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ALDINE APARTMENTS v. COMMONWEALTH PENNSYLVANIA (11/02/77)

decided: November 2, 1977.

ALDINE APARTMENTS, INC., T/A ACADEMY APARTMENTS, ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, PHILADELPHIA ELECTRIC COMPANY, PHILADELPHIA GAS WORKS AND BELL OF PENNSYLVANIA, RESPONDENTS



Original jurisdiction in case of Aldine Apartments, Inc., et al. v. Department of Revenue of the Commonwealth of Pennsylvania, Philaphia Electric Company, Philadelphia Gas Works and Bell of Pennsylvania.

COUNSEL

Robert R. Guzzardi, for petitioners.

Paul S. Roeder, Deputy Attorney General, for respondent, Commonwealth.

Albert J. Tomalis, Jr., with him Keefer, Wood, Allen and Rahal, for respondents, Philadelphia Electric Company and The Bell Telephone Company.

Edward D. McDevitt, with him, of counsel, Stack & Gallagher, for respondent, Philadelphia Gas Works.

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

Author: Bowman

[ 32 Pa. Commw. Page 297]

Petitioners, who are apartment house owners, have filed in this Court a class action petition for review in the nature of a complaint in equity on behalf of themselves and all other apartment house owners similarly situated. The petition for review seeks, inter alia, an injunction against the imposition, levy and collection of Pennsylvania sales tax as applied to petitioners' purchase of steam, natural and manufactured gas, electricity and intrastate telephone services for the apartment units they own;*fn1 an accounting for and

[ 32 Pa. Commw. Page 298]

    a refund of the sales tax paid by petitioners on these purchases from the initial date of collection of such tax; and a declaration that certain regulations of the Department of Revenue and certain provisions of the Tax Reform Code of 1971 are unconstitutional.*fn2

Each of the four named respondents, the Department of Revenue, Philadelphia Electric Company, Philadelphia Gas Works, and The Bell Telephone Company of Pennsylvania, has filed preliminary objections to the petition for review seeking dismissal of the action as against it. For the reasons discussed below, we sustain the preliminary objections of each respondent.

Respondent, Department of Revenue, argues that our decision in Lilian v. Commonwealth 11 Pa. Commonwealth Ct. 90, 311 A.2d 368 (1973), aff'd, 467 Pa. 15, 354 A.2d 250 (1976), is controlling as to its preliminary objections regarding jurisdiction of a court of equity. We agree. In Lilian v. Commonwealth, supra, we sustained the Commonwealth's preliminary objections to a class action in equity filed to compel refund of disputed payments of Pennsylvania sales tax. Citing Rochester & Pittsburgh Coal Co. v. Indiana County Board of ...


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