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COMMONWEALTH v. SHAFER. (12/12/63)

December 12, 1963

COMMONWEALTH, APPELLANT,
v.
SHAFER.



Appeal, No. 248, April T., 1963, from order of Court of Quarter Sessions of Allegheny County, Jan. T., 1963, No. 633, in case of Commonwealth of Pennsylvania v. Marcus Shafer. Order affirmed.

COUNSEL

Albert D. Stuart, Deputy Attorney General, with him Louis Abromson, Assistant District Attorney, Edward C. Boyle, District Attorney, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Vincent M. Casey, with him Margiotti & Casey, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 202 Pa. Super. Page 180]

OPINION BY WRIGHT, J.

Marcus Shafer was indicted by the Allegheny County Grand Jury on a charge of embezzlement by tax collector under Section 823 of The Penal Code. Act of June 24, 1939, P.L. 872, 18 P.S. 4823. The Commonwealth has appealed from an order of the court of quarter sessions, entered July 22, 1963, granting Shafer's motion to quash the indictment.

[ 202 Pa. Super. Page 181]

Shafer was president of the Keystone Universal Carpet Corporation in the City of Pittsburgh. The present prosecution was instituted because of nonpayment to the Department of Revenue of sales taxes allegedly collected by the corporation from December 1, 1961, to July 1, 1962, in total amount of $30,177.28. The decision of the court below was based "on the ground that defendant is not a 'Tax Collector' as that term is used in The Penal Code".

Section 201 of the Selective Sales and Use Tax Act*fn1 imposing the tax, Act of March 6, 1956, P.L. (1955) 1228, 72 P.S. 3403-201, provides that the tax "shall be collected by the vendor from the purchaser, and shall be paid over to the Commonwealth as herein provided". The basic question presented by this appeal is whether a vendor who converts or appropriates and fails to pay over sales taxes is guilty of embezzlement under Section 823 of The Penal Code which reads as follows: "Whoever, being charged with the collection, safekeeping, or transfer of any taxes of the Commonwealth, or any political subdivision thereof, converts or appropriates the moneys so collected, or any part thereof, to his own use in any way whatever, or uses by way of investment in any kind of property or merchandise any portion of the money so collected by him as taxes, and proves a defaulter or fails to pay over the same or any part thereof at the time or place required by law, and to the person legally authorized to demand and received the same, or aids or abets or is an accessory to such act, is guilty of embezzlement, a felony".

The source of Section 823 of The Penal Code is the Act of June 3, 1885, P.L. 72, which is entitled "An act to punish defaulting tax collectors". Section 54 of the Statutory Construction Act, Act of May 28, 1937, P.L.

[ 202 Pa. Super. Page 1821019]

, 46 P.S. 554, reads as follows: "The title and preamble of a law may be considered in the construction thereof ... The headings prefixed to chapters, articles, sections and other divisions of a law shall not be considered to control but may be used to aid in the construction thereof". While the term "tax collector" appears only in the heading prefixed to Section 823, it seems clear, not only from the present statute but also from its historical source, that the language was intended to apply to a public official, as distinguished from a private citizen. This view was expressed by the late Judge CRUMLISH in Commonwealth v. Simpson, 74 Pa. D. & C. 313, as follows: "In passing, it is well to observe that Section 823 of The Penal Code of 1939 and its predecessor, the Act of June 3, 1885, P.L. 72, Section 1, 18 P.S. 2573, have consistently been applied to collectors who are officials, elected or appointed, 'duly qualified' as 'public officers' having a 'term of office' where their 'official capacity' is to collect taxes". A "tax collector" is usually regarded as a public official, not only by the ordinary citizen, but also by the ...


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