Appeal from PETITIONER FOR PERMISSION TO APPEAL: Common Pleas Court, Carbon County; Honorable John P. Lavelle, Judge.
Laurence W. Dague, Shumaker Williams, P.C., Harrisburg, for appellants.
Daniel A. Miscavige, Mylotte, David & Fitzpatrick, Hazleton, for Weatherly Area School Dist.
Jane F. Engler, Jim Thorpe, for Jim Thorpe Area School Dist., for appellee.
James R. Nanovic, Jim Thorpe, for Tp. of Lehigh.
Crumlish, Jr., President Judge, and Barry and McGinley, JJ.
[ 128 Pa. Commw. Page 542]
Whitewater Challengers, Incorporated, and Pocono Whitewater Limited (Rafters) appeal from an order of the Court of Common Pleas of Carbon County, which held the Rafters liable for the collection and remittance of an amusement tax imposed by Weatherly School District, Township of Lehigh, and Jim Thorpe Area School District (appellees).
[ 128 Pa. Commw. Page 543]
The parties stipulated that the issue of Rafters' liability for the taxes be bifurcated from the issue of damages and submitted their case on the issue of liability to the trial court on a stipulated set of facts and exhibits. The trial court found that Lehigh Gorge Park is a state park maintained and operated by the Department of Environmental Resources (DER), Bureau of State Parks. The Lehigh River runs through this park. The Rafters are engaged in the business of offering whitewater rafting equipment rentals, guided tours, and instructions on whitewater rafting on the Lehigh River within the state park. The appellees passed resolutions which imposed an amusement tax on admissions of patrons to places of amusement that are within the limits of the school district or township. The amusement tax was a certain percentage of the admission fee charged by the Rafters. The resolutions placed a duty upon the owner of the amusement to collect the tax. The Rafters operated their business pursuant to concession license agreements granted by DER.
The patrons of the rafting activities assemble at the campground of the Rafters, and are then transported by the Rafters to the point of embarkation on the Lehigh River, located within the state park. The patrons are then guided down the river to the point of debarkation within the park, either in the Borough of Jim Thorpe or Lehigh Township.
The Rafters challenged the tax first of all, that on the ground that under Section 3 of the Local Tax Enabling Act, 53 P.S. § 6903, the imposition of a statutory license fee upon the Rafters by the Pennsylvania Legislature automatically vacated any application of plaintiffs' amusement taxes to the rafting activities. The trial court held that whitewater rafting involved neither total preemption of a field nor an expressed statutory prohibition of local taxing authority. Citing Commonwealth of Pennsylvania v. Wilsbach Distributors, 513 Pa. 215, 519 A.2d 397 (1986) (involving the liquor industry); ...