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UNIVERSAL FILM EXCHANGES v. BOARD FINANCE AND REVENUE. (11/13/62)

November 13, 1962

UNIVERSAL FILM EXCHANGES, INC., APPELLANT,
v.
BOARD OF FINANCE AND REVENUE.



Appeals, Nos. 18, 19, 20, 21, 22, 23, 24 and 25, May T., 1962, from orders of Board of Finance and Revenue, Nos. M-16585, M-16586, M-16587, M-16589, M-16590, M-16591, M-16592 and M-16593, in case of Universal Film Exchanges, Inc. v. Board of Finance and Revenue, Allied Artists Distributing Corp. v. Same, RKO General, Inc. v. Same, Paramount Film Distributing Corp. v. Same, Twentieth Century-Fox Film Corp. v. Same, United Artists Corporation v. Same, Columbia Pictures Corp. v. Same, and Loew's Incorporated v. Same. Orders affirmed.*fn*

COUNSEL

Arlin M. Adams, with him Philip M. Hammett, Samuel D. Slade, William A. Schnader, and Schnader, Harrison, Segal & Lewis, for appellants.

George W. Keitel, Deputy Attorney General, with him Edward T. Baker, Deputy Attorney General, and David Stahl, Attorney General, for Board of Finance and Revenue, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Bell

[ 409 Pa. Page 182]

OPINION BY MR. CHIEF JUSTICE BELL

These eight appeals seek review of Orders of the Board of Finance and Revenue denying refunds of motion picture censor license fees paid by them between 1915 and 1953. Appellee moved to quash and this motion was orally argued together with the appeals on the merits.

The present appellants have for many years been major distributors of motion pictures in the Commonwealth of Pennsylvania and elsewhere. Appellants continuously paid to the Pennsylvania State Board of Censors annual license fees of $2.00 for each film, under the Motion Picture Censorship Act from its effective date in 1915 until March, 1956, when - as required by Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 - that Act was declared unconstitutional by this Court in Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A.2d 584 (1956).

[ 409 Pa. Page 183]

The First Amended Petitions for refund were presented to the Board of Finance and Revenue at a hearing on July 2, 1959. These petitions covered only the amount of license fees paid within five years from the date of the filing of Appellants' original refund petitions, to wit, $337,436.25. The Board on July 8, 1959, ordered refunds, in the nature of credits, to each of these eight appellants in the exact amounts claimed.

Appellants, four and one-half months after this Court's decision in Box Office Pictures v. Board of Finance and Revenue, 402 Pa. 511, 166 A.2d 656, filed with the Board the (present) Second Amended Petitions for refund of license fees which were paid by them more than five years prior to the filing of appellants' original refund petitions. These claims totaled $4,637,258.14 and upwards for the period between 1915 and 1953. In these present amended petitions, appellants averred for the first time that the license fees were paid "under duress and compulsion". This averment was obviously made in an attempt to bring their claims within certain language of this Court contained in the Box Office Pictures case, supra. No answers were filed by the Board to appellants' present petitions. A hearing was held by the Board on these petitions on September 26, 1961, but no testimony was taken. On October 9, 1961, the Board entered the following Orders (as of October 3, 1961):

"After full consideration the Prayer of this Petition is refused." The present appeals were taken from these Orders.

Section 503(e) of the Fiscal Code of April 9, 1929, P.L. 343, as amended, 72 P.S.§ 503(e) provides: "The action of the Board on all petitions filed under this section shall be final." These appeals are therefore in the nature of narrow certiorari.

"If an appeal is prohibited by an Act, or the decision of the Agency is stated to be final or conclusive,

[ 409 Pa. Page 184]

    the law is well settled that an appeal will lie to the Courts in the nature of a narrow certiorari and this Court will review only (1) the question of jurisdiction; (2) the regularity of the proceedings before the Agency; (3) questions of excess in exercise of powers; and (4) constitutional questions: Cf. DeVito v. Civil Service Commission, 404 Pa. 354, 172 A.2d 161 (and cases cited therein); Dauphin Deposit Trust Company v. Myers, 401 Pa. 230, 164 A.2d 86:" Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 173 A.2d 97.

Appellants contend that the five year Statute of Limitations in Section 503(a)(4)*fn1 of the Fiscal Code of 1929, supra, is unconstitutional when applied to bar recovery of license fees exacted by the Commonwealth for many years under the duress and compulsion of an unconstitutional act, viz., the Motion Picture Censorship Act. They thus raise a constitutional question and consequently appellee's motion to quash the appeal is denied.

Appellants, motion picture distributors, were required by the Motion Picture Censorship Act of May 15, 1915, P.L. 534, as amended by the Act of May 8, 1929, P.L. 1655, 4 P.S. § 41 et seq., 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. The present actions were brought under Section 503(a), although more properly under Section 503(a)(4), of the Fiscal Code, supra, which pertinently provides: "Section 503. Refunds of State Taxes, License Fees, Et Cetera. - The

[ 409 Pa. Page 185]

Board of Finance and Revenue shall have the power, and its duty shall be, (a) To hear and determine any petition for the refund of ... license fees ... paid to the Commonwealth and to which the Commonwealth is not rightfully or equitably entitled .... All such petitions for refund must be filed with the board within two years of the payment of which refund is requested, or within two years of the settlement in the case of taxes or bonus, whichever period last expires, except ... (4) When any tax or other money has been paid to the Commonwealth, under a provision of an act of Assembly subsequently held by final judgment of a court of competent jurisdiction to be unconstitutional*fn2 .... In such case, ...


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