decided: March 9, 1989.
PENN HILLS SCHOOL DISTRICT, APPELLANT
THE MUNICIPALITY OF PENN HILLS, APPELLEE. THE PENN HILLS SCHOOL DISTRICT, APPELLANT V. DOMENIC D'ACHILLE ET AL., APPELLEES
Appeals from the Orders of the Court of Common Pleas of Allegheny County, in the case of Penn Hills School District v. The Municipality of Penn Hills, No. GD 87-10774 and in the case of In Re: Appeal of Domenic D'Achille, Cyrus K. Fox, Jr., Edward L. Dunn, George Whitaker, Thomas E. Planinsek, Robert Fulilenger, Sandra L. Debreczeni, John C. Deal, Jr., Beryl Verish, Paul Orlando, Rosemarie Orlando, Dean DeLuca, J. Ross Thibault, Richard A. Pruge, Linda M. Bryan, Lori Cerrone, William A. Kernick, Jr., Martha V. Gray, Joe Viglione, James R. Simmers, William Hess, Clint Rohibruilinh, Jim Bassett, Elsie Kahler, Norman P. Burger and Harvey D. Kart, from the enactment of a Business Privilege Tax and Mercantile License Tax by the School District of Penn Hills, No. SA 1371-87.
John M. Tighe, for appellant.
Wayne DeLuca, with him, August C. Damian, Damian & DeLuca, for appellee, The Municipality of Penn Hills.
Ira Weiss, for appellees, Domenic D'Achille, et al.
Judges Colins and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.
[ 124 Pa. Commw. Page 114]
Penn Hills School District (District) appeals from two orders of the Court of Common Pleas of Allegheny
[ 124 Pa. Commw. Page 115]
County entered on February 17, 1988 which were consolidated for review by this Court. The trial court, at No. 650 C.D. 1988 (Taxpayers' appeal), declared that the District's mercantile and license tax (mercantile tax) enacted by resolution adopted June 16, 1987, shall not take effect until January 1, 1988 because of lack of notice or waiver pursuant to The Local Tax Enabling Act (LTEA)*fn1 and that the District is subject to the rate limitations and halving provisions of the LTEA. Furthermore, the trial court, at No. 649 C.D. 1988 (District's appeal), dismissed the District's complaint in equity and sustained Penn Hills Municipality's (Municipality) preliminary objections. The trial court is reversed in part and affirmed in part.
The District raises three issues for review: whether the trial court erred in concluding that the District and the Municipality imposed a mercantile tax under the authority of the LTEA; whether the trial court erred in concluding that only the District was subject to the halving provisions of Section 8 of the LTEA, 53 P.S. § 6908; and whether the trial court erred in concluding that the District was bound by the notice provisions of Section 8 of the LTEA.
The District, under the authority of the LTEA, enacted by resolution a business privilege tax and a mercantile tax for the 1987-1988 school year effective July 1, 1987 through June 30, 1988.*fn2 The District levied the mercantile tax at the LTEA maximum allowable rate of one mill on wholesale vendors and one and one-half mills on retail vendors. The District shares coterminous boundaries with the Municipality which is a duly constituted home
[ 124 Pa. Commw. Page 116]
rule community pursuant to the Home Rule Charter and Optional Plans Law (Home Rule Law).*fn3
At the time the District enacted the mercantile tax, the Municipality already had in force a mercantile tax levied at the same rate and upon the same subject as the District proposed. Subsequent to the District's adoption of the mercantile tax, Domenic D'Achille and other taxpayers (Taxpayers) filed a statutory appeal pursuant to Section 6 of the LTEA, 53 P.S. § 6906, challenging the legality of the District's newly enacted tax. Taxpayers requested that the tax be declared null and void and that injunctive relief be granted to prohibit the District from collecting the taxes. The District thereafter filed a separate action in equity against the Municipality seeking injunctive relief in the event that the taxpayers were successful. The District requested the Court to declare the municipality subject to the halving provisions of Section 8 of the LTEA and to require the Municipality to share equally with the District revenue collected from the Municipality's mercantile tax capped at one mill on wholesale vendors and one and one-half mills on retail vendors. The Municipality filed preliminary objections to the equity complaint contending that the District failed to state a cause of action for which relief could be granted.
The trial court granted Taxpayers' relief concluding that the mercantile tax was not effective until January 1, 1988 because the District failed to comply with the notice provisions of Section 8 of the LTEA which had not been waived by the Municipality.*fn4 In response to the District's
[ 124 Pa. Commw. Page 117]
complaint in equity, the trial court found that the Municipality is not subject to the halving provisions of the LTEA nor is it required to share equally the revenue from the mercantile tax. Accordingly, the trial court sustained the Municipality's preliminary objections. The District thereafter moved for reconsideration of the trial court's orders which was denied after oral argument.
[ 124 Pa. Commw. Page 118]
Resolution of this case turns upon the interpretation of two statutes, the Home Rule Law and the LTEA. This Court recognizes that the power of taxation lies solely in the General Assembly under the authority of the Pennsylvania Constitution, and absent a grant or delegation of power to tax from the General Assembly, no municipality has the power or authority to levy, assess or collect taxes. Mastrangelo v. Buckley, 433 Pa. 352, 250 A.2d 447 (1969).
Section 2 of the LTEA, 53 P.S. § 6902, delegates taxing power to various political subdivisions, which includes the Municipality, a township of the first class. Under the LTEA, the Municipality may in its discretion by ordinance or resolution, for general revenue purposes, levy, assess and collect taxes as it shall determine, inter alia, upon persons, transactions and occupations within the limits of the Municipality. Section 302(a.1) of the Home Rule Law, 53 P.S. § 1-302(a.1), provides in pertinent part that:
A municipality which has adopted a home rule charter shall have the power and authority to enact and enforce local tax ordinances upon any subject of taxation granted by the General Assembly to the class of municipality of which it would be a member but for the adoption of a home rule charter at any rate of taxation determined by the governing body.
Section 302(f) of the Home Rule Law, 53 P.S. § 1-302(f), further provides that:
Nothing contained herein shall limit or take away any right of a municipality which adopts a home rule charter from levying any tax which it had the power to levy had it not adopted a home rule charter.
[ 124 Pa. Commw. Page 119]
The Municipality, however, enacted its mercantile tax ordinance pursuant to the Home Rule Law and its Home Rule Charter. See Ordinance 1591 of 1979; Certified Record. This Court, pursuant to the principle that a municipality can levy no taxes unless the power be plainly and unmistakably conferred, finds that a municipality has concurrent authority to impose a mercantile tax under the authority of the Home Rule Law as well as the LTEA. The Municipality can therefore exercise its power to tax under the Home Rule Law. See Municipality of Monroeville v. Bertolo, 84 Pa. Commonwealth Ct. 403, 480 A.2d 1290 (1984), reversed on other grounds sub nom. Cox's v. Municipality of Monroeville, 506 Pa. 167, 484 A.2d 737 (1984);*fn5 Section 302(b) and (c) of the Home Rule Law;*fn6 Section 1 of the Act of August 5, 1932, Ex. Sess., P.L. 45, as amended, 53 P.S. § 15971 (The First Class Cities Act).
Although the District appears to present a novel issue, guidance is provided by this Court's majority and concurring opinions in Bertolo. In Bertolo, this Court acknowledged that a home rule charter municipality may impose a mercantile tax pursuant to the LTEA. However, the home-rule municipality expressly stated that its ordinance was enacted under the authority of the LTEA, thereby subjecting itself to the limitations thereunder. The matter sub judice is distinguishable in that the Municipality expressly stated that its ordinance was enacted under the authority of the Home Rule Law and the Municipality's Home Rule Charter.
[ 124 Pa. Commw. Page 120]
Because the case at bar does not involve two political subdivisions imposing the same tax during the same year under the authority of the LTEA, an outcome different from that of Bertolo is warranted. The District's mercantile tax is thus valid and effective as of July 1, 1987. Hence, the halving and notice requirements are not applicable to the District.
Accordingly, the decision of the trial court at No. 650 C.D. 1988 is reversed. Moreover, since this Court has determined, in light of the particular facts presented here, that the Municipality enacted its mercantile tax under the authority of the Home Rule Law, the District clearly does not have a cause of action against the Municipality. Consequently, the trial court's decision at 649 C.D. 1988 is affirmed.*fn7
And Now, this 9th day of March, 1989, the February 17, 1988 order at No. 650 C.D. 1988 is reversed and the February 17, 1988 order at No. 649 C.D. 1988 is affirmed.
Judge MacPhail did not participate in the decision in this case.
Lower court Order No. 87-10774 affirmed. Lower court Order No. SA 1371-87 reversed.