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April 11, 1950



Harry Shapiro, Edward Stone, Shapiro, Conner, Rosenfeld & Stalberg, Philadelphia, for appellant.

George P. Williams, 3rd, Assistant Deputy Attorney General, John C. Phillips, Deputy Attorney General, T. McKeen Chidsey, Attorney General, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Arnold

[ 166 Pa. Super. Page 516]

ARNOLD, Judge.

The defendant, an inspector in the office of Fire Marshal in the City of Philadelphia, was convicted on fifteen counts of an indictment charging extortion.

The Act of 1911, P.L. 705, 53 P.S. § 3591 et seq., established the office of Fire Marshal in the City of Philadelphia, and provided for the appointment of the Fire Marshal and assistants and inspectors. Pursuant to the statutory authority the city provided for the position

[ 166 Pa. Super. Page 517]

    of fire marshal inspector to which the defendant was appointed by the director of public safety after he had passed a civil service examination. The defendant was not required to take an oath of office and he filed no bond.

Various ordinances of the city regulated the installation of gasoline and fuel oil storage tanks.*fn1 In general, those ordinances forbade any gasoline or fuel oil storage tanks to be installed without a license from the mayor. Before issuing such license, the mayor was required to have a certificate of approval of the installation by the Fire Marshal. Regulations of the Fire Marshal required that installation plans be first submitted to the assistant fire marshal or the inspector in whose district the installation was proposed. It was the duty of the inspector to approve any plan submitted if it complied with the regulations of the office. On the basis of that approval the Fire Marshal or chief assistant gave the applicant an 'approval slip' which was presented to the mayor's office as evidence of the Fire Marshal's approval. Upon the payment of a license fee of $5.50 to the Receiver of Taxes, the receipted bill became, or served as, a license.

No fees of any kind were authorized to be taken by the fire Marshal or any of his staff.

The defendant admitted at the trial that any applicant for a license had to file the inspector's approval before he could obtain the Fire Marshal's approval (114-a). While the defendant had no final authority to reject an application, he did have power to withhold his approval, and at the least to subject the applicant to the delay and expense of an appeal to a superior, who, incidentally, was corrupt. Commonwealth v. Gallagher

[ 166 Pa. Super. Page 518]

[the Fire Marshal], 165 Pa. Super. 553, 69 A.2d 432.

Following the criminal practice existing in the office of the Fire Marshal, this defendant, too, required applicants to pay him, usually at the rate of one cent per gallon of the storage capacity of the tank, before he would approve. See Commonwealth v. Gallagher, supra; Commonwealth v. Hopkins, 165 Pa. Super. 561, 69 A.2d 428.

But one question is raised in this appeal: 'Was the appellant, an Inspector employed in the Office of the Fire Marshal of Philadelphia, indictable or subject to conviction for extortion * * * as an officer or person occupying an official or quasi-official position?'

When the case went to trial the indictment was for the statutory crime of extortion under § 318 of The Penal Code of 1939, 18 P.S. § 4318, i. e., extortion by a 'public officer,' and it was doubtful whether the defendant was such. The indictment was then amended to charge common law extortion in all of the counts.

Section 1101 of The Penal Code of 1939, 18 P.S. § 5101, provides: 'Every offense now punishable either by the statute or common law of this Commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore.'

In Commonwealth v. Saulsbury, 152 Pa. 554, 559, 25 A. 610, 611, the Supreme Court, in referring to a deputy constable convicted of common law extortion, said: 'While not an officer, within the meaning of the act of 1860, it does not follow that he may not be convicted of extortion. Extortion, at common law, is the unlawful taking by an officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is due. 7 Am. & Eng. Ency. of Law, 585. In general, it any be said that any officer, whether he be a federal, state, municipal, or a judicial officer, and

[ 166 Pa. Super. Page 519]

The judgment and sentence in each appeal is affirmed, and it is ordered that the appellant appear in the court below at such time as he may there be called, and that he be by that court committed until he has complied with his sentences, or any part of them which had not been performed at the time each appeal was made a supersedeas.

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