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COMMONWEALTH PENNSYLVANIA v. N. BARSKY AND SONS (01/26/78)

decided: January 26, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
N. BARSKY AND SONS, APPELLANT



COUNSEL

Kollas & Costopoulos, William C. Kollas, Lemoyne, for appellant.

Paul S. Roeder, Harrisburg, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring opinion in which Nix, J., joined. Pomeroy, J., dissents. Jones, former C. J., did not participate in the decision of this case.

Author: Roberts

[ 476 Pa. Page 15]

OPINION

Appellant N. Barsky & Sons [Barsky] is disputing a Sales and Use Tax assessment made by the Commonwealth. This

[ 476 Pa. Page 16]

    liability is covered by a lien of $579,000 filed against appellant by the Commonwealth pursuant to the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 45, § 277, 72 P.S. § 7277 (Supp.1977). Barsky appealed the administrative determination imposing the assessment to the Commonwealth Court under 72 P.S. § 7255. The Commonwealth Court ordered appellant to file an additional $200,000 bond as a condition of prosecuting the appeal, relying upon the Fiscal Code, Act of April 9, 1929, P.L. 343, § 1104(b), as amended, 72 P.S. § 1104(b) (Supp.1977). Section 1104(b) provides:

"Except when all tax, interest and penalty due with respect to the appeal has been paid, the party appealing, other than the Commonwealth, shall enter sufficient security, before the Commonwealth Court within sixty (60) days next after the filing of the appeal to prosecute the appeal with effect, to pay all costs and charges which the court shall award, and any sum of money which shall appear by the judgment of the court to be due by such party to the Commonwealth."

Barsky appealed to this Court the order requiring bond, asking that it be allowed to pursue the appeal in the Commonwealth Court upon the posting of nominal bond.*fn1

We hold that Barsky may pursue its appeal upon posting of nominal bond, but that nominal bond should not stay execution of the Commonwealth's lien.*fn2

We recognized the burdensome nature of this appeal bond requirement in Commonwealth v. Philadelphia Eagles, Inc., 437 Pa. 25, 29, 261 A.2d 309, 311 (1970). We should therefore ...


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