*1 (Counts (b) 2253(a), II and III of §§ indictment). We will remand resen remaining convictions under
tencing on the §§ 2.11 922 and See United States
18 U.S.C. (8d Cir.1989) n. 5 Levy, 865 F.2d
v.
(“[W]here imposed the sentences on two three counts are vacated and all three arise from the same criminal
sentences
transaction, appropriate to vacate the
third, in order to afford the valid sentence judge opportunity properly exer
trial discretion____”) (citations sentencing
cise his
omitted). BELCUFINE; Berringer;
Paschal F. Scott
Guy Gadola; Margaret Hromyak; Ed- Krafft; Betty Lawrence; Joseph-
ward Nauman; Sekersky; Ken R.
ine James
Zwikl; Spencer Carlough; H. Richard Owen; Bornes,
D. Richard and other
similarly individuals, salaried situated
Appellants, Aloe, individuals, ALOE;
Mark Andrew
jointly severally,
Inc., Appellees.
No. 96-3237. Appeals,
United States Court of
Third Circuit.
Argued Nov. 1996. April
Decided noted, 922(g)(1), prohibits violating 11. As we have all were con- 18 U.S.C. defendants 922(k) violating §§ possession victed of 18 U.S.C. of a firearm a felon. Defendants (and possession aiding prohibit which ting possession) and abet- appeal convictions for the did not aof firearm with an obliterated violations. was also convicted of serial number. McKie *2 Zwikl, (argued) Todd T.
Lee R. Golden PA, Pittsburgh, Appellants. for Jay (argued) Buchanan In- Flowers Conti P.C., Smith, Wendy Kirkpatrick gersoll, E.D. (ar- L.L.P., Lockhart Clem C. Trischler & gued), Raymond McLaughlin, Pittsburgh, G.
PA, Appellees. GREENBERG, ALITO,
Before:
ROTH,
Judges.
Circuit
THE
OPINION OF
COURT
ALITO,
Judge:
Circuit
law,
corpora-
when a
Under
pay wages
and benefits that it
fails
top
employees,
offi-
owes
personally
can
liable for the non-
cers
be held
See,
payments.
e.g., Carpenters Health and
Ambrose, Inc.,
R.
Fund v. Kenneth
Welfare
(3d Cir,1983);
see
727 F.2d
282-83
also
Esposto,
Antol v.
100 F.3d
Cir.1996).
give
The
this rule is to
managers
top corporate
an incentive to use
corporate
payment
funds for the
available
wages and benefits rather
than for -some
purpose. Carpenters,
2. The
ground
joined Shenango
that the suit was
as a defendant on a claim for WPCL claims on the
was
based on the terms of the CBAand was therefore
indemnification. The indemnification claim
Management
by-laws
imposed
preempted by
Relations
based on
the Labor
the “related to” test.
therefore satisfied
II.
Hence,
the court determined
there
Subject
A.
Matter Jurisdiction
subject
jurisdiction over the cause of
matter
question
whether
action.
juris
matter
bankruptcy court had
here,
They argue
matter.
over this
diction
Higgins,
In Pacor v.
poration can be hable under the WPCL. requires “[e]very employer According majority, logic ... to the must remit the deductions or Mohney applies fringe here provide wage supple- “[o]nce because She- benefits or nango management ... required by filed for ments” as the WPCL. Id 260.3(b). longer power no to choose not to had use Inasmuch as the Aloes are em- pay wages bankrupt- responsibility funds to [its] [because] under the WPCL ployers, cy Yet, compelled primary Shenango. law it to refrain from was as as that of Maj. Op. matter, practical claims.” at 640. It I quarrel have no with the liability thus concludes that “the WPCL did not come characterization of their as “contin- play.” gent”; undoubtedly situation, into at 640. ordinary Id. corporation, employer, or conventional reject foregoing analysis. I Under the benefits; pays liability agents of its WPCL, employer the definition of encom- statutory employers signifi- officers as firm, passes “every person, partnership, as- employer cant when the conventional sociation, corporation, receiver or other offi- payments. does not make those cer a court of this Commonwealth and agent or officer of But above-men- whether we characterize the Aloes’ employing any person liability contingent primary tioned classes this makes no slightest Commonwealth.” Pa.Stat.Ann. tit. difference. There cannot be the clarity, applying legislature 260.2a. For contemplated this defini- doubt but that the throughout i.e., opinion distinguish corporate employer, this that if the the con- “statutory employer(s)” employer, pay- from “conventional ventional did not make the case, WPCL, employer(s).” the facts of Under ments then the corporation, Shenango, employer decisionmaking agents was the and officers as statu- sense; is, tory employers the conventional the em- would be liable for them. ployer actually paid wages major- who and benefits This cannot be avoided (when ity’s agents conclusion that the were and officers made). WPCL, however, Under the both a should not be hable because the agents lawfully payments. and its and officers are could not make the *10 makers, case, remotely can be the Aloes were decision even Nothing in the WPCL they due are liable for the amounts agents and officers as to excuse read and the case should be remanded to ease the statutory employers, proceed- court for further merely the convention- liability because from case, ings. Shenango, cannot in this employer, al payments. Nor does the WPCL
make respectfully suggest majority’s I that the inability corporation’s to make distinguish a contrary unavailing. points points are It out from operation of law payments reason liability imposition agent that the or officer it inability payments because to make its corporate agents seeks to deter the and offi- money to do so. not have the does diverting purpose from to .another cers go “funds that are meant to towards fact, agent’s an or officer’s In whether Maj. Op. at 639. benefits.” contingent, primary as liability is viewed yet certainly agree proposition, with that corporation as the conventional em- when agent fact an officer who diverts required not make the ployer does funds be liable under the WPCL does WPCL, confront the exact parties agent or not mean that an officer cannot be legislature con- in which the circumstance diverting hable without funds. Laborers could hold the templated point Funds makes this clear for Combined statutory employers lia- as agents or officers though bookkeeper in that case even a em- for, we Nothing could be clearer as ble. money bezzled the that should have been Carpenters Health and explained Welfare satisfy obligations used Ambrose, Inc., 727 F.2d R. Fund v. Kenneth WPCL, the were hable because their officers Cir.1983) (internal quotation liability “culpabil- dependent was not on their omitted), only ap- [legislature’s] “the marks consider, too, ity or scienter.” We should agent defining an parent [for generated which case of never employer] was to these as an officer income, ie., business, in- a new but which corpo- liability in the event that a persons to obligations curred under the WPCL. wage entity failed to make ration or similar divert, yet there be no funds to case would join opinion I cannot an payments.” surely decision-making agents or officers liability from agents and officers excuses the be hable. would important time when at the exact legislature cannot they be liable because theory the diversion The bottom hne on a result. possibly have intended such nothing in itself or this: there is support a conclusion that in the case law to decision-making point out that a I also only if he or agent or officer can be hable liability due agent’s or officer’s ap- that should have been she diverts funds dependent is not under the WPCL plied obhgations due under the WPCL. culpability or scienter. showing of his or her impos- trust fund statute The WPCL is not a Pennsylvania Superior Court ex As the agent ing liability only when the or officer plained in Funds v. Mat Laborers Combined res, misapplied the and thus should has tei, 1300- 518 A.2d fund statute. Yet treated as a trust original), (emphasis “[o]f those theory, liability on the diversion predicating to rule on the which have had occasion courts a trust the WPCL as treats personal fact, the WPCL establishes fund statute. failure to make face of regard trust employers’ liability without contributions to various union and, appeal concepts as we must on this fund funds, provided for in their collective bar poten- employers, treat the Aloes as have, excep agreement, without gaining all summary tially not entitled to hable and were officer(s) tion, held the judgment. liable, without did so majority contends that inasmuch culpability or scien proof reference is “to deter man- establishing purpose of the WPCL qua non to ter as a sine diverting company agers strategically the Act in a civil suit.” So contravention of away payment of If, from the you as seems to be the resources there have it. *11 law, benefits, operation for the of it it makes sense WPCL and thus to that extent is Liability only those contexts in which the indeed automatic. under apply to in strategical dependent to behave is not on the circum- managers have room WPCL ly.” Maj.. Shenango’s surrounding Here stances or the causes of the Op. at 639-40. nonpayment, that Yet whether external to or intrinsic bankruptcy deprived them of room. Thus, statutory just majority point employers. within the cites on the do the cases ordinary guaranty, liability in like an support not its conclusion this case for they merely corporate agents agents that and officers under the is “au- establish WPCL Furthermore, in not decision makers are tomatic.” the case of an corporate who are here, ordinary just guaranty, the creditors not under the WPCL because are liable statutory employers. Mohney, guarantor pay 568 call on the to because the not Pa. Teamsters Pen cannot. A.2d and Central Fund, immunity F.Supp. 128. The sion majority’s attempt to limit The this case in stemmed from of the officers those cases application an fails for the WPCL the circumstance that were not decision additional reason that there is not even a hint corporation, in not from makers liability statutory in that Act that the of a inability failure or to have exercised control employer is affected not to make the over the “decision” corporate employer. or conventional If a payments. are not relevant to These cases bankruptcy exception court can create a agent is the issue at hand which whether an here, statutory employers’ liability per- statutory employer, officer who is types guaran- sons who have made other of a his or who reason loses Accordingly, tees will seek similar relief. apply corporate her freedom to assets opens this case a door will be hard to strategically, remains un nevertheless hable impact close. But even if somehow the der the WPCL. this case could be limited to situations under WPCL, I nevertheless think that dissent, At outset of this I said that majority reaching wrong in is result this significance this is of enormous to bank- case great importance. which in case itself is of ruptcy explain why. law. I will now The applicable principles involved this case are point. majority I close with one final person guaranteed in which a has case apparently practical believes that consider- (I corporation. bankrupt use the debt of require points ations it to reach its It result. “guaranteed” broadly term to include coobli- “[cjorporate bankruptcies out that are not endorsers, gors, guarantors in situations corporations unusual events” and that which, debtors, as between the the obli- Chapter proceedings stayed pay- gation primarily bankrupt.) on ing prepetition debts. It thus indicates that majority distinguish seeks to this case application of the WPCL in a situation ordinary third-party guaranty “from an imposition such as this result debt,” Maj. Op. at 640 n. and indicates that “staggering personal liability” on predicate opinion solely it intends to its on an officers, thereby creating an incentive for interpretation of the law as set corporations locating Pennsylva- to avoid Thus, forth in the WPCL. believes that this Maj. Op. nia. problem at 640 n. 8. The with implications case should not have other point judges, legisla- is that we are not contexts. tors, beyond power our to rewrite the WPCL so as to create a believe, however, this case is not exception employers favor of distinguishable involving from a case an ordi- merely because we believe that it would be nary guaranty. majority says good business do so. liability agents and officers under the automatic,” point bankrupt- WPCL “is not but rather accrues not does to a cy exception support when officers exercise decision-mak- ing authority respect challenged “staggering personal with conclusion lia- Maj. However, nonpayment. Op. bility” imposed very at 640 n. 7. should not be statutory employers liability good arises reason that the WPCL does include Rather, Chapter using im- 7 from its funds under as it provision. such statutory employers just without sees fit as its restrains a poses Thus, even un- the WPCL. exception reorganizing under 11 in its use of majority’s its result view der its funds. case under *12 WPCL, policy of the with the consistent employees may nothing receive on their reject, majority not read a I should though statutory WPCL claims even em- Rather, that act. exception into ployer has substantial assets. I con- cannot recently point we made so it heed should legislature ceive that intended such a Barshak, in In re result. ignore Cir.1997), not free to that we “are reasons, foregoing respectfully For I Pennsylvania statute language of a clear part part. concur and dissent by rewriting the statute we merely because consistently legis- with a arguably would act fact, majority’s cre- policy.” In
lative bankruptcy exception
ation of a be- of the Act
has frustrated remedy employees to a relegating the
cause corporate employer means
against the plan in a provided can recover below, or, explain as I
reorganization surely relegation BEVERAGE, at all. This almost recover PITTSBURGH FOOD & INC., Appellant will not receive mean that the will Thus, I under the WPCL. due sug- why cannot understand RANALLO, F. Lawrence Trustee merely involves a situa- gests that this case Pittsburgh Beverage, estate of Food & “temporarily tion where Inc.; Integra Company; Bankruptcy Business Credit stayed, by operation of the Pitney Corporation; Bowes Credit Com- Code,” Maj. paying the Op. at 640 n. Pennsylvania Department fact, monwealth employees’ claims. Revenue; Pennsyl- largely against Shenango have been Commonwealth claims Industry; Department makes this vania of Labor & discharged. itself Emery Worldwide; point explains its brief American Flint clear for O’Brien; Union; Kathryn Employees hold allowed unse- “the Former Workers Glass Schachte, against Shenango’s estate and cured claims B. Tax Collector Helen Township, Pennsylvania dis- pursuant the Plan the claims were Mt. Pleasant will charged except to the extent Area Dis- and the Mt. Pleasant School Pennsyl- con- pro trict; Township, rata receive Mt. Pleasant reorganization in satisfaction vania; firmed Plan of Area Dis- Mt. Pleasant School Wage County Claims.” Br. at 3. trict; Tax Claim Westmoreland Fayette Bank; Bureau; Ford Motor point principled that there is no also out Co. Credit distinguish large corpora- way to between against the tions in which claims 95-3633, 95-3634. Nos. employers “staggering” could be and small Thus, according Appeals, corporations. Court of one-person United States if logic majority opinion, a small Third Circuit. single operated owned and 34.1(a) LAR under Third Circuit Submitted Chapter 7 person discharge receives a 14, 1997. April Code, if, likely, Bankruptcy even as is statutory employer under the the owner is a 1,May Decided bankruptcy personally, and is not discharged from he or she will be all, After
under the WPCL. liquidated corporation being
Code restrains