No. 1387 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal Division, at No. 77-10,783.
Ambrose R. Campana, Williamsport, for appellant.
Robert F. Banks, Assistant District Attorney, Williamsport, submitted a brief on behalf of Commonwealth, appellee.
Price,*fn* Wickersham and Lipez, JJ.
[ 314 Pa. Super. Page 235]
Following a non-jury trial commenced on December 15, 1977, appellant, John Albarano, was found guilty of two counts of violating section 353(b) of the Tax Reform Code of 1971.*fn1 ("Tax Reform Code"). Appellant's post-verdict motion in arrest of judgment was denied and, on June 18, 1979, appellant was sentenced to pay fines totaling $10,000 and to make restitution in the amount of $50,528.75. In this appeal from the judgment of sentence, appellant contends that prosecution of the charges of which he was convicted was barred by a two year statute of limitations. For the reasons stated herein, we disagree, and, accordingly, affirm the judgment of sentence.
The relevant facts are these. On June 22, 1977, a representative of the Personal Income Tax Bureau of the Pennsylvania Department of Revenue filed a criminal complaint charging appellant with multiple counts of tax evasion. The complaint averred that, in his capacity as president of Penn State Construction Company, Inc. and its successor, Albarano Building Company, appellant "[w]ilful[ly] fail[ed] to pay over to the PA Dept. of Rev. income taxes withheld from his employees for the following periods and amounts: Count I -- 1973 -- $33,170.80 -- Count II -- 1974 -- $17,357.95 -- Count III -- 1975 -- $4,929.08 -- Count IV -- 1976 -- $11,609.79 -- Count V -- 1-1-77 to 4-19-77 . . . ." (Supp. Record at 4b). On September 13, 1977, the District Attorney of Lycoming County filed an information charging appellant with eight counts of tax evasion for the years 1973, 1974, 1975 and 1976. Unlike the complaint, however, the information contained
[ 314 Pa. Super. Page 236]
no reference to appellant's position as president, director, and majority shareholder of the two companies. (Record at 13a-14a).
Appellant subsequently filed a motion to dismiss a portion of the information, contending that the two year statute of limitations created by the Act of March 31, 1860, P.L. 427, § 77, as amended, 19 P.S. § 211,*fn2 barred prosecution for tax evasion alleged to have occurred prior to June 22, 1975. The Commonwealth responded by filing an application to amend the information in which it proposed to preface each of the eight counts by alleging that appellant had evaded taxation "in his capacity as president, director and chief stockholder of Penn State Construction, Inc., a Pennsylvania corporation . . . ." (Supp. Record at 21b-24b). Appellant countered with a motion opposing amendment of the information. The matter was briefed and argued and, on November 4, 1977, the court below granted the Commonwealth's application to amend the information. Thereafter, on November 15, 1977, appellant's motion to dismiss a portion of the information was denied.
[ 314 Pa. Super. Page 237]
Appellant waived his right to trial by jury and, on December 15 and 16, 1977, he was tried before the Honorable Roy A. Gardner, specially presiding. On May 31, 1978, Judge Gardner filed an opinion in which he found appellant guilty on counts II and IV of the information, and not guilty on the six remaining counts.*fn3 Appellant filed a post-trial motion in arrest of judgment, claiming only that his conviction for tax evasion during 1973 and 1974 was contrary to law in view of the two year statute of limitations. The trial court denied the motion on November 21, 1978, and imposed sentence on June 18, 1979. This appeal ensued.
The Commonwealth's theory from the inception of this prosecution has been that appellant Albarano, by virtue of his position at Penn State Construction, was the statutorily designated "person" to collect, account for and pay over taxes withholdable from Penn State Construction, Inc. The six-year statute of limitations prescribed by the Act of 1878, June 12, P.L. 196, § 6, as amended, 19 P.S. § 213*fn4 ("section 213") is, therefore, applicable because ...