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CONEY ISLAND v. POTTSVILLE AREA SCHOOL DISTRICT ET AL. TOWNSHIP NORWEGIAN (03/09/83)

decided: March 9, 1983.

CONEY ISLAND, II, INC. ET AL.
v.
POTTSVILLE AREA SCHOOL DISTRICT ET AL. THE TOWNSHIP OF NORWEGIAN, APPELLANT. CONEY ISLAND, II, INC. ET AL. V. POTTSVILLE AREA SCHOOL DISTRICT ET AL. POTTSVILLE AREA SCHOOL DISTRICT ET AL., APPELLANTS. CONEY ISLAND, II, INC. ET AL. V. POTTSVILLE AREA SCHOOL DISTRICT ET AL. CONEY ISLAND, II, INC. ET AL., APPELLANTS



Appeals from the Orders of the Court of Common Pleas of Schuylkill County in the cases of Coney Island, II, Inc. et al. v. Pottsville Area School District, et al., No. S-573 May Term, 1977, and in the case of Raring's Inc., et al. v. Pottsville Area School District, No. S-574 May Term, 1977.

COUNSEL

James J. Riley, Williamson, Friedberg & Jones, for Coney Island, II, Inc. et al.

Alvin B. Marshall, Lipkin, Stutzman, Marshall & Bohorad, P.C., with him Richard Thornburg, for Pottsville Area School District et al.

Stephen P. Ellwood, with him Isadore E. Krasno, for The Township of Norwegian.

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

Author: Blatt

[ 72 Pa. Commw. Page 462]

The appellants in this consolidated appeal, the Pottsville Area School District (School District) and the Township of Norwegian (Township) argue that the Court of Common Pleas of Schuylkill County erred in determining that certain "business privilege taxes" which they levied were invalid and illegal to the extent that they exceeded the limitations of Section 8 of The Local Tax Enabling Act (Section 8).*fn1

[ 72 Pa. Commw. Page 463]

The appellees, who are merchants engaged in the wholesale or retail sale of goods, wares or merchandise, or proprietors of restaurants, all transact business within the geographical boundaries of the School District or the Township, and are subject to the disputed taxes. They have cross-appealed, contending that the trial court erred in determining that they are barred from maintaining their action challenging the initial June 23, 1976 Taxing Resolution of the School District, because of the doctrine of laches.*fn2

The trial court correctly identified one of the major issues in this case as being whether or not the business privilege taxes, as levied by the School District and the Township (Taxing Authorities), are subject to the maximum limitations and sharing provisions contained in Section 8, and if so, whether or not these taxes are in violation of the provisions of Section 8.

The pertinent facts are as follows. On June 23, 1976, the School District adopted a resolution enacting a business privilege tax for general revenue purposes. This "Pottsville Area School District Business Privilege Tax", which was enacted pursuant to the Local Tax Enabling Act, 53 P.S. §§ 6901-6924, provided in pertinent part:

Section III. There is hereby levied for the tax year 1977 and annually thereafter a tax for

[ 72 Pa. Commw. Page 464]

    general revenue purposes on the privilege of doing business as herein defined in the Pottsville Area School District as follows:

     a. RATE AND BASIS OF TAX. The rate of the tax on each and every dollar of the whole or gross volume of business transacted within the territorial limits of the Pottsville Area School District shall be two mills (2), two mills shall mean $2.00 per $1,000.00 of gross volume of business; except that the rate of the tax on each and every dollar of the whole or gross volume of business transacted by wholesale dealers or wholesale vendors within the territorial limits of the Pottsville Area School District shall be one and one-half mill (1 1/2). All non-wholesale business of such wholesale dealers or wholesale vendors shall be taxed at the general rate of two mills (2). (Emphasis added.)

Likewise, under 53 P.S. §§ 6901-6924, the Township, a coterminous taxing authority with the School District, enacted a very similar ...


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