author: HERRON, J.,

text:
    In re George & Alexander McFadden Testamentary Trusts

      W. Donald Sparks, II, for objectant Lisa McFadden Melas.

      William T. Hangley, for Winfield Jones as guardian of the property of Alexander and Wilhelmina McFadden.

      John Guernsey, for John McFadden, Co-trustee.

      James Mannion, for BNY Mellon, N.A., Co-trustee.

      Ryan Gager, for accountants of the trusts.
    April 16, 2013
   HERRON, J.,

Introduction

The objections of Elizabeth McFadden Melas to the accounts filed for the trusts established by George McFadden and Alexander McFadden raise the issue of whether litigation costs incurred by the trustees in their successful defense of a surcharge action brought by two of three beneficiaries should be charged to the trusts as a whole or apportioned solely to the two beneficiaries who initiated that surcharge action. As set forth below, those litigation costs should be borne by the trust as a whole for three reasons. First, the action against the trustees was not limited to surcharge but sought to benefit the trusts as a whole by seeking a division to benefit the differing needs of each beneficiary and by seeking appointment of a third trustee in accordance with the settlors’ intent. Second, the litigation was prolonged and complicated by the participation of all three beneficiaries. Third, the surcharge action related to actions that occurred prior to the division of the trusts and thus, if successful, would have benefited all the beneficiaries. As a matter of equity, the trusts as a whole should bear those attorney fees and litigations costs.

Factual Background

George McFadden (“George”) died unexpectedly in a plane crash on April 22, 2008. Prior to his death, George had been the sole income beneficiary and one of three trustees for trusts that had been established under the wills of his father, Alexander McFadden, and his grandfather, George McFadden. With George’s death, the income beneficiaries of these two trusts changed to his three children: Elizabeth McFadden Melas (“Lisa”), Alexander (“Alex”) and Wilhelmina (“Willa”). In 2008, Lisa was the adult daughter from George’s first marriage, while Willa and Alex were his minor children from his second marriage to Carol (“Carol”) McFadden.

Prolonged, intense and highly sophisticated litigation subsequently broke out over the administration of these two trusts. In May 2009, Carol McFadden filed a petition as parent and natural guardian of Willa and Alex seeking to divide the George and Alexander Trusts into three separate trusts for the respective benefit of each of the beneficiaries. Her petition also sought an accounting and the removal of the two surviving trustees, BNY Mellon, N.A. and John McFadden (“John”). It proposed that Carol and David Hamilton be named successor trustees of the divided trusts for Willa and Alex. Finally, it sought to surcharge the trustees John and Mellon for losses suffered by both trusts after the September 2008 stock market crisis and to recover any trustee fees they had charged.

Although the wills of both George McFadden and Alexander McFadden provided that “there shall be at all times a corporate trustee and two individual trustees,” the two surviving trustees, Mellon and John failed to appoint a third trustee prior to the filing of the objectants’ petition or the trustee account. On June 3, 2009, the two surviving trustees filed an account in Philadelphia for the Alexander Trust. That account covered the period May 2, 2006 through February 11, 2009. In Delaware County, an account was filed for the George Trust covering the broader period of September 24, 1985 to June 4, 2009. By decree dated June 15, 2009, the Delaware County McFadden petition and accounting were consolidated with the Philadelphia Alexander Trust action to the extent that they raised similar issues. Willa and Alex filed objections to these first accountings. In March 2010, the trustees filed amended accounts for both the George and the Alexander Trusts. Once again, Willa and Alex filed objections to those amended accounts on June 4, 2010.

Hearings were scheduled to consider the objections. At that first hearing on November 2, 2010, the parties stipulated that the issue as to all attorney fees would be deferred until the complex issues related to surcharge and removal of the trustees had been resolved. 11/2/10 a.m. N.T. at 11 (Mannion).

Shortly into the hearings, this court issued a decree that the George Trust and the Alexander Trust were divided as of November 10, 2010 into three separate trusts for the benefit of each of the individual beneficiaries. The Lisa and Willa Trusts were each to . receive one-fourth of the undivided trust assets, while the Alex Trust was to receive one-half of those assets as set forth in the wills that had established those trusts. Winfield Jones was named as the third trustee of the trusts for the benefit of Willa or Alexander.

Carol McFadden, as natural guardian of her children, had forcefully called for the division of the trusts from the very beginning of the litigation. Lisa, in contrast, initially opposed division of the trusts. In her July 31, 2009 amended answer to the petition to divide the trusts, Lisa argued:

Respondent opposes the division of the ABM Trust to the extent that Carol McFadden or David Hamilton are appointed as successor trustee of any of the resulting trusts due to Carol McFadden’s many conflicts of interest with the A.B.M. Trust. Upon information and belief, the trustees of the A.B.M. Trust intend to exercise their rights to adjust or to convert the A.B.M. Trust to a unitrust pursuant to Pennsylvania’s Principal and Income Act. It is believed that if Carol is appointed trustee of resulting trusts for Wilhelmina and Alexander, due to conflicts of interest and lack of investment expertise there is a substantial risk that the trust assets will be depleted or improperly managed. As trustee, she would have standing to petition the court for a unitrust distribution which is larger than the 4% statutory default percentage. Respondent and her children are contingent beneficiaries of Wilhelmina’s and Alex’s share of the A.B.M. Trust, and therefore have an interest in precluding the dissipation of trust assets.

As the hearings further progressed, another reason emerged for Lisa’s opposition to dividing the trusts: Lisa did not want her trust to bear alone litigation costs related to a dispute over the exercise of options that George had granted to the trusts as part of loan agreements he had made with the trusts. Lisa’s position on dividing the trusts was fluid and contradictory. In her more recent filings, for instance, she asserts that before any of the hearings were held she had proposed a stipulation to divide the trusts so that her trusts could stay outside the litigation. This stipulation was rendered moot, she maintains, after the guardian ad litem filed objections in October 2009 to a division of the trusts.

Shortly before the last day of hearings in March 2011, Willa and Alex McFadden, through their guardian Winfield Jones, filed an amended petition (“amended petition”) regarding the George and Alexander Trusts. In that amended petition, Willa and Alex announced their intention to “prosecute their claims, , and seek relief, only with respect to the Wilhelmina and Alexander Trusts...” In seeking to preclude Lisa from benefiting from any surcharge they might obtain, Willa and Alex noted that the Lisa Trusts “have opposed and sought dismissal of these proceedings....”

After consideration of the hearings, evidence and numerous filings in this matter, this court refused to impose a surcharge on either John McFadden or Mellon as trustees because the petitioners failed to meet their burden of proving that the trustees’ alleged breach of fiduciary duty caused economic loss to the trust. These two trustees were nonetheless removed from the trusts for the benefit of Willa and Alex for the various reasons set forth in the November 9,2011 adjudication. The trustees had failed to appoint a third trustee despite the clear language in both wills that there should be three trustees at all times. The trustees had abused their discretion when they cut off the monthly $30,000 distributions to the beneficiaries’ UTMA Accounts after their mother refused to supply the trustees with her personal income tax returns. Finally, the trustees breached their duty in failing to raise the termination date of the George Trust as a question for adjudication despite the possibility that date might be as soon as 2012 which might have affected key investment decisions. In reaching these legal conclusions, however, the accounts that had been filed could not be approved because the issue of attorney fees, costs and management fees had been deferred.

After the adjudication issued, an appeal was taken and then withdrawn. The trustees thereafter filed the following amended accounts in July 2012 to frame the remaining legal fees and costs issues:

Undivided Trusts:
George Trust and Alexander Trust
Second and Final Account of the Trust Under the Will of George McFadden for the benefit of Wilhelmina, Elizabeth and Alexander McFadden for the period 11/1/2010 to 3/18/2011 as stated by BNY Mellon, N.A. and John McFadden, Co-Trustees (filed 7/13/12)
Second and Final Account for the Trust under the Will of Alexander McFadden, Deceased, for the Benefit of Elizabeth McFadden, Wilhelmina McFadden and Alexander McFadden for the period 11/1/2010 through 3/18/2011 as stated by John McFadden and BYN Mellon, N.A., Co-Trustees (filed 7/13/12)
Divided Trusts:
Accounts for the George Trusts
First Account of the Trust Under the Will of George McFadden, Deceased for the Benefit of Alexander McFadden for the period 12/23/2010 to 6/21/2012 as stated by Winfield Jones, John McFadden and BNY Mellon, N.A., Co-Trustees (filed 7/13/12)
First Account of the Trust Under the Will of George McFadden, Deceased, for the benefit of Wilhelmina McFadden for the period 12/23/2010 through 6/21/2012 as stated by Winfield Jones, John McFadden and BNY Mellon, N.A., Co-Trustees (filed 7/13/12)
First Account of the Trust under the Will of George McFadden, Deceased, for the benefit of Elizabeth C. M. Melas for the period 12/23/2010 through 6/21/2012 as stated by George Melas, John McFadden, and BNY Mellon, N.A., Co-Trustees (filed 7/13/12)
Accounts for the Alexander Trusts
First Account of the Trust Under the Will of Alexander McFadden, Deceased, for the Benefit of Alexander O. McFadden for the period 12/24/2010 to 6/21/2012 as stated by Winfield Jones, John McFadden and BNY Mellon, N.A., Co-Trustees (filed 7/13/12)
Income Accumulation Account of the Trust Under the Will of Alexander McFadden, Deceased, for the benefit of Alexander O. McFadden for the period 11/1/2010 through 2/27/2012 as stated by John McFadden and BNY Mellon, N.A. Co-Trustees (filed 7/13/12)
First Account of the Trust under the Will of Alexander McFadden, Deceased, for the benefit of Wilhelmina McFadden for the period 12/23/10 through 6/21/2012 as stated by Winfield P. Jones, John McFadden and BNY Mellon, N.A., Co-Trustees (filed 7/13/12)
First Account of the Trust under the Will of Alexander McFadden, Deceased, for the benefit of Elizabeth McFadden for the period 12/23/2010 through 6/21/2012 as stated by George Melas, John McFadden and BNY Mellon, N.A., Co-Trustees (filed 7/13/12)

These accounts evoked objections from all of the beneficiaries: Willa McFadden, Alex McFadden and Lisa McFadden as to the attorney fees and costs incurred by Mellon and John McFadden as trustees in the surcharge litigation. Willa and Alex objected to the legal fees and expenses that had been advanced to John McFadden. They also objected to the allocation of the guardian ad litem fees of Mary Jane Barrett, because none of her fees had been allocated to the Lisa trusts. Instead, they maintained, the proper allocation should have been 50% from Alexander’s trusts; 25% from Wilhelmina’s trusts and 25% from Lisa’s trusts. After negotiations, however, Willa and Alex reached a settlement with Mellon and agreed to withdraw their “standing objections” to the legal fees and expenses that had been advanced to Mellon.

Lisa filed very detailed objections to all the legal fees and costs that had been charged against her trusts. These charges were inequitable, Lisa maintained, because from the earliest stages of the dispute she had sought a stipulation to divide the trusts so that her shares of the George and Alexander Trusts would not have to participate in the litigation initiated by Willa and Alex. In her objections, Lisa maintains that she had wanted neither to share in any surcharge award obtained against the trustees nor to bear any of the attendant legal fees. More specifically, she argued, “none of the relief sought in the combined amended petition could inure to the benefit of the Lisa Trust.

John McFadden subsequently filed a petition for approval of the attorney fees he had incurred in his surcharge defense, and the other parties filed briefs in support of their various positions. An oral argument was held on January 2013. At that hearing, a January 2013 letter from counsel for Willa and Alex was acknowledged for stating that they had reached a settlement with John McFadden as to his litigation fees. The sole issue remaining, therefore, is the allocation of legal fees and costs to Lisa’s trusts. In her view, those litigation costs were wrongly charged to her trusts and should have been charged, instead, to the trusts for the benefit of Willa and Alex.

Legal Analysis

It is undisputed that trustees who wage a successful defense against a surcharge action are entitled to recover their legal fees and costs out of the estate or trust. In re McGillick Foundation, 537 Pa. 194, 204, 642 A.2d 467, 472 (1994), quoting Wormley Estate, 359 Pa. 295, 300-01, 59 A.2d 98, 100 (1948). See also Estate of Browarsky, 437 Pa. 282, 285, 263 A.2d 365, 366 (1970). Lisa does not challenge the reasonableness of the attorney fees and costs incurred by the trustees in their defense of the surcharge action even though those litigations costs “amounted to nearly $1,950,000.” What she does object to is the imposition of any of these litigation costs on her divided Lisa trusts. Moreover, since certain litigation expenses were paid out of the George and Alexander trusts before they were divided, Lisa objects to the amount distributed to her divided trusts from the George and Alexander trusts to the extent that was reduced by the litigation costs. Lisa also maintains that her trusts should not bear any of the fees charged by the guardian ad litem and trustee ad litem who was appointed by decree dated August 26, 2009 to represent Willa, Alex, and “all unborn or unascertained persons who may be interested in the income or principal of the trust” under the Will of Alexander McFadden f/b/o George McFadden. Each of these assertions will be addressed separately.

I. The Lisa Trust Should Bear Its Proportionate Share of the Litigation Expenses Incurred by the Trustees in their Defense of the Surcharge Action Because of Her Active Participation in the Litigation and the Benefits Derived to the Trusts as a Whole

A. From the Beginning of the Controversy Over the Accounts for the George and Alexander Trusts, Lisa Took Clearly Defined Adversarial Positions

A continuing refrain in Lisa’s arguments against the imposition of the trustees’ litigation expenses on her trusts is that she was an innocent bystander to the litigation who early on sought to distance herself from the fray-and the resulting litigation expenses. This argument, however, is refuted by the facts.

Lisa asserts, for instance, that she did not join in the initial petitions seeking to surcharge and remove the trustees because she did not believe the trustees had committed a surchargeable breach and she did not stand to benefit from the surcharge claim. The surcharge claim, however, was only one aspect of the petition filed on behalf of Willa and Alex. Another key element of their petition called for division of the George and Alexander Trusts into three separate trusts to represent the differing interests or needs of the three new beneficiaries. The petition also called for the appointment of third trustee to succeed George.

Lisa vehemently opposed this proposed division of the George and Alexander Trusts in her early responses to this proposal. She stated, for instance, that she “and her children would be harmed by the division of the trust to the extent that Carol or David Hamilton are appointed as successor trustee of any of the resulting trusts due to Carol’s many conflicts of interest with the A.B.M. Trust.” More specifically, Lisa feared that trust assets would be dissipated if the trusts were divided:

It is believed that if Carol is appointed trustee of resulting trusts for Wilhelmina and Alexander, due to conflicts of interest and lack of investment expertise there is a substantial risk that the trust assets will be depleted or improperly managed. As trustee she would have standing to petition the court for a unitrust distribution which is larger than the 4% statutory default percentage. Respondent and her children are contingent beneficiaries of Wilhelmina’s and Alexander’s share of the A.B.M. Trust, and therefore have an interest in precluding the dissipation of trust assets.

Another reason why Lisa in July 2009 opposed division of the trusts was its potential effect on litigation that had broken out over the options her father, George, had given to the Alexander Trust in exchange for loans from the trust:

Respondent opposes the division of the ABM Trust for the following reasons: Upon information and belief, the trustees of the ABM Trust entered into a loan transaction with George McFadden, the then co-trustee and life tenant of the ABM Trust (“George”) on or about November 2006 wherein the ABM Trust loaned George $1,500,000 to enable George to purchase shares of the stock of The Crescent Company, Inc. a Delaware corporation. As part of the loan transaction, and pursuant to an Option Agreement, The Crescent Company, Inc. granted ABM Trust an option to purchase 500.5 shares of stock of the company at a deep discount.... After George died, upon information and belief, George’s interest in The Crescent Company, Inc., as sole shareholder thereof passed to his wife, Carol. It is believed that Carol will oppose the exercise of the options in the same manner as she has opposed the exercise of substantially identical options in a different company held in another trust for George’s benefit of which George was then the life tenant and co-trustee. Such other options were acquired under substantially similar circumstances as the options held in the ABM Trust. Because the options are held in the ABM Trust, Respondent opposes the division of the ABM Trust to the extent that such options may be ratably allocated among each of the resulting trusts for Wilhelmina and Alexander. If such options are so allocated, it is believed that the trustees of such trusts would not support the anticipated litigation to compel the exercise of the options, and that Lisa would have to bear the risk and cost of such litigation while only being entitled to one-quarter of the benefit should she succeed in her efforts. Respondent proposes that if the ABM Trust is to be divided, all of the options pertaining to The Crescent Company be allocated to Lisa’s share of the trust.

In contrast to these early filings, Lisa more recently suggests that prior to any hearings she had proposed a stipulation to divide the trusts so that her shares could be kept outside of the surcharge litigation. She then muddies the waters by acknowledging that she “did not join in the Petitions filed by the Petitioners seeking to divide the trusts and surcharge and remove the trustees and did not file any objections to the accounts initially filed by the Trustees” so “[tjherefore she should not be expected to pay for the expenses incurred by the Trustees in responding to and defending against the claims of the Petitioners.” The sole evidence she points to of this stipulation to divide the trusts is a letter from her counsel to the court about a scheduling order in which he noted that they had “circulated to counsel a proposed stipulation regarding the division of the trusts” but asked for deferral of any consideration of it because the guardian ad litem had requested more time and none of the other parties seemed to agree with it. This tepid reference to an abandoned stipulation is dramatically contrasted by Lisa’s strong, formally filed answers that rejected division of the trusts based on concerns of dissipation of assets and failure to pursue the options litigation.

Lisa invokes the conclusions of Judge Taxis in Trumbull Trusts, 8 Fid. Rep. 2d 84 (Mont. Co. O.C. 1988) that a beneficiary who did not seek the division of a trust should not be charged with the costs and fees of doing so. Trumbull, however, is distinguishable as to the meager facts presented where the trust division was straightforward and unopposed. Here, in contrast, Lisa’s shifting positions on the division of the trusts complicated the general litigation to further her own self interests.

There were other instances in which Lisa leapt into the litigation fray. Midway through the hearings in December 20, 2010, she filed a vigorous brief in support of the trustees ’ motion for nonsuit. She argued that Willa and Alex had failed to provide sufficient evidence that the trustees had violated the Prudent Investor Rule or of a “recognized loss” to serve as the basis of surcharge. When Willa and Alex in February 2011 sought to amend their petition to seek only a surcharge based on their 75% interests, Lisa’s rejection of this proposal was emphatic: She asserted that “[ajmending the petition to limit recovery to 75% would be futile as there is no basis for so limiting a recovery due to investment loss of a Trust.” She supported this argument by emphasizing that the surcharge claim was directed at the period before the George and Alexander Trusts had been divided into separate trusts for Lisa, Willa and Alex. As a consequence, any recovery for losses would flow to the entirety of the tmsts and not just the 75% interest represented by Alex and Willa. Lisa also opposed the amended petition’s request for punitive damages against John. Instead, Lisa forcefully argued that punitive damages were not available as a matter of law in a surcharge action against trustees. Finally, she opposed the request for court approved fees for the trustee, Winfield Jones, who had been appointed to represent Willa and Alex. These powerfully presented arguments hardly characterize a party attempting to stay outside the fray of litigation. Rather, they suggest her deep immersion in it.

To support her claim that it would be inequitable for Lisa’s trusts to be charged with the litigation costs incurred in the surcharge action, Lisa draws a strained analogy to the “common fond doctrine.” She asserts, for instance, that “a beneficiary of a trust will be unjustly enriched if such beneficiary is able to force other trust beneficiaries to bear a portion of the attorney’s fees” that the trustees incur in defending themselves from litigation brought solely for the complaining beneficiary’s benefit. This common fond analogy, however, is inapposite and throws the proper analysis off kilter. The common fond doctrine under Pennsylvania law occurs “where many persons have a common interest in a trust property, or fond, and one of them, for the benefit of all, at his own cost and expense brings suit for its preservation or administration, the court of equity in which suit is brought will order plaintiff to be reimbursed his costs and expenses, including counsel fees, from the property of the trust, or order those benefited to contribute proportionately toward that expense.” Wilbur’s Estate, 334 Pa. 45, 73, 5 A.2d 325, 339 (1939). At this point, however, none of the McFadden beneficiaries are seeking to recover fees they personally expended in the surcharge litigation. The key element of the common fund doctrine thus does not apply. Instead, the focus is on whether the trust as a whole should be charged for the litigation expenses of the defending trustees.

A case more to the point is Stetson’s Estate, 20 Pa. D.& C. 73 (1933) where the court concluded that even where there were conflicting interests among the beneficiaries of a trust, litigation expenses incurred by a guardian defending the interests of the trust’s minor remaindermen should fall on the trust as a whole. In Stetson, more specifically, a guardian engaged in litigation to protect the interests of a trust’s remaindermen from efforts by the trust’s income beneficiaries to have certain stock dividends declared income rather than principal. When one of the life beneficiaries subsequently asserted that the fees incurred by the guardian’s attorney should be paid by the remaindermen who benefited from them, the Stetson court rejected that argument. Conflicting interests among trust beneficiaries are neither uncommon nor unnatural. Where litigation is brought for the general welfare of the trust as a whole, based on the facts and the court’s discretion it may be unjust to impose the litigation costs solely on the parties who initiated that litigation while others held back. The conclusion by the Stetson court is therefore applicable here: the trust as a whole should bear litigations costs incurred for the general welfare of the trust even where there is disagreement among the beneficiaries who have all taken adversarial roles against each other in that litigation.

B. The Hyde Standard Advocated by Lisa Is Factually Inapplicable as Well as Contrary to Her Position If That Standard Were Applied

In seeking to spare her trusts the litigation costs and fees, Lisa admits finding no Pennsylvania cases addressing the precise issue of allocation of attorneys’ fees among various beneficiaries of a trust but urges this court to follow New York precedent, In re: A Trust Created by Hyde, 15 N.Y. 3d 179, 186, 933 N.E. 2d 194 (2010). The Hyde test for allocating costs among trust beneficiaries where some beneficiaries elect not to participate in a surcharge recovery is clear, flexible and extremely helpful. On its facts, however, Hyde is distinguishable from the McFadden litigation.

In Hyde, the beneficiaries of a trust took differing positions on whether to object to an account that had been filed by their trustee. While one family filed objections, the other family of beneficiaries, the Renz family, filed an acknowledgment that they were nonobjectors and as such would not share in any surcharge awarded. They also filed a cross-motion to require that all subsequent litigation fees be deducted from the objectors’ share of the trust. In re Hyde, 15 NY 3d at 183, 933 NE 2d at 197. The Surrogate Court, bound by prior precedent, rejected the Renz family’s position that the litigation costs should be allocated solely to the objecting family. This rigid approach was rejected by the New York Court of Appeals which set forth the following criteria to assist a court in exercising its discretion in deciding on the allocation of litigation costs among beneficiaries:

(1) Whether the objecting beneficiary acted solely in his or her own interest or in the common interest of the estate;
(2) the possible benefits to individual beneficiaries from the outcome of the underlying proceeding;
(3) the extent of an individual beneficiary’s participation in the proceeding;
(4) the good or bad faith of the objecting beneficiary;
(5) whether there was justifiable doubt regarding the fiduciary’s conduct;
(6) the portions of interest in the estate held by the nonobjecting beneficiaries relative to the objecting beneficiaries;
(7) the future interests that could be affected by reallocation of fees to individual beneficiaries instead of to the corpus of the estate generally.
In re: Hyde, 15 NY 3d at 186-87, 933 N.E. 2d at 199, 906 N.Y.S.2d at 801.

Factually, the nonobjecting family in Hyde abstained from the trust litigation over whether the trustees had failed to diversify the trust portfolio. But more than abstaining from the litigation, they took the extra step of filing a written acknowledgment disclaiming any recovery from the surcharge litigation. This factual scenario differs significantly from Lisa’s role in the McFadden litigation. Not only did Lisa file highly adversarial answers to the petition initially opposing the division of the trusts, but she joined the trustees’ nonsuit petition and objected to the fee request of the guardian for Willa and Alex. Moreover, she did not renounce recovery in any surcharge that might be obtained. Instead, when Willa and Alex amended their petition to recover only their 75 % of the trusts, Lisa asserted that any recovery would have been based on injuries to the undivided trusts, which would include her share.

The remaining six other Hyde criteria likewise do not lend support to Lisa’s position. As for the first criteria— whether the objecting beneficiary acted solely in his or her interest-the surcharge actions brought by Willa and Alex were predicated on the economic harm the trusts suffered before they were divided. As Lisa herself argued, of necessity the surcharge action would have benefited all three of George McFadden’s children if surcharge had been awarded. Under the second element of the Hyde test, the litigation initiated on behalf of Willa and Alex had clear benefits for all the beneficiaries. In seeking to divide the trusts, Willa and Alex obtained a division of the trusts that clearly inured to Lisa’s benefit. There were also other tangential, but highly significant, benefits that the beneficiaries gained from the litigation. As this court noted in its adjudication, the trustees had been remiss in failing to raise the termination date of the George trust which might have been as early as 2012. Moreover, as a result of the litigation, substitute trustees were named for each of the trusts thereby fulfilling the settlors’ intent. The trust assets, as a consequence, were more diversified. The third Hyde criteria focusing on the extent of each beneficiary’s participation in the proceeding likewise does not benefit Lisa who took the strong adversarial positions described above.

In considering the good or bad faith of the objecting beneficiaries, it is clear that their objections were filed in a good faith belief that the trusts should be divided to meet the differing needs of the beneficiaries and that the trusts had suffered serious losses after the stock market downturn in September 2008. Although this court concluded that Alex and Willa failed to meet their burden of proving that the trustees’ breach caused this economic loss, nonetheless the beneficiaries’ good faith in asserting their claim was never in doubt. Similarly, given the unique, individualistic investment philosophy adopted by John and George McFadden, the objectants had justifiable doubts regarding the trustees’ conduct although their presentation of those doubts was seriously undermined by their focus on John to the exclusion of George McFadden’s investment conduct and philosophy.

For all of these reasons, Lisa’s objections to the imposition of attorney fees or litigation costs on her trusts must be denied.

II. The Guardian ad litem Fees and Costs Should be Allocated to Lisa, Willa and Alex Trusts in their Proportionate Shares

Willa and Alex have filed objections to the allocation of the guardian ad litem fees to their divided trusts alone in the July 2012 accounts. Lisa counters that this allocation is fair because only the Alex and Willa trusts stood to benefit from the surcharge litigation. This argument is belied by the facts and relevant case law.

The allocation of fees incurred by a guardian or trustee ad litem falls within the discretion of the Orphans’ Court. Trust Estate of Pleet, 488 Pa. 60, 74, 410 A.2d 1224, 1232 (1980). Here, as in Pleet, the appointment of a guardian and trustee ad litem was essential. The appointment of a guardian and trustee ad litem was necessary to render the proceedings conclusive and thus benefited all parties in this litigation. Id. Moreover, by decree dated August 26, 2009 not only was Mary Jane Barrett named as guardian ad litem for Willa and Alex McFadden but she was also named trustee ad litem “for all unborn and unascertained persons who may be interested in income or principal” under the George McFadden or Alexander McFadden Trusts.” That would include Lisa’s potential heirs. In fact, Lisa concedes that Ms. Barrett represented the “unborn issue and unascertained beneficiaries in the line of Lisa McFadden Melas.”

For her excellent representation in this difficult case, this court awarded Ms. Barrett guardian and trustee ad litem fees in the amount of $125,000 plus costs of $415.26. As Ms. Barrett suggested, those fees were allocated “62% to the principal of the George Trust and 38% to the principal of the Alexander Trust.” According to the accounts filed in July 2012, Mellon allocated 100% of Ms. Barrett’s fees to the divided trusts for the benefit of Alex and Willa. This was incorrect. Instead, a proportionate share or 25% of the $125,415.26 should have been allocated to Lisa’s trust with the consequential reduction of the fees charged to the Willa and Alex Trusts.

Conclusion

For all of these reasons, the guardian and trustee ad litem fees should be reallocated among the three trusts for the benefit of Lisa, Willa and Alex in their proportionate shares. Lisa’s objections to the attorney fees and legal expenses that were allocated to her trusts are denied.

The practical fate of all the accounts that have been filed must now be addressed. At the beginning of the January 19th hearing, this court raised with counsel the issue of whether the accounts could be confirmed as filed in light of the changes necessitated by the litigation cost settlements that Willa and Alex had worked out with the trustees John McFadden and Mellon. At that point, it was suggested without any objection that an adjustment in the accountings would be required. For this reason, the accounts shall be returned unaudited so that new accounts that accurately reflect the imposition of attorney fees and costs may be filed, but only if the parties elect to do so.

      . The petitions were filed with the Orphans’ Court of Delaware County (the “George Trust”) and with the Orphans’ Court of Philadelphia (the “Alexander Trust”).

      . Ex. P-1, Article Fourth (3) & Article Third; Ex. P-2, Article Third & Article Seventh.

      . The amended Alexander Trust account covered the period February 12, 2009 through December 31, 2009. The amended George Trust account covered the period June 5, 2009 through December 31, 2009.

      . 7/31/09 Lisa amended answer, Alexander McFadden Testamentary Trust, O.C. No. 1129 ST of 1956, ¶10.

      . For a more detailed discussion of these options and the differing views on splitting the George and Alexander Trusts, see the adjudication issued 11/9/11 at 16-17. See also Lisa answer, Estate of George McFadden, Deceased, O.C. No. 28 of 1931 (Del. Cty.) ¶¶89-90 (asserting that Lisa and her children would be harmed by the division of the trust due to the affordable options issue).

      . See 10/17/12 Lisa brief at 5; 9/12/12 Lisa brief at 2; 4/13/11 Lisa answer to amended petition, Alexander McFadden Testamentary Trust, O.C. No. 1129 ST of 1956, ¶34.

      . 3/21/11 Alex and Willa amended petition, ¶34.

      . See, e.g. 8/22/12 Willa and Alexander objections at 1-6.

      . See, e.g. 8/22/12 Lisa objections, George and Alexander Trusts second and final accounts for undivided trusts ¶¶8 & 13.

      . 1/29/13 N.T. at 3-4.

      . 9/11/12 Lisa brief for George and Alexander Trusts (hereinafter “Lisa brief’ at 3 & Ex. A (outlining the attorneys’ fees, expert witness fees and court reporter fees charged to the various trusts.

      . 10/3/12 Lisa brief at 3.

      . 9/11/12 Lisa brief at 1,4-5 & 7.

      . See, e.g. 5/1/09 petition, Alexander McFadden Testamentary Trust, O.C. No. 1129 ST of 1956 at ¶72-81.

      . 7/30/09 Lisa answer, Alexander McFadden Testamentary Trust, O.C. No. 1129 ST of 1956 (control no. 091921) at ¶89.

      . 7/30/09 Lisa answer, Alexander McFadden Testamentary Trust, O.C. No. 1129 ST of 1956 (control no. 091021) at ¶971>.

      . 7/30/09 Lisa amended answer to petition to divide the trusts, Alexander McFadden, Testamentary Trust, O.C. No. 1129 ST of 1956 (control no. 091443) at ¶10 (emphasis added).

      . Compare 9/11/12 Lisa Brief at 2 with 5.

      . 10/17/12 Lisa brief, ex. B (letter dated 10/14/2009).

      . 12/21/10 Lisa memorandum in support of mellon’s motion for nonsuit and John McFadden’s partial motion for compulsory nonsuit at 2.

      . 3/8/11 Lisa memorandum in support of answer to petition for leave to amend pleadings at III.B.1.

      . 3/8/11 Lisa memorandum in support of answer to petition for leave to amend pleadings at III.B.iii and III.B.iv.

      . 9/11/12 Lisa brief at 6.

      . 9/11/12 Lisa brief at 8.

      . See, e.g., 3/9/11 Lisa memorandum in opposition to the amended petition at III.B.i (“Therefore, any recovery for harm that was done to each of the Combined Trusts as a whole must inure to the benefit of each of the Combined Trusts as a whole, and it is futile to amend the pleadings to provide for a 75% limitation on any surcharge recovery”).

      . See 8/22/12 objections by Willa McFadden at 5-6. These objections note that according to the accounts filed in July 2012, on November 25, 2011, $51,838.31 was paid to Mary Jane Barrett from the George Trust f/b/o of Alex; $31,771.87 was paid from the Alexander Trust f/b/o Alex; $25,919.15 was paid from the George Trust f/b/o Willa; and $$ 15,885.93 was paid from the Alexander Trust f/b/o Willa.

      . See, e.g. 10/3/12 Lisa brief at 2-3.

      . 10/3/12 Lisa brief at 3.


source: Caselaw Access Project

author: MARK, J.,

license: Public Domain

text:
    Kittatinny Canoes, Inc. v. Westfall Township

      Cletus P. Lyman, for plaintiffs.

      Robert F. Bernathy, for defendant.
    May 6, 2013
   MARK, J.,

— On April 8,2013, we entered an order granting the motion of plaintiffs Kittatiny Canoes, Inc. (“Kittatiny”) and Indian Head Canoes, Inc. (“Indian Head”) (collectively “plaintiffs”) for a preliminary injunction prohibiting defendant Westfall Township (“defendant” or the “township”) from enforcing its newly-enacted amusement tax against them for amusements or activities conducted on the Delaware River. In the order, we indicated that this opinion would follow. We now present our reasons for granting plaintiffs’ motion.

Factual and Procedural Background

On December 4, 2012, pursuant to the Local Tax Enabling Act, defendant, a second class township, adopted an Amusement Tax Ordinance (“Amusement Tax” or “ordinance”), effective January 4, 2013. The purpose of the Amusement Tax is “to increase general revenues within the Township for the purposes of providing residents with essential services.” (Ordinance, §3). Under the ordinance, a one percent levy is placed on admissions charged, or the gross amount collected where no fixed admission is charged, to any amusement within the township. The ordinance defines an “amusement,” in pertinent part, as:

All manor and forms of entertainment, subject to tax as set forth in the Local Tax Enabling Act, including, but notlimited to, theatrical performances, concerts, circus’s [sic], carnivals, side shows, all forms of entertainment at fair grounds and amusement parks, floor shows, dance exhibitions, trade shows, craft shows, art show [sic] and exhibitions, sporting events, any and all forms of live entertainment, and all other diversion, sport, recreation or past time for which admissions charges are obtained from the general public or a limited or selected number thereof, directly or indirectly.

(Id. at §4(b)). “Admission” is defined as a “monetary charge of any character whatsoever...charged or paid by persons for the privilege of attending or engaging in amusements.” (Id. at §4(a)). The ordinance places the burden of collecting the Amusement Tax on “producers,” who are “any person or association... conducting any place of amusement” within Westfall Township. (Id. at §§4(f), 7(a)). The parties agree that plaintiffs are “producers” as defined under the ordinance. (Stipulation of facts, March 20, 2013, ¶3.)

Kittatinny and Indian Head are separate, unrelated corporate entities, each of which conducts business in the township. Kittatinny is a Pennsylvania corporation with a corporate address in Dingmans Ferry, Pennsylvania. It has two business locations within the township. Indian Head is a New Jersey corporation that is registered and authorized to do business in Pennsylvania with a mailing address in Matamoras, Pennsylvania. It has one business location in the township and two business locations in New York.

Kittatinny and Indian Head each operate a canoe livery. They charge patrons varying amounts to rent canoes, rafts, kayaks, tubes and other watercraft for use on the Delaware River. The amount charged depends on the type ofwatercraft rented and the number of persons. (Stipulation of facts, March 20, 2013, ¶8.) Most of plaintiffs’ customers pay their admission at plaintiffs’ respective business locations in Westfall Township before they are taken by van to launch points upstream in New York and end their trip in Westfall Township. Some of plaintiffs’ customers begin their trip in Westfall Township and disembark in the Delaware Water Gap on the New Jersey side of the river. Plaintiffs’ operations are seasonal and usually open each year at some point in April. Kittatinny expects approximately 10,000 customers to rent the various watercraft this year, while Indian Head expects approximately 5,000 customers.

After the Amusement Tax became effective, but before they had commenced operations for the 2013 season, plaintiffs jointly filed a complaint seeking declaratory and injunctive relief and a motion for a preliminary injunction. Plaintiffs sought a declaration that, as applied to them and their operations on the Delaware River, the ordinance is unconstitutional and preempted by federal law. They also sought a preliminary injunction enjoining the township from enforcing the Amusement Tax against them. Defendant responded by filing preliminary objections.

After these pleadings were filed, we held a scheduling conference with counsel for all parties. An expedited briefing schedule was established and a hearing was scheduled to hear argument on defendant’s preliminary objections and, if necessary, evidence and arguments on plaintiff’s motion for preliminary injunction.

Plaintiffs and defendant filed pre-hearing briefs and the hearing was convened, as scheduled, on March 20, 2013. Following argument, we overruled the preliminary objections. We then heard evidence and argument on plaintiffs’ request for a preliminary injunction. The parties were given eight days to submit supplemental briefs addressing specific questions posed by the court and any other relevant issues they wished to discuss. The parties filed briefs as directed. Thereafter, based on the pleadings, the evidence presented at hearing, the oral and written arguments of the parties, and the applicable law, we issued the order granting the preliminary injunction.

Discussion

The party seeking injunctive relief bears the burden of establishing the essential prerequisites necessary for the grant of such relief. These essential prerequisites require a party to demonstrate the following:

(1) that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages;
(2) that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings;
(3) that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct;
(4) that the activity it seeks to restrain is actionable, its right to relief is clear and the wrong is manifest, or, in other words, that it is likely to prevail on the merits;
(5) that the injunction it seeks is reasonably suited to abate the offending activity; and
(6) that a preliminary injunction will not adversely affect the public interest.

Free Speech, LLC v. City of Philadelphia, 884 A.2d 966, 970 (Pa. Cmwlth. 2005).

While the moving party must demonstrate all six of the above elements in order to obtain a preliminary injunction, the parties agreed at hearing that only two are truly in dispute in this case: 1) whether plaintiffs have an adequate remedy at law; and 2) whether plaintiffs are likely to prevail on the merits. In the interest of completeness, we will first briefly discuss the other four elements. We will then extensively discuss the issues raised by the parties in the context of the two disputed requirements.

As to the greater injury prong, there is little question that plaintiffs would suffer economic injury, from administrative costs to the remittance of the collected monies to the potential loss of business, if required to pay the Amusement Tax. Defendant, meanwhile, would not suffer substantial harm because, as this tax is new and has never been collected from plaintiffs or their customers before, defendant would suffer no loss of revenue. Similarly, the grant of the injunction would leave the parties in exactly the same position as they were before enactment of the Amusement Tax. Plaintiffs’ would not be required to pay and plaintiffs would not be required to account for and remit a tax they have never paid or remitted before, and defendant would not collect a tax it has never collected from plaintiffs before. Additionally, but in the same vein, the bond we set protects the township coffers. Further, the injunction is aimed only at preventing defendant from collecting the tax from plaintiffs’ operations on or in the Delaware River, not any other producers conducting amusements and not plaintiffs conducting amusements, now or in the future, that do not take place on the Delaware. Plaintiffs seek no more, and an injunction is a reasonable measure to abate application of a tax under circumstances where, as discussed below, there has been a strong showing that the tax, as applied to plaintiffs and their customers, is preempted and may not be collected. Finally, the injunction will not harm the public interest because no taxes had been or will be collected from plaintiffs, and therefore, no essential services will lose any funding they had previously relied on.

Irreparable Harm and Adequate Remedy at Law

Initially, plaintiffs contend that, because defendant does not have the authority to levy the Amusement Tax, they do not need to demonstrate they will suffer irreparable harm or that they have no adequate remedy at law. Additionally, and alternatively, plaintiffs assert that, because any taxes collected would be turned over to defendant’s tax collector and would then have to be returned to the customers and not plaintiffs, an action for a refund is an inadequate legal remedy and they have no other adequate remedies at law. And, according to plaintiffs, “[ejquity should exercise its jurisdiction where meaningful review by other means is impractical.” (PL’s’ supplemental br. at 4.)

Defendant responds by arguing that plaintiffs are not exempt from establishing, and in any event cannot demonstrate, that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages. Specifically, defendant contends that plaintiffs presented no evidence at hearing that rose to the level of irreparable harm, and there is no possible harm in this situation that cannot be compensated with damages. Additionally, defendant argues that Kittatinny cannot prove it has a clear right to relief as it a Pennsylvania corporation that only does business on the Pennsylvania side of the Delaware River.

In reaching our decision, we carefully considered all arguments of the parties. While we did not agree with all aspects of plaintiffs’ arguments, and similarly do not accept all of the premises on which their arguments are based, we did agree and find that plaintiffs had established the requisite level of harm and the lack of an adequate legal remedy.

Initially, we did not agree with plaintiffs assertion that they are not required to demonstrate they will suffer irreparable harm or that they have no adequate remedy at law. In support of this contention, plaintiffs cited numerous decisions in which injunctions were issued or upheld without discussion of irreparable harm or the adequacy of legal remedies in cases where the taxing authority lacked the power to levy the particular tax at issue. For example, plaintiffs cited Jamison Coal & Coke Co. v. School Dist. of Unity Twp., 66 A.2d 759 (Pa. 1949), in which the Pennsylvania Supreme Court upheld an injunction, without addressing whether the plaintiff would be irreparably harmed or had adequate remedies at law, where a coal company was expressly exempt by statute from having to pay a school district tax because it was already subject to taxation by the Commonwealth. The enabling act that gave the school district the authority to tax generally, expressly stripped from such local authorities-the ability to levy, assess and collect any tax “on a privilege transaction, subject, occupation or personal property which is now or does hereafter become subject to a State tax or license fee.” Id. at 759 (quoting Act of June 25, 1947, P.L. 1145, 53 P.S. §2015.1). Similarly, in Barnes Foundation v. Keely, 171 A. 267 (Pa. 1934) and Pittsburgh, A. & M Ry. Co. v. Stowe Twp., 97 A. 197 (Pa. 1916), our Supreme Court upheld injunctions, again without discussing whether the plaintiffs would be irreparably harmed or if they had adequate remedies at law, against taxes that were levied despite express statutory language to the contrary. Specifically, in Barnes, the Supreme Court affirmed an injunction to restrain collection of city taxes levied on property found to be exempt as charitable. In Pittsburgh A. & M., the Supreme Court held that where there is want of power to tax or tax is levied without authority of law, a bill in equity lies to restrain its collection.

The cases cited by plaintiffs are interesting and they do demonstrate that equity may be used to restrain the improper imposition of taxes. However, none of the cases cited by plaintiffs stand for the proposition that an equity plaintiff seeking to challenge a tax ordinance is exempt from the time-honored requirement of having to prove irreparable harm and lack of an adequate legal remedy simply because the challenger alleges that the taxing entity lacks authority to impose the tax. Further, the fact that an appellate decision does not specifically mention a particular preliminary injunction requirement does not necessarily mean, as argued by plaintiffs, that the court has determined that the requirement is irrelevant or unnecessary to the issuance of preliminary injunctive relief. Accordingly, we found that plaintiffs’ inferential argument was an unjustified stretch.

In any event, the cases on which plaintiffs rely are distinguishable from the case at bar. In the cases cited by plaintiffs, the taxing authority did not have the authority to levy the tax, the person or entity being taxed enjoyed an exemption, or the tax otherwise violated statutoiy provisions. Here, there is no statute that, generally speaking, denies defendant the ability to enact tax ordinances like the Amusement Tax. In fact, the Local Tax Enabling Act specifically authorizes townships of the second class to:

... in their discretion, by ordinance or resolution, for general revenue purposes, levy, assess and collect or provide for the levying, assessment and collection of such taxes as they shall determine on persons, transactions, occupations, privileges, subjects and personal property within the limits of such political subdivisions, and upon the transfer of real property, or of any interest in real property, situate within the political subdivision levying and assessing the tax, regardless of where the instruments making the transfers are made, executed or delivered or where the actual settlements on such transfer take place. The taxing authority may provide that the transferee shall remain liable for any unpaid realty transfer taxes imposed by virtue of this chapter.

53 P.S. §6924.301.1 (a). Second-class townships do not, however, have the authority:

[t]o levy, assess or collect an amusement or admissions tax on membership, membership dues, fees or assessments, donations, contributions or monetary charges of any character whatsoever paid by the general public, or a limited or selected number thereof, for such persons to enter into any place, indoors or outdoors, to engage in any activities, the predominant purpose or nature of which is exercise, fitness, health maintenance, improvement or rehabilitation, health or nutrition education, or weight control.

53 P.S. §6924.301.1 (f)(13). In enacting the Amusement Tax, defendant, apparently fully aware of the limitations placed on second-class townships in the Local Tax Enabling Act, expressly exempted from taxation “fees charged for activities, the predominant purpose or nature of which is exercise, fitness, health maintenance, improvement or rehabilitation, health or nutrition education, or weight control.” (Ordinance, §4(b)).

As the cited statutory provisions demonstrate, the township had the statutory authority to adopt the Amusement Tax, the passage of the ordinance was not an ultra vires act, the tax was neither illegal nor unlawful in the traditional sense of those terms, and no statutory exception or exemption applied to plaintiffs. An equitable challenge to a tax imposed by an entity that lacked authority to adopt or impose the tax, generally or as applied to a particular entity, person, or class, presents a much different scenario than a case where, as here, the taxing body had the power to impose a tax that is being challenged based on federal preemption and Commerce Clause concepts. For these reasons, the cases relied on by plaintiffs are factually and legally distinguishable and did not support the reduced burden that plaintiffs believe they enjoyed. Accordingly, we determined that plaintiffs needed to demonstrate they would be irreparably harmed and did not have adequate remedies at law. And we found that they did.

Plaintiffs argue in the alternative that because any refund would go to their customers, not to plaintiffs themselves, and because tracking down the individual customers would be “costly, time-consuming and difficult,” there is “no realistic prospect of recovering money for [the] intended payees.” Therefore, the harm is irreparable, and relief can only be found in the courts of equity. (Plaintiffs’ reply and supplemental brief at 4)

The courts of equity are, of course, subject to statutory limitations. Borough of Green Tree v. Board of Property Assessments, Appeals and Review of Allegheny County, 328 A.2d 819, 823 (Pa. 1974). In fact, in 1806, the General Assembly mandated that statutorily-prescribed remedies were to be “strictly pursued.” Id. (citing 46 P.S. § 156). That is the route our courts have generally required litigants to take, but an exception exists when “the statutory remedy is pointless or inadequate.” Id. at 824. Only when the moving party pleads facts demonstrating that the statutory remedy is inadequate will our courts entertain the possibility of allowing a party to proceed in equity. Lashe v. Northern York County School Dist., 417 A.2d 260, 265 (Pa. Cmwlth. 1980). This remains true even when the party seeking to invoke the court’s equity jurisdiction has made a direct frontal attack on the constitutionality of the local tax. Green Tree, 328 A.2d at 824; Hudson v. Union County, 413 A.2d 1148, 1150 (Pa. Cmwlth. 1980). A direct attack on the constitutionality of a tax will not alone invoke our courts’ equity powers; rather, the direct attack must raise a “substantial question of constitutionality.” Hudson, 413 A.2d at 1150.

Typically, when attacking the validity of . a taxing ordinance promulgated under the Local Tax Enabling Act, the challenger will proceed under section 6 of the Act, which provides an express statutory avenue for such challenges. Under section 6, taxpayers representing twenty-five percent or more of the total valuation of real estate in the political subdivision, or taxpayers numbering twenty-five or more aggrieved by the tax ordinance have the right to appeal. 53 P.S. §6924.309. Such an appeal must be brought within the thirty days between the adoption of the ordinance and the effective date. Id.

It is undisputed and clear from the record that plaintiffs do not represent twenty-five percent or more of the total valuation of real estate in the township, nor do they represent twenty-five taxpayers in number. It is also clear that plaintiffs represent only two of the four canoe liveries operating in Westfall Township. Additionally, because they do not open until mid-April of each year at the earliest, plaintiffs did not, within the statutory appeal period, have a combined total of twenty-five customers who could attack the ordinance. As a result, plaintiffs could not meet the requirements to file a statutory appeal and such an appeal was not a viable option for them. Accordingly, they sought remedies alternative to the Local Tax Enabling Act appeal process.

As is their right. Contrary to the position advocated by defendant, a section 6 statutory appeal is not the exclusive remedy for challenging a tax ordinance. The Pennsylvania Supreme Court has elucidated at least two non-exclusive alternative means by which the validity of a taxing ordinance may be attacked: an action for a refund and an action in equity.

The principal alternative is an action for a refund under 72 P.S. §5566b. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 278 (Pa. 1975). See also Owen J. Roberts School Dist. v. Pickar, 286 A.2d 14, 17 (Pa. Cmwlth. 1972) (holding that the failure of a taxpayer to initiate an appeal of an occupation tax under 53 P.S. §6924.309 did not preclude the petitioner from seeking a refund under 72 P.S. §5556b). The failure to take an appeal under section 6 does not bar an action for a refund. Wm. Penn, 346 A.2d at 278.

Here, as plaintiffs have argued, an action for a refund would not be feasible. The facts and circumstances that demonstrate the lack of feasibility also further establish irreparable harm and the inadequacy of the refund remedy.

To begin, since plaintiffs operate seasonal businesses that do not open until mid-April, no admissions had been charged at the time we issued our April 8 order and no taxes had been collected and remitted to defendant. Simply, there was nothing to refund. Further, any taxes that plaintiffs might have collected and remitted to defendant under the Amusement Tax do not belong to plaintiffs. Those taxes would have been paid by plaintiffs’ customers, and it is the customers who would be owed a refund. David Jones, the owner of Kittatinny Canoes, testified at the hearing that it would nearly impossible to track down every customer who strapped on a life jacket. In many instances, one member of a group will make a down payment on a river trip in advance, and another member of the group will pay the remaining balance. In other instances, one member of a group will make a single payment to cover the entire group and will, presumably, be repaid by the other members of the group. Though plaintiffs often record the name and address of the group member who physically pays for the trip, they do not record the name and address of every group member and would have no means of reaching every member of a group in order to issue a refund. Regardless of who pays, payments are often made with credit cards, which carry additional charges borne by plaintiffs when refunds are issued.

In addition, to accommodate this additional tax, plaintiffs would be required to make costly changes to their computer software that keeps track of how much taxes need to be withheld from each admission paid. Currently, plaintiffs’ software is only equipped to account for state sales tax, and it would require a costly overhaul to account for the Amusement Tax. In essence, as Mr. Jones testified, plaintiffs believe that the administrative cost of collecting, tracking, and remitting the tax, or any refund, would be more than the tax itself. In fact, simple math shows that the cost of postage would be almost the same as an individual refund. Amy Sal vea, the general manager of Indian Head Canoes, likewise testified that making refunds would be an “administrative nightmare.” The transactions are broken up multiple ways, Ms. Salvea continued, and it would be impossible to determine who was entitled to what. Under these facts and circumstances, we found that, like the statutory appeal option, an action for a refund was an inadequate legal remedy.

Without an adequate remedy at law, plaintiffs were left only with equity. Our Supreme Court has recognized actions in equity, under certain circumstances, including those present here, as another valid means of challenging the validity of a taxing ordinance. Wm. Penn, 346 A.2d at 279. This is a limited remedy and is only available when, as in this case, the statutory remedies are inadequate and irreparable harm may be shown.

As to plaintiff’s invocation of equity, for all of the reasons discussed under this heading, we found that the lack of an adequate legal remedy, coupled with the cost to plaintiffs of collecting, remitting, and refunding the tax, the administrative, logistical, and practical problems of refunding the tax, and the fact that plaintiffs and their customers would be subject to a tax that, as discussed below, is in all likelihood preempted, combined to at once justify invocation of this court’s equitable jurisdiction and demonstrate the irreparable harm/no adequate remedy at law requirement had been satisfied.

Likely to Prevail on the Merits

We next turn to the question of how likely it is that plaintiffs will prevail on the merits of their claims that the Amusement Tax is preempted by federal law and violates the Commerce Clause of the United States Constitution. After careful consideration of this issue, we found that plaintiffs have a strong likelihood of prevailing on the merits.

In regard to preemption, plaintiffs argue that 33 U.S.C. §5(b), which prohibits the taxation of any watercraft operating on the navigable waters subject to the authority of the United States, preempts the Amusement Tax. While several exceptions exist to the general rule under 33 U.S.C. §5(b), plaintiffs argue that none apply in the present case and that the plain language of the statute is clear, unambiguous and free of doubt.

Defendant counters by directing the court’s attention to the legislative history of 33 U.S.C. §5(b), particularly the history related to amendments made in the wake of the September 11, 2001, terrorist attacks. Defendant insists Congress amended the statute to prohibit the taxation of watercraft on navigable waters “to detect and deter a potential ‘transportation security incident.’” Such an occurrence upon the portion of the Delaware River that flows past Westfall Township, defendant continues, is “unimaginable.” (Def.’s post-hearing br. at 6.) In furtherance of its argument, defendant attempts to draw a factual distinction between this case and three other cases, two in Tennessee and one in Fayette County, where local tax ordinances were held to be preempted by 33 U.S.C. §5(b). In each of those cases, the local tax ordinance expressly and specifically taxed watercraft operating on navigable waters of the United States. The Amusement Tax, defendant argues, is distinct because it taxes generally the admissions to amusements on “dry land.” (Def.’s post-hearing br. at 7.) Likewise, defendant argues plaintiffs cannot demonstrate they are likely to prevail on the merits of their claim that the Amusement Tax violates the Commerce Clause of the United State Constitution. Specifically, defendant argues that plaintiffs have not shown — in fact, have not even pled — that the Amusement Tax discriminates against or unduly burdens interstate commerce.

Finding defendant’s arguments unavailing, we believe that, because the Amusement Tax fails to meet the statutory exceptions outlined in 33 U.S.C. §5(b), it stands in direct “irreconcilable conflict” with 33 U.S.C. §5(b). Therefore, we believe the Amusement Tax, as applied to plaintiffs as the owners and operators of canoe liveries on the Delaware River in Westfall Township, would likely be found to be preempted by federal law in a final decree and would thus be found void.

In Kiak v. Crown Equip. Corp., 989 A.2d 385 (Pa. Super. 2010), our Superior Court outlined the standard to be applied in federal preemption cases:

Federal preemption is a jurisdictional matter for a state court because it challenges subject matter jurisdiction and the competence of the court to reach the merits of the claims raised. Werner v. Plater-Zyberk, 799 A.2d 776, 787 (Pa. Super.2002). The principle of federal preemption of state law derives from the second clause of Article VI of the United States Constitution’s Supremacy Clause, which provides that the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Thus, laws that are in conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U.S. 725 (1981).
“Congress has the undisputed power to preempt state law in areas of federal concern.” Stone Crushed P’ship v. Jackson, 908 A.2d 875, 880 (Pa. 2006). In determining the breadth of a federal statute’s preemptive effect on state law, courts are guided by the tenet that “the purpose of Congress is the ultimate touchstone in every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). However, “because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly preempt state-law causes of action.” Medtronic, Inc., 518 U.S. at 485. From this premise, the Supreme Court has relied upon an “assumption that the historic police powers of the States were not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
The presumption against federal preemption of state law is one of “dual jurisdiction” which “results from reasons of comity and mutual respect between the two judicial systems that form the framework of our democracy.” Fetterman v. Green, 689 A.2d 289, 292 (Pa. Super. 1997) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) and Michael v. Shiley, Inc., 46 F.3d 1316 (3d Cir. 1995)). The Commonwealth Court has explained, “[tjhere is no hierarchical arrangement between state courts and federal courts that exercise jurisdiction within that state. Under the federal system, the states possess sovereignty concurrent with that of the federal government.” Werner, 799 A.2d at 788 (quoting City of Philadelphia v. Pennsylvania PUC, 676 A.2d 1298, 1309 n. 10 (Pa.Cmwlth.1996)).

Congress’s intent to preempt state law may be express or implied and found in any of three ways:

First, state law may be preempted where the United States Congress enacts a provision which expressly preempts the state enactment. Likewise, preemption may be found where Congress has legislated in a field so comprehensively that it has implicitly expressed an intention to occupy the given field to the exclusion of state law. Finally, a state enactment will be preempted where a state law conflicts with a federal law. Such a conflict may be found in two instances, when it is impossible to comply with both federal and state law [ ] or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Stone Crushed P’ship, 908 A.2d at 881 (2006) (citations omitted).

Kiak, 989 A.2d at 390-92.

Section 5 of Title 33 of the United States Code was originally enacted in 1884 and prohibited the levying of tolls or operating charges upon any watercraft that passed through a lock, canal or canalized river owned by the United States. 33 U.S.C. §5(a). Following the terrorist attacks of September 11, 2001, §5 was amended by the Maritime Transportation Security Act of2002 (“MTSA”), a comprehensive overhaul of the Merchant Marine Act of 1936 with the stated purpose of establishing “a program to ensure greater security for United States seaports, and for other purposes.” Scores of statutes were amended by the MTSA, including 33 U.S.C. §5. A second subsection, §5(b), was added and reads in full:

(b) No taxes, tolls, operating charges, fees, or any other impositions whatever shall be levied upon or collected from any vessel or other water craft, or from its passengers or crew, by any non-federal interest, if the vessel or water craft is operating on any navigable waters subject to the authority of the United States, or under the right to freedom of navigation on those waters, except for
(1) fees charged under section 2236 of this title;
(2) reasonable fees charged on a fair and equitable basis that —
(a) are used solely to pay the cost of a service to the vessel or water craft;
(b) enhance the safety and efficiency of interstate and foreign commerce; and
(c) do not impose more than a small burden on interstate or foreign commerce; or
(3) property taxes on vessels or watercraft, other than vessels or watercraft that are primarily engaged in foreign commerce if those taxes are permissible under the United States Constitution.

33 U.S.C. §5(b).

This language represents the entirety of §5(b) and there is nary a mention of preemption, let alone a provision that expressly preempts an enactment of a tax on watercraft operating in navigable waters by a state or local government. However, the statute provides a clear mandate that “[n] o taxes...shall be levied upon or collected from” vessels or watercraft operating on navigable waters of the United States. Absent an express provision declaring invalid any state or local taxes on watercraft operating on navigable waters, Congress could scarcely have been more clear about its intention to deny state and local governments the ability to levy taxes on watercraft operating on navigable waters. The language of the statute is clear, and such plain language deserves to be given its full meaning.

Congress did provide for three exceptions to this general command, though defendant has not argued that any apply in the instant case. The first exception allows for fees to be charged under 33 U.S.C. §2236, which permits non-federal interests to levy port or harbor dues on vessels engaged in trade entering or departing from a harbor. This exception has no application here. The Amusement Tax does not fit under the second or third exceptions, either. The second exception permits fees to be collected for the sole purpose of paying the cost of service to a vessel or watercraft, while the third exception permits the collection of property taxes on vessels or watercraft. 33 U.S.C. §§5(b)(2)(a), 5(b)(3). As previously discussed, the stated purpose behind the implementation of the Amusement Tax was “to increase general revenues within the Township for providing residents with essential services.” (Ordinance, §3). This stated purpose fails to comport with the second and third exceptions outlined in 33 U.S.C. §5(b), and it would appear, based on a plain reading of the statute and its exceptions, that Congress intended to preempt taxes such as the Amusement Tax.

As outlined by the United States Supreme Court and our Superior Court, preemption may also be found where a state or local law stands in direct “irreconcilable conflict” with a federal law. Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31 (1996). “Compliance with both statutes, for example, may be a physical impossibility, or, the state law may stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (internal quotations and citations omitted).

In both Moscheo v. Polk County and High Country Adventures, Inc. v. Polk County, the Court of Appeals of Tennessee held that it was a physical impossibility for the plaintiffs to comply with both the local tax, which was similar to the tax involved in this case, and 33 U.S.C. §5(b). In High Country, a case decided nearly a year before Moscheo, a Tennessee whitewater rafting venture challenged the same Polk County privilege tax at issue in Moscheo. Much of the High Country case was focused on whether the plaintiff had standing to bring such a challenge. After determining the plaintiff had standing to challenge the ordinance, the court of appeals then considered whether the Polk County tax was preempted by 33 U.S.C. §5(b). The Tennessee court had little trouble finding that the tax was preempted, holding that:

It is beyond dispute that there is a manifest conflict between Polk County’s local privilege tax which levies a tax on a consumer participating in rafting excursions on navigable waters in the county and requires collection of the tax operator of such excursion, and [33] U.S.C. §5(b), which prohibits the levying and collection of a tax from any vessel or water craft operating on navigable waters subject to the authority of the United States or from its passengers or crew. The conflict is “irreconcilable,” and compliance with both laws is a physical impossibility.

Id. at *13. The Tenessee Court of Appeals reaffirmed its holding in Moscheo, finding “that based upon the inescapable conflict between the [privilege tax] and 33 U.S.C. §5(b), the [privilege tax] is preempted by 33 U.S.C. §5(b) ” Moscheo, 2009 WL 2868754 at *16.

The holdings in High Country and Moscheo are in accord with the decision in Borough of Ohiopyle v. Wilderness Voyagers, Inc., No. 220 Civil 2005 G.D. (C.P. Fayette, filed August 30, 2005), the only Pennsylvania case to address the issue that was brought to our attention by the parties or that our own research uncovered. In Wilderness Voyagers, the Court of Common Pleas of Fayette County considered whether a local tax ordinance that placed a tax upon the rental fee for the furnishing or use of any type of watercraft “in or over any stream or body of water” in the Borough of Ohiopyle, Pennsylvania, through which the Youghiogheny River flowed, was preempted by 33 U.S.C. §5(b). Based on a plain reading of 33 U.S.C. §5(b), our sister court found that the Youghiogheny was under federal jurisdiction and therefore the borough was precluded from levying a tax on the use of the river. Wilderness Voyagers, at *4.

Here, too, there exists an “irreconcilable conflict” between the Amusement Tax and 33 U.S.C. §5(b). The Amusement Tax requires operators of amusements in Westfall Township to collect a one percenttax on admissions charged and the gross amount collected where no fixed admission is charged, including admissions charged from the rental of kayaks, canoes, rafts and other watercraft for use on the Delaware River, a navigable water. Section 5(b), however, prohibits the levying and collection of taxes by a non-federal interest from watercraft operating on any navigable waters subject to the authority of the United States. While it is not a physical impossibility for plaintiffs to comply with both statutes, since plaintiffs are not in a position to enact tax ordinances but can certainly remit taxes, the Amusement Tax stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The plain language of 33 U.S.C. §5(b) is clear, and apart from the three exceptions, none of which apply to the facts presented here, no taxes may be levied upon or collected from watercraft operating on the Delaware River, a navigable water. We need look no further to glean the full purpose and objective of Congress in enacting §5(b). We do recognize and respect the presumption against federal preemption of state and local law, but we cannot, as the Tennessee court could not, ignore the “obvious and inescapable conflict between the local tax and the federal prohibition.” High Country, 2008 WL 4853105 *13. This blatant conflict alone is enough to overcome the presumption and support our holding that the Amusement Tax, as applied to plaintiffs as owners and operators of canoe liveries on the Delaware River in Westfall Township, is preempted by 33 U.S.C. §5(b) and is void.

“Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). “When the words of a statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute under the pretext of pursuing its spirit. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1201 (Pa. 2009) (citing 1 Pa.C.S.A. § 1921(b)).

Defendant also insists that, despite the plain language of 33 U.S.C. §5(b), the legislative history of the MTSA, which created §5(b), is illustrative of Congress’ true intentions. And those intentions, defendant continues, had nothing to do with preemption. Instead, defendant argues, the MTSA was enacted “to detect and deter a potential ‘transportation security incident,’ which Congress defined as a ‘security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area.’” Cassidy v. Chertoff, 471 F.3d 67, 70 (2d Cir. 2006) (quoting 46 U.S.C. §70101(6)). Defendant contends that such an occurrence on the section of the Delaware River in question, particularly in a canoe or raft, is unimaginable. Though ultimately unavailing, defendant is not the first to present such an argument.

The Court of Appeals of Tennessee considered the identical argument in Moscheo. In that case, the plaintiff challenged a local tax ordinance that imposed a $2.50 tax on rafting trips in Tennessee’s Ocoee River. There, too, the plaintiff asserted that the local tax ordinance was preempted by 33 U.S.C. §5(b), as the Ocoee River was a navigable water and the tax, which was assessed on passengers on a vessel or watercraft on a navigable water, did not meet any of the exceptions outlined in 33 U.S.C. §5(b). Id. at *3. In response, the defendant county argued, as the township has argued in this case, that “absent clearly expressed intent by Congress to preempt existing law, preemption should not be implied.” Id. at *4.

The Tennessee court examined the MTSA, identifying its purpose and spelling out eleven of the thirteen findings that Congress made and included in the MTSA, none of which related to whitewater rafting. Id. at *13-14. The purpose statement and the findings all pointed to the idea that United States ports are vulnerable to breaches in security and it was necessary to secure entry points and other areas of port facilities and inspect containers in order to increase security. Id. See also 46 U.S.C. §70101. The Tennessee court then drew a parallel with Cassidy, in which the plaintiffs contended that even if the government had a “special need” under the MTSA, the government did not need to protect ferries on Lake Champlain, where there is no obvious terrorist threat. Id. at *14 (citing Cassidy, 711 F.3d at 83). The Second Circuit rejected this argument, holding that “the government, in its attempt to counteract the threat of terrorism, need not show that every airport or every ferry terminal is threatened by terrorism to implement a nationwide security policy.” Cassidy, 711 F.3d at 83. The Tennessee court agreed “with the reasoning of this holding. While the Ocoee River seems to be a remote terror target, the federal government is not required to demonstrate how every navigable waterway subject to its authority might be subjected to acts of terrorism in order to implement its nationwide security policy.” Moscheo, 2009 WL 2868754 at *14. Substitute “Delaware River” for “Ocoee River” and scant more needs be said. Through the MTSA, Congress need not have demonstrated how the portion of the Delaware River that flows past Westfall Township might fall prey to acts of terrorism for that portion not to fall under the purview of 33 U.S.C. §5(b).

While we recognize that the Moscheo and High Country opinions are unpublished decisions from a Tennessee appellate court and are not even binding on Tennessee trial courts, let alone a Pennsylvania trial or appellate court, a dearth of case law exists interpreting or otherwise analyzing 33 U.S.C. §5. And simply because these cases, as well as Wilderness Voyagers, are not binding on our court, that does not mean we cannot turn to them for guidance when considering a nearly identical issue, particularly when there is so little state or federal case law and we find the cases to have been properly decided and the rationale expressed by the appellate court in Tennessee and our sister court in Pennsylvania to be persuasive.

Apart from arguing the asserted inapplicability of these cases, defendant attempts to distinguish the rulings by the Court of Appeals of Tennessee and the Court of Common Pleas of Fayette County. Defendant contends these cases are distinct from the case at bar because the ordinances in the Tennessee and Fayette County cases expressly taxed the rental or admission fees associated with the use of canoes, rafts or other watercraft. The Amusement Tax, however, taxes the admission to “amusements” on “dry land” generally and neither specifically targets nor applies only to apply to watercraft on the Delaware River. While we found this to be an intriguing argument, we ultimately determined it to be a distinction without a difference. Further, we reiterate that we believe 33 U.S.C. §5(b) would be found, in a final decree, to preempt the Amusement Tax only as the Amusement Tax applies to Plaintiffs as owners and operators of canoe liveries on the Delaware River in Westfall Township, and not to other providers or even to plaintiffs if they charge for other amusements on land now or in the future. See generally Burkholder v. Zoning Hearing Bd. of Richmond Twp., 902 A.2d 1006, 1007 (Pa. Cmwlth. 2006) (holding the federal Nutrient Management Act and its implementing regulations preempted the local zoning setback requirement as applied to both of petitioners’ proposed structures); Twp. of Derry v. Pennsylvania Dep’t of Labor & Indus., 940 A.2d 1265, 1269 (Pa. Cmwlth. Ct. 2008) (finding a federal regulation, as applied, preempts Derry Township’s ability to grant permits and receive fees for construction and occupancy of buildings within its confines). We do not hold that it is likely that 33 U.S.C. §5(b) preempts the Amusement Tax in the Amusement Tax’s applications beyond the scope of canoe liveries operating on the Delaware River in Westfall Township.

Even if we were to completely disregard this plain meaning versus legislative history debate, we would still have little choice but to find that the Amusement Tax is preempted by federal law. As stated above, the third way by which preemption may be found is when Congress “has legislated in a field so comprehensively that it has implicitly expressed an intention to occupy the given field to the exclusion of state law.” Kiak, 989 A.2d at 392 (internal citations omitted). “Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” Arizona v. United States, 132 S. Ct. 2492, 2502 (2012).

As previously discussed, 33 U.S.C. §5 was originally enacted under the Rivers and Harbors Act of 1884. The Rivers and Harbors Act of 1884 itself was enacted fifty years after the first act of its kind, the Rivers and Harbors Act of 1824, which came on the heels of the landmark decision of Gibbons v. Ogden, 22 U.S. 1 (1824). Since the United States Supreme Court declared that the power to regulate the use of navigable waters rests solely with the federal government some 189 years ago, id. at 22, Congress has passed scores of Rivers and Harbors Acts. Each of these acts has in some way dealt with the navigable waters of the United States, some authorizing appropriations for the development of canals or the improvement or repair of rivers or harbors. Others have been concerned with the construction of dams or the prevention of private dams being placed on navigable waters without the approval of the federal government, or have tightened restrictions on unauthorized restrictions to navigation. These acts have also created interstate compacts, such as the one between Pennsylvania and New Jersey that facilitated the creation of the Delaware River Joint Toll Bridge Commission. Many, if not most or all, of the various Rivers and Harbors Acts can be found in Title 33 of the United States Code, which is entitled “Navigation and Navigable Waters” and is devoted in its entirety to federal regulation of, as its name suggests, the navigable waters of the United States. The subjects covered by Title 33 are wide-ranging and far-reaching, from Navigable Waters Generally to Navigation Rules for Harbors, Rivers, Inland Waters Generally to Regulations for the Suppression of Piracy to Clean Hulls. Through the Rivers and Harbors Acts and the vast array of other statutes found under Title 33, Congress has made clear, however implicitly, that the states are foreclosed from regulating the navigable waters of the United States. And “[wjhere Congress occupies an entire field ... even complementary state regulation is impermissible.” Arizona, 132 S.Ct. at 2502.

B elieving strongly that the Amusement Tax is preempted by federal law and therefore would likely be found void in a final decree, we need not address whether the Amusement Tax violates the Commerce Clause of the United States Constitution. “When faced with an issue raising both constitutional and non-constitutional questions, we must make a determination on non-constitutional grounds if possible and avoid the constitutional question.” Com. v. Kennedy, 604 A.2d 1036, 1038-39 (Pa. Super. 1992).

Summary and Synthesis

In sum, this is a case where plaintiffs seek to restrain and then permanently enjoin a municipal tax that appears to clearly be preempted by federal law. For the reasons discussed, plaintiffs have established the requirements for a preliminary injunction, including the irreparable harm and inadequate remedy at law element. In this regard, contrary to the township’s assertion, a statutory appeal under section 6 of the Local Tax Enabling Act is not the exclusive means by which to challenge a local tax ordinance. In any event, Plaintiffs could not physically, practically, or legally have satisfied the qualifications to file such an appeal, for themselves or their prospective customers, within statutory time frames. As a result, they did not truly have a feasible statutory remedy and, in any event, equity should not leave a party without a remedy. Further, given the facts and circumstances of this case, especially the nature of the canoe livery operations of both plaintiffs, neither the statutory appeal nor refund processes constitute adequate remedies at law. The lack of legal remedies combines with the other facts and circumstances of this case to justify the need for equity jurisdiction and establish the requisite level of harm. Finally, for the-reasons discussed in the last section of this opinion, there is a strong likelihood that plaintiffs will prevail on their preemption argument, and therefore, be entitled to the permanent declaratory and injunctive relief that they request.

It is for these reasons that we granted the preliminary injunction.

      . 53 P.S. §§6924.101, 6924.301 etseq.

      . Westfall Township Ordinance No. 158 (December 4, 2012).

      . Under the Local Tax Enabling Act, the Amusement Tax may be increased up to ten percent. 53 P.S. §6924.311(6).

      . At the hearing, the parties agreed that the Delaware River is a navigable water subject to the authority of the United States.

      . No. E2008-01969-COA-R3-CV, 2009 WL 2868754 (Tenn. Ct. App. Sept. 2, 2009).

      . No. E2007-02678-COA-R3-CV, 2008 WL 4853105 (Tenn. Ct. App. Nov. 10, 2008).

      . We must note that, in quoting this portion of Cassidy in its brief in opposition, defendant included as part of the block quote, “The legislative history of the MTSA does not support preemption.” Nowhere in Cassidy does this quote appear. We trust that this statement was defendant’s own argument, and its placement within the block quote was a typographical error and not an attempt to deceive the court.

      . Additionally, as noted, the MTSA is an overwhelming and comprehensive act that amended scores of statutes, a predominant number of which are contained in Title 46 of the United States Code, which constitutes the bulk of federal maritime law. The amendment to 33 U.S.C. §5 constituted a fraction of the changes the MTSA made to the United States Code, and it was hardly Congress’ main focus as it worked to craft and enact the MTSA and put into effect the overriding purpose of the MTSA in its broad-reaching entirety.

      . River and Harbor Act of 1886, 24 Stat. 310; River and Harbor Act of 1954, Title 1 of Pub. L. 83-780.

      . River and Harbor Appropriation Act of 1899, 30 Stat. 1121.

      . River and Harbor Act of 1890, 26 Stat. 426.

      . River and Harbor Act of 1935, Pub. L. 74-409.