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KENNETH A. BUNDY v. CARL A. BELIN (05/26/83)

decided: May 26, 1983.

KENNETH A. BUNDY, RICHARD LININGER, AND MARK VRAHAS, APPELLANTS,
v.
CARL A. BELIN, JR., APPELLEE



No. 39 W.D. Appeal Docket, 1982, Appeal from Order of the Commonwealth Court at No. 222 Misc. Dkt. No. 3, dated March 16, 1982, affirming the order of the Court of Common Plea of Clearfield County, Civil Division, at No. 82 - 2 - EQU. Bundy v. Belin, 65 Pa. Commonwealth Ct. 339, Roberts, C.j., and Nix, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a concurring opinion. Larsen, J., did not participate in the consideration or decision in this case.

Author: Nix

[ 501 Pa. Page 257]

OPINION

This case presents the question whether a tax levied for repayment of past due principal and interest on tax anticipation notes is excepted from tax limitations as provided in the County Code, § 1770, 16 P.S. § 1770, because the delinquent repayment is indebtedness incurred pursuant to the Act of July 12, 1972 (P.L. 781, No. 185), 53 P.S. § 6780-1 et seq., known as the Local Government Unit Debt Act ("Debt Act").*fn1 A three-judge panel of the Commonwealth Court,

[ 501 Pa. Page 258]

    by a 2-1 decision, held that the obligation was not "indebtedness incurred pursuant to the [Debt Act]" so that taxes levied for repayment are not excluded from the maximum rate of taxation contained in the County Code. We affirm.*fn2

I.

In January 1982 appellee, Carl A. Belin, Jr., a taxpayer of Clearfield County, filed a complaint in equity in the court of common pleas to declare illegal a tax of ten (10) mills for debt service, levied by appellants, Commissioners of Clearfield County, and to enjoin the Commissioners from attempting to collect the tax. Appellants filed preliminary objections raising a question of jurisdiction and in the nature of a demurrer. The court of common pleas dismissed the preliminary objections. Appellants asked the lower court to certify the matter, under 42 Pa.C.S.A. § 702(b).*fn3 The application was denied and appellants filed, in the Commonwealth Court, a petition for review of the court of common pleas' refusal to certify. The Commonwealth Court, 65 Pa. Commw. 339, 442 A.2d 844, determined the question was

[ 501 Pa. Page 259]

    controlling and substantial and heard an appeal from the dismissal of the preliminary objections.

Accepting as true every well pleaded factual allegation of the complaint, as required in appellate review of judicial determination of preliminary objections, Danson v. Casey, 484 Pa. 415, 399 A.2d 360 (1979); Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Buchanan v. Brentwood Federal Savings and Loan Assn., 457 Pa. 135, 320 A.2d 117 (1974), the record discloses that in fiscal year 1981, Clearfield County sold a note in the amount of $1,000,000.00 in anticipation of receipt of current fiscal year taxes to the Union Bank and Trust Company.*fn4 Appellants adopted a budget for the fiscal year of 1982 which included an unpaid tax anticipation obligation for current expenses for fiscal year 1981 in the amount of $750,000.00. To meet this obligation which occurred because of the Commissioners' failure to comply with the mandated maturity date of the note,*fn5 appellants levied a tax upon realty of thirty (30) mills on every dollar of the adjusted valuation. Ten (10) mills of the thirty (30) mills is a tax beyond the twenty (20) mill limit and is called by the Commissioners a "debt service tax." Since inception of the thirty (30) mill levy, appellants have asserted that the proviso

[ 501 Pa. Page 260]

    in Section 1770 of the County Code authorizes the levy. Appellee argues in this Court, as the Commonwealth Court found, that the unpaid portion of the tax anticipation note is not "debt incurred pursuant to the [Debt Act]."

II.

Preliminarily we must dispose of appellants' contention that the court of common pleas did not have jurisdiction to hear the complaint. The gist of the argument hinges upon a strained interpretation of Section 901(b) of the Debt Act.*fn6 Appellants insist that Section 901(b) deprives the court of common pleas of jurisdiction to determine whether the additional ten (10) mill levy to pay past due interest and principal of the tax anticipation note is illegal.*fn7 The exclusive

[ 501 Pa. Page 261]

    jurisdiction conferred by Section 901(b) is deemed by appellants to encompass the subject matter of this case. An examination of Section 901(b) compels an opposite conclusion.

At this juncture, it is helpful to review the rules of construction pertinent to this decision, as set forth in the Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1501 et seq., ("the Act") and accompanying case law. The Act at 1 Pa.C.S.A. § 1921(a) mandates that the object of all construction and interpretation of statutes is to ascertain and effectuate the intention of the General Assembly. When the words of the statute are not explicit, it further permits consideration of

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretation ...


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