Appeal from judgment of Court of Common Pleas of Dauphin County, No. 369 Commonwealth Docket, 1962, in case of Commonwealth of Pennsylvania v. Fred B. Lafferty, J. D. Lafferty and Charles W. Albright, Jr., partners, doing business as Lafferty Trucking Company.
Richard C. Fox, with him Martin Goodman, and Goodman & Notopoulos, and McNees, Wallace & Nurick, for appellants.
Edward T. Baker, Deputy Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellee.
Bell, C. J., Musmanno, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones and Mr. Justice Cohen took no part in the consideration or decision of this case.
The appellants, Fred B. Lafferty, J. D. Lafferty and Charles W. Albright, Jr., partners, d/b/a Lafferty Trucking Company (Lafferty), by this appeal challenge
the correctness of the judgment entered below following dismissal of their appeal from a decision of the Commonwealth's Board of Finance and Revenue sustaining an assessment for a use tax deficiency.
The sole question for decision is whether a contract carrier (Lafferty), which is not a public utility, but which renders a service identical to that rendered by a common carrier, which is a public utility, is entitled to the exclusion from taxation afforded to those engaged in a "public utility service" within the meaning of §§ 2(j)(7)(c) and 2(n)(4)(c)(iii)*fn1 of the Selective Sales and Use Tax Act.*fn2
Lafferty contends it is entitled to the exclusion. The facts were stipulated below. Lafferty conducts a business of contract carrier by motor vehicle in both interstate and intrastate commerce under rights granted to it by the Interstate Commerce Commission and Pennsylvania Public Utility Commission. Lafferty serves only one customer, a retail food chain (A. & P.) for which it transports goods and merchandise.
The first argument advanced by Lafferty is that the definitional exclusion for "public utility service" facilities, supra, is not limited by the definition of "public utility" in the Public Utility Code,*fn3 so that one
need not be a "public utility" in order for one's services to be excluded. However, it admits the term "service" is defined by reference to the Public Utility Code. This rather ingenious argument rests on two fairly recent decisions of this Court: Commonwealth v. McHugh, 406 Pa. 566, 178 A.2d 556 ...