concluding that, where “the involvement of the Commonwealth is minimal,” the Commonwealth is not an indispensable party
How later courts described this case
- concluding that, where “the involvement of the Commonwealth is minimal,” the Commonwealth is not an indispensable party
- “[T]he Commonwealth must be an indispensable party to the action for Section 761(a)(1) to apply.”
Written by the judges who cited it.
The opinion
COLINS, President Judge,
concurring.
I concur with the majority’s decision to transfer this matter to the Court of Common Pleas of Montgomery County for expedited consideration. This matter should be resolved by the trial court forthwith.
However, I disagree with the majority’s conclusion that any complex factual inquiries are necessary. This tax is facially unconstitutional and is on all fours with the taxing statutes in Fulton Corp. v. Faulkner, — U.S. -, 116 S.Ct. 848 , 133 L.Ed.2d 796 (1996). I also disagree with the majority’s conclusion that this case potentially involves the attempted justification of the tax as a compensatory tax. Although the Supreme Court in Fulton noted that a facial discriminatory tax may be upheld where the tax is shown to be compensatory and stated a three-prong test, that inquiry too is strictly a matter of law. Furthermore, the respondents do not assert that the Montgomery County personal property tax is compensatory.
I also wish to emphasize the need to have this matter resolved with dispatch. The An-nenbergs have properly exercised their legal rights and will receive a refund once this tax is stricken. However, no such remedy will inure to the benefit of the countless middle-class taxpayers who lack the resources to mount a similar challenge. Prolonging this litigation will result in the continued collection of an illegal tax and will merely delay the inevitable. The majority’s decision has “scotched the snake, not killed it.” 1
. William Shakespeare, Macbeth, act 3.