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SWATARA TOWNSHIP v. AUTOMATIC BOWLING CENTRE (11/09/65)

SUPREME COURT OF PENNSYLVANIA


decided: November 9, 1965.

SWATARA TOWNSHIP
v.
AUTOMATIC BOWLING CENTRE, INC., APPELLANT. SWATARA TOWNSHIP V. RED CROWN BOWLING CENTER, INC., APPELLANT

Appeals from judgments of Court of Common Pleas of Dauphin County, Sept. T., 1962, Nos. 1728 and 1729, in cases of Board of Commissioners of Swatara Township v. Automatic Bowling Centre, Inc.; and Same v. Red Crown Bowling Center, Inc.

COUNSEL

David Goldberg, with him Walter H. Compton, Paul E. Clouser, and Verlin and Goldberg, and Schaeffer, Purcell & Clouser, for appellants.

James W. Reynolds, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 419 Pa. Page 483]

Appellee, Swatara Township, instituted suit against appellants, Automatic Bowling Centre, Inc. and Red Crown Bowling Center, Inc.,*fn1 both owners and operators of bowling establishments within the township, to

[ 419 Pa. Page 484]

    recover sums allegedly due under the township's amusement tax ordinances for the period 1960-1963.*fn2 Appellants denied liability, attacked the validity of the ordinances, and filed counterclaims for payments previously made. Judgment for the township and against appellants was entered in both cases and this appeal followed.

The ordinances under which the taxes were sought to be imposed were adopted by the township pursuant to authority granted by the Act of June 25, 1947, P. L. 1145, as amended, 53 P.S. ยง 6851 (hereinafter referred to as the enabling act)*fn3 and provide: "A tax is hereby imposed, for general township purposes, at the rate of one cent (1 cent) for every twenty cents (20 cents) or fraction thereof, of admission to any amusement within the Township of Swatara."*fn4 The term "admissions" is defined

[ 419 Pa. Page 485]

    in the ordinances as a "monetary charge of any character whatever . . . charged or paid for the privilege of attending or engaging in or for the use of any of the equipment used in connection with amusements . . . ."*fn5 "Amusements" is defined to encompass "all manner and form of entertainment including . . . bowling alley[s] . . . ."*fn6

Appellants' initial objections to the validity of the ordinances are based upon certain alleged irregularities in the manner by which they were adopted by the township commissioners and upon their asserted failure to comply with the procedural requirements of the enabling act. The court below found each of numerous objections to be without merit. Our review satisfies us that the findings and conclusions therein reached are fully supported by the record and are correct.

We therefore turn to a consideration of the principal issues raised by this appeal. Appellants contend that the tax imposed by Swatara Township is contrary to the provisions of the enabling act and is therefore invalid. In support of this argument, they rely on that section of the enabling act which withholds from local authorities the power to tax the privilege of employing tangible property subject to state taxation.*fn7 Since their facilities are subject to a state tax,*fn8 appellants argue that the tax here imposed upon the privilege of engaging in the amusement of bowling is in reality a tax upon the privilege of employing that very

[ 419 Pa. Page 486]

    same property and, therefore, is prohibited by the enabling act.*fn9

This Court considered and rejected an identical argument in the recent case of Plymouth Lanes, Inc. v. Plymouth Twp., 415 Pa. 206, 202 A.2d 811 (1964). Although appellants urge that Plymouth is contrary to the settled law of this Commonwealth and should be overruled, we cannot agree. An examination of the enabling act, our decisions rendered thereunder, and Plymouth itself reaffirms our belief that the conclusion there reached is correct and should not be disturbed.

Appellants urge in the alternative that even if Plymouth is not to be overruled, the instant appeal presents a distinguishable problem not there considered. In support of this distinction, appellants interpret the taxing ordinances herein involved as placing the "stated burden" of the tax upon themselves rather than upon the patron as was the case in Plymouth.

In our view, a close examination of the ordinances under which the tax is sought to be imposed does not support appellants' interpretation. The tax imposed is upon the privilege of engaging in the amusement of bowling. Such privilege is one exercised by appellants' patrons and not by appellants themselves. It would therefore appear clear that the intent of the present ordinances was to place the "stated burden" not upon appellants but upon those who exercise this privilege.

However, as we understand the position taken by appellants, they urge that although the tax is denominated as being imposed upon the patrons, an examination

[ 419 Pa. Page 487]

    of the ordinances in their entirety reveals that the tax in fact is imposed upon the privilege of engaging in the business of operating a bowling alley.

Our reading of the ordinances is not in accord with appellants', and we cannot agree that the "stated burden" of the tax is other than on the patron as was the case in Plymouth. We are unable to disregard the expressed intent of the township commissioners in enacting the ordinances*fn10 and the clear meaning of the language employed.

As we read the ordinances, the duties which are imposed upon appellants are not, as they assert, inconsistent with taxation of the privilege expressly stated to be the subject of the tax. Those duties, which consist of obtaining a permit, maintaining certain records of admissions received, and paying over moneys collected to the township,*fn11 are in fact consistent with a construction which views the one conducting an amusement as the collector of the tax and not the intended or true taxpayer.

[ 419 Pa. Page 488]

The enabling act grants the authority to local legislative bodies not only to levy, assess and collect taxes directly but also to "provide for the . . . collection of such taxes as they shall determine."*fn12 The present ordinances fall within the authority granted by this section of the enabling act. The appointment of one not engaging in the activity or exercising the privilege being taxed as a collector is a time honored and efficient means of tax collection. See, e.g., Pierce Oil Corp. v. Page 488} Hopkins, 264 U.S. 137, 44 S. Ct. 251 (1924); Blauner's, Inc. v. Philadelphia, 330 Pa. 342, 198 Atl. 889 (1938). It seems clear to us that with respect to appellants such an appointment is the intent of the ordinances. This is accomplished even though the term "collector" is not expressly utilized therein.*fn13

Having determined that the actual imposition of the tax is upon the patron, this case is indistinguishable from Plymouth Lanes, Inc. v. Plymouth Twp., supra, and its disposition is therefore controlled by that decision.*fn14

Judgments affirmed.

Disposition

Judgments affirmed.


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