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COMMONWEALTH PENNSYLVANIA v. MARCO ELECTRIC MANUFACTURING CORPORATION (11/04/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 4, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
MARCO ELECTRIC MANUFACTURING CORPORATION, APPELLANT

Appeals from the Orders of the Board of Finance and Revenue in case of In Re: Marco Electric Manufacturing Corporation.

COUNSEL

Alan I. Baskin, for appellant.

R. Scott Shearer, Deputy Attorney General, for appellee.

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

Author: Bowman

[ 32 Pa. Commw. Page 361]

Appellant, Marco Electric Manufacturing Corporation, has appealed to this Court decisions of the Board of Finance and Revenue which denied appellant's petitions for refund of penalties paid pursuant to Section 352(e) of the Tax Reform Code of 1971.*fn1 In connection with its appeals, appellant has filed a praecipe requesting an evidentiary hearing and has demanded a jury trial. By Order of August 5, 1977, we directed the parties to brief the question of appellant's entitlement to a jury trial in such a tax appeal. After consideration of the arguments submitted, we are of the opinion that appellant is not entitled to the jury trial demanded.

It is appellant's contention that its right to a jury trial in these appeals is conferred by Article I, Section 6, of the Pennsylvania Constitution, which provides, in pertinent part: "Trial by jury shall be as heretofore, and the right thereof remain inviolate." Appellant reasons that "taxation is a fundamental right based on common law which existed prior to our Pennsylvania Constitution and as such a trial by jury relating to a tax matter supercedes [sic] the Constitution. . . ."

With regard to Article I, Section 6, of the Pennsylvania Constitution, the Superior Court has stated:

'. . . The constitutional provision that "trial by jury shall be as heretofore, and the right thereof remain inviolate," means that in all proceedings where a jury trial was demandable at the time of the adoption of the Constitution it could not be taken away by statute, but where new proceedings are established by law the remedy afforded must not necessarily be a jury trial if there is a proper right of review before a regularly constituted judicial tribunal.'

[ 32 Pa. Commw. Page 362]

Order

Now, November 4, 1977, appellant's demand for a jury trial in these tax appeals is hereby denied.

Disposition

Demand for jury trial denied.


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