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MAN v. SCHOOL DISTRICT CITY SCRANTON AND GERARD SCHIRRA (07/13/77)

decided: July 13, 1977.

MAN, LEVY & NOGI, INC., ET AL., PETITIONERS
v.
SCHOOL DISTRICT OF THE CITY OF SCRANTON AND GERARD SCHIRRA, TAX COLLECTOR, RESPONDENTS



Appeal from the Order of the Court of Common Pleas of Lackawanna County, in case of Man, Levy & Nogi, Inc.; Gerald Ferrario, t/a Ferrario Insurance Agency; Pfeiffle, Davis & Peil; Margolies-Kincel, Insurance; Chamberlin & Clarke, Inc.; Gross-Brown Associated Agencies, Inc.; O'Donnell Insurance Agency, Inc.; Connor-Helring Associates, Inc.; John Moran Insurance Agency; William Henkelman; Patrick Boland; C.C. Young Insurance Agency, Inc.; Wells Insurance Agency, Inc.; Daniel Kuchar; Sottile Insurance Agency, Inc.; Richard Mulford, t/a John W. Howell Associates; Knowles Associates; Thomas J. Bell; Wilson H. Flock, Inc.; G & G Realty Co.; Cosgrove Insurance Agency; Rettew Agency; John H. Leverich, t/a Manness & Leverich; Ira T. Broadbent, Jr., t/a J. F. Broadbent & Co. v. School District of the City of Scranton and Gerard Schirra, Tax Collector, No. 380 March Term, 1976.

COUNSEL

Henry P. Burke, with him Donald G. Douglass, for petitioners.

James A. Kelly, for respondents.

Frank R. Bolte, with him Victor R. Delle Donne, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for amicus curiae, Pennsylvania Association of Independent Insurance Agents.

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

Author: Kramer

[ 31 Pa. Commw. Page 76]

This is an appeal from an order of the Court of Common Pleas of Lackawanna County, dated June 21, 1976, which sustained the preliminary objection in the nature of a demurrer raised by the School District of the City of Scranton and Gerard Schirra, Tax Collector, and dismissed the cause of action brought by Man, Levy & Nogi, Inc. and the other plaintiffs in this case.

[ 31 Pa. Commw. Page 77]

We affirm the order of the lower court and dismiss the appeal on the well-reasoned and carefully written opinion of Judge Kosik at No. 380 March Term 1976, Court of Common Pleas of Lackawanna County, Pennsylvania. The opinion is set forth and attached hereto for the convenience of the reader.

Opinion: Kosik, J.

"This case is presently before the court on defendants' preliminary objections in the nature of a demurrer to plaintiffs' appeal from a decision of the Tax Collector of the City of Scranton, Pennsylvania.

"The plaintiffs*fn1 are individuals, partnerships and corporations engaged in the business of selling insurance within the City of Scranton. These independent insurance agents seek an exemption from the Business Privilege Tax imposed by the Scranton School District and upheld by the Tax Collector under the authority of the Local Tax Enabling Act, No. 511 of December 31, 1965, P.L. 1257, 53 P.S. 6901, et seq. The appeal alleges that the local tax is duplicative of a pre-existing state tax, and also that the local tax impermissibly reaches non-residents of the city. It is further alleged that the School District's tax levied at the rate of six mills on each dollar of gross annual receipts is a deprivation of property violative of due process of law.

"Defendants, the School District and Tax Collector of the City of Scranton, through the nature of their preliminary objections, admit every well pleaded material fact in plaintiffs' petition for appeal and all reasonable inferences therefrom. The sole issue raised by preliminary objections in the nature of a demurrer is whether or not the facts ...


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