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decided: March 28, 1984.


Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Commonwealth of Pennsylvania v. Wilsbach Distributors, Inc., Nos. 777 and 778 C.D. 1982.


Ronald M. Lucas, with him Norman P. Hetrick and Karen L. Hackman, Tive, Hetrick & Pierce, P.C., for appellant.

Judith Brown Schimmel, with her, Nathan H. Waters, Jr., for appellee.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Barry.

Author: Barry

[ 81 Pa. Commw. Page 246]

Appellant, Wilsbach Distributors, Inc., was found guilty of failing to pay its City of Harrisburg business privilege and mercantile tax for the years 1979 and 1980. Appellant was sentenced to pay fines of $200.00 plus the costs of prosecution. Additionally, appellant was ordered to pay its delinquent taxes plus penalties for the two years in question. This appeal followed.*fn1

Appellant, an importing distributor of malt and brewed beverages, is licensed by the Commonwealth pursuant to Section 439 of the Liquor Code.*fn2 Accordingly, appellant annually pays a license fee of $900.00 plus a filing fee of twenty dollars ($20.00) to the Liquor Control Board. Furthermore, appellant is required to pay an annual fee of two dollars ($2.00) for vehicle identification cards for each vehicle used to transport malt and brewed beverages. Appellant paid the $920.00 for the license and filing fee in both 1979 and 1980. Furthermore, appellant paid twenty-six dollars ($26.00) for vehicle identification cards in 1979 and thirty-two dollars ($32.00) for the same purpose in 1980.

Pursuant to the Local Tax Enabling Act,*fn3 the City of Harrisburg (City), on December 12, 1978, enacted its Business Privilege and Mercantile Tax Ordinance. As applied to appellant, the tax rate was set at one and one-half mills per $1,000.00 of gross volume of business conducted within the territorial limits of the City, subject to a maximum tax of $3,000.00.

Appellant does not dispute that it failed to pay the Business Privilege and Mercantile Tax for the years

[ 81 Pa. Commw. Page 247]

    in question. It claims, however, that for reasons which will be fully described later, it is exempt from the payment of said tax to the City.

On October 13, 1981, appellant was served with citations for failing to pay the City tax in both 1979 and 1980. A hearing was held before a district justice and on March 30, 1982, appellant was notified that it had been found guilty. Appellant filed a timely notice of appeal and sought a trial de novo in the Court of Common Pleas of Dauphin County. Pa. R. Crim. P. No. 67(f) (Rule 67).

Prior to the trial de novo, appellant and the City entered into a stipulation of facts and agreed that if appellant had filed City tax returns for the years in question, appellant would have owed $1,522.48 in 1979 and $1,685.00 in 1980, exclusive of any penalties due for late payment. The parties also stipulated that other facts concerning the procedural history of this case were true. After an evidentiary hearing the court en banc, by opinion and order of September 30, 1982, held that appellant was not exempt from paying the tax and, therefore, was guilty of the summary offenses charged. By the same order, the sentence as previously described was imposed and this timely appeal followed.

Presently, appellant raises three issues. Appellant first argues that the Commonwealth, by enacting comprehensive legislation regulating the liquor industry, has pre-empted the entire field and the City is, therefore, prohibited from taxing appellant's malt and brewed beverage business. Second, appellant argues that the Local Tax Enabling Act prohibits the City from imposing its tax on appellant, as the Commonwealth has already placed a tax and/or license fee on the same subject matter. Finally, appellant claims that the trial court erred in including the payment of

[ 81 Pa. Commw. Page 248]

    back taxes and penalties in a sentence imposed pursuant to criminal convictions for summary offenses of failure to file and pay the tax in question.

Before proceeding to the merits of this controversy, we must first dispose of an important procedural matter, i.e., whether appellant has failed to file any necessary written post-verdict motions in this case. In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), the Supreme Court condemned the practice of failing to file specific written post-verdict motions in compliance with Pa. R. Crim. P. 1123(a) (Rule 1123). For a period of time, the Court recognized various exceptions which allowed non-compliance with Rule 1123(a) to preserve issues for appellate review. In Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), the Court held that literal compliance with Rule 1123(a) would be required for all post-verdict motions filed after September 4, 1979, and failure to comply would result in a waiver of those issues not specifically included.

Despite the mandate of the Supreme Court, confusion existed in the area of appeals to the court of common pleas from convictions by a district justice for summary offenses. In Commonwealth v. Koch, 288 Pa. Superior Ct. 290, 293, 431 A.2d 1052, 1054 (1981), the court succinctly stated, "Rule 67 which establishes the procedure for perfecting an 'appeal' to the Court of Common Pleas for a trial de novo is, in reality, a retrial of the case as if the prior summary proceeding had not occurred." (Footnote omitted.) Furthermore, "once an appeal is taken to the Court of Common Pleas, . . . all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable." Id. at 294, 431 A.2d at 1054. (Footnote omitted.)

[ 81 Pa. Commw. Page 249]

Rule 1123(c) provides:

Upon finding of guilt, the trial judge shall advise the defendant on the record :

(1) of the right to file post-verdict motions and the right to assistance of counsel in the filing of such motions and on ...

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