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ALCO PARKING CORPORATION ET AL. v. PITTSBURGH (07/02/73)

SUPREME COURT OF PENNSYLVANIA


decided: July 2, 1973.

ALCO PARKING CORPORATION ET AL., APPELLANTS,
v.
PITTSBURGH

Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1970, No. 1699, and decision of Commonwealth Court of Pennsylvania, No. 643 C.D. 1971, in re Alco Parking Corporation, Arena Parking, Inc. et al. v. City of Pittsburgh.

COUNSEL

Leonard M. Marks, of the New York Bar, and Leonard Boreman, with them Richard H. Martin, Gold, Farrell & Marks, and Baskin, Boreman, Sachs, Wilner, Gondelman & Craig, for appellants.

Ralph Lynch, Jr., City Solicitor, with him Grace S. Harris, Special Assistant Solicitor, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice O'Brien concurs in the result. Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Roberts

[ 453 Pa. Page 247]

This controversy presents the interesting and novel question of whether the enactment, by a municipal government, of a 20 percent gross receipts tax upon all non-residential, commercial parking facilities in that municipality, combined with direct governmental competition

[ 453 Pa. Page 248]

    in the form of a public parking authority, charging lower rates, has resulted in an unconstitutional taking and confiscation of private property without due process of law.

Appellants are twelve owners and operators of parking lots and garages representing approximately 71 percent of the total commercial parking spaces in downtown Pittsburgh. On February 20, 1970, appellants filed a complaint in equity in the Allegheny County Court of Common Pleas seeking to restrain the City of Pittsburgh (appellee) from enforcing the provisions of Ordinance No. 704 (Parking Tax Ordinance), and seeking a refund of all taxes paid thereunder. The Parking Tax Ordinance, approved by the Pittsburgh City Council on December 31, 1969, and enacted pursuant to the Local Tax Enabling Act, Act of December 31, 1965, P. L. 1257, §§ 1 et seq., 53 P.S. §§ 6901 et seq., imposed a tax of 20 percent on the gross receipts of all nonresidential commercial parking transactions within the city limits.

This Parking Tax Ordinance (No. 704) superseded and replaced Ordinance No. 675, enacted by the City of Pittsburgh in 1968 establishing a gross receipts tax of 15 percent on all non-residential commercial parking transactions in the city. Ordinance No. 675, in turn, had replaced Ordinance No. 434, which had originally established the gross receipts tax rate of 10 percent.

In their complaint in equity appellants asserted (1) that the Parking Tax Ordinance was so excessive and unreasonable that it amounted to a confiscation of appellants' property without due process of law, and (2) that the Ordinance violated Article VIII, Section 1 of the Pennsylvania Constitution,*fn1 and the equal protection

[ 453 Pa. Page 249]

    clause of the Fourteenth Amendment of the United States Constitution in that the city had no reasonable basis for separately classifying appellants' commercial parking operations for the purpose of taxation. After a trial the Allegheny County Court of Common Pleas issued a Decree Nisi, on March 19, 1971, dismissing appellants' complaint, having found no taking of property without due process, and no violation of either the Pennsylvania or the United States Constitutions. Appellants' timely filed exceptions to the decree were dismissed by the court en banc on July 11, 1971, whereupon a final decree was entered.

Appellants then appealed to the Commonwealth Court which affirmed the decree of the common pleas court on June 8, 1972, by a vote of four to three. Appellants' petition for reargument was granted by the Commonwealth Court on June 29, 1972. However, after reargument the Commonwealth Court adhered to its prior decision, affirming the chancellor's decree on October 10, 1972. Subsequently, on November 6, 1972, appellants filed a petition for allowance of appeal with this Court. That petition was granted on January 23, 1973. We now reverse and remand.

I.

Appellee, the City of Pittsburgh, contends, initially, that this Court lacks jurisdiction to hear this appeal because appellants' petition for allowance of appeal was not timely filed. See Nardo v. Smith, 448 Pa. 38, 292 A.2d 377 (1972). Consequently appellee has moved to quash this appeal. In its motion to quash appellee alleges that appellants' petition for allocatur was not filed until November 6, 1972, almost five months after the issuance of the final order and opinion of the Commonwealth Court of June 8, 1972 -- clearly not within the 30-day time limit for perfecting an appeal as provided

[ 453 Pa. Page 250]

    by statute. See Act of July 31, 1970, P. L. 673, art. V, § 502, 17 P.S. § 211.502 (Supp. 1972).

Appellee's contention is that the grant of the petition for reargument by the Commonwealth Court on June 29, 1972 (within the 30-day appeal period), unless accompanied by an order staying the proceedings, does not toll the 30-day period within which appellants must file their appeal. See Francis v. J. A. Brashear M. School Dist., 435 Pa. 589, 258 A.2d 509 (1969); Smith v. Jones, 369 Pa. 13, 85 A.2d 23 (1951); Erie v. Piece of Land, 341 Pa. 310, 17 A.2d 399 (1941). Since no such specific stay of the proceedings was issued by the Commonwealth Court, appellee asserts that the time for perfecting the appeal expired 30 days after the original June 8, 1972 order of the Commonwealth Court, regardless of that court's grant of reargument within the 30-day period.

Appellants contend that in good faith, after reargument had been granted, they contacted the Prothonotary of the Supreme Court who advised them that a petition for allocatur should not be filed until after the Commonwealth Court's order, following reargument, had been entered. Relying upon this information appellants did not file their petition until November 6, 1972 -- a date within 30 days of the Commonwealth Court's order, after reargument, affirming the decree below.

While appellants may not have been justified in relying on the legal advice of a court official, nevertheless the rule of law urged upon this Court by the appellee is not only contrary to logic but to the laws of physics as well. The granting of a petition for reargument within the 30-day appeal period necessarily indicates an intention by the granting court to stay the proceedings, and is in reality such a stay, in order to keep the record before that court, during reargument, pending any change or modification of the court's initial order after reargument. In these circumstances to

[ 453 Pa. Page 251]

    require appellants to file a petition for allowance of appeal within 30 days of the original order of the Commonwealth Court would have the effect of placing them in two courts at the same moment. It is legally and physically impossible for the record in any case to be pending before two separate appellate courts of this Commonwealth simultaneously. Indeed, a reargument is clearly a reconsideration by a court of a particular case. To slavishly adhere, as the appellee insists, to a rule requiring a court to also issue an order staying the proceedings would be needlessly elevating mere form over substance.

Certainly it is illogical, as well as senseless, to require a litigant to file an appeal, or petition for allowance of appeal, to a second appellate court while his case is still pending before the first appellate court, about to reconsider his case. To compel him to do so in advance of the reargument is indeed a useless, wasteful, and premature procedure. Assuming the court's initial decision is reversed upon reargument, the litigant may not even desire to file an appeal at the later time. If an appeal is desired after the reargument, that is the appropriate time for setting the appeal procedure in motion. This Court will not mandate such a purposeless burden and expenditure of professional and judicial time and effort.

These considerations lead us inexorably to the conclusion that where, as here, the Commonwealth Court granted appellants' petition for reargument within the prescribed period, the proceedings were thereby stayed, pending a reconsideration upon the merits after reargument. Appellants' petition, filed within 30 days of the Commonwealth Court's post-reargument disposition, was therefore timely. The motion to quash the appeal is denied. To the extent that any prior decisions of this Court are inconsistent with this holding they are no longer controlling.

[ 453 Pa. Page 252]

    argues that the issues raised by appellants are not "substantial constitutional questions" and that appellants had a specific statutory remedy of which they failed to avail themselves. See Local Tax Enabling Act, Act of December 31, 1965, P. L. 1257, § 6, as amended, 53 P.S. § 6906.*fn3

However, appellee did not raise this issue below and may not raise this issue here for the first time. The record clearly discloses that appellee interposed no objection to the propriety of the equity court proceeding either prior to, during, or after the trial below. In fact, one of the chancellor's express conclusions of law, to which appellee took no exception was: "This court sitting

[ 453 Pa. Page 254]

    in equity has jurisdiction of the parties and of the subject matter of this proceeding." This Court has repeatedly emphasized, and it is now beyond cavil, that "we will not review questions that were neither raised, tried, or considered in the trial court." Robert J. Felte, Inc., v. White, 451 Pa. 137, 302 A.2d 347 (1973); Heppe Estate, 440 Pa. 328, 269 A.2d 687 (1970); Man O'War Racing Ass'n, Inc. v. State Horse Racing Commission, 433 Pa. 432, 250 A.2d 172 (1969); Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246 (1963); Clark v. Rutecki, 408 Pa. 25, 182 A.2d 687 (1962); Bechler v. Olivia, 400 Pa. 299, 161 A.2d 156 (1960); Rosenfeld v. Rosenfeld, 390 Pa. 39, 133 A.2d 829 (1957).

III.

Proceeding to the merits of the case, appellants attack the constitutionality of the Parking Tax Ordinance on two grounds. They first contend that the Ordinance violates both the uniformity clause of the Pennsylvania Constitution and the equal protection clause of the Fourteenth Amendment of the United States Constitution. Specifically appellants assert that the Ordinance "constitutes an arbitrary use of the taxing power by [Pittsburgh] City Council in that the imposition of a separate tax on the parking business, in addition to its regular taxes, lacks any reasonable basis." Moreover, appellants contend that merely because the City could, under its police power, classify the parking business separately for regulatory purposes, it does not necessarily follow that they can separately classify the parking business for purposes of taxation.

This argument, presented to and rejected by this Court on numerous prior occasions, must, once again, be rejected. It is well established that the Commonwealth and its political subdivisions, in the exercise of the taxing power, are subject to the requirements of

[ 453 Pa. Page 255]

    equal protection and uniformity. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S. Ct. 437 (1959); Commonwealth v. Life Assurance Co. of Pa., 419 Pa. 370, 214 A.2d 209 (1965). However, the taxing authority must by necessity possess wide discretion for purposes of taxation of various businesses or occupations. Commonwealth v. Life Assurance Co. of Pa., supra at 376, 214 A.2d at 214, and the cases cited therein.

In Life Assurance Co., supra, this Court noted:

"The equal protection clause imposes no iron rule of equality prohibiting that degree of flexibility and variety appropriate to reasonable schemes of taxation. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 525, 79 S. Ct. 437, 440 (1959).

"The only constitutional limitation placed upon the power of the Legislature to distinguish between various entities for purposes of taxation is that their basis for doing so be reasonable. See Allied Stores of Ohio, Inc. v. Bowers, supra, at 527, 79 S. Ct. at 441; State Bd. of Tax Comm'rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S. Ct. 540, 543 (1931); Brown-Forman Co. v. Kentucky, 217 U.S. 563, 572, 30 S. Ct. 578, 580 (1910); Jones & Laughlin Tax Assessment Case, 405 Pa. 421, 433-34, 175 A.2d 856, 862 (1961); Commonwealth v. Lukens, 312 Pa. 220, 223, 167 Atl. 167, 169 (1933). And the burden of showing that the classification employed by the Legislature is not reasonable is upon the party attacking the tax. Cf. Chartiers Valley Jt. Schools v. Allegheny County Bd. of School Dir's, 418 Pa. 520, 546, 211 A.2d 487, 501 (1965). 'Especially is this so in light of the often reaffirmed rule that . . . "'[legislation] will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.'"' Ibid. (Citations omitted.)" Id. at 376-77, 214 A.2d at 214.

Moreover, the burden of proving the classification is unreasonable is a heavy one. Amidon v. Kane, 444 Pa. 38, 51,

[ 453 Pa. Page 256279]

A.2d 53, 60 (1971); F. J. Busse Co. v. Pittsburgh, 443 Pa. 349, 359, 279 A.2d 14, 19 (1971); Philadelphia v. Depuy, 431 Pa. 276, 279, 244 A.2d 741, 743 (1968). "So long as the classification imposed is based upon some standard capable of reasonable comprehension, be that standard based upon ability to produce revenue or some other legitimate distinction, equal protection of the law has been afforded." Commonwealth v. Life Assurance Co. of Pa., supra at 378, 214 A.2d at 215. Merely because "a statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy. American Sugar refining Co. v. State of Louisiana, 179 U.S. 89, 21 S. Ct. 43." Allied Stores, supra at 528, 79 S. Ct. at 441. Thus a tax based on a reasonable classification is not unconstitutional because one class may be placed at a competitive disadvantage. Williams and Co., Inc. v. Pittsburgh School District, 430 Pa. 509, 514, 244 A.2d 37, 39 (1968).

The determinative question, then, is whether the classification imposed by the Parking Tax Ordinance is a reasonable one. We said in Commonwealth v. Life Assurance Co. of Pa., supra at 378-79, 214 A.2d at 215 that: ". . . the essential question in testing the validity of such measures . . . is whether the distinctive treatment accorded rests upon substantial differences between the subjects so classified. . . . And where such distinctions rest upon differences recognized and acted upon by the business world, it is not within the province of the courts to intrude. . . . So long as the classification is neither capricious nor arbitrary, there is no denial of the equal protection of the law . . . ." (Citations omitted).

[ 453 Pa. Page 257]

This Court has in the past sustained numerous types of distinctive tax treatment of a wide diversity of businesses and occupations. See, e.g., Commonwealth v. Page 257} Lafferty, 426 Pa. 541, 233 A.2d 256 (1967) (contract carrier taxed differently from common carrier although engaged in similar enterprises); Allentown School District Mercantile Tax Case, 370 Pa. 161, 87 A.2d 480 (1952) (retailers and wholesalers taxed differently); DuFour v. Maize, 358 Pa. 309, 56 A.2d 627 (1948) (strip mining of coal taxed differently than deep mining of coal). Moreover, in 1940, this Court sustained the validity of a Philadelphia ordinance which distinguished open parking places from closed garages for the purpose of taxation. Philadelphia v. Samuels, 338 Pa. 321, 12 A.2d 79 (1940); see also McGillick v. City of Pittsburgh, 415 Pa. 581, 203 A.2d 480 (1964); Philadelphia v. Eglin's Garages, Inc., 342 Pa. 142, 19 A.2d 845 (1941).

Commercial parking lots are without question a proper subject for local, municipal taxation. The City of Pittsburgh has decided, not without reason, that commercial parking operations should be singled out for special taxation to raise revenue because of traffic related problems engendered by these operations. This Court cannot say that placing such businesses in a separate taxable class is, ipso facto, an action so devoid of any reasonable basis as to constitute a violation of either the equal protection clause of the United States Constitution or the uniformity clause of the Pennsylvania Constitution.*fn4 ". . . [W]here the state seeks to raise revenue, it need not justify any distinction drawn

[ 453 Pa. Page 258]

    between the taxed and nontaxed with respect to the raising of revenue so long as some other reasonable basis for treating the various classes differently exists. Where such distinction exists, the wisdom of the legislative policy of taxing one class and not another is not a matter for the courts. 'Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the legislature, and an earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.' Chicago, Burlington & Quincy R. Co. v. McGuire, 219 U.S. 549, 569, 31 S. Ct. 259, 263 (1911)." Commonwealth v. Life Assurance Co. of Pa., supra at 377-78 n.11, 214 A.2d at 215 n.11.

IV.

Appellants' second avenue of attack is that the Parking Tax Ordinance, coupled with direct economic competition by the Public Parking Authority, created with public funds (see Price v. Philadelphia Parking Authority, 422 Pa. 317, 335, 221 A.2d 138, 148 (1966)), violates the due process clause of the Fourteenth Amendment of the United States Constitution. Specifically appellants maintain that the ordinance imposes a rate so excessive and unreasonable in light of the direct governmental competition, that it amounts to a confiscation of property without just compensation. Because of the alleged excessive and unreasonable rates, in these circumstances, appellants assert that the vast majority of parking lot owners and operators can no longer afford to remain in business. Additionally they argue that even those owners who are still not operating at a loss are not earning a reasonable return. This complete

[ 453 Pa. Page 259]

    inability to earn a reasonable return on investments is allegedly due to the combined effects of the 20 percent gross receipts tax and the competition from the Public Parking Authority, which charges lower rates. For example, the record establishes that the average all-day rate for the Public Parking Authority is about $2.00, while the average all-day rate for private operators is approximately $3.00.

In support of their contention appellants introduced at trial numerous statistical charts and compilations seeking to establish the unconstitutional impact of the gross receipts tax. A brief summary of this evidence shows the following.

After the imposition of the 20 percent gross receipts tax appellants' projected*fn5 figures for 1970 show that out of 14 different parking lot operators in downtown Pittsburgh nine would sustain operating losses. Of the five operators earning a profit only two would achieve a return of one percent or better. The highest return projected for any of the 14 operators in 1970 was 2.9 percent.

Moreover, the evidence produced by appellants indicates that as the gross receipts tax increases from the original 10 percent to the present 20 percent the percentage and number of parking lots unable to achieve any profit doubles. Again based on projections for 1970, when compelled to pay the 20 percent gross receipts tax, 65 percent of the individual lots would sustain operating losses. If the tax had remained at 15 percent, only 37 percent of the lots would fail to earn a profit. If the tax was reduced to its original 10 percent then only 30 percent of the lots would sustain losses.

[ 453 Pa. Page 260]

The chancellor, upon evaluating the evidence presented, held that appellants had failed to meet their heavy burden of establishing the tax was confiscatory.*fn6 Therefore, the chancellor concluded the Parking Tax Ordinance was not confiscatory or a taking without due process.*fn7 He noted that even though "a few borderline operations may fall by the way" the tax is not necessarily confiscatory. The Commonwealth Court unanimously agreed that the tax was imposed at an unreasonable rate, but the majority concluded that although appellants as a group would sustain an operating loss under the unreasonably high tax, nevertheless "there is no constitutional prohibition of taxation at unreasonable

[ 453 Pa. Page 261]

    or even confiscatory rates." Alco Parking v. Pittsburgh, 6 Pa. Commonwealth Ct. 433, 441, 291 A.2d 556, 561, aff'd on rehearing, 6 Pa. Commonwealth Ct. 433, 295 A.2d 349 (1972). Moreover, the Commonwealth Court also unanimously agreed, contrary to the chancellor's findings, that "appellants' [sic] are unable to pass the tax on to their customers, not only because customers cannot and will not pay higher rates but also because the appellants are in competition with a public authority which, exempt from other taxes, can charge less." Id. (Emphasis added).

Undoubtedly, if a tax is shown to be confiscatory it is utterly impermissible and a violation of the Constitution. See A. Magnano Co. v. Hamilton, 292 U.S. 40, 54 S. Ct. 599 (1934). This Court has been presented with similar allegedly excessive gross receipt taxes on parking lot operations on two prior occasions: Philadelphia v. Eglin's Garages, Inc., 342 Pa. 142, 19 A.2d 845 (1941); Philadelphia v. Samuels, 338 Pa. 321, 12 A.2d 79 (1940). In both of those instances we held that the evidence presented by the parties attacking the taxing ordinance was insufficient to sustain a claim of confiscation without due process. However, neither case excluded the possibility that, upon a proper showing, a tax could be shown to be confiscatory. In Samuels and Eglin this Court indicated that two essential elements must exist before a tax can be held to be confiscatory. First, the taxpayer must show that more than "an occasional operator cannot afford to continue in business." Samuels, supra at 327, 12 A.2d at 82. Secondly, he must show that the tax cannot be passed on to the consumer. Eglin, supra at 144, 19 A.2d at 845; Samuels, supra.

Appellants, on this record, have shown that more than "an occasional operator cannot afford to continue in business". However, the chancellor found that appellants have made no significant attempt to pass the tax

[ 453 Pa. Page 262]

    on to the consumer. As noted previously the Commonwealth Court was of the unanimous opinion that the tax could not be passed on to the consumer because of the competition from the Public Parking Authority. Clearly if the private parking lot operators attempted to pass the full burden of the tax on to the consumers they would only succeed in increasing the disparity in the already disparate rates. For example, at the all-day rates shown in the record, if appellants were to attempt to pass the tax on to their patrons, their rates would increase from an average of $3.00 to $3.60, while a similar tax pass-on by the Public Parking Authority would increase their average rate from $2.00 to $2.40. Thus the differential in rates would increase from $1.00 to $1.20.

Even if appellants have not fulfilled the dual tests of Samuels and Eglin, nevertheless neither Samuels nor Eglin are completely applicable here, because neither case dealt with the precise issue involved in this case. Samuels and Eglin were disputes involving only one issue -- whether a gross receipts tax, by itself, imposed a rate so unreasonable as to be confiscatory. The instant case, on the other hand, presents a significantly different and exceedingly more complex question. Here the allegedly excessive and unreasonable tax is combined with direct competition at lower rates from the Pittsburgh Parking Authority.

It is rare for courts to strike down tax legislation because the tax rate imposed is excessive. Very few, if any courts have been willing to void a tax solely on the basis of an unreasonably high rate. Thus, in A. Magnano Co. v. Hamilton, 292 U.S. 40, 47, 54 S. Ct. 599, 602 (1934), the Supreme Court emphasized that the question of whether a tax is so excessive that it will bring about the destruction of a business is " a premise which, standing alone, this court heretofore has uniformly rejected as furnishing no juridical ground for

[ 453 Pa. Page 263]

    striking down a taxing act." (Emphasis added). See Stewart Dry Goods Co. v. Lewis, 294 U.S. 550, 562, 55 S. Ct. 525, 530 (1935); Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44, 48, 41 S. Ct. 219, 220 (1921). In this area courts have usually deferred to legislative bodies. See Stewart Dry Goods Co. v. Lewis, supra; Fox v. Standard Oil of New Jersey, 294 U.S. 87, 99, 55 S. Ct. 333, 338 (1935).

However, these same courts have acknowledged that in exceptional circumstances the taxing power of the Legislature may be abused, and, if so, it would violate both the Fifth and Fourteenth Amendments. In A. Magnano Co. v. Hamilton, supra, although upholding the constitutionality of a tax on all butter substitutes, the Supreme Court stated: "Except in rare and special instances, the due process of law clause contained in the Fifth Amendment is not a limitation upon the taxing power conferred upon Congress by the Constitution. Brushaber v. Union Pac. R. R., 240 U.S. 1, 24, 36 S. Ct. 236, 60 L. Ed. 493. And no reason exists for applying a different rule against a state in the case of the Fourteenth Amendment. . . . That clause is applicable to a taxing statute such as the one here assailed only if the act be so arbitrary as to compel the conclusion that it does not involve an exertion of the taxing power, but constitutes, in substance and effect, the direct exertion of a different and forbidden power, as, for example, the confiscation of property. . . . Nor may a tax within the lawful power of a state be judicially stricken down under the due process clause simply because its enforcement may or will result in restricting or even destroying particular occupations or businesses . . . unless, indeed, as already indicated, its necessary interpretation and effect be such as plainly to demonstrate that the form of taxation was adopted as a mere disguise, under which there was exercised, in reality, another and different power denied by the Federal Constitution

[ 453 Pa. Page 264]

    to the state." Id. at 44, 54 S. Ct. at 601 (emphasis added) (citations omitted). See Fox v. Standard Oil Co. of New Jersey, supra at 100, 55 S. Ct. at 338; Heiner v. Donnan, 285 U.S. 312, 326, 52 S. Ct. 358, 361 (1932); Nichols v. Coolidge, 274 U.S. 531, 541, 47 S. Ct. 710, 713 (1927); McCray v. United States, 195 U.S. 27, 63, 24 S. Ct. 769, 779 (1904).*fn8

Moreover, when determining the validity of a tax courts must evaluate the nature and effect of that tax, not merely its name or description. "The substance and not the shadow determines the validity of the exercise of the [taxing] power." Stewart Dry Goods Co. v. Lewis, supra at 555, 55 S. Ct. at 527. See Senior v. Braden, 295 U.S. 422, 429, 55 S. Ct. 800, 802 (1935).

This Court has heretofore not had occasion to hold a tax to be so excessive and unreasonable as to compel the conclusion that it was not the proper exertion of taxation, but a confiscation of property. However, this Court has not previously had presented to it a controversy where the taxing body was in direct competition, as here, with private enterprise and simultaneously imposed a burdensome gross receipts tax on all competitors

[ 453 Pa. Page 265]

    in that activity (including itself).*fn9 This is undeniably a "rare and special instance"*fn10 where the due process clause imposes strict constraints upon the exercise of the legislative taxing power.

As appellants emphasize it is doubtful that the state Legislature ever intended the public parking authorities utilizing public financing advantages, to compete directly with private parking operators in this fashion. In fact, the declaration of policy in the Parking Authority Law of 1947*fn11 specifically provides: ". . . That it is intended that the authority cooperate with all existing parking facilities so that private enterprise and government may mutually provide adequate parking services for the convenience of the public;" Act of June 5, 1947, P. L. 458, § 2, as amended, 53 P.S. § 342. Nonetheless, Pittsburgh parking operators are now not only denied the cooperation intended in the statute, but are actually confronted with direct, adverse competition from the Public Parking Authority.

[ 453 Pa. Page 266]

Furthermore, the Public Parking Authority is blessed with certain other legislatively bestowed advantages and able, therefore, to charge lower rates. The Parking Authority is exempt from payment of all real estate taxes because of the exclusion given to public property used for public purposes.*fn12 Because lower interest rates are granted to municipal corporations seeking to borrow money, the Parking Authority is able to arrange cheaper and longer term financing. This also reduces significantly the rates charged by the Authority, and increases in intensity the degree and nature of its direct competition with the private parking lot operators. It is certainly undeniable that the Parking Authority is able to finance its site and construction costs through the attractive medium of long term, lower interest public financing, with all the benefits which attend such governmental arrangements, not available to private businessmen. See Price v. Philadelphia Parking Authority, 422 Pa. 317, 355, 221 A.2d 138, 148 (1966). It is the combination of these factors which creates the extraordinary competitive advantage which the Public Parking Authority is able to exert over the non-governmental parking lot owners and operators.

Not only is the Parking Authority able to charge lower rates than private operators, but with the enactment of the 20 percent gross receipts tax the taxing body now appropriates for itself practically all of the earnings of the private parking lot operators. By taking 20 percent of gross revenues "off the top" the City effectively confiscates what were formerly the earnings of the parking lot owners. This confiscation is practically as complete as if the Ctiy had condemned without compensation the private lots to erect public facilities.*fn13

[ 453 Pa. Page 267]

In this situation it is unnecessary for private lot operators to prove that they cannot pass the tax on to their customers (although as previously noted the Commonwealth Court found this was not possible). See Samuels, supra; Eglin, supra. Clearly by raising their rates the private operators would greatly increase the already significant rate differential between private and public parking lots. The public competition thus effectively prohibits private lot operators from increasing their rates and passing the tax on to their patrons, while the imposed tax appropriates whatever earnings were formerly produced. Where such an unfair competitive advantage accrues, generated by the use of public funds, to a local government at the expense of private property owners, without just compensation, a clear constitutional violation has occurred.*fn14

[ 453 Pa. Page 268]

This is admittedly a case of first impression in this Commonwealth. Traditionally governmental activities

[ 453 Pa. Page 269]

    held to be unconstitutional takings of property without due process of law are restricted, for example, to the realm of zoning and eminent domain. However, no reason has been suggested why unconstitutional takings must necessarily be restricted only to this segment of the law. Indeed, this Court has held that "a 'taking' is not limited to an actual physical possession or seizure of the property; if the effect of the zoning law or regulation is to deprive a property owner of the lawful use of his property it amounts to a 'taking', for which he must be justly compensated:" Cleaver v. Board of Adjustment, 414 Pa. 367, 372, 200 A.2d 408, 412 (1964) and cases cited therein.

Moreover, in determining what is a taking this Court may not allow form to prevail over substance. As the Supreme Court noted, "The substance and not the shadow determines the validity of the exercise of the power." Stewart Dry Goods Co. v. Lewis, supra at 555, 55 S. Ct. at 527. Clearly "whether the government takes title or possession of the subject property is merely a matter of the form in which it chooses to proceed." Sax, Takings and the Police Power, 74 Yale L.J. 36, 46 (1964). Here the City has appropriated most, if not all, the earnings of the private parking lot owners through the imposition of an excessive gross receipts tax. It has also enhanced the detriment to private property owners by creating its own publicly subsidized competition. This governmental enterprise competing with private industry adds not only a new and most significant dimension to the traditional constitutional problem of what constitutes a taking without due process but also an impermissible one.

It must be concluded that the unreasonably burdensome 20 percent gross receipts tax, causing the majority of private parking lot operators to operate their businesses at a loss, in the special competitive circumstances of this case, constitutes an unconstitutional taking of

[ 453 Pa. Page 270]

    private property without due process of law in violation of the Fourteenth Amendment of the United States Constitution.

The order of the Commonwealth Court and the decree of the Allegheny County Court of Common Pleas are reversed and remanded to the Allegheny County Court of Common Pleas for proceedings consistent with this opinion to determine the nature and extent of the refund to which appellants may be entitled.

Each party to pay own costs.

Disposition

Order of Commonwealth Court and decree of Allegheny County Court of Common Pleas reversed and case remanded to the Allegheny County Court of Common Pleas.

Dissenting Opinion by Mr. Justice Eagen:

I emphatically dissent!

It is not and may not be questioned that the City of Pittsburgh has the power to tax a parking transaction for revenue purposes under the Local Tax Enabling Act, Act of December 31, 1965, P. L. 1257, 53 P.S. § 6902. See also, University Club v. Pittsburgh, 440 Pa. 562, 271 A.2d 221 (1970). However, the majority rule that this particular tax on parking transactions imposed by the City of Pittsburgh is confiscatory, and, hence, amounts to an unconstitutional taking of private property without due process of law. Neither the facts in the record or the pertinent case law support this conclusion. In fact, every case cited by the majority in support of its conclusion reaches the opposite result.

Thirty-three years ago in Philadelphia v. Samuels, 338 Pa. 321, 12 A.2d 79 (1940), this Court held that before a tax may be ruled confiscatory the challenging taxpayer must establish two facts: (1) that the tax is forcing a substantial, as distinguished from an occasional businessman out of business; and (2) the challenged tax cannot be passed on to the consumer. To the same effect, see Philadelphia v. Elgin's Garages, Inc., 342 Pa. 142,

[ 453 Pa. Page 27119]

A.2d 845 (1941). Even a casual reading of the instant record discloses the complaining-plaintiffs have failed to establish either one of these facts. Moreover, the trial court whose findings of fact have the force and effect of a jury's verdict and which, incidentally, the majority opinion ignores, specifically found on ample evidence in the record: (1) the demand for parking space in the City of Pittsburgh far exceeds the supply; (2) none of the plaintiffs have increased their rates because of the tax involved; (3) the plaintiffs have not attempted to pass on the increased tax to their parking patrons; and (4) when the City's Parking Authority recently raised its rates, it experienced only a temporary reduction in the number of cars seeking use of its parking facilities. Furthermore, after reviewing the evidence the trial court concluded that the complaining-plaintiffs are continuing to make a profit from their operations, though it may not be as great a margin as desired, and if any privately-owned parking operators are forced out of business it will be only a few borderline cases. It is obvious, therefore, that the majority opinion fails to comport with our rulings in Philadelphia v. Samuels, supra, and Philadelphia v. Elgin's Garages, Inc., supra.

Focusing now on the decisions of the Supreme Court of the United States, it can be stated as a general principle that under normal circumstances the power to tax is unlimited*fn1 and the due process clause of the Fifth

[ 453 Pa. Page 272]

    and Fourteenth Amendments is not a limitation upon the taxing power of the legislative branch of the government.*fn2

[ 453 Pa. Page 273]

In Magnano Co. v. Hamilton, 292 U.S. 40, 54 S. Ct. 599 (1934), the Supreme Court explained under what circumstances the due process clause limits a taxing statute: "Except in rare and special instances, the due process of law clause contained in the Fifth Amendment is not a limitation upon the taxing power conferred upon Congress by the Constitution. . . . And no reason exists for applying a different rule against a state in the case of the Fourteenth Amendment. . . . That clause is applicable to a taxing statute such as the one here assailed only if the act be so arbitrary as to compel the conclusion that it does not involve an exertion of the taxing power, but constitutes in substance and effect, the direct exertion of a different and forbidden power, as, for example, the confiscation of property. . . . Collateral purposes or motives of a Legislature in levying a tax of a kind within the reach of its lawful power are matters beyond the scope of judicial inquiry. . . . Nor may a tax within the lawful power of a state be judicially stricken down under the due process clause simply because its enforcement may or will result in restricting or even destroying particular occupations or businesses . . . unless, indeed, as already indicated, its necessary interpretation and effect be such as plainly to demonstrate that the form of taxation was adopted as a mere disguise, under which there was exercised, in reality, another and different power denied by the Federal Constitution to the state." Id. at 44-45, 54 S. Ct. at 601-02. Thus, the due process clause only affects the validity of a taxing statute where it can be ascertained the statute is "arbitrary", and not an exercise of the taxing power, but a "disguise" for the exertion of a different and unlawful power. The majority opinion does not indicate this taxing statute qua taxing statute is invalid, or the taxing measure "does not involve an exertion of the taxing power", which are the guidelines established by the Supreme Court of the

[ 453 Pa. Page 274]

United States. Rather, the majority opinion focuses on the tax rate and its enforcement, and I view this as error. It is one thing to say a taxing statute is arbitrary and beyond the reach of the taxing power of the legislative branch, a point I do not contest, but it is quite another to say the exercise of the lawful taxing power is a violation of due process of law because of a high tax rate.

The Supreme Court of the United States has considered the issue of high tax rates in numerous instances, and in each case the Court refused to strike down the levy because of the high rate structure. In Stewart Dry Goods Co. v. Lewis, 294 U.S. 550, 55 S. Ct. 525 (1935), the Court reviewed a gross sales tax on merchants. Speaking specifically of the extent of the burden of a tax, the Court stated:

"Every taxing law must pass the constitutional test applied by the courts to the method of imposition, but the measure of the impost rests in the discretion of the Legislature.

"To condemn a levy on the sole ground that it is excessive would be to usurp a power vested not in the courts but in the Legislature and to exercise the usurped power arbitrarily by substituting our conceptions of public policy for those of the legislative body." Id. at 562, 55 S. Ct. at 530. Thus, in Stewart, the Court expressly stated the "measure of the impost" is not for the courts to consider. In Veazie Bank v. Fenno, 8 Wall. 533 (1869), again the Court reflected on the issue of high rates, stating: "It is insisted, however, that the tax in the case before us is excessive, and so excessive as to indicate a purpose on the part of Congress to destroy the franchise of the bank, and is, therefore, beyond the constitutional power of Congress.

"The first answer to this is that the judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged

[ 453 Pa. Page 275]

    powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So if a particular tax bears heavily upon a corporation, or a class of corporations, it cannot, for that reason only, be pronounced contrary to the Constitution." Id. at 548. See also Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44, 41 S. Ct. 219 (1921). Notwithstanding these pronouncements, the Majority opinion hinges its decision on consideration of the tax rate and enforcement or more precisely, the "result" of the exertion of the lawful taxing power, an approach the Supreme Court of the United States has consistently stated to be erroneous.*fn3

If one focuses exclusively on the result by reviewing the tax rate and its impact, it is conceivable that every tax could be considered confiscatory. The true essence

[ 453 Pa. Page 276]

    of the plaintiffs' claim is the tax rate is so high they are barred from making the profit margin they would desire. Given this fact, and accepting the majority's rationale, it follows that a marginal business with a small profit margin could make the same claim appellants herein assert about a 5% excise tax. In this regard, the Magnano Court stated: "If the tax imposed had been 5 cents instead of 15 cents per pound, no one, probably, would have thought of challenging its constitutionality or of suggesting that under the guise of imposing a tax another and different power had in fact been exercised. If a contrary conclusion were reached in the present case, it could rest upon nothing more than the single premise that the amount of the tax is so excessive that it will bring about the destruction of appellant's business, a premise which, standing alone, this court heretofore has uniformly rejected as furnishing no juridical ground for striking down a taxing act." 292 U.S. at 47, 54 S. Ct. at 602.

The most troublesome aspect of the rationale adopted by the majority opinion is that by considering the tax rate, it is taking on a non-judicial function, and in effect sitting as a legislative body. This approach strikes at the heart of the principle of separation of powers and is, therefore, contrary to constitutional doctrine. The sum and substance of the majority's opinion is: the tax rate is too high for the garage owners to make a substantial profit; hence, the tax is unjust and must be struck down. However, the wisdom of a tax rate is strictly for the legislative branch, and for this Court to strike a tax down because of a high rate is to usurp a legislative power. Moreover, by so doing this Court has to go beyond its power and exercise the usurped power in an arbitrary fashion by substituting its concept of public policy, or wisdom, for that of the Legislature. See Stewart Dry Goods Co. v. Lewis, supra.

In McCray v. United States, 195 U.S. 27, 24 S. Ct. 769 (1904), the Supreme Court stated:

[ 453 Pa. Page 277]

"Whilst, as a result of our written constitution, it is axiomatic that the judicial department of the government is charged with the solemn duty of enforcing the Constitution, and therefore in cases properly presented, of determining whether a given manifestation of authority has exceeded the power conferred by that instrument, no instance is afforded from the foundation of the government where an act, which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust. To announce such a principle would amount to declaring that in our constitutional system the judiciary was not only charged with the duty of upholding the Constitution but also with the responsibility of correcting every possible abuse arising from the exercise by the other departments of their conceded authority. So to hold would be to overthrow the entire distinction between the legislative, judicial and executive departments of the government, upon which our system is founded, and would be a mere act of judicial usurpation.

"It is, however, argued if a lawful power may be exerted for an unlawful purpose, and thus by abusing the power it may be made to accomplish a result not intended by the Constitution, all limitations of power must disappear, and the grave function lodged in the judiciary, to confine all the departments within the authority conferred by the Constitution, will be of no avail. This, when reduced to its last analysis, comes to this, that, because a particular department of the government may exert its lawful powers with the object or motive of reaching an end not justified, therefore it becomes the duty of the judiciary to restrain the exercise of a lawful power wherever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that, under our constitutional

[ 453 Pa. Page 278]

    system, the abuse by one department of the government of its lawful powers is to be corrected by the abuse of its powers by another department." Id. at 53-54, 24 S. Ct. at 775-76. It is not within this Court's power or function to make legislative decisions, such as the wisdom of a particular tax rate. "Once the lawfulness of the method of levying the tax is affirmed, the judicial function ceases. He deludes himself by false hope who supposes that, if this court shall at some future time conclude the burden of exaction has become inordinately oppressive, it can interdict the tax." Stewart Dry Goods Co. v. Lewis, supra, 294 U.S. at 563, 55 S. Ct. 530.

The majority, however, would have us believe the rulings of the Supreme Court of the United States are not applicable to the instant case because of the element of competition. In my view, the argument that the combination of a high tax rate and government competition invalidates a taxing measure is spurious for the dual reason that the tax rate is not for us to consider, and the element of competition is basically irrelevant. Our concern is with the lawfulness of the method of levying the tax, not with these two elements. The majority apparently believes these two elements bring the tax within the Magnano rule that a tax will be considered unlawful when "its necessary interpretation and effect be such as plainly to demonstrate that the form of taxation was adopted as a mere disguise, under which there was exercised, in reality, another and different power." But there is not one shred of evidence in the record that this is anything but a pure taxing measure for revenue purposes. There is not any evidence in the record that this measure is a "disguise". Competition is clearly beyond the scope of this case, since our inquiry is limited to the lawfulness of the "form of taxation."*fn4

[ 453 Pa. Page 279]

The majority views government competition as a new element in this area of the law, an element never presented in a factual situation to a court before. However, in the Veazie Bank Case, the Supreme Court of the United States was faced with a comparable situation since the federal government was therein directly competing with the state banks in issuing currency.*fn5 A 10% tax was imposed on the notes of state banks and the effect was to put the national banks at a competitive advantage by driving the state banks out of existence. The Court never once discussed the element of competition and stated: "The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So if a particular tax bears heavily upon a corporation, or a class of corporations, it cannot, for that reason only, be pronounced contrary to the Constitution." 8 Wall., supra at 548. Thus, I do not view the element of competition as adding anything new or different to this area of the law, or as relevant to the consideration of the lawfulness of a taxing form.

[ 453 Pa. Page 280]

Dissenting Opinion by Mr. Justice Pomeroy:

I concur in the dissenting opinion of Mr. Justice Eagen, but believe it desirable to augment that opinion by several additional observations.

I.

I consider it unfortunate that the Court, in its footnote 2, prematurely and unnecessarily undertakes to decide the relative authority of our decisions in Rochester & Pittsburgh Coal Co. v. Indiana County Board of Assessment, 438 Pa. 506, 266 A.2d 78 (1970), and Lynch v. Owen J. Roberts School District, 430 Pa. 461, 244 A.2d 1 (1968). These cases are concerned with equity jurisdiction in constitutionally-based challenges to taxing statutes where the challenge can be adjudicated in a statutorily prescribed appeal procedure. That question is only obliquely involved in this case in connection with the applicability of the procedure allowed by section 6 of the enabling statute*fn1a whereby the taxpayer can secure a judicial determination of the reasonableness of a local tax. There was no attempt by the taxpayers to avail themselves of the section 6 determination of "reasonableness"; neither was there any objection by the City at the trial level or on appeal in the Commonwealth Court to the exercise of equitable jurisdiction because the enabling act procedure had not been pursued. Thus the discussion in the Commonwealth Court opinion as to what a court might have done (i.e., find the tax rate "unreasonable") had a

[ 453 Pa. Page 281]

    section 6 challenge been made was beside the point; the decision holds the tax valid on constitutional grounds. The same is true of this Court's opinion, since the decision goes off on constitutional grounds, albeit with the opposite result. All that the City is doing (part IV of its brief in this Court) is to argue that since the parties agree that the case raises issues solely of a constitutional nature, the "reasonableness" of the parking tax cannot be raised on this appeal. In any event, it argues, a section 6 attack must be timely made, and in the trial court. In addition it cannot gain consideration in this suit by being "appended" to the constitutional issue -- even a substantial one, which the City contends this one is not.

This Court has only recently granted allocatur in a case squarely presenting the jurisdictional problem involved in Lynch and Rochester, supra. Borough of Greentree v. The Board of Property Assessment of Allegheny County, Nos. 141 and 142, March Term, 1973 (Allocatur granted on April 11, 1973). Our ultimate decision in that case should not be prejudiced by needless dicta in this one.

II.

On the constitutional question, the Court today holds that the parking tax ordinance of the City of Pittsburgh is a taking of "private property . . . for public use without just compensation" in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, relying, inter alia, on dictum found in Philadelphia v. Samuels, 338 Pa. 321, 12 A.2d 79 (1940). On this record I cannot agree.*fn2a

[ 453 Pa. Page 282]

I can conceive that a tax could be confiscatory (and I do not understand Justice Eagen to be of a different view). For example, were the ordinance one imposing a tax of 100% on the net income of the appellants' enterprises, thus making it impossible beyond any doubt to operate at a profit, I am inclined to think that this would be a taking of private property for which compensation would be required. The tax here, of course, is on gross proceeds, not net income, and at the admittedly high rate of 20%. This tax could, however, be the practical equivalent of a 100% tax on net income if the operating expenses of the taxed enterprises absorb the other 80% of gross receipts. But this complete elimination of profitability would, of course, have to be supported by the experience of the industry.

It is at this point that the Court and I part company, for I believe that little attention has been paid to the facts of the case and the economic theories necessarily involved.*fn3a There are two factual issues: (a) current, substantial unprofitability of the taxed enterprises, and (b) lack of market power to shift the incidence

[ 453 Pa. Page 283]

    of the tax to the parking consumer. Like the chancellor below*fn4a -- to whose findings the Court pays scant heed*fn5a -- I am not satisfied with appellants' evidentiary showings on either point.

(a) Current, Substantial Unprofitability.

Ordinance No. 704 of the City of Pittsburgh, imposing a 20% tax on the gross proceeds of commercial parking transactions, was enacted on December 31, 1969 and became effective on February 1, 1970. It superseded a predecessor parking tax (Ordinance No. 675) which was enacted in 1968 and which imposed a similar tax of 15%. We are told, though not part of the record made below, that Ordinance No. 704 in turn has been superseded by Ordinance No. 30 of January 26, 1973 which became effective on April 1, 1973. There is, therefore, a period of a little more than three years during which appellants' businesses were subject to and in fact paid the disputed tax. The present lawsuit, however, was filed on February 20, 1970, very soon (nineteen days) after the tax became effective, and the trial of the case took place on September 15, 16, and 17, 1970. The

[ 453 Pa. Page 284]

    economic evidence there introduced was, as the Court's opinion indicates, " projected figures for 1970" based on industry experience under the challenged tax from February 1, 1970 through May 31, 1970. While there is nothing inherently inadmissible about economic projections, properly constructed and qualified,*fn6 I think that they become inherently inadequate when actual economic data are in fact available for the period of the projection. We do not adequately discharge our duty of invalidating taxing acts, see Commonwealth v. Life Assurance Co. of Pennsylvania, 419 Pa. 370, 377, 214 A.2d 209 (1965), as "clearly, palpably and plainly" unconstitutional when we so hold on the basis of five months' experience under the statute as contrasted with the now available three years' experience. The appellants have prevailed in no court save this one and hence have throughout that period been subject to the 20% tax. I cannot see that a remand for development of the record in light of actual industry experience would prejudice the interests of any party to these proceedings, public or private. Certainly the people of the City of Pittsburgh are entitled to as much before losing the millions of dollars in tax revenues here involved.

(b) Lack of Market Power To Shift the Incidence of the Tax.

Appellants' showing of a lack of ability to pass the tax on to the consumer is most unpersuasive. It consisted

[ 453 Pa. Page 285]

    of two kinds of evidence: first, assertions on behalf of the appellant-enterprises that they were charging all the traffic would bear at the time of enactment of the 20% tax, i.e., prices which maximized their gross proceeds,*fn7 and second, testimony of the manager of Meyers Bros. Parking-Central Corporation, the operator of the parking garage in Chatham Center, that when that corporation raised its prices in 1968 in response to the enactment of the 1968 ordinance of 15%, the business of that garage had actually diminished.

As to the first, I do not think it follows from the fact that all private entrepreneurs strive to maximize profits that all prices set by them are at profit-maximizing levels. The bare assertion by an appellant that "[if] I could raise the rates to meet this tax . . ., I would have . . ." falls far short of the quality of proof required to show the tax clearly, palpably and plainly unconstitutional.

The second line of proof is similarly inadequate. At issue here is the market power of the taxed industry to shift the incidence of the tax to the consumer. What occurred in 1968 when one member of that industry

[ 453 Pa. Page 286]

    raised its rates is hardly probative of what would occur if the industry, in response to enactment of a tax ordinance at a higher rate, were to raise rates.*fn8

Not only do I conclude that appellants failed in their proof of inability to shift the tax burden such as to invalidate the tax, but I find ample evidence of the existence of such market power. First, there is the fact, revealed by the testimony of appellants' witnesses, that appellants have posted general rate increases at intervals in the 1960s and have always experienced an increase in gross receipts. Second is the fact -- a matter of common knowledge in Pittsburgh of which I think the Court can take judicial notice -- that the current parking rates generally posted in downtown Pittsburgh reflect a significant rate increase over those rates of the summer of 1970 which appellants sought to characterize as profit-maximized.*fn9 It would appear, then, that the demand for parking spaces which appellants thought in 1970 would decline in the face of a price increase, thus resulting in a decrease of gross receipts, in fact now supports the increased rates of 1973. Whether or not gross receipts have fallen I, of course, do not know; I suggest that the increased prices have now been in effect long enough for appellants to have determined whether their operations are losing business or benefitting because of them. And finally, there is the fact that there exists at this time no source of supply which could satisfy any portion of the demand now satisfied by appellants' garages and lots. This brings me to the position of the Pittsburgh Parking Authority.

[ 453 Pa. Page 28729]

% of the supply, has no excess capacity, and cannot service demand which the 71% competitor might drive away through price increases. The competitors with which appellants must concern themselves are the alternatives to driving (i.e., public transportation, car pools, etc.). But there is much public debate today whether the American driver can be forced out of his privately-owned and privately-driven automobile, whatever the cost of operation may be.

The presence of the Parking Authority in this picture, and its preferred status in terms of property taxes, is therefore in my view an irrelevant factor.

For the reasons given, I would remand for further proceedings to determine appellants' actual experience under the 20% gross receipts ordinance and would reserve judgment meanwhile on the question of whether an unconstitutional taking by excessive, confiscatory taxation has occurred.*fn10 I therefore dissent.

[ 453 Pa. Page 289]

APPENDIX TO THE DISSENTING OPINION OF MR. JUSTICE POMEROY

Arranged below is a tabular comparison of the rates charged by lots and garages operated by the plaintiff-appellant Alco Parking Corporation. The 1970 rates are taken from the record filed in this Court; the 1973 figures are those which were publicly displayed on the afternoon of May 17, 1973.

Sixth & Penn Garage Greyhound Garage IBM Garage*fn*

(Corner of Sixth (Penn Avenue at (Blvd. of the Allies

Street & Penn Avenue) 12th Street) and Stanwix Street)

Day Rates Day Rates Day Rates

1970 1973 1970 1973 1970 1973

1 hr. $0.75 $0.85 1 hr. $0.60 $0.75 1 hr. $0.75 $1.00

2 hrs. 1.00 1.10 2 hrs. 0.70 1.00 2 hrs. 1.00 1.25

3 hrs. 1.25 1.35 3 hrs. 0.90 1.25 3 hrs. 1.25 1.50

4 hrs. 1.50 1.60 4 hrs. 1.00 1.50 4 hrs. 1.50 1.80

5 hrs. 1.75 1.85 5 hrs. 1.30 1.75 5 hrs. 1.75 2.10

6 hrs. 2.00 2.10 5-8 hrs. 1.50 2.00 6 hrs. 2.00 2.40

7-8 hrs. 2.25 2.35 8-10 hrs. 1.75 2.25 7 hrs. 2.25 2.70

8-9 hrs. 2.50 11 hrs. 1.90 2.50 7-12 hrs. 2.50 3.00

8-24 hrs. 2.50 2.60 12 hrs. 2.15 2.75 12-16 hrs. 2.75 3.25

12-24 hrs. 2.40 2.75 16-24 hrs. 3.00 3.50

Gateway Towers Garage White Tower Lot

(Ft. Duquesne Blvd. & (Liberty Avenue U.S.O. Lot

Commonwealth Place) between 10th and 11th (Penn Central R.R. Station)

Streets)

Day Rates Day Rates Day Rates

1970 1973 1970 1973 1970 1973

1 hr. $0.50 $1.00 1 hr. $0.60 $0.75 1 hr. $0.70 $0.75

2 hrs. 0.75 1.25 2 hrs. 0.85 1.00 2 hrs. 0.85 1.00

3 hrs. 1.00 1.50 3 hrs. 1.15 1.25 3 hrs. 1.15 1.25

4 hrs. 1.75 4 hrs. 1.40 1.50 4 hrs. 1.40 1.50

ea. 5 hrs. 1.65 1.75 5 hrs. 1.65 1.75

     add. hr. 0.25 0.25 6 hrs. 1.90 2.00 6 hrs. 1.90 2.00

     max. for 24 3.00 3.25 7 hrs. 2.15 2.25 7-12 hrs. 2.50 6-12hrs 2.25

     weekly 15.00 18.00 Max. 2.15 2.50 12-24hrs 2.50

Maiden Lane Lot (10th Street to 11th Street, North of Penn Avenue)

Day Rate 19701973


*fn* : On January 7, 1974, the Supreme Court of the United States granted a petition for a writ of certiorari. On June 10, 1974, the Supreme Court of the United States reversed and remanded the cause to the Supreme Court of Pennsylvania for further proceedings.


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