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4000 - Advisory Opinions


Whether Section 19 Application is Required in Connection With a Conviction For Retail Theft Under Pennsylvania Law

FDIC--94--28

June 27, 1994

Elaine R. Wohlmuth, Senior Regional Attorney

Your letter of May 17, 1994 to Regional Counsel Reisman has been referred to me for response. You inquire whether a section 19 application is required in connection with the conviction of the *** of *** ("Bank") for retail theft under Pennsylvania law. We have reviewed the material enclosed with your letter and we have consulted with our Washington Office, as well as with staff of the Pennsylvania Attorney General's Office. Based on such review, we are of the opinion that a section 19 application is required to be filed under these circumstances.

In your letter, you state that, although the issue has not been decided by Pennsylvania's Supreme Court, in your view, retail theft under Pennsylvania law (section 3929(b)(1)(i) of the Pennsylvania Crimes Code, 18 Pa.C.S. § 3929(b)(1)(i)) is a summary offense and as such is not a "crime'' under Pennsylvania law. Furthermore, you state that under Pennsylvania law, the *** conviction was annulled by virtue of her appeal for a trial de novo to the Court of Common Pleas.

We have consulted with staff members of the Pennsylvania Attorney General's Office regarding the two issues you raised in your letter, and the advice that we received from the Attorney General's Office is contrary to the conclusions reached in your letter. We were advised that a summary offense is a crime under Pennsylvania law. See, Commonwealth v. Matty, 422 Pa.Super.595, 619 A.2d 1383 (1993); Lewis v. Commonwealth, 74 Pa.Cmwlth. 335, 459 A.2d 1339 (1983); Interest of Golden, 243 Pa.Super. 267, 365 A.2d 157 (1976). We were also informally advised by the Attorney General's staff that an appeal to the Court of Common Pleas is not an annulment of the criminal record.

Since we conclude that retail theft, a summary offense, is a crime under Pennsylvania law and since the appeal to the Court of Common Pleas does not annul the criminal record, we believe that section 19 is applicable to these circumstances and that a section 19 application is therefore required to be filed.

The opinions expressed herein, like all staff opinions, are not binding on the FDIC or its Board of Directors.

If you have any further questions about this matter, please call me at (212) 704-1241.


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