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HAZLETON NATIONAL BANK v. COMMONWEALTH PENNSYLVANIA (08/01/73)

decided: August 1, 1973.

HAZLETON NATIONAL BANK, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Board of Finance and Revenue in case of Commonwealth of Pennsylvania v. Hazleton National Bank of Hazleton, Pennsylvania, No. R-22504. Transferred from the Court of Common Pleas of Dauphin County to the Commonwealth Court of Pennsylvania, September 1, 1970.

COUNSEL

Alphonsus R. Romeika, with him, of counsel, Romeika, Fish & Scheckter, for appellant.

Edward T. Baker, Deputy Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 10 Pa. Commw. Page 368]

We are presently concerned with a collateral issue to an appeal by the Hazleton National Bank ("Bank") of Hazleton, Pennsylvania, from an order of the Board of Finance and Revenue sustaining the denial of a petition for refund for payment of sales or use taxes. The issue before us is not the Bank's entitlement to the refund it originally sought before the taxing authorities and the Board; in its brief the Commonwealth concedes that there is now no question to the Bank's right to a refund.*fn1 Instead we must resolve a dispute over the amount of the refund raised by the Bank's attempted amendment of a paragraph in its Appeal and Specification of Objections substantially increasing the amount of the claimed refund.

The record discloses that the Hazleton National Bank is a National Bank established on February 1, 1890, pursuant to 12 U.S.C.A. § 21 et seq. (1945). On September 20, 1966, the Bank filed a petition pursuant to Section 553 of the Tax Act of 1963 for Education, Act of March 6, 1956, P.L. (1955) 1228, as amended, 72 P.S. § 3403-553,*fn2 seeking refund of taxes allegedly assessed and paid contrary to Federal law. The petition requested a refund of $167.46 -- $6.15 for the period July 1, 1965 to September 30, 1965; $86.32 for the period October 1, 1965, to December 31, 1965; and $74.99 for the period January 1, 1966, to June 30, 1966. The claim for refund was denied in an order dated March 28, 1967. The Bank then petitioned the Board of Finance and Revenue ("Board") for a review of the Department of Revenue's decision pursuant to Section

[ 10 Pa. Commw. Page 369554]

of the Tax Act of 1963 for Education, 72 P.S. § 3403-554.*fn3 The Board by an order dated October 18, 1967, sustained the denial of the refund. This established the basis for a de novo appeal to the Dauphin County Court pursuant to Section 555 of the Tax Act of 1963 for Education, 72 P.S. § 3403-555,*fn4 and Section 1104 of The Fiscal Code, Act of April 9, 1929, P.L. 343, as amended, 72 P.S. § 1104, incident to which it filed its original Specification of Objections seeking refund of taxes in the above amount.

The appeal was transferred to this Court pursuant to Section 13 of The Commonwealth Court Act of January 6, 1970, P.L. (1969) 434, 17 P.S. § 211.13,*fn5 where it remained dormant until January 18, 1973, when the Bank filed an amendment of its Specification of Objections as follows: "The amount of refund claimed by the Appellant for period 1962 is $2,437.34, for 1963 $3,671.66, 1964 $4,303.77 and for period January 1 to February 1, 1965 $431.59." This increased the amount of the claimed refund from $167.46 to $11,011.82.

The Commonwealth submits that there is no authorization for either the granting of the additional refund or for the amendment. It can be argued, however, that the Bank is not amending its appeal -- it is attempting to amend its pleadings. "The specification of objections referred to in this statute [i.e., § 1104 of The Fiscal Code, 72 P.S. § 1104] is to be regarded as a pleading." Commonwealth of Pennsylvania v. Ford Motor Company, 51 Dauph. 149, 151, 45 Pa. D. & C. 492, 495 (1941), aff'd on other grounds, 350 Pa. 236, 38 A.2d

[ 10 Pa. Commw. Page 370329]

(1944), appeal dismissed, 324 U.S. 827 (1945), rehearing denied, 324 ...


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