Appeal, No. 11, Oct. T., 1959, from order of Municipal Court of Philadelphia County, Sept. T., 1957, No. 1828, in case of City of Philadelphia v. Sam Bobman Department Store Company. Order reversed.
David Berger, City Solicitor, with him Albert J. Persichetti and James L. J. Pie, Assistant City Solicitors, and Alan Miles Ruben, Assistant to the City Solicitor, for appellant.
Ronald N. Rutenberg, with him Harry A. Rutenberg, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 189 Pa. Super. Page 73]
This is an appeal from an order of the Municipal Court of Philadelphia dismissing a motion of the City of Philadelphia for judgment on the pleadings in its suit in assumpsit to collect a delinquent tax claim.
The defendant, a Pennsylvania corporation, filed tax returns for the years 1953 and 1954, and paid the mercantile license tax which it admitted on its returns to be due. Thereafter, the city, upon audit of the defendant's records, assessed an additional tax against it in the amount of $774.13, plus interest and penalties.
[ 189 Pa. Super. Page 74]
The defendant received notice of the additional assessment on or about May 31, 1955. It did not petition the Tax Review Board for review.
The city filed a complaint in assumpsit against the defendant on September 16, 1957, to collect the $774.13 tax with interest, penalty and costs. The defendant answered the complaint by alleging that it correctly set forth in its returns, and paid, the tax which was due, and that the additional tax assessed by the city was not due. The city then filed a motion for judgment on the pleadings, contending that the answer failed to allege that the defendant had raised the issue by petition to the Tax Review Board, as required by the ordinance. The city contends that by failing to exhaust its administrative remedy, the defendant had no right to question the correctness of the additional assessment in its answer to the complaint in assumpsit.
The court below concluded that the defendant could raise the question of the amount of tax due in its answer to the city's complaint in assumpsit, and dismissed the city's motion. The city appealed to this Court.
The Philadelphia Home Rule Charter created the Tax Review Board as an administrative agency to hear and determine petitions for the review, inter alia, of assessments of the Philadelphia mercantile tax. Sections 3-100(f) and 6-207.
Pursuant to section 6-207 of the charter, which provides that the Tax Review Board shall perform such duties as may be imposed by council, the Ordinance of September 9, 1953 (p. 478, now incorporated, as amended, in Philadelphia Code §§ 19-1701, 19-1706), was adopted.
The Ordinance provided as follows:
[ 189 Pa. Super. Page 75]
"Section 4. Powers and Duties of the Tax Review Board.
"(a) The Tax Review Board shall have the following powers and duties:
"(1) To hear and determine petitions for review of any decision of an administrative officer of the City fixing the amount of any tax, water or sewer rent, license fee or other charge or ...