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CITY READING v. FORTY-FIVE NOBLE STREET (04/10/80)

decided: April 10, 1980.

CITY OF READING, A MUNICIPAL CORPORATION
v.
FORTY-FIVE NOBLE STREET, INC., D/B/A O. B. DYERS. 45 NOBLE STREET, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Berks County in case of City of Reading, a municipal corporation v. Forty-Five Noble Street, Inc., d/b/a O. B. Dyers, No. 74 March Term, 1978.

COUNSEL

Jan L. Deelman, of Levan and Deelman, for appellant.

Peter F. Cianci, First Assistant City Solicitor, with him Adam B. Krafczek, City Solicitor, for appellee.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 50 Pa. Commw. Page 432]

Forty-Five Noble Street, Inc., d/b/a O. B. Dyers (O.B.) here appeals to contest liability for annual business privilege taxes of the City of Reading (city) for the years 1976 and 1977. The city levied the tax pursuant to the authority of The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6901 et seq.

O.B. is engaged in the preparation, dyeing and finishing of textiles. O.B. contends that these operations constitute manufacturing, and that it is entitled to the manufacturing exemption in Section IIIc(5) of the local ordinance, which is similar to the exemption in Section 2(4) of The Local Tax Enabling Act, 53 P.S. § 6902(4).

After a non-jury trial, the Common Pleas Court of Berks County ruled that O.B. was not engaged in manufacturing within the exempting provision of the tax and entered a verdict in favor of the city in the amount of $10,346.00 plus interest of $2,350.02. After dismissal of O.B.'s exceptions, this appeal followed.

[ 50 Pa. Commw. Page 433]

First, O.B. contends that the lower court erred in admitting, over O.B.'s objection, an excerpt from O.B.'s answer to the city's petition to discover O.B.'s income tax returns. The excerpt, regarding the nature of O.B.'s business, states in part that O.B. is engaged in: "[T]he dyeing and treating of textiles and fibers in order to add to and alter the qualities of such textiles and fibers to create the sizes, colors, textures and other characteristics desired."

Because neither the city's pre-trial memorandum nor the court's pre-trial conference order includes reference to this answer, O.B. states that Pa.R.C.P. No. 212 prohibits the city from introducing the excerpt into evidence.

Further, O.B. argues that introduction of this excerpt is unjust because the city failed to introduce any other evidence to carry its burden to prove that O.B. was subject to the business privilege tax. Thus, O.B. also contends that the lower court erroneously refused to enter compulsory non-suit against the city.

A judgment of non-suit may only be entered where a defendant has offered no evidence. In F.W. Wise Co. v. Beech Creek Railroad Co., 437 Pa. 389, 391-92, 263 A.2d 313, 315 ...


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