397 Pa. 575, 155 A.2d 825.
John Koczwara operated J.K.'s Tavern on Jackson Street in Scranton under a restaurant liquor license issued by the Pennsylvania Liquor Control Board.1 On February 1 and February 8, 1958, minors unaccompanied by parents, guardians, or other supervisors entered the tavern and purchased beer from unidentified bartenders.2 The Lackawanna County Grand Jury indicted Koczwara on five counts under the Liquor Code, including two counts of permitting minors to frequent the premises, one count of selling beer to minors, one count of permitting sales to minors, and a count alleging a prior conviction for Liquor Code violations.3
Before trial, the prior conviction averment was removed from the jury's consideration on defense motion.4 At the close of the Commonwealth's evidence, the trial judge removed the personal sale count because no evidence showed that Koczwara had personally participated in any sale or was present when sales to minors occurred.5 Defense counsel demurred to the remaining counts; the demurrer was overruled.6 Koczwara rested without presenting evidence, moved for a directed verdict, and the motion was denied.7
The jury returned guilty verdicts on the three remaining counts.8 Judge Hoban of the Court of Quarter Sessions sentenced Koczwara to three months in the Lackawanna County Jail, a five hundred dollar fine, and costs.9 Koczwara appealed to the Superior Court, which affirmed the judgment in an opinion by Judge Hirt.10 The Pennsylvania Supreme Court granted allocatur because of the importance of the issues presented.11
Whether the Pennsylvania Liquor Code imposes criminal liability on a licensee for violations committed by employees on the licensed premises without the licensee's knowledge, presence, or participation?12
The legislature intended to eliminate both knowledge and criminal intent as necessary ingredients of offenses under the Liquor Code. The legislature also intended to place a very high degree of responsibility upon the holder of a liquor license to ensure that neither he nor anyone in his employ commit any of the prohibited acts upon the licensed premises.13
Yes. The established facts show that on February 1 and February 8, 1958, minors unaccompanied by parents entered J.K.'s Tavern and purchased beer from unidentified bartenders, with no evidence that Koczwara was present or had personal knowledge.14 The Code's omission of words like 'knowingly' in subsections (1) and (14) of Section 493, combined with the language in Section 491 referring to acts by an employee or agent, applies to impose liability on Koczwara as the licensee for these employee acts.15
The Pennsylvania Liquor Code does impose criminal liability on the licensee under these circumstances.16
Related opinions on this issue
Justice Bell concurred in the result but dissented from the majority's distinction.17 Although the question is close, in his judgment this case is ruled in principle by prior cases such as Commonwealth v. Sellers, Commonwealth v. Holstein, Commonwealth v. Zelt, and others.18 He believed that the distinction drawn by the majority is of insufficient weight to distinguish and govern the instant case.19
Therefore, he would affirm the judgment and the sentence on the opinion of Judge Hirt.20
Justice Musmanno dissented vigorously from the imposition of vicarious criminal liability.21 He argued that the majority was laying aside its judicial robes and officiating as members of the General Assembly by declaring a crime which has no existence in the statute books.22 The decision sustains the conviction of a person for acts not committed by him, not performed in his presence, not accomplished at his direction, and not even done within his knowledge.23
He viewed the concept of vicarious criminal liability as alien to American soil and a usurpation of legislative functions.24
Whether due process permits a sentence of imprisonment to be imposed on a licensee for such violations when the licensee has a prior conviction under the Code?25
Such sentence of imprisonment in a case where liability is imposed vicariously cannot be sanctioned by this Court consistently with the law of the land clause of Section 9, Article I of the Constitution of the Commonwealth of Pennsylvania, although the fine may stand.26
No. Judge Hoban imposed a three month sentence of imprisonment in addition to the five hundred dollar fine because of the prior conviction.27 Since the liability is vicarious and without personal causation by Koczwara, the imprisonment portion violates due process even though the prior conviction procedure was properly handled.28
Due process does not permit the sentence of imprisonment to be imposed on the licensee in this case.29
Related opinions on this issue
Justice McBride dissented on the ground that the statute does not and cannot validly create an indictable misdemeanor under which a liquor licensee is punished for the act of an employee.30 He would agree that a man who sells liquor to a minor may be punished even if he did not know that the person to whom he sold was a minor.31 But in his opinion, where the act is done without the licensee's knowledge, consent, or acquiescence, the licensee cannot be punished by fine or imprisonment.32
He would reverse the judgment and discharge the defendant.33
Justice Musmanno also pointed out an inconsistency in the majority's approach to the sentence.34 The majority enlarges on its inconsistency when it says that our own courts have stepped in time and again to protect a defendant from being held criminally responsible for acts about which he had no knowledge and over which he had little control.35 If it is wrong to send a person to jail for acts committed by another, is it not wrong to convict him at all?36
He noted that many value their good names to the extent that a conviction itself causes as much harm as a jail sentence.37