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WM. PENN PARKING GARAGE v. CITY PITTSBURGH (01/16/74)

decided: January 16, 1974.

WM. PENN PARKING GARAGE, INC., ALCO PARKING CORPORATION, CAMPUS PARKING, INC., FOURTH AVENUE PARKING, INC., GRANT PARKING, INC., HARRY W. SHEPPARD, JR., T/A STANWIX AUTO PARK, JOHN STABILE, AND JOHN STABILE, JR., T/A WM. PENN PARKING LOT, MEYERS BROS. PARKING-CENTRAL CORP., PARKING SERVICE CORPORATION, INC., ET AL., APPELLANTS,
v.
CITY OF PITTSBURGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of W. Penn Parking Garage, Inc.; Alco Parking Corporation; Campus Parking, Inc.; Fourth Avenue Parking, Inc.; Grant Parking, Inc.; Harry W. Sheppard, Jr., t/a Stanwix Auto Park; John Stabile and John Stabile, Jr., t/a Wm. Penn Parking Lot; Meyers Bros. Parking-Central Corp.; Parking Service Corporation, Inc., et al., v. City of Pittsburgh, No. S.A. 106 of 1973.

COUNSEL

Leonard Boreman, with him Richard H. Martin and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellants.

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

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

Author: Rogers

[ 11 Pa. Commw. Page 508]

We are again confronted with issues arising out of the City of Pittsburgh's effort to obtain public revenue from persons who must find places to park motor vehicles or from persons who, for a price, would provide such accommodations or on account of the transaction whereby the one obtains and the other supplies that tiny sanctuary from the hated parking ticket and the dreaded municipal tow truck.

After our decision in Alco Parking Corporation v. Pittsburgh, 6 Pa. Commonwealth Ct. 433, 291 A.2d 556 (1972), upholding but questioning the reasonableness of Ordinance No. 704 which imposed a tax of 20

[ 11 Pa. Commw. Page 509]

    per cent on the gross receipts of all commercial parking transactions, and before we were reversed and the ordinance struck down by our Supreme Court in Alco Parking Corporation v. Pittsburgh, 453 Pa. 245, 307 A.2d 851 (1973), City Council adopted Ordinance No. 30 of 1973 which imposes "upon each parking transaction by a patron of a nonresidential parking place at the rate of 20 per centum (20%) on the consideration for each such transaction. . . ." The City by taxing the patron sought to cure in advance the infirmity of confiscation of the operators' property found by the Supreme Court to be suffered by Ordinance No. 704. The instant case is an attack on Ordinance No. 30 by some of the commercial operators who were plaintiffs in the Alco case, supra, joined by 55 individuals. The form of action is by appeal pursuant to section 6 of The Local Tax Enabling Act, Act of Dec. 31, 1965, P.L. 1257, 53 P.S. ยง 6906, which provides in pertinent part:

"No tax levied for the first time by any political subdivision to which this act applies shall go into effect until thirty days from the time of the adoption of the ordinance or resolution levying the tax. Within said thirty days, taxpayers representing twenty-five percent or more of the total valuation of real estate in the political subdivision as assessed for taxation purposes, or taxpayers of the political subdivision not less than twenty-five in number aggrieved by the ordinance or resolution shall have the right to appeal therefrom to the court of quarter sessions of the county upon giving bond with sufficient security in the amount of five hundred dollars ($500), approved by the court, to prosecute the appeal with effect and for the payment of costs. The petition shall set forth the objections to the tax and the facts in support of such objections, and shall be accompanied by the affidavit of at least five of the petitioners that the averments of the petition

[ 11 Pa. Commw. Page 510]

    are true and the petition is not filed for the purpose of delay.

"It shall be the duty of the court to declare the ordinance and the tax imposed thereby to be valid unless it concludes that the ordinance is unlawful or finds that the tax imposed is excessive or unreasonable; but the court shall not interfere with the reasonable discretion of the legislative body in selecting the subjects or fixing the rates of the tax. The court may declare ...


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