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GAIL BORGER v. PLEASANT VALLEY SCHOOL DISTRICT (12/16/88)

decided: December 16, 1988.

GAIL BORGER, APPELLANT
v.
PLEASANT VALLEY SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County, in the case of Pleasant Valley School District v. Gail Borger, No. 1521 Civil of 1987.

COUNSEL

John B. Dunn, Matergia & Dunn, for appellant.

Daniel M. Corveleyn, Mervine, Brown, Newman, Williams and Mishkin, P.C., for appellee.

Judges Craig, Barry and McGinley, sitting as a panel of three. Opinion by Judge Barry. Judge MacPhail did not participate in the decision in this case.

Author: Barry

[ 122 Pa. Commw. Page 188]

Gail Borger appeals an order of the Court of Common Pleas of Monroe County which issued a writ of mandamus directing her to collect occupational and per capita taxes levied by the Pleasant Valley School District.

Appellant is the duly elected tax collector of Eldred Township, having last been elected to that office in the general election of 1985. The school district adopted resolutions providing for the levy, assessment and collection of an occupational tax and a per capita tax pursuant to the Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. §§ 6901-24. In

[ 122 Pa. Commw. Page 1891987]

, appellant refused to collect the occupational tax and the per capita tax. The school district filed an action in mandamus, seeking to compel her to collect the taxes in question. Following a hearing, the trial court issued the writ and ordered her to collect the taxes. This appeal followed.

The remedy of mandamus will lie to compel the performance of the ministerial mandatory duty of a public official where there is clear legal right to performance and there is no adequate legal remedy. Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 493 A.2d 1351 (1985). In the present case, the dispositive question concerns the duty of appellant to collect these taxes.

Section 570 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65570 provides in pertinent part, "The tax collector of townships shall collect all county, township, school, institution district and other taxes levied by authorities empowered to levy taxes." Appellant argues, however, that Section 10(a) of the Local Tax Enabling Act supercedes the above quoted provision. Section 10(a) provides:

Any such political subdivision is hereby authorized to provide by ordinance or resolution for the creation of such bureaus or the appointment and compensation of such officers, clerks, collectors, and other assistants and employes, either under existing departments, or otherwise as may be deemed necessary, for the assessment and collection of taxes imposed under the authority of this act.

53 P.S. § 6910. In the resolution adopting the two taxes, the school district provided that the tax collectors of the individual townships must collect these taxes. Appellant argues that this is an appointment separate and ...


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