Appeals from the Orders of the Court of Common Pleas in cases of City of Philadelphia v. Gordon MacDonald, No. 5695 April Term, 1975; and City of Philadelphia v. Lawrence Rock.
Kenneth E. Aaron, with him Astor & Weiss, for appellants.
Augustus L. Pasquarella, with him Stewart M. Weintraub, Assistant City Solicitor, Albert J. Persichetti, Deputy City Solicitor, Stephen Arinson, Chief Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.
President Judge Bowman and Judges Crumlish, Jr. and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Wilkinson.
[ 29 Pa. Commw. Page 103]
Defendants appeal from the granting of the City of Philadelphia's (plaintiff's) motions for judgment on the pleadings in civil actions to collect the Philadelphia Wage Tax. Philadelphia, Pa., Code § 19-1500 et seq. (1973). Because the issues on appeal are identical the cases have been consolidated. We affirm.
Plaintiff's complaints allege that each defendant was employed in Philadelphia, failed to file a wage
[ 29 Pa. Commw. Page 104]
tax return for the years 1970-1973, and owed the City unpaid taxes.*fn1 Each complaint further alleges that on information received from the defendant's employer an assessment was made and that the defendant was notified of the assessment and failed to appeal to the Philadelphia Tax Review Board. In their answers, each defendant denies knowledge of how the assessment was made and attempts to deny all other allegations by invoking the Fifth Amendment privilege against self-incrimination. In new matter the defendants contend that the Philadelphia Wage Tax is unconstitutional as applied to themselves and that the City's claim is barred by the statute of limitations. Plaintiff filed motions for judgment on the pleadings which were granted by the court below.
On appeal, the defendants raise the following issues: (1) Whether in a civil action the defendants' answers invoking the Fifth Amendment right to remain silent may be deemed admissions under Pa. R.C.P. No. 1029; (2) if so, whether defendants should be allowed to amend their answers; (3) whether certain allegations in plaintiff's complaints are actually conclusions of law to which no answer is necessary; (4) if not, whether the doctrine of estoppel for failure to exhaust administrative remedies precludes defendants from raising defenses based on the statute of limitations and on the constitutionality of the Philadelphia Wage Tax; (5) if not estopped, whether the Philadelphia Wage Tax is constitutionally applied to the defendants, and whether the actions are barred by the statute of limitations.
[ 29 Pa. Commw. Page 105]
This case is similar to our recent decision in City of Philadelphia v. Kenny et al., 28 Pa. Commonwealth Ct. 531, 369 A.2d 1343 (1977), and is controlled by it. Judge Kramer's opinion specifically rejected issues 1, 4 and 5 so we need not comment on them here. The only issues remaining for our decision concern paragraph 6 of ...