Appeal, No. 181, Jan. T., 1964, from decree of Court of Common Pleas of Montgomery County, No. 62-258, in case of Plymouth Lanes, Inc. v. School District of Township of Plymouth and Township of Plymouth. Decree affirmed.
Philip D. Weiss, with him Desmond J. McTighe, and Duffy, McTighe & McElhone, for appellant.
Ernest E. Heim, Solicitor, for school district, with him A. Benjamin Scirica, Solicitor, for township, appellees.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
During 1959 the Township of Plymouth and the School District of the Township of Plymouth (appellees), both in Montgomery County, enacted, respectively, an ordinance and a resolution in identical terms imposing a tax "... upon the sales of admissions [to] or on the privilege of attending or engaging in amusements. ..." In each, "amusement" was defined as including a bowling alley. The tax rate and measure in each was ten percent (10%) of the admission price or charge for exercising the privilege with the proviso that where an admission charge was included in the price paid for refreshments, service or merchandise, the amount allocable to the admissions feature of the payment might be deemed to be fifty percent (50%) of the total amount paid. The tax was to be paid by the person acquiring the privilege (or, presumably, paying the admission price) and collected by the person conducting the place of amusement.
Plymouth Lanes, Inc. (appellant) brought the present action to enjoin the township and school district from imposing or collecting the tax, alleging a variety of constitutional and statutory reasons for the invalidating of the ordinance and resolution. The court below found against appellant and this appeal followed.
Appellant's attack on the tax in this Court has been refined to encompass just two points. The first is that the tax is prohibited by the Act of June 25, 1947, P.L. 1145, § 1, as amended, 53 P.S. § 6851; the second is that the tax as enacted violates the uniformity clause of Article IX, § 1, of the Pennsylvania Constitution and the equal protection clause of the Fourteenth Amendment to the United States Constitution.
The Act of 1947, supra, provides, inter alia, in broad terms that local political subdivisions of the Commonwealth may levy taxes on "persons, transactions, occupations, privileges, subjects and personal property within the limits" of the taxing subdivisions. This grant of power is subsequently restricted by certain limitations, one of which forbids the political subdivisions, "(3) except on sales of admission to places of amusement or on sales or other transfers of title or possession of property, to levy, assess or collect a tax on the privilege of employing such tangible property as is now or does hereafter become subject to a State tax. ..." This restriction, says appellant, is transgressed by the present tax.
Appellant reasons as follows: As applied to the activity of bowling, where no fee for admission is charged but rather a fee per game is collected after the participant bowls, the present tax is clearly one upon a privilege and not one upon sales of admission. Therefore, the first exception in the quoted restriction is inapplicable. Moreover, the tangible property used in bowling is subject to the State's sales and use tax, Act of March 6, 1956, P.L. (1955) 1228, as amended, 72 P.S. §§ 3403-1 to 3403-605 (Supp. 1963); and appellant is subject to the State's capital stock tax, Act of June 1, 1889, P.L. 420, § 21, as amended, 72 P.S. § 1871. Therefore, says ...