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BROWN & ZORTMAN MACHINERY COMPANY v. PITTSBURGH (11/09/53)

November 9, 1953

BROWN & ZORTMAN MACHINERY COMPANY, APPELLANT,
v.
PITTSBURGH



Appeals, Nos. 202 and 203, March T., 1953, from orders and decrees of Court of Common Pleas of Allegheny County, Jan. T., 1950, in Equity, No. 2478 and No. 2528, respectively, in cases of Brown & Zortman Machinery Company v. City of Pittsburgh and James P. Kirk, Treasurer, and Same v. School District of Pittsburgh and James P. Kirk, Treasurer. Orders and decrees affirmed.

COUNSEL

Frank W. Ittel, with him George L. Eynon and Reed, Smith, Shaw & McClay, for appellant.

Oscar G. Peterson, Assistant Solicitor for School District of Pittsburgh, and Robert Engel, Assistant City Solicitor, with them Mortimer B. Lesher, Solicitor for School District of Pittsburgh, Niles Anderson, Assistant Solicitor for School District of Pittsburgh, and Anne X. Alpern, City Solicitor, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 375 Pa. Page 252]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff company seeks to have this Court declare it to be a broker and not a dealer. This preferred nomenclature is desired not for academic reasons but for the very practical purpose that a broker pays a lower mercantile tax than a dealer.

Under the provisions of an ordinance of the City of Pittsburgh passed by virtue of Act No. 481 of June 25, 1947, P.L. 1145 (53 PS 2015.1 et seq) the plaintiff was classified as a retail dealer or vendor, to pay a mercantile tax at the rate of 2 mills per dollar on its gross annual sales. Through the operation of the School Mercantile Tax Law (Act of June 20, 1947, P.L. 745, 24 P.S. 582.1 et seq) it was also classified as a retail dealer or vendor to pay mercantile tax at the rate of one mill per dollar on its annual gross sales. The plaintiff brought a suit in equity to restrain the Treasurer of the City of Pittsburgh from claiming and collecting the tax as indicated, and it appealed from the deficiency claim of the School District on the same basis. Both actions were consolidated in the lower court which dismissed the bill in equity and refused the appeal from the School District claim. The plaintiff has now appealed to this Court contending that it should have been assessed on its sales as a broker at the rate of one mill by the City and 1/2 mill by the School District. Further, that if it may not be classified as a broker, it should then be assessed as a wholesale vendor or dealer and not as a retail vendor or dealer, the rates for which are twice as high as those for the wholesale vendor or dealer.

[ 375 Pa. Page 253]

The Brown & Zortman Machinery Company sells machine tools, such as power operated lathes, drills and presses. These articles are purchased from various manufacturers who guarantee the plaintiff company an exclusive sale territory. When the plaintiff obtains an order it sends it to the manufacturer who ships the item directly to the customer but bills the plaintiff company. The plaintiff company bills the customer, the difference between the price paid or to be paid by Brown & Zortman and the price charged to the customer representing Brown & Zortman's profit. The plaintiff on appeal refers to these profits as "commissions", but this terminology, although more germane to brokerage than vending, cannot of itself create a status which the facts do not support.

The plaintiff argues that since it maintains no stock or showroom it cannot be a vendor. But one may buy and sell without displaying wares. Vendors of locomotives or cranes rarely maintain showrooms for "shopping" display. The articles which the plaintiff sells are huge mechanical contrivances which range in weight from 500 to 100,000 pounds. No purpose could be served in stocking such leviathans of machinery.

The plaintiff advances the novel proposition that unless its business "clearly falls within the category of a dealer or vendor," it must be presumed to be a broker. But this argument is not tenable. The plaintiff company falls into one class or the other through objective facts and not through presumption.

In Keys v. Johnson, 68 Pa. 42, 43, this Court said: "Brokers are persons whose business it is to bring buyer and seller together. They need have nothing to ...


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