Appeals, Nos. 170, 171 and 172, March T., 1964, from orders of Superior Court, April T., 1963, Nos. 248, 249 and 252, affirming orders of Court of Quarter Sessions of Allegheny County, Jan. T., 1963, No. 633, Feb. T., 1963, No. 414, and Court of Oyer and Terminer of Fayette County, Sept. T., 1962, No. 33-122, in cases of Commonwealth v. Marcus Shafer; Commonwealth v. Helen M. Cecchini; and Commonwealth v. Frank E. Slosar. Orders reversed.
Albert D. Stewart and John J. Gain, Assistant Attorneys General, with them Louis Abromson, Assistant District Attorney, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.
Vincent M. Casey, and William Moldovan, with them Margiotti and Casey, for appellees.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE JONES
The Commonwealth of Pennsylvania, Department of Revenue, Bureau of Sales and Use Taxes (Commonwealth), instituted separate criminal prosecutions against Marcus Shafer, Frank E. Slosar and Helen M. Cecchini charging each of them with a violation of § 823 of The Penal Code of 1939 (Act of June 24, 1939, P.L. 872, 18 P.S. § 4823) and each person was indicted. The indictments were quashed.*fn1 On appeal,
the orders quashing the indictments were affirmed by the Superior Court. We granted allocaturs.
Upon these appeals, three issues are presented: (1) whether § 823 of The Penal Code applies to vendors who have collected sales taxes from purchasers of tangible personal property pursuant to the provisions of the Selective Sales and Use Tax Act*fn2 (Sales Tax Act)? (2) whether prosecution, under § 823 of The Penal Code, of a vendor, who has collected sales tax monies and converted or appropriated said monies to his own use is precluded by § 573 of the Sales Tax Act (72 P.S. § 3403-573)? (3) in the Shafer appeal, is the president of a business corporation, licensed to collect sales tax monies, subject to prosecution under § 823 of The Penal Code?
The Superior Court determined only the first issue presented and, in view of its disposition of that issue, considered determination of the other two issues unnecessary. On the first issue, the Superior Court construed § 823 of The Penal Code as restricted and confined in its application to public officials, i.e., elected or appointed tax collectors, and not applicable to private citizens, i.e., vendors who collect the Commonwealth sales tax from the purchasers at retail sales of tangible personal property or the use thereof. § Section 823 of The Penal Code provides: "... 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 receive the same, or aids or abets or is an accessory to such act, is guilty of embezzlement, a felony, and upon conviction thereof, shall be sentenced to undergo imprisonment not exceeding five (5) years, or to pay a fine not exceeding five thousand dollars ($5,000), or both." Section 201 of the Sales Tax Act (72 P.S. § 3403-201) ...