Opinion
Argued June 10, 1986
September 24, 1986.
Taxation — Community College Act of 1963, Act of August 24, 1963, P.L. 1132 — Public School Code of 1949, Act of March 10, 1949, P.L. 30 — Merged school district — Community college.
1. Section 5210 of the Community College Act of 1963, Act of August 24, 1963, P.L. 1132, read in pari materia with provisions of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, authorizes a merged school district to impose a separate tax on real property within one of its component school districts to fulfill a commitment to a community college made prior to merger.
Argued June 10, 1986, before Judges MacPHAIL and DOYLE, and Senior Judge ROGERS, sitting as a panel of three.
Appeal, No. 1047 C.D. 1985, from the Order of the Court of Common Pleas of Delaware County, in case of Charles Hummer, Jr., and Deborah Hummer, his wife, Edmund Jones and Lynn Jones, his wife, William Rial and Constance Rial, his wife, George Searle and Regina Searle, his wife, and Quentin Weaver and Margueritta Weaver, his wife v. The Board of School Directors of the Wallingford-Swarthmore School District and The Wallingford-Swarthmore School District, No. 83-4412.
Action in equity to enjoin tax levy and collection filed in Court of Common Pleas of Delaware County against school board and school district by taxpayers/residents. Preliminary objections in nature of demurrer filed by board and district. Preliminary objections sustained. Appeal dismissed. TOAL, JR., J. Taxpayers/residents appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Denis M. Dunn, with him, Joseph A. Damico, Jr., Petrikin, Wellman, Damico, Carney Brown, for appellants. David A. Gradwohl, with him, Gary D. Fry, Pelino Lentz, P.C. and Martin R. Lentz, Solicitor, for appellees.
Taxpayers (Appellants), who are residents of the Borough of Swarthmore and within the taxing jurisdiction of The Wallingford-Swarthmore School District (Merged District), appeal from an order of the Court of Common Pleas of Delaware County which sustained the demurrer of the Merged District and its Board of School Directors to the Appellants' complaint in equity. We affirm.
It appears from Appellants' complaint that in July of 1971, the Swarthmore-Rutledge Union School District and the Wallingford School District merged. Prior to the merger, the Swarthmore-Rutledge Union School District had become a local sponsor of the Community College of Delaware County (Community College) and by virtue of that action, became liable for a proportionate share of the capital expenses and operating costs of the Community College. Beginning with its first budget and continuing each year thereafter, the Merged District levied, imposed and collected a tax of 3.3 mills on all real estate property solely in the area comprising the former Swarthmore-Rutledge Union School District to pay the obligations of that former school district to the Community College.
Appellants' complaint avers that the Merged District has no authority to impose this separate tax and requests that the trial court enjoin the Merged District from levying and collecting the tax and that the Merged District be compelled to refund the tax as collected since 1971.
Appellants have briefed the constitutional issue of lack of uniformity of the tax, citing Section 1 of Article VIII of the Constitution of the Commonwealth of Pennsylvania. The trial court declined to address that issue because the complaint did not assert that the tax was unconstitutional. It is noted in the brief of the Merged District that there is no indication in the record that Appellants complied with Pa. R.C.P. No. 235 which requires notice to the Attorney General where a litigant raises the issue of constitutionality of a statute. We hold that the trial court's refusal to address the constitutional issue under these circumstances was proper.
Preliminary objections filed by the Merged District included a demurrer, the equitable defense of laches, a petition raising the matter of jurisdiction based upon the Appellants' failure to exhaust statutory remedies, the defense of the non-joinder of the Community College and the State Board of Education as necessary parties and a motion for a more specific complaint. The trial court's memorandum opinion accompanying its order addressed only the demurrer.
The issue to be resolved in this case is whether the Merged District had the statutory authority to impose a tax for the support of the Community College solely upon real property in the Boroughs of Swarthmore and Rutledge while excluding therefrom real property in other parts of the Merged District. Our research reveals that this is a case of first impression for the appellate courts of this Commonwealth.
Although we fully appreciate the importance and complexity of this case as it draws into focus the relevant provisions of the Community College Act of 1963 (Act), Act of August 24, 1963, P.L. 1132, as amended, 24 P. S. § 5201-5214, repealed by the Act of July 1, 1985, P.L. 103 and the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 1-101-26-2607 and the Supplement thereto, Act of July 8, 1968, P.L. 299, 24 P. S. § 2400.1-2400.10, and particularly Section 10 of the Act, formerly 24 P.S. 24 P. S. § 5210, now 24 P. S. § 19-1909-A and Section 298 of the Code, 24 P. S. § 2-298 and Section 9 of the Supplement, 24 P. S. § 2400.9, we are well satisfied that Judge WILLIAM R. TOAL, JR. has accurately interpreted the relevant statutory provisions and has reached a just and equitable result.
The Act was repealed three and one half months after the trial judge's opinion was filed. Similar provisions are now found in Sections 1901-A — 1913-A of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of July 1, 1985, P.L. 103, 24 P. S. § 19-1901-A — 19-1913-A.
We, accordingly, will affirm on the basis of Judge TOAL's opinion, reported at ___ Pa. D. C.3d (1985).
ORDER
The order of the Court of Common Pleas of Delaware County dated March 13, 1985 and filed to No. 834412 in equity, is affirmed.