Commonwealth v. Boyle

500 A.2d 1221, 347 Pa. Super. 602, 1985 Pa. Super. LEXIS 10102

• Court: Supreme Court of Pennsylvania
• Decided: November 22, 1985
• Docket: 00369
• Status: Published

Opinions

CIRILLO, Judge:

Appellant William G. Boyle, an attorney, is owner and sole stockholder of Meadville Foods, Inc., doing business as Palace Fine Foods Restaurant in Crawford County. His residence and law practice is in Allegheny County. The Crawford County restaurant was run by a manager who, in turn, forwarded all paperwork, including sales tax information, to appellant in Allegheny County. Upon receipt of the sales tax data, appellant would prepare the necessary returns himself and would 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). No returns were allegedly filed or taxes paid for the period between August, 1982 and October, 1983. Appellant was charged in Crawford County with failing to file sales tax returns and make sales tax payments to the Commonwealth in violation of the Tax Reform Code of 1971, 72 Pa.C.S.A. § 7268(b). He subsequently filed a pre-trial motion challenging the jurisdiction of the Crawford County Court of Common Pleas. The motion was denied and an interlocutory appeal was permitted to allow this Court to make the jurisdictional determination.

The sole issue raised in this appeal is whether Crawford County Court of Common Pleas has proper subject matter jurisdiction in this criminal action. We hold it does not and therefore reverse the denial of the pre-trial motion.

The filing of tax returns is governed by 72 Pa.C.S.A. Sections 7219 and 7224 which direct filing to be made at the main office or at any branch office of the Department of Revenue. The importance of knowing where filing was to occur, becomes significant where, as here, we must establish the locus of the alleged criminal conduct. When the locus of the criminal act is discovered, jurisdiction is proper in that district. Pa.R.Crim.P. 21 provides: “All criminal proceedings shall be brought before the issuing authority for the magisterial district where the offense is alleged to have occurred ...” (emphasis added). Each offense has its own situs. Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983); Commonwealth v. Bertels, 260 Pa.Super. 496, 394 A.2d 1036 (1978). Article III Section 2 and the Sixth Amendment of the United States Constitution fix venue “(i)n the state” and “district wherein the crime shall have been committed.” See e.g., Johnson v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1955).

Where, as here, the crime charged is a failure to perform a legally imposed act, the place designated for its execution determines the situs of the crime. Johnston v. United States, supra. Difficulties arise when the acts of the defendant which constitute the violation consist merely of omitting to do something which "is required. United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946).

In the case at bar, appellant is charged with failing to file the returns and make sales tax payments to the Commonwealth. The duty imposed by the Tax Reform Code of 1971, 72 Pa.C.S.A. § 7268(b) requires filing to be made at specific locations throughout the Commonwealth. Liability for failure to file can arise only where specified by the statute. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1915).

Appellant did collect the sales tax monies in Crawford County, however, filing of the returns could not be accomplished in that County since no branch office of the Department of Revenue is located there. In order for Crawford County to claim jurisdiction for the crime, an essential element of the offense must have been committed in that district. See e.g., Commonwealth v. Bertels, supra. The acts performed must be criminal in nature and not merely incidental thereto. Commonwealth v. Herriott, 265 Pa.Super. 143, 401 A.2d 841 (1979).

Here, the only essential element of the crime charged is the failure to file the required tax returns at the designated locations. In order for appellant to comply with the filing requirements, filing could have been made in Harrisburg, the main office for the Department of Revenue, or any one of the other branch offices. No such branch office is located in Crawford County. Crawford County could not therefore be a regular or customary location for the filing and remitting of appellant’s tax returns. Hence, performance being impossible in Crawford County, non-performance there cannot support a finding of proper venue.

Case remanded, jurisdiction relinquished, venue to be determined consistent with this opinion.

WIEAND, J., files a dissenting opinion.