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VALENTINE P. BURCHANOWSKI AND MARY H. BURCHANOWSKI v. COUNTY LYCOMING (10/19/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 19, 1977.

VALENTINE P. BURCHANOWSKI AND MARY H. BURCHANOWSKI, APPELLANTS
v.
COUNTY OF LYCOMING, SCHOOL DISTRICT OF THE BOROUGH OF MONTOURSVILLE, BOROUGH OF MONTOURSVILLE AND CALVIN L. CLEES, TAX COLLECTOR, APPELLEES

Appeal from the Order of the Court of Common Pleas of Lycoming County in case of Valentine P. Burchanowski and Mary H. Burchanowski v. County of Lycoming, School District of the Borough of Montoursville, Borough of Montoursville and Calvin L. Clees, Tax Collector, No. 76-0459.

COUNSEL

Peter Burchanowski, with him Fine, Eisenbeis, Felix & Burchanowski, for appellants.

No appearance or brief for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case.

Author: Crumlish

[ 32 Pa. Commw. Page 208]

This is an appeal from a decision and order of the court of common pleas holding, inter alia, that a housewife is engaged in an "occupation" within the meaning of The Local Tax Enabling Act. Because of the procedural posture of the case, we do not reach the merits of that holding, but dismiss the appeal as non-justiciable.

Plaintiffs, husband and wife, are residents of defendants Borough of Montoursville, Montoursville Area School District, and Lycoming County. Valentine Burchanowski is employed but his wife, Mary, is not, except as a housewife. In July, 1975, Mary received a bill for occupation and per capita taxes levied by the County and the Borough for the calendar year 1975 and by the School District for the fiscal year 1975-76. The taxes had been levied pursuant to the authority granted the various defendants by

[ 32 Pa. Commw. Page 209]

The Local Tax Enabling Act,*fn1 The Fourth to Eighth Class County Assessment Law,*fn2 and Article VI of the Public School Code of 1949.*fn3 The Lycoming County Tax Assessor includes "housewife" in his list of assessed occupations, and the other taxing bodies use the County's list. In January, 1976, after Mary refused to pay the tax, Valentine was notified that his wages were being attached for the purpose of collecting the unpaid taxes.

Plaintiffs brought this action in equity contending first, that the taxing bodies' resolutions and the Commonwealth's enabling statutes*fn4 providing for collection of a wife's taxes from her husband's earnings, but not for the collection of a husband's taxes from his wife's earnings, violated the Equal Rights Amendment to the Pennsylvania Constitution;*fn5 second, that the ERA was also violated by the taxation of housewives, an exclusively female class, when the list of assessed occupations contained no corresponding category for males; and third, that a housewife is not engaged in an occupation, as that term is used in The Local Tax Enabling Act. The court disagreed with the third contention, holding that a housewife was engaged in an occupation and was, therefore, a proper subject of the occupation tax, but agreed with Plaintiffs that the term "housewife" was a sexually discriminatory one,*fn6 since

[ 32 Pa. Commw. Page 210]

    in its ordinary usage it applied only to women. The court permanently enjoined the collection of an occupation tax from the classification "housewife" "until such time as the classification is made equally applicable to both sexes." It noted that the discriminatory aspects of the tax classification list and the collection provision could be easily eliminated by amending the resolution. Realizing this, and believing that the only truly permanent relief would be a reversal of the court's ruling that housewife is an occupation, Plaintiffs appealed that single question to us.

We have held, citing a long line of precedent, that, in order for a party to have standing to appeal, he must be aggrieved, i.e., his interest must be immediately, directly and adversely affected by the order appealed from. Cablevision v. Zoning Hearing Board of City of Easton, 13 Pa. Commonwealth Ct. 232, 320 A.2d 388 (1974). When one issue in a case is decided against a party, but the party prevails on the other issues and wins the case in chief, the party cannot claim to have been adversely affected and hence "aggrieved" by the decision; he therefore lacks standing to appeal the single issue decided against him. Clearly, Plaintiffs here won their case below -- the resolutions levying the subject taxes were declared unconstitutional in their application to Plaintiffs, who were thereby freed from the obligation ever to pay the taxes in issue -- i.e., the County's and Borough's occupation taxes for the calendar year 1975 and the School District's occupation tax for the fiscal year 1975-76. Plaintiffs' concern about possible future action by the taxing authorities in amending the resolutions does not constitute a controversy appropriate for our review

[ 32 Pa. Commw. Page 211]

    at this time. Should the taxing bodies cure the defect in the resolutions and attempt to levy the occupation tax upon Mary Burchanowski as a housewife, she will have adequate opportunity to challenge the validity of that separate levy.

Accordingly, we

Order

And Now, this 19th day of October, 1977, the appeal of Valentine P. and Mary H. Burchanowski is hereby dismissed for lack of standing.

Judge Kramer did not participate in the decision in this case.

Disposition

Appeal dismissed.


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