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FORREST C. GEARHART v. COMMONWEALTH PENNSYLVANIA (11/15/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 15, 1976.

FORREST C. GEARHART, INC., PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, BUREAU OF SALES AND USE TAX AND VINCENT X. YAKOWICZ, SECRETARY OF THE DEPARTMENT OF REVENUE FOR THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS

Original jurisdiction in the Commonwealth Court of Pennsylvania in case of Forrest C. Gearhart, Inc. v. Commonwealth of Pennsylvania, Department of Revenue, Bureau of Sales & Use Tax, and Vincent X. Yakowicz, Secretary of the Department of Revenue, for the Commonwealth of Pennsylvania.

COUNSEL

Gilbert B. Abramson, with him Eilberg, Corson, Getson & Abramson, for petitioner.

Alan M. Bredt, Deputy Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 27 Pa. Commw. Page 71]

Critical to this tax appeal is the question: Does this Court have jurisdiction? Respondent, Bureau of Sales and Use Tax, in its preliminary objections, argues that when petitioner has not exhausted its "adequate statutory remedy specifically designed for tax cases of this nature," declaratory judgment*fn1 is not the proper remedy and thus this Court lacks jurisdiction. We agree.

[ 27 Pa. Commw. Page 72]

Petitioner, Forrest C. Gearhart, Inc., is a Pennsylvania corporation engaged in the retail sale and in the installation of carpeting and floor coverings. On September 27, 1975, the Bureau of Sales and Use Tax (Bureau) issued "Ruling No. 213 -- Carpeting and Other Floor Coverings." This ruling changed the procedure by which Petitioner was to remit the tax to the Bureau.

Petitioner, under the apprehension that the Bureau, in promulgating the ruling, exceeded its statutory authority and made an unconstitutional ruling, continued to file returns in accordance with the procedure prior to September 27, 1975, and this petition for a declaratory judgment followed. The Bureau properly argues that Petitioner has not exhausted its statutory remedy.

The Supreme Court in Friestad v. Travelers Indemnity Co., 452 Pa. 417, 425, 306 A.2d 295, 299 (1973), was confronted with the question of whether declaratory judgment is an extraordinary remedy available only when there is no other remedy at law. Chief Justice Jones, speaking for the Court, said:

"When the legislature enacted Section 6 of the Act, and its several amendments, we believe it intended

[ 27 Pa. Commw. Page 73]

    the common sense meaning that its language conveys. If a remedy is specially provided by statute, it must be pursued. If, on the other hand, there is another available remedy not statutorily created, whether such remedy is legal or equitable, it is only one factor to be weighed by the court in its discretionary determination of whether a declaratory judgment would lie."

In Gold v. Department of Public Instruction, 16 Pa. Commonwealth Ct. 247, 328 A.2d 559, 561 (1974), Judge Kramer wrote, "[i]n Friestad the Supreme Court clearly indicated that when a statutorily created remedy exists it must be utilized, and it is the exclusive remedy." (Emphasis in original.) Since the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. ยง 7101 et seq., provides Respondent with a procedure for seeking and challenging the Bureau, we hold that this dispute is governed by the pronouncements in Friestad, and therefore

Order

And Now, this 15th day of November, 1976, the preliminary objections of the Bureau of Sales and Use Tax are sustained and Plaintiff's petition is hereby dismissed.

Disposition

Preliminary objections sustained. Petition dismissed.


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