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COMMONWEALTH PENNSYLVANIA v. WEST PENN POWER COMPANY (03/27/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 27, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, APPELLANT,
v.
WEST PENN POWER COMPANY, APPELLEE

Appeal from the Order of the Board of Finance and Revenue in case of In Re: West Penn Power Company, No. RST-145.

COUNSEL

Paul S. Roeder, Assistant Attorney General, with him Lawrence J. Rosen, Chief, Appeals Section, for appellant.

Lloyd R. Persun, with him Howell C. Mette, and Shearer, Mette, Hoerner & Woodside, for appellee.

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

Author: Blatt

[ 18 Pa. Commw. Page 174]

On March 27, 1974, the Board of Finance and Revenue, after considering West Penn Power Company's (West Penn) petition for refund of sales tax collected between 1966 and 1969, ordered that the refund be granted in the amount of $5,370.98. On April 9 the Department of Revenue (Department) issued a credit memorandum to West Penn in that amount and accepted it as payment for sales and/or use tax liability of West Penn incurred during 1974. On May 24 the Department appealed the Board's order to this Court and on August 30 West Penn filed a motion to quash the appeal.

West Penn contends that the Department, by extinguishing its liability and complying with the Board's order, has rendered the appeal moot. In WFIL Broadcasting Company v. Philadelphia, 358 Pa. 208, 56 A.2d 75 (1948) the City issued a property tax refund to the taxpayer after the lower court had ordered that the assessed value of the property be reduced. Our Supreme Court held that the City's appeal from the lower court order was thus moot. We must reach the same result here.

We must emphasize, however, that the Department's payment in this case appears to have been entirely voluntary, unlike the situation in J. Purdy Cope Hotels Company v. Fidelity-Phenix Fire Insurance Co., 126 Pa. Superior Ct. 260, 191 A.636 (1937) where the appellant's payment of judgment followed execution on the lower court's judgment.

We, therefore, issue the following

Order

Now, this 27th day of March, 1975, the appeal of the Commonwealth of Pennsylvania, Department of Revenue, from the order of the Board of Finance and Revenue dated March 27, 1974, is hereby quashed.

Disposition

Appeal quashed.

19750327

© 1998 VersusLaw Inc.



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