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MOON AREA SCHOOL DISTRICT v. JAMES A. GARZONY T/D/B/A AIRPORT MOBILE SERVICE (07/14/87)

decided: July 14, 1987.

MOON AREA SCHOOL DISTRICT, APPELLANT
v.
JAMES A. GARZONY T/D/B/A AIRPORT MOBILE SERVICE, GLOBE AIRPORT PARKING COMPANY, GREATER PITTSBURGH SERVICE CORPORATION, T/D/B/A, AIRWAYS AIRPORT PARKING, GRANT OLIVER CORPORATION, REDCAP AIRPORT PARKING, INCORPORATION AND COUNTY OF ALLEGHENY, APPELLEES



Appeals from the orders of the Court of Common Pleas of Allegheny County, in cases of Moon Area School District v. James A. Garzony t/d/b/a Airport Mobile Service, Globe Airport Parking Company, Greater Pittsburgh Service Corporation t/d/b/a Airways Airport Parking, Grant Oliver Corporation, Redcap Airport Parking, Incorporation, and County of Allegheny, No. GD 83-11517, dated September 11, 1986 and October 21, 1986.

COUNSEL

John A. Robb, Jr., Robb, Leonard & Mulvihill, for appellant.

John H. Bingler, Jr. and Kevin C. Abbott, Thorp, Reed & Armstrong, for appellee, Grant Oliver Corporation.

Ira Weiss, Deputy Solicitor, with him, James J. Dadaro, Solicitor, for appellee, County of Allegheny.

Judges Doyle and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle. Judge Barry did not participate in the decision in this case.

Author: Doyle

[ 107 Pa. Commw. Page 377]

In this consolidated appeal, the Moon Area School District (School District) appeals from two orders of the Court of Common Pleas of Allegheny County that barred the School District from seeking the collection of a non-residential patron parking tax from the Grant Oliver Corporation (Grant Oliver), and also denied the School District's petition to release tax funds already collected, but escrowed by Grant Oliver. We reverse.

This long-running dispute has its genesis in a tax resolution passed by the School District on March 26,

[ 107 Pa. Commw. Page 3781979]

, when it adopted Resolution 79-2 (Resolution), which levied a 15% tax*fn1 upon the fee paid by patrons of non-residential parking lots within the School District. Under the Resolution, the operators of each non-residential parking lot located within the School District are required to collect the tax from parking patrons, for which the operators are entitled to retain 2% as compensation. The Resolution further provides that the operators must file monthly tax returns and pay the tax monies collected to the School District, and prescribes penalties for failure to collect and pay the tax.

Grant Oliver, by agreement with Allegheny County (County), operates the County-owned parking lots at the Greater Pittsburgh International Airport (Airport), located within the School District. On April 16, 1979, prior to the effective date of the Resolution, April 25, 1979, Grant Oliver and other parking lot operators filed a statutory appeal challenging the constitutionality of the Resolution. Although both the trial court and this Court held that the tax was constitutionally infirm, on May 28, 1982, our Supreme Court reversed and held that the tax was not unconstitutional. Airway Arms, Inc. v. Moon Area School District, 498 Pa. 286, 446 A.2d 234 (1982), appeal dismissed, 459 U.S. 1094 (1983).

Prior to our Supreme Court's decision in Airway Arms, Grant Oliver did not collect the parking tax; following the decision, however, Grant Oliver did begin collecting the parking tax from its patrons, although it escrowed the monies, rather than paying them to the School District.

On April 15, 1983, the School District, in accordance with the Resolution, assessed Grant Oliver over

[ 107 Pa. Commw. Page 379]

$5.6 million for back taxes, interest, penalty charges and liquidated damages dating from April 25, 1979, the effective date of the Resolution. Upon Grant Oliver's failure to pay, the School District instituted an equity action in the Court of Common Pleas of Allegheny County on July 15, 1983, seeking payment of the back taxes and an order compelling Grant Oliver to collect and pay the taxes to the School District in the future. On June 30, 1986, the trial court "barred" the School District from seeking payment of the parking tax from Grant Oliver up to May 28, 1982, the date of the Supreme Court's decision in Airway Arms, and also "barred" the School District from attempting to collect payments in the future from Grant Oliver. In a subsequent equity action, the trial court denied the School District's petitions to compel Grant Oliver to turn over the tax monies it already had collected and escrowed, and also denied the School District's application to permit it to place a tax collector at the situs of the parking lots operated by Grant Oliver. The School District's appeals from these orders have been consolidated for resolution before us.

The first issue on this appeal is whether the trial court was correct in ruling that Grant Oliver was an "agent"*fn2 of the County and therefore could not be compelled to collect and pay the parking tax, despite the Supreme Court's ruling that the Resolution was constitutional.

Prior to the passage of the Resolution, Grant Oliver operated the County-owned parking lots at the Airport pursuant to a ...


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