22 Pa. Commw. 433 | Pa. Commw. Ct. | 1975
Opinion by
William Dowlin, Carlton Grove, Jr., Herman M. Breuninger, and Barry Hadley (Appellants) appeal a judgment of the Court of Common Pleas for the County of Chester which granted Coatesville Area School District’s (Appellee) motions for summary judgment. These separate appeals were consolidated for argument and disposition. We affirm.
Appellee instituted suit by filing a complaint in assumpsit to collect delinquent occupation taxes
After their preliminary objections were dismissed, Appellants filed an answer wherein new matter was set forth alleging that the tax as levied was illegal and unconstitutional, and was' based on an improper assessment. Appellee filed preliminary objections in the nature of a demurrer to the answer and new matter, which were dismissed by the court. Appellee then filed its answer to new matter and later filed motions for summary judgment. The court, after hearing argument on the motions, granted summary judgment. Appellants then filed this appeal.
The sole question presented for our determination is: Is there no genuine issue as to any material fact so that Appellee is entitled to the summary judgment
Section 2 of The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. §6902 gave to the Appellee the power to levy, assess and collect occupational privilege taxes. The assessments of occupations are made under the authority of The Fourth to Eighth Class County Assessment Law, Act of May 21, 1943, P.L. 571, as amended, 72 P.S. §5453.101, et seq.
Under Pa. R.C.P. 1035(b) a summary judgment may be granted if the moving party shows that there is no genuine issue as to any material fact, and the record, viewed most favorable to the non-moving party, reveals that the moving party is entitled to judgment as a matter of law. Commonwealth v. Transamerica Insurance Company, 12 Pa. Commonwealth Ct. 190, 316 A.2d 85 (1974).
Our review of the record leads us to conclude that Appellants’ averments are not material; therefore, summary judgment was properly granted.
Affirmed.
. In May of 1968, the Appellee adopted an occupation tax resolution imposing an occupation tax on the occupation of residents of the district based on assessments made by the Board of Assessment. In May 1969 this tax was re-enacted. The resolution did not increase the millage, but the assessments were based on an expanded schedule prepared by the Board of Assessments. In May of 1970 the 1968 tax was re-enacted as changed by the resolution of 1969 this time providing for an increase in the millage.
. The ordinances were held constitutional and valid in Campbell v. Coatesville Area School District, 440 Pa. 496, 270 A.2d 385 (1970) and Taylor v. Coatesville Area School District, 2 Pa. Commonwealth Ct. 510, 279 A.2d 90 (1971).
. Rule 1035, Pa. R.C.P. Motion for Summary Judgment reads in pertinent part, as follows:
“ (b) The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
. Pa. Const. Art. 8, §1.
. Campbell v. Coatesville Area School District, 440 Pa. 496, 270 A.2d 385 (1970).
. Taylor v. Coatesville Area School District, 2 Pa. Commonwealth Ct. 510, 279 A.2d 90 (1971).