Alco Parking Corp. v. City of Pittsburgh

• Decision Date: 02 July 1973
• Citation: 307 A.2d 851,453 Pa. 245
• Parties: ALCO PARKING CORPORATION et al., Appellants, v. CITY OF PITTSBURGH.
• Court: Pennsylvania Supreme Court

Page 851

307 A.2d 851

453 Pa. 245

ALCO PARKING CORPORATION et al., Appellants, v. CITY OF PITTSBURGH.

Supreme Court of Pennsylvania.

July 2, 1973.

Rehearing Denied Aug. 7, 1973.

Leonard Boreman, Richard H. Martin, Baskin, Boreman, Sachs, Gondelman & Craig, Pittsburgh, L. M. Marks, New York City, for appellants.

Gold, Farrell & Marks, New York City, Special Counsel for appellant, Meyers Bros. Parking-Central Corp.

Ralph Lynch, Jr., Grace S. Harris, Law Dept., City of Pittsburgh, Pittsburgh, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX, and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This controversy presents the interesting and novel question of whether the enactment, by a municipal government, of a 20 percent gross receipts tax upon all non-residential, commercial parking facilities in that municipality, combined with direct governmental competition in the form of a public parking authority, charging lower rates, has resulted in an unconstitutional taking and confiscation of private property without due process of law.

Appellants are twelve owners and operators of parking lots and garages representing approximately 71 percent of the total commercial parking spaces in downtown Pittsburgh. On February 20, 1970, appellants filed a complaint in equity in the Allegheny County Court of Common Pleas seeking to restrain the City of Pittsburgh (appellee) from enforcing the provisions of Ordinance No. 704 (Parking Tax Ordinance), and seeking a refund of all taxes paid thereunder. The Parking Tax Ordinance, approved by the Pittsburgh City Council on December 31, 1969, and enacted pursuant to the Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, § 1 et seq., 53 P.S. § 6901 et seq., imposed a tax of 20 percent on the gross receipts of all non-residential commercial parking transactions within the city limits.

This Parking Tax Ordinance (No. 704) superseded and replaced Ordinance No. 675, enacted by the City of Pittsburgh in 1968 establishing a gross receipts tax of 15 percent on all non-residential commercial parking transactions in the city. Ordinance No. 675, in turn, had replaced Ordinance No. 434, which had originally established the gross receipts tax rate of 10 percent.

In their complaint in equity appellants asserted (1) that the Parking Tax Ordinance was so excessive and unreasonable that it amounted to a confiscation of appellants' property without due process of law, and (2) that the Ordinance violated Article VIII, Section 1 of the Pennsylvania Constitution, P.S., ¹ and the equal protection clause of the Fourteenth Amendment of the United States Constitution in that the city had no reasonable basis for separately classifying appellants' commercial parking operations for the purpose of taxation. After a trial the Allegheny County Court of Common Pleas issued a Decree Nisi, on March 19, 1971, dismissing appellants' complaint, having found no taking of property without due process, and no violation of either the Pennsylvania or the United States Constitutions. Appellants' timely filed exceptions to the decree were dismissed by the court en banc on July 11, 1971, whereupon a final decree was entered.

Appellants then appealed to the Commonwealth Court which affirmed the decree of the common pleas court on June 8, 1972, 6 Pa.Cmwlth. 433, 291 A.2d 556, by a vote of four to three. Appellants' petition for reargument was granted by the Commonwealth Court on June 29, 1972. However, after reargument the Commonwealth Court adhered to its prior decision, affirming the chancellor's decree on October 10, 1972, 6 Pa.Cmwlth. 433, 295 A.2d 349. Subsequently, on November 6, 1972, appellants filed a petition for allowance of appeal with this Court. That petition was granted on January 23, 1973. We now reverse and remand.

I.

Appellee, the City of Pittsburgh, contends, initially, that this Court lacks jurisdiction to hear this appeal because appellants' petition for allowance of appeal was not timely filed. See Nardo v. Smith, 448 Pa. 38, 292 A.2d 377 (1972). Consequently appellee has moved to quash this appeal. In its motion to quash appellee alleges that appellants' petition for allocatur was not filed until November 6, 1972, almost five months after the issuance of the final order and opinion of the Commonwealth Court of June 8, 1972--clearly not within the 30 day time limit for perfecting an appeal as provided by statute. See Act of July 31, 1970, P.L. 673, art. V, § 502, 17 P.S. § 211.502 (Supp. 1972).

Appellee's contention is that the grant of the petition for reargument by the Commonwealth Court on June 29, 1972 (within the 30 day appeal period), unless accompanied by an order staying the proceedings, does not toll the 30 day period within which appellants must file their appeal. See Francis v. J. A. Brashear M. School Dist., 435 Pa. 589, 258 A.2d 509 (1969); Smith v. Jones, 369 Pa. 13, 85 A.2d 23 (1951); Erie v. Piece of Land, 341 Pa. 310, 17 A.2d 399 (1941). Since no such specific stay of the proceedings was issued by the Commonwealth Court, appellee asserts that the time for perfecting the appeal expired 30 days after the original June 8, 1972 order of the Commonwealth Court, regardless of that court's grant of reargument within the 30 day period.

Appellants contend that in good faith, after reargument had been granted, they contacted the Prothonotary of the Supreme Court who advised them that a petition for allocatur should not be filed until after the Commonwealth Court's order, following reargument, had been entered. Relying upon this information appellants did not file their petition until November 6, 1972--a date within 30 days of the Commonwealth Court's order, after reargument, affirming the decree below.

While appellants may not have been justified in relying on the legal advice of a court official, nevertheless the rule of law urged upon this Court by the appellee is not only contrary to logic but to the laws of physics as well. The granting of a petition for reargument within the 30 day appeal period necessarily indicates an intention by the granting court to stay the proceedings, and is in reality such a stay, in order to keep the record before that court, during reargument, pending any change or modification of the court's initial order after reargument. In these circumstances to require appellants to file a petition for allowance of appeal within 30 days of the original order of the Commonwealth Court would have the effect of placing them in two courts at the same moment. It is legally and physically impossible for the record in any case to be pending before two separate appellant courts of this Commonwealth simultaneously. Indeed a reargument is clearly a reconsideration by a court of a particular case. To slavishly adhere, as the appellee insists, to a rule requiring a court to also issue an order staying the proceedings would be needlessly elevating mere form over substance.

Certainly it is illogical, as well as senseless, to require a litigant to file an appeal, or petition for allowance of appeal, to a second appellate court while his case is still pending before the first appellate court, about to reconsider his case. To compel him to do so in advance of the reargument is indeed a useless, wasteful, and premature procedure. Assuming the court's initial decision is reversed upon reargument, the litigant may not even desire to file an appeal at the later time. If an appeal is desired after the reargument, that is the appropriate time for setting the appeal procedure in motion. This Court will not mandate such a purposeless burden and expenditure of professional and judicial time and effort.

These considerations lead us inexorably to the conclusion that where, as here, the Commonwealth Court granted appellants' petition for reargument within the prescribed period, the proceedings were thereby stayed, pending a reconsideration upon the merits after reargument. Appellants' petition, filed within 30 days of the Commonwealth Court's post-reargument disposition, was therefore timely. The motion to quash the appeal is denied. To the extent that any prior decision of this Court are inconsistent with this holding they are no longer controlling.

II.

Appellee urges upon this court one additional procedural objection contending that the Allegheny County Court of Common Pleas sitting in equity was not the proper court to hear this case. Appellee urges that a proceeding in equity is only proper in challenges to taxing statutes or ordinances when there is 'a substantial question of constitutionality . . . and the absence of an adequate statutory remedy.' Rochester and Pittsburgh Coal Co. v. Indiana County Board of Assessment, 438 Pa. 506, 266 A.2d 78 (1970). ² The City of Pittsburgh argues that the issues raised by appellants are not 'substantial constitutional questions' and that appellants had a specific statutory remedy of which they failed to avail themselves. See Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, § 6, as amended, 53 P.S. § 6906. ³

However, appellee did not raise this issue below and may not raise this issue here for the first time. The record clearly discloses that appellee interposed no objection to the propriety of the equity court proceeding either prior to, during, or after the trial below. In fact one of the chancellor's express conclusions of law, to which appellee took no exception was:

'This court sitting in equity has jurisdiction of the parties and of the subject matter of this proceeding.'

This Court has repeatedly emphasized, and it is now beyond cavil, that 'we will not review questions that were neither raised, tried, or considered in the trial court.' Felte v. White, 451 Pa. 137, 302 A.2d 347 (1973); Heppe Estate, 440 Pa. 328, 269 A.2d 687 (1970); Man O'War Racing Ass'n Inc. v. State Horse Racing Commission, 433 Pa. 432, 250 A.2d 172 (1969); Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246 (1...