Joseph F. McDonough, David McNeil Olds, Reed, Smith, Shaw & McClay, Pittsburgh, for appellant at No. 330.
John G. Frazer, Jr., David L. Feigenbaum, Pittsburgh, for appellant at No. 337.
Louis Caplan, David S. Watson, Thorp, Reed & Armstrong, Pittsburgh, for appellant at No. 341.
Richard H Martin, Pittsburgh, for appellant at No. 347.
Michael P. Malakoff, Berger & Kapetan, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Van der Voort, JJ. Spaeth, J., did not participate in the consideration or decision of this case.
[ 242 Pa. Super. Page 127]
This is an appeal from a decree entered below which denied appellants-defendants' motion for summary judgment and which, sua sponte, entered summary judgment on behalf of plaintiffs-appellees. We hold that summary judgment was prematurely entered in this case and we therefore reverse.
The instant controversy arises from a class action in equity instituted by the plaintiffs-appellees Marjorie H. Matson and Sylvia S. Sales, individually and on behalf of all other persons who patronized certain public parking garages owned by the Public Parking Authority of the City of Pittsburgh and leased by the Authority*fn1 to appellants herein during the period in which City of Pittsburgh Ordinance 704 was in effect. Ordinance 704, which became effective on February 1, 1970, imposed a 20 per cent tax on the gross receipts from commercial parking transactions. Similar parking taxes, at rates ranging from 10 per cent to the 20 per cent rate imposed by Ordinance 704, had been in effect as a business privilege tax on operators of Pittsburgh parking facilities during the preceding eight years. Ordinance 704 was declared invalid as applied to operators of Public Parking Authority garages as a result of an action initiated by
[ 242 Pa. Super. Page 128]
appellants, in December 1972.*fn2 The City of Pittsburgh was subsequently ordered to refund to appellants the taxes which were paid by them pursuant to Ordinance 704 during 1970 and 1971.
Appellees filed the present equity action on January 24, 1975 seeking imposition of a constructive trust on the sums ordered to be refunded to appellants by the City and a preliminary injunction against appellants.*fn3 An answer and new matter, a reply to new matter, plaintiffs' interrogatories and answers to interrogatories were filed. Hearings on the motion for a preliminary injunction were held on January 31 and February 6, 1975. On August 15, 1975 appellants filed a motion for summary judgment. Following oral argument the court below, en banc, entered the decree complained of by appellants in their appeal to this Court. That decree denied appellants' motion for summary judgment and granted, sua sponte, summary judgment for appellees. It decreed that the sums ordered refunded by the City and those sums not paid by appellants to the City after Ordinance ...