Appeal from the Order of the Commonwealth Court of Pennsylvania at Nos. 2988 C.D. 1983, 2837 C.D. 1983 (Consolidated) affirming in part and reversing in part the Order of the Court of Common Pleas of Delaware County, Pennsylvania, dated September 23, 1983 in Civil Action No. 79-4268-Equity. 90 Pa. Commw. Ct. 143;
Nix, C.j., and Flaherty, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion. Zappala, J., files a dissenting opinion. Larsen and McDermott, JJ., did not participate in the consideration or decision of this case.
Ridley Arms is a 241 unit apartment complex located in Ridley Township, Delaware County, Pennsylvania. In 1978 Ridley Arms brought an action in equity challenging the constitutionality of the Ridley Township Refuse Collection Ordinance. The relief sought was that the court enjoin Ridley Township from collecting any fees from Ridley Arms pursuant to its refuse collection ordinance and that the court order the refund of moneys paid to the township for refuse collection which was never performed. The Court of Common Pleas of Delaware County upheld the constitutionality of the ordinance, but ordered a partial refund of moneys paid to the township. The court reasoned that although the taxpayer had not met its burden of establishing that the classifications were not reasonably related to the purpose of the statute, since this case involved a charge for services rendered, and since the taxpayer never received the service, the taxpayer was entitled to a refund of taxes in the amount of moneys it paid to a private hauler for removing its refuse.*fn1 The parties cross-appealed to Commonwealth Court, 90 Pa. Commw. 143, 494 A.2d 870, which affirmed that part of the chancellor's decree upholding the constitutionality of the statute and reversed that part of the decree requiring repayment. Ridley Arms filed a Petition for Allowance of Appeal and we granted allocatur.
The township ordinance at issue in this case, No. 1005, provides, in pertinent part:
SECTION III. ADMINISTRATION
A. All ashes and rubbish accumulated in any single family or two-family house, apartment dwelling, in the Township of Ridley, shall be collected, conveyed and disposed of by the Township, and the cost of such service shall be paid for as provided in the schedule of fees set forth in Section VI hereof, by the person owning the
building or buildings from whence the ashes and rubbish have been accumulated.
B. All garbage accumulated in any single-family or two-family house, apartment dwelling in the Township of Ridley shall be collected, conveyed and disposed of by the Township.
D. By reason of the great amount of refuse being accumulated by shopping centers, supermarkets, manufacturing plants, hotels and restaurants, the collection of which would unduly burden the facilities of the Township, all shopping centers, super markets, manufacturing plants, hotels and restaurants shall dispose of their own refuse . . . .
SECTION V. COLLECTION PRACTICES
B. Limitation on Quantity:
1. It is the intent of the ordinance that the reasonable accumulation of refuse of each family for the collection period will be collected for the standard charge. The Health and Sanitation Committee of the Township may refuse to collect unreasonable accumulations of refuse, or in its discretion, may make an additional charge for such amounts.
2. It is the intent of this ordinance that shopping centers, super markets, manufacturing plants, hotels and restaurants shall privately contract for and have their accumulation of refuse collected at reasonable times so that there shall not be an undue or unreasonable amount accumulated prior to collection.
The 241 apartment units of the Ridley Arms complex produce approximately ninety (90) cubic yards of refuse weekly. Since the township is unable to provide refuse pickup more than twice weekly, and since its trucks are able to manipulate refuse containers not exceeding ...