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CLARKE SMITH v. COMMONWEALTH EX REL. SOUTHWEST BUTLER COUNTY SCHOOL DISTRICT (12/08/82)

decided: December 8, 1982.

CLARKE SMITH, APPELLANT
v.
COMMONWEALTH EX REL. SOUTHWEST BUTLER COUNTY SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Butler County in the case of Commonwealth v. Clarke J. Smith, No. C.A. 1 of 1979, Book 68, Page 196.

COUNSEL

Frank P. Krizner, with him Lee C. McCandless, McCandless, Krizner & Price, for appellant.

No appearance for appellee.

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

Author: Blatt

[ 70 Pa. Commw. Page 286]

Clarke Smith (appellant) appeals here from an order of the Court of Common Pleas of Butler County imposing a sentence of fines, costs, and 120 days imprisonment for his failure to pay taxes pursuant to an ordinance promulgated by the Southwest Butler County School District (School District).

In April of 1979, the appellant was first convicted and sentenced for failure to pay earned income taxes to the School District. On appeal to this Court, Southwest Butler County School District v. Smith, 56 Pa. Commonwealth Ct. 320, 424 A.2d 1001 (1981), we modified the sentence as to the amount of taxes due, yet affirmed in all other respects. After the appellant's petition for allowance of appeal was denied by the Supreme Court of Pennsylvania, the common pleas court resentenced him, rejecting his new counsel's motion to modify the sentence and to vacate the 120 day imprisonment. Counsel argued then, and this is the only issue presented here, that the jail term was imposed pursuant to an invalid School District Resolution. All monetary penalties (fines and costs) have now been paid and we are only concerned here with the jail term.

The appellant was sentenced pursuant to the School District's Income Tax Resolution of April 19, 1965 which provided that, if a party was found guilty of the offense and convicted, he was to be fined not more than $100 and costs for each offense or be imprisoned for not more than 30 days, or both. Upon conviction of four counts, therefore, the appellant was given a sentence of 120 days in addition to the fines.

[ 70 Pa. Commw. Page 287]

This 1965 Resolution, however, was not the statute applicable at the time concerned.

Section 13 of The Local Tax Enabling Act (Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. ยง 6913, provides in pertinent part that:

On and after the effective date of this act the remaining provisions of this section shall be included in or construed to be a part of each tax levied and assessed . . . upon earned income by any political ...


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