Appeal from order of Court of Common Pleas of Washington County, No. 6092 in Equity, in case of Studio Theaters, Inc. v. City of Washington, William C. Wilson, William E. Amos et al.
Jerome Hahn, City Solicitor, for appellant.
Robert L. Ceisler, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen.
City of Washington, Pennsylvania, a third class city, on January 27, 1964, adopted an ordinance which imposed a tax "upon the privilege of attending or engaging in amusements including every form of entertainment,
diversion, sport, recreation and pasttime."*fn1 On March 9, 1964, the city amended this ordinance to define the word "amusement" in such manner as to exempt certain forms of entertainment from its impact: "Provided further: that 'amusement' shall not include any form of entertainment, the proceeds of which, after payment of reasonable expenses, inure exclusively to the benefit of religious, educational, or charitable institutions, societies, or organizations; veteran's organizations; or police or fireman's organizations. Also, the within tax shall not be levied against membership in or membership dues, fees or assessments of charitable, religious, beneficial or nonprofit organizations such as sportsmen's recreational, golf and tennis clubs, girl and boy scout troops and councils."
Studio Theaters, Inc. (Theaters), the operator of the Penn Theatre in Washington, Pa., instituted an action in equity in the Court of Common Pleas of Washington County against the city, the members of the city council and other city officials seeking (a) injunctive relief from the enforcement of the ordinance and the collection of taxes thereunder, or, in the alternative, (b) a direction that the city and its officials, enforce and collect the tax from all producers of amusements as defined in the original ordinance. The gravamen of this action is that the amended ordinance provides for exemptions which affront the Constitution in that they lack uniformity and are unreasonable, arbitrary
and discriminatory in the classifications provided.
The city and its officials filed preliminary objections, divided into four separate parts, which, regardless of their nomenclature, raised several questions: (1) that equity lacked jurisdiction because (a) Theaters had an adequate statutory remedy under the "Tax Anything Act" and The Third Class City Code, supra, to attack the validity of the exemptions in the ordinance, and (b) that Theaters lacked the capacity to sue because of its failure to comply with the "Fictitious Corporate Name Act";*fn2 (2) that the City has power to levy this tax and, that being so, equity has no jurisdiction to pass on the validity of these tax exemptions; (3) that Theaters failed in its complaint to state a cause of action. The Court of Common Pleas of Washington County held that an action in equity did lie and dismissed the preliminary objections. The City, under the provisions of the Act of March 5, 1925, P. L. 23, § 1, 12 P.S. § 672, has appealed from the order of the court below.
Preliminarily, we must pass upon a motion to quash this appeal filed by Theaters upon the ground that the Act of 1925, supra, is not available to the City in that there is no true ...