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COMMONWEALTH PENNSYLVANIA v. WILLIAM G. BOYLE (10/15/87)

decided: October 15, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WILLIAM G. BOYLE, APPELLEE



Appeal from the Order of the Superior Court Entered on November 22, 1985, at No. 369 Pittsburgh, 1985, Modifying the Order of the Court of Common Pleas of Crawford County, Criminal Division, Entered on February 25, 1985, at Criminal Action No. 1984-571. Pa. Superior Ct. , Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., did not participate in the decision of this case.

Author: Papadakos

[ 516 Pa. Page 107]

Opinion OF THE COURT

The instant appeal arises out of a criminal action instituted by the Commonwealth of Pennsylvania (Appellant) against William G. Boyle, an attorney, who is the owner and sole shareholder of Meadville Foods, Inc., doing business as Palace Fine Foods Restaurant in Crawford County. Boyle's residence and law practice are in Allegheny County. The Crawford County restaurant was run by a manager who collected applicable state sales taxes and deposited same in a corporate account in a Crawford County bank. The manager would forward the paperwork to Appellee, who would prepare the necessary returns himself, and mail or hand deliver the monies due to the Pennsylvania Department of Revenue in Harrisburg (Dauphin County), or the branch office in Pittsburgh (Allegheny County).

The funds collected between August, 1982, and October, 1983, were not remitted to the Commonwealth, nor were the required returns filed for that period. Boyle was charged with wilfully failing to file returns and failing to remit taxes in violation of the Tax Reform Code of 1971, § 268(b). 72 Pa.C.S. § 7268(b).*fn1 A twenty-eight count criminal information

[ 516 Pa. Page 108]

    was filed against Boyle in Crawford County. He subsequently filed an omnibus pre-trial motion challenging, inter alia, the jurisdiction of the Crawford County Court of Common Pleas over these offenses and sought dismissal of the information. The motion was denied by Order of the Court of Common Pleas of Crawford County dated February 25, 1985. Boyle then petitioned that court to amend its order to include a certification pursuant to 42 Pa.C.S. § 702(b),*fn2 so that he could seek leave to appeal this interlocutory order by permission. By March 1, 1985, the court had not granted the petition to include the statement prescribed by 42 Pa.C.S. § 702(b) in its order of February 25, 1985.*fn3 Boyle then filed a Petition for Review with the Superior Court from the order denying pre-trial relief alleging that the Superior Court has exclusive jurisdiction over the matter pursuant to the authority granted by 42 Pa.C.S. §§ 702 and 742.

The Superior Court granted the Petition for Review "as to the venue issue only" by a per curiam order dated March 20, 1985. Thereafter, the merits of the venue issue were briefed and argued. By opinion and order dated November 22, 1985, the Superior Court held that the Crawford County Court of Common Pleas lacked subject matter jurisdiction and reversed the denial of Appellee's pretrial motion.*fn4

[ 516 Pa. Page 109]

The Commonwealth sought allowance of appeal from the Superior Court's order, which we granted on October 16, 1986, because the question of jurisdiction involved is one of first impression and one which will have applicability to other prosecutions. We were also concerned about the issue of whether the Superior Court had jurisdiction to consider the Petition for Review in light of the trial court's refusal to amend its order to include a certification pursuant to 42 Pa.C.S. § 702(b). We directed that the parties brief and argue the issue of whether the Superior Court had jurisdiction to decide the underlying issue presented by the Petition for Review in light of the procedural posture of the instant matter. In reviewing the decision of the Superior Court, we must consider the threshold question of whether that court had jurisdiction to entertain and decide an appeal from an interlocutory order entered by the Court of Common Pleas, where that court refused to certify that ". . . such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter . . .", as required by 42 Pa.C.S. § 702(b).

Appellant contends that a certification by the trial court which entered the interlocutory order is a jurisdictional prerequisite to the Superior Court's obtaining jurisdiction to permit an appeal from an interlocutory order. Further, absent such a certification, the Superior Court has no jurisdiction to hear and decide the merits of the controversy underlying the interlocutory order. Appellant concludes that the Superior Court order modifying the order of Common Pleas is, therefore, a nullity. Appellee, on the other hand, argues that the failure or refusal of the trial court to certify its order is not fatal to the exercise of appellate jurisdiction by the Superior Court in this instance. We agree.

It is well established that the Superior Court has subject matter jurisdiction to hear and determine appeals from final orders of the courts of common pleas in criminal cases. 42

[ 516 Pa. Page 110]

Pa.C.S. § 742, Pa.R.A.P. 341(a). Interlocutory orders of the lower courts may also be heard by permission if the lower court certifies that its order involves a controlling question of law on which there is substantial ground for a difference of opinion and an immediate appeal from the order would materially advance the ultimate termination of the matter. 42 Pa.C.S. § 702(b); Pa.R.A.P. 312. However, where the trial court refuses to certify an interlocutory order, the accepted procedure*fn5 for requesting appellate review of an uncertified, interlocutory order is by the filing of a Petition for Review, directed to the appellate court which would ultimately have jurisdiction if a final order were entered in the matter. The purpose of a Petition for Review in such cases is to test the discretion of the trial court in refusing to certify its order for purposes of appeal. Toll v. Toll, 498 Pa. 536, 448 A.2d 1379 (1982), ...


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