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COMMONWEALTH PENNSYLVANIA v. OTTO PAUL BENDER (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
OTTO PAUL BENDER, APPELLANT



No. 1419 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal, at No. 996 of 1975.

COUNSEL

John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.

Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a dissenting opinion.

Author: Price

[ 251 Pa. Super. Page 456]

Appellant, the owner of a business in Wilkes-Barre, was convicted of wilfully failing or refusing to remit sales tax*fn1 which accrued during the first quarter of 1973.*fn2 We agree that the instant prosecution is barred by the statute of limitations. The judgment of sentence must, therefore, be reversed.

The first question raised is whether jurisdiction over the instant appeal is properly vested in this court. Under the Appellate Court Jurisdiction Act,*fn3 the Superior Court has exclusive jurisdiction over all appeals from final orders of the courts of common pleas unless jurisdiction is specifically vested in the Supreme Court or the Commonwealth Court.*fn4 Section 402 provides in part that the Commonwealth Court "shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in . . . (2) [a]ll criminal actions . . . for the violation of any rule, regulation or order of any administrative agency of the Commonwealth[.]"

The instant criminal action does not involve such a violation. The essential characteristic of a rule, regulation or order is that it is promulgated by an agency under statutory authority. See 1 Pa.Code § 1.4 (Regulation). Although the Department of Revenue is empowered to prescribe rules and regulations consistent with the statutory provisions, see section 270 [72 P.S. § 7270 (Supp. 1977-78)], it is clear that the instant prosecution arose out of a direct violation of the statutory provision rather than any rule,

[ 251 Pa. Super. Page 457]

    regulation or order of the department.*fn5 We conclude that the instant appeal is properly before this court and, therefore, must proceed to the merits of the case.

The indictment, approved May 13, 1975, charged that appellant, as owner of a business known as Boo Boo's, wilfully failed or refused to remit sales tax for the period between January and September of 1973. At trial, the lower court limited proof to the tax due during the first quarter of 1973 because the evidence established that appellant transferred ownership of the business on April 1, 1973. (NT 22). Under the terms of the statute, payment of the first quarter tax was due on or before April 30, 1973. The offense was therefore complete on May 1, 1973.

The Commonwealth contends, based on section 108(e) of the Crimes Code,*fn6 that the instant prosecution was commenced, and the statute of limitations was tolled, on April 1, 1975, the date that the warrant was issued. This contention is without merit.

The Crimes Code, which became effective on June 6, 1973, does not apply in this case. Section 2 of the Act of December 6, 1972, P.L. ...


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