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MOTCH & MERRYWEATHER MACHINERY COMPANY v. PITTSBURGH SCHOOL DISTRICT (05/23/55)

May 23, 1955

MOTCH & MERRYWEATHER MACHINERY COMPANY
v.
PITTSBURGH SCHOOL DISTRICT, APPELLANT.



Appeals, Nos. 138 and 140, March T., 1954, from orders of County Court of Allegheny County, 1952, Nos. A-1305 and A-1306, in cases of The Motch & Merryweather Machinery Company v. School District of Pittsburgh and David A. Smith, Treasurer; and same v. City of Pittsburgh and David A. Smith, Treasurer. Judgment affirmed.

COUNSEL

Oscar G. Peterson, Assistant Solicitor, with him Mortimer B. Lesher, Solicitor and Niles Anderson, Assistant Solicitor, for appellants in No. 138.

Robert Engel, Assistant City Solicitor, with him J. Frank McKenna, City Solicitor, for appellants in No. 140.

Carl E. Glock, Jr., with him Reed, Smith, Shaw & McClay, for appellee.

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

Author: Bell

[ 381 Pa. Page 620]

OPINION BY MR. JUSTICE

The City and School District of Pittsburgh sought to subject the plaintiff to mercantile license taxes. The Mercantile License Tax Act of June 20, 1947, P.L. 745 and Ordinance No. 488 of December 1, 1947, respectively prescribe a license fee for the privilege of doing business, viz., a millage tax on the volume of the annual gross business transacted by every person engaged in certain specified occupations or businesses in the City of Pittsburgh.

Appellants contend plaintiff is liable for the tax because it is a "dealer". The word "dealer" is thus defined in the ordinance: "(b) 'Wholesale dealer' or 'wholesale vendor' shall mean any person who sells to dealers in, or vendors of, goods, wares and merchandise and to no other persons. (c) 'Retail dealer' or 'Retail vendor' shall mean any person who is a dealer in or vendor of goods, wares and merchandise who is not a wholesale dealer or vendor."

Plaintiff is an Ohio corporation with its main office and its manufacturing plants in Ohio. Its business is manufacturing and selling machine tools; it also buys and sells machine tools manufactured by others. It solicits business in Pittsburgh by so-called solicitors who call on the customers at the latter's

[ 381 Pa. Page 621]

    places of business. All orders obtained by the solicitors must be accepted in writing only at and by the home office, so that no contract is ever made in Pennsylvania. No stock of goods or samples are kept in Pennsylvania, and appellee's goods have never come to rest physically in Pittsburgh. All goods bought or sold are contracted for outside of Pennsylvania and shipped from outside of Pennsylvania to purchasers in Pennsylvania and elsewhere. There are no bank accounts, directors' meetings, shareholders' meetings, officers or directors in Pennsylvania. However, plaintiff maintains an office in Pittsburgh for their salesmen or solicitors who cover western Pennsylvania, parts of Ohio and West Virginia. Records of the orders obtained by the solicitors are kept in Pittsburgh. The solicitors or salesmen in the Pittsburgh office notify customers of price changes subsequent to the salesmen's quotations, keep a copy of invoices, investigate customers' complaints and report them to the home office, and provide the customer with follow-up information concerning shipments of machine tools purchased. All pricing, credit investigation, acknowledgment of orders, ordering from manufacturers, invoicing, collecting, shipping arrangements, keeping of accounts, payment of salaries, payment of expenses of the Pittsburgh office, and all advertising, is done in Cleveland.

In Law v. Atlantic Coast Line Railroad Co., 367 Pa. 170, 79 A.2d 252, the Court said: "While defendant was doing considerable business, as we shall see, in Philadelphia County, the question involved is whether it was 'doing business' within ...


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