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BOROUGH CRAFTON v. LARRY P. GAITENS (12/23/87)

decided: December 23, 1987.

THE BOROUGH OF CRAFTON, APPELLANT
v.
LARRY P. GAITENS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Larry P. Gaitens v. The Borough of Crafton, No. GD 83-4646.

COUNSEL

Edward A. Witt, with him, Nancy L. Rackoff and Grace S. Harris, for appellant.

Larry P. Gaitens, appellee, for himself.

Edwin J. Martin, Weisel, Xides & Odermatt, for amicus curiae, Borough of Forest Hills.

President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Palladino. Judge Colins dissents.

Author: Palladino

[ 112 Pa. Commw. Page 148]

The Borough of Crafton (Borough) appeals a decision of the Allegheny County Court of Common Pleas holding that the Borough's $25 tax on the privilege of occupying property in the Borough was invalid because it was not in compliance with The Local Tax Enabling Act (LTEA).*fn1

On November 30, 1982, the Borough enacted Ordinance No. 1409. This ordinance provided for

     the assessment, levy, regulating, and collection for general revenue purposes of the annual tax in the amount of twenty-five ($25.00) dollars on the privilege of using or occupying premises within

[ 112 Pa. Commw. Page 149]

    the Borough of Crafton at anytime during the calendar year 1983 and each year thereafter, to be paid by each person exercising such privilege ; requiring the filing of returns; providing for administration and collection of the tax; and imposing penalties for violation. (Emphasis added.)

On March 18, 1983, Larry P. Gaitens (Gaitens), a resident of the Borough and subject to the tax, filed an equity suit in the trial court contesting the validity of the ordinance and seeking an injunction prohibiting the Borough from collecting the tax. Gaitens contended the ordinance was invalid on its face because it violated the Uniformity Clause of the Pennsylvania Constitution, Pa. Const. art. 8, § 7, and the fourteenth amendment of the United States Constitution. In the alternative, Gaitens contended the tax was invalid because the LTEA does not provide authority for it.

On March 21, 1983 Gaitens moved for a preliminary injunction against the Borough. The motions judge stayed action on this motion pending the filing of preliminary objections by the Borough and their disposition. The Borough filed preliminary objections, including an objection to jurisdiction, on March 29, 1983. The trial court dismissed the Borough's preliminary objections in an opinion issued on July 14, 1983. After the pleadings were completed, a stipulation of facts was submitted to the trial court which indicated that the only issue in dispute was the power of the Borough to enact the ordinance imposing the tax in question.*fn2 The

[ 112 Pa. Commw. Page 150]

    parties then filed cross motions for summary judgment. Argument was held on these motions in June, 1984. On April 22, 1986, the trial court granted Gaitens' motion for summary judgment while denying the Borough's. The trial court determined the ordinance was invalid because it constituted a per capita (head) tax of $25 in violation of the $10 limitation on such a tax found in section 8 of the LTEA, 53 P.S. § 6908.*fn3

On appeal to this court, the Borough contends that the trial court did not have subject matter jurisdiction in this equity case because Gaitens had an adequate remedy at law which he failed to pursue. Additionally, the Borough asserts that the tax provided for by the ordinance is authorized by the ...


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