Appeal from the Order of the Court of Common Pleas of Beaver County in the case of Ad Hoc Committee For Keeping New Brighton Progressive, Donald C. Bolland, F. James McCarl, Dominic Mittica, Joseph V. Santangelo, C. Fred Sempf et al. v. Borough of New Brighton, No. 295 of 1982.
Vincent Restauri, Jr., Restauri & Steinberg, for appellants.
Charles F. Bowers, Jr., for appellee.
President Judge Crumlish, Jr. and Judges Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 80 Pa. Commw. Page 349]
The Appellant, Ad Hoc Committee for Keeping New Brighton Progressive, appeals from an order of the Court of Common Pleas of Beaver County which dismissed its appeal challenging a business privilege tax passed by the Borough of New Brighton (Borough) pursuant to Section 2 of the Local Tax Enabling Act (Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6902.
On January 28, 1982, the Borough of New Brighton enacted an ordinance imposing a business privilege tax upon the whole or gross volume of business transacted within the Borough at the rate of 1.5 mills, excepting the whole or gross volume of business of wholesale dealers or vendors, which were taxed at the rate of 1 mill. On February 26, 1982, Appellant filed an appeal with the court of common pleas challenging the above enacted tax pursuant to Section 6 of the Act, 53 P.S. § 6906, alleging that the tax imposed by the Borough was excessive and unreasonable, and an impermissible retroactive tax.
[ 80 Pa. Commw. Page 350]
After some preliminary matters, the common pleas court determined that the issues presented by Appellant could be decided as a matter of law, and that despite Appellant's contention to the contrary, no evidentiary hearing was required in order to dispose of its appeal. In its decision, the common pleas court, relying principally upon our Supreme Court's decision in William Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), held that the rate of the enacted tax was not entirely disproportionate to the rate of the comparable tax authorized under Section 8 of the Act, 53 P.S. § 6908, and that, therefore, the tax was not excessive or unreasonable. The court did not, however, address the issue of retroactivity. Appellant now appeals to this Court contending that it was entitled to an evidentiary hearing to establish the unreasonableness of the Borough's tax and that the tax is prohibited as being retroactive.
In William Penn, our Supreme Court addressed the issue as to whether or not the General Assembly's grant of power to a court under Section 6 of the Act was an unconstitutional delegation of legislative power. The provision of Section 6 which was under attack in William Penn, and of particular importance in the present case, states that:
It shall be the duty of the court to declare the ordinance and the tax imposed thereby to be valid unless it concludes that the ordinance is unlawful or finds that the tax imposed is excessive or unreasonable. . . .
In deciding that the above provision was not an unconstitutional delegation of legislative power, the Supreme Court held that adequate standards were provided within the entire Act and therefore a court could properly determine if a tax imposed by an ordinance was ...