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City of Philadelphia v. Austin

October 5, 1979

CITY OF PHILADELPHIA, PLAINTIFF,
v.
LUCY I. AUSTIN, DEFENDANT



Wells, J.s.c.

Wells

[171 NJSuper Page 118] This is a suit on a Pennsylvania judgment and represents another effort of Philadelphia to enforce its wage tax. Philadelphia

v. Stadler , 164 N.J. Super. 281 (Cty.Ct.1978). As in Stadler , defendant herein, a New Jersey resident, worked within a Federal enclave, the Frankford Arsenal, for the years 1967-1974. Mrs. Austin did not file returns, pay, nor was there withheld from her salary, the Philadelphia wage tax.

Pursuant to § 19-508 of the Philadelphia Code, which creates an offense for failure to file returns, the city instituted a complaint in its municipal court for collection of $900 in penalties ($300 a year for the years 1972-1974), the limit of its jurisdiction.

While it is not at all clear who, if anyone, appeared on November 9, 1976, there does appear an entry in the municipal court record of that date signed by a judge, imposing a fine of $300 and $11 costs.

Mrs. Austin appealed on November 23, 1976 to the Court of Common Pleas, giving her address as 5920 Trinity Street, Philadelphia, Pennsylvania. Simultaneous with her appeal, a rule upon the city to file a complaint within 20 days or suffer a judgment of non pros was entered, and her notice of appeal and rule to file complaint and a surety bond guaranteeing the payment of costs were served on the city.

Within the time allowed, the city did file a complaint in assumpsit in the Court of Common Pleas alleging the legal basis of its claim for the tax, the amount of tax due, $1,354.61, and defendant's failure to pay, and concluded with paragraph 9 and a prayer for relief:

The plaintiff claims a fine of Three Hundred Dollars ($300.00) in accordance with the provisions of Section 19-508 of the Philadelphia Code for each of eight (8) following violations of the Code: failure to file returns and/or to pay Earnings Tax, or the balance of tax, together with interest and penalties thereon for the years 1967 through 1974 for the total sum of Two Thousand, Four Hundred Dollars ($2,400.00).

WHEREFORE, the Plaintiff demands judgment against the Defendant for the sum of $2,400.00.

According to the return of service, the complaint was served at 5920 Trinity Street, Philadelphia, by handing it to "adult female," "an adult person in charge of defendant's residence, the said adult person having refused, upon request, to give her name and relationship to said defendant."

Mrs. Austin did not file an answer or appear, and on May 2, 1977 a default judgment was entered against her in the Pennsylvania Court of Common Pleas for $2,400 by the filing of affidavits of proof and nonmilitary service.

The matter is before the court on a motion for summary judgment based on the Pennsylvania Common Pleas judgment, supported by briefs and the record of the Philadelphia court proceedings. No material issue of fact is raised in any answering affidavits. Plaintiff claims the judgment is entitled to full faith and credit, while defendant contends the judgment is based upon a penal law and is therefore outside of the reach of that constitutional provision.

Before deciding what effect is to be given to the Pennsylvania judgment, it is first essential to determine the true nature of the statute upon which it is based.*fn1 The standard governing such an inquiry was set forth in Huntington v. Attrill , 146 U.S. 657, 683, 13 S. Ct. 224, 36 L. Ed. 1123 (1897), and is binding upon this court in a proceeding in which the Full Faith and Credit Clause, U.S.Const. , Art. IV, § I, is invoked. 36 Am.Jur.2d, Forfeitures and Penalties , § 12; 4 A.L.R. 970 (1919).

The words "penal" and "penalty" are chameleon-like, having different shades of meaning in the various factual contexts in which they appear. Wilentz v. Hendrickson , 133 N.J. Eq. 447 (Ch. 1943), aff'd ...


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