Appeals, Nos. 19 and 20, May T., 1963, from order of Court of Common Pleas of Dauphin County, Commonwealth Docket, 1961, Nos. 331 and 357, Equity Docket Nos. 2487 and 2492, in cases of Philadelphia Life Insurance Company v. Commonwealth of Pennsylvania, Charles M. Dougherty, Secretary of Revenue, Thomas Z. Minehart, Auditor General, David Stahl, Attorney General, et al., and Plymouth Mutual Life Insurance Company v. Same. Order affirmed.
Mark Yaskin, Deputy Attorney General, with him David Stahl, Attorney General, for appellants.
Sanford D. Beecher, with him Lowell S. Thomas, Jr., and Duane, Morris & Heckscher, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The basic issue on this appeal*fn1 is the jurisdiction of a court of equity: (a) to restrain officials of the Commonwealth from the enforcement of an allegedly invalid tax statute; (b) to determine the constitutionality or unconstitutionality of a tax statute; (c) to act where a statutory remedy is provided for the settlement of the taxes imposed by the statute.
The Act of February 21, 1961, P.L. 33, 72 PS § 2270.1, imposes a state tax at the rate of two per
centum on gross premiums, premium deposits and assessments received from all insurance business transacted in Pennsylvania by every foreign insurance company, association or exchange and by every domestic life insurance company, except mutual beneficial associations.
On June 21, 1961, Philadelphia Life Insurance Company (Company) filed a complaint in equity in the Court of Common Pleas of Dauphin County against Charles M. Dougherty, Secretary of Revenue, Thomas Z. Minehart, Auditor General, and Anne X. Alpern, Attorney General, (appellants), seeking to have the Act of 1961, supra, declared unconstitutional and the appellants restrained from enforcing the statute against the Company. In view of the very narrow issue presented on this appeal, the various allegations of the complaint need not be considered except to note that the Company alleges that the statute is in violation of both the United States and Pennsylvania Constitutions.
Appellants filed preliminary objections based on two grounds: (a) that the complaint does not set forth a cause of action that can be entertained by a court of equity and (b) that the Company has a full, complete and adequate remedy at law.*fn2
On August 22, 1962, the Court of Common Pleas of Dauphin County overruled appellant's preliminary objections. From that order this appeal was taken.
Appellants have three contentions: (1) that this action is a suit against the Commonwealth to which it has not consented; (2) that a court of equity is without authority to restrain the enforcement of a state tax statute on the ground that it is unconstitutional; (3) that the Company has a full, complete and adequate remedy at law.
Is the Present Suit Against the Commonwealth?
It is settled beyond any question that the Commonwealth is immune from suit without its consent: Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A.2d 534; Box Office Pictures, Inc. v. Board of Finance and Revenue, 402 Pa. 511, 166 A.2d 656. Such immunity extends to actions ...