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COMMONWEALTH PENNSYLVANIA v. JOHN KIMBLE (01/06/84)

filed: January 6, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN KIMBLE, APPELLANT



No. 879 Philadelphia, 1981, Appeal from the Judgment of Sentence of March 24, 1981 in the Court of Common Pleas of Delaware County, Criminal Division, No. 8222-76

COUNSEL

Robert F. Pappano, Assistant Public Defender, Media, for appellant.

David Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.

Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley, Wieand and Popovich, JJ.

Author: Cercone

[ 323 Pa. Super. Page 502]

This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Delaware County on March 24, 1981 following appellant's conviction in a jury trial of Failure to File Tax Returns and Failure to Remit Tax Monies Collected.*fn1 In pressing the instant appeal, appellant advances several arguments, none of which we perceive as enjoying any merit. Consequently, we affirm the judgment of sentence.

Appellant, in his capacity as President and Treasurer of K.B.D.S. Associates, Inc. (hereafter "KBDS"), a manufacturing concern doing business in Drexel Hill, Delaware County, signed and filed a sales tax license application with the Sales and Use Tax Division of the Pennsylvania Department of Revenue (hereafter "Department of Revenue"). Upon the granting of that application, appellant assumed responsibility for the collection of sales tax on the products manufactured and sold by KBDS, the preparation of tax forms, the filing of tax returns, and the remitting of taxes collected to the Department of Revenue.

Appellant fulfilled his responsibilities to the Commonwealth until spring, 1975. During the "2A" quarter of that year (April and May), he failed to file a return or remit any taxes prior to the filing deadline of June 15. Moreover, appellant did not remit the taxes owed by KBDS for the "2B" quarter of 1975 (June), although he did file a return by the July 31 deadline.

As a result of these omissions, appellant's sales tax license was rescinded on August 31, 1975.*fn2 Although appellant was contacted on numerous occasions by agents of the Department of Revenue, and despite the fact that he received

[ 323 Pa. Super. Page 503]

    three notices of delinquency, the problem was not rectified. On December 21, 1976, a private criminal complaint was filed against appellant by Nathaniel Namerow, an agent of the Department of Revenue. A summons was issued the following day, December 22, 1976.

On January 25, 1977, appellant signed a bail recognizance in response to the complaint and summons, and a preliminary hearing was scheduled for February 1, 1977. That hearing, together with eleven subsequent hearings, was continued in order to allow appellant to obtain counsel and arrange for payment of his tax liabilities. Appellant later executed a promissory note and liquidated a portion of his debt to the Department of Revenue. One check submitted in partial satisfaction of the tax obligation was not honored due to insufficient funds.

Appellant then inquired if the complaint would be withdrawn if he paid the delinquencies, noting that he was experiencing some difficulty in erasing his liabilities since KBDS was failing as a commercial enterprise. The corporation later became involved in Chapter Eleven*fn3 bankruptcy proceedings in federal court. As a consequence, appellant asserted that he was unable to resolve his tax problems with the Commonwealth insofar as federal authorities had advised him that no payment on the Pennsylvania liability could occur until he had been discharged in the federal bankruptcy litigation.

After having been granted numerous continuances of his preliminary hearing, appellant failed to appear at the hearing scheduled for August 17, 1978. The district justice then issued a warrant for appellant's arrest which was executed on October 2, 1978. After the granting of yet another continuance, the preliminary hearing was conducted ...


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