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

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. ยง 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 ...


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