Commonwealth v. SaccoCommonwealth v. Sacco
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- Before:
- Hester
Helen Sacco, appellant, was sentenced to probation for a period of one year and to pay a $1000 fine plus costs following her non-jury conviction of seven counts of failing to file sales tax returns and to remit sales taxes pursuant to
On February 5, 1986, appellant was charged with failure to file tax returns and failure to remit sales taxes due on August 15, 1983, September 15, 1983, September 20, 1983, October 20, 1983, November 20, 1983, and January 20, 1984, which had been collected in the operation of Piccolo Piccolo, her restaurant in Pittsburgh. At trial, the supervisor of the sales tax division of the Pennsylvania Department of Revenue testified that all the returns were filed on February 23, 1984, and all taxes due, including penalties and interest, were paid by April 16, 1984. Notes of testimony, 5/16/86, at 16-18. Notwithstanding that fact, appellant was convicted under the following statutory language:
§ 7268 . Crimes
(b) Other Crimes____ [A]ny 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, penalty or interest imposed or provided for by this article, . . . shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1000) and costs of prosecution, or undergo imprisonment not exceeding one year, or both.
*263 Appellant did not fail to file the required returns, nor did she refuse to remit the required taxes. She performed these actions nearly two years prior to the institution of criminal action. Accordingly, her convictions cannot stand.
. The Commonwealth argues that
The Commonwealth provides no persuasive authority for judicial alteration of statutorily defined criminal conduct. Its reliance on
There is no valid reason why penal statutes should not be reasonably construed according to the “fair import of their terms____” Such a rule is appropriate for a modern penal code which carefully defines crimes and defenses rather than leaving their definition to several centuries of common law.
The Commonwealth’s argument is flawed in that it asks us to supply omitted language, not to give existing language its fair meaning. Appellant’s conduct, tardiness,
*264
does not fall within the conduct proscribed by the legislature in
To the contrary, appellant’s mischief is addressed by
In Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983), the supreme court directed us to construe statutes defining criminal conduct together, stating that they are necessarily interrelated. It further guided us by ruling that legislative distinctions cannot be judicially ignored. In this case, the distinction between tardiness and nonfeasance has been made.
Case authority cited by the Commonwealth is unpersuasive; it involves interpretation of existing statutory language, not supplementation of it. See Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974) (whether prowling inside as opposed to outside premises was prowling “around” the premises); Commonwealth v. Mason, 381 Pa. 309, 112 A.2d 174 (1955) (whether a barter, transaction involved a “sale” of stock); Commonwealth v. Butler, 189 Pa.Super. 399, 150 A.2d 172 (1959) (whether a partially hidden weapon was “concealed”).
The judgment of sentence is vacated and appellant discharged.
Notes
. Section 7203 reads:
Willful failure to file return, supply information or pay tax.
Any person required under this title to pay any estimated tax or tax, or required by this title . . . to make a return, . . . who willfully *263 fails to pay such estimated tax or tax, [or] make such return, . . . at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor....
(Emphasis added).
.