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CITY PITTSBURGH v. JULES MELOGRANE (05/14/85)

decided: May 14, 1985.

CITY OF PITTSBURGH, A MUNICIPAL CORPORATION, APPELLANT
v.
JULES MELOGRANE, T/A EPPY'S PARKING LOT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Jules Melograne t/a Eppy's Parking Lot v. City of Pittsburgh, a municipal corporation, No. G.D. 78-27755.

COUNSEL

Ronald Pferdehirt, with him, Marvin A. Fein and Grace S. Harris, Assistant City Solicitors, and D. R. Pellegrini, City Solicitor, for appellant.

Samuel P. Kamin, for appellee.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge MacPhail. Dissenting Opinion by Judge Barry. Judge Craig joins in this dissent.

Author: Macphail

[ 89 Pa. Commw. Page 245]

The Appellant, the City of Pittsburgh (City), appeals from a decision of the Court of Common Pleas of Allegheny County which entered an order issuing a writ of mandamus to compel the City to refund to the Appellee, Jules Melograne, trading as Eppy's Parking Lot (Taxpayer), taxes which the City improperly collected. We reverse.

Taxpayer leased and operated a parking lot in Pittsburgh under a Concession Agreement with Allegheny County. At the time relevant to this appeal, the City imposed a tax on all transactions of each operator with respect to each non-residential parking place at the rate of twenty (20) percent of the gross receipts from all transactions.*fn1 Taxpayer paid the parking taxes from the fourth quarter of 1970 through the first quarter of 1972. In Public Parking Authority of Pittsburgh v. City of Pittsburgh, (No. 687 July Term 1972, filed December 29, 1972), the Court of Common Pleas of Allegheny County held that lessee/operators of the Parking Authority of Pittsburgh were exempt from the taxes imposed by Ordinance 704.*fn2 On December 26, 1973, Taxpayer made a written request for a refund for the taxes paid for the years 1971-72 pursuant to Section 1 of the Refund Enabling Act of 1943, Act of May 21, 1943, P.L. 349, as amended, 72 P.S. § 5566b (Act). The City neither acknowledged receipt of the request nor acted upon it.

Taxpayer filed his complaint in mandamus November 22, 1978, requesting the court of common pleas to order the City to refund the taxes in question. On

[ 89 Pa. Commw. Page 246]

March 30, 1982, the trial court issued the writ of mandamus directing the City to refund Taxpayer $15,526.26, representing the refund of parking taxes with interest from the dates of payment. The instant appeal followed.

Argument was heard by a panel of this Court on November 15, 1984. On order of this Court, the case was reargued before a court en banc on March 13, 1985. Counsel were directed by our order to address the issue of the effect, if any, of the provisions of Section 708(a) of the Judicial Code (Code), 42 Pa. C.S. § 708(a)*fn3 upon Section 2(c) of the Act, 72 P.S. § 5566c. Section 2(c) provides that where the taxing authority refuses to make a refund of taxes claimed to be due, the Taxpayer has a right to bring an action in assumpsit. Our concern was whether the Code's provisions compelled us to consider the Taxpayer's choice of remedies here as merely a matter of form rather than substance. That issue had not been raised or discussed by the parties in their previous arguments to the panel of this Court.

Whether to issue a writ of mandamus is, of course, within the discretion of the trial court, and on appeal our scope of review is limited to a determination of whether the lower court abused its discretion or committed an error of law. West Penn Power Co. v. Board of Property Assessment, 80 Pa. Commonwealth Ct. 378, 382, 471 A.2d 1285, 1287 (1984). It is well established that mandamus is an extraordinary writ which lies to compel the performance of a ...


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