Appeals from judgments of County Court of Allegheny County, Nos. A725 and A726 of 1964, in case of Williams and Company, Inc. v. The City of Pittsburgh, School District of Pittsburgh, and David A. Smith, City and School Treasurer.
Justin M. Johnson, Assistant School Solicitor, with him Niles Anderson, School Solicitor, for School District of Pittsburgh, appellant.
Regis C. Nairn, Assistant City Solicitor, and David Stahl, Solicitor, for City of Pittsburgh, appellant.
Norman J. Cowie, with him Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
These appeals present a dispute between the School District of the city of Pittsburgh (hereinafter District) and Williams and Company (hereinafter Taxpayer), a distributor of metal products located in the city of Pittsburgh, as to the correct amount of mercantile taxes due from Taxpayer for the years 1962 and 1963.
The District imposes a tax on all mercantile sales by authority of the Act of June 25, 1947, P. L. 1145, as amended, 53 P.S. § 6851 et seq. The tax rate on retail sales is one mill based on the gross volume of
business. The rate on brokers' sales is one-half mill based on gross commissions.
About 80 per cent of the Taxpayer's sales are filled by delivery from its own warehouse. The remaining 20 per cent are filled by shipment from suppliers directly to Taxpayer's customers. It is the proper classification for mercantile tax purposes of these sales filled through direct shipment that is the sole subject of this dispute. The District contends they are "retail sales" under the pertinent ordinances and statutes. The Taxpayer argues they are "brokerage transactions." The court below decided the question in favor of the Taxpayer and, since the amount in controversy had already been paid under protest, entered judgments in the Taxpayer's favor for that amount. The District appeals.
These briefly are the pertinent facts:
All orders, including those for the sales in controversy, are solicited and secured by salesmen of Taxpayer. When an order is obtained which involves a quantity in excess of its warehouse supply, the Taxpayer accepts the order from its customer and then places its own order with the supplier for the same quantity of material, but arranges for shipment to be made directly to the customer. Taxpayer never handles the subject of the order. The supplier bills Taxpayer in accordance with its list price. Depending upon the supplier, product and volume, Taxpayer is ...