Louis F. Hornstine, J.s.c.
The opinion of the court was delivered by: Hornstine
LOUIS F. HORNSTINE, J.S.C.
Defendant, Franz Szawronski, was charged in Indictment 2820-10-94 with two counts of issuing a bad check contrary to the provisions of N.J.S.A. 2C:21-5, one count of theft by deception in violation of N.J.S.A. 2C:20-4, and one count of deceptive business practices prohibited by N.J.S.A. 2C:21-7(h).
The State alleges that the proofs will show that the victim, Charles Hurchalla, is the owner and President of Petron Oil Corporation (Petron). Joseph Chismark was employed by Petron. Chismark was responsible for obtaining new accounts and maintaining existing accounts for Petron by selling diesel fuel, gasoline and heating oil.
Franz Szawronski, the defendant herein, and his wife, are the owners of Tri-State Fuel Services, Incorporated (Tri-State). Chismark and Szawronski met in 1991. In 1992 Szawronski asked Chismark to refer potential customers to Tri-State. In exchange for any referral which resulted in business for Tri-State, Chismark would receive a commission which was hidden from Petron.
In August 1992, Petron ceased doing business with Caretta Trucking Company, Incorporated, (Caretta Trucking). Chismark referred the Caretta Trucking account to Tri-State in exchange for a commission. Caretta Trucking purchased diesel fuel from Tri-State from the end of August 1992 through November 2, 1992. Their business relations ended when Caretta Trucking failed to pay Tri-State for the last nine shipments, leaving a debt of $56,298.75. On November 5, 1992 Caretta Trucking filed for bankruptcy.
During the Spring of 1993, Szawronski contacted Chismark to discuss prospective business relations between Petron and Tri-State. Subsequently, Petron gave Tri-State a $75,000 line of credit and Tri-State began purchasing fuel from Petron. As of November 10, 1993, Tri-State's account balance with Petron was $123,630.66.
On November 11, 1993, Tri-State issued check number 1190 to Petron in the amount of $45,000 drawn on First Fidelity Bank. On Friday, November 12, 1993, Franz Szawronski stopped payment on the check. Later that evening he met with Joseph Chismark and ordered approximately $40,000 worth of fuel which was to be delivered by Petron to Tri-State customers. Chismark requested an additional payment. Szawronski tendered check number 1199 dated November 15, 1993, payable to Petron in the amount of $77,704.81. On Monday, November 15, 1993, Szawronski withdrew all moneys from the bank account on which check number 1199 was written, transferring the funds to a new account which he opened in Tri-State's name with the same bank.
On November 15, 1993, Tri-State's bank refused payment on check number 1190 due to the stop payment order previously requested by defendant and also refused payment on check number 1199 due to insufficient funds. Check number 1199 was presented for payment again on November 23, 1993, but was not honored for lack of funds.
Petron sought legal counsel to resolve the situation. A meeting was held at the law offices of Petron's attorneys on November 29, 1993. Present at the meeting were Charles Hurchalla, his attorneys Kevin Gibson and Matthew Ryan, Franz Szawronski and his attorney, Augustus Knestaut.
The meeting *fn1 began with a Discussion regarding payment to Petron for the two checks which had not been honored. Tri-State attempted to resolve the matter by offering to pay $45,000 over eighteen months without interest. Eventually Tri-State increased the amount to $60,000 with the same terms. Representatives for Petron refused Tri-State's offer. Charles Hurchalla indicated that he was outraged that as a businessman Szawronski would not pay what he owed. Charles Hurchalla asked Szawronski why he did this to him and Szawronski retorted with words to the effect of "How else was I going to get you?" Szawronski blamed Petron for Caretta's outstanding debt to Tri-State, alleging that Petron purposely failed to advise them of Caretta's insolvency and that Chismark purposely introduced Tri-State to a poor financial risk.
Gibson, Ryan and Hurchalla recall Szawronski's comments as an acknowledgment that he issued the two checks with the intent to retaliate against Petron for Chismark's actions in ...