75 Pa. Commw. 238 | Pa. Commw. Ct. | 1983
Opinion by
These cross appeals involve Leo Lynn’s (taxpayer) assertion that the tax system imposed by the County of Lackawanna County Officers, Charles Luger and Robert Pettinato, and the County Commissioners (tax authorities) exceeds by approximately 5 mills the 25 millage maximum set forth in Article III, §302(c) of the Lackawanna County Home Rule Charter (Charter), which provides in part as follows:
The Board of Commissioners shall have ... the following powers:
(c) To levy taxes, assessments, and service charges. The maximum millage allowable under existing procedures shall be 25 mills. Upon imposition of such a tax rate, any millage increase which exceeds 5% of the preceding year’s rate of millage shall be effective only if approved by a referendum of the qualified electors of the county. (Emphasis added.)
Before the Court of Common Pleas of Lackawanna County the taxpayer argued in a petition for a declaratory judgment that the 4 mill assessment on personal property and the 4.2 mill assessment for debt service were both to be included in determining the total existing millage in order to see whether or not the 25 mill limitation was exceeded. The taxing authorities argued to the contrary, and additionally alleged that the above provision of the Charter was unconstitutional insofar as it attempted to restrict the levying of debt service millage.
In 974 C.D. 1982, the taxpayer appeals the trial court’s conclusion that personal property millage was not to be included in the calculation under Article III, §302(c). In 881 C.D. 1982, the tax authorities appeal the trial court’s conclusion that the aforementioned provision of the Charter was constitutional.
In arriving at its conclusion that personal property millage ought not to be included in the calculation of the “maximum millage allowable” under Article III, §302(c) of the Charter, the trial court reasoned:
The nature of the property base is radically different, the class of taxpayers is significantly different.... Including the millage rate on personal property in the total millage rate which purports to be regulated by the Home Rule Charter will lead only to absurd results. For example, it would make very little sense for those who engender the county budget to make any assessment on personal property when one mill of personal property tax would generate only one-seventh (1/7) of the revenue that one mill assessment on real property would generate.
In addition to the patent illogic of lumping the personal property millage together with the real property millage for purposes of limitation by the Home Rule Charter, this Court will take judicial notice that the fundamental question presented to the voters of Lackawanna County when the Home Rule Charter was adopted was whether the authority of the Commissioners to escalate real property taxes should be specifically limited. There can be no doubt that the typical taxpayer-voter who exercised his voting franchise ... was considering the question of the Charter on the annual real estate millage. It is truly unfortunate that the language of the Home Rule Charter does not specify the millage as “millage on real estate,” but no other rational interpretation can be made. (Emphasis in original.)
The taxpayer argues, however, that there is nothing in the record to support a taking of judicial
Concerning the taxpayer’s first argument that the trial court erred in taking judicial notice that “the typical taxpayer voter who exercised his voting franchise ... was considering the question of the Charter on the annual real estate millage,” we agree that the court in so doing recognized matters beyond those which are self-evident or of such common knowledge that no proof of the noted fact need be established by any party. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978); Brown v. Popky, 413 Pa. 236, 196 A.2d 638 (1964); Tilghman v. Commonwealth, 27 Pa. Commonwealth Ct. 484, 366 A.2d 966 (1976), aff'd, 473 Pa. 319, 374 A.2d 535 (1977). Nor do we believe that the facts as noted by the trial court can be characterized as commonly known local historical facts. Commonwealth v. Ball, 277 Pa. 301, 121 A. 191 (1923). Judicial notice of certain adjudicative and legislative facts originally developed as a mechanism whereby matters not reasonably subject to dispute or capable of certain verification could be recognized by the courts thus expediting the litigation involved. See Petro v. Kennedy Township Board of Commissioners, 49 Pa. Commonwealth Ct. 305, 411 A.2d 849 (1980); McCormick, Handbook of the Law of Evidence, §§330-32 (2d. Ed. 1972). However, we have recognized that “[jjudicial knowledge is not the same as judicial notice permitting formal proof to be omitted,” Department of Transportation v. Wolf, 66 Pa. Commonwealth Ct. 334, 337, 444 A.2d 811, 813 (1982),
We believe, therefore, that the trial court “engaged in an exercise of judicial notice unwarranted by the record in this case.” Casper, 481 Pa. at 161, 392 A.2d at 296. Consequently, we must now
The critical language in the aforesaid Charter provision is that “[t]he maximum millage allowable under existing procedures shall be 25 mills,” and the trial court observed that “this language is problematic because there is no specific reference to a millage rate on real property and a millage rate on personal property.” (Emphasis deleted.) We believe, however, that
As to the argument of the taxing authorities that the personal property millage, enabled by Section 1 of the “Personal Property Tax Act,”
Acts of the General Assembly in effect on the effective date of this act that are uniform and applicable throughout the Commonwealth shall remain in effect and shall not be changed or modified by this act....
For the foregoing reasons, we will reverse the trial court’s order and direct that personal property millage be included in the calculation of the total existing millage for purposes of Article III, §302(c) of the Charter.
881 C.D. 1982
The tax authorities argue that the 25 mill limitation of Article III, §302(c) is an unconstitutional restriction on their authority to levy debt service
We believe, as did the trial court, that the general rules that legislative actions are presumed to be constitutional and that the burden rests heavily upon the challenger to show that such actions clearly, palpably and plainly violates the constitution,
Specifically, the tax authorities cite Article I, Section 17 of the Pennsylvania Constitution, which prohibits “any law impairing the obligation of contracts” and Article IX, Section 10 of said Constitution. Article IX, §10 provides in pertinent part that:
Any unit of local government, including municipalities and school districts incurring any indebtedness shall at or before the time of so doing, adopt a covenant which shall be binding upon it so long as any such indebtedness shall remain unpaid to make payments out of its sinking funds or any other of its revenues or funds at such time and in such annual amounts specified in such covenant, as shall be sufficient for the payment of the interest thereon and the principal thereof when due.
The gravamen of the tax authorities’ argument is that the 25 mill limitation in the Charter impairs contracts between them and the bondholders in that the bondholders cannot be held to look to or rely upon special debt service levies for the payment or redemption of the bond obligations. The trial court, however, found that, when the bonds concerned were issued, it was
We hold, therefore, that the tax authorities have failed to carry their burden of proving Article III, §302(c) of the Charter to be constitutionally infirm, and will affirm the trial court in this appeal.
Order in 881 C.D. 1982
And Now, this 27th day of June, 1983, the order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is hereby affirmed.
Order in 974 C.D. 1982
And, Now, this 27th day of June, 1983, the order of the Court of Common Pleas of Lackawanna County
Judges Rogers and Craig dissent in 974 C.D. 1982.
We believe that there is no need for a remand on the issue judicially noted by the trial court in that the court took notice sua sponte after the tax authorities had presented their answer, new matter and briefs concerning the taxpayer’s petition for a declaratory judgment. Thus, the tax authorities were not precluded by the trial court’s action in taking judicial notice from establishing, or led to believe that they need not establish, that the 25 mill limitation in Article III, §302 of the Charter was presented to the taxpayers in the context of only limiting real estate millage. See also footnote 2 infra.
The final report of the Lackawanna County Government Study Commission, which was presented to the electorate before the Charter was adopted, stated that “referendum approval for assessments in excess of 25 mills is a safeguard against excessive taxation and a protection of the citizenry of Lackawanna County.”
(Unofficial popular title) Act of June 17, 1913, P.L. 507, added by the Act of April 18, 1978, P.L. 56, as amended, 72 P.S. §4821.1.
Act of April 13, 1972, as amended, 53 P.S. §l-302(c).
Debt service allows governmental bodies holding tax powers to borrow money by way of the issuance of bonds and to satisfy such bonds by means of assessing debt service millage. Before the trial court the tax authorities argued that debt service millage was not to be considered for purposes of the 25 mill limitation in Article III, §302(c) of the Charter. The trial court held that:
In all prior years, since the adoption of the Home Rule Charter, debt service has been included within the 25 mill limitation.
... [I]f the assessment for debt service millage falls outside of the restrictive perimeters of the Home Rule Charter, there is really no point in having any millage ceiling. This ... would allow the Commissioners to borrow money in excess of the amount which could legally be assessed under the Charter, and assess the taxpayer under the guise of debt service.
Although raised in the “statement of the questions involved” section of the tax authorities’ brief, they concede in their “argument” section that “debt service millage is within the perimeters of the limitation of millage as established in the Charter.”
See e.g., Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273 (1981); County of Lawrence v. Foht, 33 Pa. Commonwealth Ct. 379, 381 A.2d 1348 (1978).
The tax authorities’ alternative argument must fail for the same reasons as their initial argument.
