Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1970, No. 2039, in case of Mellon Square Garage, Inc. v. Public Parking Authority of Pittsburgh.
Paul H. Titus, with him Samuel Kaufman, Bernard D. Marcus, and Kaufman & Kaufman, for appellant.
William J. Staley, with him Richard B. Tucker, Jr., Donald P. Eriksen, and Tucker, Burke, Campbell & Arensberg, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the decision of this case.
The central issue presented by this appeal is whether, for purposes of computing rent due under a sublease between the parties, the Pittsburgh Parking Tax is a "sales or other similar tax." We affirm the order of the court of common pleas holding the tax did not qualify as a "sales or other similar tax" and dismissing appellant's complaint for failure to state a cause of action.
It is settled that in an appeal from the sustaining of preliminary objections by a defendant in the nature of a demurrer, every well pleaded material fact set forth in the complaint and every inference reasonably deducible therefrom is admitted for purposes of appeal. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); DiBelardino v. Lemmon Pharmacal Co., 416 Pa. 580, 208 A.2d 283 (1965); Weber v. Bell Tel. Co. of Pa., 415 Pa. 292, 203 A.2d 554 (1964). Therefore, for this appeal, we will deem the following allegations in appellant's complaint to be true.
Appellant, Mellon Square Garage, Inc., operates a parking garage in the City of Pittsburgh as a tenant of the Public Parking Authority of Pittsburgh. By the terms of an agreement dated May 1, 1961 whereby appellant acquired the rights to operate the garage, both appellant and the Authority agreed that their sublessor-sublessee relationship was to be controlled by a 1953 sublease that had existed between the Authority and a prior tenant.
The sublease requires that Mellon Square Garage pay the Authority varying percentages of its annual "gross receipts" as rent. In 1955, the sublease was amended to include the following: "Gross receipts shall include all amounts actually received by the tenant for all services rendered and commodities sold by it. . . . The amount of sales or other similar tax required to be collected by the Tenant or Subtenants as collecting agent for a taxing authority upon any sale or activity conducted by Tenant or Subtenants shall not be included in determination of gross receipts." The amendment was incorporated into the 1961 agreement.
In 1962, the City of Pittsburgh enacted a Parking Tax Ordinance effective February 1, 1963, which imposed ". . . [a] tax for general revenue purposes . . . upon all transactions of each operator with respect to
each commercial parking place, at the rate of ten per cent (10%) of the gross receipts from all such transactions received upon and after the ...