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MARK B. ARONSON v. CITY PITTSBURGH (06/05/86)

decided: June 5, 1986.

MARK B. ARONSON, APPELLANT
v.
THE CITY OF PITTSBURGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Mark B. Aronson v. The City of Pittsburgh, No. GD 83-01420.

COUNSEL

Bruce S. Gelman, for appellant.

Ronald H. Pferdehirt, Assistant City Solicitor, with him, D. R. Pellegirni, City Solicitor, for appellee.

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

Author: Macphail

[ 98 Pa. Commw. Page 2]

Mark B. Aronson (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County which denied Appellant's motion for certification of his action against the City of Pittsburgh (City) as a class action and ordered that the action shall continue as an individual action.*fn1 We affirm.

Our review of the record reveals the following. On January 3, 1985, this Court in Aronson v. City of Pittsburgh, 86 Pa. Commonwealth Ct. 591, 485 A.2d 890 (1985) affirmed an order of the Common Pleas Court filed on January 26, 1983 which vacated and set aside the assessment of Business Privilege Tax by the City against Appellant for the year 1980 on fees Appellant received as a director of various corporations. We affirmed on the basis that "receipt of compensation for services as a corporate director does not constitute a business as defined in the business privilege tax ordinance." Aronson at 600, 485 A.2d at 895.

On January 28, 1983, previous to our affirmance and two days after the Common Pleas Court set aside the assessment, Appellant filed a class action complaint in assumpsit seeking to recover the business privilege tax paid to the City for the year 1980 on director's fees. He brought the suit on behalf of himself and all others similarly situated. The Common Pleas Court on March 21, 1983 entered an order staying all proceedings concerning

[ 98 Pa. Commw. Page 3]

    the class action suit until the appeal of its order setting aside the assessment had been decided. On January 23, 1985, the stay order was vacated. After an amended complaint was filed and a certification hearing was held,*fn2 the Common Pleas Court on May 10, 1985 entered the order which is the subject of this appeal.

Where, such as here, a class certification is sought pursuant to Pa. R.C.P. Nos. 1702, 1708 and 1709, the trial court's order granting or denying class certification will not be disturbed on appeal unless the Court neglected to consider the requirements of the rules or abused its discretion in applying them. D'Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Superior Ct. 441, 500 A.2d 1137 (1985).

The mechanism by which a taxpayer such as Appellant, who has paid a local occupation tax later found to be void, may secure a refund is set forth at 72 P.S. § 5566b and 72 P.S. § 5566c.*fn3 The relevant portion of 72 P.S. § 5566b reads as follows:

Whenever any person or corporation of this Commonwealth has paid or caused to be paid, or hereafter pays or causes to be paid, into the treasury of any political subdivision, directly or indirectly, voluntarily or under ...


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