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COMMONWEALTH v. ATLANTIC & GULF COAST STEVEDORES (06/24/66)

decided: June 24, 1966.

COMMONWEALTH, APPELLANT,
v.
ATLANTIC & GULF COAST STEVEDORES, INC.



Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1965, No. 2715, in case of Commonwealth of Pennsylvania v. Atlantic & Gulf Coast Stevedores, Inc.

COUNSEL

Vincent X. Yakowicz, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Richard J. Raab, with him Francis E. Marshall, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen joins in this Concurring Opinion. Concurring Opinion by Mr. Justice Roberts.

Author: Cohen

[ 422 Pa. Page 442]

Atlantic & Gulf Coast Stevedores, Inc. (Atlantic) filed corporation income tax returns for the years 1955

[ 422 Pa. Page 443]

    through 1961 with the Commonwealth of Pennsylvania denying any liability for tax on the ground that it was engaged exclusively in interstate and foreign commerce and was, therefore, exempt from taxation by the State. The Commonwealth's tax officials rejected Atlantic's contention and made settlements imposing tax for each year, duly notifying Atlantic. Atlantic ignored the notices and filed no petitions for resettlement.

On April 5, 1965, the settlements having become final, the Commonwealth filed a certificate of its lien for these taxes with the Prothonotary of the Court of Common Pleas of Philadelphia County; and on May 3, 1965, it had issued and served on Atlantic a scire facias sur lien. Atlantic answered by denying its liability for tax in the same way it had originally claimed to be constitutionally exempt.

Almost five months later the Commonwealth filed preliminary objections to Atlantic's answer, raising questions of jurisdiction, venue and sufficiency of the defense, all of which challenged Atlantic's right to raise a defense on the merits in its answer to the sci. fa. and the lower court's power to consider any such defense.

The court below dismissed the objections solely because they were not timely filed, but it indicated that the Commonwealth could obtain a prompt ruling on the issues raised by the preliminary objections simply by filing a motion for judgment on the pleadings. The Commonwealth appealed to this Court under the Act of 1925, P. L. 23, which permits interlocutory appeals on questions of jurisdiction and argues (1) that it may raise a jurisdictional question at any time in proceeding and (2) that the lower court had no jurisdiction to review the merits of Atlantic's defense.

The Commonwealth is both right and wrong. It has confused the jurisdiction of the court below to act on the sci. fa. proceedings -- a jurisdiction which it surely has -- ...


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