Appeal from the Order of the Court of Common Pleas of Cambria County in case of Frank Chwatek v. James E. Parks, Treasurer of the City of Johnstown, No. 4 March Term, 1969. Appeal transferred from the Superior Court of Pennsylvania to the Commonwealth Court of Pennsylvania, November 10, 1971.
James E. Mayer, with him Glock and Mayer, for appellant.
James R. DiFrancesco, City Solicitor, with him DiFrancesco & DiFrancesco, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Concurring Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Blatt. President Judge Bowman and Judge Wilkinson, Jr., join in this dissent.
The City of Johnstown (City) enacted Ordinance No. 3799 on December 31, 1968 under the authority of the Act of June 28, 1951, P.L. 662.*fn1 This ordinance was to be effective on the following day and imposed a tax equal to 10% of the gross receipts of every commercial parking lot located within the City. The City, as noted in the opinion of the court below, was proceeding under article XXVI of The Third Class City Code (Code) where it is empowered to levy and collect a license tax for general revenue purposes. 53 P.S. 37601.
Frank Chwatek (appellant) filed this action in equity seeking an injunction against the City Treasurer (appellee) which would prohibit him from enforcing against appellant the collection of the tax since the Code under which the ordinance was passed limits the tax imposed to an amount not exceeding $100 per annum.*fn2 Appellant averred in his complaint that the fee he would be required to pay, if computed according to the provisions of Ordinance No. 3799, would exceed the sum of $3500 for 1969.
Thereafter the City passed a new ordinance, No. 3815, purporting to amend Ordinance No. 3799. An examination of this second ordinance discloses that it (1) amended the preamble only of the original ordinance;
(2) recites that the original ordinance was enacted under the authority of the Code and the Act of December 31, 1965, P.L. 1257, known as "The Local Tax Enabling Act", as amended, 53 P.S. § 6901, et seq., and (3) enacts the following, and nothing more :
"Section 2. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
"Section 3. This ordinance shall become effective upon final passage."
The second ordinance could not breathe new life into an invalid ordinance by merely making reference to a statute and then failing to enact anything under the provisions of that statute. The amending ordinance did not ...