No. 1865 October Term, 1978, Appeal from the Judgment of Sentence imposed June 7, 1978, Court of Common Pleas, Criminal Action, Delaware County at No. 7524-76.
Abraham A. Hobson, III, Norristown, for appellant.
Guy E. Massick, Assistant District Attorney, Media, for Com., appellee.
Van der Voort, Wieand and Lipez, JJ.
J. P. Mascaro and Sons, Inc., a corporation, was convicted of theft by deception,*fn1 deceptive business practices,*fn2 and unsworn falsification to authorities*fn3 arising out of false reports pertaining to quantities of rubbish hauled pursuant to contract with Delaware County. Following sentence, the corporation appealed to this Court. It contends that its conviction is barred by prior convictions of two of its officers, who were also stockholders, for offenses arising from the same series of transactions.*fn4 We disagree and affirm the judgment of sentence.
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The circumstances under which corporations may be criminally liable are set forth in 18 Pa.C.S. § 307(a). It is there provided in pertinent part as follows: "A corporation may be convicted . . . of an offense if: . . . (3) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment." Corporate liability under this rule "is confined to situations in which the criminal conduct is performed or participated in by the board of directors or by corporate officers and agents sufficiently high in the hierarchy to make it reasonable to assume that their acts are in some substantial sense reflective of the policy of the corporate body." Toll, Pennsylvania Crimes Code Annotated, p. 119. See also: United States v. Johns-Manville Corp., 231 F.Supp. 690 (E.D.Pa.1964).
It is hornbook law that a corporation is an entity distinct and separate from the individual stockholders who own it. The corporation, therefore, has rights and liabilities which are separate and apart from those belonging to the individual stockholders. Barium Steel Corp. v. Wiley, 379 Pa. 38, 47, 108 A.2d 336, 341 (1954). See also: P.L.E. Corporations § 3; 1 Fletcher Cyc. Corp. (Perm. Ed.) § 7, p. 37. The corporation is severally liable with its officers for crimes committed by such officers in behalf of the corporation. 10 Fletcher Cyc. Corp. (Perm. Ed.) § 4942, p. 621. See also: United States v. Knox Coal Co., 347 F.2d 33 (3rd Cir.1965), cert. denied, 382 U.S. 904, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965). In this respect, the liabilities of the corporation and
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its officers are comparable to those of a principal and agent who participate in the same criminal activity.
Appellant argues that prosecution is barred by 18 Pa.C.S. § 109(3). This section bars a second prosecution if an earlier prosecution of the same person, based on the same facts, has resulted in a conviction. The statute, however, is not pertinent. It is applicable only where it is the same person or entity which is twice placed in jeopardy for the same offense. It does not bar separate prosecutions of several, different persons or entities who have been engaged in the same criminal activity. So also, neither the ...