Appeal from the Order of the Board of Finance and Revenue in case of Petition of Eastern Diversified Metals Corporation, Docket No. C-34986.
William P. Thorn, with him Wolf, Block, Schorr and Solis-Cohen, for appellant.
Edward T. Baker, Deputy Attorney General, for appellee.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Wilkinson. Concurring & Dissenting Opinion by Judge Crumlish, Jr. Judge Blatt joins in this opinion.
Appellant files this appeal from the order of the Board of Finance and Revenue denying the prayer of its petition for a refund. The narrow question involved on the merits is whether the appellant is entitled to the Franchise Tax exemption for manufacturing or processing when its activity is reclaiming metal from scrap wire by a process of separation. However, before getting to the question on the merits, the Commonwealth has raised the question of the scope of appellate review being limited to questions of jurisdiction, regularity of proceedings, excess in exercise of powers, and constitutional issues.
Prior to the adoption of Article V, Section 9, of the Constitution of 1968, it seems clear that the scope of review would have been so limited, usually called narrow certiorari. See Graybill and Bushong, Inc. v. Board of Finance and Revenue, 414 Pa. 70, 198 A.2d 316 (1964). However, the adoption of this provision in the Constitution, as implemented by the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.101 et seq., changed this so that there is a right to appeal, not a right to narrow certiorari, from the action of the Board of Finance and Revenue. Although we have not had occasion to pass on this very point, a similar case was decided by this Court in Millersville Annexation Case, 2 Pa. Commonwealth Ct. 587, 279 A.2d 349 (1971). There it was an appeal from the validity of an ordinance which had previously been similarly limited in scope and we held that the new Constitution, together with the Appellate Court Jurisdiction Act of 1970, gave the right of a broad scope of review. We were affirmed by the Supreme Court of Pennsylvania. See Millersville Annexation Case, 447 Pa. 310, 290 A.2d 102 (1972). The reasoning of those opinions applies with equal force here and, accordingly, we hold that an appeal to this Court from an order of the Board of Finance and Revenue is entitled to a broad scope of review in considering the propriety of the Board's decision.*fn1
Having decided that the entire matter is before us for review on the merits, we conclude that the Board of Finance and Revenue was correct in refusing the
prayer of the Petition for Refund. In the Specification of Objections filed with the appeal, the appellant asserts exemption under either or both exemptions for "processing" as defined by the Act or "manufacturing" as defined by the Courts. The appeal was filed on April 29, 1971.
On July 12, 1972, this Court decided Morrisville Scrap Processing Company, Inc. Tax Appeal, 6 Pa. Commonwealth Ct. 121 (1972) wherein this Court reviewed the history of the manufacturing exemption and concluded that the separation of scrap did not constitute manufacturing. In the brief and on argument, appellant did not press its claim under this exemption, presumably realizing that this Court had ruled against his position in that area. However, since Morrisville Scrap is pending before the Supreme Court of Pennsylvania, we do not consider the argument abandoned and rule against the claim for exemption on that ground.
There remains the narrow question as to whether the record in this case could justify our ruling that the appellant's process for separating the scrap wire to extract non-ferrous metals comes within the words of the statute as being "the rolling, drawing or extruding of ferrous and non-ferrous metals." Act of June 1, 1889, P.L. 420, Section 21, as amended, 72 P.S. § 1871. Inasmuch as it is clearly not "rolling" or "drawing," appellant must establish that the process is one of extrusion. He has not done so. Indeed, an ...