Dissenting Opinion by
Cercone, J.:I dissent.
In my opinion appellant’s business dealings with Mr. Leveto did not constitute theft by deception as that crime is defined in 18 Pa. C.S. §3922. Rather, I view this matter as a contract dispute between two businessmen which does not belong in our criminal courts.
In pertinent part, 18 Pa. C.S. §3922 states as follows.:
“ (a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally :
(1) creates or reinforces a false impression, including false impressions as to law, value, intention *565or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;” (emphasis added).
As the majority notes, Section 3922 represents a substantial enlargement of the prior existing law of obtaining money by false pretenses. See former 18 P.S. §4836. The chief change is that 18 Pa. C.S. §3922 specifically rejects the traditional notion that the deception must relate to an existing fact. See Model Penal Code §206.2, Comment (Tent. Draft No. 2, 1954). However, the law has not so drastically changed that the Commonwealth no longer has the burden of establishing the defendant’s original intent to deceive. In other words, in the case at bar, the Commonwealth must prove that the accused purposely made a false promise — a false promise being one that is made with no intention of ever performing, as distinguished from a promise which the promisor originally intends to keep but subsequently decides to breach. Thus, under Section 3922(a) (1), the court’s initial inquiry is directed toward determining whether the accused has made a false promise. In making this determination the legislature has specifically provided that the mere fact that the promise is subsequently breached will not, standing alone, constitute sufficient evidence of an original intention not to perform. 18 Pa. C.S. §3922 (a) (1). The objective of this statutory limitation is to prevent criminal prosecutions based only on the fact that a promise or contract was breached. Model Penal Code, §206.2, supra. Accordingly, the critical question is: Did the Commonwealth adduce sufficient evidence, other than the accused’s subsequent failure to perform, to sustain a conviction? I think not. Although much of the testimony at trial was controverted, there are several undisputed facts which I believe weigh heavily in appellant’s favor. It is clear that at all times in his transactions with Mr. Leveto and his suppliers, appellant never used anything other than his *566real name and address; appellant’s business telephone is a working number which has been in existence for several years, and he has been in the business of producing brochures for home builders for almost eleven years. During this period appellant has produced approximately 1000 sets of brochures similar to those requested by Mr. Leveto. There was no evidence that in any of these prior transactions appellant had ever attempted to deceive his clients. And, most importantly, in early November, 1973, appellant went to the expense of having the type set for the Leveto brochures.
With respect to appellant’s contention that Mr. Leveto breached their contract, it is undeniable that appellant secured a credit memo from Glidden Paint Company which was never paid. Appellant testified that Mr. Leveto refused to honor this credit memo even though Glidden had been included among the suppliers listed by Mr. Leveto. Appellant further testified that on or about August 21, 1973, he telephoned Mr. Leveto and informed him that the brochures would not be produced until the Glidden credit memo was paid. Mr. Leveto, on the other hand, testified he had no knowledge of a credit memo from Glidden, and that he never heard from the appellant after August 7, 1973. And, although it was within the province of the trial court to resolve the issue of credibility in favor of Mr. Leveto, the neutral testimony of the district manager of Glidden, Mr. Mears, who signed the memo,makes it clear that there was a definite controversy as to who would be charged for the Glidden advertisement.
Finally, there was no evidence that the appellant attempted to abscond with any money secured from the Leveto contract. Nor was there any evidence that appellant used the Leveto funds for any purpose other than producing the brochures. I find it difficult to believe that appellant would jeopardize his career and reputation by attempting to defraud one builder out of the hundreds he has done business with.
*567Although appellant was obviously guilty of poor judgment in neglecting to punctually fulfill the terms of his contract because of his belief that Mr. Leveto had breached the contract, I do not believe his conduct amounted to a criminal offense. This controversy is simply a contractual dispute between two experienced businessmen which is best resolved in a civil forum.
The judgment of sentence should be reversed.
Hoffman and Spaeth, JJ., join in this dissenting opinion.