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ERNEST RENDA CONTRACTING CO. v. COMMONWEALTH PENNSYLVANIA (08/29/85)

decided: August 29, 1985.

ERNEST RENDA CONTRACTING CO., INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeals from the Orders of the Board of Finance and Revenue in cases of In Re: Ernest Renda Contracting Co., Inc., Docket No. RST-3224; in case of In Re: Ernest Renda Construction Company, Inc., Docket No. RST-5399, and in case of In Re: Ernest Renda Construction Company, Inc., Docket No. RST-1607.

COUNSEL

Keith A. Hunter, for petitioner.

Robert P. Coyne, Deputy Attorney General, with him, James L. Nelligna, Deputy Secretary of Revenue for Taxation, for respondent.

Judge MacPhail. Opinion by Judge MacPhail.

Author: Macphail

[ 92 Pa. Commw. Page 428]

Ernest Renda Contracting Co., Inc. (Petitioner) has appealed from orders of the Board of Finance and Revenue (Board) upholding assessments made against it by the Department of Revenue (Department). An evidentiary hearing has been held by this Court with respect to those appeals, but no decision has been reached on the merits thereof. The Department meanwhile has taken steps to execute upon liens it has entered against Petitioner with respect to the assessments now on appeal.

Petitioner has filed an application with this Court requesting that we enjoin the Department from proceeding with execution on the liens, that we reduce the bond amount required by Pa. R.A.P. 1782 and that we permit Petitioner to substitute a letter of credit for the bond required by the Rule.*fn1 We entered an order fixing a time for hearing on this application. The only evidence presented at the hearing held pursuant to the order was the Department's settlement computation with respect to Petitioner's tax returns. Although Petitioner argued that his client was unable to file a bond, we have no evidence in support of that allegation nor do we have any evidence which would enable us to consider reducing the amount of the bond under the

[ 92 Pa. Commw. Page 429]

    provisions of the Rule or to accept a letter of credit in lieu of a bond.

We are thus limited in our consideration of the present application to the issue of whether Pa. R.A.P. 1782 is unconstitutional. Petitioner contends that the Rule violates its due process rights and Article V, Section 9 of the Constitution of Pennsylvania.

Article V, Section 9 of the Constitution of Pennsylvania provides that there shall be a right of appeal (1) from a court not of record to a court of record; (2) from an administrative agency to a court of record or an appellate court; and (3) from a court to an appellate court. Petitioner argues that this is an absolute right which may not be encumbered by the requirement of a bond. While we might agree with Petitioner that as a general rule*fn2 the contention is correct, we must respectfully point out that the bond required by Pa. R.A.P. 1782 does not, indeed has not, prevented Petitioner from perfecting its appeal. That appeal, as we have noted, is on-going.

What is now at issue is whether or not the Commonwealth can proceed to execution on a lien where Petitioner has failed to file a bond. This is a very different matter. Indeed, in the very case cited by Petitioner in support of its argument, Commonwealth v. N. Barsky & Sons, 476 Pa. 13, 381 A.2d 842 (1978), our Supreme Court ...


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