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BENSALEM TOWNSHIP SCHOOL DISTRICT v. ROSE BOWL (04/15/65)

decided: April 15, 1965.

BENSALEM TOWNSHIP SCHOOL DISTRICT
v.
ROSE BOWL, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Bucks County, Sept. T., 1960, No. 81, in case of School District of Township of Bensalem v. Rose Bowl, Inc.

COUNSEL

David Goldberg, with him Verlin & Goldberg, for appellant.

George T. Kelton, Solicitor, with him Begley, Carlin, Mandio, Kelton and Popkin, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 205 Pa. Super. Page 267]

This is an action of assumpsit by the plaintiff school district to recover amusement taxes for the year 1960-61. The resolution of the school board, adopted June 13, 1960, under the provisions of the act approved June 25, 1947, P. L. 1145, and its amendments, 53 PS § 6851 et seq., imposed a tax upon "the admission fee or privilege to attend or engage in any amusement" and was to be paid "by the person acquiring such privilege, said tax being at the rate of one cent (1 cent) for each ten cents (10 cents) of such established price."

Defendant operates a thirty-two lane bowling alley within the school district. The case was tried before Judge Biester, without a jury, upon complaint and

[ 205 Pa. Super. Page 268]

    answer. Defendant attacked the resolution on several constitutional and statutory grounds. The court made findings of fact and conclusions of law and found for the plaintiff against defendant for the taxes payable. Since the Bensalem Township supervisors had enacted a similar tax, plaintiff recovered only five per cent of the amounts paid by patrons to defendant. Exceptions were argued before the court in banc, which made three additional findings of fact and entered judgment for the school district.

The resolution imposing a ten per cent amusement tax defines "bowling" as an "amusement" and the person conducting the amusement as a "producer." It further requires producers to collect the tax and holds them liable as agents of the school district to pay the same to the tax collector.

First, appellant contends the amusement tax here sought to be imposed is invalid because it is in reality a tax on property, or the use of bowling equipment, of a Pennsylvania corporation which is already subject to State tax and is therefore prohibited by the enabling act. The enabling act, supra, forbids "(3) . . . a tax on the privilege of employing such tangible property as is now or does hereafter become subject to a State tax; . . .". In Plymouth Lanes, Inc. v. Plymouth Twp., 415 Pa. 206, 210, 202 A.2d 811, the Supreme Court specifically answered this question against this appellant, stating, page 210: "In the present case a tax of ten percent (10%) of the charge made for engaging in bowling is imposed upon the person performing the activity and is to be collected by the person imposing the charge. On the other hand, bowling alley equipment, when acquired by the proprietor of the alley, is subject to the State's sales and use tax; and, here the proprietor . . . pays a State capital stock tax. Obviously, the stated burden of the tax in each instance is on different taxpayers: in one, on the bowler; in the

[ 205 Pa. Super. Page 269]

    other, on the operator. More important, however, for purposes of the present limitation the local tax is on the privilege of engaging in the amusement; the fact that this particular amusement happens to involve the use of certain property subject to a State tax is coincidental to the incidence of the local tax. The latter cannot be considered as a tax on the privilege of using ...


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