text:
    435 A.2d 233
    COMMONWEALTH of Pennsylvania v. James JACKSON, a/k/a John Anderson, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1981.
    Filed Oct. 2, 1981.

      Charlotte A. Nichols, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   PER CURIAM:

Appellant was convicted of simple assault, conspiracy and theft. No direct appeal was taken from the sentence imposing a term of imprisonment. The record from the Post Conviction Hearing reveals that Appellant had requested his trial counsel to appeal and that the Defender Association, by letter to the defendant, refused to file an appeal because they believed the case lacked merit. Accordingly, we reverse the order denying relief under the Post Conviction Hearing Act. Commonwealth v. Fareri, 271 Pa.Super. 174, 412 A.2d 632 (1979). See also, Commonwealth v. Unger, 494 Pa. 592, 598, 432 A.2d 146, 149 (1980) (concurring opinion, ROBERTS, J.) On remand Appellant must be allowed thirty days to file direct appeals nunc pro tunc from the 1976 judgments of sentence.

Reversed and remanded.


source: Caselaw Access Project

author: O’KICKI, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    435 A.2d 234
    COMMONWEALTH of Pennsylvania, Appellant, v. Leonard H. SWIFT. COMMONWEALTH of Pennsylvania, v. Leonard SWIFT, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1979.
    Filed Sept. 11, 1981.
    Petition for Allowance of Appeal Denied Jan. 11, 1982.

      Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellant in No. 286 and appellee in No. 405.
    Cynthia M. Weaver, Asssistant Public Defender, Doylestown, for appellant in No. 405 and appellee in No. 286.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

A jury returned a verdict of guilty of the crime of Burglary and Conspiracy to Commit Burglary on June 22, 1968; the same jury found the defendant not guilty of the Possession of an Offensive Weapon. On January 12,1979, at the time of sentencing, the Trial Court vacated its earlier Order of December 22, 1978, wherein the Trial Court had denied all post-trial motions. At the time of sentencing the Trial Court granted the Defendant’s Motion for a New Trial and denied the Motion to Arrest Judgment. Cross Appeals were filed by the Defendant and by the District Attorney to this Court.

Two basic questions arise from the underlying facts of this instant case. Was the Commonwealth’s evidence sufficient to support the jury verdict? If so, did the Trial Court exceed its authority granting the motion for a new trial? And, if not, did the Trial Court err in refusing the Defendant’s motion in Arrest of Judgment?

The Croyden V.F.W. (V.F.W.) was located on the first floor of a three story building in Croyden, Bristol Township, Bucks County, Pa. In the early morning hours of January 20, 1978, while fresh snow was falling, the Bristol Town police received a call at 4:19 a. m. that a burglary was in progress at the V.F.W. An officer witnessed two sets of fresh footprints leading from a tire track to the building. One set of footprints led from the building through the woods to the place on the State Road where the Defendant was placed in custody. The other suspect (Amareld) was found inside the V.F.W. Upon searching the Defendant, along with displaced liquor bottles both inside and outside the building, police found lead filled gloves on his person. The window at the V.F.W. had been broken. The Commonwealth seeks to infer that Defendant broke the window in furtherance of the conspiracy or burglary. Through the footprints Commonwealth seeks to infer that these belong to Defendant since Defendant was found near the point where the prints left the boards and entered the State Road.

The primary issue is the sufficiency of the Commonwealth’s evidence, i. e. could their presentation at trial conceivably support the jury verdict?

It has been well established law in this Commonwealth that the test for sufficiency of evidence in a criminal case is whether, viewing all the evidence admitted at trial, in light most favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Coades, 260 Pa.Super. 327, 394 A.2d 575, 576 (1978).

The evidence and the reasonable inferences taken in the light most favorable to the Commonwealth establish that two people went from Bellview Avenue to the V.F.W. Building, the window was smashed, liquor bottles were piled both inside and outside the window, one suspect was caught inside the building, one set of tracks led away from the building to where the defendant was caught and the defendant was found to have had lead-knuckle gloves in his pocket, and most importantly, the defendant lied as to his presence at the scene.

Although mere presence at the scene is insufficient to convict, Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1973), Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973) , Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974) and mere presence or flight from the scene is not, in itself, sufficient to establish a conviction, Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975), the jury could, and did, conclude that Amareld and Swift, the defendant, went to the V.F.W. building together, that one or both of them smashed the window, that Amareld went inside to get the liquor, that the bottles were handed out the window to Swift and that when the police arrived, Swift fled through the woods to the point of his capture. There is more than mere presence at the scene and flight. The evidence and inferences also show the affirmative involvement of two persons and the defendant’s untruth about his presence at the scene.

We conclude that the evidence is sufficient to support a jury verdict. In doing so, we need not address the question of any error in the Trial Court’s refusal of defendant’s Motion in Arrest of Judgment.

The second issue is the question of the authority of the Trial Court in granting the Motion for a New Trial.

Prior to sentencing, the Trial Court, sua sponte, vacated the prior orders issued by that Court. Not only is that Court permitted by law to consider and rule in post-trial motions, Pa.R.Crim.P. 1123, reconsider its rulings on previously raised pre-trial or trial motions, but in addition, other grounds for a new trial can be considered “upon cause shown”. Pa.R. Crim.P. 1123 (a). Upon reflection of its own decisions, and upon reconsideration of the prosecution’s demeanor and remarks before the jury, the Trial Judge felt it necessary to reverse his earlier order denying a motion for a new trial (Trial Court Opinion P. 10).

The Trial Court, in his Opinion at page 7, correctly states the function of and position of his role at trial, i. e., “to apply the law in a fashion which could bring about a just result.” Just as after-discovered evidence is considered as a basis for a new trial (Pa.R.Crim.P. 1123 (d)) the judge, in keeping with his function and position, can consider evidence which later becomes known to him and which may well have or could have affected the jury’s verdict if known at time of trial.

The Commonwealth’s position in urging this court to disregard completely all the events which the Trial Court judge considered and which occurred after the trial as legally irrelevant, is not valid. We can affirm the granting of a new trial. Perhaps more convincing than the philosophical reasoning behind the Trial Courts discussion of function and role of the Trial Judge is the fact that certain improper and prejudicial remarks were made by the Assistant District Attorney in his closing arguments. The defendant testified in his defense at trial and his credibility, along with that of all witnesses was decided by the jury. Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978). When the Assistant District Attorney made reference to the incapability of Defendant’s testimony as being credible, he precipitated a defense objection and a motion for mistrial. (Record p. 208).

The Pennsylvania Supreme Court has held that a prosecutor may not express his personal opinion regarding a defendant’s guilt or credibility and, in doing so, “clearly and improperly intrudes upon the jury’s exclusive function of evaluating the credibility of the witness.” Commonwealth v. Gilman, 470 Pa. 179 at 180 and 191, 368 A.2d 253 at 258 and 259 (1977).

The Defendant, Swift, believe that such remarks of the Assistant District Attorney represent improper trial conduct that injects his personal opinion of the defendant’s credibility and intrudes upon the jury’s function by implying guilt based on personal opinion. When a prosecutor comments in such a manner, it is so highly prejudicial that it can be remedied only by the granting of a new trial. Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971), Commonwealth v. Caesar, 478 Pa. 575, 387 A.2d 471 (1978). For the above reasons, it is obvious that the Trial Court did not exceed its authority in the reversal of its earlier order denying defendant’s Motion for a New Trial. Therefore, such order must be affirmed.

The Trial Court has the broad overview ability and responsibility to oversee the trial process, both with respect to the establishment of the burden of proof and the application of due process. With that function in mind, we deny all appeals, affirm the Trial Court’s Order and remand the case.

Affirmed and Remanded.

CAVANAUGH, J., files a concurring statement.

CAVANAUGH, Judge,

concurring:

I concur in the result which is to grant a new trial.


author: SPAETH, Judge:

text:
    435 A.2d 585
    KINGSLEY AND KEITH (CANADA) LIMITED and Kingsley and Keith Chemical Corporation. v. MERCER INTERNATIONAL CORPORATION and Interstate Chemical Corporation and H. M. Trimble & Sons, Limited. Appeal of H. M. TRIMBLE & SONS, LIMITED.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1979.
    Filed June 26, 1981.
    Reargument Denied Oct. 9, 1981.
    Petition for Allowance of Appeal Granted Dec. 22, 1981.

      P. Raymond Bartholomew, Sharon, for appellant.
    Thomas T. Frampton, Greenville, for Kingsley et al., appellees.
    Milford L. McBride, Jr., Grove City, for Mercer et al., appellees.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   SPAETH, Judge:

This case, one of a trilogy of long-arm jurisdiction cases, is an appeal from an order granting a petition by Kingsley and Keith (Canada), Limited, and Kingsley and Keith Chemical Corporation for leave to serve an amended complaint in assumpsit on H.M. Trimble and Sons, Limited, by registered mail to Trimble’s headquarters in Canada.

1-

For the purposes of our inquiry, we shall accept as true the well-pleaded facts in the amended complaint. Cf. Frisch v. Alexson Equip. Corp., 423 Pa. 247, 224 A.2d 183 (1966). So regarded, the amended complaint may be summarized as follows.

In 1974, one Canadian corporation, Celanese (Canada), Limited, ordered approximately 80,000 lbs. of methylene chloride from another Canadian corporation, Kingsley and Keith (Canada), Limited. Kingsley and Keith (Canada) ordered the methylene chloride from Kingsley and Keith Chemical Corporation, a New Jersey corporation, which in turn ordered two tanks of methylene chloride (approximately 40,000 lbs. each) from Mercer International Corporation, a Pennsylvania corporation. Kingsley and Keith (Canada) then arranged with H.M. Trimble and Sons, Limited, a Canadian corporation, to have the tanks transported to Canada. In October 1974, Interstate Chemical Corporation, a Pennsylvania corporation and an affiliate of Mercer International Corporation, sent one tank truck of the methylene chloride to Indianapolis, for transferral there to a Trimble tank truck. In November 1974, Interstate sent another tank truck of the methylene chloride to Mercer, Mercer County, Pennsylvania, for transferral there to a Trimble tank truck. Trimble delivered both tank loads to Celanese (Canada), but Celanese rejected them because the methylene chloride was contaminated. Kingsley and Keith (Canada) and Kingsley and- Keith (New Jersey) thereupon brought the present action in Mercer County against Mercer International, Interstate, and Trimble. Generally stated, the allegation is that Mercer International, Interstate, and Trimble were obliged to deliver good methylene chloride to the two Kingsley and Keiths, so that the two Kingsley and Keiths could deliver it to Celanese, but instead, delivered contaminated methylene chloride.

While all this seems complicated, it really is not. Plainly, both Mercer International and Interstate, as Pennsylvania corporations, may be sued in Pennsylvania, and no one contends otherwise; the issue is whether Trimble, a Canadian corporation, may be. This issue may be stated as follows: When a Canadian common carrier (Trimble) contracts with another Canadian corporation (Kingsley and Keith (Canada) to pick up one load of methylene chloride in Indiana and another load in Pennsylvania, and delivers both loads in Canada to a third Canadian corporation, does it acquire sufficient minimum contacts with Pennsylvania to render it amenable to suit in Pennsylvania in an action in which breach of the contract of carriage is alleged and in which the Pennsylvania sellers of both loads of methylene chloride are also defendants?

Answers to interrogatories revealed the following. Trimble did not receive a bill of lading from Mercer International, although it should have been the delivery carrier designated on the bill of lading. Trimble did not have authority either from the Pennsylvania Public Utility Commission or the Interstate Commerce Commission to pick up or deliver goods in Pennsylvania; the authority under which the methylene chloride was picked up in Pennsylvania was a “trip-lease” between Coastal Tanklines Limited and Trimble. Pri- or to the transactions involved here, Mercer International and Interstate had not requested or paid for Trimble’s services, nor had they had any business relationship with Trimble.

-2-

Before a court in this state may exercise jurisdiction over Trimble, it must appear that Trimble’s conduct was within the provisions of this state’s long-arm statute, and that application of the statute to Trimble would not violate the due process clause of the Fourteenth Amendment of the United States Constitution. Monroeville Land Co., Inc. v. Sonnenblick-Goldman Corp. of Western Pa., 247 Pa.Super. 61, 371 A.2d 1326 (1977); Action Industries, Inc. v. Wiedeman, 236 Pa.Super. 447, 346 A.2d 798 (1975). The long-arm statute in effect at the time this action was instituted provided in pertinent part:

Any foreign corporation which shall have done any business in this Commonwealth without procuring a certificate of authority to do so from the Department of State as required by statute, shall be conclusively presumed to have designated the Department of State as its true and lawful attorney authorized to accept, on its behalf, service of process in any action arising within this Commonwealth. Service of process shall be made in the manner provided by section 8307 of this title (relating to procedure for service of process).
* * * * * *
(a) General rule.—Any of the following shall constitute “doing business” for the purposes of this chapter:
(1) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
(2) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
(3) The shipping of merchandise directly or indirectly into or through this Commonwealth.
(4) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by the Commonwealth or any of its agencies.
(5) The ownership, use or possession of any real property situate within this Commonwealth.
(b) Exercise of full constitutional power over foreign corporations.—In addition to the provisions of subsection (a) of this section the jurisdiction and venue of courts of the Commonwealth shall extend to all foreign corporations and the powers exercised by them to the fullest extent allowed under the Constitution of the United States. Act of Nov. 15, 1972, P.L. 1063, No. 271, 42 Pa.C.S.A. §§ 8302(a), 8309 (Purdon’s Supp.1976).

Since the statute makes this state’s jurisdiction over a foreign corporation co-extensive with the permissible limits of jurisdiction under the due process clause of the federal constitution, a determination of the constitutional issue will be dispositive. Hart v. McCollum, 249 Pa.Super. 267, 271-72, 376 A.2d 644, 647 (1977).

The United States Supreme Court has stated that for a state to have jurisdiction over an out-of-state defendant, there must be “certain minimum contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958), the Court stated that “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” In World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Court described the concept of “minimum contacts” as “protect[ing] the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” Id. at 292, 100 S.ct. at 564. The Court also commented on the concept of “reasonableness” or “fairness” embodied in the requirement that a state’s jurisdiction “[must] not offend ‘traditional notions of fair play and substantial justice,” stating:

Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State’s interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223 [78 S.Ct. 199, 201, 2 L.Ed.2d 223] (1957); the plaintiff’s interest in obtaining convenient and effective relief, see Kulko v. Superior Court, [436 U.S. 84, 92 [98 S.Ct. 1690, 1697, 56 L.Ed.2d 132] (1978)], at least when that interest is not adequately protected by plaintiff’s power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211 n. 37 [97 S.Ct. 2569, 2583, n. 37, 53 L.Ed.2d 683] (1977); the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several states in furthering fundamental substantive social policies, see Kulko v. Superior Court, supra, at 93, 98 [98 S.Ct., at 1697, 1700].

Id.

Finally, the Court stated:

When a corporation ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ Hanson v. Denckla, supra at 253 [78 S.Ct., at 1239-1240], it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State.

Id. at 297, 100 S.Ct. at 567.

On the basis of decisions by the United States Supreme Court, this court, in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974), has formulated a three-part test:

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla, supra. Secondly, the cause of action must arise from defendant’s activities within the forum state. See Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir. 1968); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550 (D. Conn. 1968). Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington, supra: see Southern Mach. Co. v. Mohasco Indus., Inc., supra [401 F.2d 374 (6th Cir. 1968)]; see also In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972); Kourkene v. American BBR, Inc., 313 F.2d 769 (9th Cir. 1963).

And see Bev-Mark, Inc., d/b/a Tuboy Trucking Company, et a 1. v. Summerfield GMC Truck Co., Inc., et al., 268 Pa.Super. 74, 407 A.2d 443 (1979).

-3-

-a-

There can be no question but that the first part of the Proctor & Schwartz test has been met. Trimble entered into a contract that contemplated Trimble’s performance in Pennsylvania, and pursuant to that contract Trimble entered Pennsylvania. In Koenig v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, 284 Pa.Super. 558, 426 A.2d 635 (1980), we extensively discussed the circumstances in which a nonresident defendant “purposefully availfs] itself of the privilege of acting within [Pennsylvania]” when it enters into a contract. We held that a critical factor is the contemplation of the parties concerning the place of performance of the contract. Here, it was contemplated that Trimble would enter Pennsylvania to pick up one bf the loads of methylene chloride from a Pennsylvania seller. Trimble could not have fulfilled its contract without entering Pennsylvania; it did not, for example, merely pass through Pennsylvania because it chose one route rather than another.

-b-

The question whether the second part of the Proctor & Schwartz test has been met requires more discussion. Appellee has not claimed that the contamination of the methylene chloride took place in Pennsylvania but only that it might have taken pjace here.

-i-

We begin our analysis by recognizing that this is an assumpsit action, as was Proctor & Schwartz. In Proctor & Schwartz we said:

The second analytical step requires only that the cause of action arise from the defendant’s activities within the forum state. The mere fact that the defendant availed itself of the privilege of doing business in Pennsylvania will not support a cause of action which is unrelated to the defendant’s activities in this state. We find in the instant case that the plaintiff’s cause of action arose directly from the defendant’s acts within this state. The activity which satisfies the “purposefully availed” test above is the entering into contractual obligations. The cause of action arises from the breach of those same obligations.

228 Pa.Super. at 20, 323 A.2d at 15.

The Michigan Court of Appeals has held that “[i]t is sufficient for purposes of due process that the suit be based on a contract which had a substantial connection with the state of the forum. A single transaction may be sufficient to meet the ‘minimum contacts’ test.” Shepler v. Korkut, 33 Mich.App. 411, 415, 190 N.W.2d 281, 283 (1971). See also, Central Insurance Agency Co., Inc. v. Financial Credit Corp., 222 F.Supp. 627 (D.D.C. 1963).

In contrast, in actions in trespass the courts have focused on where the injury took place. Thus in the leading Pennsylvania case of Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974), our Supreme Court held that although a Maryland defendant had done business in Pennsylvania, the business was not so continuous or substantial as to make him subject to suit in Pennsylvania in connection with an automobile accident that had occurred in Virginia. There was no claim in Bork that the plaintiff or the accident had any connection with the defendant’s business activities in Pennsylvania. See also, Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 418 A.2d 389 (1980); Lubkuecher v. Loquasto, 255 Pa.Super. 608, 389 A.2d 143 (1978); Garfield v. Homowack Lodge, Inc., 249 Pa.Super. 392, 378 A.2d 351 (1977).

- ii

One of the cases relied on by the lower court in this case is Dornbos v. Kroger Company, 9 Mich.App. 515, 157 N.W.2d 498 (1968), appeal dismissed sub nom. Adkins Transfer Company, Inc. v. Dornbos, 393 U.S. 322, 89 S.Ct. 555, 21 L.Ed.2d 516 (1969). In Dornbos the Michigan Court of Appeals sustained long-arm jurisdiction over an out-of-state common carrier that had transported a load of fish from Chicago to Tennessee. The fish had been sold by the Michigan plaintiff to a buyer in Tennessee and had been transported from Michigan to Chicago by a Michigan carrier that did not contest jurisdiction. In affirming, the Court of Appeals adopted much of the lower court’s opinion, including the following:

These defendants are in the business of carrying goods in interstate commerce. It is reasonable to assume that they solicit and hopefully anticipate such business. They are in the position of being able to protect themselves from the consequences of their own derelictions. They understand that the nature of their business requires them to have the care and custody of the products and possessions of residents of other states.

9 Mich.App. at 520, 157 N.W.2d at 501.

In Dornbos it was certain that any contamination for which the out-of-state carrier might be found responsible could not have taken place in Michigan because the carrier did not receive the fish until it picked up the fish in Chicago.

Appellant tries to distinguish Dornbos as well as Shepler v. Korkut, supra, by arguing that in those cases the forum state recognized that it was providing a means of redress for its residents. Language to the same effect may be found in Pennsylvania cases. E. g., Action Industries, Inc. v. Wiedeman, supra. However, this court has explicitly held that the fact that a party seeking to assert jurisdiction over a nonresident corporation is itself a nonresident does not affect the scope of our jurisdiction. Washington v. U.S. Suzuki Motor Corp., 257 Pa.Super. 482, 390 A.2d 1339 (1978).

As we read it, the second part of the Proctor & Schwartz test may be satisfied by pleading a contract having a significant connection with Pennsylvania, see Koenig v. International Brotherhood of Boilermakers, supra, and a breach of that contract. We recognize that it may be argued that this is too broad a reading. However, we believe the proper approach, once a contract that has a significant connection with Pennsylvania and its breach have been pleaded, is to move on to the third part of the test. This approach not only gives effect of the language of Proctor & Schwartz describing the second part of the test but also is consistent with our statement there that the third part of the test is actually the most significant. 228 Pa. Super. at 20, 323 A.2d at 16.

-c-

The focus of the third part of the Proctor & Schwartz test is on whether “the exercise of jurisdiction in this particular case [would] be fair and reasonable under the circumstances.” Id., 228 Pa.Super. at 20, 323 A.2d at 16. As previously noted, the determination of whether an exercise of jurisdiction is reasonable depends on the burden that would be imposed on the defendant, in light of several factors, including the forum state’s interest in resolving the dispute; the plaintiff’s interest in obtaining convenient and effective relief; the interstate judicial system’s interest in the most efficient resolution of the controversy; and the interest of the several states in furthering substantive social policies. World-Wide Volkswagen Corporation v. Woodson, supra at 292, 100 S.Ct. at 564. Here Trimble will be inconvenienced by having to defend in this state, but this is not enough to counterbalance the factors favoring jurisdiction. See, e. g., Action Indust., Inc. v. Wiedeman, supra. This state has an interest in ensuring that contracts affecting its domiciliaries, Mercer International and Interstate, were not breached, and in safeguarding the transport of chemicals over its highways. Also, since all the other defendants are here, the entire case could be resolved in one trial.

It is easy to imagine a case in which the breach of a contract that had a significant connection with Pennsylvania would be sufficient to meet the first two parts of the Proctor & Schwartz test but not the third. This case, for example, would be quite different if Trimble were the only defendant. Thus it illustrates the importance of all three parts of the Proctor & Schwartz test in determining whether the exercise of long-arm jurisdiction is consistent with the requirements of fairness and due process as interpreted through the years by the United States Supreme Court in the line of cases represented most recently by World-Wide Volkswagen Corporation v. Woodson, supra, and Rush v. Savchuk, supra.

Affirmed.

      . The other cases are The Union National Bank of Pittsburgh v. L.D. Pankey Institute, 284 Pa.Super. 537, 426 A.2d 624 (1980), and Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa.Super. 544, 426 A.2d 628 (1980). Originally all three cases were decided and filed together, but upon application in this case, we granted reconsideration.

      . The authority for this service may be found in Pa.R.Civ.P., R. 2180(c), which provides:
      If service cannot be made under any of the methods set forth in subdivision (a) or (b) of this rule, the court upon petition shall authorize service by registered mail directed to the Secretary of the Commonwealth and to the corporation or similar entity at its last registered address or principal place of business, or by publication as the court may direct.

      . In other words, Trimble’s argument that the petition for leave to serve it should not have been granted is functionally equivalent to a defendant’s argument that its preliminary objections to the complaint should be sustained. In both cases the assertion is that the complaint itself discloses that the action may not be maintained. A party making this assertion must take the complaint at face value. In this regard, it may be noted that the original complaint named Trimac Limited, as a defendant Trimac Limited is Trimble’s parent company. When it filed preliminary objections, as amended complaint was filed, naming Trimble instead of Trimac Limited as a defendant.

      . Act of Nov. 15, 1972, P.L. 1063, No. 271, 42 Pa.C.S.A. §§ 8301-8309 (Purdon’s Supp.1976), repealed by, Act of July 9, 1976, P.L. 586, No. 142, § 1, effective June 27, 1978, 42 Pa.C.S.A. §§ 5301-5329 (Purdon’s 1979 Pamphlet). The complaint in this case was filed on April 26, 1978, prior to the effective date of the repeal of the Act of Nov. 15, 1972, P.L. 1063, No. 271. It is clear that
      [w]hile substantive rights are settled as of the time the cause arises, rights in procedural matters, such as jurisdiction and service of process, are determined by the law in force at the time of the institution of the action.

        Kilian v. Allegheny County Distributors, 409 Pa. 344, 350, 351, 185 A.2d 517, 520 (1962).

      . This test was formulated prior to four recent United States Supreme Court decisions: Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980); World-Wide Volkswagen Corporation v. Woodson, supra; Kulko v. Superior Court, supra; and Shaffer v. Heitner, supra. However, since the Court’s comments in WorldWide Volkswagen suggest that the Court’s earlier decisions retain their validity, it is unnecessary to reformulate the test.

      . In our original opinion in this case we did not give proper recognition to this aspect of the case. We held that to meet the second part of the Proctor & Schwartz test it was necessary that some connection between Trimble’s activities in Pennsylvania and the contamination of the methylene chloride must be averred before longarm jurisdiction could be asserted over Trimble. For the reasons explained in the text, infra, we have concluded that this was not the proper way of stating the second part of the Proctor & Schwartz test in an action for breach of a contract.

      . Although the plaintiff in Dornbos alleged negligence by the defendants, and to that extent at least the case sounded in tort, the court’s analysis of the propriety of the exercise of long-arm jurisdiction focused on the contractual relationships among the parties.


author: CERCONE, President Judge:

text:
    435 A.2d 592
    COMMONWEALTH of Pennsylvania v. Charles W. OHLE, Appellant (two cases). COMMONWEALTH of Pennsylvania v. Ronald J. JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1980.
    Filed Sept. 25, 1981.
    Petition for Allowance of Appeal Granted Feb. 18, 1982.

      Smith B. Gephart, Harrisburg, for appellants.
    Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

Appellants Ohle and Jackson were charged with theft by failure to make required disposition of funds received, bribery in official and political matters, and conspiracy to commit bribery. In June of 1977 Ohle and Jackson were tried jointly on the theft charges. The Commonwealth won convictions on those charges against both men. Each was subsequently sentenced to the payment of a fine of $1,000 plus the costs of his prosecution, restitution to the Commonwealth of $304,500.00, and to a term of imprisonment of from three to five years. Ohle has appealed the judgment of sentence against him at No. 106 March Term, 1978. Jackson has appealed the judgment of sentence against him at No. 103 March Term, 1978.

On the conspiracy and bribery charges a joint trial was begun November 15, 1977. Jackson became ill during this trial, was ruled unable to continue, and a mistrial motion was granted in his favor. As to Ohle, however, the trial continued. He was convicted on both the conspiracy and the bribery counts. For the conspiracy conviction the court sentenced Ohle to payment of a fine and a term of imprisonment of from one to two years, to run concurrently with the prison sentence imposed in the theft case. On the bribery conviction the court imposed on Ohle a sentence of six to twelve months imprisonment, which was also to run concurrently with the other prison sentences imposed for the theft and conspiracy convictions, and it also imposed a fine of $500. He has appealed from the convictions on the conspiracy and bribery charges.

Because these three appeals, two by Ohle and one by Jackson, are based generally on the same facts, they were consolidated for purposes of briefing and argument. For convenience sake, we have set out the facts in a single narrative. However, we discuss the legal issues presented separately.

I.

Appellants Ohle and Jackson were insurance brokers with both the firms of Charles W. Ohle, Inc. and 0. & R. Excess, Inc., which were brokerages licensed to do business in New York. Charles W. Ohle, Inc., was licensed to do business in Pennsylvania as well. Prior to June 30, 1972 Anthony J. Trueco, then Director of the Commonwealth’s Bureau of Insurance and acting pursuant to a plan developed by Frank C. Hilton, then the Commonwealth’s Secretary of Property and Supplies, arranged for the renegotiation of the insurance policy covering the Commonwealth’s 26,000 automobile fleet. The policy was renegotiated because Trueco and Hilton saw in it a likely opportunity to provide them with an illegal source of revenue through the appointment of a broker who. would provide them with a kickback from part of the broker’s commission. In February of 1973 Trueco met appellants and discussed the kickback scheme. He told them that the appointment could only be made by Hilton but that he would recommend them to Hilton. He did not reveal Hilton’s connection with the scheme. Appellants agreed to the kickback scheme as outlined to them by Trueco. Later that month Hilton appointed appellants’ firm, Charles W. Ohle, Inc., broker of record on the renegotiated automobile insurance policy.

The first premium payment in question was delivered to an agent of appellants’ in Harrisburg on July 25, 1974 and transported to New York. It was in the form of a check in the sum of $500,000 and made payable to Charles W. Ohle, Inc. and Market Facilities, Inc. (Market Facilities, Inc. was an affiliate of the insurance company which actually carried the policy.) An officer of the insurance company purportedly gave appellant Ohle authority to endorse the Commonwealth’s premium checks for Market Facilities. This first check of $500,000 was endorsed by Ohle pursuant to this purported authority, and by his firm, and deposited in a firm account. A second check in the amount of $800,000 was delivered to an agent of appellants in Harrisburg and transported to New York on August 5, 1974. It too was endorsed by Ohle pursuant to the same authority, and by his firm, and deposited in a firm account. Rather than turning the premiums less broker’s commission immediately over to the insurance company the $800,000 was used by appellants as collateral on a short term loan from a Florida bank. For unexplained reasons appellants defaulted on the Florida loan and the bank seized the collateral. The $800,000 never reached the insurance company’s coffers and it eventually cancelled Pennsylvania’s automobile fleet insurance policy.

Shortly after the cancellation of the insurance policy an article appeared in a Harrisburg newspaper concerning a claim by one Mr. Devine, a former employee of Ohle, that he had knowledge of a bribery scheme between Ohle and Jackson on one side and Hilton and Trueco on the other. On the same day, an FBI agent visited the offices of the Commonwealth’s Department of Justice and notified state authorities of the federal investigation. Acting upon this information, Edward Golla, Chief Investigator for the Pennsylvania Department of Justice began an investigation. Soon Golla had in his possession statements by Noel Bernard, an employee of the insurance company, pertaining to the theft, bribery and conspiracy charges, as well as statements by other Commonwealth employees concerning appellants’ participation in the scheme. Subsequently, appellants were granted use immunity pursuant to the federal statutes by the U.S. District Court for the Middle District of Pennsylvania. See 18 U.S.C. § 6002. The Commonwealth’s investigation continued; investigators received statements by Trueco which further implicated appellants in the bribery and conspiracy scheme. The appellants thereupon entered into a plea bargain with the district attorney of Dauphin County. On the basis of the plea bargain appellants waived their extradition and were arraigned on the charges brought against them. Appellants later gave statements to the district attorney and in federal court at the trial of Frank C. Hilton, former Secretary of the Department of Property and Supplies. Subsequent thereto the grand jury of Dauphin County approved Bills of Indictment against them. Thereafter the district attorney notified appellants of his decision to withdraw the plea bargain and to prosecute them fully. Appellants made divers and diverse pre-trial motions, among which was a motion to quash the indictments because they were allegedly based on information gained as part of the withdrawn plea bargain. The court held that the evidence presented to the grand jury had been independently gathered and therefore refused to quash the indictments. Trials on the various charges were held in June and October of 1977, which resulted in the convictions of appellants as above set out. These appeals followed.

II.

Appellants have assigned numerous errors. Because of the disposition we make today of these cases, we need not consider all the questions raised.

A.

We address first the question of whether the court erred in refusing to quash the indictments. Appellants both contend that the indictments on all the counts should have been quashed because they contain substantive defects. They argue that they were improperly indicted under the Crimes Code and that they should have been indicted under the Penal Code. They argue further that the indictments were in violation of Section 2 of the Act of December 6, 1972, P.L. 1482, No. 334, and that because violation of the Act of 1972 constitutes a substantive defect the indictments ought to have been quashed. Section 1 of the Act of December 6, 1972 amended Title 18 of the Pennsylvania Consolidated Statutes creating the Crimes Code of Pennsylvania. Section 2 of the Act is a savings clause which ensured the vitality of the Penal Code, and required prosecution under its provision of any crimes the elements of which arose before the Act’s effective date. Section 2 of the Act reads:

Title 18 of the Consolidated Pennsylvania Statutes (relating to crimes and offenses), as added by this act, does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force. For the purposes of this section, an offense was committed prior to the effective date of this act if any of the elements of the offense occurred prior thereto.

Act of Dec. 6, 1972, P.L. 1482, No. 334, § 2. Appellants contend that elements of the crimes of theft, bribery and conspiracy, of which they have been variously convicted, arose prior to the June 6, 1973 effective date of the Crimes Code. We begin by considering the indictments against Ohle on the bribery and conspiracy charges of which he was' ultimately convicted, and then we shall consider the indictments against both Ohle and Jackson on the charges of theft by failure to make required disposition of funds received.

1.

Ohle contends that it was error to have refused to quash the indictments against him alleging violations of Crimes Code Sections 4701 (bribery) and 903 (conspiracy). His argument is based on the contention that elements of the alleged crimes arose prior to the effective date of the Crimes Code, and consequently that the indictments against him were faulty for their failure to allege violations under the Penal Code of 1968 rather than under the dictates of the Crimes Code of 1972. We agree and accordingly vacate the judgment of sentence relating to charges of bribery and conspiracy, reverse the conviction and quash the indictment against him.

Pennsylvania Crimes Code Section 4701 reads:

BRIBERY IN OFFICIAL AND POLITICAL MATTERS

(a) Offenses defined.-—A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
(1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient;
(2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or
(3) any benefit as consideration for a violation of a known legal duty as public servant or party official.
(b) Defenses prohibited.—It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office, had left office, or lacked jurisdiction, or for any other reason.

18 Pa.C.S. § 4701. Once the offer to confer the proscribed benefit, or once the agreement is made, the crime is complete. There need be no waiting for the benefit actually to be conferred. Cf. United States v. Davis, 576 F.2d 1065 (3rd Cir., 1978), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978). Instantly, it is clear from the indictment itself, as well as from the evidence at trial, that the agreement to confer the proscribed benefit upon Trueco was reached no later than February of 1973, fully five months before the June 6, 1973 effective date of the Crimes Code provision. See Act of December 6, 1972, supra.

The Commonwealth argues that the elements of the offense prohibited by the Crimes Code and elements of the corresponding Penal Code offense are identical, and that therefore there was no defect, either informal or substantive, and hence that there arose neither the necessity of amending the indictment nor reason to quash it. We disagree. Section 4303 of the Penal Code reads in pertinent part:

Bribery of Government officers and employees; judges, jurors, etc.
Whoever shall directly or indirectly, or by means of and through any artful and dishonest device whatever, give or make any promise, contract or agreement, for the payment, delivery, or alienation of any money, goods or other thing, in order to obtain or influence the vote, opinion, verdict, award, judgment, decree, or behavior of any member of the General Assembly, or any officer or employee of this Commonwealth, or of any political subdivision thereof, or any judge, juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter or thing whatsoever, depending or which shall depend before him or them, is guilty of bribery, a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars ($500), or to undergo imprisonment by separate or solitary confinement at labor not exceeding one (1) year or both.

18 P.S. § 4303. (Emphasis added). The Penal Code provision permits an affirmative defense: in order for culpability to exist, the action sought to be influenced by the offeror of the bribe must be one which the offeree of the bribe could affect. The potential for an affirmative defense under Penal Code Section 4304 undeniably distinguishes it from Crimes Code Section 4701. The Commonwealth’s failure to indict Ohle under the Penal Code clearly constituted a defect in the indictment. The prejudice which arises out of a defect in the indictment which denies a potential defense against the charges cannot be gainsaid. Thus, it was error not to have quashed the bribery indictment. Likewise, since the conspiracy indictment is based on the same facts, and was brought under Crimes Code Section 903 and not under the Penal Code, it too should have been quashed and it was error not to do so.

2.

Ohle and Jackson were convicted of violating Crimes Code Section 3927 (theft for failure to make required disposition of funds received). Section 3927(a) reads:

(a) Offense defined.—A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other dispositions, 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.

18 Pa.C.S. § 3927(a). This Court first considered Section 3927 in Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976). In Crafton we outlined the elements of the crime which is theft by failure to make required distribution of funds received. The elements of the crime, as we stated them there are:

“1. The obtaining of property of another;
2. Subject to an agreement of known legal obligation upon the receipt 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.Super, at 16, 367 A.2d at 1094 96. And see Commonwealth v. Austin, 258 Pa.Super. 461, 466, 393 A.2d 36, 38 (1978).

Appellants do not deny that they received the property of another; they fully acknowledge receipt of the premiums paid by the Commonwealth. Rather, their attack on the validity of the indictment charging them with the crime of theft by failure to make required disposition of funds received, as proscribed under Section 3927, goes to the second element of the offense: “subject to agreement or know legal obligation.” Appellants contend that the legal obligation which made out this element of the offense is the agreement whereby they became brokers of record on the automobile fleet insurance policy. In this they are correct. However, they also contend that since the agreement arose prior to June 6, 1973, and since it is an element of the offense, then they should have been charged under a provision of the Penal Code and not under Section 3927 of the Crimes Code. Although the argument is persuasive we cannot accept it. Logically, the occurrence which triggers the applicability of Section 3927 is not the initiating of a legal obligation, but rather, the receipt of the property of another pursuant to that obligation. Although the legal obligation must necessarily be pre-existing or co-eval, with the receipt of the other party’s property, logically, no element of the crime could be said to arise until the property has exchanged hands pursuant to the agreement creating the obligation. Thus, in considering the time the crime began, that is, in order to determine whether prosecution under Section 3927 was proper, we must logically read the first two elements of the crime as delineated in Commonwealth v. Crafton as one element. Therefore, as regards the application of Section 2 of the Act of December 6,1972 to Section 3927 of the Crimes Code there should be only three elements to consider:

1. obtaining property of another upon agreement or known legal obligation to make specified payment or other disposition;
2. intentional dealing with the property as one’s own; and
3. failure to make the required disposition of the property-

Any other reading of said Section 3927 of the Crimes Code, as Section 2 of the Act of 1972 applies to it, would give a vitality and longevity to the Penal Code which the Legislature cannot rationally have intended.

Appellants received the premium payments on July 25 and August 5, 1974. Receipt was made subject to a known legal obligation. As thus interpreted, no element of the offense arose prior to the effective date of the Crimes Code. Appellants were properly indicted under 18 Pa.C.S. § 3927 and thus there was no error in refusing to quash the indictments, at least insofar as the time element is concerned.

B.

Appellants next assert that it was error not to have suppressed certain evidence. They contend this evidence came into the hands of the Commonwealth solely as a result of their cooperation with the Dauphin County District Attorney pursuant to the plea bargain agreement entered into April 26, 1975 and dishonored by the District Attorney January 13, 1976 for appellants alleged noncompliance with its terms. Although they have contended that this evidence should have been suppressed as to both the bribery and conspiracy indictments and the indictments for the theft for failure to make required disposition of funds received, our quashing of the bribery and conspiracy indictment against Ohle has obviated the need to consider the suppression question in regard to that indictment. Our discussion of this question thus applies only to the theft indictments.

As appellants have framed their question, we are asked to consider whether the suppression court erred in finding that the Commonwealth presented sufficient evidence to establish that the evidence presented to the Grand Jury, and later to the petit juries at trial, was restricted to the evidence placed under seal of court April 1, 1975, and contained nothing obtained subsequent to the plea bargain agreement.

In suppression hearings the Commonwealth bears both the burden of going forward with the evidence, Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968), and see Pa.R.Crim.P. 323(h), as well as the burden of persuasion, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and see Commonwealth ex rel. Butler v. Rundle, supra. The standard by which we measure sufficiency of the evidence in suppression hearings is that of preponderance of the evidence. Commonwealth ex rel. Butler v. Rundle, supra. It is clear from the record of the suppression hearing that the Commonwealth met its burden by a preponderance of the evidence. There was no error in refusing to suppress evidence because it was clearly established that it was properly obtained and untainted.

C.

The last question we address pertains solely to Ohle and Jackson’s convictions for theft. The question raised is jurisdiction, and the assertion made is that if a crime occurred it occurred in New York and not in Pennsylvania, and that therefore the courts of the Commonwealth have no jurisdiction to try the case.

The common law rule of subject matter jurisdiction in criminal matters was that a prosecution could not be brought unless the “gist” of the offense occurred within the prosecuting jurisdiction. See Comment to Section 1.03, Model Penal Code, T.D. 5, (from which 18 Pa.C.S. § 102 is derived). Often, as in the case of common law larceny, legal fictions were created which altered the essential elements of the offense to permit prosecution in the county where the defendant was apprehended instead of where the crime actually occurred. The courts of this Commonwealth long ago rejected the notion that these legal fictions, or non-essential elements of the offense, could give rise to subject matter jurisdiction in our courts where the essential elements of the crime occurred in another state. Commonwealth v. Simmons, 5 Binn. 617 (1813) (one who steals goods in another state and brings them into this one cannot be found guilty of larceny, although one might be found guilty of bringing stolen goods into this state if statute so provided). We recently had occasion to discuss much the same question in Commonwealth v. Bertels, 260 Pa.Super. 496, 394 A.2d 1036 (1978), aff’d 491 Pa. 189, 420 A.2d 405 (1980). There we quoted from the authorities on the question of subject matter jurisdiction in criminal cases:

In many cases requisite elements of the completed crime may be committed in different jurisdictions, and in such cases any state in which an essential part of the crime is committed may take jurisdiction. It is necessary, however, to discriminate with great care between acts essential to the crime and acts merely incidental thereto. For example, the mere forwarding of money from one state to another for the purchase of futures, for wagering on a horse race, or for any similar transaction forbidden by the laws of the former state, does not constitute a crime punishable therein, although it is otherwise if the statute makes the forwarding of the money, and not merely the transaction itself, a crime. 4 Wharton’s Criminal Law and Procedure § 1507 at 88 (1957) (emphasis supplied; footnotes omitted).

Id., 260 Pa.Super. at 502, 394 A.2d at 1039. See also 21 Am.Jur.2d, Criminal Law § 385.

1.

Jurisdiction in Criminal Matters.

The territorial applicability of the Pennsylvania Crimes Code is set out in Section 102; the section defines the territorial scope of the Crimes Code and delimits the exercise of subject matter jurisdiction in criminal matters by our courts. As that section relates to the prosecution of appellants under Crimes Code Section 3927 the Commonwealth argues the following provisions are pertinent:

§ 102. Territorial applicability
(a) General rule.—Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if either:
(1) the conduct which is an element of the offense or the result which is such an element occurs within this Commonwealth;
* * * * * Hs
(5) the offense consists of the omission' to perform a legal duty imposed by the law of this Commonwealth with respect to domicile, residence or a relationship to a person, thing or transaction in this Commonwealth; . . .

18 Pa.C.S. § 102(a)(1) & (5). We may eliminate Section 102(a)(5) as a potential basis for the exercise of jurisdiction since it is clear that subsection 5 was intended to reach outside the territorial limits of Pennsylvania to prosecute those who had a duty or obligation which must necessarily have been performed within our boundaries and failed to do so. See Comment to Section 1.03, Model Penal Code, T.D.5, pp. 7-8; see also S. Toll, Pennsylvania Crimes Code Annotated, § 102 at 6 (1974). The remaining statutory basis for the exercise of jurisdiction in this case is Section 102(a)(1) which provides for subject matter jurisdiction where an element of the proscribed activity occurs within the Commonwealth. The essential elements of the offense prohibited by Section 3927 are: 1) receipt of another’s property, 2) subject to agreement or known legal obligation, 3) the intentional dealing with the property as the recipients own, 4) and failure to make disposition of the property required by the agreement or legal obligation. See Commonwealth v. Crafton, supra.

Appellants argue that the first two elements are merely incidental to the crime charged. Their argument is two-pronged. First, they argue that the exercise of jurisdiction under Section 102 requires that some “element of [the] offense” have occurred in Pennsylvania, that “element of an offense” is defined in Crimes Code Section 103 as “conduct or attendant circumstances,” that Section 103 defines “conduct” as “an action or omission and its accompanying state of mind,” and that since Section 3927, supra, makes no requirement concerning the accompanying state of mind at the time of receipt of the property then receipt cannot constitute an “element of [the] offense” such that subject matter jurisdiction will attach. The argument cannot succeed; Section 3927 specifically requires that receipt of the property be accompanied with knowledge of an agreement or legal obligation to dispose of the property in a certain fashion. Secondly, appellants argue that since the receipt of the premium payments and the underlying brokerage agreement were legal they cannot constitute essential elements of the offense, even though “included in the description of the forbidden conduct in the definition of the offense” (“element of an offense,” 18 Pa.C.S. § 103) but are merely incidental thereto. This argument ignores the fact that legal receipt or possession of another’s property has always been an essential element of crimes in the nature of conversion and embezzlement. Therefore, we conclude that the lower court did not err in refusing to dismiss the indictments for lack of jurisdiction.

2.

Jurisdiction as Question of Fact.

We next consider the correctness of the trial courts rulings on the submitted points for charge. This question also addresses the jurisdiction of the court.

“It is, of course, the law that ‘the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965) quoting from Commonwealth v. Mull, 316 Pa. 424, 426, 175 A.2d 418, 419 (1934). Normally, the question is one of law and left to the trial judge to decide, but on rare occasions jurisdiction depends on the resolution of disputed facts. In those cases the question should be put to the jury upon proper instructions and failure to give such proper instructions may constitute reversible error. Commonwealth v. Mull, id.; Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).

Instantly, there were questions of fact in dispute which would have solved the jurisdictional riddle if the court had properly put them to the jury. The primary fact in dispute was, of course, whether appellants had discharged their obligation to the Commonwealth in accordance with the law. The determination of that question required first the determination of several lesser questions: in what capacity did appellants receive the insurance premiums; in what capacity did they endorse the checks; in what capacity did they deposit the monies in their account; in what capacity did they later remove the funds. Had all of this occurred in Pennsylvania there would be no problem: the standards by which appellants’ actions would be measured would be the standards set up by the law of Pennsylvania. However, much of the alleged criminal activity occurred in New York and not in Pennsylvania. Although the premium checks were written in Pennsylvania by the Commonwealth, the broker, the insurance companies, and the bank into which the checks were deposited were all out of state. Most of these lesser questions revolve around appellants’ legal status vis-a-vis the New York insurance companies. It was necessary that their status in this regard have been determined before the ultimate determination of their criminality. Furthermore, that determination ought to have been made applying New York law, because it is New York which has an interest in regulating local insurance business and in defining the legal ramifications of actions within the territorial confines of New York and not Pennsylvania. See Leflar, Conflict of Laws: Choice of Law in Criminal Cases, 25 Case Western Res.L.Rev. 44 (1974).

To that end, appellants submitted points for charge. The court accepted part of each point submitted but refused to charge the jury on the remainder. The points as submitted read:

Under the law, endorsement of a check by the proper person to make such endorsement constitutes an actual and legitimate payment of an obligation, (citations omitted) If you find from the evidence that either Defendant had the authorization of officers of The Market Facilities, Inc. to endorse said company’s name on the checks of the Commonwealth and deposit them in the bank account of Charles W. Ohle, Inc., then you must find that payment was made to the insurance company, and you must find Defendants not guilty.

And,

Under the Insurance Law of the State of New York when an insurance company entrusts its policies to a broker for delivery to the insured, the broker acts as an agent for the insurance company in collecting and receiving premiums, and payment to the broker is deemed payment to the insurance company, (citations omitted) Therefore, if you find that Defendants received payment of the insurance premium from the Commonwealth of Pennsylvania, you must find that the obligation of the Commonwealth of Pennsylvania was discharged, because payment to the broker was payment to the insurer. Any subsequent failure to transmit moneys to the insurance company would not constitute a violation of the criminal statute under which Defendants are charged,

The trial judge read to the jury the first sentence of each of these suggested charges but refused to read the second parts of each. By refusing to read the second parts of these charges the trial judge was essentially refusing to submit the jurisdiction-related question presented thereby to the jury for its determination. Clearly this was error, for such a refusal denied the jury the opportunity to determine the Commonwealth’s jurisdiction over appellants’ action, for, although the submitted points for charge address other issues, the determination of those issues goes directly to the heart of the court’s jurisdiction. The jury should have been permitted to decide whether or not Charles W. Ohle, Inc. acted as agent of Market Facilities, a New York insurance company, in accepting the premium payments, and as its agent in endorsing the checks. Such a determination by the jury was crucial. If appellants acted as agents for Market Facilities, as that relationship is defined by the law of the State of New York, then appellants’ obligations to Pennsylvania were fulfilled insofar as Pennsylvania is concerned in the matter both as insured and as sovereign. If appellants acted in accordance with those provisions of the law of New York there could have been no crime under Section 3927, supra, and no jurisdiction in our courts to prosecute appellants failure to pay the monies over. This is so because once the checks were negotiated by appellants as agents for the insurance company and deposited in appellants’ account, under New York law the monies would no longer be payments on the premium yet to be transferred to the insurance company, but funds held by appellants for their principal, the insurance company. On the other hand, if there was no authority in appellants to act on behalf of the insurance company, either as agents in accepting payment or as agents authorized to endorse and cash the check, then the jury could properly consider the question of appellants alleged violation of our criminal statutes since the money would not legally or actually have reached the insurance company. In short, properly the jury should have been allowed to consider the effect of the New York laws and directed to find appellants not guilty of violation of the Pennsylvania statute if their actions were in conformity with the law of New York. It was error not to have charged the jury as requested and a new trial must therefore be granted.

In the appeal by Jackson, at no. 103 March Term 1978, (theft for failure to make required distribution of funds received) judgment of sentence is vacated, the conviction is reversed, and the case is remanded for new trial not inconsistent with this opinion.

In the appeal by Ohle, at no. 106 March Term 1978, (theft for failure to make required distribution of funds received) judgment of sentence is vacated, conviction is reversed, and the case is remanded for new trial not inconsistent with this opinion.

In the appeal by Ohle, at no. 119 March Term 1979, (bribery and conspiracy) judgment of' sentence is vacated, the conviction is reversed, and the indictment quashed.

Jurisdiction relinquished in all three cases.

      . 18 Pa.C.S. § 3927.

      . 18 Pa.C.S. § 4701.

      . 18 Pa.C.S. § 903.

      . Appellants’ brief lists the following questions on appeal:
      1. Did the Court of Common Pleas, Dauphin County, have jurisdiction since the crime of Theft, if committed, occurred in the State of New York?
      2. Did the authorized endorsement of premium checks by the payee insurance company constitute payment to the insurance company?
      3. Did the Court err in refusing to grant a mistrial after revealing its decision on Appellants’ demurrer to the news media, which decision was published and read and heard by several jurors?

        4. Did the Court err in not suppressing Appellants’ statements and records made pursuant to a written Plea Bargain which was subsequently unilaterally withdrawn by the Commonwealth?
      5. Did the Court err in refusing to dismiss the prosecution because Appellants were charged under the Crimes Code rather than the Penal Code?
      *6. Did the Court err in refusing to dismiss the charge of Conspiracy on grounds of merger?
      *7. Did the Court err in refusing to dismiss the prosecution since only uncorroborated testimony of accomplices was introduced?
      *8. Did the Court err in denying Appellant’s Motion for Mistrial on the basis of Commonwealth witness’s unresponsive reference to Appellant’s prior criminal record?
      * These questions pertain to appellant Ohle alone.

      . These arguments were made at all relevant stages of these proceedings and are thus preserved for our review.

      . We do not express any opinion whatsoever concerning the propriety of the indictments brought against Jackson on charges of conspiracy and bribery. The Commonwealth’s case against him on those charges resulted in a mistrial; there has been no appeal by Jackson on the order denying the motion to quash the indictments on those charges.

      . Because the motion to quash was made pre-trial, an informal defect in the indictment could have been cured upon the proper motion, but the Commonwealth made no such motion. As for the propriety of amending a substantive defect in an indictment see Pa.R.Crim.P. 220; and see Commonwealth v. Thomas, 278 Pa.Super. 39, 419 A.2d 1344 (1980); Commonwealth v. Jones, 250 Pa.Super. 471, 378 A.2d 1245 (1977).

      . If we were to accept appellant’s argument then the failure to dispose of another’s property thirty years after the legal duty was created could still be prosecuted under the Penal Code if the agreement creating the duty so to do arose prior to the effective date of the Crimes Code.

      . For the exact wording of the questions presented see footnote 4, question 4.

      . Because of the way in which appellants have framed the question on appeal we need not consider the propriety of the District Attorney’s action in withdrawing the plea bargaining agreement. However we note with interest the following:
      On the merits, our view is that in a plea bargain the government’s obligation to make a recommendation arises only if defendant performs his obligation (in this instance, full disclosure), but the question whether defendant did in fact fail to perform the condition precedent is an issue not to be finally determined unilaterally by the government, but only on the basis of adequate evidence by the Court... There would be manifest impropriety in permitting the government, without satisfying a judge that the evidence provides that a defendant broke his promise, to escape from the obligation the government undertook in the plea bargain.

        United States v. Simmons, 537 F.2d 1260, 1261 (4th Cir. 1976).

      . For an excellent example of the type of criminal statute to which 18 Pa.C.S. § 102(a)(5) would be applicable compare Pennsylvania’s criminal non-support statute, 18 Pa.C.S. § 4322 with Georgia’s, Ga. Code Ann. § 74-9902, which makes the misdemeanor of abandonment of one’s child a felony if the parent leaves the state. Cf. Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), (the distinction between abandonment of child and abandonment of child coupled with absconding from the jurisdiction does not violate the Equal Protection clause). And cf. Commonwealth v. Klimen, 10 Pa.D & C 3d 256 (1979) (in personam jurisdiction over out-of-state father permissible, but denies jurisdiction on basis of forum non conveniens.)

      . Cf. our construction of the statute’s elements for purposes of determining the applicability of the Crimes Code or Penal Code, infra.

      . Leflar states the following concerning the Federal Constitutional limitations on choice-of-law in the criminal context:
      The Federal Constitution, by its due process clause, sets the same outer limits on a state’s power to apply its own law to extrastate facts in criminal cases as are set for civil cases. A state may not, under the clause, exercise legislative jurisdiction by applying its substantive law to a set of facts which has no substantial connection with the state. This limitation has been more fully developed by the United States Supreme Court in civil than in criminal litigation, but the rule is stated in general terms:
      Where more than one state has sufficiently substantial contact with the activity in question, the forum State, by analysis of the interests possessed by the States involved, could constitutionally apply to the decision of the case the law of one or another state having such an interest in the multistate activity. [Richards v. United States, 369 U.S. 1, 15, 82 S.Ct. 585, 594, 7 L.Ed.2d 492 (1962).]
      The due process clause precludes unrestricted application of spatially irrelevant law by a state court, to a set of facts. The full faith and credit clause, the equal protection clause, and possibly even the privileges and immunities clause of the fourteenth amendment, may buttress this result. But, as the leading case of Home Insurance Co. v. Dick, [281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926, (1930)] illustrates, the comprehensiveness of the due process requirement assures the result even in fact situations to which some of the other clauses could not apply. Generally speaking, the geographical locations of acts, and the effects of acts, have been the tests of legislative jurisdiction, though the tests are today often expressed in terms of state interests affected by the geographically located acts or effects. Regardless of the language, the requirement is that the acts, and the effects thereof, to which a particular state’s law is to be applied, must have some substantial connection with that state.
      Leflar, Conflict of Laws, supra at 48-49.
      Professor Leflar continues, by enumerating the five major choice-influencing considerations with which the courts must deal in determining the law of which state to apply. He lists them as: 1) predictability of results; 2) maintenance of interstate and international order; 3) simplification of the judicial task; 4) advancement of the forum’s governmental interests; 5) application of the better rule of law. Id. at 61.

        And see, Leflar, American Conflicts Law (3rd ed. 1977) at 224-225, where Professor Leflar states:
      “One effect of this localization of prosecutions, almost but not quite unique in conflict’s law, is that the question of jurisdiction and that of governing substantive law always receive the same answer. The governing law is always that of the forum state, if the forum court has jurisdiction. Judicial jurisdiction and legislative jurisdiction are identical. In this result criminal cases are different from civil suits. The “difference lies in the ‘transitory’ (as distinguished from ‘local’) character of most civil causes of action, by reason of which a cause of action that came into existence under one state’s law may be sued upon in another state. Criminal claims are not transitory.”

      . Emphasized portion is that portion not read to the jury.

      . Emphasized portion is that portion not read to the jury.

      . The Commonwealth argues that our courts would still have jurisdiction to try the case and to punish the violation of our statute appellants’ actions were even if fully in compliance with the law of New York. The argument is based on the effect of appellants actions in Pennsylvania—the cancellation of the insurance contract by the Reserve Insurance Company. Because of the disposition we make of the case we need not decide the question now but note only that the tracing of the effects of crimes has not been adopted by our courts. See Commonwealth v. Bertels, supra; and Commonwealth v. Creamer, 236 Pa. Super. 168, 345 A.2d 212 (1975).


text:
    435 A.2d 604
    COMMONWEALTH of Pennsylvania v. Roger Worth TAGGART, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 31, 1981.
    Filed Sept. 25, 1981.
    William R. Wheatly, Lancaster, for appellant.

      Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CERCONE, President Judge and HESTER and JOHNSON, JJ.
   CERCONE, President Judge:

Appellant, Roger Worth Taggart, appeals from the lower court’s denial of appellant’s request for a new trial on the grounds of ineffective assistance of counsel. In his brief appellant argues that trial counsel was ineffective for various reasons, including that counsel failed to discuss and raise certain pre-trial motions which appellant felt were important. The lower court did not address itself to the merits of appellant’s pre-trial motions because the court found that appellant had waived his right to raise these issues because they were not timely filed. We find the court to be in error on this point.

Appellant was first tried and convicted by a jury on January 24, 1974, of burglary and theft. Appellant received a sentence of four to eight years. No pre-trial motions were filed before this trial, however, after his conviction appellant filed a Post Conviction Hearing Act (PCHA) petition which resulted in appellant’s receiving a new trial. Appellant was subsequently retried before a jury on November 20, 1975 and was convicted of burglary. Immediately following the verdict, appellant was called before the court for sentencing. In the colloquy advising appellant of his right to appeal, the court warned appellant that by standing for sentence he was waiving the right to file motions in arrest of judgment and for a new trial. Appellant told the court that he was aware of that fact. The court sentenced appellant to serve three to six years in prison. Appellant then advised the court that he wanted to take an appeal.

At trial, in fact, at both trials, appellant had been represented by the Public Defender’s Office, and so new counsel was appointed to argue the issue of ineffectiveness in this appeal. Appellant through new counsel requested the lower court for an evidentiary hearing on this issue, which the lower court denied, and on appeal this Court remanded for an evidentiary hearing. Commonwealth v. Taggart, 258 Pa.Super. 210, 392 A.2d 758 (1978). At this hearing appellant contended that counsel at the second trial was ineffective in that (1) counsel failed to interview appellant sufficiently prior to trial in order to be adequately informed as to the total facts and circumstances of appellant’s case, (2) counsel failed to discuss and raise certain pre-trial motions which appellant felt were important, (3) counsel failed to present a defense or to make any attempt to discuss with appellant the witnesses whom appellant wanted to call for trial, nor did counsel make any attempt to locate and interview said witnesses or to seek compulsory process to obtain these witnesses for trial.

The lower court in its opinion following the evidentiary hearing did not address the above issues; instead, the court ruled that trial counsel at the second trial acted properly in not filing pretrial motions prior to appellant’s new trial because in the court’s view appellant had no right to file pre-trial motions at that stage. The court reasoned that although appellant had been granted a new trial, the pretrial stage terminated upon the commencement of the first trial. This ruling is in error.

In Commonwealth v. Throckmorton, 241 Pa.Super. 62, 359 A.2d 444 (1976), this Court discussed at length the implication of Pa.R.Crim.P. 323, the rule which provides that a criminal defendant may make application for suppression of any evidence alleged to have been obtained in violation of his constitutional rights. The Rule at that time provided that such a suppression motion should be filed ten days before the day the case is listed for trial. In Throckmorton, as in the instant case, the issue was whether an accused could on retrial file a suppression motion which had not yet been litigated in motions before the first trial. We held that under Rule 323, an accused may file such a motion before his second trial. We wrote:

Rule 323 does not prohibit the litigation of a suppression motion after the grant of a new trial if there has been no prior determination of the issue. Nothing in the Rule limits the defendant to filing suppression motions prior to his first trial; the Rule simply requires that suppression motions be filed after the case has been returned to court and ten days prior to the beginning of the trial session in which the case is listed for trial, or, in districts having continuous trial sessions, ten days prior to the date of trial. Thus, Rule 323(b), by its terms, could equally refer to both a retrial and an initial trial, provided that the issue has not yet been determined. Rule 323(j); Pa.R. Crim.P.

241 Pa.Super. at 67, 359 A.2d 444. (emphasis in original.)

It is therefore clear that the hearing judge in the instant case was in error in ruling that appellant had no right to pre-trial motions. Nonetheless, this does not necessarily mean that appellant is entitled to a new trial. It is settled law that counsel cannot be found ineffective for failing to assert a meritless claim. Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980). The proper course for the lower court in the instant case would have been to review those pretrial motions sought to be raised by appellant to determine if they had arguable merit and to further determine whether counsel’s failure to raise these motions had “some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

Therefore, in view of the fact that the lower court did not address itself to the validity of appellant’s claims, this case must be remanded for an opinion on this matter. Additionally, because no evidence was adduced at the evidentiary hearing regarding the merits of appellant’s proposed pre-trial motions, in particular the motion to hold appellant’s arrest invalid, an additional hearing must be held so that the court can assess these motions.

It is so ordered. This Court relinquishes jurisdiction.

      . Post Conviction Hearing Act, Act of 1966, January 25, P.L (1965) 1580, § 1 et seq.; 19 P.S. § 1180-1 et seq., as amended by Act of June 26, 1980, 1980 Pa.Legis.Serv. 2, P.L. 219, No. 77.

      . The lower court considered all three of the appellant’s contentions to be part of “the pre-trial matters” and addressed them collectively.

      . Although Pa.R.Crim.P. 323 is still in effect, it no longer contains the set, ten day limitation and only requires that such motion be timely.

      . There was a further claim by appellant that he did not knowingly, intelligently and voluntarily waive his right to file post-trial motions. At the evidentiary hearing appellant basically testified that trial counsel told appellant that since appellant had already been in jail for two years that the judge probably wouldn’t extend his sentence if appellant chose not to file post-trial motions. However, it was counsel’s opinion that if appellant did file post-trial motions, then the court would probably set bail so high that appellant wouldn’t be able to meet it and he would have to stay in jail pending the disposition of said motions. On this point, the evidentiary hearing judge ruled that counsel was not ineffective, and we agree. It must be noted that counsel did not promise any particular sentence but only gave appellant his assessment of the situation. We do not find this to be ineffective assistance.


author: BROSKY, Judge:

text:
    435 A.2d 606
    Martin HAMAY, Appellant, v. COUNTY OF WASHINGTON.
    Superior Court of Pennsylvania.
    Submitted April 16, 1980.
    Filed Sept. 25, 1981.

      Wray G. Zelt, III, Washington, for appellant.
    William C. Porter, County Solicitor, Washington, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

In August of 1978, appellant, Martin Hamay, brought suit against the appellee, Washington County, for an alleged illegal arrest and confinement of him by Washington County. The trial court granted summary judgment in favor of Washington County and Hamay now appeals. Hamay contends that his request for a change in venue was improperly denied and that it was error to grant summary judgment to the appellee and, therefore, that he was wrongly denied relief for the alleged wrongful arrest and confinement. Appellant then argues that because of these improprieties and illegal actions by the court, he may sustain an action against appellee for damages. We disagree with the appellant and affirm the order of the trial court.

The trial court in its opinion succinctly stated the facts: On February 11, 1975, Martin Hamay was ordered to pay the sum of $250.00 per month for the support and maintenance of his wife. The order specified that upon failure to comply with the provisions of the order, a petition for bench warrant would be presented to the court for his arrest and commitment to jail. Martin Hamay signed this order, stating that he fully understood and accepted the conditions, and acknowledged receipt of a copy.
Hamay made the support payments as required until June of 1977, at which time Hamay terminated his employment as a coal miner, because of an alleged heart condition, reducing his income from about $49.00 a day to $100.00 a week sick benefit. Hamay failed to make the support payments as required by the court’s order, nor did he petition the court for a reduction of the order.
In October of 1977, Hamay and his wife, both represented by counsel, met with the domestic relations officer at the Courthouse, but the parties were unable to agree on a modification of the outstanding support order. At that time, the domestic relations officer was aware of Hamay’s reduced income, but the status of Hamay’s claims for accumulated pension benefits from the United Mine Workers Welfare & Retirement Fund and the Social Security Administration were unknown.
In the latter part of November of 1977, the attorney for Mrs. Hamay presented a petition for rehearing to Judge Sweet, alleging that the defendant, Hamay, had ceased making any payments on the support order, contending that he was disabled, and the prosecutrix was informed that he was now receiving social security disability benefits and a miner’s pension. Judge Sweet informed the attorney for the prosecutrix that the petition for rehearing was not the right remedy for nonpayment, that a bench warrant should issue if the defendant was in default, where the defendant might prove inability to pay.
At the request of the attorney for the prosecutrix, the domestic relations officer then presented a petition to Judge Sweet, praying that a bench warrant issue, as the defendant had failed to comply with the support order, and on December 5, 1977, the prayer of the petition was granted and a bench warrant was directed to issue. The clerk of courts issued the bench warrant which was placed in the hands of the sheriff, who arrested the defendant on the morning of December 8, 1977.

Hamay v. County of Washington, No. 135, Slip Op. at 4-6 (Court of Common Pleas, August Term, 1978).

The appellant spent the night of December 8, 1977 in jail and was brought before Judge Sweet the next morning. At that hearing, Hamay’s attorney challenged the issuance of the bench warrant, the arrest, and the confinement as all being improper and illegal. Judge Sweet then held a hearing at which the court found that it was Hamay’s responsibility to seek a reduction in this support order, and that he was technically in contempt as he had some ability to comply with the support order. Judge Sweet did not, however, order him confined. Additionally, a decision on modifying the support order was deferred until Hamay’s claim for disability benefits was determined. This order was not appealed.

In reviewing a venue determination, our role is limited. As the Pennsylvania Supreme Court recently said, “It is clear that an application for change in venue is addressed to the sound discretion of the court, and its exercise of that discretion will not be disturbed by an appellate court in the absence of an abuse of discretion.” Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980).

A change of venue will be made when the judge is personally interested in the question to be determined, or when the county in which such case is pending is a party and it appears that local prejudice exists and a fair trial cannot be had in such county. 12 P.S. § 111.

Appellant argues that because the trial court judge was a judge in the county sued, and because Judge Sweet is on the same court as the trial court judge, a change in venue should have been granted. However, just because the trial court judge was a judge in the county sued does not necessarily mean that the judge’s judicial impartiality was compromised. Additionally, the fact that Judge Sweet is on the same court as the trial judge does not require a finding that the trial judge’s impartiality was impaired. Nor need it necessarily be found that local prejudice existed here because the suit was against Washington County.

It is arguable that in some cases allegations similar to these, if proved, may amount to justification for a grant of a change of venue. In the instant case, however, we find no evidence that requires such a change. It was in the discretion of the trial court to determine if a change in venue was necessary. Commonwealth v. Tolassi, supra. Without more than the evidence that is presently before us, it cannot be said that the trial court abused its discretion in the holding that it made. Accordingly, the denial of the request for change in venue is affirmed.

We must decide two other issues regarding this appeal in order to determine if the appellant is to recover. First, we must decide whether the appellant has a respondeat superior cause of action against the county for the actions of Judge Sweet in his official capacity as judge. Secondly, the merits of the case must be decided. We hold that appellant had no right of action against the county in the instant case and, alternatively, the merits of the case are against him.

Initially, we determine whether appellant had a right of action against the appellee. Appellant did not bring an action against the judge himself. Apparently he was aware that the doctrine of judicial immunity bars suit in such a case. Stump v. Spockman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Albright v. R. J. Reynolds Tobacco Co., 463 F.Supp. 1220 (W. D. Pa. 1979). Instead, appellant brought a respondeat superior action against the county based on the actions of the judge, and other county personnel, for his alleged false imprisonment. Appellant’s basic contention is that the county is vicariously liable for the alleged wrongful actions taken by Judge Sweet.

We do not agree with the appellant’s theory of action against the county is wrong. First, the doctrine of respondeat superior depends on the existence of a relationship of principal and agent, or of master and servant. Drexel v. Union Prescription Centers, Inc., 428 F.Supp. 663 (E.D. Pa. 1977), reversed 582 F.2d 781 (3d Cir. 1978). The trial judge, however, is not an agent or employee of the county. The judge is an employee of the state, an officer of the Commonwealth of Pennsylvania. Additionally, liability under the doctrine respondeat superior is available only because the principal has the right to control the actions of the agent. Drexel, supra. When the principal has the right to control the actions of the agent, it is held that the liability from the agent’s actions can be imputed to the principal.

In the case of the trial judge and county, however, this relationship does not exist. The county has no power to control the judge’s actions. And, without that power to control, imputed liability makes no sense. For the foregoing reasons, we hold that the county cannot be held liable for any alleged tortious actions of the trial judge.

As to other county employees (domestic relations officer, sheriff and his deputies, and clerk of courts), we hold that no tort was committed by them. In order for them to have committed a tort in this case, they would have had to have been enforcing orders that were ordered by the judge acting without any jurisdiction at all. 70 Am.Jur.2d, Sheriffs, Police, and Constables, § 110. Breckwoldt v. Morris, 149 Pa. 291, 24 A. 300 (1892), P.L.E., Sheriffs and Constables §§ 81, 87. As Judge Sweet was acting pursuant to a valid statute, in effect at the time, it cannot be said that the judge was acting without jurisdiction. Therefore, the county employees cannot be held liable.

Alternatively, we address the merits of the case. Appellant contends that he was wrongfully and illegally arrested on December 8, 1977. He seeks money damages. He argues that Section 9 of the Civil Procedural Support Law, 62 P.S. § 2043.39(a), upon which Judge Sweet relied in issuing the bench warrant for Hamay’s arrest, cannot be read, standing alone, but rather, a rule to show cause why an attachment should not issue against the defendant, must be read into it. Stated differently, appellant asserts that Section 9 has been interpreted as requiring a hearing for the defendant before he is taken into custody. Appellant relies on the cases of Crislip v. Harshman, 243 Pa. Super. 349, 365 A.2d 1260 (1976), and Kramer v. Kelly, 265 Pa.Super. 58, 401 A.2d 799 (Super. 1977).

Section 9 of the Civil Procedural Support Law is clear on its face. It allows the court to issue attachment proceedings directing that a person who has failed to comply with an order of the court be brought before the court. It states that such person must be brought before the court within forty-eight hours (or two court working days) of the time the person is taken into custody. The situation in the instant case falls within Section 9. Hamay failed to obey the support order, a bench warrant issued, Hamay was taken into custody, and twenty-four hours later he was brought before the court to determine if he was to be held in contempt. This situation is far different from the one in Crislip and Kramer. Those cases, rather, deal with the situation of providing procedural safeguards that are required before a person is actually adjudicated in contempt. Thus, Crislip and Kramer stand for the proposition that a defendant must be provided a hearing before being found in contempt. The simple fact of the matter is that Section 9 specifically authorized, without a hearing, the attachment of the person to initiate a contempt proceeding. We find, also, no authority that anything additional has been read into Section 9.

Whether or not the statute was unconstitutional and whether or not appellant would have had a cause of action against the county if he could have gotten the statute declared unconstitutional by the court below, are questions that need not be addressed by this court. Hamay’s attorney, at the hearing before Judge Sweet, challenged the constitutionality of Hamay’s appearance there. And, after Judge Sweet held the hearing despite these challenges, Hamay failed to appeal. As such, he is collaterally estopped from raising those constitutional issues here. Accordingly, the order of the trial court is affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . 12 P.S. § 111 was in effect at the time of the occurrences in this case. It has since been repealed. 1978, April 28, P.L. 202, No. 53, § 2(a) [657], effective June 27, 1980. Change of venue is now found in 42 Pa.C.S.A. § 5106.

      . Appellant offers no legal authority for his argument.

      . 62 P.S. § 2043.39(a) states:
      The court, upon receiving information either through written application or at any hearing, that there is failure to comply with the order of the court, may issue attachment proceedings, directed to the sheriff or other proper officer of the county, directing that the person named be brought before the court at such time as the court may direct, which in counties of the first class shall be within forty-eight (48) hours or two court working days, whichever is the longer from the time the person is taken in custody of law pursuant to the attachment.
      It was in effect at the time of the occurrences in this case. It has since been repealed. 1978, April 28, P.L. 202, No. 53, § 2(a) [1291], effective June 27, 1978.