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AMERICAN TRUCKING ASSOCIATIONS v. JAMES I. SCHEINER (03/21/85)

decided: March 21, 1985.

AMERICAN TRUCKING ASSOCIATIONS, INC. ET AL., PETITIONERS
v.
JAMES I. SCHEINER, SECRETARY OF THE DEPARTMENT OF REVENUE OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original Jurisdiction in case of American Trucking Associations, Inc., Old Dominion Freight Line, Inc., and Anderson Trucking Service, Inc., individually and on behalf of a class of interstate motor carriers similarly situated v. James I. Scheiner, Secretary of the Department of Revenue of the Commonwealth of Pennsylvania, LeRoy S. Zimmerman, Attorney General of the Commonwealth of Pennsylvania, and Daniel F. Dunn, Commissioner of the State Police of the Commonwealth of Pennsylvania.

COUNSEL

Arthur R. Littleton, with him, Mark P. Pazuhanich, for petitioners.

Maura A. Johnston, Deputy Attorney General, with her, Allen C. Warshaw, Senior Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr., and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge MacPhail. President Judge Crumlish, Jr., and Judge Williams, Jr., dissent. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Macphail

[ 87 Pa. Commw. Page 420]

American Trucking Associations, Inc. and two foreign-based interstate motor carriers (Petitioners) bring an original action*fn1 for equitable and declaratory relief, seeking a refund of taxes paid for identification markers pursuant to Section 2102(b) of the Vehicle Code, as amended, 75 Pa. C.S. ยง 2102(b) (Vehicle Code). Petitioners, on behalf of themselves and others similarly situated, demand a refund of all marker fees paid for the period between August 18, 1980 to April 1, 1982.

In a companion case, American Trucking Associations, Inc. v. Bloom, 87 Pa. Commonwealth Ct. 345, A.2d (1985), this Court held that Section 2102(b) of the Vehicle Code, which required that every motor carrier vehicle*fn2 operating in Pennsylvania bear an identification marker, was unconstitutional because it facially discriminated against foreign motor carrier vehicles. Pursuant to Section 2102(b), operators of foreign-registered vehicles had to pay a $25.00 marker fee, while Pennsylvania-registered motor carriers had the marker fee "deemed a part of and included in the vehicle registration fee." Petitioners in that case, however, only demanded refunds of marker fees paid by

[ 87 Pa. Commw. Page 421]

    class members*fn3 for the year beginning April 1, 1982. Since we have already decided on the constitutionality of the marker fee, the only issue before us is the refund of the marker fees paid between August 18, 1980 to April 1, 1982.

Respondents*fn4 have preliminarily objected, alleging that this Court does not have jurisdiction over the instant case because Petitioners did not initially seek refunds from the Board of Finance and Revenue (Board), and hence, have not exhausted their administrative remedies. We agree and will sustain Respondents' preliminary objection on this basis.

Section 503 of The Fiscal Code (Code)*fn5 sets forth the explicit procedures for the refunding of improperly paid taxes. Under Section 503(a) of the Code, the Board has the power to refund taxes, license fees or other moneys improperly paid to the Commonwealth. Under Section 503(a)(4) of the Code, when any tax or other money has been paid which a court of competent jurisdiction has declared to be unconstitutional, a petition for refund to the Board must be filed within five years of the payment. A decision by the Board may be appealed to this Court on a petition for review, Section 503(e) of the Code.

Petitioners argue that the doctrine of exhaustion of administrative remedies is inapplicable in this instance because 1) this Court has subject-matter jurisdiction over Petitioners' claim for refunds from the Commonwealth and 2) the statutory remedy is inadequate because the time, ...


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