Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Three Rivers Management Corporation and Pittsburgh Athletic Company, Inc. v. The County of Allegheny, The City of Pittsburgh, The School District of Pittsburgh and Frank Ventura, Louis H. Artuso, John J. Fallon, Joseph E. Feledick, Glenn C. Jones, Leo J. McLaughlin and Samuel Rudick, Members of the Board of Property Assessment, Appeals and Review, No. 3445 April Term, 1972A.
Thomas M. Rutter, Jr., Second Assistant County Solicitor, with him Stephen A. Zappala, County Solicitor, William R. Caroselli, Assistant County Solicitor, Ralph Lynch, Jr., City Solicitor, and Justin Johnson, Solicitor for School District, for appellants.
Judd N. Poffinberger, Jr., with him Stuart Nye Hutchison, Jr., Joseph C. Swaim, Jr., and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
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The fundamental question presented by the instant case is whether appellees are entitled to an injunction against appellants to prevent appellants from assessing
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and taxing the leasehold interests of appellees in the Municipal Stadium in Pittsburgh known as Three Rivers Stadium. Appellees secured such an injunction from the court below after full hearing with some 245 pages of testimony and an adjudication of 60 pages containing 83 findings of fact and 16 conclusions of law. This appeal followed. We must affirm.
The appellants raised three questions on this appeal. First, does equity have jurisdiction? Second, does the General County Assessment Law, Act of May 22, 1933, P.L. 853, as amended, 72 P.S. § 5020-101, authorize the assessment and taxation of a leasehold interest in real estate? Third, if the assessment and taxation of this leasehold interest is authorized, is it exempted by either the General County Assessment Law, or by the Public Auditorium Authorities Law, Act of July 29, 1953, P.L. 1034, as amended, 53 P.S. § 23841, as authorized by the Constitution of the Commonwealth of Pennsylvania for public property used for public purposes? The lower court, in finding for appellees and awarding the injunction, answered the first and third questions in the affirmative, and the second in the negative. In affirming the lower court, we agree with the answers to the first and second questions and, therefore, find it unnecessary to consider the third question.
With regard to the first question, appellants had filed preliminary objections to the complaint in equity on the grounds that there was an adequate remedy at law to appeal from the assessment. In fact, the appellees filed an appeal from the assessment as a cautionary measure, but that proceeding has been held in abeyance pending the disposition of this case. The argument on the preliminary objections was heard by the court below, with two judges sitting, neither of whom later heard the case on the merits or was on the court en banc that dismissed the objections to the final decree. The preliminary objections were dismissed with a well-reasoned
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opinion rejecting appellants' arguments which were repeated to us. The lower court was correct when it stated that equity has jurisdiction to enjoin the improper assessment of property and collection of a tax when the party seeking the injunction asserts general lack of power to assess or levy, or the constitutionality, both of which were alleged here. Such cases are legion in our books, as recently as the School District of Philadelphia and Thomas W. Rogers v. Damico, Inc., 15 Pa. Commonwealth Ct. 558, 328 A.2d 190 (1974). In Pittsburgh Public Parking Authority v. Board of Property Assessment, Appeals and Review, 377 Pa. 274, 284, 105 A.2d 165, 169 (1954), Chief Justice Horace Stern, quoted in the opinion of the court below, set forth the principles here controlling: "Where a property owner denies the power to levy a tax on his property equity affords the remedy, but where there is merely an over-assessment or inadequate exemption the sole remedy is by appeal from the assessment as provided by statute. (citing many cases.)" (Emphasis in original.)
The two principal cases relied upon by appellants are readily distinguished. In Rochester and Pittsburgh Coal Co. v. Indiana, 438 Pa. 506, 266 A.2d 78 (1970), our Supreme Court was divided as to whether a substantial constitutional question was raised. Apparently, it would have been unanimous that equity has jurisdiction here where there is no question but that a substantial constitutional question is raised and, in addition, another question even more fundamental, general want of power to assess and tax. It is clear to us that in Y.M.C.A. v. Reading, 402 Pa. 592, 167 A.2d 469 (1961), the other case heavily relied upon by appellants, Justice Cohen's well-reasoned opinion establishes ...