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WESTINGHOUSE BROADCASTING COMPANY v. COMMONWEALTH PENNSYLVANIA (06/27/74)

decided: June 27, 1974.

WESTINGHOUSE BROADCASTING COMPANY, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, BOARD OF FINANCE AND REVENUE, APPELLEE



Appeal from the Order of the Board of Finance and Revenue in case of Appeal of Westinghouse Broadcasting Company, Inc., No. R-26836.

COUNSEL

Frank A. Sinon, with him Sherill T. Moyer, and Rhoads, Sinon & Reader, for appellant.

M. David Smeltz, 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

[ 14 Pa. Commw. Page 61]

In this tax appeal under Section 1104 of The Fiscal Code, Act of April 9, 1929, P.L. 343, as amended, 72 P.S. § 1104 (Supp. 1973-1974), we are confronted with a novel issue raised in a novel way.

Having taken the appeal, taxpayer appellant, prior to seeking de novo hearing on its appeal, filed a motion for summary judgment seemingly pursuant to Pa. R.C.P. No. 1035 raising a purely legal issue, which, if sustained, would be dispositive of the appeal. In utilizing Pa. R.C.P. No. 1035, appellant contends that tax appeals are within the original jurisdiction of this Court in that the appeal is de novo, thus likening it to litigation originating in this Court.*fn1 We cannot agree.

[ 14 Pa. Commw. Page 62]

Appeals under Section 1104 of The Fiscal Code are clearly within the class of cases identified as direct appeals from administrative agencies -- Section 403(1) and Section 508(a)(29) of the Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, 17 P.S. §§ 211.403, 211.508 (Supp. 1973-1974) -- and not within its original jurisdiction as defined by Section 401 of the ACJA, 17 P.S. § 211.401 (Supp. 1973-1974). That some of these appeals are heard de novo, while others are not but heard solely upon the record made before the administrative agency, in no way translates them into the class of cases within the scope of our original jurisdiction. Nevertheless, this Court will dispose of the motion as we are of the view that this motion raising a pure legal issue may appropriately be disposed of prior to further proceedings. See 1 Standard Pennsylvania Practice 345, § 298, and cases cited therein. Both the appellant and the Commonwealth have orally and in briefs fully presented the procedural steps taken in the proceedings below which appellant asserts constitute reversible error.

These facts are not in dispute and disclose that appellant, Westinghouse Broadcasting Company, Inc., timely filed its corporate net income tax report for the calendar year ending December 31, 1970, reflecting a tax liability in the amount of $1,452,324.00. The taxing authorities settled the tax account consistent with appellant's aforementioned tax report. However, appellant, in its tax report, had employed an improperly constructed gross receipts apportionment fraction which caused the taxing authorities' settlement of its tax account to reflect a greater tax liability than appellant considered proper. Therefore, appellant moved to correct this by timely filing a petition for resettlement pursuant to Section 1102 of The Fiscal Code, Act of April 9, 1929, P.L. 343, as amended, 72 P.S. § 1102 (Supp. 1973-1974), contesting the settlement of appellant's

[ 14 Pa. Commw. Page 63]

    tax account. Appellant's petition for resettlement was refused by the taxing authorities. Thereafter, appellant filed a timely petition for review with the Board of Finance and Revenue pursuant to Section 1103 of The Fiscal Code, 72 P.S. § 1103 (Supp. 1973-1974).

On September 27, 1972, the Board of Finance and Revenue issued its first decision and order in this matter resettling corporate net income tax against appellant in the amount of $1,112,895.91 in accordance with the prayers of appellant.

No appeal was filed by the taxing authorities from this first decision and order of the Board of Finance and Revenue within the sixty day period prescribed by Section 1104 of The ...


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