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BOX OFFICE PICTURES v. BOARD FINANCE AND REVENUE. (01/04/61)

January 4, 1961

BOX OFFICE PICTURES, INC., APPELLANT,
v.
BOARD OF FINANCE AND REVENUE.



Appeals, Nos. 15 and 16, May T., 1960, from judgments of Court of Common Pleas of Dauphin County, Commonwealth Docket, 1958, Nos. 355 and 356, in cases of Box Office Pictures, Inc. v. Board of Finance and Revenue of the Commonwealth of Pennsylvania, and Screen Guild Productions of Philadelphia v. Same. Judgments affirmed.

COUNSEL

Edwin P. Rome, with him Morris L. Weisberg, Goncer M. Krestal, Huette F. Dowling, and Blank, Rudenko, Klaus & Rome, and Dowling & Dowling, for appellants.

George W. Keitel, Deputy Attorney General, with him Mark Yaskin, Deputy Attorney General, and Anne X. Alpern, Attorney General, for Commonwealth, appellee.

Arlin M. Adams, with him Philip M. Hammett, and William A. Schnader, and Schnader, Harrison, Segal & Lewis, for amicus curiae, corporations.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 402 Pa. Page 513]

OPINION BY MR. JUSTICE EAGEN.

To the separate appeals and complaints in mandamus filed in the court below by appellants for the refund of monies paid as license fees to the Commonwealth, the defendant Board of Finance and Revenue of the Commonwealth filed four preliminary objections, the last of which, in effect, set up a five-year limitations statute in bar of the action. The lower court sustained this particular objection and dismissed petitioners' pleadings.

Appellants are Philadelphia distributors of motion pictures. As such, they had been required by the Act of May 15, 1915, P.L. 534, as amended by the Act of May 8, 1929, P.L. 1655, 4 PS § 41 et seq. (the so-called "Motion Picture Censorship Act"), to remit to the State Board of Censors a fee of two dollars "for the examination of each film, reel or set of views of one thousand two hundred lineal feet, or less," and two dollars "for each duplicate or print thereof:" Act of May 15, 1915, P.L. 534, § 17, as amended by the Act of June 12, 1919, P.L. 475, § 1, 4 PS § 46. Pursuant to said provision, appellant Box Office Pictures, Inc., paid during the years 1947-1951 $8,564, and appellant Screen Guild Productions of Philadelphia paid during the years 1948-1951 $2,942.25, as fees to the Board of Censors. This action is for the recovery of these sums and is brought on the theory that, since the effect of the decision by this Court in Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A.2d 584 (1956) was to render void ab initio the Act of 1915, supra, as amended (said Act in Hallmark having been declared unconstitutional), the Commonwealth is not entitled to the retention of these monies. The action is brought

[ 402 Pa. Page 514]

    under Section 503(a)(4) of the Fiscal Code, 72 PS § 503(a)(4).*fn1

Appellants' petitions for refund were filed July 31, 1957, not within the period statutorily specified for the filing of said petitions with the Board. It was this issue of noncompliance with the Fiscal Code which constituted the essence of the fourth of the preliminary objections filed by defendant in the court below and which was the one upon which the lower court's decision turned, although it should be noted that the learned trial judge was not unimpressed by each of the other three objections made.

It is important at the outset to note that appellants did not aver payments of the fees under duress or compulsion. In their brief ...


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