23 Pa. Commw. 298 | Pa. Commw. Ct. | 1976
Lead Opinion
Opinion by
This case involves a suit in equity filed by the Townships of Springdale and Wilkins, as a class action,
On two prior occasions we have rendered opinions which overruled preliminary objections filed by the parties.
PURTA became law on March 10,1970, and on or about June 1,1970,
The defendants originally contended that the PURTA tax revenues collected in 1970 were distributed to the local taxing authorities in October of 1971. After our initial opinion on preliminary objections, the defendants changed their defense. They now admit that the 1970 funds were never distributed, but they argue that PURTA was intended by the Legislature to be a general tax revenue measure for the period March 10, 1970, through June 30, 1970, and only thereafter to be a tax revenue measure pursuant to Article VIII, Section 4. Our analysis of PURTA, including its title,
The defendants contend that an issue of material fact exists which would prohibit the granting of summary-judgment.
The defendants argue that Article VIII, Section 4, did not take effect until July 1, 1970. This argument conveniently overlooks the last clause of the Schedule in Article
The defendants raise the issues of sovereign immunity and laches. We need not discuss the sovereign immunity argument since we considered and rejected it in our first opinion on the preliminary objections.
One final matter remains for disposition. The record submitted with the plaintiffs’ motion for summary judgment does not support the plaintiffs’ alleged right to judgment against the Attorney General. There is nothing in this record to indicate that the Attorney General has any duty relating to the collection and distribution of PURTA tax revenue. We hold, based upon this record, that judgment cannot be rendered against the Attorney
In accordance with the above, we therefore
Order
And Now, this 13th day of February, 1976, based upon the pleadings and affidavits filed, and after argument on cross motions for summary judgment, the defendants’ motion for summary judgment is hereby denied; the plaintiffs’ motion for summary judgment against the Attorney General is denied, and the complaint insofar as it is applicable to the Attorney General is hereby dismissed; the plaintiffs’ motion for summary judgment against the remaining defendants is granted; it is ordered that the Secretary of Revenue, the Auditor General, and the State Treasurer of the Commonwealth of Pennsylvania, be and they hereby are directed, jointly or severally, to make an accounting to all local taxing authorities which have qualified under the provisions of the Public Utility Realty Tax Act, Act of March 10, 1970, P.L. 168, as amended, 72 P.S. §3271 et seq., for the payment of real estate tax equivalents for the year 1970; it is also ordered that the remaining defendants, severally or jointly, serve upon each of the qualified local taxing authorities a copy of this Order as notice of their rights resulting from the determination made in this case; and it is further ordered that counsel for the plaintiffs shall submit to this Court a statement for legal services rendered on an hourly basis and for expenses incurred, after which this Court, by further Order, will determine the amount and means for the payment of counsel fees applicable to this class action.
. The class comprises 3,299 local taxing authorities, i.e., 66 counties (Philadelphia is counted as a city), 51 cities, 960 boroughs, 92 townships of the first class, 1,461 townships of the second class, and 669 school districts.
. Act of March 10,1970, P.L. 168, as amended, 72 P.S. § 3271 et seq.
. Townships of Springdale and Wilkins v. Kane, 16 Pa. Commonwealth Ct. 171, 328 A.2d 904 (1974) and 11 Pa. Commonwealth Ct. 254, 312 A.2d 611 (1973).
. Article VIII, Section 4 reads as follows:
“The real property of public utilities is subject to real estate taxes imposed by local taxing authorities. Payment to the Commonwealth of gross receipts taxes or other special taxes in replacement of gross receipts taxes by a public utility and the distribution by the Commonwealth to the local taxing authorities of the amount as herein provided shall, however, be in lieu of local taxes upon its real property which is used or useful in furnishing its public utility service. The amount raised annually by such gross receipts or other special taxes shall not be less than the gross amount of real estate taxes which the local taxing authorities could have imposed upon such real property but for the exemption herein provided. This gross amount shall be determined in the manner provided by law. An amount equivalent to such real estate taxes shall be distributed annually among all local taxing authorities in the proportion which the total tax receipts of each local taxing authority bear to the total tax receipts of all local taxing authorities, or in such other equitable proportions as may be provided by law.
“Notwithstanding the provisions of this section, any law which presently subjects real property of public utilities to local real estate taxation by local taxing authorities shall remain in full force and effect.
SCHEDULE
“Section four shall take effect July 1, 1970, unless the*301 General Assembly earlier provides enabling legislation in accordance therewith.”
. School Districts of Deer Lakes and Allegheny Valley v. Kane, Pa. , 345 A.2d 658 (1975); Southeast Delco School District v. Shapp, 18 Pa. Commonwealth Ct. 389, 336 A.2d 656 (1975); American Telephone and Telegraph Company v. Board of Property Assessment, 10 Pa. Commonwealth Ct. 41, 309 A.2d 193 (1973), rev’d., Pa. , 337 A.2d 844 (1975); Duquesne Light Company v. Board of Property Assessment, 10 Pa. Commonwealth Ct. 41, 299 A.2d 660 (1973); and Heller v. Dupuy, 2 Pa. Commonwealth Ct. 196, 277 A.2d 849 (1971).
. Section 3(a) of PURTA, 72 P.S. §3273(a), reads as follows:
“(a) On or before the first day of June of 1970 and of each year thereafter, every public utility shall pay to the state treasurer, through the Department of Revenue, a tax at the rate of thirty mills upon each dollar of the state taxable value of its utility realty at the end of the preceding calendar year.”
. Late payments have been received, so that by February 28, 1974, the Commonwealth had received $30,506,545.00 for the period in question.
. Section 7(b) of PURTA, 72 P.S. §3277 (b) reads in pertinent part as follows:
“ (b) On or before the first day of October of 1971 and of each year thereafter, the department shall distribute to each reporting local taxing authority its share of the total realty tax equivalent. . . .”
. PURTA’s title reads as follows:
“Imposing a special tax upon realty of public utilities; providing for distribution of moneys to local taxing authorities in lieu of local real estate taxes; conferring powers and imposing duties upon the Department of Revenue, local assessing and other officials, and public utilities; and providing penalties.” Article III, Section 3 of the Pennsylvania Constitution of 1968
provides that:
“No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compelling the law or a part thereof. . . .”
. American Telephone and Telegraph Company, supra note 5, Pa. at , 337 A.2d at 850.
. In support of their own motion for summary judgment, the defendants contend, somewhat inconsistently, that they have established the absence of any issue of material fact.
. 1 Pa. C.S. §1921 (c).
. Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1921 (b).
. American Telephone and Telegraph Company, supra note 5.
. Townships of Springdale and Wilkins, supra note 3.
. The Commonwealth is entitled to keep PURTA revenues which are in excess of the realty tax equivalents required to be distributed to the local taxing authorities. South East Delco, supra, note 5. The Legislature has provided a windfall to the Commonwealth by levying PURTA taxes far in excess of the amount necessary to carry out the constitutional mandate. We are permitted to take judicial notice of the Report of the Auditor General for 1973-74 which indicates that the General Fund received $36,312,417.15 in PURTA revenues in 1973 and $42,425,051.32 in 1974. In their cross motion for summary judgment the defendants state that PURTA distributions to local taxing authorities were $20,709,153.00 in 1971, $21,971,187.00 in 1972 and $19,773,243.00 in 1973. We point out, as we have in other cases, that the taxes paid by public utilities ultimately are paid by consumers. Every penny of the PURTA tax paid by the public utilities to the Commonwealth finds its way into the rates paid by the consumers of gas, electric, water, etc. Typical of governmental taxing schemes, PURTA provides additional revenues to the Commonwealth by levying taxes about double the amount of money necessary to carry out the constitutional mandate. In other words, our citizens who pay their utility bills are providing tax revenues hidden in their utility bills. At a time when the public is clamoring for lower utility bills, government compounds their problem with hidden taxes.
. See note 16, supra.
Dissenting Opinion
Dissenting Opinion by
I must respectfully disagree with the conclusion of the majority. PURTA, in my opinion, did not provide for the distribution of monies collected from utilities prior to the first day of June, 1970.
Accordingly, it is my opinion that while the Commonwealth, in 1970, was to collect utility realty taxes under PURTA, it did not have the statutory authority or means —i.e., the reports which were not to be filed until April 1, 1971 — to calculate how such taxes were to be distributed locally, nor did it have the authority to distribute. Thus, the “distribution” element necessary to activate Article VIII, Section 4, of the Pennsylvania Constitution, earlier than July 1, 1970, was absent. It is, therefore, my view that PURTA only provided for the distribution of public utility realty taxes collected after Article VIII, Section 4, became law on July 1,1970.