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LOWER DAUPHIN SCHOOL DISTRICT v. WILLIAM J. KUTLER AND WILLARD E. KIDWELL (08/04/83)

decided: August 4, 1983.

LOWER DAUPHIN SCHOOL DISTRICT, APPELLANT
v.
WILLIAM J. KUTLER AND WILLARD E. KIDWELL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLEES



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of William J. Kutler and Willard E. Kidwell, on behalf of themselves and all others similarly situated v. Lower Dauphin School District, No. 3247 S 1977, In Assumpsit.

COUNSEL

James R. Clippinger, with him Thomas D. Caldwell, Jr., Caldwell, Clouser & Kearns, for appellant.

Robert W. Barton, Killian & Gephart, for appellees.

William Fearen, with him Michael I. Levin, Cleckner and Fearen, for Amicus Curiae, Pennsylvania School Boards Association.

Judges Rogers, Blatt and Williams, Jr. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge MacPhail. Concurring and Dissenting Opinion by Judge Doyle.

Author: Macphail

[ 76 Pa. Commw. Page 89]

Section 2 of The Local Tax Enabling Act (Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6902, authorizes certain enumerated political subdivisions to levy taxes on "occupations". Pursuant to that authorization, the Lower Dauphin School District (School District) enacted a resolution imposing such a tax for the fiscal years 1973-1974 and 1974-1975. Appellees, plaintiffs below,*fn1 paid the taxes and then commenced an action in assumpsit to recover the taxes which they claimed were unlawfully levied. The gravamen of the action is Appellees' contention that they have no taxable occupation. The issue presented to the trial court was whether retired persons and housewives have taxable occupations within the meaning of the Act. That court held that they did not. This appeal followed.*fn2

Cases involving the tax on occupations are numerous but there is no appellate authority in Pennsylvania regarding the specific issue now before us.

[ 76 Pa. Commw. Page 90]

When the issue has been considered by trial courts in Pennsylvania, the results have differed.*fn3

The disposition of the issue before us depends upon the definition of the term "occupation" as it is used in the statute. There is no statutory definition nor is the term defined in the tax resolution now before us. It is true, as School District notes, that the words of a statute are to be construed according to their common and approved usage unless they are technical words or words which have acquired a peculiar and appropriate meaning. Section 1903 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1903. As early as 1885, our Pennsylvania Supreme Court held, "An 'occupation' tax is peculiar in its character. It is not a tax upon property, but upon the pursuit which a man follows in order to acquire property and support his family." Banger's Appeal, 109 Pa. 79, 95 (1885) (emphasis added). This definition was quoted with approval in Crosson v. Downingtown Area School District, 440 Pa. 468, 270 A.2d 377 (1970). While School District would have us use dictionary definitions more to their liking, we believe our Supreme Court has defined the term in positive language and that we may adopt it and, indeed, may be bound by it.

[ 76 Pa. Commw. Page 91]

Section 1921 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921 requires us to construe statutes by ascertaining and effectuating the intent of the General Assembly. In this regard, we note that Section 2 of the Act provides in pertinent part that:

Each local taxing authority may, by ordinance or resolution exempt any person whose total income from all sources is less than five thousand dollars ($5,000) per annum from the . . . occupation tax. . . .

The original statute provided for an annual income exemption of $2,000. At the time the case sub judice was at issue before the trial court the exemption was $3,200. The statute was last amended in 1982 to provide for the present $5,000 exemption. Since the law is well settled that the occupation tax is not an income tax, Banger's Appeal, there must be some connectional link between the income exemption provided in the statute and the occupation tax. We are of the opinion that the connectional link is that only income producing occupations are taxable. Such an interpretation would be fully compatible with the judicial definition that an occupation is the pursuit one*fn4 follows to acquire property or support a family. We conclude that unless one has an income producing occupation, such person cannot be subject to the occupation tax here levied.

Evidence was produced by School District at the trial of this case which would tend to prove that a homemaker has an occupation because it has economic value. No ...


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