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MUNICIPALITY MONROEVILLE v. HENRY L. BERTOLO (08/09/84)

decided: August 9, 1984.

THE MUNICIPALITY OF MONROEVILLE, APPELLANT
v.
HENRY L. BERTOLO, T/D/B/A THE CAR STEREO SHOP, APPELLEE. THE MUNICIPALITY OF MONROEVILLE, APPELLANT V. THE MAY DEPARTMENT STORES COMPANY, APPELLEE. THE MUNICIPALITY OF MONROEVILLE, APPELLANT V. COX'S, APPELLEE. THE MUNICIPALITY OF MONROEVILLE, APPELLANT V. J.M. BALTER CO., D/B/A JAISON'S, APPELLEE. THE MUNICIPALITY OF MONROEVILLE, APPELLANT V. GIMBEL BROTHERS, INC., APPELLEE. THE MUNICIPALITY OF MONROEVILLE, APPELLANT V. ASSOCIATED DRY GOODS CORPORATION, APPELLEE. ASSOCIATED DRY GOODS CORPORATION, APPELLANT V. THE MUNICIPALITY OF MONROEVILLE, APPELLEE. GIMBEL BROTHERS, INC., APPELLANT V. THE MUNICIPALITY OF MONROEVILLE, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of Associated Dry Goods Corporation v. The Municipality of Monroeville, No. GD 80-09018; Henry L. Bertolo, t/d/b/a The Car Stereo Shop v. The Municipality of Monroeville, No. GD 80-12963; The May Department Stores Company v. The Municipality of Monroeville, No. GD 80-16582; J. M. Balter, d/b/a Jaison's v. The Municipality of Monroeville, No. G.D. 80-20491; Cox's v. The Municipality of Monroeville, No. GD 80-28644, and Gimbel Bros., Inc. v. The Municipality of Monroeville, No. GD 80-008719.

COUNSEL

George L. Cass, with him, John J. McLean, Jr., and William F. Giarla, Buchanan, Ingersoll Professional Corporation, and Avrum Levicoff, Egler & Reinstadtler, and John D. Finnegan, for appellant/appellee, The Municipality of Monroeville.

William G. Merchant, Papernick & Gefsky, P.C., for appellee, Henry L. Bertolo, t/d/b/a The Car Stereo Shop.

Joseph F. McDonough, with him, Kevin P. Lucas, Manion, Alder & Cohen, P.C., for appellee, The May Department Stores Company.

Lisle A. Zehner, for appellees, Cox's and J.M. Balter Co., d/b/a Jaison's.

Jeffrey S. Blum, with him, Henry A. Morrow, Jr. and Kevin C. Abbott, Thorp, Reed & Armstrong, for appellee/appellant, Gimbel Brothers, Inc.

Neal R. Brendel, with him, Judd N. Poffinberger, Jr., Kirkpatrick, Lockhart, Johnson & Hutchison, for appellee/appellant, Associated Dry Goods, Inc.

Victor R. Delle Donne, Baskin and Sears, P.C., for Amicus Curiae, Municipality of Bethel Park, Allegheny County.

Donald J. Lee, Dougherty, Larrimer & Lee, for Amicus Curiae, Borough of Greentree, Allegheny County.

Benjamin R. Jones, II, for Amicus Curiae, Township of Kingston, Luzerne County.

John F. Cambest, Conway, Meyer & Cambest, for Amicus Curiae, City of McKeesport, Allegheny County.

August C. Damian, for Amicus Curiae, Municipality of Penn Hills, Allegheny County.

D. R. Pellegrini, Solicitor, with him, Marvin A. Fein, Deputy Solicitor, for Amicus Curiae, City of Pittsburgh, Allegheny County.

William F. Morgan, for Amicus Curiae, Borough of Warren, Warren County.

Carl N. Frank, for Amicus Curiae, City of Wilkes-Barre, Luzerne County.

George F. Mahaney, for Amicus Curiae, State Association of Boroughs.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Barry and Colins. Opinion by Judge Colins. Concurring Opinion by Judge Craig. Concurring Opinion by Judge Barry. Judge Rogers and Judge Williams, Jr. join in this concurring opinion.

Author: Colins

[ 84 Pa. Commw. Page 407]

The Municipality of Monroeville (appellant) appeals from an opinion and order of the Court of Common Pleas of Allegheny County, declaring Monroeville's mercantile license tax invalid to the extent that it imposed mercantile license taxes upon certain classifications of retailers at a rate in excess of one and one-half mills, the maximum rate permitted by The Local Tax Enabling Act (LTEA).*fn1

Six taxpayers (Henry L. Bertolo, d/b/a Car Stereo Shop, May Department Stores Company, Cox's, J.M. Balter Co., d/b/a Jaison's, Gimbel Brothers, Inc., and Associated Dry Goods Corp.) (appellees) challenged the tax to the extent that it exceeded the maximum rate of one and one-half mills under LTEA. The Car Stereo Shop and Gimbel Brothers, Inc. filed suits for declaratory judgments and refunds. The remaining taxpayers, in addition to filing suits for declaratory judgments and refunds, also filed complaints in equity which sought injunctions against the enforcement of the tax based upon the excess millage. After consolidation, Judge Maurice Louik of the Court of Common Pleas of Allegheny County entered an Order of July 6, 1982, in which he declared that the taxes were invalid to the extent they exceeded one and one-half mills, denied refund claims to Gimbel Brothers, Inc. and Associated Dry Goods, Corp. for the years 1978 and 1979 on grounds of laches, and set further hearings on the refund claims of May Department Stores Co., Cox's, and Jaison's for the year 1980.

[ 84 Pa. Commw. Page 408]

The appellant filed timely exceptions to the declaration of invalidity and the appellee taxpayers filed timely exceptions to the denial of refunds for the years 1978 and 1979. Further hearings were held in the May Department Stores Co.'s, Jaison's and Cox's cases, and the Court, finding no laches with respect to the year 1980, ordered refunds to such taxpayers. The appellant filed further exceptions in these three cases and May Department Stores Co. filed exceptions on the grounds that its refund award did not include interest. By an Order entered February 24, 1983, the Court of Common Pleas (en banc, per Judges Louik and Smith), denied the exceptions of all parties, except those of May Department Stores Co. as to interest, and ordered judgment in favor of May against the appellant for the amount claimed by it for the year 1980, together with interest, and in favor of Cox's and Jaison's for the amounts claimed by them on refunds for the year 1980 without interest.

On March 15, 1983, the appellant filed Notices of Appeal to this Court from the Orders entered by the Court (en banc) denying the exceptions and entering judgments in favor of May, Cox's and Jaison's. On March 25, 1983, the appellant filed a Praecipe in each case to enter the July 6, 1982, Order as a Final Decree and an Amended Notice of Appeal designating that Final Decree as the Order from which the appellants now appeal. Associated Dry Goods, Corp. and Gimbel Brothers, Inc. have also filed Notices of Appeal, which are herein consolidated.

On January 5, 1976, the appellant became a Home Rule Charter Municipality.*fn2 On June 27, 1977, appellant enacted Ordinance No. 1076, which repealed conflicting ordinances and imposed a mercantile license

[ 84 Pa. Commw. Page 409]

    tax on retail dealers at a rate of one and one-half mills on each dollar of the volume of the annual gross business transacted. The ordinance stated that it was imposing the tax pursuant to the authority of LTEA. On March 7, 1978, the appellant increased the mercantile tax rate to two mills through Ordinance 1108, which also recited LTEA as authority. Ordinance 1206 was enacted on January 22, 1980, further amending the rate to four mills.

I.

The appellant first argues that it is entitled to impose a mercantile license tax in excess of the maximum rate of one and one-half ...


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