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LAKELANDS RACING ASSOCIATION v. FAIRVIEW TOWNSHIP (05/20/74)

decided: May 20, 1974.

LAKELANDS RACING ASSOCIATION, INC., APPELLANT,
v.
FAIRVIEW TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County in case of Fairview Township v. Lakelands Racing Association, Inc., No. 1961-A-1973.

COUNSEL

Robert J. Amelio, with him Dillman, Sheerer & Schuchert, for appellant.

Donald C. Buseck, with him Gary V. Skiba and Quinn, Gent, Buseck and Leemhuis, Inc., for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 13 Pa. Commw. Page 562]

This is an appeal filed by Lakelands Racing Association, Inc. (Lakelands) from an amended order dated November 13, 1973 of the Court of Common Pleas of Erie County dismissing Lakelands' preliminary objections to a complaint in assumpsit filed by Fairview Township (Township) praying for judgment under the Township's amusement tax ordinance. Allowance of an appeal from the interlocutory order of the court below was granted by this Court under Section 501(b) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.501 (b).

The Township enacted its amusement tax ordinance, to become effective March 27, 1972, on the basis of The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6901 et seq. Section 3 of the Township's ordinance states: "On and after the effective date of this ordinance, it shall be unlawful

[ 13 Pa. Commw. Page 563]

    for any person to continue to conduct, or thereafter to begin to conduct, any form of amusement within Fairview Township, unless an amusement permit shall first have been issued. Every person desiring to continue to conduct or hereafter begin to conduct any amusement within Fairview Township, shall file an application for an amusement tax permit with the Board. Every application for such permit shall be made upon a form prescribed, prepared and furnished by the Board. . . . Upon receipt of a completed application form, the Board shall grant and issue to each applicant an amusement permit for each place of amusement within Fairview Township, valid for the calendar year of issuance. . . . Permits may be renewed annually before the first day of January, upon application made to the Board." Section 2(b) of the ordinance specifically includes "thoroughbred horse racing tracks" in its definition of "amusement." Section 4 of the ordinance provides: "A tax is imposed upon the admission fee or privilege to attend or engage in any amusement at the rate of one cent for each ten cents or major portion thereof, of the established prices charged the general public, or a limited or selected group thereof, which shall be paid by the person acquiring such privilege." Although Section 4 makes clear that the stated burden of the tax is placed upon the patron, Section 5 of the ordinance places liability for the collection and payment of any such tax upon the amusement operator.

Lakelands owns and operates a horse racing plant known as "Commodore Downs" within the boundaries of the Township pursuant to a license granted to it by the State Horse Racing Commission on May 24, 1973. Lakelands did not apply for the amusement permit required under Section 3 of the ordinance, nor did it collect any such tax or file any reports required under the ordinance.

On July 18, 1973, the Township filed its complaint in assumpsit seeking a judgment in an amount in excess

[ 13 Pa. Commw. Page 564]

    of $10,000 plus costs; and interestingly, requested the court to grant "other relief that may be necessary to insure Defendant's compliance" with the ordinance. It would appear from the prayer of the complaint that the Township was also seeking equitable relief in its assumpsit action. The complaint generally sets forth the facts stated above, but fails to state the period during which Lakelands operated its racetrack subsequent to the effective date of the ordinance. The ...


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