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CITY WILKES-BARRE v. JOSEPH EBERT (12/15/75)

decided: December 15, 1975.

CITY OF WILKES-BARRE
v.
JOSEPH EBERT, NATIONAL MOTORS, AND ANTHONY WORONKO, TONY'S USED CARS, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of City of Wilkes-Barre v. Joseph Ebert, National Motors, and Anthony Woronko, Tony's Used Cars, No. 374 May Term, 1972.

COUNSEL

John L. McDonald, for appellants.

Chester B. Muroski, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 22 Pa. Commw. Page 357]

This is an appeal from an order of the Court of Common Pleas of Luzerne County entering summary judgment against Joseph Ebert, trading as National Motors,

[ 22 Pa. Commw. Page 358]

    and Anthony Woronko, trading as Tony's Used Cars (Appellants) in an action brought to enforce the collection of a license tax by the City of Wilkes-Barre. Since the questions raised in both situations are identical, they were consolidated below.

This case began when Appellants failed to pay a license tax fee of $100.00 each, which became payable on June 1, 1971, pursuant to a Wilkes-Barre city ordinance.*fn1 Complaints were filed against Appellants on November 17, 1971, and judgment in the amount of $100.00 each was entered against them by a magistrate on April 20, 1972.

An appeal was taken to the Court of Common Pleas. After a complaint, an answer with new matter and a reply were filed, the City filed an affidavit and moved for summary judgment under Pennsylvania Rule of Civil Procedure 1035 on November 20, 1974. Appellants, on November 25, 1974, filed exhibits consisting of a large number of Wilkes-Barre taxing ordinances and an affidavit simply identifying the ordinances. Summary judgment in favor of the City was entered on December 19, 1974. Appellants question the propriety of granting summary judgment in this case and raise several questions of law regarding the validity of the license tax. We affirm.

Summary judgment under Rule 1035 can only be properly invoked when it is clear that there are no factual issues which must be resolved at trial. Commonwealth v. Chesney, 11 Pa. Commonwealth Ct. 379, 315 A.2d 675 (1974). The burden of demonstrating that there is no genuine issue as to any material fact is on the moving party (the City in this case). Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968). The non-moving party, however, cannot remain inactive. Rule 1035(d) reads in pertinent part:

[ 22 Pa. Commw. Page 359]

"When a motion for summary judgment is made and supported in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does ...


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