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SOUTHEAST DELCO SCHOOL DISTRICT v. MILTON SHAPP (04/21/75)

decided: April 21, 1975.

SOUTHEAST DELCO SCHOOL DISTRICT, PLAINTIFF,
v.
MILTON SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; ROBERT P. KANE, SECRETARY OF REVENUE OF THE COMMONWEALTH OF PENNSYLVANIA; ROBERT P. CASEY, AUDITOR GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA; AND GRACE M. SLOAN, STATE TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS



Original jurisdiction in case of Southeast Delco School District v. Milton Shapp, Governor of the Commonwealth of Pennsylvania; Robert P. Kane, Secretary of Revenue of the Commonwealth of Pennsylvania; Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania; and Grace M. Sloan, State Treasurer of the Commonwealth of Pennsylvania.

COUNSEL

Peter J. Nolan, for plaintiff.

Melvin R. Shuster, Deputy Attorney General, with him Gerald Gornish, Deputy Attorney General, Robert P. Kane, Attorney General, Craig R. Burgraff, Deputy Counsel, and Frank P. Lawley, Chief Counsel, for defendants.

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

Author: Kramer

[ 18 Pa. Commw. Page 390]

This matter comes within the original jurisdiction of this Court. It involves preliminary objections to a complaint in equity filed by the Southeast Delco School District (Delco), on behalf of itself and all local taxing authorities, similarly situated within the Commonwealth, against Milton Shapp, Governor of the Commonwealth of Pennsylvania; Robert P. Kane, Secretary of Revenue of the Commonwealth of Pennsylvania; Robert P. Casey, Auditor General of the Commonwealth of Pennsylvania; and Grace M. Sloan, State Treasurer of the Commonwealth of Pennsylvania (defendants). The complaint alleges that the defendants by and through their various agents, servants, agencies and employes, collected approximately $163,000,000 from 1970 to 1974, inclusive, pursuant to the Public Utility Realty Tax Act (PURTA), Act of March 10, 1970, P.L. 168, as amended, 72 P.S. § 3271 et seq., but that the defendants have failed to

[ 18 Pa. Commw. Page 391]

    distribute to Delco, or any member of Delco's class, approximately $80,000,000 of the PURTA funds. The complaint alleges that the failure to distribute the $80,000,000 violates the special direction of Article VIII, Section 4 of the Pennsylvania Constitution of 1968. Delco's complaint includes the following allegation:

"14. The purposes of PURTA were, to attempt to implement Article VIII Section 4 of the Constitution, to impose a special tax upon realty of public utilities, to provide for the distribution of this special tax money, by the Commonwealth, to local taxing authorities in an amount equal to the taxes that each local taxing authority would have received had the realty of public utilities been taxed directly by the local taxing authority, to impose certain duties upon certain public officials in order to carry out the provisions of the Act." (Emphasis added).

Delco requests, among other things, that this Court enjoin the defendants from commingling the above-mentioned $80,000,000 with any other funds of the Commonwealth, and from using the $80,000,000 for any purpose other than distribution to the local taxing authorities.

The defendants have filed preliminary objections to Delco's complaint. The first of these objections is a demurrer which reads as follows:

"Plaintiff [Delco] and members of plaintiff's class received their full constitutional distributive share of the tax monies collected under the Public Utility Realty Tax Act (PURTA) for the years 1971 through 1974, inclusive, inasmuch as they are only entitled to their share of the total realty tax equivalent as prescribed by the formula in § 7(b) of PURTA, [72 PS. § 3277 (Supp. 1974-1975)], and the Commonwealth is entitled to retain any excess monies."

The defendants also raise preliminary objections of sovereign immunity, laches and jurisdiction, but, in their brief to this ...


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