Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Michael E. Fisher, individually and on behalf of all others similarly situated v. Southeastern Pennsylvania Transportation Authority, No. 3776 July Term, 1979.
Edwin P. Smith, for appellant.
Lewis H. Van Dusen, Jr., with him Robert J. Hoelscher, Drinker, Biddle & Reath, for appellee.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 60 Pa. Commw. Page 270]
Michael Fisher (appellant) appeals from an order of the Court of Common Pleas of Philadelphia County which sustained a preliminary objection in the nature of a demurrer and dismissed appellant's complaint against the Southeastern Pennsylvania Transportation Authority (SEPTA). We affirm.
Appellant, an employee of SEPTA since 1973, brought an action against SEPTA on behalf of himself and all other employees similarly situated seeking back pay for time spent on active duty with any of the reserve components of the United States Armed Services. SEPTA demurred to the complaint and the lower court sustained the demurrer without determining whether or not the suit could properly be certified as a class action. This appeal followed.
Appellant argues that SEPTA failed to pay his salary during the weeks in which he attended Air Force Reserve training since 1973 as required by The Act of July 12, 1935, P.L. 677, as amended, 65 P.S. § 114 (Act of 1935), which provided as follows:
[ 60 Pa. Commw. Page 271]
SEPTA was created pursuant to the Metropolitan Transportation Authorities Act of 1963 (Act), Act of August 14, 1963, P.L. 984, as amended, 66 P.S. §§ 2001-2043, repealed by the Act of July 10, 1980, P.L. 427. Section 4(a) of the Act, 66 P.S. § 2004(a) provides in part that "[a]n authority shall in no way be deemed to be an instrumentality of any city or county or other municipality or engaged in the performance of a municipal function, but shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof." (Emphasis added.) Appellant argues that because SEPTA's enabling legislation characterizes it as an instrumentality of the Commonwealth, it necessarily is a part of the sovereign for all intents and purposes and its employees are therefore Commonwealth employees for purposes of the Act of 1935. Appellant attempts to buttress his argument by reliance upon cases which have held SEPTA and similar transportation authorities exempt from certain types of taxation by virtue of their status as agencies or instrumentalities of the Commonwealth. See Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 882 (1971) (Transportation authority included within the phrase "Commonwealth of Pennsylvania" for purposes of exclusion from "The Liquid Fuels Tax Act."*fn1) and Southeastern Pennsylvania Transportation Authority v. Board for the Assessment and Revision of Taxes of Delaware County, 13 Pa. Commonwealth Ct. 207, 319 A.2d 10 (1974) (Transportation authority not subject to taxation by local taxing bodies.).
We do not dispute the fact that SEPTA is an instrumentality of the Commonwealth. Moreover, we do not deny that as an instrumentality of the Commonwealth,
[ 60 Pa. Commw. Page 273]
SEPTA is not subject to taxation by local municipalities, absent specific statutory authority to the contrary. Id.; Philadelphia v. Southeastern Pennsylvania Transportation Authority, 8 Pa. Commonwealth Ct. 280, 303 A.2d 247 (1973). However, we cannot agree with appellant that employees of SEPTA ...