because Court could not say-before trial that statutes irreconcilably conflicted either on their face or as applied, prosecution could proceed under either or both statutes at least initially
How later courts described this case
- because Court could not say-before trial that statutes irreconcilably conflicted either on their face or as applied, prosecution could proceed under either or both statutes at least initially
- so long as the general statute has elements outside the special, the Commonwealth is not restricted in pursuing both charges in one trial; under such circumstances, the legislature can be presumed to have given the prosecuting authorities discretion to proceed under either or both
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
dissenting.
The basic premise underlying the Commonwealth’s position is that the recipient’s failure to inform welfare authorities of earnings may be prosecuted as theft by deception, as defined, 18 Pa.C.S.A. 3922(a), but could not have been prosecuted under the Public Welfare Code prior to the amendment of 62 P.S. 481(a). Section 481(a) had provided, in part, that “[a]ny person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a wilfully false statement of misrepresentation, or by impersonation or other fraudulent means, secures, or attempts to secure, or aids or abets any person in securing assistance under this article shall be guilty of a misdemeanor____” The Commonwealth argues that the Appellee’s conduct during the period from January, 1978 to April 24, 1978 was not subject to prosecution under this section because no statements were made to welfare authorities. Although the majority does not directly address the issue of whether Appellee’s conduct during that period was subject to prosecution under § 481(a), it implicitly accepts the Commonwealth’s argument. If the Commonwealth establishes the facts upon which its theory is based, the majority concludes that the Appellee may be prosecuted for a violation of § 481(a) and for theft by deception.
Contrary to the Commonwealth’s argument, I would not interpret § 481(a) to preclude prosecution of a recipient who actively conceals a material fact which is relevant to a determination of eligibility for public assistance. The language of the statute clearly does not limit violations of the Public Welfare Code to willful false statements. “[Ojther fraudulent means” should be construed to include the factual allegations involved in this case. The subsequent amend *611 ment of § 481(a) to expressly include a willful failure to disclose a material fact does not require this Court to conclude that such conduct was not proscribed prior to the amendment. The former provision was sufficiently broad to encompass the conduct which is now specifically enumerated as a violation of § 481(a). The majority’s demonstrated reluctance to so hold may be prompted by the disparity in the penalties between theft from the public and theft from an individual. As the majority recognizes, “[i]t is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are applicable special penal provisions available.” Commonwealth v. Brown, 346 Pa. 192, 199 , 29 A.2d 793, 796-7 (1943). I would affirm the Superior Court’s holding that prosecution under § 481(a) precludes prosecution for theft by deception under 18 Pa.C.S.A. § 3922(a).