No. 390 January Term, 1979, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1680 C.D. 1977, Affirming the Order of the Court of Common Pleas of the First Judicial District, at No. 98 March Term, 1975.
Kenneth E. Aaron, Philadelphia, for appellant.
Stewart M. Weintraub, Dep. City Sol., Ellis M. Saull, Asst. City Sol., Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., joins the majority opinion and files a concurring opinion.
This is an appeal from a final Order of the Commonwealth Court entered June 1, 1979, 43 Pa. Commw. 186, 402 A.2d 708 based on its holding that the appeal of William E. Gould (hereinafter Gould) in that court was a dilatory tactic and awarding counsel fees to the City of Philadelphia (hereinafter
City), appellee. The sole issue in this case is whether the Commonwealth Court was in error in awarding counsel fees to the City.
This litigation began in the Court of Common Pleas of Philadelphia at March Term, 1975, when the City of Philadelphia filed a complaint in assumpsit against Gould, a resident of New Jersey, alleging that Gould was obligated to pay a wage tax to the City because of his employment by the Department of the Navy, Naval Support Activities, at the United States Naval Base on League Island. The City served Gould pursuant to the Pennsylvania Long Arm Statute then in effect at 42 Pa.C.S. § 8301, et seq., and Gould challenged the court's in personam jurisdiction under that statute. The challenge was made by way of preliminary objections filed on April 23, 1975.
While these preliminary objections were pending, another case involving the same issues of in personam jurisdiction and the same facts (New Jersey resident working at League Island and refusing to pay the Philadelphia wage tax) was proceeding through the appellate court system. In that case, City of Philadelphia v. John E. Bullion, 28 Pa. Commw. 485, 368 A.2d 1375 (1977), the court held that there was proper in personam jurisdiction. On June 15, 1977, this Court denied allowance of appeal in Bullion. On August 3, 1977, Bullion was appealed to The United States Supreme Court.
On August 2, 1977, following our denial of allowance of appeal in Bullion, the trial court dismissed Gould's preliminary objections. On August 18, 1977 Gould appealed to the Commonwealth Court. Roughly two months after Gould's appeal to the Commonwealth Court, on October 31, 1977, The United States Supreme Court dismissed the appeal filed in Bullion v. City of Philadelphia, 434 U.S. 914, 98 ...