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LOWELL HUDSON ET AL. v. UNION COUNTY (04/09/80)

decided: April 9, 1980.

LOWELL HUDSON ET AL., INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS OF TAXPAYERS OF UNION COUNTY, THE LEWISBURG AREA SCHOOL DISTRICT AND KELLY TOWNSHIP, APPELLANTS
v.
UNION COUNTY, PENNSYLVANIA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas, 17th Judicial District, Union County, in case of Lowell Hudson, D. W. Storer, Robert Hurst, John Fleck and Cecil Nave, individually and as the representatives of a class of taxpayers of Union County, The Lewisburg Area School District and Kelly Township, Plaintiffs v. Union County, Pennsylvania; Union County Board of Assessment; Earl K. Noll, Chief Assessor of Union County; Lewisburg Area School District; and Lucille D. Baker, Kelly Township Tax Collector, Defandants, No. 537 of 1978.

COUNSEL

James F. Geddes, Jr., of Silverblatt & Townsend, for appellants.

Louise O. Knight, of Clement and Knight, with her Wayne A. Bromfield, of Brann and Bromfield, for appellees.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 50 Pa. Commw. Page 379]

This is an appeal from an order of the Court of Common Pleas, 17th Judicial District, Union County Branch dismissing appellants' (taxpayers) complaint in equity. We affirm.

Taxpayers commenced the present action by filing a complaint in equity on August 16, 1978 in common pleas court. By their complaint, taxpayers sought to have declared invalid a certain occupation tax levy and the occupation tax assessments on which it was based. The common pleas court declined to entertain equity jurisdiction in the matter, dismissed the complaint, and sustained defendants' preliminary objection in the form of a motion to strike because of an adequate remedy at law. This appeal followed.

Because this case did not proceed beyond the initial stages of pleading, we are unable to completely and specifically discern the factual background. From taxpayers' complaint, however, it is evident that the occupation tax levy being challenged is that adopted by the Lewisburg Area School District (District) for the 1978-79 school budget pursuant to Section 2 of The

[ 50 Pa. Commw. Page 380]

Local Tax Enabling Act (Enabling Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6902.*fn1 Taxpayers also challenge the validity of the underlying assessments made by Union County pursuant to authority delegated it by Section 201 of The Fourth to Eighth Class County Assessment Law (Assessment Law), Act of May 21, 1943, P.L. 571, as amended, 72 P.S. § 5453.201.*fn2 Taxpayers predicate their challenges on a variety of constitutional and non-constitutional grounds, the specifics of which we need not address in light of our agreement with the common pleas court that taxpayers had full and adequate statutory remedies available to them.

Where the legislature has provided a specific statutory remedy the general rule obtains that such statutory remedy is to be strictly pursued. See, Borough of Green Tree v. Board of Property Assessments, 459 Pa. 268, 328 A.2d 819 (1974). However, our Supreme Court recognized an exception to this general rule "where a taxing statute is made the subject of a constitutional challenge." Lynch v. Owen J. Roberts School District, 430 Pa. 461, 465, 244 A.2d 1, 3 (1968) (Emphasis in original). The precise dimensions and application of the exception are unclear.

[ 50 Pa. Commw. Page 381]

Former Justice Pomeroy wrote in Borough of Green ...


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