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HOUSE PASTA v. COMMONWEALTH PENNSYLVANIA (08/24/78)

decided: August 24, 1978.

HOUSE OF PASTA, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Board of Finance and Revenue in case of Petition of House of Pasta, Inc. for Reassessment of Sales and Use Tax.

COUNSEL

Shertzer & Gray, for petitioner.

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

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by President Judge Bowman. Judge Crumlish, Jr. concurs in the result only.

Author: Bowman

[ 37 Pa. Commw. Page 318]

At issue are cross motions by the Commonwealth to quash a petition for review and by petitioner for leave to file a more specific petition for review.

Considering itself aggrieved by a reassessment of sales and use tax made against it by the Board of Finance and Revenue (Board), the House of Pasta, Inc., on January 25, 1978, submitted an "appeal" to this Court and was advised that tax appeals were subject to the Pennsylvania Rules of Appellate Procedure (Rules) requiring the appeal to be in the form of a petition for review. Petitioner promptly resubmitted a petition for review, and it was filed to the originally preserved filing date. The petition for review, proper in form as to its heading and the identity of the governmental action from which the appeal was taken, simply recites that petitioner seeks to set aside the order because the Board lacks statutory authority to adopt it, and that the order was not supported by substantial evidence. This language is merely a restatement of that contained in the suggested form of petition for review found in Pa.R.A.P. 1518 pertaining to appeals from state administrative agencies. It gives little heed to the provisions of Pa.R.A.P. 1513 requiring petitions for review to set forth a general statement

[ 37 Pa. Commw. Page 319]

    of objections to the order appealed from and ignores the note to Pa.R.A.P. 1519 which cautions the reader that tax appeals, being unique because of their de novo status on appeal, require special consideration as to the amount of detail required in the petition for review.*fn1

Prior to adoption of the Rules, the practice and procedures for judicial review of tax appeals were prescribed by Section 1104 of The Fiscal Code (Code), Act of April 9, 1929, P.L. 343, as amended, 72 P.S. ยง 1104.*fn2

On July 1, 1976, the effective date of the Rules, subsection (c) of Section 1104 was suspended absolutely, Pa.R.A.P. 5105(a), but subsection (d) is not deemed to have been suspended or affected, Pa.R.A.P. 5106(3). The uncertain dichotomy between Pa.R.A.P. 1513,

[ 37 Pa. Commw. Page 3201518]

and the saved subsection (d) of Section 1104 underlies the issues posed in ...


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