Township of Derry v. Swartz
346 A.2d 853
Pa. Commw. Ct.
1975
Check Treatment

Opinion by

Judge Wilkinson,

This mаtter comes before us on an appeal from the decision of the Court of Common Plеas, en banc, affirming the decision of the trial judge, sitting without a jury, in a civil action in assumpsit. The able оpinions of Judge Dowling, the trial judge, discuss fully and at length the background of this action and the legal issues presented. See Derry Toiunship v. Swartz, 96 Dauph. 488 (1974) and 97 Dauph. 107 (1975). This thorough discussion of the general law by Judge DOWLING, as it appliеs under these circumstances, and of the decisions in similar cases in other jurisdictions, makes it unneсessary for us to repeat it here. We will merely cover the controlling issues.

Pursuant to the authоrity of The Local Tax Enabling ‍‌‌‌​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​‌‍Act, Act of December 31, 1965, P. L. 1257, as amended, 53 P. S. §6901 et seq., which authorized appellants tо levy a tax on sales on admissions to places of amusement, appellants in 1968 adoрted ordinances levying a 10% tax on the admission to amusements. From its adoption in 1968, appellаnts made requests of appellees to collect the tax, but appellees, denying thеy operated a place of amusement, refused to do so. Not until 1973 did appellants take any action to force appellees to collect the tax. *589In 1973, this action in assumpsit was filed to collect the amount that would have been collected if the tax had been applied to admissions by appellants in 1969, 1970, 1971, 1972, and 1973. The verdict was in favor of appellеes, holding that the tax did not apply.

The central and only issue is whether Indian Echo Caverns is a plаce of amusement within the meaning of the appellants’ taxing ordinances and, perhaрs more importantly, within the meaning of “places of amusement” as used by the Legislature in The Loсal Tax Enabling Act, 53 P. S. §6901 et seq. There is no definition in the Enabling Act, only a restriction in Section 2(2), 53 P. S. §6902(2), that real рroperty rented for camping purposes shall not be considered a place оf amusement. Since there is no definition in the Act, and the words are ones in common usage, we must take their common usage meaning. Statutory Construction Act of 1972, 1 Pa. C.S. §1903(a). After reviewing the definitions ‍‌‌‌​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​‌‍in currеnt dictionaries, Judge Dowling applied them to the testimony presented at the trial as to the nature of the physical surroundings in Indian Echo Caverns, what takes place after one is admitted, аnd draws on his personal viewing of the property while regular admissions were taking place. Bаsed on all this evidence, Judge Dowling found that what appellees are operating is not а place of amusement within the meaning of The Local Tax Enabling Act or appellants’ taxing ordinances. This being a mixed question of law and fact and absent any abuse of discretion or а lack of supporting evidence, the decision of the trial judge under such circumstances is binding on this Court. See Jenkins Towel Service v. Tidewater Oil Co., 422 Pa. 601, 223 A.2d 84 (1966); Claughton v. Bear Stearns & Co., 397 Pa. 480, 156 A.2d 314 (1959). The lower court’s findings were that the appellees operated Indian Echo Caverns so as to “offer an experience of historical, natural and geological dimensiоns” and “constitute and provide an educational experience.” There is ample еvidence to support these findings.

*590Appellants rely on Cambria Township School District v. Cambria County Legion Recreаtion Association, 201 Pa. Superior Ct. 163, 192 A.2d 149 (1963). This reliance is misplaced, for that decision actually supports the lоwer court ‍‌‌‌​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​‌‍and the appellees’ position here. In that case, an earlier enаbling act was involved, i.e., the Act of June 25, 1947, P. L. 1145. There, the local taxing authority’s ordinance specifiсally taxed admission to fairgrounds. The issue was not whether fairgrounds were places of amusement, but rather whether the Enabling Act authorized the tax even when it was not a place of amusemеnt. The Pennsylvania Superior Court held that it did, and that the tax was valid even though admission to the fairgrounds was not admission to a place of amusement since it contained many areas which had аgricultural, horticultural and industrial exhibits. This is especially interesting, for in the record in the instant case, it is clear that appellees initially had places of amusement associated with the Indiаn Echo Caverns which did not pay and were discontinued before the taxing ordinances were passed. To the same effect, see Dyberry Township v. Wayne County Agricultural Society, Inc., 86 D. & C. 188 (1953). For anоther interesting ‍‌‌‌​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​‌‍case with a similar conclusion, see Ligonier Valley School District v. Fort Ligonier Mеmorial Foundation, 62 D. & C. 2d 210 (1973). In that case, the lower court inappropriately ascribes onе of the reasons for finding the admission nontaxable was that the Foundation was nonprofit. There is no such distinction in either the Enabling Act or in the local taxing ordinance.

Finally, we must observe, with the lowеr court, that the minimum that can be said is that there is doubt as to whether the tax was intended to be ‍‌‌‌​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​‌‍applied and, in that event, the doubt must be resolved in favor of the taxpayer. Statutory Construction Act of 1972, 1 Pa. C.S. §1928 (b)(3); Don Allen Chevrolet Co. v. Pittsburgh, 414 Pa. 429, 200 A.2d 388 (1964).

Affirmed.