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KENNETH A. BUNDY ET AL. v. CARL A. BELIN (03/16/82)

decided: March 16, 1982.

KENNETH A. BUNDY ET AL., PETITIONERS
v.
CARL A. BELIN, JR., RESPONDENT



Appeal from the Order of the Court of Common Pleas of Clearfield County in the case of Carl A. Belin, Jr. v. Kenneth A. Bundy, Richard Lininger and Mark Vrahas, Clearfield County Board of Commissions, No. 82-2-Equity.

COUNSEL

Richard M. Rosenbleeth, with him George H. Kalikman, Marvin Comisky, Goncer M. Krestal, and Neal Steinman, Blank, Rome, Comisky & McCauley, for petitioner.

Carl A. Belin, Jr., Belin, Belin & Naddeo, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 65 Pa. Commw. Page 340]

A taxpayer of Clearfield County, Carl A. Belin, Jr., brought suit in equity against the Commissioners of Clearfield County seeking an order enjoining the commissioners from fixing the rate of taxation for the year 1982 in an amount in excess of twenty mills, the limit fixed by Section 1770 of the County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1770. The rate proposed exceeded twenty mills on account of the commissioners' intention to pay tax anticipation notes issued but unpaid in the year 1981. It is the position of the commissioners that the matter of the authorization of an excessive levy to pay tax anticipation notes unpaid in the year of issuance is one committed exclusively to the jurisdiction of the Department of Community Affairs pursuant to the Local Government Unit Debt Act, Act of July 12, 1972, P.L. 781, No. 185, reenacted by the Act of April 28, 1978, P.L. 124, as amended, 53 P.S. § 6780-1 et seq. (hereinafter referred to as the Act) and that the County Code by exception authorizes an excessive levy to pay tax anticipation notes unpaid in the year of issuance. The commissioners filed preliminary objections asserting the exclusive jurisdiction of the Department of Community Affairs and a demurrer.

After argument, the court below decided that it had jurisdiction by virtue of Section 1770 of the County Code, and overruled the preliminary objections directing the county to file a responsive pleading. The court

[ 65 Pa. Commw. Page 341]

    did not discuss the matter of the demurrer. It also refused the county's application to certify (pursuant to 42 Pa. C.S. § 702(b)) that the interlocutory order with respect to the preliminary objections involved a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate determination of the matter. The county commissioners thereupon filed a petition for review in this court of the court of common pleas' refusal to certify the matter for appellate review. After consideration of the county's brief and Mr. Belin's response, we decided that the question was controlling and substantial and that the matter would be advanced by our deciding an appeal from the lower court's action of overruling the preliminary objections. We entered an order to this effect on February 26, 1982 and heard argument on March 5, 1982.

The parties agree that there are no issues of disputed fact and that the matter is entirely one of statutory law involving Section 1770 of the County Code and a number of the provisions of the Local Government Unit Debt Act.

The tax levy proposed by the commissioners is thirty and one-half mills per dollar of adjusted valuation, ten mills of which was for the purpose of paying the tax anticipation notes not paid in 1981 as had been promised when they were issued. Section 1770 of the County Code is as follows:

No tax shall be levied on personal property taxable for county purposes where the rate of taxation thereon is fixed by law other than at the rate so fixed. The county commissioners shall fix, by resolution, the rate of taxation for each year. No tax for general county purposes in counties of the third, ...


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