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Barrel of Monkeys, LLC, D/B/A v. Allegheny County

February 8, 2012

BARREL OF MONKEYS, LLC, D/B/A HARRIS GRILL; LAWRENCEVILLE BREWERY, INC., A PENNSYLVANIA BUSINESS CORPORATION T/D/B/A THE CHURCH BREW WORKS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND FRIENDS AGAINST COUNTERPRODUCTIVE TAXATION, INC., A PENNSYLVANIA NOT-FOR-PROFIT CORPORATION, APPELLANTS
v.
ALLEGHENY COUNTY



The opinion of the court was delivered by: Robert Simpson, Judge

Argued: November 14, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge*fn1 HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge

OPINION

BY JUDGE SIMPSON

In this appeal from the Court of Common Pleas of Allegheny County (trial court), we consider the validity of the county ordinance known as the "Drink Tax," Ordinance No. 54-07-OR/3548-07. Specifically, the Drink Tax is challenged on three bases: the Drink Tax rests solely on a state statute, Act 44 of 2007, 53 Pa. C.S. §8602, that violates the "single subject" rule of the Pennsylvania Constitution; the Drink Tax violates the uniformity clause of the Pennsylvania Constitution and the equal protection clause of the United States Constitution; and, the Drink Tax depended for its passage on a vote by a member of County Council who was ineligible to vote consequent to the conflict-of-interest provisions of the County Administrative Code. After careful review, we conclude that the Drink Tax does not violate the constitutional provisions in question, and the conflict-of-interest provisions of the County Administrative Code do not empower courts to void the member‟s vote. Thus, we affirm.

I. Background

This appeal comes to us after the trial court considered the parties‟ cross-motions for summary judgment. The trial court granted Allegheny County‟s motion for summary judgment and denied the motion of the named Plaintiffs/Appellants. Because no party questions the underlying facts, we rely on the background information set forth in the trial court‟s opinions.

In 2007, the General Assembly passed Act 44 of 2007, which, among other things, authorized a county of the second class, such as Allegheny County, to obtain support for transit systems by imposing a tax on the sale at retail of liquor and malt and brewed beverages within the county. 53 Pa. C.S. §8602. As will be discussed later, such a taxing ordinance was to be modeled on the act known as the First Class School District Liquor Sales Tax Act of 1971.*fn2 Id.

In response to this statutory authorization, Allegheny County Council passed the Drink Tax on December 4, 2007. Section 5-808.01(B) of the Allegheny County Administrative Code requires an affirmative vote of at least 2/3 of the seated members of County Council with respect to any ordinance which implements a new tax. County Council was comprised of 15 members, all of whom were seated at the time of the vote on the Drink Tax. Thus, implementation of the Drink Tax required 10 affirmative votes. The vote for the Drink Tax was 10 to four (with one abstention). Included among the County Council persons voting affirmatively was Dr. Charles Martoni, who was also a director of the ordinance‟s financial beneficiary, the Port Authority of Allegheny County. Without Dr. Martoni‟s vote the Drink Tax lacked the required affirmative votes.

Shortly thereafter, the named Plaintiffs/Appellants*fn3 brought suit on their own behalf and on behalf of all other liquor-licensed restaurants in Allegheny County subject to the Drink Tax. They asserted that the Drink Tax‟s enabling legislation, Act 44 of 2007, was invalid because it violated the Pennsylvania Constitution "single subject" rule. Also, they asserted that because the Drink Tax burdened sales of alcoholic beverages at restaurants but not sales at similarly situated state-owned liquor stores or beer distributors, the Drink Tax violated the tax uniformity protection of the Pennsylvania Constitution and the equal protection provisions of the United States Constitution. Finally, they asserted the Drink Tax was unlawfully enacted because Dr. Martoni had a conflict of interest which precluded his vote under the Accountability, Conduct and Ethics Code of Allegheny County, Article 1013 of the County Administrative Code (County Ethics Code).

In July 2008, in response to the County‟s preliminary objections, the trial court entered an order striking off the "single subject" challenge to the Drink Tax ordinance‟s enabling legislation. No opinion accompanied the order.

The parties agreed that the matter could be resolved by summary judgment, and a consent order was entered directing the parties to file cross-motions. By order filed March 8, 2011, the trial court held the Drink Tax valid. It therefore granted the County‟s motion for summary judgment and denied the Plaintiffs/Appellants‟ motion, thereby disposing of all remaining claims.

Plaintiffs/Appellants filed a timely notice of appeal from the March 8, 2011 order. In a subsequently filed opinion, the trial court explained why it rejected the remaining uniformity/equal protection challenge and the County Ethics Code challenge.

Shortly after the trial court‟s opinion was rendered, on June 1, 2011, Plaintiff/Appellants filed an "Amended Notice of Appeal." They sought to clarify their intention to also appeal the earlier order sustaining preliminary objections to the "single subject" challenge to the enabling legislation.

Thereafter, the trial court filed a supplemental opinion addressing the "single subject" rule. Procedurally, the trial court questioned the ability of the amended notice of appeal to preserve an issue disposed of in an order not described in the original, timely notice of appeal. Substantively, the trial court determined the enabling state legislation, Act 44 of 2007, did not violate the "single subject" rule because the tax authorization to financially support transit systems was germane to the unifying subject of the legislation, transportation.

II. Issues

On appeal to this Court, Plaintiffs/Appellants raise the same three substantive issues that were set forth in their pleadings before the trial court. In addition, the County argues that the "single subject" challenge is waived because of the way it was handled during the appeal process.

Our scope of review of a trial court‟s order sustaining a preliminary objection or granting summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion. Geneva House, Inc. v. Minsec of Scranton, Inc., 25 A.3d 427 (Pa. Cmwlth. 2011); Baker v. Central Cambria Sch. Dist., 24 A.3d 488 (Pa. Cmwlth. 2011). When considering preliminary objections, the appellate court must accept all well-pled facts and reasonable inferences therefrom as true. Baker. Moreover, summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that a moving party is entitled to judgment as a matter of law. Geneva House, Inc. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Id. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Id.

Our law provides a strong presumption that legislative enactments, as well as the manner in which legislation is enacted, do not violate our Constitution. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 292, 877 A.2d 383, 393 (2005) (PAGE). A party that challenges the constitutionality of a statute bears "a very heavy burden of persuasion" to overcome this presumption. Id. "Accordingly, a statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution.

All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster." Id. (Emphasis in original.) (Citations omitted).

III. ...


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