Opinion
March 11, 1968.
April 29, 1968.
Appeals — Jurisdiction — Superior Court — Supreme Court — Refusal of tax refund by Board of Finance and Revenue — The Fiscal Code — Act of August 14, 1963, P.L. 819 — Act of June 24, 1895, P.L. 212.
1. Under the Act of August 14, 1963, P.L. 819, the Superior Court has no jurisdiction to hear an appeal from the action of the Board of Finance and Revenue, seeking a reversal of an interpretation of § 503 of The Fiscal Code of April 9, 1929, P.L. 343, as amended, refusing a tax refund.
2. Where an appeal which must be taken directly to the Supreme Court is erroneously taken to the Superior Court, the Superior Court should certify the appeal to the Supreme Court for hearing and decision: Act of June 24, 1895, P.L. 212, § 9.
Argued March 11, 1968.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeals, Nos. 25 and 26, March T., 1968, from orders of Pennsylvania Board of Finance and Revenue, Nos. C-29299 and C-29300, in case of The Finance Company of Pennsylvania v. Board of Finance and Revenue, Treasury Department, Commonwealth of Pennsylvania. Appeal certified to Supreme Court.
Proceeding upon petition of plaintiff to Board of Finance and Revenue for refund of tax.
Order entered denying petition and refusing petition for rehearing. Plaintiff appealed.
Samuel C. Harry, with him Natalie I. Salkind, Park B. Dilks, Jr., and Morgan, Lewis Bockius, for appellant.
Eugene J. Anastasio, Deputy Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellee.
The motion of the Board of Finance and Revenue, Treasury Department, Commonwealth of Pennsylvania, the appellee, to quash the appeal and the answer of The Finance Company of Pennsylvania, the appellant, was argued before this Court on March 12, 1968. We agreed with the Commonwealth that the Superior Court of Pennsylvania has no jurisdiction to hear the appeal. Bethlehem Steel Company v. Board of Finance and Revenue, 429 Pa. 84, 239 A.2d 389 (1968); Graybill Bushong, Inc. v. Board of Finance and Revenue, 414 Pa. 70, 198 A.2d 316 (1964); Supreme Court Rule 68 1/2, as of February 5, 1964, 416 Pa. xxv.
This was a direct appeal from the action of the Board of Finance and Revenue, seeking a reversal of the interpretation of Section 503 of The Fiscal Code, Act of April 9, 1929, P.L. 343, as amended, 72 PS 503, refusing tax refunds. Subsection (e) of this section provides: "(e) The action of the board on all petitions filed under this section shall be final."
The Act of August 14, 1963, P.L. 819, 17 Pa.C.S.A. § 191.4, (6) provides: "In the following classes of cases, the Superior Court shall have no jurisdiction thereof, but the appeal from the judgment, order or decree of the lower court shall be taken directly to the Supreme Court: . . . . (6) Matters relating to actions and orders of the Department of Revenue arising under the provisions of the Act of April 9, 1929 (P.L. 343), known as `The Fiscal Code', as amended;".
The action should have been by petition for narrow certiorari to the Supreme Court. Where an appeal is erroneously taken which is appealable direct to the Supreme Court, the Superior Court should certify to the Supreme Court for hearing and decision. Act of 1895, June 24, P.L. 212, § 9, par. 5, 17 Pa.C.S.A. § 196.
As indicated, the proper appeal procedure should have been by petition for narrow certiorari to the Supreme Court. Badali v. Hartman, 410 Pa. 652, 190 A.2d 301 (1963). We, however, are not constrained to quash the appeal but rather to certify to the Supreme Court for hearing and decision.
AND NOW, April 29, 1968, it is ordered that this appeal be certified to the Supreme Court of Pennsylvania for hearing and decision. Costs on the appellant.