dissenting.
I agree that Section 503(a)(4) of the Fiscal Code, 72 P.S. § 503(a)(4), mandates a refund of taxes paid to the Commonwealth to which the Commonwealth is not rightfully entitled. The relevant portions of the Fiscal Code provide:
§ 503. Refunds of state taxes, license fees, et cetera The Board of Finance and Revenue shall have the power, and its duty shall be,
(a) Except as hereinafter provided with respect to the Department of Transportation, to hear and determine any petition for the refund of taxes, license fees, penalties, fines, bonuses or other moneys paid to the Commonwealth and to which the Commonwealth is not rightfully or equitably entitled and, upon the allowance of any such petition, to refund such taxes, license fees, penalties, fines, bonuses or other moneys, out of the fund into which such taxes, license fees, penalties, fines, bonuses or other moneys were originally paid, or to credit the account of the person, association, corporation, body politic, or public officer entitled to the refund____
(4) “When any tax or other money has been paid to the Commonwealth, under a provision of an act of Assembly subsequently held by final judgment of a court of competent jurisdiction to be unconstitutional, or under an interpretation of such provision subsequently held by such court to be erroneous. In such case, the petition to the board may be filed either prior or subsequent to such final judgment but must be filed within five years of the payment of which a refund is requested, or within five years of the settlement of such taxes, bonus or other *261moneys due the Commonwealth, whichever period last expires. The board shall have jurisdiction to hear and determine any petition for refund filed prior to such final judgment only if, at the time of the filing thereof, proceedings are pending in a court of competent jurisdiction wherein the claims of unconstitutionality or erroneous interpretation made in the petition for refund may be established, and in such case the board shall not act upon the petition for refund until the final judgment determining the question or questions involved in such petition has been handed down.” 1
72 P.S. § 503(a)(4) (emphasis supplied). I disagree, however, that Section 503(a)(4) requires that the Commonwealth refund to the appellee, First National Bank of Fredericksburg (First National Bank), bank shares taxes paid by it for five years prior to 1983. To establish its entitlement to a refund, First National Bank must show that the Commonwealth is not entitled to the shares taxes paid by the bank. Under the circumstances of this case, it is necessary to establish that the Commonwealth is not entitled to the bank shares tax because that tax was invalid as declared by this Court in Dale National Bank v. Commonwealth, 502 Pa. 170, 465 A.2d 965 (1983). Where, however, a court holds that a tax that was paid to the Commonwealth is invalid, but also holds that its ruling of invalidity is to have prospective effect only, then the invalidity and entitlement to refunds would only apply to future levies and collections. A court decision that is applied prospectively only does not invalidate that which happened in the past. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Thus, for appellant First National Bank to be entitled to a refund of bank shares taxes paid prior to the date of the Dale decision (September 15, 1983), Dale must be applied retrospectively. Because the majority, without specifically saying so, applies Dale retroactively, I dissent.
*262In Dale, the parties (Dale National Bank and the Commonwealth) entered into a “Stipulation of Facts,” which, among other things, provided that:
“If the Court sustains the position of the [bank] as to the exclusion of U.S. Securities and accrued interest thereon, ..., it is agreed that the [bank’s] bank share tax as of January 1, 1978 is $-0-____”
In Dale, this Court stated: “We hold, in accordance with the recent decision of the Supreme Court of the United States in American Bank and Trust Co. v. Dallas County, 463 U.S. 855, 103 S.Ct. 3369, 77 L.Ed.2d 1072 (1983), interpreting 31 U.S.C. § 742, that obligations of the United States owned by [Dale National Bank] were improperly taken into consideration in computing [Dale National Bank’s] bank shares tax.” Thus, in accordance with that holding and in view of the stipulation of the parties, we vacated the order of the Board of Finance and Revenue which refused Dale National Bank a refund of taxes paid on United States obligations.
The majority assumes that as a result of the Dale decision, the appellee First National Bank, as a matter of law, is entitled to a full deduction of the amount of the federal obligations held by the bank from the value of the stocks, so that all of its tax liability was eliminated for the tax years in question. The majority’s assumption is only true if Dale is to be applied retroactively.2 However, as the majority points out, because of the stipulation between the parties in Dale, the issue of retroactivity was not before us then and thus we did not address it at that time.
*263Neither the Federal Constitution3 nor the State Constitution4 requires or forbids retroactive application of court decisions announcing a new rule. The United States Supreme Court, in considering the question of retroactivity, has held that a state court may apply its decisions prospectively. Great Northern Railway Co. v. Sunburst Oil & Refining Co., supra. “Retroactive application is a matter of judicial discretion which must be exercised on a case by case basis.” August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981) (citation omitted). The appellant Commonwealth argues that the circumstances of the instant case require that the Dale decision be applied prospectively. I agree.
In Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court enunciated three separate factors that are to be considered in determining whether a decision should be applied retroactively or prospectively:
“First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed____ Second, it has been stressed that ‘we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation’ ____ Finally we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ ”...
Id. at 106, 107, 92 S.Ct. at 355, 30 L.Ed.2d at 306 (citations omitted). We recognized in Gibson v. Commonwealth, 490 *264Pa. 156, 415 A.2d 80 (1980) that our unwillingness in certain circumstances to apply a decision retroactively is motivated by our concern that those formerly advantaged by the old rule will not be unfairly prejudiced. We recognized the three factors announced in Chevron, and acknowledged their applicability in our analysis in Gibson. 490 Pa. at 163, N. 4, 415 A.2d at 84, N. 4. Considering these three factors and applying them to the circumstances of the present case, the decision in Dale should be given prospective application only.
First, our decision in Dale, which applied the United States Supreme Court’s American Bank decision, established a new rule of law overriding past precedent. For more than a century the United States Supreme Court recognized bank shares taxes as an exception to the general rule that national banks are immune from taxation by the states. See Van Allen v. Assessors, 3 Wall 573, 18 L.Ed. 229 (1866). Under that exception, it was lawful for states to tax bank shares without excluding the value of the bank’s federal obligations holdings. In Society for Savings v. Bowers, 349 U.S. 143, 148, 75 S.Ct. 607, 610, 99 L.Ed. 950 (1955), the United States Supreme Court, in an opinion by Justice Harlan, recognized that “this exception to the general rule of immunity is firmly embedded in the law.” In American Bank, decided July 5, 1983, the United States Supreme Court analyzed a 1959 Amendment to Rev.Stat. § 3701, 31 U.S.C. § 7425 as prohibiting indirect taxation of federal obligations such as the bank shares tax. This change in the long established rule was abrupt and not clearly foreshadowed. As Justice (now Chief Justice) Rehnquist points out in his dissenting opinion in American Bank (joined by Justice Stevens), the 1959 Amendment to Rev. Stat. § 3701 did not in any way alter Rev.Stat. § 5219, as amended, 12 U.S.C. § 548. It was to Rev.Stat. § 5219 that the court previously looked to uphold the validity of the exception for bank shares taxes. American Bank and *265Trust Co. v. Dallas County, 463 U.S. 855, 103 S.Ct. 3369, 77 L.Ed.2d 1072. (Dissenting Opinion, Rehnquist, J.)
Second, in weighing the merits and demerits of the rule and its purpose and effect, it is clear that the new rule’s purpose is fully accomplished by prospective application. One of the primary purposes of the new rule is to encourage investments in federal obligations and to protect the borrowing power of the United States Government. See Society For Savings v. Bowers, supra. The appellant Commonwealth in its brief, and the Pennsylvania Bankers Association in its amicus curiae brief, argue that the purpose of the new rule is amply achieved by prospective application. I agree. Encouraging investments in United States obligations, and protecting the borrowing power of the federal government is not defeated and is given effect by prospective application of Dale.
Third, in weighing the equities involved in this case, it is apparent that retroactive application of the new rule would cause an inequity or hardship to the Commonwealth. The appellant Commonwealth points out in its brief that “Pennsylvania set its shares tax rate on the assumption that United States obligations were includible in the tax base.” 6 The taxes were collected and spent by the Commonwealth in providing banks with regulatory services and other public services for banks and all taxpayers. For years Pennsylvania relied upon the established interpretation of the bank shares tax in imposing taxes on banks to meet a significant portion of the Commonwealth’s annual budget. Conversely, no inequity or hardship results to the bank by a purely prospective application of the new rule. In the face of “firmly embedded” law, no bank could claim that it relied upon a reduction in the share tax liability because of its ownership of federal obligations prior to July, 1983. Retroactive application of Dale mandating refunds of the bank shares taxes paid would cause a hardship on the Commonwealth and provide the bank with an undeserved windfall. In short, the Commonwealth reasonably relied upon a pre*266sumptively valid tax as a significant source of income to balance annual budgets. To apply Dale retroactively and require the refunds sought would result in severe financial hardship to the Commonwealth. Thus, all three factors lead directly to the conclusion that Dale should be applied prospectively. Accordingly, I would reverse the order of the Commonwealth Court.
PAPADAKOS, J., joins in this dissenting opinion.. Subsection 4 was repealed by the Act of July 1, 1985, P.L. 78, No. 29 § 15.
. The majority concludes that: “A taxpayer thus has a right to a refund under section 503(a)(4) [of the Fiscal Code] if two conditions are met: (1) The petition must be filed within five years of the settlement or payment of the tax, and (2) the taxpayer must prove that a court of competent jurisdiction has held, since the payment of the tax, that the statute under which payment was made had been erroneously interpreted.” (P. 942.) The second condition stated by the majority must be qualified to the extent that the decision of a court of competent jurisdiction declaring the tax invalid must have retroactive application.
. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932).
. Commonwealth v. Geschwendt, 500 Pa. 120, 127, 454 A.2d 991, 995 (1982) (plurality opinion).
. In 1982 Rev.Stat. § 3701, 31 U.S.C. § 742 was replaced by 31 U.S.C. § 3124(a) substantially unchanged.
. Appellant's Brief, p. 16.