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COMMONWEALTH PENNSYLVANIA v. MILTON STREET AND JOHN STREET (04/13/84)

decided: April 13, 1984.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, BUREAU OF SALES AND USE TAX, PETITIONER
v.
MILTON STREET AND JOHN STREET, T/A STREET'S FOOD SERVICE, RESPONDENTS



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania, Department of Revenue, Bureau of Sales and Use Tax v. Milton Street and John Street t/a Street's Food Service, No. 4744 August Term, 1976.

COUNSEL

A. Jay Molluso, Deputy Attorney General, Chief, Collections Section, with him, LeRoy S. Zimmerman, Attorney General, for petitioner.

Holly Maguigan, Kairys, Rudovsky & Maguigan, for respondents.

Judges MacPhail, Palladino and Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 81 Pa. Commw. Page 540]

The Department of Revenue, Bureau of Sales and Use Tax (Department) entered a tax lien in Philadelphia County on August 31, 1976, against Milton Street and John Street, t/a Streets Food Service*fn1 for sales

[ 81 Pa. Commw. Page 541]

    and use taxes allegedly due from January 1, 1970 to June 30, 1973.

In January of 1982, a certified copy of the tax lien was transmitted to the Prothonotary of Dauphin County and entered as a lien pursuant to the provisions of Section 242 of the Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7242. When the Department attempted to garnish the salary of Milton Street (Taxpayer)*fn2 pursuant to a writ of execution secured in Dauphin County, the Taxpayer filed a petition to open judgment in Philadelphia County and obtained a stay of the writ of execution in Dauphin County. Depositions were ordered following which the Court of Common Pleas of Philadelphia County entered an order purporting to open the judgment as to amount but not as to liability. The order further directed the Department to comply with Section 232 of the Code, 72 P.S. § 7232. The Department appealed from that order to this Court.

Although the court of common pleas and the litigants have proceeded in this matter as though a judgment had been obtained by the Department, in fact, the Department is the holder of a tax lien which it is

[ 81 Pa. Commw. Page 542]

    attempting to enforce. The court of common pleas may have been aware of this problem because in its opinion in support of its order it is stated that the "case at bar does not fit exactly into the default judgment line of cases." Indeed, we are of the opinion that the proper pleading for the Taxpayer to have filed would have been a petition to strike off the tax lien.

The court of common pleas rests its order upon the failure of the Department to comply with Section 232 of the Code, 72 P.S. § 7232 which requires the Department upon receipt of notice from a taxpayer of intention to file a petition for reassessment, to supply to the taxpayer within thirty days a statement setting forth in reasonable detail the basis for the tax assessment. The record discloses that the Taxpayer did notify the Department of his intention to file a petition for reassessment. The court of common pleas held that the ...


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