Appeal from judgment of County Court of Allegheny County, No. C 1812 of 1964, in case of Commonwealth of Pennsylvania v. Nick Morakis et al.
Emil W. Herman, with him Rothman, Gordon & Foreman, for appellant.
S. Frank Laveson, Assistant Attorney General, with him Raymond Kleiman, Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Wright, J.
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On July 24, 1964, an information was made before a justice of the peace in Allegheny County charging Nick Morakis with unlawfully employing a minor under the age of eighteen years without an employment certificate, a violation of Section 8 of the Child Labor Law. Act of May 13, 1915, P. L. 286, 43 P.S. 41 et seq. Morakis was convicted and fined $100.00. The County Court of Allegheny County granted leave to appeal. After a hearing in that tribunal, Morakis was again adjudged guilty and a like fine imposed. This appeal to the Superior Court followed.
Section 8 of the Child Labor Law (43 P.S. 49), reads as follows: "Before any minor under eighteen years of age shall be employed, permitted or suffered to work in, about, or in connection with, any establishment, or in any occupation, the person employing such minor shall procure and keep on file, and accessible to any attendance officer, deputy factory inspector, or other authorized inspector or officer charged with the enforcement of this act, an employment certificate as hereinafter provided, issued for said minor". Section 23 of the statute (43 P.S. 65), which is the penalty section, reads as follows: "Any person, or any agent or manager for any person, who shall violate any of the provisions of this act, or who shall compel or permit
[ 208 Pa. Super. Page 182]
any minor to violate any of the provisions of this act, or who shall hinder or delay any officer in the performance of his duty in the enforcement of this act, shall, upon conviction thereof, be sentenced to pay a fine, for a first offense, of not less than fifty ($50.00) dollars nor more than two hundred ($200.00) dollars, and, on a subsequent offense, to pay a fine of not less than one hundred ($100.00) dollars nor more than three hundred ($300.00) dollars, or to undergo an imprisonment of not more than ten days, or both, at the discretion of the court". Section 24 of the statute (43 P.S. 66), relating to enforcement, reads in pertinent part as follows: "All prosecutions for violations of this act shall be in the form of summary criminal proceedings, instituted before a magistrate, alderman or justice of the peace within the county wherein the offense was committed".
The record discloses that Morakis was a painting contractor who had agreed with the Duquesne Light Company to paint certain light towers in Jefferson Borough, Allegheny County, Pennsylvania. These towers were approximately ninety feet in height with side arms carrying high voltage wires. The side arms were made of aluminum and were not to be painted. The performance of the contract proceeded under the direction of Andrew Kantaras, the job foreman. On June 22, 1964, one Louis Samanthrakis, accompanied by his uncle, Mike Pagonis, came to the site and applied to Kantaras for work. This was a union job, and members of the union had to be at least nineteen years of age. Both Samanthrakis and Pagonis represented to Kantaras that Samanthrakis was nineteen, and Samanthrakis appeared physically to be of that age.*fn1 When
[ 208 Pa. Super. Page 183]
Kantaras asked for his union card, Samanthrakis said he did not have it with him but would bring it in the following day, which was permissible under union rules. Kantaras then permitted Samanthrakis to commence work, instructing him to stay on the ground and scrape paint from the bases of the light towers. During his lunch hour, and in violation of his instructions, Samanthrakis climbed one of the light towers, walked out on a side arm, lost his balance and fell to his death. Subsequent investigation revealed that Samanthrakis was not a union member but was in fact a minor under eighteen years of age. On the day in question, Morakis was in Youngstown, Ohio. He had not authorized Kantaras to hire nonunion members or minors under age eighteen.
As stated in appellant's brief, two questions are presented by this appeal. First, may an individual be convicted for failing to obtain an employment certificate before employing a minor under eighteen years of age where the individual had no intent to violate the statute, and had no knowledge of the minor's true age because of affirmative misrepresentation that the minor was nineteen years of age. Second, may vicarious criminal liability be imposed upon an employer who had no intent to violate the statute, was not present in the ...