author: MONTGOMERY, Judge. McEWEN, Judge,

text:
    576 A.2d 967
    COMMONWEALTH of Pennsylvania, Appellee, v. William G. BOYLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1989.
    Filed May 2, 1990.
    Reargument Denied July 16, 1990.

      John F. Hooper, III, Pittsburgh, for appellant.
    Roseann B. Termini, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

The appellant, William G. Boyle, files the instant appeal following his conviction, after a jury trial, on seven counts of failing to file timely Pennsylvania sales tax returns. The appellant was sentenced to pay a fine of $1,000.00 and to undergo a term of not less than two months :ior more than six months imprisonment on the first count, and was sentenced to a fine of $1,000.00 each on the other six counts, with imprisonment suspended on those counts. He was also ordered to pay the costs of prosecution. He thereafter filed a Motion to Modify Sentence, which was denied by the trial court. Numerous claims of error are asserted by the appellant in support of this appeal.

It is appropriate that we initially review the history of the case, as well as the facts educed at the trial which are pertinent to this appeal. The criminal information which was originally filed against the appellant on September 12, 1984, charged him with 14 counts of willfully failing to file sales tax returns and 14 counts of willfully failing to remit sales taxes due between August, 1982 and October, 1983. It was asserted that the appellant’s conduct was in violation of Section 268(b) of the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, No. 2, art. II, § 268(b), 72 P.S. § 7268(b).

After the initial information was filed against him, Boyle filed motions challenging the jurisdiction of the Crawford County Court of Common Pleas with regard to these charges. His request for dismissal of the criminal information was denied by the Court of Common Pleas of Crawford County, and an appeal was instituted to our court. After consideration, our court ruled that the appellant’s challenge to the jurisdiction of the Crawford County court was proper. See Commonwealth v. Boyle, 347 Pa.Super. 602, 500 A.2d 1221 (1985). The matter was thereafter appealed to the Supreme Court of Pennsylvania, which reversed the decision of our court, and remanded the case for a continuation of the criminal proceedings. See Commonwealth v. Boyle, 516 Pa. 105, 532 A.2d 306 (1987). In its ruling, the Supreme Court held that Crawford County had appropriate subject matter jurisdiction and venue to try the charges against the appellant.

After the remand, Boyle filed further pretrial motions, challenging the constitutionality of the statute under which he was charged, and the sufficiency of the criminal information. Such motions were denied by the trial court. On March 7, 1988, the Commonwealth filed an amended information, which omitted seven of the counts charging Boyle with failure to file sales tax returns which had been included in the original information. Seven counts of willful failure to file sales tax returns and 14 counts of willful failure to remit sales taxes remained. Boyle was arraigned on the new charges and subsequently again filed similar pretrial motions to those he had previously submitted, challenging the constitutionality of the statute. The trial court again denied these motions. Additional pretrial motions were also filed but denied by the trial court. The jury trial commenced in Crawford County on May 16, 1988.

The evidence in support of conviction demonstrated that Boyle, an attorney, incorporated Meadville Foods, Inc. in 1971, for the operation of a restaurant business. The appellant was the president and only officer of the corporation and owned all of its stock. The restaurant opened in 1972 and the corporation contemporaneously applied for and received a state sales tax license from the Pennsylvania Department of Revenue.

During the period relevant to the prosecution in this case, the operation of the restaurant was handled by a manager, who collected appropriate state sales taxes and deposited them in a corporate bank account. The appellant had exclusive control over this account. The manager did not prepare state sales tax returns for the business. Instead, the manager forwarded the returns and other relevant information to Boyle for the filing of sales tax returns, and for remittance of the tax payments.

The evidence showed that sales taxes were collected in the restaurant’s operation between June, 1982 and September, 1983, but were not remitted to the Commonwealth. Further, required monthly sales tax returns were not filed with the Commonwealth for the period between March, 1983 and September, 1983. While such taxes and returns were eventually remitted and filed, such action was not taken until after the criminal proceedings were instituted by the Commonwealth in the case.

The evidence indicated that in approximately February, 1983 the Pennsylvania Department of Revenue began audit proceedings of the corporation sales tax returns for the period commencing in March, 1980. The appellant met with an auditor from the Department of Revenue in the course of this auditing procedure. The auditor testified that he determined that Boyle was the taxpayer because Boyle was listed as the owner on the sales tax license. He related that he contacted Mr. Boyle in his office, at. the phone number listed on the sales tax application. During the course of their meetings, the appellant acknowledged to the auditor an awareness that he was tardy in sales tax return filings and tax payments.

When they met on March 4, 1983, Boyle showed the auditor several boxes of records which contained delinquent returns. The auditor also provided testimony that the returns of the corporation were signed by Boyle, naming him as president and lawyer. The auditor and Boyle apparently had several subsequent meetings to review the sales tax records. During a subsequent meeting, the auditor provided Boyle with an updated license application which Boyle signed as president, on behalf of the corporation.

The Commonwealth also presented evidence that during a September, 1983 meeting, with a representative of the Department of Revenue, Boyle stated that he was the owner of the restaurant, the corporate president, and the only officer. He also admitted that he had the responsibility for preparing, filing and paying the returns. During the course of the investigation, the appellant provided the investigator with bank records pertaining to the corporation’s restaurant operation during the period in issue. They showed substantial monies were available to the corporation throughout the period. During 1982, the average monthly balance amounted to approximately $78,000.00, and in 1983, the ending monthly balance was approximately $33,000.00. In his defense, Boyle asserted that he did not file the returns for the period in question because he believed that he was in the progress of an audit, and he wanted to work with the Department of Revenue representatives to bring the corporation’s state tax filings and payments current.

The jury acquitted Boyle on the 14 counts relating to the failure to pay sales taxes. However, he was convicted on the seven counts which charged him with failures to file sales tax returns. Following the denial of post-verdict motions, Boyle was sentenced. The appellant filed a motion to modify his sentence, which was denied by the trial court. Thereafter, the appellant filed this appeal.

The appellant initially maintains that the Section 268(b) of the Tax Reform Code is fatally vague, ambiguous, and fails to give adequate notice as to who may be subject to criminal prosecution for violation. Thus, he contends that the statute violates his right to due process of law. More particularly, he contends that the statute is not definite or clear on the time when an omission to file a return may expose a taxpayer to criminal prosecution. Further, he argues that the statute does not clearly identify persons responsible for filing such a return. He submits that a corporate officer may not be held responsible for a failure in filing under the statute.

We first address the appellant’s contention that the statute is vague and fails to give adequate notice that timely filing is required. In support of his position, the appellant cites the decision of our court in Commonwealth v. Sacco, 366 Pa.Super. 261, 531 A.2d 1 (1987). In Sacco, our court reversed the conviction of a defendant who was simply a tardy filer of sales taxes. All of the taxes in issue in that case were remitted by Sacco two years prior to the initiation of the criminal prosecution. Our court held that criminal sanctions were not intended to be applied in that situation. Instead, it was held that criminal sanctions were intended for taxpayers who do not pay their taxes, remit taxes withheld, or file returns. Our court found that the legislature merely imposed monetary sanctions for tardy taxpayers.

In reaching these conclusions, our court in Sacco, in dicta, indicated that it would not read a timeliness requirement into Section 268(b) in the circumstances of that case. Boyle now seizes upon that dicta to contend, in effect, that because he eventually filed the returns, no prosecution could result under Section 268(b). We do not find this argument to be persuasive, and do not read the Sacco holding in such a literal sense. As we explained in Sacco, penal statutes should be reasonably construed according to the fair import of their'terms. See 18 Pa.C.S. § 105. If we are to give the existing language of the statute its fair meaning, we cannot agree that Section 268(b) does not prohibit a failure to remit returns until long after they are due, and then only after criminal proceedings are initiated. In the instant case, the tax returns were not submitted to the Department of Revenue until after the Commonwealth began its prosecution of the appellant. The initiation of such proceedings did not arise until September, 1984, almost a year after the last month of non-filing covered by the criminal information. This was not simply a case of tardy filing which could be analogized to the situation presented to this court in the Sacco case.

Challenges to a statute based upon vagueness, when the statute does not involve First Amendment freedoms, must be examined in light of the facts of the case at hand, and the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged. Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245-246 (1976). In the instant case, the evidence established that there was a complete failure to file tax returns. We cannot reasonably give credence to the claim that there was merely a pattern of tardiness on the part of Boyle. In light of the evidence presented, we do not find merit in the claim that the statute was unconstitutionally vague with regard to the taxpayer’s obligation to file sales tax returns on a timely basis.

We also find no merit in the appellant’s due process argument that the statute is vague because it does not identify persons responsible for the filing of the tax. The Commonwealth alleged in the criminal information and proved at trial that Boyle was the president and sole stockholder of the corporation, and was the person responsible for filing the sales tax returns and remitting the taxes to the Commonwealth, in connection with the operation of the restaurant. Section 268(b) applies to “any person maintaining a place of business in the Commonwealth.” (emphasis-supplied) In Section 201 of the Tax Reform Code of 1971 (72 P.S. § 7201), subsection (e), the word “Person”, is defined as:

Any natural person, association, fiduciary, partnership, corporation or other entity, including the Commonwealth of Pennsylvania, its political subdivisions and instrumentalities and public authorities. Whenever used in any clause prescribing and imposing a penalty or imposing a fine or imprisonment, or both, the term “person”, as applied to an association, shall include the members thereof and, as applied to a corporation, the officers thereof (emphasis supplied)

In view of this statutory language, and the clear evidence of the appellant’s sole ownership of the corporation and service as its only officer, we find no merit in his position that the statute must be deemed vague in failing to identify him as a person responsible for the filing of the sales tax returns. Our court has reached a similar conclusion in analogous circumstances in other cases. See Commonwealth v. Smallhoover, 389 Pa.Super. 575, 567 A.2d 1055 (1989); Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987).

We next address an argument by the appellant that the Tax Code unlawfully allows the Attorney General to define the timeliness element under Section 268(b). Boyle maintains that the statute, in that regard, violates the doctrine of separation of powers, and thereby violates his rights to due process and equal protection of the laws. We find no arguable validity in these contentions. In support of his position on this point, the appellant maintains that because he eventually filed the returns in question, he must be immune from any prosecution. He reasons that because the Attorney General has flexibility with regard to the timing of prosecutions, the legislature has ceded to the Attorney General the power and authority to define a timeliness element in the statute.

If the appellant’s rationale had any validity, it would seem that any person charged with a criminal offense could nullify his prosecution by thereafter taking steps to remedy his prior wrongdoing before the trial. For instance, a person who had robbed a store could, after prosecution was initiated, merely return the stolen money or goods before being tried, and thereby render any subsequent prosecution meaningless. We cannot accept the appellant’s logic, and do not find that the legislature’s failure to include a specific period of time in the tax statute results in the invalidity of the statute on the basis that it grants legislative authority to the Attorney General. Accordingly, we also reject this claim of error.

Boyle next maintains that the original and amended informations were defective in that they failed to recite all elements of the offenses and inform the defendant of the precise charges he was required to defend. It is clear that a criminal complaint or information must contain all of the essential elements of the offense sought to be charged. Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307 (1944). However, the information must be read in a commonsense manner and is not to be construed in an overly technical sense. Commonwealth v. Pope, 455 Pa. 384, 390, 317 A.2d 887, 890 (1974).

The amended information filed against the appellant on March 7, 1988 stated, in relevant part:

The Attorney General of the Commonwealth of Pennsylvania, by this information charges that on or about the dates set forth in the individual counts below, at Mead-ville, Crawford County, Pennsylvania, the above named defendant, who was the owner and operator of a business trading as Meadville Foods, Inc., doing business as Palace Fine Foods, with business premises at 225 Conneaut Lake Road, Meadville, Crawford County, Pennsylvania, and who was the individual responsible for the preparation and filing of Pennsylvania sales tax returns, did wilfully (sic) fail, neglect or refuse to file sales tax returns on behalf of the above named business for the periods set forth in the individual counts below, and further, said defendant did wilfully (sic) fail, neglect or refuse to remit sales taxes due the Commonwealth for the tax periods set forth in the individual counts below, in violation of 72 P.S. § 7268(b)

Below that statement all of the separate counts were listed, indicating the specific returns and tax remittances which were covered by the information.

It is evident that the appellant was given notice of the offenses with which he was charged by the above-quoted language and the other parts of the criminal information in this case. Criminal informations are sufficient where the crimes charged are set forth substantially in the language of the statute. Commonwealth v. Taraschi, 327 Pa.Super. 179, 190, 475 A.2d 744, 750 (1984). Such a recitation is evident in the instant case, and we conclude that Boyle was obviously given adequate notice of the offenses with which he was charged, with sufficient specificity and preciseness to allow him to prepare his defense to such charges. Also, we cannot ignore that during the course of the extensive pretrial litigation proceedings which evolved in this case, the Commonwealth provided the appellant with a bill of particulars which further detailed the misconduct which was the subject of the instant prosecution. Therefore, we reject the appellant’s argument that his conviction should be set aside because of any deficiency in the criminal informations.

The appellant next asserts that the trial court erred in failing to require the Commonwealth to produce a large volume of documents in discovery. Our review of the record regarding this matter indicates that the defendant requested an extremely broad range of documents from the Commonwealth, pursuant to Pa.R.Crim.P. 305. Among the documents he sought were all Pennsylvania sales and use tax returns which were filed by any person more than 120 days after the due date from June 1, 1987 until the date of his request, all reports, notices, ledgers, statements or other documents reflecting sales and use tax payments made by any person more than 120 days after the due date during the same period, and numerous other documents. Such requests would have required the Commonwealth to produce years of state sales tax records involving taxpayers from all over our Commonwealth, including tax returns, reports, notices, ledgers, statements, criminal complaints, indictments, informations, civil complaints, and numerous other documents.

Under Pa.R.Crim.P. 305(B)(1), upon request the Commonwealth must produce certain information or items, provided they are material to a requesting defendant’s, case. While Boyle suggests that he desired such information to try to establish that he was subjected to selective prosecution, he has failed to allege or to demonstrate that he was prosecuted based upon any unjustifiable standard, such as race or religion. See Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). The conscious exercise of some discretion in enforcement of a law by a prosecuting official is not, standing alone, sufficient to establish a constitutional violation in the nature of improper selective enforcement. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). We are not aware of any holding by any federal court, or by any appellate court in our Commonwealth that a district attorney or the Attorney General must prosecute all cases involving a possible violation of a particular statute in order to maintain the right to prosecute any other particular alleged violator of that law. Accordingly, even if there was a lack of absolute uniformity in the enforcement of the state sales tax law requirements by criminal prosecutions, there is no basis in the record before us to suggest that such a lack of consistency was a result of intentional improper discrimination against the appellant. Therefore, we find no abuse of of discretion by the trial court in refusing to. compel the Commonwealth to respond to the voluminous information request of the appellant in this case. The information sought was not material, in our view, in the defense of the charges against Mr. Boyle in these proceedings.

We next address the contention by the appellant that the trial court erred in denying a defense challenge to the entire panel from which the jurors were selected for his case. The record shows that during jury selection, a question was posed to the panel by the court regarding whether any of the potential jurors were acquainted with Mr. Boyle or any member of his family. One of the jurors responded, “Judge, I represented a private client, who commenced a lawsuit several years ago against Mr. Boyle and as doing business as the Palace Restaurant, that’s now concluded.” The court asked if that would affect the prospective juror’s objectivity in the case. The juror responded in the negative. The court then stated, “For counsel’s enlightenment, Mr. Ferguson is an Assistant District Attorney in this county, and just by luck of the draw, he happened to get on the panel.” The attorney for the appellant objected to the remarks made by the juror and requested the disqualification of the entire panel. The subject was discussed in chambers with the trial judge. Defense counsel indicated that what the prospective juror had said gave the impression that bore upon the paying of bills. He contended that the statement left the appearance that Mr. Boyle and Palace Fine Foods did not pay bills. The trial judge rejected this challenge. Later, the judge disqualified the juror in question.

In support of his argument that the trial judge erred in denying his challenge to the entire jury panel, the appellant cites several cases dealing with situations in which jurors were subjected to communications concerning a defendant’s guilt and his participation in prior criminal activity. For instance, the defense cites Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974), a case in which a potential trial witness communicated with some members of a jury which had already been selected. In Santiago, the information improperly communicated to the jurors was that the defendant had killed an innocent boy and this was not the first person he had killed. The person who made the comments identified herself as a witness. Unquestionably, such circumstances were grossly different than those presented in the instant case. The information disclosed to the Santiago jurors was highly inflamatory and prejudicial to the defendant. In the instant case, the prospective jurors learned only that the defendant and his business had been involved in a prior civil suit, which by then had been concluded. We cannot discern sufficient prejudice arising from such information to justify a conclusion that the trial court’s sound discretion in such matters was abused in this case.

The appellant next argues that the trial court erred in rejecting defense objections to the testimony from a Commonwealth witness which touched upon other instances of tardy sales tax return filing and remittances by the appellant. It is argued that such evidence of other crimes was clearly inadmissable, because it suggested that the appellant had a criminal character or a propensity to commit tax related offenses.

As noted earlier, the charges against the appellant concerned a period between March and September, 1983. During the course of the examination of a representative of the Pennsylvania Department of Revenue, the witness was asked if he could tell, from his records, whether returns were filed in January and February, 1983. The agent responded that returns were filed for such months. He was then questioned as to whether they were filed in a timely manner. He responded that the January return was delinquent and the February return was filed on time. Defense counsel moved for a mistrial, arguing that such testimony was prejudicial and had nothing to do with the case because it related to tax returns during a period not covered by the prosecution which was the subject of this case. The court ruled that there was an issue before the jury of whether the failure to file was willful, and a question of whether there was an absence of mistake.

The appellant properly points out that evidence of a criminal defendant’s involvement in other crimes or bad acts which are not charged in the criminal information is generally considered to be prejudicial and inadmissable, and the evidence of the commission of one offense is not proof of the commission of another. Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). However, exceptions to this general rule exist. Thus, evidence of other crimes may be admissable when it tends to prove motive, intent, absence of mistake or accident, a common scheme, plan or design embracing two or more criminal acts that are so related to each other that proof of one tends to prove the others, the establishment of identity where there is such a logical connection between the crimes that proof of one will tend to show that the accused is the person who committed the other. Commonwealth v. Clayton, supra; Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Peterson, supra. In considering this issue, we must also be mindful that a trial court has discretion with regard to whether or not to admit evidence of other crimes, and such a decision should not be reversed on appeal unless the trial court committed an abuse of that discretion. Commonwealth v. Green, 351 Pa.Super. 170, 505 A.2d 321 (1986).

We have carefully examined the record with regard to the evidence in question, and we do not find an abuse of discretion by the trial court sufficient to merit a reversal of the appellant’s conviction. We cannot conclude that the trial court erred in its determination that the testimony regarding the appellant’s January and February, 1983 tax filing and remitting activities was relevant to show Boyle’s willfulness and the absence of mistake. Such factors may be considered in deciding whether evidence of other crimes or misconduct is admissable. Moreover, we do not think that the brief comments would have tainted or inflamed the jury in its considerations of whether or not the appellant was guilty of the other tax offenses charged. We also cannot ignore the fact that the trial court gave cautionary instructions to the jurors that the charges to be tried involved failures to file returns or remit payments for particular months in 1983, and that merely because there was some testimony relating to other failures to file or pay, the jury could not assume guilt based upon conduct on such other dates. Based upon all of these considerations, we find no basis for a reversal of the appellant’s conviction because of the admission of brief testimony about his conduct in January and February, 1983.

The appellant next argues that the trial court erred in denying his motion for a mistrial because of the admission of testimony concerning an alleged failure to pay sales tax penalty and interest. He points out that such omissions were not charged as criminal violations in this action and asserts that the Commonwealth’s answer to his request for a bill of particulars stated that the tax alone, and not penalty or interest, would be in question in the prosecution.

Our review of the record shows that during cross-examination of a Commonwealth witness, counsel for the appellant attempted to confirm that by the time of the trial, all of the tax returns and payments had been received by the Department of Revenue. The court became involved in the questioning on this point. In responding to such questioning, the witness denied that full payments had been received and made reference to nonpayment of penalty and interest charges. Defense counsel immediately objected and requested the court to grant a mistrial.

The testimony in question, if it were considered at all by the jurors, had to be weighed with reference to the question of whether the appellant should be found guilty of failure to timely pay sales taxes, which was the subject of 14 of the 21 charges. Because the appellant was acquitted on the counts charging him with failures to remit taxes, the evidence in question obviously had no prejudicial effect. Therefore, we find that the trial court did not err in declining to grant a mistrial based upon the testimony about the alleged failures to pay penalty and interest charges.

We next address three separate contentions by the appellant that there was insufficient evidence to support the convictions which resulted in this case. First, he urges that the evidence was insufficient because there was no timeliness requirement in the law, and he filed the returns before the actual trial was held in this case. As discussed earlier, the charges in this case were not filed until a year or more after the appellant failed to file the returns in question. Further, we have already explained why the appellant’s subsequent filing of the returns did not operate to prohibit a continuation of the criminal proceedings against him. The instant argument is merely a repetition by the appellant of the same points we have already discussed and rejected. We need only restate that we find no merit in such a contention. The fact that the appellant finally filed the returns after criminal charges were instituted against him does not create grounds for reversal based upon an argument of insufficiency of the evidence.

Next, the appellant maintains that there was no proof that he was the owner and operator of the restaurant, but only that he had stock. On the contrary, we find that the evidence was undeniably sufficient to establish that he was the president and only officer of the corporation, which was wholly owned by him. Thus, sufficient evidence was established to prove that he was a person responsible for the filing of returns as required by the applicable tax statute.

Finally, with regard to the question of whether the evidence was sufficient, the appellant contends that there was no proof that his corporation’s restaurant had taxable sales during each of the months in question. Again, we cannot agree with the appellant. The evidence clearly demonstrated that the restaurant business was in operation during the entire period when the appellant was charged with a failure to file tax returns. In fact, there was evidence that Boyle eventually filed returns and paid taxes due on the business income attributable to the months in issue. Therefore, we reject the claim that the evidence was insufficient to prove that the corporation had taxable sales during the reporting and payment periods covered by the criminal charges in this case.

The appellant next raises the argument that the trial court erred in foreclosing his testimony concerning the source of funds to pay the sales taxes on behalf of the corporation. The record shows that defense counsel attempted to elicit testimony from Boyle concerning loans he secured from which he made sales tax payments. It is asserted that such evidence was proferred in an effort to rebut the Commonwealth’s contention that Boyle’s omissions were willful. The record showed that the trial court ruled that such testimony was irrelevant.

Obviously, the testimony in question, if relevant at all, would only have been supportive of the appellant’s defense to the charges that he intentionally and willfully failed to remit sales taxes. His acquittal on such charges makes moot the issue of whether the trial court should have admitted evidence of his source of funds for payment. Such evidence did not pertain to any arguable excuse for a failure to file returns. Accordingly, the issue presents no basis for relief to the appellant in the context of the instant appeal.

Mr. Boyle also raises several claims of error by the trial court with respect to its charge to the jury, and its denial of certain points for charge requested by the appellant. He first claims that the trial court erred in its charge concerning any criminal liability he might have as a result of his position as the owner, operator and officei of the corporation. His arguments concerning the court’s charge, on this point, are all based upon his claim that the law imposed no obligation upon him personally to file the returns, and that the corporation itself was solely responsible for such filing. We have previously discussed that issue, and explained why the appellant’s contention is devoid of merit. On the same grounds, we find no validity in his reiteration of the same claim and theory that he could not be held liable as a corporate officer for the failures to file the corporation sales tax returns. The trial court properly charged the jury on that point.

Boyle also argues that the trial court should have instructed the jury with regard to what he describes as an estoppel defense. At the trial, he took the position that he relied upon his dealings with representatives of the Department of Revenue in delaying his filing of tax returns. Our review of the record indicates that the trial judge did charge the jury properly with regard to that issue. The trial court told the jury that it had to find that the failures to file were willful and intentional. The judge reminded the jurors that the defendant contended that he was mislead by the Department of Revenue auditors and that he acted in good faith. The judge specifically stated, “You may consider from all of the testimony by the agents from the Revenue Department and by Mr. Boyle whether he acted willfully in failing to pay the returns.” We find that such comments and other references to this subject in the jury instructions were adequate to place before the jury the defensive theory espoused by Boyle, which he has described as one of estoppel. Therefore, we reject the claim that the court erred in its charge on that point.

Boyle next urges that the jury should have been instructed to ignore the evidence of his delinquent filing and paying of other returns. Again, this argument encompasses a repetition of points we have already discussed. As noted earlier, the trial court did instruct the jurors to consider the appellant’s guilt or innocence with regard to the periods charged, and not to rely on the evidence of his earlier conduct. Further, we have reviewed the charge as a whole, as we are required to do, and conclude that it fairly and properly covered all of the points to be considered by the jurors. Therefore, we must reject the appellant’s arguments that his conviction should be reversed because of the trial judge’s rejection of requested points for charge, or because of any aspect of the jury instructions.

Finally, appellant contends that the trial court erred and abused its discretion in sentencing. Three separate points are raised.

First, Boyle points out that the court failed to order a pre-sentence investigation report, and it failed to state on the record its reasons for dispensing with such a report. Pa.R.Crim.P. 1403(A)(2) requires a sentencing court either to order a pre-sentence investigation and report, or to place its reasons for dispensing with such a report on the record, in circumstances including where incarceration for one year or more is a possible disposition, and where a defendant is a first offender as an adult. The record shows that the defense was aware that there was no pre-sentence report. Defense counsel indicated that in commenting at the time of sentencing, “That’s the statement I wish to make on behalf of Mr. Boyle, your Honor, and if there are any questions the court has, in view of the fact there is no pre-sentence report, we certainly will be glad to answer any further questions on that basis, your Honor.” Defense counsel did not request that a pre-sentence report be procured. Such conduct may be deemed a waiver of the appellant’s right to have the court consider a pre-sentence investigation report. However, we need not dispose of this claim on that basis alone. The trial court was asked to modify the appellant’s sentence. In declining this request, the sentencing judge prepared an order indicated he did not state his reasons for not ordering a pre-sentence report on the record. However, he explained that he was well-acquainted with the reputation and profession of the defendant, and noted the factual background which led to the filing of the charges had been explored in detail in the record. Moreover, the court indicated it was familiar with the income of the defendant, which was furnished at the time of the sentencing. Further, the court made reference to fact that it had allowed Boyle to provide a detailed account of the factors which led to his failures in filing. In all of these circumstances, including our finding of a waiver of the issue by the defense, we conclude that the lack of a pre-sentence investigation report or an on-the-record explanation of this matter at the time of sentencing provides no justification for disturbing the sentence imposed.

Next, with respect to sentencing, the appellant argues that the trial court improperly failed to consider the statutory sentencing factors and failed to place its reasons for imposing a sentence of total confinement on the record. The record shows that after hearing from the appellant, from his counsel, and from the Commonwealth on the issue of sentence, the court offered an explanation which is recorded in several paragraphs. The judge first noted that it was difficult to impose sentence in a criminal case, particularly in the type of case where the person charged was a reputable citizen in an honored profession. The court explained, however, that if the sales tax returns and penalties in the law were to mean anything, they could not be ignored and it was evident that the defendant had ignored the law. The court stated that after a jury had found willful and deliberate noncompliance of the law, he would not consider only a fine or probation as substantial. Further, the court indicated that a lengthy incarceration was not appropriate. The judge went on to explain that when a knowledgeable, educated person is found by a jury to have willfully and totally disregarded the law, the court viewed something more than just a fine and probation as being necessary. The court then imposed the sentence.

The statements by the court demonstrated that the judge considered a probationary sentence, but did not feel that it was appropriate. The trial court’s references to Boyle’s background indicated a clear awareness that the appellant had no prior criminal record, and the court was certainly aware that the appellant was a member of the bar. Further, the commentary by the sentencing judge explained his conclusion that the jury’s finding of a willful violation by an individual such as the defendant justified a substantia] penalty, including confinement. In these circumstances, it is evident that the trial court sufficiently articulated its reasons for its imposition of the sentence which included a period of total confinement. That sentence did not exceed the statutory limits. Accordingly, we do not find any basis for reversal based upon the appellant’s claims that the trial court failed to consider appropriate sentencing factors, or failed to place its reasons for imposing a sentence of total confinement on the record.

The last argument of the appellant with regard to sentencing is the claim that the court erred in denying his request for an evidentiary hearing, after the Commonwealth asserted during sentencing that the appellant had failed to file numerous other state and federal taxes and returns. The appellant has mischaracterized the record on these points.

The transcript of the sentencing shows that testimony was offered by the appellant to depict himself as a law-abiding taxpayer in other circumstances. In response, counsel for the Commonwealth indicated to the court that over the course of several years, the appellant had not filed federal or state tax returns nor paid taxes for himself or for the corporation. The comments by the prosecutor referred to federal and state income tax returns, federal and state corporation tax returns, employer withholding tax returns, and other returns and tax monies which had been ignored, both before and after the dates when the sales tax returns involved in this case were not filed. Thereafter, when all such matters had been stated, several pages of colloquy by defense counsel followed. In that colloquy, there was no mention whatsoever that counsel for the Commonwealth had made any improper assertions concerning the appellant’s pattern of non-filing and non-payment of numerous taxes. Rather, defense counsel discussed the appellant’s alleged reliance on a certified public accountant and other matters, and implored the court to recognize that Mr. Boyle was a good person. Thereafter, another lengthy colloquy occurred, involving counsel for both the prosecution and defense, concerning whether or not the appellant had set up a separate account to segregate the sales tax monies he had collected in the operation of his restaurant. Counsel for the Commonwealth contended that if such a separate account had been set up, the appellant would not have needed to borrow money to pay the taxes, as he had asserted. Only at the conclusion of all of that discussion did defense counsel state, “Your Honor, we would ask for an evidentiary hearing.” The court responded, “Well, I don’t think that’s necessary.” Defense counsel then stated, “This is absolutely correct. Thank you your Honor.” The court then proceeded with sentencing.

There is no assertion whatsoever that the prosecuting attorney had made any improper remarks with regard to the appellant’s habit of ignoring his filing and payment responsibilities with respect to numerous other taxes. Such comments by the prosecutor were much earlier in the record than the request for an evidentiary hearing. That request obviously made no reference to the comments by the prosecutor now called into question. In these circumstances, we find that the appellant has waived any right to claim an entitlement to an evidentiary hearing based upon the comments of the prosecutor about his tax avoidance tendencies. Therefore, we reject the appellant’s final claim of error.

The judgment of sentence is hereby affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

Since the expression of the majority view mirrors a most careful study, as well as an insightful analysis of the issues presented in this appeal, I am most hesitant to differ. However, the nagging impression that two aspects of the evidentiary presentation effected substantial prejudice upon appellant matures to conclusion in the light of the verdict of the jury acquitting appellant of all fourteen counts of failure to pay sales tax, while finding him guilty of the seven counts of failure to file sales tax returns. First, the cautionary instruction provided by the trial judge did not adequately redress the prejudice which befell appellant when the prosecution elicited from a Commonwealth witness testimony that appellant had been delinquent in connection with the returns for a period which was not the subject of the prosecution. Second, the issue of “wilfulness” is as applicable to the counts of failing to file a return-as it is to the failure to pay the tax, and, as a result, the testimony of appellant about his effort to secure loans to pay the tax was relevant and thereby admissible. Thus, I would grant appellant a new trial.

      . In relevant part, 72 P.S. § 7268(b) provides that "... any person who shall wilfully fail, neglect or refuse to file any return or report required by this article or any taxpayer who shall refuse to pay any tax ... imposed by this article ... shall be guilty of a misdemeanor____”

      . With regard to the failure to file returns charges, the information listed tax months of March, 1983 through September, 1983, with due dates for such returns respectively in May, 1983 through October, 1983.

      . We note that the appellant’s attempts to characterize this defense as estoppel were not appropriate. In essence, he was contending that his failure to file tax returns was an act of good faith. Good faith is no defense to a violation of Section 268. Commonwealth v. Kimble, 323 Pa.Super. 499, 470 A.2d 1369 (1984).


source: Caselaw Access Project

author: DEL SOLE, Judge: TAMILIA, Judge,

license: Public Domain

text:
    576 A.2d 979
    Richard J. MURTHA and Dina A. Murtha, H/W, Administrators of the Estate Richard Murtha, Deceased and Richard J. Murtha and Dina A. Murtha, in Their Own Right, Appellants, v. CROZER-CHESTER MEDICAL CENTER and Hahnemamn University Hospital and J. Albright Jones M.D. and Edward McLaughlin, M.D. and Frank Briglia, M.D. and James Finke, M.D. and John Doe, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1990.
    Filed May 17, 1990.
    Reargument Denied July 18, 1990.

      Rosalind T. Kaplan, Philadelphia, for appellants.
    Andrew L. Braunfeld, Norristown, for appellees.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   DEL SOLE, Judge:

An unusual and unfortunate fact situation prompts our consideration of the issue in this appeal. We are asked to review whether the trial court properly refused to permit the substitution or amendment of a complaint to include, in place of a deceased defendant, the executor of his estate where the action was commenced against the defendant before his death, but service was not effected before his death. We conclude that the trial court erred in denying the plaintiffs’ motions. We reverse its order and remand this matter for proceedings consistent with this opinion.

Plaintiffs’ decedent, their minor child, died on September 25, 1986. Plaintiffs commenced an action against Dr. J. Albright Jones and various other defendants by filing a Complaint on September 23, 1988, two days prior to the expiration of the applicable statute of limitations. It is undisputed that Plaintiffs had the Complaint, accompanied by the appropriate fees for service of process upon each of the defendants, delivered to the Sheriff. As was required for service upon Dr. Jones, the Sheriff of Philadelphia County deputized the Sheriff of Delaware County to effectuate service upon Dr. Jones and other Delaware County Defendants. The other defendants were served on October 14, 1988. Although Dr. Jones was not served on that date, this same date is handwritten in the margin of the Sheriff’s Return of Service for Dr. Jones. The significance of this handwritten date has never been determined. Dr. Jones died the next day, October 15, 1988. Plaintiff’s Complaint was finally served by the sheriff to Dr. Jones’ secretary on October 25, 1988, more than 30 days after it was filed.

Plaintiffs were advised of Dr. Jones’ death and the appointment of his wife as executor of his estate. Voluntary consent to substitution was refused by Dr. Jones’ executor, therefore, plaintiffs filed a Motion to Compel Substitution of the executor in place of Dr. Jones or, in the alternative, to Amend the Complaint to add the executor as a defendant. The trial court’s denial of these motions is the subject of this appeal.

Two basic reasons were provided by the court to support its decision. The court determined that since Dr. Jones died before he received service of the Complaint he was never a party to the action, and, therefore substitution by his executor would not be possible. The court also found that plaintiffs’ Complaint could not be amended to add the executor because the two year statute of limitations for negligence actions had expired before the amendment was sought. Upon review, we conclude that both findings made by the trial court are erroneous.

We will initially consider whether Dr. Jones was a “party” to this action. This determination becomes critical under the provisions of Pa.R.C.P. 2352 which refers to substitution of a successor. It provides:

(a) The successor may become a party to a pending action by filing of record a statement of the material facts on which the right to substitution is based.
(b) If the successor does not voluntarily become a party, the prothonotary, upon praecipe of an adverse party setting forth the material facts shall enter a rule upon the successor to show cause why he should not be substituted as a party.

A definition of the term successor can be found in Pa.R.C.P. 2351 which provides:

“successor” means anyone who by operation of law, election or appointment has succeeded to the interest or office of a party to an action.

A reading of these provision clearly identifies the necessity of determining whether Dr. Jones was “a party” to the action instituted by plaintiffs so that a successor can be substituted. In support of the trial court’s conclusion that Dr. Jones was not “a party” because he died before service was effectuated, Appellees point to decisions from both our supreme court and this court. Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970) Schor v. Becker, 437 Pa. 409, 263 A.2d 324 (1970); Valentin v. Cartegena 375 Pa.Super. 493, 544 A.2d 1028 (1988) citing Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). These cases, however, do not support the proposition for which they are cited, and offer very little insight into the present factual situation. It is true as Appellees claim that these cases stand for the proposition that a dead person cannot be a party to an action; but this statement presupposes that this individual died before an action was commenced.

Unlike the instant case where Dr. Jones was alive when suit was instituted, in Ehrhardt v. Costello, supra, the potential defendant died nearly one and one-half years before a writ of summons was issued. Based upon this fact the court stated:

At the time of Costello’s death, the action against him had not been ‘commenced’ and, obviously, he had not been served with any process against him in any action and, therefore, Costello never became a ‘party’ to a pending action..
During his lifetime, Costello was not a ‘party’ to any action instituted against him by Ehrhardt and could not post-mortem, be made a party..

Id., 437 Pa. at 560-561, 264 A.2d at 622-623.

The same distinction can be made in Valentin v. Cartegena, supra, where the plaintiff brought a wrongful death* action against an individual who, unbeknownst to plaintiff, died before the suit was commenced. The court ruled that “[b]ecause Cyril Laffey had died before the lawsuit against him was commenced, the suit against him was a nullity.’’ Id., 375 Pa.Super. at 495, 544 A.2d at 1029. It went' on to state: “Moreover, because a dead person cannot be a party to an action commenced after his death, substitution of a personal representative of the dead person’s estate is improper.” Id. In addition to citing Ehrhardt v. Costello, supra, the Valentin court also cites Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935) and Longo v. Estep, 289 Pa.Super. 19, 432 A.2d 1029 (1981). As in Valentin and Ehrhardt, the actions in Thompson and Longo were instituted against a person who died before the complaint was filed. These cases, unlike the one now before us, present a situation where the plaintiff’s suit is a nullity because it was brought against a person who was already dead.

The case of Schor v. Becker, 437 Pa. 409, 263 A.2d 324 (1970), is also not controlling. In Schor the court ruled that the individual who challenged the validity of the instituted action lacked standing. Although not pertinent to its decision, the court stated that the person against who suit was brought and who died before being served “was not a party to any action instituted by appellants.” While at first blush this statement may seem to determine the outcome of the instant case, it does not. First, the statement was clearly dicta. It was irrelevant to the court’s decision whether the dead man’s nephew could appear before the court to file preliminary objections when he was never appointed as a personal representative for the estate. Further the statement that the deceased was not a “party to any action instituted by appellants” where he was alive when a praecipe for writ of summons was filed, but where he died before being served, was made without the benefit of the Supreme Court’s later decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Therein the court noted that under prior practice there were differences of opinion respecting the date when an action had officially “commenced.” Id., 469 Pa. at 473, 366 A.2d 882. In considering this issue for purposes of tolling the statute of limitations the court ruled prospectively that an action will be “commenced” when a writ of summons is filed and the plaintiff complies with local practice as to the delivery of the writ to the sheriff for service. The plaintiff must refrain “from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Id., 469 Pa. at 478, 366 A.2d 882.

We find that the action in this case was “commenced” when the plaintiff filed her complaint and complied with local practice to ensure that the complaint would be served on Dr. Jones, who was at that time still alive. This determination is relevant to a discussion of the trial court’s conclusion that plaintiffs’ Complaint could not be amended to add the name of Dr. Jones’ personal representative. Although the cause of action accrued on September 25, 1986 when plaintiffs’ child died, the statute of limitations did not expire on September 25, 1988 because two days prior to that plaintiffs’ filed a Complaint against Dr. Jones and delivered this Complaint with appropriate fees to the sheriff- for service. The statute of limitations did not run, because it was tolled during Dr. Jones’ lifetime by plaintiffs’ actions. Dr. Jones was a named party in a lawsuit during his lifetime. Although personal jurisdiction was not obtained over Dr. Jones since he died before being served, this factor is irrelevant to a discussion of whether the statute of limitations has been tolled. While the Complaint was not served on Dr. Jones prior to his death, plaintiffs could reinstate the Complaint for another two years after the Complaint was originally filed. Id. Thus, although personal jurisdiction was not obtained over Dr. Jones during his lifetime, he was at the time of his death a named party in a lawsuit filed by plaintiffs. This naming coupled with plaintiffs’ actions taken in accordance with Lamp v. Heyman tolled the statute of limitations which had not yet expired and permits plaintiffs to seek substitution of the named party with his personal representative.

In Marzella v. King, 256 Pa.Super. 179, 389 A.2d 659 (1978) plaintiffs filed a writ of summons in trespass days before the applicable statute of limitations would have run. The praecipe named the the estate of George King as defendant, “clearly evidencpng] appellants’ knowledge of Mr. King’s death.” Id., 256 Pa.Superior Ct. at 389 A.2d at 660. The court found that when the summons and complaint were filed against the King estate those documents failed to designate a legal, competent entity as a defendant. The appellants made no effort to secure the appointment of an administrator prior to the running of the statute of limitations, therefore, the court refused to permit an amendment naming the administrator after the statute had passed. The Marzella decision turned on the fact that the Complaint was filed against an nonexisting entity. Much like the cases cited above, where an action is filed against a dead person, the action is void. The statute of limitations continues to run in such a situation unless a plaintiff takes affirmative steps to secure the appointment of an administrator prior to the running of the statute of limitations.

The step necessary in Marzella and other cases where a potential party predeceases the filing of a complaint or issuance of a writ of summons is not necessary in the instant case because this action was brought against a party who was, at that time, alive. The statute of limitations did not continue to run, and this fact provides the plaintiffs with an opportunity to seek substitution or amendment.

The situation presented here is somewhat unique. Plaintiffs did all that was required of them under the law to bring this action against Dr. Jones. They filed a Complaint against him during his lifetime before expiration of the statute of limitations. Plaintiffs saw to it that this Complaint was delivered to the sheriffs office along with the appropriate fees for service. Plaintiffs also sought to have the sheriff deputize the sheriff of another county to effectuate this service. The fact that Dr. Jones died before this service was made should not defeat plaintiffs cause of action where plaintiffs promptly sought substitution or amendment of the complaint to include Dr. Jone’s personal representative. We conclude that under the facts of this case, where a Complaint is filed against a party who is alive and where the plaintiff takes all necessary steps to ensure the sheriff will effectuate service but service is not made prior to the defendant’s death, the statute of limitations has been tolled and substitution or amendment of the Complaint to add the defendant’s personal representative should be permitted. Both the law and justice dictate this result.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting.

The majority concludes appellee Jones was a party to the action despite his never having been served with process. I disagree and therefore respectfully dissent from the Opinion of the majority. Initially, I believe the cases cited by appellee Jones more than support the proposition one cannot be a party to an action without having been served within one’s lifetime. Appellants did not serve appellee J. Albright Jones with the complaint until October 25, 1988, two days after the expiration of the 30-day period during which an original complaint must be served and ten days after the death of appellee Jones.

Although the majority hastily dismisses Schor v. Becker, 437 Pa. 409, 263 A.2d 324 (1970) as not controlling, I find this case is, in fact, determinative of the outcome here. The Court in Schor held the individual who died before being served “was not a party to any action instituted by appellants.’’ Id., 437 Pa. at 410, 263 A.2d at 325. While the majority dispels this finding as mere dicta, I maintain it was a pertinent conclusion because it has direct bearing on the determination of the stated issue on appeal. See id.

Furthermore contrary to the majority’s conclusion that Schor is distinguishable in light of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), I believe Lamp has no bearing on Schor and therefore Schor is controlling here. The Lamp case merely explains when a praecipe for writ of summons is deemed to commence an action for purposes of construing the tolling of the statute of limitations and not, as the majority erroneously asserts, when a case is deemed commenced for purposes of irrevocably including a party. The majority mistakenly suggests Lamp clarifies the differences of opinion, inherent in prior practice, with respect to the date when an action had officially commenced in both respects (See Majority Opinion p. 543-544). Even under Lamp, the Supreme Court held that if a praecipe is issued but not served within a reasonable time the action may be nolle prossed. Id., 469 Pa. at 475, 366 A.2d at 888. The holding in Lamp does not insulate the action from summary judgment where the plaintiff has failed to make service on an individual before he dies or in violation of Pa.R.C.P. 401. The only differences of opinion Lamp settles are those over the dating of the praecipe itself where the plaintiff filed the praecipe but instructed the prothonotary to issue it without delivering it to the sheriff for service. This decision was handed down to resolve the conflict arising out of the several counties and in prior decisions as between a “conditional” commencement of the action and a praecipe being one of three alternative methods enumerated by Pa.R.C.P. 1007. I submit there has been no difference of opinion as to the date an action could go forward, based on mandated personal service, where, as here, the complaint was filed or as in Schor where the plaintiff did not instruct the prothonotary to hold the writ without delivery.

Pennsylvania’s Rules of Civil Procedure specifically set out the three criteria for commencement of an action for the purpose of tolling the statute of limitations, the occurrence of any one of which will commence the action:

An action may be commenced by filing with the prothonotary
(1) a praecipe for writ of summons,
(2) a complaint, or
(3) an agreement for an amicable action.

Pa.R.C.P. 1007. However, as Schor clearly states, a complaint is “simply a ‘pleading’ and not a ‘process’ under Pa.R.C.P. 1007(2).” Id., 437 Pa. at 411, n. 3, 263 A.2d at 325, n. 3, citing Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970). Working under the applicable rules of civil procedure with facts suggesting no need for clarification under Lamp, the Schor court held that even if an action were commenced, the individual against whom the action is brought is not a party to the action without being served with process in his lifetime. The decision in Schor mandates the conclusion in the instant case that Dr. Jones is not a party to appellants’ action.

Additionally, appellants’ action against Dr. Jones is further hampered by appellants’ failure to effect original process within 30 days of filing the complaint. The Pennsylvania Rules of Civil Procedure provide, inter alia:

RULE 401. TIME FOR SERVICE. REISSUANCE, REINSTATEMENT AND SUBSTITUTION OF ORIGINAL PROCESS. COPIES FOR SERVICE
(a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint.
(b) (1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon “reissued” in the case of a writ or “reinstated” in the case of a complaint.
(2) A writ may be reissued or a complaint reinstated at any -time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint.
(3) A substituted writ may be issued or a substituted complaint filed upon praecipe stating that the former writ or complaint has been lost or destroyed.
(4) A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement or substitution____

Pa.R.C.P. 401. Appellants admit service was not made on Dr. Jones’ secretary until October 25, 1988, which was 32 days after the complaint was filed (Appellants’ brief, p. 6). The record also shows appellants’ did not attempt to reinstate the complaint as provided in Rule 401(b)(1). As such, the complaint was a nullity and the service of process was untimely making appellants’ attempts to bring suit against Dr. Jones futile.

For these reasons, I disagree with the majority’s conclusion and instead would affirm the trial court’s decision.


author:
JOHNSON, Judge:
      OLSZEWSKI, Judge, KELLY, Judge,

text:
    576 A.2d 985
    JOSEPH D. SHEIN, P.C., Appellant, v. Richard P. MYERS, Alan I. Reich, Robert E. Paul, and Paul, Reich & Myers.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1990.
    Filed May 23, 1990.
    Reargument Denied July 26, 1990.

      Thomas F. Johnson, Philadelphia, for appellant.
    Ben W. Joseph, Philadelphia, for appellees.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   JOHNSON, Judge:

This appeal addresses whether the court sitting in equity correctly resolved a dispute over damages resulting when three attorneys left the practice with which they had been associated, Joseph D. Shein, P.C. (Shein). When leaving the Shein firm and establishing their own firm, Richard P. Myers, Alan I. Reich and Robert E. Paul (the breakaway attorneys) committed acts found by the court to be tortious interference with the contracts between the Shein firm and its clients. The court’s remedy included a court-supervised attorney re-selection process for the clients. However, the court did not award damages to Shein.

The question presented for our decision is whether, once having found that the breakaway attorneys tortiously interfered with the contracts between Shein and his clients, the trial court may decide that tortious conduct was cured, and damages consequently obviated, by the court-designed attorney re-selection process. We conclude that established law mandates that, once a finding of tortious interference has been made, the tortfeasors must pay damages. Hence, we reverse the trial court’s order and remand to allow the trial court to calculate and to award damages to Shein.

The facts underlying this appeal are as follows. The Shein firm specializes in personal injury and asbestos litigation. Paul joined the Shein firm in 1980, Reich in 1982 and Myers in 1984. Each had little or no experience in these areas when he joined the firm. Each signed an employment contract providing that he would receive fifty percent of the net fee earned from clients he referred to the firm. From late 1984 through early fall of 1985, the breakaway attorneys engaged in partnership negotiations with Shein, By early fall, 1985, the breakaway attorneys decided not to become partners in the Shein organization. Unbeknown to Shein, they arranged financing with a bank and rented office space in preparation for opening their own firm.

At 6:00 a.m. on Sunday, October 13, 1985, the breakaway attorneys, without Shein’s permission or knowledge, arrived at Shein’s offices with a rental truck, entered the offices and removed approximately 400 case files. They transported the files to their new offices. On October 13 and 14, 1989 the breakaway attorneys contacted many of Shein’s clients by telephone, asking them to leave the Shein firm and to become clients of their new firm. In some cases, the attorneys said that they would charge lower fees than their former employer. The breakaway attorneys also wrote to some of the clients announcing that they had left the Shein firm and that they had formed a new practice. Enclosed were contingent fee agreements, powers of attorney and discharge forms to be used to inform Shein that he was discharged and to request that the clients’ files be forwarded to the breakaway attorneys.

On October 14, 1985 an emergency judge enjoined the breakaway attorneys from contacting Shein’s clients and ordered the breakaway attorneys to return the case files. On November !9, 1985 the trial court entered a final decree finding tortious interference with contract and granting injunctive relief to Shein. The trial court contacted those clients who had discharged Shein, informing them that their initial, tainted selection had been vacated and asking them to re-select their attorney.

Shein subsequently filed a supplemental complaint requesting damages resulting from- the tortious interference with contract. The trial court decided that Shein suffered no loss because the clients’ decisions to discharge Shein were ultimately voluntary. Thus, the court did not grant compensatory damages. The court did, however, by Order of May 18, 1989 award punitive damages for wrongful removal of files from Shein’s office in the amount of $10,000.00 against each of the three breakaway attorneys. The breakaway attorneys never challenged this award. The court also awarded counsel fees and costs with regard to the removal of the files. The court then established an equitable procedure for dividing the fees in the disputed cases and appointed a master to collect evidence and make recommendations for further division of fees. The order provided:

(i) REFERRAL FEES. In each case referred to plaintiff by or through any of the defendants, defendants shall be entitled to one-third of the fee for origination of the case. In each case which was not referred to plaintiff by or through any of the defendants, plaintiff shall be entitled to one-third of the fee for origination of the case. In each case where the matter was referred by any other attorney other than one employed by plaintiff or defendants, whether referred through plaintiff or defendants, the origination fee shall be reduced by the payment of the outside referral attorney’s fee.
(ii) BALANCE OF FEES. The fee balance which is left in each case after allocation of the referral fee shall be distributed as follows:
(A) In each case in which the client did or does not elect to have the defendants as counsel, the plaintiff shall be entitled to the full fee balance.
(B) In each case in which the client has or will elect to have defendants as counsel, the court shall determine the distribution of the fee balance after submission of a written recommendation by the Master pursuant to paragraph 3.

Order of May 18, 1987. “Paragraph 3” directs the master to determine the contributions of each party according to the principles of quantum meruit. By order of May 25, 1987, this Court permitted Shein to bring this interlocutory appeal. By order of August 21, 1987 the trial court denied motions for post-trial relief. It also incorporated by reference the May 18, 1987 order as a final order. Shein appeals from the August 21, 1987 order. Shein challenges the court’s refusal to award compensatory damages, alleges that the court erred in disregarding the employment contracts which gave the breakaway attorneys one-half of net fees as referral fees and questions the court’s authority to appoint a master in this equitable action. Finding merit in all these arguments, we vacate the trial court’s order and remand.

We reject the conclusion of the distinguished chancellor, the Honorable Abraham J. Gafni, that the court-imposed attorney re-selection process expunges the liability of the breakaway attorneys. Judge Gafni found that the breakaway attorneys’ conduct constituted tortious interference with contract. Under Richette v. Solomon, 410 Pa. 6, 187 A.2d 910 (1963), damages must be imposed once this finding is made. We find no authority to support Judge Gafni’s position that this liability may be supplanted by a cure of a collateral problem, the climate in which clients made their subsequent attorney selection. In so doing, Judge Gafni mislabels the clients as the damaged parties, misdefines the damage as that done to the clients’ free exercise of choice rather than as damage done to Shein’s practice and denies Shein the damages to which he is clearly entitled.

Appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion; our scope of review of a decree in equity is limited and the decree will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Lower Frederick Township v. Clemmer, 518 Pa. 313, 543 A.2d 502 (1988). We conclude that the chancellor committed an error of law and thus has abused his discretion by failing to impose liability upon the breakaway attorneys once he found tortious interference. Both the law of this Commonwealth and common sense refute Judge Gafni’s conclusion that the attorney re-selection remedy could negate the breakaway attorneys’ liability to Shein for his damages, loss of fees.

While it was within the chancellor’s equitable powers to recognize the clients’ needs and to implement the attorney re-selection process, this cannot expunge the breakaway attorneys’ established wrong. A chancellor sitting in equity may fashion a remedy in his discretion to compensate a party coming before him, but the remedy must be directed within the channels of precedent. Peoples-Pittsburgh Trust Company v. Blickle, 330 Pa. 398, 199 A. 213 (1938); County of Allegheny v. Commonwealth, 85 Pa.Commw. 73, 480 A.2d 1330 (1984), vacated on other grounds, 507 Pa. 360, 490 A.2d 402 (1985).

Neither party disputes the court’s finding of tortious interference. Pennsylvania courts employ the Restatement definition of the tort of tortious interference:

Intentional Interference with Performance of Contract by Third Person
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person’s failure to perform the contract.

Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 431, 393 A.2d 1175, 1183 (1978), cert. denied 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), quoting Section 766 of the Restatement (Second) of Torts (Tent. Draft No. 23, 1977) (emphasis supplied). The tort has three elements: 1) intentional action 2) that is improper and 3) that results in the interference of the performance of a contract with another. The Richette v. Solomon court articulated the nature of this tort in the context of lawyer-client contracts:

The relationship between a lawyer and his client is a serious, vital and solemn one. No third person may interfere with the relationship any more than he may with propriety intervene between a doctor and his patient. A claimant or patient may, of course, disengage himself from a professional relationship provided he has met all obligations owing to his legal or medical counsellor, but if that disassociation is the result of coercion or misrepresentation practiced by others, the intervenors are answerable in law as anyone else would be liable for causing the rupture of a binding contract.

Richette v. Solomon, 410 Pa. at 8-9, 187 A.2d at 912.

In Richette, a union member hired an attorney to bring a personal injury action against his employer. Union officials induced him to break the contract with the attorney. The attorney then brought an action against the union officials for tortious interference with contract. He asked for damages in the amount he would have received had the case been tried under the tortiously broken contingent fee contract as well as for punitive damages. A jury returned a verdict in favor of the attorney and awarded him compensatory damages in an amount equivalent to what his fee would have been under the contingent fee contract. The supreme court, upholding the compensatory damage award (and reducing the punitive damage award), concluded that the jury was warranted in finding tortious interference. Once the court arrived at this conclusion, the only question was whether the amount of the damage award was justified by the evidence; the court concluded that it was.

In the present case, that the breakaway attorneys’ acts were intentional and that those acts resulted in interference with performance of contracts was not at issue. Judge Gafni had only to determine whether the conduct was improper. Before the attorneys left Shein’s firm they were associates, a relationship from which they greatly benefit-ted. They handled many of the cases at issue and were well compensated for their work, with regular increases bringing their annual compensation from $25,000 to $125,-000 for Paul, $37,500 to $125,000 for Reich and $55,000 to $100,000 for Myers. The referral fees pursuant to the attorneys’ individual employment contracts with Shein supplemented this compensation. It was by virtue of their former positions as salaried associates of Shein that they had contact with the clients and were able to exploit this relationship and to induce them to break contracts with Shein.

Judge Gafni found that the following acts constituted tortious interference by the breakaway attorneys that prevented performance of the Shein firm’s contracts with its clients: surreptitious removal of four hundred files from Shein’s offices, scurrilous statements about the Shein firm and misleading letters to clients accompanied by forms to be used by clients to discharge the Shein firm. This finding of liability is supported by the finding of liability in Adler, Barish, the facts of which are substantially similar to those in the present case. The supreme court there determined that the injunctive relief imposed by the trial court was proper because the challenged conduct amounted to tortious interference. The breakaway attorneys here do not challenge Judge Gafni’s finding of tortious interference. The only issue, as raised by appellant Shein, is whether the court erred in failing to impose liability once this finding had been made.

Even if the voluntariness of clients’ choices were the dispositive issue in this case, there is no evidence of record to support a conclusion that the court’s remedy cured the taint in the clients’ minds caused by the breakaway attorneys’ improper contacts. Following the remedy’s implementation, no hearings were held to determine the remedy’s effectiveness. The court simply assumed that its remedy worked. Given the reality that one cannot wipe a thought from a person’s mind, it would be just as reasonable to reach the opposite conclusion.

Having decided that the breakaway attorneys’ behavior met the legal test and constituted tortious interference, Judge Gafni is required to recognize and to carry out the legal effect of this decision, that “one who intentionally and improperly interferes with the performance of a contract ... between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person’s failure to perform the contract.” Restatement (Second) of Torts, § 766. In this case, the liability was for loss of fees. Judge Gafni found the breakaway attorneys to be tortfeasors. No. authority allows the court to disregard this finding. The allocation of fees on a quantum meruit basis, a remedy for a situation in which there has been no .wrongdoing and thus no damages, see Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986), as is not so in the present case, was error.

We hold that, pursuant to established tort principles and to Richette, Shein must be awarded a money judgment reasonably equivalent to the anticipated revenue protected from outside interference that he would have received pursuant to the contracts had the cases remained in his firm. To so value the cases is not mere speculation; see Richette. For cases originally referred to the Shein firm by one of the breakaway attorneys, the money judgment should be half of what Shein’s reasonable expectation would be; this comports with the employment agreements granting the breakaway attorneys half of these fees as a referral fee. Hence, we reverse the order of August 21,1987 and remand for the court to determine the amount of and to award damages.

Next, we address Shein’s contention that the trial court erred in failing to enforce the provisions of the parties’ employment agreements that, in cases referred tó the Shein firm through any of the breakaway attorneys, the fees realized would be equally divided between the firm and the party through whom the case was referred. The trial court incorrectly concluded that, because employment was terminated, the contract provision was no longer binding. This fee is compensation for referral, an act which was completed before the termination of the employer-employee relationship. The court had no grounds for modifying or abrogating this contract term, and the breakaway attorneys had fully performed. Of course, Shein is bound by this contract term as well as are the breakaway attorneys. Therefore, the breakaway attorneys are entitled to one-half of an amount equivalent to fees generated by those cases which they referred to the Shein firm.

Last, we agree with Shein that the court erred in appointing a master in this equity case. The rules governing actions in equity provide:

EXAMINERS, MASTERS AND AUDITORS
Except as otherwise provided by Act of Assembly or rule of the Supreme Court, no examiner, master or auditor shall be appointed. Pa.R.C.P. 1514. It is the nature of the tasks to be performed, and not the title of the person who is to assist the court that determines whether this rule has been violated. Jackson v. Hendrick, 457 Pa. 405, 321 A.2d 603 (1974). In the present case, the master was authorized to receive evidence, briefs, arguments and other information. On the basis of this evidence he was directed to submit a written report recommending allocation of referral fees, fee balances, costs and interest on a case-by-case basis. This is precisely the type of judicial function precluded a master by Pa.R.C.P. 1514. Arcadia Theatre Co. v. Sablosky, 418 Pa. 34, 209 A.2d 375 (1965). Accordingly, we reverse the appointing of a master.

Order reversed. Case remanded. Jurisdiction is relinquished.

KELLY, J., joins and files a concurring statement.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting.

We agree with the majority that the trial'court did not have the authority to disregard the contract term regarding referral fees. We further agree that the trial court overstepped its authority in appointing a master. Nevertheless, we must respectfully dissent from the reversal of the trial court’s order regarding division of the fee balance. We agree with the trial court that a plaintiff suffers no compensable harm when clients discharge him by voluntary choice.

We agree with the statement of facts as presented by the majority; however, we wish to emphasize certain facts that were not presented by the majority. First, we note that immediately after the tortious conduct occurred, the Shein firm sent a “newsletter” to its clients telling them about the breakaway attorneys’ tortious acts. The letter said:

On another subject, this past Sunday we were shocked to discover that at 6:17 a.m. Robert E. Paul and at least one other person entered our offices and proceeded to improperly remove some case files and other legal documents, all of which are the property of this firm. Upon being observed, they departed out the back door with those files already packed, leaving others scattered about our offices.
When I questioned these unusual acts later that day he admitted to me that he had done so and that he and two other lawyers formerly of this firm were forming their own firm and intended to keep our files.
As a result, we filed an action against those three individuals in the Philadelphia Court of Common Pleas and a Preliminary Injunction has been issued requiring them to return all case files and property of this firm and prohibiting them at this time from representing or accepting the representation of any of our clients whom they have solicited,
Our firm is totally familiar with all aspects of your cases. All cases will continue to be handled by our eight lawyers and nine paralegals all of whom are experienced in asbestos litigation.

See Defendant’s Exhibit # 2, letter dated October 15, 1985.

After finding tortious interference with contract, the trial court also sent a letter to the affected clients. The court’s letter said:

Dear Client:
As you may be aware, Robert Paul, Alan Reich and Richard Myers have withdrawn from the law firm of Joseph D. Shein, P.C. to set up their own firm under the name of Paul, Reich and Myers. As a client you have a right to choose who will be your lawyer and represent you on your case. You can choose either firm. The purpose of this letter is to give you an opportunity to decide who you want to have as your lawyer and to tell the Court so that the Court can see that your wishes are carried out.
In order to tell the Court what you have decided, please fill out the enclosed form, and return it to me as soon as you have decided. This form must be completed and returned to me even if you have already signed another form within the past few weeks, as those forms are not binding and only the enclosed form will be considered by the Court. I urge you to consider this matter carefully, but not to delay in returning the form to me after your decision is made as this will assure that your case proceeds without delay.
I have ordered that neither firm should discuss the question of your choice of an attorney with you until you send back the enclosed selection form. As soon as I receive your selection, I will direct that the lawyers whom you have chosen contact you.

Letter dated November 11, 1985.

In March 1986, the Shein firm filed a supplemental complaint requesting monetary damages. Judge Gafni found that the clients’ discharge of the Shein firm was not caused by the tortious interference with contract. Findings of fact at 22. The trial court found that the Shein firm’s newsletter and the court’s prompt actions removed any taint upon the attorney selection process. Findings of fact at 23. The clients’ ultimate choice of attorney was voluntary; consequently, the trial court decided to divide fees on a quantum meruit basis, as it would have done in the absence of tortious interference. See, e.g., Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986). This appeal followed.

We believe that Judge Gafni’s acted within the scope of his discretion in fashioning a solution to this difficult problem. The newsletter and the court’s actions broke the causal link between the tortious act and the choice of attorney. The Shein firm’s loss of business was not a result of the tortious act; rather, it was a result of the clients’ voluntary decision to hire the breakaway attorneys. Under these circumstances, the trial court properly applied Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986), and divided the fees on a quantum meruit basis. The trial court merely attempted to restore the position of the parties but for the tortious conduct of the appellees.

Judge Gafni did not “mislabel[] the clients as the damaged parties [and] misdefine[ ] the damage as that done to the clients’ free exercise of choice.” See, majority opinion at 5. He merely concluded that the Shein firm incurred no monetary loss as a result of the tortious interference in this case.

The majority’s reliance on Richette v. Solomon, 410 Pa. 6, 187 A.2d 910 (1963), is misplaced. In Richette, a client discharged his attorney solely because of pressure from his union. The client would not have terminated the contract in the absence of the tortious conduct. Thus, the tortious conduct caused the attorney’s loss of fees, and the attorney was entitled to compensation.

The present case is clearly distinguishable. According to the trial court, if appellees had left the Shein firm without committing any tortious act, the clients still would have discharged the Shein firm and engaged the new firm. The tortious conduct did not cause the loss of fees, so the Shein firm has incurred no compensable harm.

The majority points out that “there is no evidence of record to support a conclusion that the court’s remedy cured the taint in the clients’ minds.” Majority at 557. The majority seems to suggest that the trial court should have held hearings, sua sponte, to determine the effectiveness of its injunctive relief. We are unaware of any authority for this novel proposition.

In addition, the majority places the burden on the wrong party. As plaintiff below, the Shein firm had the burden of proving causation. If no evidence was presented to show that the tortious acts caused the clients to discharge the Shein firm, then the Shein firm failed to meet its burden of proof. The Shein firm cannot prevail now by complaining that the evidence it presented was insufficient.

Furthermore, as the Shein firm’s attorney noted at trial, a factual inquiry at this time could not prove or disprove the voluntariness of the clients’ choice. N.T., 9/16/86 at 49. It would be unrealistic to try to prove through factual inquiry the causes which impelled the clients to make decisions more than a year ago.

The trial court was in the best position to determine whether the choice was voluntary. Judge Gafni has presided over the proceedings in this case since February 1986. He has heard testimony from many of the clients in various hearings, and he has had contact with them through the attorney selection process. Judge Gafni did not merely “assume that [his] remedy worked.” Majority at 557. He made a reasoned decision based on his extensive experience with this case. We see no reason to interfere with that decision.

In summary, we would find that the breakaway attorneys are entitled to one-half of the net fee in all cases that they initiated, which is the referral fee provided in the employment contract. We would divide the remaining half on a quantum meruit basis. In cases not initiated by the breakaway attorneys, we would divide the entire fee on a quantum meruit basis, taking into account the value of the Shein firm’s referral. All work done by the breakaway attorneys while in appellant’s employ would be attributed to the Shein firm for the purpose of quantum meruit assessment, because the breakaway attorneys acted as appellant’s agents at that time, and were appropriately compensated for their work.

KELLY, Judge,

concurring statement:

I join in the able opinion of my learned colleague Judge Johnson. I write separately to note that while we find that the damages sought are not too speculative to permit recovery, I find nothing in the majority opinion which would preclude the defendants from arguing on remand, as to each case in question, that without importuning the client nonetheless would have switched attorneys thus limiting damages, or as to cases taken on contingency, that damage assessment would be too speculative given the peculiar facts of the particular case. I also note that despite this reversal, the trial court’s discretion remains broad as to the assessment of damages on remand.

      . The Shein firm, by assigning appellees to work on these cases, effectively "referred" the cases to appellees. This referral should be considered in assessing quantum meruit.