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COMMONWEALTH PENNSYLVANIA v. FLAMING ANGUS (02/29/84)

decided: February 29, 1984.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, APPELLANT
v.
FLAMING ANGUS, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania v. Flaming Angus, Inc., No. 1629 November Term, 1979.

COUNSEL

Prince Altee Thomas, Deputy Attorney General, with him LeRoy S. Zimmerman, Attorney General, for appellant.

David L. Creskoff, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for appellee.

Judges Craig, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 80 Pa. Commw. Page 505]

The Commonwealth of Pennsylvania, Department of Revenue (Department) brings this appeal from an order of the Court of Common Pleas of Philadelphia County which stayed proceedings in execution on a tax lien against the property of Appellee, Flaming Angus, Inc.

Flaming Angus, Inc. (Angus) was engaged in the retail restaurant business in the City of Philadelphia and in the course of that business collected sales taxes and incurred a liability for those taxes to the Commonwealth. In July of 1978, Angus entered into an agreement of sale with Pammco-Dewey's, Inc. (Dewey's) for the purchase of all Angus' assets. The agreement

[ 80 Pa. Commw. Page 506]

    specified that Dewey's assumed the responsibility for the tax liability to the Commonwealth.

On November 14, 1979, the Secretary of Revenue caused a tax lien to be filed against Angus and on August 20, 1981, issued a writ of execution on the lien against certain Angus property. On October 2, 1981, the court of common pleas issued a stay of proceedings because of defects in the execution documents.*fn1 A further writ of execution was filed and on December 2, 1981, the court issued a rule upon the Commonwealth to show cause why the scheduled tax sale should not be stayed. Following a hearing, the court of common pleas issued an order on April 19, 1982, which is the order appealed here.

The order of the court of common pleas provided for a stay of proceedings in execution on the condition that Angus pay into an interest bearing escrow account the sum of $21,125.41, a sum equal to the tax liability to the Commonwealth. The order provided that on April 6, 1983, the aforesaid sum plus six percent interest would be released to the Commonwealth unless Angus had, before that date, satisfied its debt.

The parties appeared before this Court on December 7, 1983, and argued the merits of the court of common pleas' discretion to stay the execution on the lien under the circumstances presented by this case. We believe, however, that the passage of the April 6, 1983, deadline in the court of common pleas' order renders moot any question of its discretion to issue that order. Although it appears that the sum held in escrow has not yet been released to the ...


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