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RAYMOND F. PERCIVAL v. CITY PHILADELPHIA (03/21/74)

decided: March 21, 1974.

RAYMOND F. PERCIVAL, ABNER B. DECKERT, TIMOTHY J. EASTBURN, MICHAEL J. NOLE, WILLIAM A. MACDONALD, GUY W. HARVEY, JR., WILLIAM E. GOULD, NICHOLAS BUOMPASTORE, WILLIAM H. HAZZARD, B. R. COVERT, JOSEPH F. KENNY, E. A. THOMAS, APPELLANTS,
v.
CITY OF PHILADELPHIA, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in case of City of Philadelphia v. Raymond F. Percival, No. 9-229; Abner B. Deckert, No. 9-228; Timothy J. Eastburn, No. 9-227; Michael J. Nole, No. 9-226; William A. MacDonald, No. 9-225; Guy W. Harvey, Jr., No. 9-224; Leslie Stevenson, Jr., No. 9-223; William E. Gould, No. 9-222; Nicholas Buompastore, No. 9-221; William H. Hazzard, No. 9-220; Thomas P. Jenkins, No. 9-219; B. R. Covert, No. 9-218; Joseph F. Kenney, No. 9-217; E. A. Thomas, No. 2-216, September Sessions, 1972.

COUNSEL

Stephen A. Sheller, with him Astor and Weiss and Lee Laskin, of counsel, for appellants.

Albert J. Persichetti, Deputy City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

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

Author: Rogers

[ 12 Pa. Commw. Page 630]

The appellants are nonresidents of the City of Philadelphia who enjoy employment within the city but refuse to file returns of or to pay the city's tax on earned income. They appeal from orders of the Court of Common Pleas of Philadelphia County declaring absolute rules upon them to show cause why writs of

[ 12 Pa. Commw. Page 631]

    capias ad respondendum should not issue and setting bail.

One of the questions raised in this appeal was based upon the alleged failure of the city to file praecipes for writs in the court below, the appellants' contention being that lawsuits may not be commenced by the filing only of petitions for rules to show cause. We examined the record certified to us, including the docket entries, and found no indication that praecipes had been filed. The Philadelphia Prothonotary's office upon our inquiry found no praecipes nor any record of praecipes having been filed. We therefore handed down an opinion and order vacating the orders below without prejudice to the city's right to commence proper actions. The city petitioned for our reconsideration, asserting that praecipes had in fact been filed but by reason of local practice had not been docketed and had been returned to the city pending allowance of the issuance of writs after hearing on the rules. We held an evidentiary hearing and, being satisfied by the evidence there presented that praecipes had indeed been presented for filing, we withdrew our order. The appeals are now before us for decision of the other questions raised by the appellants.

This controversy has a long history. The efforts of non-residents seeking, as the appellants do here, to avoid imposition on them of the city wage tax or its collection from them by capias proceedings have met with unvarying failure.*fn1 In the last of the cases, Non-Resident Taxpayers Association v. Murray, 347 F. Supp. 399 (E.D. Pa. 1972), aff'd, 410 U.S. 919 (1973),

[ 12 Pa. Commw. Page 632]

    a three judge panel upheld the constitutional validity of the Pennsylvania statutes authorizing the issuance of a writ of capias ad respondendum to recover fines and penalties for failure to pay or report the tax. Undaunted, the appellants here launch a new attack on a broad front.

The Act of June 13, 1836, P.L. 568, as amended, 12 P.S. § 171 et seq., providing for capias ad respondendum is in pertinent part as follows:

"It shall be the duty of the prothonotary of any court having jurisdiction of the action, on the application of the plaintiff in any personal action, his agent or attorney, instead of the writ of summons as aforesaid, to issue a writ of capias ad respondendum, in the following form, to wit:

"The Commonwealth of Pennsylvania, [L.S.] County of to the sheriff of . . . County, greeting:

"We command you that you take . . ., . . . and keep him safely until he shall have given bail. . . ." Section 3, 12 P.S. § 171.

"It shall be the duty of the officer charged with the execution of any writ of capias ad respondendum to let to bail any person arrested or detained by him by force thereof, on his giving bond. . . ." Section 9, 12 P.S. § 181.

"The bond . . . shall be . . . in the amount of the bail demanded . . . and the condition thereof shall be that if the defendant . . . shall be condemned in the action . . . he shall satisfy the condemnation money and costs . . . or, in default thereof, that the bail will do so for him, and such bond shall ...


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