commingling of civil and indirect criminal contempt proceedings because appellant was never tried or sentenced for criminal contempt. The prohibition against commingling seeks to prevent the imposing of criminal contempt penalties without affording criminal procedural rights or civil contempt sanctions without affording the required civil procedures.

[T]he procedures appurtenant to [civil and criminal] contempt [proceedings] may [not] be so commingled as to take from a party the rights to which it is by law entitled to enjoy or to give that party benefits to which it has no right. The punishments in an indirect criminal contempt must be in strict accord with the applicable . statutes of this Commonwealth and the coercive measures in a civil contempt must specify the conditions upon which compliance by the defendant will result in release therefrom.

Philadelphia Marine Trade Association v. International Longshoremen’s Association, Local Union No. 1291, supra, 392 Pa. at 512, 140 A.2d at 821 (emphasis added). Here, appellant was found in civil contempt after being afforded proper civil procedures and ordered to pay appropriate civil sanctions. Contrary to appellant’s claim, it would have been improper to apply the reasonable doubt standard of proof to the proceedings below, which were civil in nature and culminated in the entry of a civil contempt order. The lower court properly chose to follow civil procedures and impose the less serious, civil sanction. See In re November, 1975 Special Investigating Grand Jury, 475 Pa. 123, 379 A.2d 1313 (1977), cert. denied, O’Brien v. Pennsylvania, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978) (court should impose criminal contempt sanction only where civil contempt would be inadequate or inappropriate).

Our conclusion that the lower court distinguished between civil and criminal proceedings is further supported by the contempt order itself. In fining the individual defendants, the lower court ordered them “not to commit any further acts of contempt, under threat of being attached for indirect criminal contempt.” (Emphasis added). This language makes it clear that the lower court did not improperly combine civil and criminal contempt procedures but conducted fair civil contempt proceedings. Therefore, we fail to see how appellant was prejudiced by the proceedings below.

Appellant next contends that the evidence was insufficient to support the finding of civil contempt. Specifically, it argues that there was no evidence that appellant actually participated in, authorized or ratified the illegal acts by its officers or members. Initially, we must dispose of appellant’s misapprehension that the standard of union liability set forth in § 106 of the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101 et seq., applies to the instant case. Section 106 provides that:

No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof

29 U.S.C.A. § 106 (emphasis added). It has been held on both the federal and state court levels that the anti-injunction provisions of the Norris-LaGuardia Act apply only to federal courts, and not to state courts. Ford v. Boeger, 362 F.2d 999, 1005 (8th Cir.1966), cert. denied, 386 U.S. 914, 87 S.Ct. 857, 17 L.Ed.2d 787 (1967); Shaw Electric Co. v. International Brotherhood of Electrical Workers, Local Union No. 98, 418 Pa. 1, 8 n. 11, 208 A.2d 769, 773 n. 11 (1965). Cf. United Mine Workers of America v. Gibbs, 383 U.S. 715, 737, 86 S.Ct. 1130, 1144, 16 L.Ed.2d 218 (1966) (§ 106 applies to federal court hearings of state court claims arising out of labor disputes). Also, contrary to appellant’s assertion, the Pennsylvania Labor Anti-Injunction Act, 43 Pa.S.A. §§ 206a et seq., does not apply to the instant case by virtue of the violence exception contained in § 206d(d). Under this section, the Anti-Injunction Act will not apply in any case

Where in the course of a labor dispute as herein defined, an employe, or employes acting in concert, or a labor organization or the members, officers, agents, or representatives of a labor organization or anyone acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining____

43 Pa.S.A. § 206d(d). Our Supreme Court has held that pickets’ blocking of entrances to an employer’s plant constituted a seizure under § 206d(d). Wilkes-Barre Independent Co. v. Newspaper Guild, Local 120, et al., 455 Pa. 287, 290, 314 A.2d 251, 253 (1974). See also Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicinity et al., supra (based on findings of violence, Pennsylvania Labor Anti-Injunction Act does not preempt jurisdiction of state court to enjoin violence and limit congregation because defendants’ picketing was indistinguishable and inseparable from acts of violence).

Generally, state courts have the power to restrain violence, mass picketing and overt threats of violence in order to protect public order and safety, and prevent damage. Capital Bakers v. Local Union No. 464, 281 Pa.Superior Ct. 384, 387, 422 A.2d 521, 523 (1980). Although Pennsylvania courts have not established a clearcut measure of union liability for its members in the civil contempt context, we are guided by the standard set forth in National Labor Relations Board v. Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local No. 327, 592 F.2d 921 (6th Cir.1979). In that case, the circuit court upheld the Master’s finding that the union was in civil contempt of prior orders prohibiting mass picketing, blocking entrances to the employer’s business premises, and threatening harm to employees and property. The court ruled that (1) lack of effective action by the union, in the face of flagrant violations by union members, to repudiate the misconduct amounted to silent approbation and acquiescence in such activities, and (2) the union’s tacit approval of the members’ acts of violence during the labor disputes rendered the union responsible for its members’ misconduct. Id. at 928-29. The federal courts have applied the clear and convincing standard of proof in civil contempt cases. Id. at 928; Nelson Tool and Machine Co., Inc. v. Wonderland Originals, Ltd., 491 F.Supp. 268 (E.D.Pa.1980). Cf. Schauffler for and on Behalf of NLRB v. Local 1291, International Longshoremen’s Association, 292 F.2d 182 (3d Cir.1961) (petitioner in civil contempt proceeding must overcome heavy burden of proof). Pennsylvania courts, however, have stated that in civil contempt proceedings, the burden is generally on the complaining party to prove noncompliance with the court order by a preponderance of the evidence. Barrett v. Barrett, supra,; In re Grand Jury, April Term, 1977, Wayne County, 251 Pa.Superior Ct. 43, 379 A.2d 323 (1977). Here, the lower court made the following findings of fact:

C. Since November, 1981, the Council [appellant] has established and maintained a picket line at Bethesda House.
D. The Council’s delegates were present at the picket line to monitor activity for the council, [sic]
E. That at all times one or more members of the council [sic] were present at the picket line.
F. The Court issued an Order on December 3, 1981, enjoining the Council from mass picketing and from committing acts of violence, intimidation or coercion; as well as blocking ingress and egress to Bethesda House.
G. The Council [appellant] had knowledge of the December 3, Order and the subsequent amendments thereto.
H. Council [appellant] knew or should have known that its pickets were committing acts of violence in defiance of the Court’s Order.
I. The Council [appellant] took no action to stem the tide of these violent acts.
J. The pickets have committed numerous violations of our Order as described more fully above.

(Lower Court Opinion at 12-13). The acts of violence committed by the picketers occurred in December, 1981, and in January, March, April and May, 1982, and included the following: throwing rocks, explosive devices, chain saw, jack, glass bottles and firecrackers at trucks and security guards at appellee’s construction site; blocking ingress and egress; slashing and stabbing tires of trucks attempting to enter the site; beating up a subcontractor and vandalizing his vehicle; firing marbles from a slingshot at appellee’s employees; and shouting obscenities and threats at persons attempting to enter the job site and at security guards. (Lower Court Opinion at 6-10). These findings are supported by the record. The lower court apparently found both appellee’s witnesses and videotapes, which showed these acts of violence occurring, to be credible and reasonably concluded the following:

2. The Council [appellant] established and sanctioned a picket line at the Bethesda House job site.
3. The Council repeatedly violated the Court’s Order by committing acts of violence more fully set forth above.
4. When a labor organization sanctions a picket line and has its delegates monitoring the line, it is responsible for the acts of its members when it fails to take affirmative steps to monitor and control the action of the pickets.
5. Where a labor organization, who has knowledge of acts of violence by its members and takes no steps to investigate and control these acts, they have ratified and sanctioned these acts.

(Lower Court Opinion at 13-14). Under these circumstances, we find that the evidence was more than sufficient to support the finding of civil contempt. Accordingly, we hold that the lower court did not abuse its discretion in sanctioning appellant. See Bata v. Central-Penn National Bank of Philadelphia, 433 Pa. 284, 249 A.2d 767 (1969) (great reliance must be placed upon the discretion of the trial judge in civil contempt proceedings); East & West Coast Service Corp. v. Papahagis, 344 Pa. 188, 25 A.2d 341 (1942) (each court is the exclusive judge of contempts committed against its process, and on appeal its action will be reversed only when a plain abuse of discretion appears); In re Grand Jury, April Term, 1977, Wayne County, supra (in considering appeal from contempt order, great reliance must be placed upon the discretion of the trial judge).

Appellant contends finally that the lower court improperly assessed exorbitant fines and damages against it without first conducting a hearing to determine appellant’s ability to pay or to explore other methods of securing compliance with the injunction. “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” Brocker v. Brocker, 429 Pa. 513, 521, 241 A.2d 336, 339 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969) (emphasis omitted). In civil contempt proceedings, the court may not convert a coercive sentence into a punitive one by imposing conditions that a contemnor cannot perform and thereby purge himself of the contempt. Commonwealth ex rel. Novack v. Novack, 310 Pa.Superior Ct. 112, 456 A.2d 208 (1983). The court may impose an unconditional fine upon a contemnor in order to encourage future compliance for the benefit of the injured private party. Rouse Philadelphia Inc. v. Ad Hoc '78, supra, 214 Pa.Superior Ct. at 72-73, 417 A.2d at 1258-1259. A civil contempt penalty must state the condition which upon fulfillment will result in the release of the defendant or the remission of the fine. Knaus v. Knaus, 387 Pa. 370, 379, 127 A.2d 669, 673 (1956). Attorneys’ fees and other disbursements necessitated by the civil contemnor’s noncompliance may be recovered by the aggrieved party. Thompson v. Johnson, 410 F.Supp. 633 (E.D.Pa.1976), aff'd mem., 556 F.2d 568 (3d Cir.1977) (reasonable attorneys’ fees and compensation for damages); Farber v. Rizzo, 363 F.Supp. 386 (E.D.Pa.1973) (compensatory damages, including reasonable attorneys’ fees and costs); Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) (attorneys’ fees and expenses); Rouse Philadelphia Inc. v. Ad Hoc '78, supra (overtime costs for police and sheriff’s deputies). The court may also order the contemnor to post a bond to compensate the injured private party from further financial losses caused by damage to property and injury to persons as a result of picketing activities. Capital Bakers, Inc. v. Local Union No. 464 of the Bakery and Confectionary Workers International Union (AFL-CIO) of America, 281 Pa.Superior Ct. 384, 422 A.2d 521 (1980).

Here, the lower court expressly found that appellee was forced to expend monies for overtime pay for the Sheriff of Delaware County to protect its property and to pay attorneys’ fees in conjunction with the contempt action (Lower Court Opinion at 13). Hence, appellant was ordered to pay compensatory damages to appellee for the attorneys’ fees and sheriff’s costs incurred as the result of appellant’s contempt. Appellant was also ordered to pay a conditional fine of $25,000, remittable upon appellant’s future compliance with the injunction order, and to post a bond of $500,000 to compensate appellee for any additional damages. These sanctions are proper elements of a civil contempt order because they are coercive and compensatory, and not punitive.

We find, however, that the record fails to reveal whether the lower court considered appellant’s ability to pay in assessing the $25,000 remittable fine. “[I]n fixing the amount of a fine to be imposed ... as a means of securing future compliance, [the court must] consider the amount of defendant’s financial resources and the consequent seriousness of the burden to the particular defendant.” United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); see also Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969). Because the civil contemnor must be able to purge itself of the contempt, we find it necessary to remand this case so that the lower court may hold a hearing to determine appellant’s ability to pay the fine. If it appears on remand that appellant had already complied with the court’s order or that the dispute between the parties had ended, then the lower court may determine that the issue is moot and reinstate the fine.

Accordingly, we vacate the order insofar as it requires appellant to pay the $25,000 fine and remand for proceedings consistent with this opinion; otherwise, we affirm the order.

Affirmed in part; vacated and remanded in part.

Jurisdiction is not retained.

SPEATH, President Judge, files a concurring and dissenting opinion.

SPAETH, President Judge,

concurring and dissenting:

I am unable to join in the majority’s conclusion that the trial court properly required appellant to post a bond of $500,000. I should therefore vacate that requirement and remand the case to the trial court for further proceedings.

Preliminarily, I note that while in most respects I agree with the majority’s opinion, I should limit the majority’s conclusion that the trial court came close enough to complying with the five-step procedure set forth in Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969), see Rouse Philadelphia, Inc. v. Ad Hoc '78, 274 Pa.Super. 54, 417 A.2d 1248 (1978), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), to cases such as this one, in which the contempt proceedings involve the failure to comply with an injunction. I express no view on whether a court could properly omit any of the five steps in a different type of case.

With respect to whether the trial court properly required appellant to post a bond of $500,000: Appellant argues that the record does not support the imposition of a bond in that amount. I agree. Fines may be imposed in á civil contempt proceeding to compensate the petitioner for damages suffered due to the respondent’s noncompliance with the court’s order. See United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947). In this case the court imposed, as compensatory fines, sheriff’s fees, attorney’s fees, and a $500,000 bond. The proper amount of compensatory fines is governed by the actual loss suffered by the petitioner and not by the respondent’s ability to pay. Id. at 304, 67 S.Ct. at 701. Therefore, the court’s failure to inquire into appellant’s ability to pay did not invalidate a compensatory fine. Moreover, the record supports the court's conclusion that appellant’s violation of the injunction caused appellee to incur sheriff’s fees and attorney’s fees. The record also supports the court’s conclusion that appellant’s violation of the injunction caused appellee additional damages. The court therefore properly required appellant to post a bond to compensate appellee for any future damages. See Capital Bakers, Inc. v. Local Union No. 464 of the Bakery and Confectionary Workers Int’l Union, 281 Pa.Super. 384, 422 A.2d 521 (1980). However, the record does not support the conclusion that a bond in the amount of $500,000 was required in order to compensate appellee for future damages. The only evidence that appellees introduced regarding the amount of damages suffered related to the sheriff’s fees incurred. While there was extensive evidence to support a conclusion that appellant’s violations of the injunction caused additional damages to appellee, there was no evidence regarding the amount of those damages. Indeed, in its proposed orders appellee requested a bond of only $50,-000 to compensate it for any future damages. I find no support in the record for imposition of a bond of $500,000.

The trial court’s order should be vacated in so far as it required appellant to post a bond of $500,000, and the case should be remanded for further proceedings.

      . This order was later amended to limit the number of pickets to four, with each picket at least eight feet apart.

      . The original order used the terms "perspective” and "bail" rather than "prospective" and "bond”. The amendments were requested by appellee in its November 12, 1982 petition for exceptions and were not objected to by appellant in its November 22, 1982 answer to the petition.

      . The five individuals named in the October 20, 1982 contempt order also filed appeals to this Court but later withdrew their appeals.

      . Pa.R.Civ.P. 1518 and 1519 have since been rescinded, effective January 1, 1984.

      . This Court is without jurisdiction to hear an appeal from an interlocutory order in a contempt case. Cedar Valley Civic Association v. Schnabel, 239 Pa.Superior Ct. 486, 362 A.2d 993 (1976). A contempt finding is interlocutory and nonappealable until sentence has been imposed. In re Koll, 311 Pa.Superior Ct. 570, 457 A.2d 570 (1983); Hester v. Bagnato, 292 Pa.Superior Ct. 322, 437 A.2d 66 (1981). Here, the contempt order included sanctions.

      . Appellant also contends that it was denied the right to jury trial and the right to assert its privilege against self-incrimination. These claims are patently meritless because the lower court did not conduct indirect criminal contempt proceedings nor enter a criminal contempt order; therefore, these criminal procedural rights never attached. Moreover, the privilege against self-incrimination is purely personal and cannot be utilized by or on behalf of any organization. United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944).

      . The sheriffs fees, attorney’s fees and $500,000 bond were imposed as compensatory fines. Because the proper amount of compensatory fines is governed by the actual loss suffered by the petitioner and not by the respondent’s ability to pay, see United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947), the lower court’s failure to inquire into appellant’s ability to pay did not invalidate a compensatory fine. Moreover, the record supports the court’s conclusion that appellant's violation of the injunction caused appellee to incur sheriffs fees, attorney's fees and additional damages.

      . This is not to say that there must always be specific evidence as to the amount of actual damages in order to support the imposition of a bond. The trial court certainly may use its common sense in evaluating the evidence regarding the damage done, and impose a bond that reasonably corresponds to that evaluation. Here, however, while the damage done was extensive, nothing indicates that it approached the amount of the bond imposed, and the trial court did not explain why it imposed a bond in an amount ten times as large as that requested by appellee.

      . It may be that on remand the trial court would determine that this issue is now moot. The record before us does not reveal whether or not appellant has complied with the court’s order. If it were to appear on remand that appellant had not yet posted the bond, but that the dispute between the parties had ended, then there would be no basis for further proceedings. Similarly, further proceedings would not be warranted if it were to appear on remand that appellant had complied with the court’s order and had already posted the bond. Cf. Easton Theatres, Inc. v. Wells Fargo Land & Mortgage Co., Inc., 498 Pa. 557, 449 A.2d 1372 (1982) (appeal dismissed as moot where record revealed that appellant complied with injunction rather than seeking to have order stayed and not complying with injunction pending appeal).