Opinion
No. 2576 C.D. 2010
07-13-2011
Don Diehl Reconditioning, Appellant v. Commonwealth of Pennsylvania
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Don Diehl Reconditioning (DDR) appeals from the November 1, 2010 order of the Court of Common Pleas of Montgomery County (trial court) imposing judgment of sentence following trial on a summary appeal from a citation issued by Lower Providence Township (Township) for failure to pay a business license fee. Appellant essentially raises two issues for this Court's review: (1) whether DDR is entitled to an exemption, and (2) whether the title of Chapter 95 of the Lower Providence Township Code (Code) can be changed. For reasons that follow, we affirm the trial court's order.
DDR is represented in this appeal by its owner/operator Diehl, a non-attorney. DDR's brief, although lengthy, fails to raise any cognizable issues or arguments other than the issues listed, which, arguably, are cognizable.
Donald Diehl (Diehl) has operated DDR, an automobile refurbishing business, in the Township since 2003. In accordance with Section 95-4 of the Code, which became effective January 1, 2006, Diehl submitted an application on behalf of DDR for a business license in DDR's name on February 28, 2006, with DDR paying the requisite annual fee. DDR paid the annual fee again in 2007 and in 2008. DDR failed to make a payment in 2009. As a result of its non-payment, DDR received a citation from the Township. DDR appealed the citation to the Magisterial District Court. On May 5, 2010, DDR was found guilty for non-payment of its business license fee by the Magisterial District Judge. DDR appealed to the trial court, and on November 1, 2010, the trial court found DDR guilty of failing to make a timely payment of its business license fee. DDR appealed to this Court.
On May 10, 2010, DDR made payment for 2009 and 2010.
"This Court's review of a trial court's determination on appeal from a summary conviction is limited to whether there has been an error of law or whether competent evidence supports the trial court's findings." Commonwealth v. Nicely, 988 A.2d 799, 803 n.3 (Pa. Cmwlth. 2010) (quotation marks omitted).
DDR argues it is entitled to an exemption from the business license fee. However, as stated, Diehl obtained a business license on behalf, and in the name, of DDR, and DDR did not submit a Business License Request For Exemption Form. Diehl did submit said request form in his own name, as an individual, expressly stating as his basis for requesting an exemption: "As an individual Pennsylvania citizen I do not need a business license to provide for my own by working with my hands in Pennsylvania." Reproduced Record (R.R.) at 48 (emphasis added). Notwithstanding, there is no indication that DDR took any action to cancel its business license, or that it ceased doing business in the Township.
While we recognize that the Township's Code provides for exemptions, Section 95-9 of the Code specifically imposes the burden "upon any person, firm or corporation claiming an exemption from the payment of the [business license] fee imposed hereby to convince the collector of entitlement to such exemption." R.R. at 4 (emphasis added). As DDR did not submit a request for exemption, nor otherwise state a basis of entitlement to said exemption, it is not entitled to exemption. Therefore, the trial court did not err by imposing judgment of sentence on the citation at issue for failure to pay the requisite business license fee.
DDR next argues that the title of Chapter 95 of the Code should be changed. Section 95-1 of the Code specifically provides that Chapter 95 "shall be known as the 'Lower Providence Township Business License Fee Ordinance.'" R.R. at 2 (emphasis added). DDR contends the title should refer to a tax, as opposed to a license, because a license grants permission to do something otherwise unlawful, while a tax creates revenue for the government. We note that, apart from any constitutional issues, the issue of the appropriateness of statutory titles is not within this Court's scope of review. Further, DDR is simply wrong as a matter of law.
A license fee is a sum assessed for the granting of a privilege. In most instances, where a license is granted the City invariably incurs expense such as the cost of registration and inspection; it is only proper that the one who seeks and receives a license should bear this expense. To defray the cost of a license a fee is charged to the licensee; however, this fee must be commensurate with the expense incurred by the City in connection with the issuance and supervision of the license or privilege.Thompson v. City of Altoona Code Appeals Bd., 934 A.2d 130, 133 (Pa. Cmwlth. 2007) (quoting Mastrangelo v. Buckley, 433 Pa. 352, 385-86, 250 A.2d 447, 464 (1969)).
A license fee is distinguishable from a tax which is a revenue producing measure characterized by the production of a high proportion of income relative to the costs of collection and supervision. Thus, if a license fee collects more than an amount commensurate with the expense of administering the license, it would become a tax revenue and cease to be a valid license fee. The party challenging a license fee has the burden of proving that the fee is
unreasonable. All doubt must be resolved in favor of the reasonableness of the fee, since the municipality must be given reasonable latitude in anticipating the expense of enforcing the ordinance.Thompson, 934 A.2d at 133. (citations omitted). Here, Section 95-2 of the Code provides that the purpose of Chapter 95 is "to establish a business license fee program in order to protect the health, safety, and welfare of the community whereby the Township will conduct annual inspection of all businesses. To advance this objective, it has hereby created a business license fee payable to the Township annually." R.R. at 2. Clearly the fee imposed falls within the definition of a license fee. As DDR has not produced any evidence regarding whether the amount of the fee is commensurate with the expense of administering the license, it is presumed reasonable. Accordingly, DDR is required to pay said annual fee, at least until the business is no longer operating within the Township.
The actual amount of the license fee is $100.00.
For all of the above reasons, the order of the trial court is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge Judge Simpson concurs in the result only.
ORDER
AND NOW, this 13th day of July, 2011, the November 1, 2010 order of the Court of Common Pleas of Montgomery County is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge