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COMMONWEALTH v. GENERAL FOODS CORPORATION (03/15/68)

decided: March 15, 1968.

COMMONWEALTH, APPELLANT,
v.
GENERAL FOODS CORPORATION



Appeal from order of Court of Common Pleas of Dauphin County, No. 656 Commonwealth Docket, 1963, in case of Commonwealth of Pennsylvania v. General Foods Corporation.

COUNSEL

George W. Keitel, Deputy Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellant.

David McNeil Olds, with him Carl E. Glock, Jr., Carl F. Chronister, James H. McConomy, Kendall M. Cole, John W. Kuhnemund, and Reed, Smith, Shaw & McClay, for appellee.

Robert D. Myers, Frank A. Sinon, and Rhoads, Sinon & Reader, for amicus curiae.

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

Author: Cohen

[ 429 Pa. Page 269]

This is an appeal by the Commonwealth of Pennsylvania (Commonwealth) from an order of the Court of Common Pleas of Dauphin County sustaining the position of General Foods Corporation (taxpayer) in a controversy involving its Pennsylvania franchise tax for the year ended March 31, 1960.

Although the parties phrase the questions involved in different ways, it is clear that the issues presented here are (1) whether wages paid by taxpayer to its employees residing in Pennsylvania under circumstances described below are assignable to Pennsylvania in computing taxpayer's wages and salaries allocation fraction, (2) whether gross receipts of the taxpayer from sales to Pennsylvania customers under similar and other circumstances described below are assignable to Pennsylvania in computing taxpayer's gross receipts fraction for allocation purposes, (3) whether gross receipts of the taxpayer from sales world-wide in which independent brokers were involved are assignable to Pennsylvania in computing taxpayer's gross receipts fraction for allocation purposes and (4) whether the court below failed to follow the statutory provisions applicable to this type of proceeding. Enmeshed with these issues are a number of subsidiary ones which will be noted in the course of this opinion.

[ 429 Pa. Page 270]

As is the customary practice, this case was tried without a jury pursuant to the provisions of § 1 of the Act of April 22, 1874, P. L. 109, 12 P.S. § 688. The applicable procedure is set forth in § 2, 12 P.S. § 689, of the Act, as follows: "The decision of the court shall be in writing, and, if requested by counsel for either party for the purposes of filing exceptions or for the taking of an appeal, shall state separately and distinctly the facts found, the answers to any points submitted in writing by counsel and the conclusions of law, and shall be filed in the office of the prothonotary or clerk of the proper court where the case is pending, as early as practicable, not exceeding sixty days from the termination of the trial, and notice thereof shall be forthwith given by the prothonotary or clerk to the parties or their attorneys. . . ."

Usually, in this type of tax appeal the facts are established by means of a stipulation entered into between the parties. In such circumstances it is a satisfactory compliance with the above statutory language for the trial court to state that it adopts as its findings of fact in the case those facts which have been stipulated as such by the parties.*fn1

In this case, however, although the parties did enter into a stipulation of facts containing 93 paragraphs of agreed factual data and covering 43 printed pages in the record, together with 43 exhibits to the stipulation covering 334 printed pages in the record, they were unable to agree that this stipulation and exhibits was sufficient to complete the evidence necessary to decide the case. They presented testimonial evidence taking another 257 printed pages in the record. Following these proceedings, briefs were filed and oral

[ 429 Pa. Page 271]

    argument was held; and the record was submitted to the trial court for decision on April 13, 1965.

On September 19, 1966, the court handed down its decision sustaining the taxpayer. In its opinion the lower court narrated the factual material it found relevant but did not "state separately and distinctly the facts found . . . and the conclusions of law. . . ." The Commonwealth, in this appeal, complains of (1) the eighteen month delay between the close of the trial and the filing by the court of its decision and (2) the court's failure to make specific findings of fact and conclusions of law.

The statute does, of course, set forth a sixty day time limit for a decision. However, in a context such as this, use of the word "shall" cannot be construed as setting a mandatory limit on the time in which the court may act. Both this Court (with regard to this statute) and the Superior Court (with regard to another act) have stated that such a provision is directory only. In re Griffith Will, 358 Pa. 474, 57 A.2d 893 (1948); Damon v. Berger, 191 Pa. Superior Ct. 165, 155 A.2d 388 (1959).

While, as a matter of judicial administration, we do not condone a delay of such length in handing down a decision, we can understand how in a given case it may occur. The complexities of fact-finding and application of difficult legal concepts may well prolong the decisional process. We are not prepared here to take any action in connection with the delay.

The Commonwealth's other objection is more serious. Both it and the taxpayer made specific requests for findings of fact and conclusions of law. In the context of so much testimonial evidence, factual findings in sufficient detail to enable both the parties and this Court on appeal to know what underlies the decision below are obviously a necessity. Otherwise, we

[ 429 Pa. Page 272]

    would be compelled to review the record not just to determine if the lower court's findings are supported by credible and competent evidence, but to discern for ourselves what facts are ...


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