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COMMONWEALTH PENNSYLVANIA v. JOHN O. KLINGER (12/01/87)

filed: December 1, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOHN O. KLINGER, APPELLANT



Appeal from Judgment of Sentence February 19, 1986, in the Court of Common Pleas of Dauphin County, Criminal No. 2395 C.D. 1984.

COUNSEL

David F. Dunn, Allentown, for appellant.

Andrea F. McKenna, Assistant District Attorney, Harrisburg, for Com., appellee.

Wieand, Olszewski and Tamilia, JJ. Wieand, J., concurs in the result. Tamilia, J., files a concurring statement.

Author: Olszewski

[ 369 Pa. Super. Page 529]

This is an appeal from the judgment of sentence imposed by the Court of Common Pleas of Dauphin County for appellant's failure to pay the state approximately $109,000 in taxes. For the reasons stated below, we affirm.

At the relevant time period, appellant, John O. Klinger, was president and, along with his wife, sole owner of Fuel Marketing Corporation. Acting on behalf of the corporation, appellant signed and filed an application for a dealeruser's license required by law to engage in the sale of fuels in this Commonwealth. See 72 P.S. § 2614.3. The corporation was assigned a license and commenced operating a truckstop known as the Bartonsville Truckstop. Thereafter, appellant sold fuels at said truckstop, collecting along with the price of the fuel, the amount of the fuel use tax and the oil company franchise tax imposed upon the sale of such fuels. See 72 P.S. § 2614.1 et seq. and 75 Pa.C.S. § 9501 et seq. Appellant fell behind in remitting those taxes to the state, however, and, following an audit by the Pennsylvania Department of Revenue, was arrested and charged on October 30, 1984, with four counts each of willful failure or refusal to timely pay the fuel use tax*fn1 and the oil company franchise tax*fn2 due for the months of

[ 369 Pa. Super. Page 530]

February, March, April and May of 1983. The taxes were allegedly due in connection with the sale of diesel fuel at appellant's truckstop.

Appellant filed an omnibus pretrial motion alleging that the relevant acts occurred in Monroe County and that, therefore, jurisdiction was proper in the Court of Common Pleas of Monroe County and not the Court of Common Pleas of Dauphin County. The motion was denied and appellant was tried by a jury and on August 9, 1985, convicted on all eight counts. Appellant filed timely post-verdict motions which the trial court denied in an opinion and order dated January 15, 1986.*fn3 Appellant was then sentenced on February 19, 1986 to six to twenty-three months imprisonment on each of the eight counts, the sentences to run concurrently. Appellant was also ordered to pay restitution to the Department in the amount of $109,546.00. Thereafter, appellant filed a timely motion to modify sentence and, on March 14, 1986, timely appealed to this Court.

Subsequently, on April 4, 1986, the trial court issued, in appellant's absence, an order entitled an "Order to Correct Sentence." The order changed appellant's sentence to concurrent prison terms of six to twelve months on each of seven counts and a consecutive term of eleven months probation on the remaining count. The restitution amount remained the same.

On appeal, appellant raises the following five issues: (1) whether the trial court improperly and prejudicially construed and applied the statutes under which appellant was convicted; (2) whether the trial court erred prejudicially in defining "willfulness" to the jury; (3) whether the charge to the jury was otherwise prejudicial and inadequate as a whole and in various particulars; (4) whether venue was prejudicially improper; and (5) whether the sentence was unlawful and an abuse of the trial court's discretion.

In connection with issue (1), appellant contends first, that the oil company franchise tax does not apply to the sale of

[ 369 Pa. Super. Page 531]

    diesel fuel and second, that he is not an actor who can be held criminally responsible under the statute imposing that tax. The oil company franchise tax is imposed under 75 Pa.C.S. § 9502(a), which provides in pertinent part:

Every oil company . . . doing business in this Commonwealth, shall pay an "oil company franchise tax for highway maintenance and construction" which shall be an excise tax of 60 mills upon each dollar of its petroleum revenues . . . .

At the time in question, the statute defined the term "petroleum revenue" in its definitions section, 75 Pa.C.S. § 9501, as:

All consideration derived from the first sale of petroleum products otherwise subject to liquid fuels taxes to wholesale or retail dealers in this Commonwealth for marketing and distribution or to a direct user . . . .*fn4

The term "petroleum products" was and is currently defined, also in 75 Pa.C.S. § 9501, as:

Any product of the industrial processing of crude oil and its fractionation products manufactured or refined or used for the generation of power used in an internal combustion engine for the generation of power to propel motor vehicles of any kind or character on the public highways. Petroleum products include but are not limited to gasoline, diesel fuel, kerosene, propane and any other product of crude oil used for such purpose. Petroleum products do not include any product used for residential heating purposes or in the generation of electricity by a public utility, rural electric association or municipality.

[ 369 Pa. Super. Page 532]

In arguing that this tax does not apply to the sale of diesel fuel, appellant focuses on the definition of petroleum revenue and its reference to petroleum products "otherwise subject to liquid fuels taxes." Appellant contends that the phrase "liquid fuels taxes" refers solely to the tax on liquid fuels as those fuels are defined in the Liquid Fuels Tax Act, 72 P.S. § 2611a et seq. That Act, appellant observes, excludes diesel fuel from the definition of "liquid fuels." See 72 P.S. § 2611b, 8th definition. According to appellant then, diesel fuel is not a petroleum product otherwise subject to liquid fuels taxes and, therefore, is not within the ambit of the statute imposing the oil company franchise tax. Appellant sets forth a number of arguments supporting this construction of the statute. After careful review, we conclude that appellant's interpretation and supporting arguments must be rejected.

In construing and interpreting statutes, our object is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). In ascertaining that intent, we may presume that the General Assembly intends the entire statute to be effective and certain. 1 Pa.C.S. § 1922. Indeed, we are to construe every statute, if possible, to give effect to all its provisions. 1 Pa.C.S. § 1921(a). Additionally, when the words of the statute are not explicit, we may ascertain legislative intent by considering matters beyond the words themselves. 1 Pa.C.S. § 1921(c).

Applying these principles to resolve appellant's first issue, we conclude that the General Assembly intended the oil company franchise tax to apply to the sale of diesel fuel. The Legislature imposed the tax upon an oil company's petroleum revenues, which it defined as all consideration derived from the first sale of petroleum products otherwise subject to liquid fuels taxes. Importantly, the Legislature specifically defined petroleum products as including diesel fuel used to propel motor vehicles on the public highways. 75 Pa.C.S. § 9501, 6th definition. ...


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