Appeal from the Order of the Court of Common Pleas of Carbon County in case of Joseph M. Scott et al. v. The Palmerton Area School District, No. 80 Equity 30.
Lawrence M. Ludwig, with him Gary F. Dobias, for appellants.
James A. Wimmer, Philip & Wimmer, for appellee.
Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.
[ 63 Pa. Commw. Page 529]
Taxpayers (Appellants) living in the Palmerton Area School District (School District) brought a class action suit in equity against the School District requesting, inter alia, that the occupational tax and assessment adopted by the School District be declared unconstitutional. School District filed preliminary objections in the nature of a motion to strike for failure to exercise a statutory remedy and for lack of conformity to rules of court and a petition raising the defense of non-joinder of a necessary party. The Court of Common Pleas of Carbon County sustained the motion to strike for lack of subject matter jurisdiction for failure to exercise a statutory remedy and overruled the other two objections. This appeal followed.
From the allegations in the complaint, we ascertain that on June 30, 1980 the School District adopted a resolution imposing an occupation tax of 35% on the occupational assessments of each resident in the School District over the age of 18 years. The effective date of the tax was July 1, 1980. Tax bills were sent by the School District on or about August 1, 1980. Appellants' complaint was filed September 5, 1980. Appellants complained that the Assessment Rating of Trades and Occupations established by the Carbon County Board of Assessment Appeals (Assessment Board) used by the School District to determine the value and assessment of each occupation subject to the
[ 63 Pa. Commw. Page 530]
tax, is discriminatory on the basis of sex*fn1 and in violation of their constitutional rights under the uniformity clause of the Pennsylvania Constitution*fn2 and a violation of equal protection and due process rights under the Constitution of the United States.*fn3 Appellants assert that the unconstitutionality of the assessments renders the tax resolution itself unconstitutional.
Annexed to the complaint is a statement alleged to have been issued by the board of directors of the School District which, according to Appellants, acknowledges that the occupation tax was "antiquated, out-moded, out-dated, unfair, capricious, biased, prejudiced, discriminatory and arbitrary." Appellants allege that the knowing and willful adoption of such a tax was a violation of their rights under the Civil Rights Act, 42 U.S.C. § 1983*fn4
Relying upon this Court's decisions in Lashe v. Northern York County School District, 52 Pa. Commonwealth Ct. 541, 417 A.2d 260 (1980) and Hudson v. Union County, 50 Pa. Commonwealth Ct. 378, 413 A.2d 1148 (1980), the learned trial court concluded that inasmuch as Appellants had not alleged that their statutory remedies under Section 701 of The Fourth to Eighth Class County Assessment Law (Assessment Law), Act of May 21, 1943, P.L. 571, as amended, 72
[ 63 Pa. Commw. Page 531]
P.S. § 5453.701 and Section 6 of The Local Tax Enabling Act (Enabling Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6906, were inadequate as to them and that the constitutional challenges asserted in their complaint could have been raised before the ...