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November 25, 1959


Appeal, No. 176, Jan. T., 1959, from judgment of Superior Court, Feb. T., 1959, No. 16, affirming judgment of Court of Quarter Sessions of Lackawanna County, May T., 1958, No. 119, in case of Commonwealth of Pennsylvania v. John Koczwara. Judgment, as modified, affirmed. Same case in Superior Court: 188 Pa. Super.Ct. 153. Indictment charging defendant with violations of the Liquor Code. Before HOBAN, P.J. Verdict of guilty and judgment of sentence entered thereon. Defendant appealed to Superior Court, which affirmed the judgment of the court below, opinion by HIRT, J. Appeal by defendant to Supreme Court allowed.


Irving L. Epstein, for appellant.

Joseph J. Cimino, Assistant District Attorney, with him Carlon M. O'Malley, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Cohen

[ 397 Pa. Page 577]


This is an appeal from the judgment of the Court of Quarter Sessions of Lackawanna County sentencing the defendant to three months in the Lackawanna County Jail, a fine of five hundred dollars and the costs of prosecution, in a case involving violations of the Pennsylvania Liquor Code.

John Koczwara, the defendant, is the licensee and operator of an establishment on Jackson Street in the City of Scranton known as J. K.'s Tavern. At that place he had a restaurant liquor license issued by the

[ 397 Pa. Page 578]

Pennsylvania Liquor Control Board. The Lackawanna County Grand Jury indicted the defendant on five counts for violations of the Liquor Code. The first and second counts averred that the defendant permitted minors, unaccompanied by parents, guardians or other supervisors, to frequent the tavern on February 1st and 8th, 1958; the third count charged the defendant with selling beer to minors on February 8th, 1958; the fourth charged the defendant with permitting beer to be sold to minors on February 8th, 1958, and the fifth or final count was an averment of a prior conviction for violations of the Liquor Code.

Prior to trial, the averment of prior convictions was removed from the consideration of the jury upon motion of counsel that submission of the same would deprive the defendant of his fundamental right to exclude evidence of former convictions.

At the conclusion of the Commonwealth's evidence, count three of the indictment, charging the sale by the defendant personally to the minors, was removed from the jury's consideration by the trial judge on the ground that there was no evidence that the defendant had personally participated in the sale or was present in the tavern when sales to the minors took place. Defense counsel then demurred to the evidence as to the other three counts. The demurrer was overruled. Defendant thereupon rested without introducing any evidence and moved for a directed verdict of acquittal. The motion was denied, the case went to the jury and the jury returned a verdict of guilty as to each of the remaining three counts: two counts of permitting minors to frequent the licensed premises without parental or other supervision, and the count of permitting sales to minors.

Upon the conclusion of the trial, defendant filed a motion in arrest of judgment. After argument before the court en banc, the motion was overruled by Judge

[ 397 Pa. Page 579]

HOBAN, who sentenced the defendant to pay the costs of prosecution, a fine of five hundred dollars and to undergo imprisonment in the Lackawanna County Jail for three months.

The defendant took an appeal to the Superior Court, which, in an opinion by Judge HIRT, affirmed the judgment and sentence of the lower court. A petition for an allowance of an appeal was filed by the defendant. Because of the importance of the issues raised, the petition was allowed and an appeal granted.

Defendant raises two contentions, both of which, in effect, question whether the undisputed facts of this case support the judgment and sentence imposed by the Quarter Sessions Court. Judge HOBAN found as fact that "in every instance the purchase [by minors] was made from a bartender, not identified by name, and service to the boys was made by the bartender. There was no evidence that the defendant was present on any one of the occasions testified to by these witnesses, nor that he had any personal knowledge of the sales to them or to other persons on the premises." We, therefore, must determine the criminal responsibility of a licensee of the Liquor Control Board for acts committed by his employees upon his premises, without his personal knowledge, participation, or presence, which acts violate a valid regulatory statute passed under the Commonwealth's police power.

While an employer in almost all cases is not criminally responsible for the unlawful acts of his employees, unless he consents to, approves, or participates in such acts, courts all over the nation have struggled for years in applying this rule within the framework of "controlling the sale of intoxicating liquor." See Anno., 139 A.L.R. 306 (1942). At common law, any attempt to invoke the doctrine of respondeat superior in a criminal case would have run afoul of our deeply ingrained notions of criminal jurisprudence that guilt

[ 397 Pa. Page 580]

    must be personal and individual.*fn1 In recent decades, however, many states have enacted detailed regulatory provisions in fields which are essentially non-criminal, e.g., pure food and drug acts, speeding ordinances, building regulations, and child labor, minimum wage and maximum hour legislation. Such statutes are generally enforceable by light penalties, and although violations are labelled crimes, the considerations applicable to them are totally different from those applicable to true crimes, which involve moral delinquency and which are punishable by imprisonment or another serious penalty. Such so-called statutory crimes are in reality an attempt to utilize the machinery of criminal administration as an enforcing arm for social regulations of a purely civil nature, with the punishment totally unrelated to questions of moral wrongdoing or guilt. It is here that the social interest in the general well-being and security of the populace has been held to outweigh the individual interest of the particular defendant. The penalty is imposed despite the defendant's lack of a criminal intent or mens rea.

Not the least of the legitimate police power areas of the legislature is the control of intoxicating liquor. As Mr. Justice BENJAMIN R. JONES recently stated in Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 360, 150 A.2d 112 (1959), "There is perhaps no other area of permissible state action within which the exercise of

[ 397 Pa. Page 581]

    the police power of a state is more plenary than in the regulation and control of the use and sale of alcoholic beverages."*fn2 It is abundantly clear that the conduct of the liquor business is lawful only to the extent and manner permitted by statute. Individuals who embark on such an enterprise do so with knowledge of considerable peril, since their actions are rigidly circumscribed by the Liquor Code.

Because of the peculiar nature of this business, one who applies for and receives permission from the Commonwealth to carry on the liquor trade assumes the highest degree of responsibility to his fellow citizens. As the licensee of the Board, he is under a duty not only to regulate his own personal conduct in a manner consistent with the permit he has received, but also to control the acts and conduct of any employee to whom he entrusts the sale of liquor. Such fealty is the quid pro quo which the Commonwealth demands in return for the privilege of entering the highly restricted and, what is more important, the highly dangerous business of selling intoxicating liquor.

In the instant case, the defendant has sought to surround himself with all the safeguards provided to those within the pale of criminal sanctions. He has argued that a statute imposing criminal responsibility should be construed strictly, with all doubts resolved in his favor. While the defendant's position is entirely correct, we must remember that we are dealing with a statutory crime within the state's plenary police power. In the field of liquor regulation, the legislature has enacted a comprehensive Code aimed at regulating

[ 397 Pa. Page 582]

    and controlling the use and sale of alcoholic beverages. The question here raised is whether the legislature intended to impose vicarious criminal liability on the licensee-principal for acts committed on his ...

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