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ALL PURPOSE VENDING v. CITY PHILADELPHIA AND COUNCIL PHILADELPHIA (07/20/89)

decided: July 20, 1989.

ALL PURPOSE VENDING, INC., A CORP. OF THE COMMONWEALTH OF PA. AND KELLY BROOKS, D/B/A NOVELTY STORE ET AL., APPELLANTS,
v.
THE CITY OF PHILADELPHIA AND COUNCIL OF PHILADELPHIA, APPELLEES. IN ALL PURPOSE VENDING, INC. ET AL., APPELLANTS, V. THE CITY OF PHILADELPHIA, ET AL., APPELLEES



COUNSEL

Lewis H. Robertson, Levy & Robertson Ocean, N.J. and Stephen F. Dryden, Steinberg & Girsh, P.C., Philadelphia, Pa., (Pro Hac Vice Granted), for appellants.

Paul M. Fires, Asst. City Sol., Philadelphia, Pa., with him, Christine T. Bak, Chief Asst. City Sol., Andrew P. Bralow, Chief Dep. City Sol., and Seymour Kurland, City Sol., for appellees.

Crumlish, Jr., President Judge, and Craig, Barry, Colins, Palladino, McGinley and Smith, JJ.

Author: Colins

[ 127 Pa. Commw. Page 417]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting the cross-motion for summary judgment filed by the City of Philadelphia, the Police Commissioner, Mayor and Council of the City of Philadelphia (collectively, City). We affirm.

Each of the appellants*fn1 maintains for profit coin-operated mechanical amusement devices for film or video presentations. In order to comply with Sections 19-902 and 19-903 of the Mechanical Amusement Device Tax Ordinance, Philadelphia Code Chapter 19-900, §§ 19-902 and 19-903,*fn2 (tax or Ordinance), appellants registered their devices annually and paid the attendant tax.*fn3 The Ordinance prohibits the use of devices for which the tax has not been paid or to which a label, disc or tag issued for that device for the current year is not attached. See § 19-902 of the Philadelphia Code.

Until the end of 1982, the Ordinance imposed a $25.00 per device tax. In June of 1982, the Ordinance was amended to increase the tax to $100.00 per device, pertaining to tax due for 1983. The appellants received notice of the increase in late 1982.*fn4 This notification included copies of the City's form entitled: CERTIFICATE OF OWNERSHIP AND TAX RETURN Mechanical Amusement Device Tax. Each

[ 127 Pa. Commw. Page 418]

    of the appellants tendered their completed form for 1983 and the attendant tax, thereby, registering their devices.

Appellants filed a complaint in equity in the trial court on July 18, 1985, alleging that the Ordinance, as applied to them, is unconstitutional. The appellants submitted that the Ordinance impermissibly imposes a tax on their free exercise of rights guaranteed by the First and Fourteenth Amendments to the United States Constitution.*fn5 Claiming that the trial court should exercise its equitable jurisdiction as well as that conferred by 42 U.S.C. § 1983, appellants requested a declaration that the Ordinance, as applied to them, is unconstitutional, an order permanently enjoining the City from enforcing the Ordinance against them, compensatory damages, costs and attorneys fees.

Cross motions for summary judgment were filed by the parties. On October 10, 1986, the trial court entered an order denying appellants' motion. On November 19, 1986, in a separate order, the trial court granted the City's motion. Appellants appeal from the November 19, 1986 order.*fn6

At the outset, we note an internal inconsistency with the trial court's opinion in this matter. After full discussion of the constitutionality of the Ordinance, the trial court opinion declares: "we refuse to assume equity jurisdiction over the case at bar." It is axiomatic that the trial court could not decide the issue if it lacked subject matter jurisdiction. We must conclude, therefore, that that portion of the trial court's opinion discussing the constitutionality of the Ordinance, although instructive, constitutes dicta.

The only issue for review then becomes whether the trial court was correct in declining to assume equity jurisdiction because ...


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