Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Public Parking Authority of Pittsburgh, a municipal corporation, Associated Dry Goods Corporation, a Virginia corporation, successors to Joseph Horne Co., a Pennsylvania corporation, Gimbel Brothers, Inc., a New York corporation, The May Department Stores Company, a New York corporation, and Parking Service Corporation, a Pennsylvania Corporation, v. City of Pittsburgh, a municipal corporation, No. 687 July Term, 1972.
Ralph Lynch, Jr., City Solicitor, with him Grace S. Harris, Special Assistant City Solicitor, for appellant.
Leonard Boreman, with him Robert G. Sable and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellees.
Paul H. Titus, with him Bernard D. Marcus and Kaufman & Harris, for amicus curiae Mellon Square Garage, Inc.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 11 Pa. Commw. Page 443]
This is yet another case arising from the City of Pittsburgh's purpose to tax commercial parking transactions and is concerned with Ordinance No. 704 of 1969 of the City of Pittsburgh which, as it affected owners of commercial lots, was struck down by the Supreme Court in Alco Parking Corporation v. Pittsburgh, 453 Pa. 245, 307 A.2d 851 (1973). The principal plaintiffs
[ 11 Pa. Commw. Page 444]
in this suit are five business corporations*fn1 which lease, as lessees, and operate parking lots owned by the Public Parking Authority of Pittsburgh, an Authority created under the Parking Authority Law, Act of June 5, 1947, P.L. 458, 53 P.S. § 341 et seq. They seek, as did the successful parking lot operators in Alco Parking v. Pittsburgh, supra, an order restraining collection of the tax from them and a refund of taxes collected.*fn2 The court below granted the plaintiff's motion for summary judgment, restrained the enforcement of the ordinance against the business corporation plaintiffs and directed the city to refund taxes paid by them for the years 1970 and 1971.
The issue raised by the plaintiffs and decided in their favor below is whether they are exempted by statute from the payment of this tax. Ordinance 704 was adopted by authority of The Local Tax Enabling Act.*fn3 It imposes a tax on all transactions of each operator with respect to each nonresidential parking place, at the rate of 20 per cent of the gross receipts from all transactions. The definition of operator is expressly
[ 11 Pa. Commw. Page 445]
inclusive of "operators on premises of Public Parking Authority of the City of Pittsburgh."
The appellees contend that they are twice statutorily exempt from this tax; first, by Section 204(g) of The General County Assessment Law, Act of May 22, 1933, P.L. 853, 72 P.S. § 5020-204(g) which exempts from "All . . . city . . . tax . . . [a]ll other public property used for public purposes" and second, by Section 15 of the Parking Authority Law, Act of June 5, 1947, P.L. 458, 53 P.S. § 355, under which the Public Parking Authority of Pittsburgh was created, declaring that "such ...