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WILLIAM DOWLIN v. COATESVILLE AREA SCHOOL DISTRICT (12/26/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 26, 1975.

WILLIAM DOWLIN, APPELLANT
v.
COATESVILLE AREA SCHOOL DISTRICT, APPELLEE. CARLTON W. GROVE, JR., APPELLANT V. COATESVILLE AREA SCHOOL DISTRICT, APPELLEE. HERMAN M. BREUNINGER, APPELLANT, V. COATESVILLE AREA SCHOOL DISTRICT, APPELLEE. BARRY HADLEY, APPELLANT V. COATESVILLE AREA SCHOOL DISTRICT, APPELLEE

Appeal from the Orders of the Court of Common Pleas in cases of Coatesville Area School District v. William Dowlin, No. 83 December Term, 1971; Coatesville Area School District v. Carlton W. Grove, Jr., No. 84 December Term, 1971; Coatesville Area School District v. Herman M. Breuninger, No. 85 December Term, 1971; and Coatesville Area School District v. Barry Hadley, No. 86 December Term, 1971.

COUNSEL

Arthur A. Moorshead, with him A. Bruce Niccolo, and Moorshead & Niccolo, for appellants.

Franklin L. Gordon, with him Gordon & Ashton, for appellee.

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

Author: Crumlish

[ 22 Pa. Commw. Page 434]

William Dowlin, Carlton Grove, Jr., Herman M. Breuninger, and Barry Hadley (Appellants) appeal a judgment of the Court of Common Pleas for the County of Chester which granted Coatesville Area School District's (Appellee) motions for summary judgment. These separate appeals were consolidated for argument and disposition. We affirm.

Appellee instituted suit by filing a complaint in assumpsit to collect delinquent occupation taxes*fn1 against Appellants Hadley and Grove for the school tax years 1968, 1969 and against Appellants Dowlin and Breuninger for the school tax years 1968, 1969 and 1970. However,

[ 22 Pa. Commw. Page 435]

    before Appellee instituted these suits, it had to struggle through years of other litigation brought in part by some of these Appellants and in other part by other taxpayers to establish the constitutionality and validity of the tax ordinances.*fn2

After their preliminary objections were dismissed, Appellants filed an answer wherein new matter was set forth alleging that the tax as levied was illegal and unconstitutional, and was based on an improper assessment. Appellee filed preliminary objections in the nature of a demurrer to the answer and new matter, which were dismissed by the court. Appellee then filed its answer to new matter and later filed motions for summary judgment. The court, after hearing argument on the motions, granted summary judgment. Appellants then filed this appeal.

The sole question presented for our determination is: Is there no genuine issue as to any material fact so that Appellee is entitled to the summary judgment*fn3 as a matter of law?

Section 2 of The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6902 gave to the Appellee the power to levy, assess and collect occupational privilege taxes. The assessments of occupations are made under the authority of The Fourth to Eighth Class County Assessment Law, Act of May 21, 1943, P.L. 571, as amended, 72 P.S. § 5453.101, et seq.

[ 22 Pa. Commw. Page 436]

Pursuant to Section 21 of The Local Tax Enabling Act, Appellees brought the instant action to collect the unpaid occupational taxes. Appellants' defenses to these actions are that the taxes are illegal and unconstitutional. They contend, inter alia, the method of assessment is invalid, the tax violates the uniformity clause of the Pennsylvania Constitution*fn4 and is a disguised income tax, and the tax resolutions were not properly advertised. These contentions argued previously in the Supreme Court*fn5 and in this Court*fn6 were dismissed. We are bound by and adhere to these prior decisions. However, Appellants further contend that the taxes were not levied on the last adjusted valuations. None of the facts pertaining to this argument are material to these actions in assumpsit to collect the unpaid taxes. The Fourth to Eighth Class County Assessment Law provided Appellants with the means to object to their assessments. They were not pursued. Appellants cannot now raise this defense to their conduct relative to the collection of the unpaid taxes.

Under Pa. R.C.P. 1035(b) a summary judgment may be granted if the moving party shows that there is no genuine issue as to any material fact, and the record, viewed most favorable to the non-moving party, reveals that the moving party is entitled to judgment as a matter of law. Commonwealth v. Transamerica Insurance Company, 12 Pa. Commonwealth Ct. 190, 316 A.2d 85 (1974).

Our review of the record leads us to conclude that Appellants' averments are not material; therefore, summary judgment was properly granted.

Affirmed.

Disposition

Affirmed.


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