*280Dissenting Opinion by
Mb. Justice Pomeeoy:I concur in the dissenting opinion of Mr. Justice Eagen, but believe it desirable to augment that opinion by several additional observations.
I.
I consider it unfortunate that the Court, in its footnote 2, prematurely and unnecessarily undertakes to decide the relative authority of our decisions in Rochester & Pittsburgh Coal Co. v. Indiana County Board of Assessment, 438 Pa. 506, 266 A. 2d 78 (1970), and Lynch v. Owen J. Roberts School District, 430 Pa. 461, 244 A. 2d 1 (1968). These cases are concerned with equity jurisdiction in constitutionally-based challenges to taxing statutes where the challenge can be adjudicated in a statutorily prescribed appeal procedure. That question is only obliquely involved in this case in connection with the applicability of the procedure allowed by section 6 of the enabling statute1 whereby the taxpayer can secure a judicial determination of the reasonableness of a local tax. There was no attempt by the taxpayers to avail themselves of the section 6 determination of “reasonableness”; neither was there any objection by the City at the trial level or on appeal in the Commonwealth Court to the exercise of equitable jurisdiction because the enabling act procedure had not been pursued. Thus the discussion in the Commonwealth Court opinion as to what a court might have done (i.e., find the tax rate “unreasonable”) had a *281section 6 challenge been made was beside the point; the decision holds the tax valid on constitutional grounds. The same is true of this Court’s opinion, since the decision goes off on constitutional grounds, albeit with the opposite result. All that the City is doing (part IY of its brief in this Court) is to argue that since the parties agree that the case raises issues solely of a constitutional nature, the “reasonableness” of the parking tax cannot be raised on this appeal. In any event, it argues, a section 6 attack must be timely made, and in the trial court. In addition it cannot gain consideration in this suit by being “appended” to the constitutional issue—even a substantial one, which the City contends this one is not.
This Court has only recently granted allocatur in a case squarely presenting the jurisdictional problem involved in Lynch and Rochester, supra. Borough of Greentree v. The Board of Property Assessment of Allegheny County, Nos. 141 and 142, March Term, 1978 (Allocatur granted on April 11, 1973). Our ultimate decision in that case should not be prejudiced by needless dicta in this one.
n.
On the constitutional question, the Court today holds that the parking tax ordinance of the City of Pittsburgh is a taking of “private property . . . for public use without just compensation” in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, relying, inter alia, on dictum found in Philadelphia v. Samuels, 338 Pa. 321, 12 A. 2d 79 (1940). On this record I cannot agree.2
*282I can conceive that a tax could be confiscatory (and I do not understand Justice Eagen to be of a different view). For example, were tbe ordinance one imposing a tax of 100% on tbe net income of tbe appellants’ enterprises, thus mailing it impossible beyond any doubt to operate at a profit, I am inclined to think that tbis would be a talcing of private property for wbicb compensation would be required. Tbe tax bere, of course, is on gross proceeds, not net income, and at tbe admittedly bigb rate of 20%. Tbis tax could, however, be tbe practical equivalent of a 100% tax on net income if tbe operating expenses of tbe taxed enterprises absorb tbe other 80% of gross receipts. But tbis complete elimination of profitability would, of course, have to be supported by tbe experience of tbe industry.
It is at tbis point that tbe Court and I part company, for I believe that little attention has been paid to tbe facts of tbe case and tbe economic theories necessarily involved.3 There are two factual issues: (a) current, substantial unprofitability of tbe taxed enterprises, and (b) lack of market power to shift tbe inci*283deuce of the tax to the parking consumer. Like the chancellor below4—to whose findings the Court pays scant heed5—I am not satisfied with appellants’ evidentiary showings on either point.
(a) Current, Substantial Unprofitability.
Ordinance No. 704 of the City of Pittsburgh, imposing a 20% tax on the gross proceeds of commercial parking transactions, was enacted on December 31, 1969 and became effective on February 1, 1970. It superseded a predecessor parking tax (Ordinance No. 675) which was enacted in 1968 a,nd which imposed a similar tax of 15%. We are told, though not part of the record made below, that Ordinance No. 704 in turn has been superseded by Ordinance No. 30 of January 26, 1973 which became effective on April 1,1973. There is, therefore, a period of a little more than three years during which appellants’ businesses were subject to and in fact paid the disputed tax. The present lawsuit, however, was filed on February 20, 1970, very soon (nineteen days) after the tax became effective, and the trial of the case took place on September 15, 16, and 17, 1970. The *284economic evidence there introduced was, as the Court’s opinion indicates, “projected figures for 1970” based on industry experience under the challenged tax from February 1, 1970 through May 31, 1970. While there is nothing inherently inadmissible about economic projections, properly constructed and qualified,6 I think that they become inherently inadequate when actual economic data are in fact available for the period of the projection. We do not adequately discharge our duty of invalidating taxing acts, see Commonwealth v. Life Assurance Co. of Pennsylvania, 419 Pa. 370, 377, 214 A. 2d 209 (1965), as “clearly, palpably and plainly” unconstitutional when we so hold on the basis of five months’ experience under the statute as contrasted with the now available three years’ experience. The appellants have prevailed in no court save this one and hence have throughout that period been subject to the 20% tax. I cannot see that a remand for development of the record in light of actual industry experience would prejudice the interests of any party to these proceedings, public or private. Certainly the people of the City of Pittsburgh are entitled to as much before losing the millions of dollars in tax revenues here involved.
(b) Loch of Market Power To Shift the Incidence of the Tax.
Appellants’ showing of a lack of ability to pass the tax on to the consumer is most unpersuasive. It con*285sisted of two kinds of evidence: first, assertions on behalf of the appellant-enterprises that they were charging all the traffic would bear at the time of enactment of the 20% tax, i.e., prices which maximized their gross proceeds,7 and second, testimony of the manager of Meyers Bros. Parking-Central Corporation, the operator of the parking garage in Chatham Center, that when that corporation raised its prices in 1968 in response to the enactment of the 1968 ordinance of 15%, the business of that garage had actually diminished.
As to the first, I do not think it follows from tbe fact that all private entrepreneurs strive to maximize profits that all prices set by them are at profit-maximizing levels. The bare assertion by an appellant that “[if] I could raise the rates to meet this tax . . ., I would have . . .” falls far short of the quality of proof required to show the tax clearly, palpably and plainly unconstitutional.
The second line of proof is similarly inadequate. At issue here is the market power of the taxed industry to shift the incidence of the tax to the consumer. What occurred in 1968 when one member of that industry *286raised its rates is hardly probative of what would occur if the industry, in response to enactment of a tas ordinance at a higher rate, were to raise rates.8
Not only do I conclude that appellants failed in their proof of inability to shift the tax burden such as to invalidate the tax, but I find ample evidence of the existence of such market power. First, there is the fact, revealed by the testimony of appellants’ witnesses, that appellants have posted general rate increases at intervals in the 1960s and have always experienced an increase in gross receipts. Second is the fact—a matter of common knowledge in Pittsburgh of which I think the Court can take judicial notice—that the current parking rates generally posted in downtown Pittsburgh reflect a significant rate increase over those rates of the summer of 1970 which appellants sought to characterize as profit-maximized.9 It would appear, then, that the demand for parking spaces which appellants thought in 1970 would decline in the face of a price increase, thus resulting in a decrease of gross receipts, in fact now supports the increased rates of 1973. Whether or not gross receipts have fallen I, of course, do not know; I suggest that the increased prices have now been in effect long enough for appellants to have determined whether their operations are losing business or benefit-ting because of them. And finally, there is the fact that there exists at this time no source of supply which could satisfy any portion of the demand now satisfied by appellants’ garages and lots. This brings me to the position of the Pittsburgh Parking Authority.
*287III.
Whether or not appellants possess the market power to shift the incidence of this tax depends to a large degree on the presence of competitors, i.e., other sources of supply capable of satisfying demand formerly satisfied by appellants. Were it the case that the Parking Authority and appellants were individually capable of satisfying all demand in the market, any price differential between the rates of the Authority and those of appellants would logically cause all demand to seek the source of cheapest supply. Under such a market condition, appellants would necessarily charge rates the same as or lower than those of the Parking Authority and would be unable to pass a parking tax on to the consumer if doing so caused them to charge rates above those of the Authority. If the tax thus imposed also removed all profitability from the private business of commercial parking, then I think the evidentiary requirements of Philadelphia v. Samuels, supra, would be met.
It is clear, however, that such is not the situation here. The record shows that there are some 24,000 parking spaces in downtown Pittsburgh; of these, 17,470 are controlled by appellants here and 6,530 are controlled by the Pittsburgh Parking Authority; there exists also a demand, as yet unsatisfied, for approximately 4,000 additional spaces, a demand which is projected to increase by 1979 to 10,500 spaces. The price differential between the lower rates of the Parking Authority and the higher rates of appellants which so concerns the majority is proof positive, so it seems to me, that appellants supply a demand that cannot be satisfied by the Authority. This is to say, an entrepreneur (the appellants) who controls 71% of the supply in a market of unsatisfied demand need not concern himself with a low-cost, competitor (the Parking Authority) who con*288trols 29% of the supply, has no excess capacity, and cannot service demand which the 71% competitor might drive away through price increases. The competitors with which appellants must concern themselves are the alternatives to drwing (i.e., public transportation, car pools, etc.). But there is much public debate today whether the American driver can be forced out of his privately-owned and privately-driven automobile, whatever the cost of operation may be.
The presence of the Parking Authority in this picture, and its preferred status in terms of property taxes, is therefore in my view an irrelevant factor.
For the reasons given, I would remand for further proceedings to determine appellants’ actual experience under the 20% gross receipts ordinance and would reserve judgment meanwhile on the question of whether an unconstitutional tailing by excessive, confiscatory taxation has occurred.10 I therefore dissent.
*289
The “Tax Anything Act,” December 31, 1965, P.L. 1257, as amended, 53 P.S. §6906. That section permits taxpayers aggrieved by a local tax measure to challenge its validity within a thirty (30) day period following enactment. The court shall then, if it concludes that the ordinance is unlawful or finds that the tax imposed is “excessive or unreasonable”, declare the ordinance invalid or reduce the rate of the tax.
1 do agree, however, that the tax is not imposed in violation of the uniformity requirement of the Constitution of Pennsylvania, Art. VIII, §1.
1 also disagree with the majority’s reliance (see opinion of the Court, ante at 267 n.14) on the constitutional theories of Professor Sax, see Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964), and on the “similar rationale” of the Supreme Court of Hawaii in Hasegawa v. Maui Pineapple Co., 52 Haw. 327, 475 P. 2d 679 (1970).
In DayBrite Lighting, Inc. v. Missouri, 342 U.S. 421, 96 L. Ed. 469 (1952), the Supreme Court of the United States sustained against constitutional attack a Missouri statute which makes it a misdemeanor to deduct wages of an employee when the employee absents himself to vote. The Supreme Court has now unanimously reiterated that view in Dean v. Gadsden Times Publishing Co., 412 U.S. 543, 37 L. Ed. 2d 137, 41 U.S.L.W. 3643 (1973) (Per Curiam: an Alabama statute providing that an employee excused for jury duty “shall be entitled to his usual compensation received from such employment less the fee or compensation he received for serving as a juror” is on “no less sturdy a [constitutional] footing” than the statute upheld in Day Bright Lighting).
The chancellor found that:
“19. The demand for parking spaces in the Gity of Pittsburgh far exceeds the supply.
“20. None of the plaintiffs have [sic] increased their [sic] rates since February of 1970.
“21. Plaintiffs have not attempted to pass on the increased tax to the parking lot patrons.”
As the majority opinion indicates, the Commonwealth Court reversed the chancellor’s finding, and observed that: “The appellants are unable to pass the tax on to their customers, not only because customers cannot and will not pay higher rates but also because the appellants are in competition with a public authority which, exempt from other taxes, can charge less.” While I see no basis for reversing the chancellor’s findings of fact, it is to be noted that the Commonwealth Court affirmed the chancellor’s conclusions of law. Thus that court eould as easily have said that “even on appellants’ version of the facts, affirmance would be in order.”
The plaintiff-appellants’ witness wlio assembled tbe economic data supplied to him by appellants was by education an electrical engineer. He had at one time taken one 6 months course in statistics, but none in accounting. The data introduced did not purport to be a complete presentation of the operations of appellants’ business entities. In addition, there was no showing of what fraction of the operating expenses represented salary attributed to the owners of the various enterprises involved here, or what portion of such payments to owners could fairly be said to represent return on investment.
A representative sample of such testimony follows: “Q. . . . Is it feasible for you to raise your rates now to meet this tax? A. I cannot raise the rates now. If I could raise the rates to meet this tax that’s been in effect since February, I would have. 1 do not feel that I would accomplish anything but drive my customers away if I raise my rates at this time.
“A. ... I have a feeling for this business. . . . There is only so much money you can charge.
“Q. So . . . [Wjhat is your opinion as to whether this parking tax can be passed on? A. The parking tax can never be passed on. That is silly. You are charging the rate that you think is the best one for you right at that time. If you raise that rate, you either drive customers away or you change the character of the business.” Record at 19, 20.
1 would consider the experience of Meyers Bros, as only of marginal relevance to the situation in the City at large. The Chatham Center Garage rates both in 1970 and in 1973 have been less than those in comparable downtown garages, which no doubt indicates a less strategic competitive position.
See the Appendix to this opinion.
1 would consider it unfortunate if today’s opinion might be thought to have restrictive implications for the future discouragement by a metropolitan government of the operation of private vehicles in the congested, downtown areas. Governmental activity in the field of environmental and motor vehicle control is increasing apace. This trend may ultimately remove the profitability from some commercial activities, such as providing parting space, which today depend on the automobile. I should hope that government is not eonstitutionaUy obligated to purchase those activities. Under current Fifth Amendment law, I am satisfied that is not the ease. Goldblatt v. Hempstead, 369 U.S. 590, 8 L. Ed. 2d 130 (1962).