Commonwealth v. Lutz

• Decision Date: 27 June 1925
• Docket Number: 18
• Citation: Commonwealth v. Lutz, 284 Pa. 184, 130 A. 410 (Pa. 1925)
• Parties: Commonwealth v. Lutz, Appellant
• Court: Pennsylvania Supreme Court

130 A. 410

Commonwealth v. Lutz, Appellant

284 Pa. 184

No. 18

Supreme Court of Pennsylvania

June 27, 1925

Argued May 25, 1925

Appeal, No. 18, May T., 1925, by defendant, from judgment of C.P. Dauphin Co., Commonwealth Docket, 1924, No. 1, for defendant on case tried by the court without a jury, in suit of Commonwealth v. James H. Lutz, Jr. Affirmed in part and revised in part.

Appeal from tax settlement.

Case tried by court without jury. Before HARGEST, P.J.

The opinion of the Supreme Court states the facts.

Judgment for defendant. Commonwealth appealed.

Error assigned was, inter alia, judgment, quoting it.

The judgment of the court below is reversed with directions to enter judgment for the Commonwealth in accordance with the views herein expressed for the amount due.

John Robert Jones, Special Attorney for the Commonwealth, with him George W. Woodruff, Attorney General, cited: Atlantic Refining Co. v. Van Valkenburg, 265 Pa. 456; Com. v Lowry-Rodgers Co., 279 Pa. 361; Norris Bros. v Com., 27 Pa. 494; Pittsburgh Brewers' & Bottlers' Supply Co.'s Mercantile Tax, 38 Pa.Super. 121; Com. v. Pocono Mountain Ice Co., 23 Pa.Super. 267; Com. v. Gormly, 173 Pa. 586.

Geo. Ross Hull, of Snyder, Miller & Hull, for appellee. -- This case is ruled by Com. v. Gormly, 173 Pa. 586.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

In this case we have presented the question whether a plumber is liable for the payment of the mercantile license tax imposed by the Act of May 2, 1899, P.L. 184, and, if he is, does liability attach to the entire volume of the business which he transacts or to only part of it?

Defendant is a registered or licensed master plumber. Under the agreed-upon facts, his business divides itself into three branches, (1) that relating to contracts which he performs, wherein he furnishes materials and labor, (2) jobbing or repairing, in which the like situation exists, (3) the sale of materials purchased from others, upon which he expends no labor.

Defendant contends that he is not a dealer, and, therefore, not subject to the mercantile license tax so far as the first two branches are concerned, and, as to the third, that the gross volume of his business for the year in question amounts to only $359.62, therefore he is exempt under the terms of the Act of April 9, 1870, P.L. 59, which stipulates "That hereafter manufacturers and mechanics who shall sell goods, wares or merchandise, other than their own manufacture, not exceeding the sum or value of five hundred dollars per annum, shall not be classified or required to pay any annual tax or license fee; but if such sales shall exceed the sum or value of five hundred dollars per annum, as aforesaid, they shall be classified in the same manner, and required to pay the same annual tax as is now required to be paid by dealers in foreign merchandise." He also contends that if he be a dealer within the meaning of the Act of 1899, he is nevertheless exempt under the exceptions contained in section 10 of the Act of May 4, 1841, P.L. 307, and the proviso contained in section 11 of the Act of April 22, 1846, P.L. 486, as amended by the Act of February 27, 1868, P.L. 43.

As to the first and second branches of defendant's business our conclusion is that he is not liable to pay a mercantile license tax thereon. Plumbers and like artizans and craftsmen such as carpenters, bricklayers, stone masons, plasterers, etc., who contract to furnish labor and materials for an undertaking, either in its construction in the first instance, or its alteration or repair, are not within the scope of the mercantile tax act and are not comprehended within the term dealers, who are the persons from whom that particular impost is collectible. Such a craftsman, in the language of Mr. Justice BLACK (Norris Bros. v. Com., 27 Pa. 494; see also Com. v. Lowry-Rodgers Co., 279 Pa. 361) is not a dealer because he is "not one who buys to sell again"...