*1
The aforesaid Orders of
de-
the lower Court which
(a)
nied
on the
motion
judgment
pleadings,
(b) are
dismiss,
and are
interlocutory
appealable.
In the instant case, appellee presented no motion to
quash. However,
the appealability
goes
an Order
to the jurisdiction of
may
this Court and
be raised at
time
Court
itself: Reading
v. Willow
Company
Development
Co.,
supra;
Pa.,
McGee v.
Singley,
18,
Appeal quashed. Studio Washington, Theaters, Inc. Appellant. *2 C. J., Before Bell, 1964. September 29,
Argued and Bob- O’Brien Cohen, Eagen, Jones, Musmanno, JJ. ERTS, for appellant. Hahn, City Solicitor,
Jerome appellee. for Robert L. Geisler, Opinion 1965: Mr. March Jones, Justice class a third Washington, Pennsylvania, ordinance which 1964, adopted January 27, city, or en- “upon privilege a tax of attending imposed of enter- form amusements including every gaging pasttime.”1 sport, recreation and diversion, tainment, city ordinance amended On March. 9, 1964, toas manner in such “amusement” define the word im- exempt from certain forms of entertainment pact: shall ‘amusement’ further: “Provided proceeds of form entertainment, include payment expenses, inure ex- after of reasonable which, clusively or religious, to the educational, benefit organizations; vet- or charitable institutions, societies, organiza- police organizations; eran’s or or fireman’s against levied tions. within shall not be Also, membership membership in or or assess- fees dues, nonprofit religious, ments charitable, beneficial sportsmen’s organizations golf such as recreational, girl troops boy and tennis coun- scout clubs, *3 cils.” operator (Theaters),
Studio Inc. of Theaters, Washington, Penn Theatre in ac- instituted an Pa., equity tion in in the Court of Common Pleas of Wash- ington County against city, of the members city city injunc- seeking (a) council and other officials tive relief from the enforcement of the and ordinance the collection of taxes in the alterna- thereunder, or, (b) city tive, direction that the and its en- officials, producers force and collect the tax from all of amuse- original ments as defined in grava- ordinance. The men of this action is pro- that the amended ordinance exemptions vides for which affront the in Constitution they uniformity that lack and are arbi- unreasonable, ordinance, purporting passed This to have been under authority Anything the so-called “Tax (Act 25, Act” of June 1145, 1947, seq., amended, P. L. §1 et as §§6851-6859) 53 P.S. and City (Act The Third Glass Code June P. §1 et seq., amended, §§35101-39932), provided as 53 P.S. the manner of imposition licensing, powers of duties city and on the treasurer in the collection imposition connection with of the tax and the penalties for violation the ordinance. provid- classifications and trary discriminatory ed. objec-
The officials filed its city regard- into four separate which, divided tions, parts, questions; several less their raised nomenclature, Thea- (a) because that lacked (1) equity “Tax had an adequate statutory remedy ters supra, Code, Act” and The Third Class City Anything ordi- in the exemptions to attack the validity to capacity that lacked the (b) Theaters nance, “Ficti- to with the comply because its failure sue has that Corporate Act”;2 (2) tious Name no has equity to being so, this tax levy and, exemp- of these pass to on the validity tions; that Theaters failed (3) Pleas of Common state a cause of action. The Court action held that an Washington County objections. did lie and dismissed the'preliminary provisions under the of the Act of March 5, City, order from the appealed P. L. P.S. §1, §672, of the court below. pass upon quash we must a motion
Preliminarily, filed ground Theaters in that Act of is not available to the City 1925, supra, no true involved there is appeal. Despite numerous-decisions of our there courts, confusion as to still, apparently, availability *4 as the vehicle for Act which 1925, suprá, by reason otherwise, interlocutory nature the the pro- be unavailable this stage would order, Act of Under the ceeding. ques- the sole 1925, supra, is whether or not tion the court had below person either over the of the defendant or matter of the In action. subject case at bar, 2 July 11, 1957, 783, seq., Act of P. et §1 54 §81-104. P.S. the City attacks what it deems to be the of the court of matter of over the action. The court test is whether to Township enter Zerbe inquiry: School District v. 44 A. 2d Thomas, 566; Pa. 162, Adler v. Philadelphia, 852; Pa. 156 A. 2d 660, 664, University Square No. Inc. v. 407 Pa. 1, Marhoefer, 180 A. 2d 257, 410 Pa. 427; Seligsohn Appeal, A. 2d 746.
In v. Lebanon Witney City, 308, 311, Township 85 A. 2d this Court said: “In Zerbe School District 2d Pa. Thomas, we stated principles namely which are here applicable, that even plaintiff bring to though have no standing his action, even though demurrable, his be even he though fail even establish allegations, though the court should re- that finally conclude lief he seeks should not be or all of granted, these circumstances would enter de- much less into, termine, whether jurisdic- court had tion of the litigation. We there pointed out test of jurisdiction was the court competency to determine controversies of the general class to which presented case for its consideration belonged,— whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was un- able to grant the relief sought particular case; the Act of 1925 was not intended to furnish a short cut to a determination of the issues of law or fact raised pleadings and that it was not con- cerned with matters going to the right of plaintiff to recover on his cause of action but only with his right have his cause action heard and determined. support those principles many decisions of our appellate courts were cited, a host of later authori- ties has since been added to the long list there set forth.” On this motion to quash our inquiry is wheth- *5 involving juris appeal presents question er this the in under cognizable true sense, its diction, ap on If raised questions of the none statute. must appeal the of involve question jurisdiction, a peal of any. question raise appeal if the does be quashed; ..quashed not be appeal the should then jurisdiction, a is limited our determination the but on. jurisdiction: involving the only question consideration supra. igsohn Appeal, Sel sit below, the the court contends City First, Theaters in had no because ting equity, supra, Anything available under “Tax Act”, had an City The Third Class Code, supra, dismisses if at Even a court remedy law. “jurisdiction3 to the court having an ade complete a matter” because there is such an order is not remedy at quate law, Pa. 61, White v. 1925 statute: Young, 2d in the at bar 663. The case availability adequate remedy law, involving question appeal. is not before us jurisdiction, court lacked Next contends that City below jus neither because Theaters has stated in of action rea ticiable cause nor, of noncompliance by Theaters with “Fictitious son Corporate Name Act”, supra, Theaters the ca cause, to sue. Neither failure to pacity state a nor lack to sue capacity action Leba (Witney v. 311) p. non involve a City, supra, of the court below contro competency determine class to which the presented case general versies Under belong. consideration for its 1925 statute City these respects contentions are not for consideration. us before “jurisdiction” word used a loose fre- sense as so
quently- occurs.
Lastly, below court contends that lacked Theaters attacks because what *6 City the this action is the of to tax but the impact propriety exemptions granted of of the from the the tax. a This contention does involve jurisdiction requiring mo- the true that the sense, quash inquiry tion to be denied and limit our that we City. on this last contention of the misinterprets upon the attack made by amended ordinance An Theaters. examination equity of the reveals the real thrust upon challenge attack this amended a ordinance, i.e., exemptions validity to the constitutional from provided teaching in that ordinance. The our controversy case law is where the that, a involves challenge validity taxing to the constitutional of a statute controversy such a ordinance, within falls general ju- class of equity cases wherein does have competency Telephone risdiction and to act: Bell Company Pennsylvania v. 343 Driscoll, Pa. A. 2d Reading, v. 912; Y.M.C.A. 402 Pa. 592, 598, Philadelphia A. 2d 469; Company Insurance Life Commonwealth, Pa. 2d 111. Whether jurisdiction equity, having a court of such to act, presence act in should view of of an reme- dy or for law some other valid reason another mat- altogether.4 ter posture presented
In which the case at bar is challenge being and in view the real that to the constitutionality taxing of the court ordinance, prop- below did have and the court below erly so decided. City.
Order affirmed.
on
Costs
4 By
token,
statutory
if
remedy
same
there is a
which is
adequate,
party
appropriate
may pursue
a
statutory
reme
dy
may
though
equity
court
a
even
also have
of the
Appeal,
Cross
matter: Blue
(de
Dissenting : Cohen Mr. Justice I dissent. chal my opinion, which a
lenges of a court statutory reme plaintiff ground an exclusive ques majority’s dy “true a in the words, own raises, with jurisdiction.” take issue I do not tion of While question— jurisdictional majority’s of a definition in involving “power to enter as one competency determine quiry” court “the —or agree general cannot class”—I controversies question. March the Act of Under this is not such it has 46 P. S. §156, P. L. Sm. 21, 1806, reme long that where been held in contexts various *7 legislative provided dy procedure by a method of is procedures exclusively with be followed these shall act, equity. by Read Y.M.C.A.v. out interference courts (1961) Knup ing, A. Phila 402 167 2d 469 592, ; Pa. my (1956). delphia, Pa. 399 386 2d 350, opinion, it hold this Act the cases decided provides complete legislature statu when the particular regulation tory for of a scheme power regulation thereby to is matter the confined designated organs be in the statute and not to is provided equity, specifically it shared with unless is otherwise.
Superimposed upon exception this rule is the set Philadelphia Company Insurance out v. Com- Life (1963), 410 190 Pa. A. 2d 111 monwealth, to the equity does have rare effect pursuit statutory where directions circumstances irreparable not or would be cause would harm (While agree plaintiff. principle I with of this disagree application exception with I in Philadel- Life). phia majority’s
The source error is the failure to distinguish upon between based “adequate remedy law” ground the historical upon preliminary objection “exclusive based and a may procedure.” statutory that there While it is true “adequate remedy is an an at law” there be where statutory procedure” are assertions “exclusive these thing. (That distinc- not one same there is a and the supported by Pennsylvania Rules tion is Rule 1509 of them). designates separately of Civil Procedure which merely particular case, The former asserts that, grant just equity not not should as it should relief, grant hands”. relief when is “laches” or there “unclean power It in- does not assert that had no quiry type into the latter, involved. The legislature deprived equi- asserts that the however, ty inquiry. distinguish gives
The failure to so to the also rise majority’s pre second that a dismissal error, wit, liminary objections upon statutory based “exclusive procedures” order under the Act of March §672. P. 5, 1925, L. 23, P.S. ma §1, jority supports proposition with White v. Young, (1960), 402 Pa. A. 61, 166 2d 663 which was based Korona v. Bensalem Township, 2dA. (1956). But these cases involved dismissal of ob jections upon “adequate based remedy at law” which (until 1937) provided were for the Act of June P. P.S. expressly §1227, were ex *8 operation cluded from the supra, the Act of Objections upon §4 thereof. based “exclusive statu tory procedures,” on the other are hand, not excluded operation from the of the Act of 1925 and since jurisdiction” raises “true disposition is under the Act of 1925.
It remains to determine pre- whether defendants’ liminary objections based statutory “exclusive procedures” should be sustained in the case at bar. complete statutory There is regula- scheme for the which under The statute, matter. subject tion of the provides, specifically ordinance was passed, the taxing enact- from the of appealing for a method inter alia, sessions of quarter to the courts ment of ordinance ordinance. adoption thirty days within as amended, P. §3, Act of June 25, 1947, there- in itself, the ordinance Moreover, §9 P.S. §6853. and administration treasurer with of, charges any provides that of the ordinance enforcement shall decision of treasurer person aggrieved by pleas of common to the court right have provided. as in other cases questions— disposition opinion, my arising constitutional
whether otherwise — con- ordinance should be heard amusement set forth in the procedures text of the statute and/or no power the ordinance and over the exception no matter. Moreover, case, in Philadelphia pro- as applicable, Life, because plain- cedures are the task provided irreparable no harm by tiff would suffer pursuing them. I would sustain
Therefore, objec- to equity’s tions this case.
Taylor, Pennsylvania Appellant, v. Southern Company.
Bus