Appeals from the Order of the Court of Common Pleas of Allegheny County in case of Home Oldsmobile, Inc., Billco Motors, Inc., Wright Pontiac, Inc. and McKay Cadillac, Inc. v. The Township of Pine, a political subdivision of the Commonwealth of Pennsylvania, No. GD 79-26234.
John R. Luke, Luke & Anthony, for appellants, Home Oldsmobile Company, Inc. et al.
Henry W. Ewalt, with him W. Timothy Barry, Brooks & Ewalt, for appellee, the Township of Pine.
Judges Mencer, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Palladino did not participate in the decision in this case.
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This case arose when four licensed automobile dealers (dealers), doing business in Pine Township, Allegheny County, filed a joint suit for a declaratory judgment in the Court of Common Pleas of Allegheny County.*fn1 In that action, the dealers sought to have that court declare invalid, or to declare them exempt from, two tax ordinances enacted by Pine Township
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by authority of The Local Tax Enabling Act (Enabling Act).*fn2 When the Court of Common Pleas entered a final order adverse to their action, the dealers appealed to our Court.
The dealers' appeal (No. 3004 C.D. 1980) is the first of two separate appeals arising from the same tax controversy; and we consolidated the cases for argument and disposition. The second appeal (No. 3035 C.D. 1980) is by Pine Township itself, the defendant in the action below. The Township questions the lower court's assumption of jurisdiction to even consider the merits of the dealers' suit. The Township also seeks a reversal of the lower court's denial of counsel fees.
By two ordinances, both dated April 4, 1979, Pine Township enacted a Mercantile License Tax and a Business Privilege Tax. The taxes became effective as of July 1, 1979. On October 1, 1979, the dealers filed their complaint for a declaratory judgment, challenging the legality of the tax ordinances. The dealers' action also asserted that they are exempt from such taxes as a matter of law.
The dealers' first attack on the validity of the tax ordinances was that the ordinances were enacted during the course of the Township's 1979 fiscal year and after the budget for that year had been adopted.*fn3 That fact, the dealers asserted, put the ordinances in violation of Sections 902 and 902.2 of The Second Class Township Code.*fn4 The dealers' complaint also averred
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that the ordinances were not enacted or advertised as required by the Enabling Act; that the taxes imposed are unreasonable, excessive and unneeded; and that the revenues to be derived from the taxes would exceed limitations imposed by law. The complaint further contended that, even if the ordinances were otherwise valid, the dealers are exempt from the taxes because of certain business license fees they have to pay the Commonwealth.*fn5
In response to the dealers' complaint for declaratory relief, the Township filed preliminary objections which raised, inter alia, a question of subject matter jurisdiction. In that regard, the Township asserted that the appeal procedure set forth in Section 6 of the Enabling Act provides the exclusive means of contesting the validity of the tax ordinances;*fn6 and that the dealers' failure to pursue that statutory remedy deprived the lower court of jurisdiction to entertain their tax challenges made by means of a declaratory judgment action.
The Township's preliminary objections also asserted the bar of a non-waivable statute of limitations: that the expiration of the 30-day appeal period prescribed
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by Section 6 of the Enabling Act terminated the dealers' right to challenge the validity of the tax ordinances. As an additional matter, the ...