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COMMONWEALTH v. YORKTOWNE PAPER MILLS (11/09/65)

decided: November 9, 1965.

COMMONWEALTH, APPELLANT,
v.
YORKTOWNE PAPER MILLS, INC.



Appeal from judgment of Court of Common Pleas of Dauphin County, No. 389 Commonwealth Docket, 1961, in case of Commonwealth of Pennsylvania v. Yorktowne Paper Mills, Inc.

COUNSEL

Edward T. Baker, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

W. William Anderson, with him Markowitz, Kagen & Griffith, for appellee.

Richard C. Fox, with him James H. King, and McNees, Wallace & Nurick, for amicus curiae.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 419 Pa. Page 365]

Appellee, Yorktowne Paper Mills, Inc., was assessed a sales and use tax under the Act of March 6, 1956, P. L. (1955) 1228, as supplemented and amended, 72 P.S. §§ 3403-1-3403-605, which it paid and promptly contested by filing a petition for refund. Upon the denial of its petition, and the denial of a petition for review, Yorktowne appealed to the Court of Common Pleas of Dauphin County, sitting as Commonwealth Court.

The case was tried by stipulation without a jury. Approximately one month after the trial, and before a decision was rendered, the Commonwealth for the first time raised the issue of the timeliness of the appeal by a motion to quash. The court below denied the motion. Its decision on the merits partially dismissed and partially sustained Yorktowne's appeal, ordering a refund in the amount of $852.36 and sustaining the tax on various items in the amount of $475.95. The Commonwealth brought the present appeal, contending that the court below erred in refusing to grant its motion to quash and in finding that certain items were not taxable under the statute.

[ 419 Pa. Page 366]

The first issue before this Court is the timeliness of the appeal in the court below. The stipulated facts indicate that the Board of Finance and Revenue denied Yorktowne's petition for review on June 2, 1961, and that Yorktowne subsequently appealed this decision to the Commonwealth Court on August 2, 1961. A copy of the notice containing the order of the board's denial was attached to the stipulation of facts as Exhibit "D". A notation on the bottom of this notice contained the recital that it had been mailed to Yorktowne on June 2, 1961.

Section 555 of the Selective Sales and Use Tax Act, Act of March 6, 1956, P. L. (1955) 1228, as supplemented and amended, 72 P.S. § 3403-555, provides: "Any person aggrieved by the decision of the Board of Finance and Revenue under section 554, or by the board's failure to act upon a petition for review within six months may, within sixty days, appeal to the Court of Common Pleas of Dauphin County from the decision of the board or of the department . . . in the manner now or hereafter provided for by law for appeals in the case of tax settlements."

The manner "provided for by law for appeals in the case of tax settlements" is set forth in § 1104 of The Fiscal Code, Act of April 9, 1929, P. L. 343, as amended, 72 P.S. § 1104 (Supp. 1964), as follows: "Any . . . corporation . . . aggrieved by the decision of the Board of Finance and Revenue . . . may within sixty (60) days, appeal to the court of common pleas of Dauphin County from the decision of the Board of Finance and Revenue . . . . The said sixty (60) day period shall ...


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