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JAMES R. SIMMONS ET AL. v. CITY PHILADELPHIA (02/21/84)

decided: February 21, 1984.

JAMES R. SIMMONS ET AL., APPELLANTS
v.
CITY OF PHILADELPHIA, APPELLEE. PAT ABBATANTUONO ET AL., APPELLANTS V. CITY OF PHILADELPHIA, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in the case of City of Philadelphia v. Pat Abbatantuono, No. 4729 June Term, 1981, and in the case of City of Philadelphia v. James R. Simmons, No. 2415 June Term, 1981.

COUNSEL

Kenneth E. Aaron, for appellants.

Mark Aronchick, Acting City Solicitor, with him Theodore A. McKee, Deputy in Charge of Enforcement, Ellis Saull, Chief Assistant Solicitor, and William H. Wolf, Jr., Deputy City Solicitor, for appellee.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 80 Pa. Commw. Page 355]

The City of Philadelphia brought actions in assumpsit against 958 nonresidents for delinquent wage taxes. All of the defendants were represented by one attorney, who filed an answer and new matter in their behalf asserting the following defenses: (1) that the assessments were either not made by the taxing authorities or if made, they were not received by the defendants; (2) that the defendants were entitled to a set-off for income earned while working outside the

[ 80 Pa. Commw. Page 356]

    city; and (3) that the actions were barred by the statute of limitations. The city filed a reply to the new matter. The actions were consolidated and the city filed a motion for summary judgment with supporting affidavits. No answer or other contest to the city's motion for summary judgment was made by the defendants.

The court granted the city's motion for summary judgment. It concluded with respect to the defense based on the lack of assessments, or notice thereof, that the city's supporting affidavits "clearly show[ed] that . . . the City sent notice to Defendant[s] of . . . [their] wage tax delinquency." The court held that the defendants were precluded from raising the set-off issue in the common pleas court because they had not previously exhausted their administrative remedies before the Tax Review Board; and that the statute of limitations, Section 19-509(a) of the Philadelphia Code, did not bar the action because it does not begin to run until the taxpayer has filed a wage tax return or report, which none of the defendants had done.

The defendants now argue on the merits that the affidavits filed in support of the city's motion for summary judgment were not based on the personal knowledge of the affiants as required by Pa. R.C.P. 1035(d) and thus were not a sufficient basis to grant the city's motion. This argument, however, was not raised in the common pleas court and it will not be considered on appeal. Stewart Appeal, 68 Pa. Commonwealth Ct. 458, 449 A.2d 802 (1982).

The common pleas court awarded the city counsel fees in the sum of $25.00 in each of the 958 cases, payable jointly and severally by the defendant*fn1 and

[ 80 Pa. Commw. Page 357]

    his or her attorney "due to the bad faith and obdurate assertion of previously adjudicated defenses." Judge Greenberg, for the court, noted that the defenses advanced by the defendants were identical to those raised in Santoro v. City of Philadelphia, 59 Pa. Commonwealth Ct. 114, 429 A.2d 113 (1981); City of Philadelphia v. Hennessey, 48 Pa. Commonwealth Ct. 600, 411 A.2d 567 (1980), allocatur denied ; and City of Philadelphia v. Kenny, 28 Pa. Commonwealth Ct. 531, 369 A.2d 1343 (1977), ...


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