author: CAVANAUGH, Judge:

text:
    535 A.2d 658
    Teresa J. MOWERY, Appellant, v. PRUDENTIAL PROPERTY & CASUALTY INS. CO., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1987.
    Filed Jan. 4, 1988.
    Petition for Allowance of Appeal Denied May 13,1988.

      Hubert X. Gilroy, Carlisle, for appellant.
    Jeffrey B. Rettig, Harrisburg, for appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether § 1714 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1714, is constitutional. § 1714 provides:

§ 1714. Ineligible claimants
An owner of a currently registered motor vehicle who does not have financial responsibility or an operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle, motorized pedal-cycle or like type vehicle required to be registered under this title cannot recover first party benefits.

The factual situation is not complex and the parties have stipulated to the facts. Teresa J. Mowery, the appellant and plaintiff below, was the registered owner of a 1976 Chevrolet Malibu passenger car which was not insured. On March 23, 1986 the appellant was a passenger in a vehicle operated by John Calaman which was involved in an accident with a vehicle operated by Richard Scott. Mr. Scott died as a result of the accident and Mr. Calaman and the appellant were injured. The appellant incurred medical bills and lost wages as a result of the accident. She submitted a claim under 75 Pa.C.S.A. § 1713(a)(3) against the appellee, Prudential Property & Casualty Insurance Company, which insured Mr. Calaman. The claim was for first party benefits consisting of medical bills and work loss. The appellee denied benefits under 75 Pa. § 1714 on the grounds that the appellant was the owner of a registered vehicle who did not have financial responsibility as defined by the Act.

Mowery filed a complaint for declaratory judgment in the court below requesting that § 1714 of the Motor Vehicle Financial Responsibility Act be declared unconstitutional as applied to her. Prudential filed an Answer and New Matter. Subsequently, the appellant filed a motion for summary judgment which was denied and by order of January 13, 1987 the court below by Bayley, J. decided that § 1714 was constitutional. It further denied the appellant’s Motion for Summary Judgment and entered summary judgment in favor of Prudential. In a proper case, summary judgment may be entered in favor of a non-moving party. Port Authority of Allegheny County v. Flaherty, 6 Pa.Cmwlth. 135, 293 A.2d 152 (1972); Nationwide Mutual Insurance Co. v. DiTomo, 330 Pa.Super. 117, 478 A.2d 1381 (1984). This appeal followed.

Lawfully enacted statutes are presumed to be constitutional. Patton v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985). One who challenges the constitutionality of an act, must demonstrate that the statute clearly violates the Constitution. Cox Estate, 327 Pa.Super. 479, 476 A.2d 367 (1984); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963). All doubts are resolved in favor of sustaining legislation. Staino v. Commonwealth, Pennsylvania State Horse Racing Commission, 98 Pa.Cmwlth. 461, 512 A.2d 75 (1986). With these precepts in mind, we shall consider the challenge to § 1714 which was based on an alleged denial of equal protection of the laws under the Fourteenth Amendment of the United States Constitution.

The appellant claims that she was denied equal protection of the laws as the statute rendered her ineligible to collect first party benefits because she was the owner of a registered vehicle without financial responsibility, even though the vehicle was in no way involved in the accident. The concept of equal protection of the law requires that uniform treatment be given to persons who are similarly situated, and if there are classifications drawn, as in this case, as failure to have financial responsibility will exclude a person from benefits under the Act in certain circumstances, then the challenged provisions must be reasonably justified. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147, 155 (1981).

In challenging the classification as unconstitutional as violative of equal protection, our Supreme Court has ruled that there are three different types of classifications calling for three different standards of judicial review. James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 477 A.2d 1302 (1984). The Supreme Court stated at 505 Pa. 145, 477 A.2d 1305-6:

The first type — classifications implicating neither suspect classes nor fundamental rights — will be sustained if it meets a “rational basis” test. Singer v. Sheppard [464 Pa. 387, 346 A.2d 897 (1975)], Id. In the second type of cases, where a suspect classification has been made or a fundamental right has been burdened, another standard of review is applied: that of strict scrutiny. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Finally, in the third type of cases, if “important,” though not fundamental rights are affected by the classification, or if “sensitive,” though not fundamental rights are affected by the classification, or if “sensitive” classifications have been made, the United States Supreme Court has employed what may be called an intermediate standard of review, or a heightened standard of review. U.S. Dept, of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767, 775 (1973) (concurring opinion of Mr. Justice Marshall), citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). There are, in summary, three standards of review applicable to an equal protection case, and the applicability of one rather than another will depend upon the type of right which is affected by the classification.
At the outset, then, we must determine what type of right the present classification affects (“fundamental rights,” “important rights,” or rights which are neither “fundamental” nor “important”); whether the classification is suspect or involves a sensitive area; the state purpose in making the classification; and what type of relationship there is between the classification and the purpose of the classification.

In Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 (1986) the Supreme Court summarized the three types of classifications as (1) classifications which implicate a suspect class or a fundamental right; (2) classifications implicating an “important”, though not a fundamental right or a “sensitive” classification and (3) classifications which involve none of these. The court went on to state at 512 Pa. 138, 516 A.2d 311:

Should the statutory classification in question fall into the first category, the statute is strictly construed in light of a “compelling” governmental purpose; if the classification falls into the second category, a heightened standard of scrutiny is applied to an “important” governmental purpose; and if the statutory scheme falls into the third category, the statute is upheld if there is any rational basis for the classification.

In Smith v. City of Philadelphia, supra, the Supreme Court upheld the constitutionality of Section 8553 of the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8553, which limits recovery of damages against political subdivisions of the Commonwealth to $500,000 in the aggregate for legally cognizable tort injuries arising from the same transaction. The court held that the right to full recovery in cases brought against the Commonwealth is not a fundamental right and therefore strict scrutiny is not required. However, the right to full recovery is an important right requiring a heightened scrutiny of the validity of the classification statute. It was held that Section 8553 passes constitutional muster under the intermediate or heightened standard of review. The classifying statute was valid as the state has an important interest, the preservation of the public treasury against unusually large awards in tort. It was held that this important interest is very closely related to the classification established by the statutory scheme.

In James v. Southeastern Pennsylvania Transportation Authority, supra, the court applied the intermediate standard of review in upholding the constitutionality of Section 2036 of the Metropolitan Transportation Authorities Act, then in effect, which imposed a requirement of giving notice to a governmental unit within six months from the date of an injury or the date of the accrual of the cause of action. The Supreme Court held that the statute in question was subject to a heightened scrutiny as an important right was involved, access to the courts to sue the Commonwealth, where it has consented to be sued. The purpose of the notice requirement is to provide the government with the opportunity to make timely investigations and avoid stale and fraudulent claims. The court held that there was an important governmental purpose served by the notice requirement and that the classification was so narrowly drawn as to be closely fitted to the statutory purpose.

In the case before us, the appellant concedes that entitlement to first party benefits under the Motor Vehicle Financial Responsibility Law is not a fundamental right and therefore the statute need not be strictly construed in light of governmental purpose. However, she contends that § 1714 is subject to a heightened standard of scrutiny, whereas the court below applied the lowest standard or “rational basis” test. We agree with the trial court that the “rational basis” test is appropriate. The Motor Vehicle Financial Responsibility Law is a statute which provides for entitlement to economic benefits relating to losses incurred as the result of motor vehicle usage. It does not limit access to the courts by requiring prompt notice of an accident as in Smith v. City of Philadelphia, supra, nor does it impose a cap on the amount of recovery in a tort action as in James v. Southeastern Pennsylvania Transportation Authority, supra.

In the instant case, the appellant’s access to the courts is in no way imperiled and she is free to pursue any claim that she might have in a civil action. In fact, the threshold of damages that existed under the No-Fault Act has now been abolished. That we should apply the less stringent “rational basis test” is illustrated by Norris v. Wood, 336 Pa.Super.Ct. 305, 485 A.2d 817 (1984), which considered an uninsured motorist’s equal protection challenge to a provision of the No-Fault Act which provided that the Pennsylvania Assigned Claims Plan had a right to recover from an uninsured owner any money it paid to persons injured in an accident involving the uninsured owner’s automobile. The No-Fault Act also provided that if the Assigned Claims Plan was not reimbursed by the uninsured motorist, then the uninsured motorist’s motor vehicle registration and operator’s license could be suspended. The Court held that the statutory provision satisfied the equal protection clause under the rational basis test.

In Wallace v. Commonwealth, Unemployment Compensation Board of Review, 38 Pa.Cmwlth.Ct. 342, 393 A.2d 43 (1978), the Commonwealth Court applied the rational basis test in the context of economic benefits statutes to classifications that operated to terminate unemployment benefits. Similarly, in City of Philadelphia, Board of Pensions and Retirement v. Bordley, 84 Pa.Cmwlth.Ct. 645, 481 A.2d 690 (1984), the court upheld a classification which terminated a widow’s pension benefits.

Cox Estate, supra, involved a constitutional challenge based on equal protection to the classification of persons entitled to take under the intestate provisions of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 2103. The court again applied the rational basis test and stated at 327 Pa.Super. at 487, 476 A.2d at 371: “This deferential standard mandates only that the statutory classification be ‘reasonable’ and ‘rest upon a difference having a fair and substantial relation to the object of the legislation.’ ”

The Act provided, in effect, that in the event of an intestacy, any relative of the decedent more distant than a first cousin would be excluded as a beneficiary and the estate would escheat to the Commonwealth. The goal to be achieved by limiting beneficiaries was to assure that the estate of one who died without a will is distributed in an orderly and efficient manner. This goal is achieved by a statute which limited relatives able to take by intestacy to those who share a common ancestor no more remote than the grandparent of the deceased. The interest of a relative in inheriting the estate, or part thereof, of a deceased relative who dies intestate, is at least of equal importance to the receipt of first party benefits under the Motor Vehicle Financial Responsibility Law. The court below properly applied the less stringent test in determining constitutionality.

“Where a legitimate purpose has been established and a rational relationship between that purpose and the means chosen to foster it has been established, our inquiry whether the statute violates the equal protection clause is at an end.” Cox Estate, 327 Pa.Super. at 489, 476 A.2d at 372. The purpose of the Motor Vehicle Financial Responsibility Law is to require owners of registered vehicles to be financially responsible, and the exclusions of persons from benefits under the Act, if they are not financially responsible by having automobile insurance, is clearly reasonable as it fosters the goal of promoting financial responsibility among motorists. The appellant may not be heard to complain about her exclusion from benefits under a system of insurance to which she wilfully refused to participate by failing to obtain the insurance required by the Act.

The appellant also presents the argument that even if the section of the Act in question is constitutional, and we find that it is, a reasonable interpretation of the reference to “registered motor vehicle” would be to limit the phrase to a vehicle involved in an accident or incident which triggers the individual’s claim for first party benefits. However, the Act does not impose such a restriction and we may not add it. When the words of a statute are clear and free from ambiguity, the letter of the statute may not be disregarded under the pretext of pursuing its spirit. Cooke v. Travelers Insurance Company, 350 Pa.Super. 467, 504 A.2d 935 (1986).

The court below properly entered summary judgment in favor of Prudential. Pa.R.C.P. 1035(b) provides in part that summary judgment “... shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ... ”. A motion for summary judgment should be granted where the pleadings, discovery and affidavits reflect no genuine issue of material fact. Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 498 A.2d 760 (1985); Pa.R.C.P. 1035(b). A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987).

In the instant case, there was no issue at all concerning the facts as the parties stipulated to the facts and the appellee was entitled to judgment as a matter of law.

Judgment affirmed.

      . Lack of insurance in this instance meant that Ms. Mowery did not have “financial responsibility” as defined in the Act at 1702 which states:
      "Financial responsibility.” The ability to respond in damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident. The financial responsibility shall be in a form acceptable to the Department of Transportation. (Emphasis added.)

      . 75 Pa.C.S. § 1713(a)(3) provides:
      § 1713. Source of benefits
      (a) General rule. — Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority:
      (1) For a named insured, the policy on which he is the named insured.
      (2) For an insured, the policy covering the insured.
      (3) For the occupants of an insured motor vehicle, the policy on that motor vehicle. (Emphasis added.)

      . The Fourteenth Amendment to the Constitution of the United States provides in part:
      No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . The United States Supreme Court has stated the following concerning fundamental rights in Plyler v. Doe, 457 U.S. 202, 216 n. 15, 102 S.Ct. 2382, 2395, n. 15, 72 L.Ed.2d 786, 799, n. 15 (1982):
      In determining whether a class-based denial of a particular right is deserving of strict scrutiny under the Equal Protection Clause, we look to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein.

      . § 1718 of the Act also creates another class of persons who are excluded from sharing in benefits. We are not concerned with § 1718 of the Act in this appeal, but merely point out that the class excluded from benefits is not limited to persons ineligible under § 1714.

      . 75 Pa.C.S. § 1786 provides:
      § 1786. Self-certification of financial responsibility The Department of Transportation shall require that each motor vehicle registrant certify that the registrant is financially responsible at the time of registration or renewal thereof. The department shall refuse to register or renew the registration of a vehicle for failure to comply with this requirement or falsification or self-certification.


source: Caselaw Access Project

author: BROSKY, Judge: POPOVICH, Judge,

license: Public Domain

text:
    535 A.2d 664
    Deborah (Santorella) NITKIEWICZ, Appellant, v. Joseph NITKIEWICZ.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1987.
    Filed Jan. 5, 1988.

      Sandra L. Kitman, Pittsburgh, for appellant.
    Joseph F. Falatovich, Greensburg, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, OLSZEWSKI, DEL SOLE, KELLY, POPOVICH and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the Order of the trial court dismissing appellant’s exceptions and declaring the Agreement entered into between the parties in this divorce action to be valid and binding.

Appellant presents the following questions for our review: (1) whether the trial court erred in finding that appellant signed the Marriage Settlement Agreement of her own free will; (2) whether the trial court erred in failing to consider or in discounting the evidence of physical violence and threats; (3) whether the trial court erred in failing to consider the unreasonableness of the Agreement in determining the question of duress; (4) whether the trial court erred in finding that the Agreement was not signed under duress because appellant chose not to retain independent counsel; (5) whether the trial court erred in finding that the Agreement was executed in the context of a full and fair disclosure; and (6) whether the trial court erred in failing to find the Agreement unconscionable and against public policy and, therefore, void and unenforceable.

Upon review of the record, the trial court opinion and briefs by counsel, we respectfully reverse the decision of the trial court.

The facts of the case are relatively uncomplicated. Appellee husband met with his attorney on March 2, 1983 to discuss his marital difficulties. The attorney was then directed to prepare a post-nuptial marriage settlement agreement for the parties, and on March 5, 1983, both appellant and appellee met with the attorney to review the agreement. The attorney advised appellant that he was representing appellee and that she (appellant) could take the agreement to an attorney of her choice for advisement. Appellant declined to do this. Appellee’s attorney then proceeded to explain the agreement to the parties. Appellant, prior to executing the agreement, acknowledged that she understood all of the provisions and that she was signing the agreement voluntarily.

Under the terms of the agreement, appellant was to convey her interest in the marital residence to appellee. Appellant was also to relinquish custody of the parties’ minor children to appellee. In return, appellee was to pay the remaining indebtedness of a 1979 Volkswagen Rabbit and convey the title to appellant. Appellee was also to assume full payment on the couple’s other bills. Under the terms of the agreement, appellant waived all of her rights concerning alimony. Both parties complied with the terms of the agreement.

On May 10, 1983, appellant filed for a divorce and alleged that the Marriage Settlement Agreement was voidable because she had entered into it under duress. Appellant claims that appellee threatened her with a gun a week or two before signing the agreement, thus placing her in fear of bodily harm.

Appellant also questions the agreement’s validity by claiming that, because she was not represented by counsel, she failed to understand the provisions of the agreement. Additionally, appellant denies that a full disclosure was given of appellee’s assets. We are now faced with deciding the validity of the Marriage Settlement Agreement.

Because we find appellant’s fourth issue, regarding full and fair disclosure, to be meritorious, we will discuss only that aspect of the case, and need not address the remaining five issues raised on appeal.

In these types of cases, the trial court is the sole determiner of the fact of the record, Lowenschuss v. Lowenschuss, 327 Pa.Super. 120, 475 A.2d 127 (1984); Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984), and, absent an abuse of discretion, the Superior Court will not usurp the trial court’s fact-finding function. Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983). Thus, our scope of review is limited to determining whether the trial court abused its discretion in finding the Marriage Settlement Agreement to be valid and binding. Estep, supra.

The validity of a postnuptial separation agreement depends upon the presence of one of two elements: (1) a reasonable provision for the claiming spouse; or (2) a full and fair disclosure of the other’s worth. In re Estate of Geyer, 338 Pa.Super. 157, 487 A.2d 901 (1985). These factors must be considered in view of the circumstances on the date of the agreement, not in hindsight. In re Estate of Vallish, 431 Pa. 88, 244 A.2d 745 (1968); In re Kester’s Estate, 486 Pa. 349, 405 A.2d 1244 (1979).

In discussing the burden of proof required in this type of case, the Supreme Court of Pennsylvania has stated that:

The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the ... spouse at the time of the Agreement made neither (a) a reasonable provision for the intended spouse, nor (b) a full and fair disclosure of his (or her) worth. (Emphasis in original). (Citations omitted).

Estate of Friedman, 483 Pa. 614, 626, 398 A.2d 615, 621 (1978). In the case sub judice, the trial court admitted that, under the agreement, appellant did not fare as well as did appellee. Additionally, as stated in the recitation of facts, it is clear that appellant lost a great deal, including her home, her children and her right to alimony, and gained her car along with freedom from certain bills. Thus, we find the reasonableness of the agreement to be questionable, leaving us to determine whether a full and fair disclosure had been made.

In the instant case the opinion of the trial court states that there was nothing in the testimony or evidence to support an allegation that appellee failed to fully and fairly disclose his worth at the time the agreement was entered into. We must take exception to that statement. The record shows that appellee freely admitted that he never disclosed to appellant the amount of his earnings from a second source of income.

The testimony arose in response to direct examination:

Q. Joe, are you employed?
A. Yes, sir.
Q. Who are you employed by?
A. Volkswagen of America.
Q. How long have you been employed there?
A. Right now about five and a half years.
Q. Do you have any other sources of income?
A. No, sir.
Q. Had you at any time prior to this had any other sources of income?
A. I would rather not answer that.
Q. I’m just asking if you had another source of income either yes or no.
A. Yes.

and was expanded upon under cross-examination:

Q. Did you tell her how much of your other income was from the other sources?
A. No.
Q. How much did you make in ’83 from the other source?
A. I don’t know.
Q. You have no idea?
A. I sign the pay checks over to her every week, she pays the bills and deposits the money.
Q. I mean you said you answered Mr. Cassarino’s question there’s another source of income that you have. How much did you make from that?
A. I don’t know.
Q. Approximately?
A. I can’t even estimate, not that much.
Q. More than five thousand?
A. No.
Q. More than a thousand?
A. No.
Q. More than a hundred dollars?
A. Probably.
Q. Probably. What is this other job that you have?

It was at this point that appellee asserted his Fifth Amendment right against self-incrimination. While we do not argue with appellee’s constitutional rights, we cannot help but note that appellee’s hesitancy to reveal not only the source, but the amount of his other income, leads us to conclude that there was some evidence of a failure to give full and fair disclosure of his assets.

While it is true that, in an analogous case, a panel of this court stated that income need not be separately listed, Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986), it did not abolish the need for. a full and fair disclosure of assets. In Laub, appellant/wife claimed that because appellee/husband’s financial statements, which listed assets indicating that husband had a net worth of approximately $272,000.00 at the time an antenuptial agreement had been entered into, had not listed his income, there had been no full and fair disclosure. The panel rejected appellant’s claim, stating that, “[t]he requirement is that of full disclosure of one’s financial worth at the time the agreement is entered. Income need not be separately listed”. Id., 351 Pa.Superior Ct. at 118, 505 A.2d at 294. The court there felt that adequate disclosure had been made. We narrowly interpret Laub to read that failure to list income separately in that case did not defeat the overall adequacy of the husband’s disclosures. We do not broaden our interpretation to read that failure to divulge income does not invalidate a post-nuptial agreement when assets are disclosed.

Further, this interpretation of Laub is consistent with the law as it has developed with regard to postnuptial agreements. In Commonwealth ex rel McClenen v. McClenen, 193 A. 83, 127 Pa.Super. 471 (1937), this Court held that a Separation Agreement may be set aside where one party has been defrauded or deprived by the other of the information necessary to make a fair and just decision of the question of its reasonableness. In McClelland the wife executed a postnuptial agreement prepared by her husband’s attorney at his office without being represented by counsel. The husband owned securities, land and other property with no stated value, and the parties together owned a home as tenants by the entireties. The agreement purported to waive the wife’s right to spousal support. The Court held that the husband was under a duty to make a full and frank disclosure of his financial circumstances to the wife, including her interest in the parties’ marital property, so that she was fully informed prior to executing the agreement.

Although, as stated earlier, it has been held that a full and fair disclosure does not require disclosure of the exact amount of property, Kaufmann’s Estate, 171 A.2d 48, 404 Pa. 131 (1961), there must be a sufficient disclosure of assets to allow the other party to make an intelligent decision concerning the rights which will be given up under the terms of the agreement. In Kaufmann’s Estate, supra, it is held that each party to an antenuptial/postnuptial agreement must act with the utmost good faith and candor with the other party to the agreement because of the confidential relationship which exists. Thus, we are still left to resolve whether, in light of the circumstances existing on the date of the agreement in the instant case, there was a full and fair disclosure of financial worth.

Although there was testimony to the effect that, appellant handled the finances of the couple during the time they lived together as husband and wife, we are of the position that appellee had a second source of income, the amount of which was unbeknownst to appellant. Thus, she could not have “managed” money of which she had no knowledge. Appellee testified that his income was $21,000.00 per year and that appellant was earning “a nickel or dime above minimum wage”. Under these circumstances, it is quite possible that appellee’s second income could have had a substantial bearing upon the parties’ property distribution.

Appellee’s lack of disclosure renders invalid the post-nuptial separation agreement. In re Estate of Geyer, supra. By ignoring this admission by appellee, that he never disclosed to appellant the amount of his earnings from a second source of income, we find that the trial court did abuse its discretion when it found the agreement to be valid.

Therefore, we respectfully reverse the decision of the trial court.

Order reversed. Jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion in which DEL SOLE and KELLY, JJ., join.

POPOVICH, Judge,

dissenting:

I cannot join in the Majority’s determination to invalidate the post-nuptial agreement between the appellant/wife and appellee/husband on the ground that there was a failure on the part of the appellee to give a “full and fair” disclosure of his assets to the appellant prior to the execution of the agreement in question.

To begin with, the law is quite clear that disclosure of one’s assets in regard to a pre- or post-nuptial agreement must be both “full and fair”. Nonetheless, it is equally accepted in the law that disclosure of the “exact” value of the spouse’s worth is unnecessary. See In re Holwig’s Estate, 348 Pa. 71, 33 A.2d 915 (1943); In re Groffs Estate, 341 Pa. 105, 19 A.2d 107 (1941).

Moreover, I would offer that one is to be guided by the polestar looked to in any inquiry regarding the validity of any contractual agreement, i.e., whether the alleged misrepresentation was a “material” one which, had it been made known to the uninformed party, would have prompted such a party not to sign the agreement. See In re McClelland’s Estate, 365 Pa. 401, 75 A.2d 595 (1950). A similar rule is set forth in Restatement (Second) of the Law of Contracts, § 164 (1981), wherein it is written:

(1) If a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.

Further, one of the three requirements that has to be met to trigger the invalidation of the contract is that the “misrepresentation must have induced the recipient to make the contract.” Id at Comment a.

From the testimony recounted in the Majority Opinion, we learn that the appellee admitted not informing the appellant of a second source of income. However, upon closer scrutiny, we are apprised by the appellee that this supposedly nefarious activity, which prompted him to invoke his Fifth Amendment right to remain silent as to the source of the revenue, netted him probably more than a hundred dollars but less than one thousand dollars for the 1983 tax year — the year the agreement was signed.

Continuing, under the facts instantly, we have testimony of a ten-year marriage in which the appellee signed all of his checks over to the appellant to pay bills and deposit in the bank. Surely, the appellant, after all of this time, was aware of the value of the homestead she relinquished by the terms of the agreement to the appellee since she was to pay the family expenses and the mortgage with the monies received. This is buttressed by the trial court’s finding that the appellant “handled all of the finances of the couple during the time that they lived together as husband and wife.”

Thus, we have a situation in which the appellant gave up her share in a home valued between $38,000 and $47,000, she was relieved of the obligation to pay encumbrances amounting to $2,208.96, she relinquished her right to custody of the children and alimony, all in exchange for a Volkswagen and the opportunity to be free of debts as well as acquiring her personal belongings and some furnishings from the marital home.

In light of the estate involved, which I find was fully and fairly disclosed by the appellee, I cannot agree with the Majority that the appellee’s failure to disclose his income of approximately $100 to the appellant could be considered a material misrepresentation warranting a revocation of the Marriage Settlement Agreement. See Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986) (In assessing the enforceability of a marriage agreement, the requirement is that of a full disclosure of one’s financial worth at the time the agreement is entered; income need not be separately listed).

There is no assertion by the appellant that had she been told of the appellee’s surreptitious accumulation of some $100 in 1983 she would never have signed her name to the post-nuptial agreement. Consequently, one cannot say that the non-disclosure was a material misrepresentation rendering the agreement voidable. See In re McClellan’s Estate, supra; Restatement (Second) of the Law of Contracts, supra.

Furthermore, the Majority cannot point to anywhere in the law where “full and fair” has been equated with “exact” in the disclosure of a husband’s/wife’s assets, in determining the validity of a pre- or post-nuptial agreement being assailed by a disenchanged husband/wife.

Therefore, it is difficult, if not impossible, to construe from the facts at bar a conclusion that (1) had the appellant been advised of the appellee’s $100 second income source she would never have signed the agreement, or (2) that the misrepresentation of the appellee on such a point was material to the agreement so as to make it voidable at the election of the appellant.

Accordingly, finding that the Majority has strayed from the settled law in this case, I respectfully dissent.

DEL SOLE and KELLY, JJ., join.

      . The order in question does not appear to have terminated litigation because claims for equitable distribution and alimony remain undecided. While under Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), such orders determining interim claims would be considered interlocutory and unappealable, in the case sub judice, both parties would appear to agree that, if enforced, the settlement agreement is also dispositive of those claims yet to be decided. Thus, the trial court’s order has the practical effect of putting appellant “out of court”, in which case, we will allow the appeal to stand. See Fried, Id.; Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed 1528 (1949).

      . The fact that Laub deals with an antenuptial agreement, whereas instantly, we are concerned with a postnuptial agreement, is of no consequence with regard to our decision. Principles applicable to antenuptial agreements, even though consideration and circumstances may sometimes differ slightly, are equally applicable to postnuptial agreements. In re Ratony’s Estate, 443 Pa. 454, 277 A.2d 791 (1971).


author: WIEAND, Judge:

text:
    535 A.2d 669
    In re ESTATE OF Hugh L. KIRK Appeal of Richard KIRK.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1987.
    Filed Jan. 8, 1988.

      Robert Glessner, York, for appellant.
    Frank S. Kelker, Assistant District Attorney, Rochester, for appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   WIEAND, Judge:

The novel issue in this appeal is whether a widow who has elected to “accept and acquiesce” in the provisions of her deceased husband’s will and who has released “my share of any marital property and all other claims that I may have upon any of the property disposed of by the Will” is barred from inheriting as an heir when a partial intestacy occurs. The Orphans’ Court held that the release was effective only with respect to property passing under the will and did not prevent the widow from inheriting as her deceased husband’s heir. A nephew who, except for the widow, was the decedent’s closest relative appealed. We affirm.

Hugh L. Kirk, the decedent, had been married to Bertha M. Kirk. No children were born of their marriage. However, Bertha had been married previously and had a daughter from her prior marriage. On or about November 11, 1982, Bertha’s physical condition necessitated that she be admitted to the Beaver Valley Geriatric Center. On February 14, 1983, Hugh executed a will which expressly made no provision for Bertha but did contain a residuary clause in favor of Gloria Fitch, who was Bertha’s daughter. On the same day on which this will was executed, Bertha signed a release of her marital rights so that her husband’s property could pass upon his death to Bertha’s daughter. This release provided as follows:

I, BERTHA M. KIRK, of the County of Beaver and Commonwealth of Pennsylvania, wife of HUGH L. KIRK, the Testator named in the foregoing Will dated the 14th of February, 1983, hereby certify that I have been read the foregoing Will of my husband and fully understand that he disposes not only of his separate property but also of our marital property now owned or hereafter to be acquired, if any, including my half of that property. Being fully satisfied with its provisions, I hereby assent to each and all of the provisions, conditions, gifts, devises, and legacies mentioned and contained in the foregoing Will, and I hereby waive and relinquish all right, claim, and demand as his wife and heir-at-law or otherwise to any of the benefits of the Estate of HUGH L. KIRK, and I hereby elect to accept and acquiesce in the provisions of the Will, waiving all claims to my share of any marital property and all other claims that I may have upon any of the property disposed of by the Will.

Unfortunately, matters of life and death proved to be unpredictable. Gloria Fitch died in 1984, predeceasing her mother and the testator. The testator died on May 16, 1986 without having changed his will. He was survived by his widow and by three nephews and a niece. The decedent’s will was admitted to probate. Because Gloria Fitch was not the testator’s child, however, the residuary gift lapsed by virtue of her prior death. With respect to the residue of the testator’s estate, therefore, a partial intestacy occurred. The executor determined that the residue of the estate should be distributed to the widow under the provisions of the Pennsylvania Decedents, Estate and Fiduciaries Act. Richard Kirk, a nephew of the testator, filed exceptions which the court dismissed. From the order directing distribution to the widow, Kirk appealed. He argues that the surviving widow released all interest in her deceased husband’s estate and, therefore, should be barred from receiving an intestate share in the estate. This requires that we interpret the language of the release.

In Sparler v. Fireman’s Fund Ins. Co. of Newark, 360 Pa.Super. 597, 521 A.2d 433 (1987), this Court said:

Written releases are construed according to the rules governing the construction of contracts generally. 76 C.J.S. Release § 38 (1952). A release normally covers only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Estate of Bodnar, 472 Pa. 383, 387, 372 A.2d 746, 748 (1977); In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 456-457, 477 A.2d 527, 534 (1984); Gateway Center Corp. v. Merriam, 290 Pa.Super. 419, 425, 434 A.2d 823, 826 (1981). The intention of the parties to a written release is paramount, and in construing a release, a court should adopt an interpretation which, under all of the circumstances, “ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 168, 199 A.2d 540, 543 (1964). See: Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., 327 Pa.Super. 99, 107, 475 A.2d 117, 121 (1984). Although a court will not relieve the parties of the effect of an improvident contract, it must not allow a “rigid literalness” to be used to create an improvident contract for the parties contrary to their intent. Mowry v. McWherter, 365 Pa. 232, 238, 74 A.2d 154, 158 (1950). Thus, the words of a release “should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated.” Brill’s Estate, 337 Pa. 525, 527, 12 A.2d 50, 52 (1940). See: Furtek v. West Deer Township, 19 Pa.D. & C.2d 169, 178, affd, 191 Pa.Super. 405, 156 A.2d 581, 585 (1959).

Id., 360 Pa.Superior Ct. at 601, 521 A.2d at 435.

When one examines the language of the release which the widow executed in the instant case, one cannot fail to observe the obvious intent to release the widow’s claim against the property passing under the husband’s will so that the husband could bypass his sick wife in favor of her daughter. Thus, even if the widow should survive and even if she were then incompetent, the release would make it possible for a direct devise to the widow’s daughter to take effect. Neither the testator nor his wife contemplated the possibility that Gloria would predecease her mother. Much less did they contemplate that she would predecease her stepfather so that the testamentary gift would lapse and an intestacy occur. Thus, the will made no provision for Gloria’s early death, and the language of the release contained no language relinquishing the widow’s intestate share of her husband’s estate under those circumstances.

We conclude, therefore, that the language of the release was not intended to bar the widow from inheriting from her husband under the law of intestacy. This interpretation ascribes to the release the most reasonable, probable, and natural intent of the parties, bearing in mind the objects manifestly to be accomplished. The consideration for the release was the gift to the widow’s daughter. To place upon it the broad interpretation urged by appellant would be to create for the parties an improvident contract which the parties clearly did not intend.

Affirmed.

      . Although Pennsylvania has an anti-lapse statute with respect to "a child or other issue of the testator,” Gloria Fitch was not a child of the testator, and the residuary gift to her, therefore, was not protected by the statute. 20 Pa.C.S. § 2514(9).

      . The intestate share of a decedent’s surviving spouse, where there is no surviving issue or parent of the decedent, is the entire intestate estate. 20 Pa.C.S. § 2102.


author: DEL SOLE, Judge:

text:
    535 A.2d 671
    Howard BURKETT, Jr. and Annabell Burkett, His Wife, and Perry Cramer and Lola Cramer, His Wife, Appellees, v. Richard P. SMYDER and Cheryl Smyder, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1987.
    Filed Jan. 7, 1988.

      Gregory A. Olson, Assistant District Attorney, Indiana, for appellants.
    Wayne A. Kablack, Indiana, for appellees.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellees filed a declaratory judgment action against Appellants alleging that they had acquired a prescriptive easement to cross Appellants’ land. Appellants filed a motion for judgment on the pleadings in which they argued that Appellees had failed to join a landowner whose land was also involved in the instant suit. The trial court denied this motion.

Following a non-jury trial, the trial court found that Appellees had used a roadway which intersects Appellants’ land for a period in excess of 21 years. Thus, the prescriptive easement had been established. Following the filing and denial of post-trial motions, this appeal ensued.

By their appellate brief, Appellants raise the following two issues:

1. Have Burkett and Cramer (Appellees), by failing to show open and continuous use for a period of more than twenty-one (21) years, and by failing to establish that the claimed easement does not pass through an unenclosed woodland area, failed to meet their burden of proving the existence of an easement by prescription; and,
2. Is an additional surface owner, across whose lands the claimed prescriptive easement crosses, a necessary party in this declaratory judgment action?

Upon review of the record and the parties’ arguments, we affirm.

Initially, Appellants argue that Appellees failed to sustain their burden of proof with respect to a claim of prescriptive easement. The party asserting a prescriptive easement must demonstrate each element of such an easement by proof that is clear and positive. Walley v. Iraca, 360 Pa.Super 436, 442, 520 A.2d 886, 889 (1987). It is well-settled that a prescriptive easement is created by (1) adverse, (2) open, (3) notorious, (4) continuous and uninterrupted use for a period of 21 years. Id., 360 Pa.Superior Ct. at 441, 520 A.2d at 889. In order to establish continuity, the evidence need not illustrate constant use. Instead, “continuity is established if the evidence shows a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right.” Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316, 319 (1982), quoting Keefer v. Jones, 467 Pa. 544, 548, 359 A.2d 735, 737 (1976). We now turn to the evidence adduced during trial, keeping in mind that the findings of the trial court will not be disturbed absent a clear abuse of discretion or error of law. Id., 300 Pa.Superior Ct. at 240, 446 A.2d at 319.

The record shows that the area of roadway under dispute crosses Appellants’ land for 400 feet. Appellees purchased their land in 1953. (N.T., 11/26/86, 26) The following year, Appellees began to utilize the roadway in order to gain access to a Christmas tree nursery they had situated on their land. (N.T., 11/26/86, 28) The evidence illustrates that Appellees traveled the road several times each year to plant, shear, mow, and harvest the trees. (N.T., 11/26/86, 30) This use of the lane continued from 1954 until approximately 1968-1970, when Appellees ceased their Christmas tree business. (N.T., 11/26/86, 31) Thereafter, Appellees walked along the roadway once or twice a year for hiking purposes. (N.T., 11/26/86, 31)

Appellants urge that this evidence fell far short of the proof necessary to establish a prescriptive easement. The trial court, however, opined that the fact that Appellees utilized the roadway for sporadic excursions onto their land did not “support the conclusion that plaintiffs (Appellees) had any change in their attitude toward the use of the roadway as a property right.” (Trial Court Opinion, 12/18/86, 2-3) We observe that whether Appellees had acquired a prescriptive easement was a question of fact for the trial court sitting as factfinder. Predwitch v. Ckrobak, 186 Pa.Super. 601, 142 A.2d 388, 389 (1958). Upon review of the testimony, we find that the trial court was warranted in finding that a right by prescription existed. Albeit the use of the lane had diminished subsequent to Appellees ceasing their Christmas tree business, there was sufficient evidence from which to conclude that Appellees pursued a settled course of conduct in which they viewed the utilization of the roadway as a property right for more than 21 years.

As a corollary to the first issue raised on appeal, Appellants argue that Appellees failed to establish that the roadway does not pass through an unenclosed wooded area. Appellants cites 68 P.S. § 411 for the proposition that the acquisition of prescriptive easements through wooded areas is banned in this Commonwealth. Appellants claim that the roadway passes through unenclosed woodlands.

Pa.R.C.P. 227.1(b) explicitly states that:

(b) Post-trial relief may not be granted unless the grounds therefor, (1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial.

Instantly, the record reflects that Appellants raised this contention for the first time in post-trial motions. Clearly, the applicability of 68 P.S. § 411 is a defense that should have been advanced during the pre-trial stage of this case. By failing to raise the defense at the appropriate phase, Appellants have effectively waived it for appellate consideration. Strickler v. United Elevator Co., Inc., 257 Pa.Super. 542, 549, 391 A.2d 614, 617 (1978).

Finally, Appellants posit that an additional surface owner, across whose lands the prescriptive easement intersects, should have been joined as an indispensable party to the underlying action. The record demonstrates that Appellants responded to Appellees’ Complaint with New Matter alleging, inter alia, that Appellees’ lands do not adjoin Appellants’ lands. Appellees’ admitted this fact in their Reply to New Matter. Thereafter, Appellants filed a motion for a judgment on the pleadings on grounds that the rights of the landowner, whose property was crossed by the roadway, would be adversely affected by a determination that the prescriptive easement exists. The motion, however, was denied by the trial court.

As a general rule, a party is indispensable when:

he has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience. That is to say, his presence as a party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights.

Nelson By Nelson, 353 Pa.Super. 537, 542, 510 A.2d 792, 795 (1986), quoting Hartley v. Langkamp & Elder, 243 Pa. 550, 555-56, 90 A. 402, 403 (1914). The failure to join an indispensable party deprives a court of jurisdiction. Barren v. Dubas, 295 Pa.Super. 443, 441 A.2d 1315 (1982). See generally Pa.R.C.P. 2227 (compulsory joinder).

Appellants contend that the rights of the other landowner whose property is intersected by the roadway were inextricably bound to the disposition of the case at bar. However, we note that the subject matter of Appellees’ action was a 400 feet portion of the roadway which was located solely on Appellants’ land. Any resolution made with respect to the existence of a prescriptive easement would be determinate only to Appellants’ property rights. Thus, Appellees’ action was narrowly confined so as not to affect the rights or interests held by other landowners.

We are aware of our holding in Barren v. Dubas, 295 Pa.Super. 443, 441 A.2d 1315, 1316 (1982) in which we held that “when there is a dispute as to the existence of an easement, all owners of servient tenements have a material interest in the controversy and should be joined as defendants, even though such an owner may have had no part in the interference with, or obstruction of, the alleged easement.” The facts in Barren are distinguishable from those in the case at bar. In Barren, the appellees filed a complaint alleging that they had obtained a prescriptive easement to an alleyway traversing the appellants’ adjoining parcel of land. On appeal, this Court held that two parties to whom the appellants had conveyed a portion of the servient tenement were indispensable to those proceedings inasmuch as they had a material interest in the controversy. By comparison, the case sub judice involves a servient tenement consisting of 400 feet of land owned solely by Appellants. Appellants have failed to name any parties whose rights or interests in that section of land would be adversely affected by a determination in their absence. Accordingly, we affirm the trial court’s treatment of this issue.

Order affirmed.


author: OLSZEWSKI, Judge: TAMILIA, Judge,

text:
    535 A.2d 1060
    COMMONWEALTH of Pennsylvania, Appellee, v. John O. KLINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1987.
    Filed Dec. 1, 1987.
    Reargument Denied Jan. 26, 1988.

      David F. Dunn, Allentown, for appellant.
    Andrea F. McKenna, Assistant District Attorney, Harrisburg, for Com., appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

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 dealer-user’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 and the oil company franchise tax due for the months of 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. 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 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

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-

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. If we were to adopt appellant’s construction that the tax does not apply to sales of diesel fuel, we would virtually eliminate the Legislature’s express inclusion of certain diesel fuel within the definition of petroleum products. We decline to do so. Instead, given the presumption that the General Assembly intends the entire statute to be effective, we will give effect to this language and hold that the oil company franchise tax applies to sales of diesel fuel used to propel motor vehicles on the public highways. See Habecker v. Nationwide Insurance Company, 299 Pa.Super. 463, 471, 445 A.2d 1222, 1226 (1982) (“The Legislature is presumed to have intended to avoid mere surplusage in the words, sentences and provisions of its laws.”). See also Wilson v. Central Penn Industrial, Inc., 306 Pa.Super. 146, 150, 452 A.2d 257, 259 (1982) (In determining legislative intent, the sections of a statute must be read together and construed with reference to the entire statute.).

The specification of petroleum products “otherwise subject to liquid fuels taxes” within the definition of petroleum revenue does not change our holding. As explained above, appellant contends that the quoted phrase refers only to the tax imposed by the Liquid Fuels Tax Act, 72 P.S. § 2611(a) et seq., which applies primarily to gasoline and which does not apply to diesel fuel. We do not agree, however, that the phrase “liquid fuels taxes” is a specific reference to the tax imposed by the Liquid Fuels Tax Act. If the General Assembly had intended to limit the definition of petroleum revenue to petroleum products subject to taxes imposed by the Liquid Fuels Tax Act, it could have employed a specific reference to that Act. The Legislature did not so limit the definition of petroleum revenue, however. Instead, it used the language “otherwise subject to liquid fuels taxes.” Unfortunately, this language is not explicit as it does not specify which taxes, nor define liquid fuels. Considering matters beyond this language, however, see 1 Pa.C.S. § 1921(c), we conclude, as did the trial court, that this language is a generic reference to taxes on liquid fuels in general.

We have already discussed the Legislature’s express inclusion of certain diesel fuel within the definition of petroleurn products. We do not believe the General Assembly would specifically include certain diesel fuel within the definition of petroleum products and at the same time exclude all diesel fuel from the operation of the statute by inserting the phrase “otherwise subject to liquid fuels taxes” within the definition of petroleum revenue. Certainly, had the Legislature intended to exclude diesel fuel from the statute’s operation, it would have done so much more directly and not have utilized the circuitous route appellant contends it used here.

We also observe that the Department of Revenue, charged with the enforcement and administration of this statute, has issued a regulation which interprets this language to mean “otherwise subject to the liquid fuels tax or the fuel use tax.” 61 Pa.Code § 351.1 (emphasis added). Under this interpretation, petroleum revenue includes all consideration derived from the first sale of petroleum products otherwise subject to the liquid fuels tax or the fuel use tax. Because the fuel use tax is imposed on diesel fuel, 72 P.S. § 2614.1 et seq., this interpretation of the definition of petroleum revenue is consistent with and supports our conclusion that the Legislature intended -the oil company franchise tax to apply to diesel fuel used to propel motor vehicles.

Appellant argues that the Department’s clarification of the phrase “otherwise subject to liquid fuels taxes” amounts to an ultra vires attempt to correct the statute. We disagree. In our view, the Department has merely interpreted the phrase consistent with the General Assembly’s intent, which, to reiterate, is manifested by its express incorporation of certain diesel fuel within the definition of petroleum products. Confirming the Department’s interpretation is the fact that the Legislature has not disturbed the regulation since it became effective. See Hospital Association of Pennsylvania v. MacLeod, 487 Pa. 516, 410 A.2d 731 (1980). Additionally, as our courts have observed, the construction of a statute by those charged with its administration and execution is entitled to great weight and should not be disregarded unless clearly erroneous. Commonwealth, Higher Education Assistance Agency v. Abington Memorial Hospital, 478 Pa. 514, 387 A.2d 440 (1978); Commonwealth, Pennsylvania Liquor Control Board v. Burrell Food Systems, Inc., 97 Pa.Commonwealth Ct. 101, 508 A.2d 1308 (1986), appeal denied, 513 Pa. 636, 520 A.2d 1386 (1987); Chappell v. Pennsylvania Public Utility Commission, 57 Pa.Commonwealth Ct. 17, 425 A.2d 873 (1981). The Department’s construction is not clearly erroneous. We therefore give it weight in rejecting appellant’s contention with respect to the phrase “liquid fuels taxes” and in concluding that the Legislature intended the oil company franchise tax to apply to sales of diesel fuel used to propel motor vehicles on our public highways.

Having reached the foregoing conclusion, we turn to appellant’s contention that he is not properly chargeable with criminal responsibility under the statute imposing the oil company franchise tax. That statute, appellant argues, does not include provisions charging a corporate official with criminal responsibility for the acts or omissions of a corporate taxpayer. Accordingly, appellant concludes, only Fuel Marketing Corporation, the oil company subject to the oil company franchise tax in this case, can be prosecuted for a failure to pay that tax.

Our Supreme Court addressed a similar contention in Commonwealth v. Shafer, 414 Pa. 613, 202 A.2d 308 (1964). In that case, the president of a corporation was charged with violating Section 823 of the Penal Code of 1939 and indicted for non-payment to the Commonwealth of sales tax monies allegedly collected by the corporation and not remitted to the Commonwealth. The defendant argued that it was only the corporation, and not himself, as an individual, which could be prosecuted under Section 823. The Supreme Court found this contention without merit and held that the defendant, as president and the principal officer of the corporation, was subject to prosecution under Section 823. The Court relied on Commonwealth v. Stone, 187 Pa.Super. 225, 144 A.2d 614 (1958), affd, 395 Pa. 584, 150 A.2d 871 (1959), in which this Court stated that “[individuals are subject to indictment for acts done under the guise of a corporation where the individual personally so dominated and controlled the corporation as to immediately direct its action.” Id., 187 Pa.Superior Ct. at 229, 144 A.2d at 616. The evidence in the instant case demonstrates that appellant personally dominated and controlled the affairs of the corporate taxpayer. We, therefore, reject appellant’s contention and find that appellant is subject to prosecution under the oil company franchise tax statute.

Appellant’s next issue concerns the culpability required to establish violations for non-payment of the fuel use and oil company franchise taxes. Appellant was charged with willful failure or refusal to remit each of these taxes. At trial appellant attempted to present a defense of good faith by proffering evidence that he fell behind in paying these taxes because he had previously incurred substantial financial obligations which had to be met instead. Those obligations, appellant asserted, resulted from improvements that the Pennsylvania Department of Transportation and the township had required him to make in order to prevent runoff from his property onto the highway. Appellant also offered evidence that, at the time the taxes in question were due, he was making payments for taxes owed prior to that time. The trial court sustained Commonwealth objections to the admission of such evidence. Thereafter, in charging the jury as to the mental state required for conviction, the trial court explained the meaning of the term “willful,” relying upon definitions found in the Crimes Code at 18 Pa.C.S. § 302. The trial court also refused appellant’s request that it instruct the jury on mitigating circumstances relating to appellant’s good faith defense, the court finding such circumstances irrelevant to the definition of willfulness. Appellant alleges trial court error in precluding evidence and an instruction regarding his good faith defense and in defining willfulness to the jury, arguing that these errors entitle him to a new trial.

We believe, as did the trial court, that this Court’s en banc decision in Commonwealth v. Kimble, 323 Pa.Super. 499, 470 A.2d 1369 (1984), controls our resolution of this issue. The appellant in that case was convicted of failure to file sales tax returns and to remit sales tax monies collected as required by the Tax Reform Code of 1971, 72 P.S. § 7268. The appellant had alleged at trial that his failure to remit sales tax monies which he had collected was involuntary because the money was in a bank account that had been frozen by the actions of his creditors. On appeal, the appellant argued that the trial court “erred in instructing the jury that a ‘willful’ violation of the tax statute would be a basis for criminal liability and that appellant’s good faith in withholding from the Commonwealth the tax monies due it was not a defense to the crime charged.” Id., 323 Pa.Superior Ct. at 510-511, 470 A.2d at 1375. The appellant further urged that “an act is willful when it is both intentional and voluntary, and that the lower court’s instructions to the jury that an act may be willful despite the good faith with which it is performed, is tantamount to creating a strict liability crime.” Id., 323 Pa.Superior Ct. at 511, 470 A.2d at 1375-1376. An en banc panel of this Court disposed of these arguments as follows:

We agree with the conclusion reached by the lower court that a charge which would direct the jury to acquit appellant, should it conclude that appellant acted in good faith in refusing to remit sales tax monies to the Commonwealth, was not proper in the case at bar since the criminal statute in question, 72 P.S. § 7268, does not provide for such a “good faith” defense. We regard the fact that 72 P.S. § 7269 does provide for a limited good faith defense in a limited civil context, coupled with the fact that the preceding criminal section presently subject to our scrutiny (Section 7268) is totally barren of such ameliorative language, are reflective of a conscious election by our legislature to limit the application of a good faith defense to civil tax litigation. Section 7268 requires that a violation of its provisions be “willful.” Insofar as the lower court correctly charged the jury concerning the necessity of a willful failure to remit tax monies as grounds for appellant's conviction, we reject appellant’s contention that the court below usurped the function of the jury by removing from its consideration the possible good faith of appellant as it may have impacted upon the willfulness and voluntariness of appellant’s behavior.

Id., 323 Pa.Superior Ct. at 511-512, 470 A.2d at 1376 (footnotes omitted).

In our view, the facts and circumstances present in Kimble are sufficiently analogous to those occurring in the instant case to apply its reasoning and holding here. Importantly, as in Kimble, the appellant in this case collected the tax monies in question from the purchaser and then failed to remit those monies to the Commonwealth as required by law. Accordingly, focusing on the language of the statutes as we did in Kimble, we find that neither statute under consideration here provides for a good faith defense to the violations in question. See 72 P.S. § 2614.-21(a); 75 Pa.C.S. § 9510(c). The trial court, therefore, did not err in excluding evidence of appellant’s good faith, nor in refusing to instruct the jury regarding such evidence. Additionally, comparing the trial court’s instruction on “willfulness” in this case with the instruction which we approved in Kimble, we conclude that the trial court correctly charged the jury on this element. Appellant’s second issue is therefore without merit.

Appellant’s next issue raises additional challenges to the trial court’s charge to the jury. Appellant alleges that the charge was fatally defective in that the trial court: (1) did not define the elements of the offense; (2) did not instruct on the presumption of innocence; (3) failed to define reasonable doubt; (4) refused to give appellant’s point for charge on culpability; (5) commented prejudicially on appellant’s alleged mitigating circumstances; and (6) erroneously characterized the taxes at issue as consumer excise taxes to which a trust fund theory applies.

In evaluating a trial court’s instructions, we review the charge as a whole. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983); Commonwealth v. Sparks, 351 Pa.Super. 320, 505 A.2d 1002 (1986). We may not predicate a finding of error upon isolated excerpts of the charge as it is the general effect of the charge that controls. Commonwealth v. Smith, 343 Pa.Super. 435, 495 A.2d 543 (1985). Even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant. Levy and Surrick v. Surrick, 362 Pa.Super. 510, 524 A.2d 993 (1987). See Commonwealth v. Ohle, supra.

Reviewing the charge in the instant case and considering it as a whole, we conclude that the trial court adequately instructed the jury on the elements of the offenses in question. According to appellant, the elements of each offense include the fact that a tax was due, that a tax due was unpaid, that appellant is a proper actor to be charged with alleged criminal non-payment and that the non-payment was willful. The court focused its charge on the element of willfulness. As we concluded above, the court adequately explained that element to the jury. Moreover, while the judge did not specifically list and precisely define each of the first three elements, he did mention them in explaining the issues the jury was to decide. The failure to expand on those elements does not, in our view, constitute reversible error. Significantly, the court believed, correctly, that there were no factual disputes with respect to those elements. Indeed, appellant admitted at trial that he collected both the fuel use taxes and the oil company franchise taxes for the months in question and that those taxes remained unpaid. N.T. 8/8/85, 128-129. Additionally, it was undisputed that appellant, in his capacity as president, director and principal shareholder of Fuel Marketing Corporation, directed and controlled the affairs of that corporation. By declining to expand on the first three elements and focusing instead on the element of willfulness, the judge was merely clarifying the issues for the jury. See Commonwealth v. Ford-Bey, 504 Pa. 284, 472 A.2d 1062 (1984). We find that the elements were sufficiently explained to guide the jury in resolving the issues present in this case.

Turning to appellant’s second contention, we observe that the trial court did not include in its charge a reference to the presumption of innocence. In Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), however, the Supreme Court of the United States held that the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Interpreting its decision in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), the Supreme Court explained that such a failure must be evaluated in light of the totality of the circumstances — including all the instructions, the arguments of counsel, whether the weight of the evidence was overwhelming and other relevant factors — to determine whether the defendant received a constitutionally fair trial. Instantly, although the court did not charge on the presumption of innocence, it did instruct the jury that the burden was on the Commonwealth to prove each element of the offense beyond a reasonable doubt. Additionally, the record includes more than sufficient evidence to establish that appellant’s failure to pay the taxes in question was “willful,” as that element has been explained herein. Finally, absent from this case are any allegations of improper or prejudicial remarks by counsel during argument. See Taylor v. Kentucky, supra, 436 U.S. at 486-488, 98 S.Ct. at 1935. Considering the totality of these circumstances, we conclude that the trial court’s failure to instruct on the presumption of innocence was not fatal and did not deprive appellant of a fair trial.

Appellant alleges next that the trial court did not adequately define reasonable doubt. The court defined reasonable doubt as “the type of doubt that would cause a careful, prudent person to hesitate in acting if [sic] a matter of importance.” N.T. 8/9/85, 148. As this Court has previously observed, there is no exact formula that must invariably be followed in charging the jury as to reasonable doubt. Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985). Upon review of the relevant case law, we conclude that the court adequately instructed the jury on this point. See Commonwealth v. Gay, 489 Pa. 17, 413 A.2d 675 (1980); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Commonwealth v. Ferguson, 289 Pa.Super. 163, 432 A.2d 1103 (1981).

Appellant also alleges that the trial court erred in refusing to give his point for charge on the statutory definitions of intentionally, knowingly and recklessly as found in 18 Pa.C.S. § 302(b). The Commonwealth charged appellant with “willful” failure or refusal to remit the taxes at issue. In disposing of appellant’s second issue, we found that the trial court properly instructed the jury regarding “willfulness.” Accordingly, the court did not err in refusing appellant’s point for charge.

Appellant did not raise specific objections with respect to his fifth and sixth allegations before the jury retired to deliberate. Consequently, those allegations are waived and we do not consider them. Pa.R.Crim.P. 1119(b); Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983); Commonwealth v. Crawford, 285 Pa.Super. 169, 427 A.2d 166 (1981); Commonwealth v. Jefferson, 271 Pa.Super. 199, 412 A.2d 882 (1979).

In his fourth issue, appellant alleges improper venue in Dauphin County. He argues specifically that the proceedings should have been brought in Monroe County in that the truckstop was located in that county and all relevant transactions occurred at that location. We find that the trial court correctly rejected this argument based upon our decision in Commonwealth v. Boyle, 347 Pa.Super. 602, 500 A.2d 1221 (1985), appeal granted, 512 Pa. 191, 516 A.2d 338 (1986). The appellant in that case was a restaurant owner charged 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.S. § 7268(b). In the majority opinion, this Court indicated that venue would be proper in any county in which the appellant could have filed the required tax returns, holding specifically that the county where the restaurant was located did not have proper subject matter jurisdiction since it did not have a branch office of the Department of Revenue. Id., 347 Pa.Superior Ct. at 604-605, 500 A.2d at 1222.

As in Boyle, both taxes involved in the instant case are required to be paid to the Department of Revenue, which has its main office in Harrisburg, Dauphin County. The proceedings, therefore, were properly instituted in Dauphin County and appellant’s allegation of improper venue is also without merit.

In his final issue, appellant challenges his sentence on a number of grounds. He contends specifically that: (1) the sentence imposed on February 19, 1986 was illegal in that it (a) included a prison term for his convictions under the Fuel Use Tax Act and (b) exceeded the maximum allowed by statute; (2) the trial court’s order correcting that sentence was null and void because it was entered in his absence and after the trial court lost jurisdiction to impose it; (3) the trial court imposed these sentences without ordering a pre-sentence investigation report and without explaining its reasons for dispensing with one; and (4) any sentence of imprisonment is excessive under the circumstances of this case.

Preliminarily, we observe that appellant’s third and fourth contentions raise discretionary aspects of the trial court’s sentence. In the recent decision of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), our Supreme Court mandated that a party appealing the discretionary aspects of a sentence comply with Pa.R.A.P. 2119(f)’s requirement that he set forth a “concise statement of the reasons relied upon for allowance of appeal.” The Court explained that this rule was promulgated to implement 42 Pa.C.S. § 9781(b), which provides that:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

Id. See also Note accompanying Pa.R.A.P. 902 (providing that a notice of appeal under that rule operates as a “petition for allowance of appeal” under the Sentencing Code and commenting that the filing of the “petition for allowance of appeal” is deferred by the rules until the briefing stage, “where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner”).

Instantly, appellant’s brief fails to comply with Pa.R.A.P. 2119(f) as it does not contain a separate section stating “the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [appellant’s] sentence.” Accordingly, appellant has not properly presented his third and fourth contentions for appeal and we do not consider them.

Appellant argues with respect to his first contention that he is subject to imprisonment as a corporate officer under the Fuel Use Tax Act only if he failed to fulfill both his duty to file the required report and to pay the tax owed. Appellant relies on the following language of 72 Pa.S. § 2614.21(a):

... and in the case of a corporation any officer thereof, whose duty it was to make the report required by this act, shall be subject to imprisonment, as aforesaid, for failure to make the report required and attend to the payment of tax imposed by this act.

Because he filed the required reports in this case, appellant contends his sentence of imprisonment for violations of the Fuel Use Tax Act is unlawful. We disagree. The first sentence of Section 2614.21(a) provides in pertinent part:

Any person who shall fail, neglect or refuse to make the report, or pay the tax, penalties and interest imposed by this act, ..., shall be guilty of a misdemeanor, and, upon conviction thereof, be sentenced to pay a fine of not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) and costs of prosecution or to undergo imprisonment for not more than one (1) year, or both, (emphasis added).

“Person” is defined in Section 2614.2 of the Act as follows:

“Person” shall mean and include every natural person, association or corporation. Whenever used in any clause prescribing and imposing a fine or imprisonment, or both, the term “person” as applied to association shall mean the partners or members thereof and as applied to corporations the officers thereof.

Considering the foregoing language together with the language upon which appellant relies, we find that the Fuel Use Tax Act clearly contemplates that a corporate officer may be sentenced to prison if he merely fails to “attend to payment” of the tax. Such a construction effectuates the intention of the General Assembly and is, in fact, necessary to give effect to all of the statute’s provisions. 1 Pa.C.S. § 1921(a).

Nevertheless, we agree that appellant’s original sentence, imposed on February 19, 1986, was illegal. Appellant was charged with four counts each of willful failure to pay the fuel use tax and the oil company franchise tax. The statutes imposing those taxes each set a maximum sentence of imprisonment of one year. 72 P.S. § 2614.21(a); 75 Pa.C.S. § 9510(c). Therefore, the sentence of six to twenty-three months imprisonment on each of the eight counts exceeded the statutory maximum and was illegal.

As set forth above, the trial court entered an order on April 4, 1986 purporting to correct its original sentence. We do not address whether or not that order was validly entered because, having determined that the original sentence was illegal, we may vacate and amend that sentence directly. Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985), affd, 515 Pa. 454, 530 A.2d 74 (1987); Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985); Commonwealth v. Britton, 334 Pa.Super. 203, 482 A.2d 1294 (1984), appeal dismissed, 509 Pa. 620, 506 A.2d 895 (1986). The trial court’s order of April 4, 1986 is a clear indication of the trial court’s intent with respect to an amended sentence. We, therefore, would not be substituting our judgment for that of the trial court by amending appellant’s sentence as provided in the April 4th order. See Commonwealth v. Britton, supra, 334 Pa.Super. at 222, 482 A.2d at 1304. Accordingly, the sentence of February 19, 1986 is vacated and appellant is sentenced to concurrent terms of imprisonment of six to twelve months on each of the first seven counts and a consecutive term of probation of eleven months on the eighth count. Appellant is also directed to make restitution in the amount of $109,546.40 and to pay the costs of prosecution.

Having disposed of each of appellant’s issues, we affirm the judgment of sentence as amended in this opinion.

As amended, the judgment of sentence, is affirmed.

WIEAND, J., concurs in the result.

TAMILIA, J., files a concurring statement.

TAMILIA, Judge,

concurring:

I concur in the result. I would join the majority except that I disagree with the manner in which it deals with the issue relating to the discretionary aspects of the sentence. The Commonwealth has not objected to appellant’s raising this issue so I would consider it. Upon review of the sentencing transcript, appellant’s objection to the failure of the court to order a presentence report is without merit, as the information obtained there was adequate for sentencing purposes. The excessiveness of sentence allegation is also without merit in light of the facts of this case and the consideration given to that aspect of the case by the sentencing judge. Notwithstanding, any illegality of sentence is corrected by the majority in its disposition of this case.

      . 72 P.S. § 2614.21(a).

      . 75 Pa.C.S. § 9510(c).

      . That opinion is reported at 106 Dauphin 375 (1986).

      . This section of the statute was amended in 1986 to define "petroleum revenue” as:
      An amount derived by multiplying the number of gallons of petroleum products, otherwise subject to liquid fuels taxes, at the time of their first sale to wholesale or retail dealers in this Commonwealth for marketing and distribution or to a direct user plus the number of gallons used by the first seller in this Commonwealth by the average wholesale price____

      . According to appellant, interpreting the phrase "liquid fuels taxes” to mean something other than the tax on liquid fuels as those fuels are defined by the Liquid Fuels Tax Act, renders the statute unconstitutionally void for vagueness and violates the principle that tax statutes are to be strictly construed in favor of the taxpayer. We disagree. As set forth above, the General Assembly specifically enumerated diesel fuel as a petroleum product whose sale is subject to the oil company franchise tax. In constructing the foregoing arguments, appellant ignores the definition of petroleum product and turns instead to an entirely different statute, the Liquid Fuels Tax Act, to construe what the Legislature intended when it included the phrase “otherwise subject to liquid fuels taxes” within the definition of petroleum revenue. As our discussion of this issue indicates, however, we have found it unnecessary to divine the application of the oil company franchise tax by referring to the Liquid Fuels Tax Act. We, therefore, reject appellant’s arguments.

      . Appellant contrasts this omission from the oil company franchise tax statute with the provisions of the Fuel Use Tax Act. See 72 P.S. § 2614.2, 8th definition and 72 P.S. § 2614.21(a).

      . Act of June 24, 1939, 18 P.S. § 4823 (repealed 1972).

      . It is undisputed that appellant was president, director and principal shareholder of Fuel Marketing Corporation during the relevant period. Importantly, the testimony at trial demonstrates that it was appellant who made the decision not to pay the taxes at issue in this case.

      . Additionally, although we do not decide, it is arguable that appellant is criminally responsible for non-payment of the oil company franchise tax by virtue of 18 Pa.C.S. § 307(e), which imposes legal accountability on one acting or under a duty to act for a corporation. See Commonwealth v. Albarano, 314 Pa.Super. 233, 460 A.2d 1115 (1983).

      . We note that while the statute imposing the oil company franchise tax requires that a criminal violation be committed willfully, the Fuel Use Tax Act omits any reference to the type of culpability sufficient for the commission of a criminal violation. The Commonwealth, however, elected to charge appellant with willful non-payment with respect to both taxes. See 18 Pa.C.S. § 305(b).

      . Appellant argues that the statutes at issue in this case demonstrate a "purpose to impose further requirements” with respect to the element of willfulness, see 18 Pa.C.S. § 302(g), which does not appear in the sales tax law at issue in Kimble. Appellant asserts that, consequently, the trial court reversibly erred when it refused his request for an instruction that willfulness be interpreted with respect to all of the language of the statutory section in which it appears and that, in fact, willfulness he construed as "intentional” as defined in 18 Pa.C.S. § 302(b)(1). We have reviewed the relevant sections of each statute and conclude that appellant’s contentions are without merit.

      . We note that appellant raised questions of law with respect to the first three elements, specifically, (1) whether the oil company franchise tax applies to diesel fuel and therefore, whether any tax was due under the statute imposing that tax; and (2) whether appellant, as a corporate official who controlled the affairs of a corporate taxpayer, could be charged with criminal responsibility under that act. These questions, however, were not for the jury, but rather, for the court to decide.