Appeal, No. 439, Jan. T., 1961, from decree of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1960, No. 1876, in equity, in case of Radio Corporation of America v. Mortin E. Rotman, Commissioner of Revenue of City of Philadelphia, and City of Philadelphia. Decree vacated; reargument refused August 6, 1963.
Levy Anderson, First Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellant.
M. H. Goldstein, with him Goldstein and Barkan, for intervening appellants.
Jerome J. Shestack, with him Bernard G. Segal, and Schnader, Harrison, Segal & Lewis, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
This is an appeal from the decree of the court below enjoining the City of Philadelphia from proceeding against appellee under the withholding provisions of the Philadelphia Income Tax Ordinance. A recitation of the position of the various parties to this litigation makes clear the proper disposition of this appeal.
Appellee, Radio Corporation of America (RCA), conducts business in Philadelphia and also has various plants in New Jersey where it employs approximately 2700 residents of Philadelphia, all of whom are subject to the Philadelphia income tax. Because of the inconvenience and difficulty of collecting the tax from each individual employee, the City of Philadelphia has demanded that RCA withhold the tax. Intervening appellants, the unions which represent the employees in question, have joined in this demand, being partly motivated by the City's promise to waive certain accumulated interest and penalties if RCA henceforth agrees to withhold the tax.
For its part, RCA is willing to withhold the tax except for its fear of prosecution under the New Jersey
"Wage Payment Law" which provides, inter alia, that each employer doing business in New Jersey shall pay at least every two weeks "the full amount of wages earned and unpaid." N.J.S.A. 34:11-4. RCA does not now question either its coverage under the withholding provisions of the Philadelphia Income Tax Ordinance or the constitutional power of the City to require it to withhold in New Jersey. It refuses to withhold, however, until it receives either (1) an assurance from the Attorney General of New Jersey that he will not prosecute RCA for violating the Wage Payment Law; or (2) a judicial determination that the Wage Payment Law does not prohibit the withholding of the Philadelphia income tax.
With regard to possible prosecution by the attorney general's office, the Attorney General of New Jersey in 1958, at the request of RCA, issued a formal opinion stating that he considered the Wage Payment Law to prohibit RCA from withholding the Philadelphia income tax. Since that time, a letter has issued from the attorney general's office casting doubt on the present status of the 1958 Opinion. We must conclude, however, that the record in this ...