Summary
holding that a city's averments that the defendants failed to appeal a tax assessment were averments of fact
Summary of this case from Borough of Duncansville v. WerstilOpinion
Argued October 8, 1976
March 2, 1977.
Taxation — Pleading — Failure to deny allegations of fact — Request to file amended answer — Pa. R.C.P. No. 1029 — Questions not raised below.
1. Allegations that an assessment was made, that the taxpayer was duly notified and that no appeal was filed from the assessment, which are included in a complaint by a taxing authority to establish the failure of the defendant to exhaust his administrative remedies, are allegations of fact, and a failure by the defendant to properly deny such allegations constitutes an admission of the failure to exhaust such remedies. [104-5]
2. A defendant who fails to request leave to amend an answer, which request may be granted in the discretion of the trial court under Pa. R.C.P. No. 1029, cannot complain on appeal that permission to file an amended answer was not granted by the court below. [106]
Argued October 8, 1976, before President Judge BOWMAN and Judges CRUMLISH, JR. and WILKINSON, JR., sitting as a panel of three.
Appeals, Nos. 1593 C.D. 1975 and 157 C.D. 1976, from the Orders of the Court of Common Pleas in cases of City of Philadelphia v. Gordon MacDonald, No. 5695 April Term, 1975; and City of Philadelphia v. Lawrence Rock.
Complaints in assumpsit in the Court of Common Pleas of Philadelphia County to collect wage taxes. Judgment entered for plaintiff on the pleadings. HIRSH J. Defendants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Kenneth E. Aaron, with him Astor Weiss, for appellants.
Augustus L. Pasquarella, with him Stewart M. Weintraub, Assistant City Solicitor, Albert J. Persichetti, Deputy City Solicitor, Stephen Arinson, Chief Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.
Defendants appeal from the granting of the City of Philadelphia's (plaintiff's) motions for judgment on the pleadings in civil actions to collect the Philadelphia Wage Tax. PHILADELPHIA, PA., CODE § 19-1500 et seq. (1973). Because the issues on appeal are identical the cases have been consolidated. We affirm.
Plaintiff's complaints allege that each defendant was employed in Philadelphia, failed to file a wage tax return for the years 1970-1973, and owed the City unpaid taxes. Each complaint further alleges that on information received from the defendant's employer an assessment was made and that the defendant was notified of the assessment and failed to appeal to the Philadelphia Tax Review Board. In their answers, each defendant denies knowledge of how the assessment was made and attempts to deny all other allegations by invoking the Fifth Amendment privilege against self-incrimination. In new matter the defendants contend that the Philadelphia Wage Tax is unconstitutional as applied to themselves and that the City's claim is barred by the statute of limitations. Plaintiff filed motions for judgment on the pleadings which were granted by the court below.
Defendant MacDonald worked at the Philadelphia International Airport; his back taxes amount to $2,771.00. Defendant Rock worked at the Philadelphia Naval Shipyard; his back taxes amount to $1,084.63.
On appeal, the defendants raise the following issues: (1) Whether in a civil action the defendants' answers invoking the Fifth Amendment right to remain silent may be deemed admissions under Pa. R.C.P. No. 1029; (2) if so, whether defendants should be allowed to amend their answers; (3) whether certain allegations in plaintiff's complaints axe actually conclusions of law to which no answer is necessary; (4) if not, whether the doctrine of estoppel for failure to exhaust administrative remedies precludes defendants from raising defenses based on the statute of limitations and on the constitutionality of the Philadelphia Wage Tax; (5) if not estopped, whether the Philadelphia Wage Tax is constitutionally applied to the defendants, and whether the actions are barred by the statute of limitations.
This case is similar to our recent decision in City of Philadelphia v. Kenny et al., 28 Pa. Commw. 531, 369 A.2d 1343 (1977), and is controlled by it. Judge KRAMER's opinion specifically rejected issues 1, 4 and 5 so we need not comment on them here. The only issues remaining for our decision concern paragraph 6 of plaintiff's complaints and whether defendants should be granted leave to amend answers.
Paragraph 6 of each complaint reads:
Based on information supplied by the Federal Agency to the Department of Collections of the City of Philadelphia, assessments were made and the Defendant was duly notified of such assessments from which the Defendant failed to file a petition for Review with the Philadelphia Tax Review Board as permitted under Section 19-1702 of The Philadelphia Code.
Each defendant denied knowledge of how the assessment was made, not whether an assessment was made. Each defendant then exercised his right against self-incrimination, refusing to answer further.
The defendants contend that only the allegation that an assessment was made is an allegation of fact and that the balance of the paragraph contains conclusions of law to which refusing to answer cannot be deemed an admission. We disagree. To establish that defendants failed to exhaust administrative remedies the City had to allege and, if denied, prove as facts that an assessment was made, that the defendants were given notice and that they failed to appeal the assessment. As a fact, either notice was given to the defendants or it was not; either the assessment was appealed or it was not. By their failure to properly deny these factual allegations the defendants have admitted their failure to exhaust administrative remedies.
Finally, defendants contend that if the invocation of of the Fifth Amendment is deemed an admission then they should be granted leave of court to amend their answers to conform with Pa. R.C.P. No. 1029. Defendants never petitioned the court below to allow the amendment of their answers even though it is within the discretion of the trial court to grant a party leave of court to amend an answer during the pendency of a motion for judgment on the pleadings, Pots Manufacturing Co. v. Loffredo, 235 Pa. Super. 294, 340 A.2d 468 (1975), and even after judgment, when an award has been made and an appeal taken therefrom. Sheppard v. First Pennsylvania Banking Trust Co., 199 Pa. Super. 190, 184 A.2d 309 (1962). Because the issue was not raised below we cannot consider it on appeal. Pa. R.A.P. 302.
Accordingly, we will enter the following
ORDER
NOW, March 2, 1977, the orders of the Court of Common Pleas of Philadelphia County, dated October 6, 1975, and December 29, 1975, are hereby affirmed.