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JOHN H. LANG v. CITY PHILADELPHIA ET AL. (09/12/77)

decided: September 12, 1977.

JOHN H. LANG, APPELLANT
v.
CITY OF PHILADELPHIA ET AL.



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of John H. Lang v. City of Philadelphia and Charles E. Dorfman, Commissioner, Department of Revenue, and Nicholas D'Alessandro, Member, Tax Review Board, and David A. Kraftsow, Member, Tax Review Board, and Andrew G. Freeman, Member, Tax Review Board, and Kenneth L. Moore, Member, Tax Review Board, and Stanley J. Bernstein, Member, Tax Review Board, No. 3301 August Term, 1975.

COUNSEL

Kenneth E. Aaron, with him Davidson & Aaron, for appellant.

Stewart M. Weintraub, Assistant City Solicitor, with him Augustus L. Pasquarella, Assistant City Solicitor, Beryl E. Hoffman, Deputy City Solicitor, Stephen Arinson, Chief Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by Judge Wilkinson, Jr. Judge Kramer did not participate in the decision in this case.

Author: Wilkinson

[ 31 Pa. Commw. Page 538]

This is an appeal from an order dismissing appellant's complaint in equity filed in the Court of Common Pleas of Philadelphia County challenging Philadelphia's taxation of income earned by nonresidents while working within the naval shipyard on League Island.*fn1 We affirm.

[ 31 Pa. Commw. Page 539]

Appellant is a resident of the State of New Jersey and is employed as a civilian at the federal enclave at the United States shipyard on League Island. On August 25, 1975, the appellant filed the complaint at issue. It challenged the Philadelphia tax on numerous constitutional grounds and requested that an injunction be issued to restrain the assessment and collection of the tax from appellant. The appellees responded by filing numerous preliminary objections to the complaint based upon a variety of grounds. Subsequent to written and oral argument by the parties on these objections, an order dated April 13, 1976 was issued by the lower court sustaining the objections in the nature of a demurrer and dismissing the complaint with prejudice.

Appellant's arguments on appeal may be grouped into three primary categories: (1) the demurrer fails to state specifically the ground it relied upon; (2) the doctrine of stare decisis was improperly applied; and (3) the appellant should have been permitted to amend his complaint. We do not find any of these arguments persuasive.

There is no dispute by the appellees that the demurrer sustained by the lower court was "general" in nature. Appellant correctly points out that Pa. R.C.P. No. 1028*fn2 states that a preliminary objection in the nature of a demurrer must state specifically the grounds it relies upon. However, at no time prior to this appeal did the appellant raise any argument as to the lack of specificity of the demurrer. Having failed to raise this question in the court below, it is too late to do so here.

On the merits, appellant first argues that the Philadelphia tax in question violates Article I, Section 8,

[ 31 Pa. Commw. Page 540]

Clause 17 of the United States Constitution. In adopting such a position, appellant would have us disregard the Pennsylvania Supreme Court decision in Kiker v. Philadelphia, 346 Pa. 624, 31 A.2d 289, cert. denied, 320 U.S. 741 (1943). Even if such were possible, it should be sufficiently clear from our recent decisions that we will not do so. City of Philadelphia v. Kenny, 28 Pa. Commonwealth Ct. 531, 369 A.2d 1343 (1977) (allocatur denied); City of Philadelphia v. ...


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