Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Plains Township v. Wilkes-Barre Area School District, No. 10, January Term, 1972.
Joseph C. Giebus, for appellant.
Patrick J. Toole, Jr., for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer.
Plains Township, Luzerne County, filed its petition for a declaratory judgment that it should receive all of the wage, real estate transfer and flat rate occupation taxes collected from the subjects of such taxes within its boundaries during the year 1971, and that Wilkes-Barre Area School District should be entitled to none of said revenues. The court below gave judgment for the respondent school district and the township has appealed.
Wilkes-Barre Area School District is a reorganized district established as of June 1, 1971, pursuant to Subdivision I(eye) of Article II of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, added by Act of August 8, 1963, P.L. 564, § 3, 24 P.S. § 2-290 et seq. Included among the former districts constituting the reorganized district was the Plains Township School District.
Plains Township had for a number of years prior to 1971 imposed the wage, real estate transfer and flat rate occupation taxes here in question, all by authority of The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, 53 P.S. § 6901 et seq. By the same authority, Plains Township School District had imposed the same taxes, at least from and after January 1, 1969. Therefore, Plains Township and Plains School District from January 1, 1969 (and perhaps from an earlier date) and until July 1, 1971*fn1 each received one half of the total of these taxes levied by each as provided by Section 8 of The Local Tax Enabling Act, 53 P.S. § 6908.
The township's brief makes one argument, to wit, that Section 8 of The Local Tax Enabling Act, 53 P.S. § 6908, requires that a school district desiring to levy
taxes upon subjects already taxed by a township give notice to the township of its intention to do so 45 days prior to the first of January or the last day fixed by law for the adoption of the latter's budget, and failing such notice the school district's levy must be postponed until the end of the township's ensuing tax year; and that Plains Township School District gave no such notice of intention to Plains Township for the year 1971. This argument is sound only if Plains Township School District was required under the Act to give notice. It was not. Immediately preceding the notice requirement contained in Section 8, is the following qualifying language: "When any one of the above taxes has been levied under the provisions of this act by one political subdivision and a subsequent levy is made either for the first time or is revived after a lapse of time by another political subdivision on the same person, subject, business, transaction or privilege at a rate that would make the combined levies exceed the limit allowed by this subdivision, the tax of the second political subdivision shall not become effective until the end of the fiscal year for which the prior tax was levied. . . ." (Emphasis supplied) As noted, Plains Township School District had enacted these taxes as early as June 1968, effective January 1, 1969. It did not enact them for the first time*fn2 for the period commencing January 1, 1971. Section 4 of The Local Tax Enabling Act, 53 P.S. § 6904, provides for continuance of the taxes levied thereunder without annual reenactment. There was, therefore, no requirement of notice from either of the subdivisions to the other and the taxes of each continued without the necessity of any action by either.
A copy of a resolution of the Township Board of Supervisors, adopted June 30, 1971, ...