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CITY PHILADELPHIA v. A.B.C. EXPRESS COMPANY ET AL. RICHARD RUEDA (07/17/84)

decided: July 17, 1984.

CITY OF PHILADELPHIA
v.
A.B.C. EXPRESS COMPANY ET AL. RICHARD RUEDA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of City of Philadelphia v. A.B.C. Express Company, Sidney Forstater, Richard Rueda and Robert M. Taddei, No. 79-1908.

COUNSEL

Jeffrey Meyers, with him, John F. X. Fenerty, Charleston & Fenerty, P.C., for appellant.

Vanessa J. Lawrence, Assistant City Solicitor, with her, Mark A. Aronchick, City Solicitor, for appellee.

Judges Williams, Jr., MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 84 Pa. Commw. Page 2]

Richard Rueda (Appellant) appeals from the order of the Court of Common Pleas of Montgomery County which enjoined Appellant from transferring his assets until he paid wage taxes, interest and penalties*fn1 owed to the City of Philadelphia (Appellee).

On February 7, 1979, Appellee filed a complaint in equity against A.B.C. Express Company (Company) and its officers, Sidney Forstater, Robert M. Taddei and Appellant, requesting that the common pleas court 1) enjoin the officers from transferring their assets; 2) decree the officers as trustees ex maleficio of wage taxes owed to Appellee and unpaid by the Company; and 3) order the officers to pay taxes owed to Appellee.*fn2

When the case was called for trial, counsel for the Appellee offered the pleadings into evidence and rested. Appellant's evidence consisted of his deposition and brief oral testimony in his own behalf. The trial court thereafter filed its adjudication, finding, inter alia, the following fact which is the crucial issue in the instant appeal to this Court:

8. The City of Philadelphia mailed notice of the assessment of Wage Taxes to defendant Rueda on or about November 27, 1972.

[ 84 Pa. Commw. Page 3]

Based upon its findings of fact, the trial court concluded that Appellant as an officer of the Company was personally responsible as trustee ex maleficio for wage taxes withheld by the Company and since he failed to pursue his administrative remedy of appealing the tax assessment to the Tax Review Board of the City of Philadelphia, he was precluded from raising any defenses to that assessment in the Appellee's equity suit in the trial court. That court, en banc, dismissed the Appellant's exception to the chancellor's decree nisi. The appeal to this Court from that order followed.

It has been Appellant's contention throughout the case that he never received notice of the assessment, therefore, he could not have appealed to the Tax Review Board and should not be held liable for the taxes in dispute.

The only evidence offered by the Appellee that it sent the tax assessment notice to Appellant was its allegation in the ...


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