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D/K BEAUTY SUPPLY v. NORTH HUNTINGDON TOWNSHIP (06/15/82)

decided: June 15, 1982.

D/K BEAUTY SUPPLY, INC. ET AL., APPELLANTS
v.
NORTH HUNTINGDON TOWNSHIP, A MUNICIPALITY AND A TOWNSHIP OF THE FIRST CLASS ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of D/K Beauty Supply, Inc.; Art Kistler, t/d/b/a Kistler's Arco Service; James Shirley, t/d/b/a Shirley Funeral Home; Gene Brcig, t/d/b/a Better Built Mobile Homes; Sea Mist Pools, a corporation; Derrick Industries, a partnership; Hamilton Buick, Inc.; Painter Tool, Inc.; Gerald Thomas, t/d/b/a Thomas Super Market; Paul Lenhart, t/d/b/a Lenhart Service Center; Irwin Chrysler Plymouth, Inc.; Marilyn's Bakery, a corporation; John Brozak, t/d/b/a Norwin News & Tobacco; C & S Adjustors, a partnership; Record Factory, Inc.; ABC Cleaner & Drying, a partnership; John Payne, Jr., t/d/b/a Norwin Barber Shop; Able Tool, Inc.; Jo-Ki-Jo, a corporation; F.C. Distributors, Inc.; Massung Poultry, a partnership; Frank E. Wall, t/d/b/a Wall Electric; Giant Eagle, Inc.; Don Klanchar, t/d/b/a Klanchar's Exxon Service; B/G Industries, Inc. v. North Huntingdon Township, a Municipality and a Township of the First Class; Lucille Eresh, Tax Collector for the Township of North Huntingdon, No. 10986 of 1980.

COUNSEL

Joseph F. Cassarino, P.C., for appellants.

Thomas P. Cole, II, for appellees.

Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judges Mencer and Palladino did not participate in the decision in this case.

Author: Williams

[ 67 Pa. Commw. Page 165]

This matter is before us on appeal from a decision of the Court of Common Pleas of Westmoreland County. The court sustained in part, and dismissed in part, an appeal by twenty-five aggrieved taxpayers (appellants) from the adoption of the North Huntingdon Township Mercantile Tax Ordinance and Business Privilege Tax Ordinance.

The Township of North Huntingdon (appellee) first commenced its efforts to enact the Mercantile and Business Privilege Tax Ordinances on January 30, 1980, when Ordinance No. 536 and Ordinance No. 537 were adopted by the Township's Board of Commissioners. An appeal from the municipality's adoption of both ordinances was filed in the court below, which sustained the appeal and declared both ordinances to be invalid due to procedural defects in the enactment thereof.

On July 21, 1980 the Township again enacted a Mercantile Tax Ordinance (Ordinance No. 547) and a Business Privilege Tax Ordinance (Ordinance No. 548). On August 19, 1980 twenty-five individual taxpayers filed an appeal from the adoption of the aforesaid ordinances. The court below sustained the appeal, again finding the ordinances to be invalid due to procedural defects in their enactment.

The Mercantile and Business Privilege Tax Ordinances which are the subject of the instant appeal are Ordinance No. 550 (No. 10 of 1980) and Ordinance No. 551 (No. 11 of 1980), which were adopted by North Huntingdon Township on October 13, 1980. The appellants herein appealed to the Court of Common Pleas of Westmoreland County, challenging the validity of the ordinances on both procedural and substantive grounds. By order dated December 15, 1980, the

[ 67 Pa. Commw. Page 166]

    court sustained the appeal to the extent of its ruling that neither tax could be applied retroactively, and accordingly could not be levied on sales occurring or services rendered prior to November 13, 1980, the effective date of the ordinances.*fn1 In all other respects, the appeal was dismissed and the ordinances were found to be valid and enforceable.

The taxpayers appealed to the Superior Court of Pennsylvania from the aforesaid order. Because we have exclusive jurisdiction over this matter,*fn2 the Township of North Huntingdon filed an appeal to this Court, and caused the taxpayers' appeal to be transferred here from the Superior Court.*fn3 Subsequently, the Township withdrew its appeal; accordingly, the matter is now before us on the taxpayers' appeal from the lower court's decision.

The appellants first attack the sufficiency of the Township's notice of its intention to adopt the Mercantile Tax Ordinance. They contend that the notice does not comply with the advertising requirements of Section 4 of The Local Tax Enabling Act,*fn4 and that, therefore, the ordinance ...


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