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CLEARVIEW BOWLING CENTER v. HANOVER BOROUGH (07/01/68)

SUPREME COURT OF PENNSYLVANIA


decided: July 1, 1968.

CLEARVIEW BOWLING CENTER, INC., APPELLANT,
v.
HANOVER BOROUGH

Appeals from decrees of Court of Common Pleas of York County, Aug. T., 1965, Nos. 4 and 2, in case of Clearview Bowling Center, Inc. v. Borough of Hanover.

COUNSEL

Harry C. Elsesser, Jr., for appellant.

Donald E. Albright, for appellee.

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

Author: O'brien

[ 430 Pa. Page 580]

These are appeals from final decrees of the Court of Common Pleas of York County, dismissing two complaints in equity filed by the appellant, Clearview Bowling Center, Inc., against the appellee, Borough of Hanover, York County, Pennsylvania.

Appellee, Borough of Hanover, enacted Ordinance No. 1164, effective for the fiscal year 1963, Ordinance No. 1207, effective for the fiscal year 1964, and Ordinance No. 1254, effective for the fiscal year 1965. Each of said ordinances levied a tax, inter alia, upon the sale of admissions to amusements at the rate of five per cent of the amount charged or paid.

Appellant is a Pennsylvania business corporation which operated bowling lanes in the Borough of Hanover during the period said ordinances were in effect.

Appellant was purportedly liable for the payment of an amusement tax on bowling under these ordinances, and the two equity actions were brought by appellant to restrain the appellee from collecting the amusement tax.

[ 430 Pa. Page 581]

Since the issues in both actions were the same, they were consolidated on appeal.

The only real issue is whether the instant case can be distinguished from the recent case of Swatara Twp. v. Auto. Bowling Center, Inc., 419 Pa. 482, 214 A.2d 725 (1965).*fn1 The court below held that it could not, and we agree. In Swatara, we held that the ordinance therein involved was not in violation of the "Tax Anything Act", Act of June 25, 1947, P. L. 1145, as amended, 53 P.S. § 6851, et seq. That Act prohibits local municipalities from imposing any tax upon, inter alia, personal property that is subject to state taxation. Appellants in Swatara, as do appellants here, contended that the tax imposed upon the sale of bowling admissions was actually a tax upon the privilege of employing the personal property, i.e., the bowling equipment, that was subject to state taxation. We rejected that argument, holding that the stated burden of the ordinances was upon the patron rather than upon the bowling concern.

The same is true of the instant situation.*fn2 Appellant

[ 430 Pa. Page 582]

    makes much of the duties imposed upon the proprietor. Yet very similar duties were imposed on the proprietor in Swatara, and we held that such duties were "consistent with a construction which views the one conducting an amusement as the collector of the tax and not the intended or true taxpayer." The minor variations between the language of the Swatara ordinances and that of the instant ordinances cannot serve as the basis for a distinction between the two situations. Language referring to the proprietor "paying" the tax is certainly consistent with the view of the proprietor as the collector, transmitting or paying over the tax to the municipality. Although it is true that taxing statutes are to be strictly construed against the taxing authority, Act of May 28, 1937, P. L. 1019, § 58, 46 P.S. § 558, it is also true that the polestar for construction of a statute (or ordinance) is the intention of the legislative body, Act of May 28, 1937, P. L. 1019, § 51, 46 P.S. § 551. When the words are not explicit, it behooves the interpreter to consider the purpose of the law. Surely the Board of Commissioners is presumed to intend an ordinance that is valid, rather than one that is invalid.*fn3 We therefore hold that

[ 430 Pa. Page 583]

    the instant ordinances, like those in Swatara, place the burden of the tax on the patron, not the proprietor, and affirm the decrees of the court below.

Costs on appellants.

Disposition

Decrees affirmed.


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