Public Parking Authority v. City of Pittsburgh

Dissenting Opinion by

Judge Blatt :

I must dissent from the majority’s award of interest running from the date of payment of the parking transaction tax here involved. I do so because “ [c] ourts in charging and allowing interest need not limit themselves by hard and fast rules but should charge and allow interest in accordance with principles of equity.” Cities Service Oil Co. v. Pittsburgh, 449 Pa. 481, 487, 297 A.2d 466, 469 (1972). It seems to me that the application of such principles here would dictate another result.

In McGillick v. Pittsburgh, No. 85 January Term, 1963 Misc. Docket (Allegheny County), aff'd per curiam, 415 Pa. 581, 203 A. 2d 480 (1964), where certain commercial parking lot operators challenged the “Parking Tax Ordinance,” Ordinance No. 435 of 1963, enacted by the Pittsburgh City Council, on the ground (among others) that the tax violated the Pennsylvania *334Constitution because it was not uniform upon the same class of subjects, the court said:

The Ordinance also defines the word ‘operator.’ In its definition of the word, ‘operator,’ the Ordinance expressly excludes the City and the Public Parking Authority of the City of Pittsburgh but does include, operators on the premises of the Public Parking Authority of the City of Pittsburgh. The Appellants contend that these exclusions constitute an illegal and unreasonable classification of subjects of taxation and that in this respect the Parking Tax Ordinance violates Section (1) of Article (9) of the Pennsylvania Constitution. Said Article reads as follows:
All taxes shall be uniform upon the, same class of subjects within the territorial limits of the Authority levying the tax and shall be levied and collected under the general laws.
These exclusions represent a classification of subjects of the parking tax.
By its definition of the word ‘operator,’ the Parking Tax Ordinance excludes from the parking tax the City itself and the Public Parking Authority of the City of Pittsburgh but not the operators on the premises of the Public Parking Authority of the City of Pittsburgh. This means that the City itself is exempt from the tax and that such parking operations as are conducted directly by the Public Parking Authority of the City of Pittsburgh are also exempt from the tax. Those parking operations which are conducted by concessionaires or lessees of the Public Parldng Authority of the City of Pittsburgh are subject to the tax under the terms of the Parking Tax Ordinance.
*335We are of the opinion that the flat exemption of the Pittsburgh Public Parking Authority as an operator of parking lots does not comply with Section (1) or [sic] Article (9) of the Pennsylvania Constitution requiring uniformity of taxes upon the same class of subjects. . . . Our holding is that a blanket exclusion of the Pittsburgh Public Parking Authority as an ‘operator’ does not conform to the uniformity requirements of the Pennsylvania Constitution. Under the present factual situation this ruling affects only 348 metered parking spaces which are operated directly by the Pittsburgh Public Parking Authority. It should be noted that the Parking Authority Law provides that ‘any property’ acquired or used by the Authority for its purposes is exempt from any taxes. We are of the opinion that this does not exempt taxes upon parking transactions which under this Ordinance are in the nature of excise taxes as contrasted to property taxes. In view of the severance clause in the Ordinance our holding with respect to the Pittsburgh Public Parking Authority’s non taxed operations in no way invalidates the whole Ordinance.
Sor [sic] the reasons set forth hereinabove, we find that the Pittsburgh Parking Tax Ordinance No. 434 of 1962 is valid with the exception of that part of Section (2) dealing with definitions which exclude the Pittsburgh Public Parking Authority of the City of Pittsburgh from the definition of the term ‘operator.’ (Citations omitted.)

It had, therefore, been clearly held that the parking transaction tax was valid and that it applied to the. Public Parking Authority. Thereafter, the city, in *336response to this decision, imposed a parking transaction tax upon commercial parking lot operators and upon the Public Parking Authority as well.

In Pittsburgh v. Public Parking Authority, 11 Pa. Commonwealth Ct. 442, 314 A.2d 887 (1974), our Court was presented with the issue of whether or not the Public Parking Authority, and its lessee-operators were exempted by statute from the payment of the parking transaction tax. We distinguished McGillick, supra, and held, in affirming the lower court, that the parking facilities operated by the Public Parking Authority and its lessee-operators were “public properties devoted to public use and entitled to exemption from real estate taxation.” 11 Pa. Commonwealth Ct. at 445, 314 A.2d at 889.

While I do not challenge our holding in Pittsburgh v. Public Parking Authority, supra, it seems clear to me that the city was justified in relying on McGillick, supra, when it collected this tax from the Parking Authority and its lessees and I believe, therefore, that equitable principles dictate that the city pay interest on all refunds due under Pittsburgh v. Public Parking Authority, supra, only from the date of the decision in that case.