Appeal from the Order of the Court of Common Pleas of Washington County in case of Riverside Iron and Steel Corporation v. City of Monongahela, Monongahela School District and Ringgold School District, No. 381 September Term, 1969.
Samuel J. Goldstein, for appellant.
Joseph J. Benedict, for appellee, City of Monongahela.
William H. Robinson, for appellee, Ringgold School District.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring Opinion by Judge Blatt. Judge Crumlish joins in this Concurring Opinion.
The appellant, Riverside Iron and Steel Corporation, sued in assumpsit to recover taxes and license fees paid by it for the years 1963 through and including the year 1968. The named defendants were the City of Monongahela, Monongahela School District*fn1 and Ringgold School District.
The amended complaint upon which, together with an answer, the case was tried by the Court of Common
Pleas of Washington County without a jury, alleges the payment by the plaintiff during six years preceding suit of a total of $3254.26 in mercantile taxes to the City of Monongahela pursuant to city ordinances and that one-half of these were paid to the defendant school districts.*fn2 The basis, and the only basis, advanced by the plaintiff in its amended complaint for the refunding of the mercantile taxes was that because the plaintiff was engaged in manufacturing it was exempt from such imposts. The city's and school district's answer simply placed in issue the assertions of the amended complaint and counterclaimed for unpaid 1969 mercantile taxes. The court below entered judgment for the defendants in no amount. We affirm.
The plaintiff is a dealer in scrap metal. It collects scrap, including junk automobiles, removes non-ferrous materials, separates the ferrous metals into various grades, and cuts and presses it into bundles for sale to steel makers. Its operation is indistinguishable from that of the taxpayer in Morrisville Scrap Processing Company, Inc. Tax Appeal, 6 Pa. Commonwealth Ct. 121 (1972). The mercantile taxes here sought to be recovered were levied during the earlier years included in this complaint pursuant to a measure popularly referred to as Act 481, Act of June 25, 1947, P.L. 1145, and during later years by its replacement,
The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, 53 P.S. § 6901 et seq. These taxing statutes conferred upon certain political subdivisions, including the instant city and school district, broad power to tax persons, transactions, occupations, privileges, subjects and personal property within their limits. However, both the Act of 1947 and of 1965 withheld the power to tax "any privilege, act or transaction related to the business of manufacturing." As noted, the taxpayer contended that it was engaged in manufacturing. The city and school district raised no question as to the propriety of a suit in assumpsit to recover taxes paid without an averment of compliance with statutory procedures for refund.*fn3 The lower court tried and disposed of the case on the principal issue raised in the pleadings, that is, whether the taxpayer's activities brought it within the manufacturing exemption. It correctly determined that they did not, upon substantially the same reasoning and authorities as did this court some months later in Morrisville Scrap Processing Co., Inc. Tax Appeal, supra. As did the taxpayer in Morrisville, the appellant here relies chiefly upon Commonwealth v. ...