Appeal from order of Commonwealth Court, No. 63 Tr. Dkt. 1971, reversing order of Court of Common Pleas of Cambria County, March T., 1969, No. 4, in case of Frank Chwatek v. James E. Parks, Treasurer of the City of Johnstown.
James R. Di Francesco, City Solicitor, with him Di Francesco & Di Francesco, for appellant.
James E. Mayer, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Manderino concurs in the result. Mr. Chief Justice Jones and Mr. Justice Eagen dissent.
On December 31, 1968, the City Council of the City of Johnstown enacted Ordinance No. 3799, called the "Parking Fee Ordinance", which imposed a tax of ten percent on the gross receipts of commercial parking lots located within the city. The ordinance stated that it was enacted under Article XXVI of The Third Class City Code, Act of June 28, 1951, P. L. 662, 53 P.S. §§ 35101 et seq. Under the code, cities of the third class are permitted to levy and collect license taxes for general revenue purposes, 53 P.S. § 37601. Appellee, a parking lot operator, filed an action in equity, seeking to enjoin the city treasurer from enforcing the collection of the tax against him. The basis for his complaint in equity was 53 P.S. § 37601, which limits a tax imposed under it to an amount not exceeding $100 a
year. He contended that the ten percent gross receipts tax, enacted ostensibly under the authority of that provision of The Third Class City Code, would exceed $3500 for 1969.
Thereafter, on February 25, 1969, the city passed Ordinance No. 3815, which purported to amend the previously enacted Ordinance No. 3799. Ordinance No. 3815 amended the preamble of Ordinance No. 3799, and recited that the original ordinance was enacted under the authority of The Third Class City Code and The Local Tax Enabling Act, Act of December 31, 1965, P. L. 1257, 53 P.S. § 6901 et seq. The ordinance contained nothing more than the previous recital and a section repealing all ordinances or parts of ordinances in conflict therewith, as well as a section making it effective upon final passage.
The equity action proceeded and eventually both parties filed motions for summary judgment. The Court of Common Pleas of Cambria County, on February 22, 1971, granted the city's motion for summary judgment and denied appellee's, but limited the collection of the tax to ten percent of gross receipts subsequent to February 25, 1969, the date of the enactment of the amendatory ordinance.
An appeal to the Commonwealth Court ensued, and that closely divided court reversed the summary judgment entered in the Court of Common Pleas of Cambria County and struck down the ordinance. Chwatek v. Parks, 5 Pa. Commonwealth Ct. 414, 291 A.2d 333 (1972). We granted allocatur.
The majority opinion in the Commonwealth Court takes the position that the enactment of the amendatory ordinance (No. 3815) could not breathe new life into the invalid ordinance (No. 3799). Clearly ordinance 3799 was invalid if enacted under the ...