563 A.2d 1305 | Pa. Commw. Ct. | 1989
OPINION
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).
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); City of Pittsburgh v. Allegheny Valley Bank, 488 Pa. 544, 412 A.2d 1366 (1980) (involving the banking industry). With this finding of the trial court we
The case of Allegheny County v. Moon Township, 436 Pa. 54, 258 A.2d 630 (1969), has not been overruled by the Supreme Court and to me seems dispositive. In that case Moon Township passed an ordinance providing for a 10% tax on the gross receipts of each commercial parking lot in the township. One of these lots, located at the Greater Pittsburgh International Airport, was owned by Allegheny County but run by a concessionaire. Allegheny County sued, claiming the tax was illegal. The Supreme Court held that the parking lot gross receipts were public property used for public purposes and, under Article VIII, § 2 of the Pennsylvania Constitution and enabling legislation, were tax exempt.
The question remains: Has Allegheny County v. Moon Township been implicitedly overruled by subsequent cases?
In the case of Airway Arms, Inc. v. Moon Area School District, 498 Pa. 286, 446 A.2d 234 (1982), a parking tax under the Local Tax Enabling Act was enacted requiring patrons, as in the present case, to pay a 15% tax of the cost for each parking transaction. The County of Allegheny was not a party to that case nor was the argument made that the tax was assessed against public property used for public purposes. The main thrust of the parking lot operators’ argument was that the tax violated the commerce and due process clauses of the U.S. Constitution. This argument was struck down by the Supreme Court reversing the trial court and this Court which had found the tax unconstitutional. See Airway Arms, Inc. v. Moon Area School District, 59 Pa. Commonwealth Ct. 94, 428 A.2d 1028 (1981).
The latest case in this saga is Moon Area School District v. Garzony, 522 Pa. 178, 560 A.2d 1361 (1989),
The County in the Airway Arms, Inc. case did not raise a question concerning the validity of the tax. Of course, the Commonwealth, not being a party here, has not done so in this case. Nor have the appellants here raised the question of whether they should be required to collect the tax. Indeed, the present case was argued before this Court seventeen days before the Supreme Court decision in Moon Area School District v. Garzony and without the benefit of the decision of the Supreme Court in that case. We are certain that this litigation has not been concluded. We are also of the opinion that the tax cannot be imposed on activities in a facility of the Commonwealth. As Allegheny County v. Moon Township held this to be true for
In view of our disposition of this case we do not address the question advanced by the appellees that the Rafters are “the person[s] in possession and operation” of the rafting activities while the Commonwealth exercises only supervisory and regulatory authority over the Rafters.
This matter was argued before a panel consisting of Judge BARRY, Judge McGINLEY and Senior Judge KALISH. Due to the untimely death of Senior Judge KALISH, the case was submitted on the briefs to President Judge CRUMLISH, Jr., for his consideration as a member of the panel.
ORDER
NOW, September 14, 1989, the order of the Court of Common Pleas of Carbon County, Nos. 88-0850, 88-0877, and 88-0832, is hereby reversed.