Appeal from the Order of the Court of Common Pleas of Delaware County, in the case of Commonwealth of Pennsylvania, Department of Revenue, Bureau of Sales and Use Tax, No. 86-5962.
John R. Kell, for appellant.
Mark O. Prenatt, Deputy Attorney General, for appellee.
President Judge Crumlish, Jr., and Judges Craig, Barry, Colins, Palladino, McGinley and Smith. Opinion by Judge Barry. Dissenting Opinion by Judge Colins.
[ 125 Pa. Commw. Page 328]
Peter Bradley appeals an order of the Court of Common Pleas of Delaware County which denied his petition to strike a tax lien entered by the Commonwealth of Pennsylvania, Department of Revenue, Bureau of Sales and Use Tax (Bureau).
Bradley and Patrick McKelvey entered into a partnership agreement to start a business, known as Different Spokes, which made retail sales of bicycles to the general public. A partnership agreement was executed. Bradley
[ 125 Pa. Commw. Page 329]
was a limited partner investing $18,000.00 from his life savings earned as a school teacher. McKelvey was named as a general partner. In 1986, McKelvey defaulted on an installment payment due to Bradley. Bradley went to the business location and allegedly discovered that McKelvey had fraudulently operated Different Spokes and converted the assets to his own use. During a title search, Bradley also discovered that the Bureau had imposed a lien on his property in the amount of $27,974.21 for delinquent sales taxes and interest incurred by the bicycle business. Bradley petitioned the trial court to strike the lien alleging that he never received notice from the Bureau that Different Spokes was delinquent in paying its taxes or that the lien was entered against his property. The trial court limited its inquiry to the question whether Bradley had received notice. Bradley testified that he was a limited partner, that he lent McKelvey $18,000.00 dollars and that Different Spokes was operated only by McKelvey. The appellant offered no testimony to prove that a limited partnership had been filed with the Department of State as required by the Uniform Partnership Act, 59 Pa. C.S. § 512. Both Bradley and the Bureau identified the Application for Sales, Use and Motel Occupancy License which listed the principle place of business of Different Spokes as 1101 Lincoln Avenue, Prospect Park, Pennsylvania. On the application Bradley is named as a limited partner and McKelvey as a general partner. Bradley testified that McKelvey submitted this form without his knowledge. The Bureau presented evidence of the delinquency assessment and that the notice of this assessment had been sent to 1101 Lincoln Avenue. The trial court found as a fact that the notice was sent and received by Different Spokes at 1101 Lincoln Avenue. Based on this finding, the trial court opined that the Bureau's mailing of the notice to the business was sufficient
[ 125 Pa. Commw. Page 330]
notice to bind Bradley as the limited partner. Bradley appeals this decision.
Bradley argues that the trial court erred in determining that he was given proper notice of the lien and of the delinquent tax. He contends that the Bureau's failure to personally serve him with notice violates his due process rights. Bradley argues that as a limited partner, he may not be bound by the fraudulent acts of the ...