Reading & Northern and the town of Jim Thorpe are at it again. Sad.
https://trn.trains.com/news/news-wire/2020/05/04-reading--northern-borough-of-jim-thorpe-again-at-odds
Still in training.
Greetings from Alberta
-an Articulate Malcontent
Hot link:
Statement from the Borough:
https://www.jtborough.org/sites/jimthorpepa/files/news/press_release_regarding_lehigh_gorge_scenic_railway.pdf
From the article:
"The Times News reports the borough, in a press release, said the railroad would not return without a written agreement that it does not, has never, and will never owe the amusement tax, and that “the borough can’t legally agree to these terms.”"
Why can't they agree to those terms? The terms seem to be the essence of their agreement. Has nobody asked for an answer to that quesion?
I think the railroad is going to find a general lack of support after opening this can again.
No town can, nor should they, agree to something forever in the future. Not how it works.
It's been fun. But it isn't much fun anymore. Signing off for now.
The opinions expressed here represent my own and not those of my employer, any other railroad, company, or person.t fun any
zugmannI think the railroad is going to find a general lack of support after opening this can again. No town can, nor should they, agree to something forever in the future. Not how it works.
But 20 or 30 years is reasonable. After all most of us have been involved with 20 or 30 year mortgages in our lifetimes.
Never too old to have a happy childhood!
zugmann ... No town can, nor should they, agree to something forever in the future. Not how it works.
...
Sure they can. They're called 'covenants'.
SD70Dude
I didn't know Captain Picard got a job with the R&N after he retired from Starfleet!
Closet railfans DO have a habit of popping up where you least expect 'em, don't they?
BaltACDBut 20 or 30 years is reasonable. After all most of us have been involved with 20 or 30 year mortgages in our lifetimes.
Most you can get is one current council - which can change in a matter of minutes.
zugmann I think the railroad is going to find a general lack of support after opening this can again. No town can, nor should they, agree to something forever in the future. Not how it works.
Well it sounded like they came to an agreement to not tax the railroad. I can't imagine that agreement not being in writing. If it is in writing, it would have to include the basics of what the railroad is requesting now as clarification. If that was never in the written agreement, it would seem that the written agreement was not complete as executed. So now the town looks at the complete agreement and says they can't abide by it. What did they think they were agreeing to in the first place?
Actually the town has said that they did draft a new ordinance exmpting the railroad from the contested tax, but that the railroad did not accept it, and that is the reason they are now asking for the change as they have detailed. So we would need to see the agreement that was offered by the town to learn what the railroad feels was unacceptable about it.
That's not what the press statement from the Burrough said, I read it, and basically they're saying they can't do what the railroad wants...I call BS on that.
The railroad offered to continue passenger service on three conditions.
The town accepted those terms.
The town drafted an ordinance to reflect the agreement.
The railroad said they do not accept the proposed ordinance.
Apparently the town or the railroad did not fully understand what was being agreed to, and thus there never was an agreement
zugmann BaltACD But 20 or 30 years is reasonable. After all most of us have been involved with 20 or 30 year mortgages in our lifetimes. Most you can get is one current council - which can change in a matter of minutes.
BaltACD But 20 or 30 years is reasonable. After all most of us have been involved with 20 or 30 year mortgages in our lifetimes.
NEVER contract with that council, since every council can then invalidate any contract a prior council entered into.
If that is Pennsylvania law, why would ANYONE do business with ANY 'city council' in the state?
BaltACD zugmann BaltACD But 20 or 30 years is reasonable. After all most of us have been involved with 20 or 30 year mortgages in our lifetimes. Most you can get is one current council - which can change in a matter of minutes. NEVER contract with that council, since every council can then invalidate any contract a prior council entered into. If that is Pennsylvania law, why would ANYONE do business with ANY 'city council' in the state?
A binding contract is with the City and the City attorney. The Council cannot simply change the terms at their whim.
If the Borough did in fact amend the amusement-tax ordinance, it has not posted to eCode360. I find it difficult to believe the Borough would not get the update done timely.
It would be comparatively simple to exclude the railroad from defined 'amusements' under section 396-58 by simply adding language that any operation on a Federally regulated railroad is not 'amusement'. Several other municipalities in Pennsylvania currently have appropriate language to this effect in their amusement-tax statute definitions, including one which does so to include a 'tourist' railroad operation wholly within their jurisdiction as an 'amusement' for tax purposes.
Likewise it would be simple to include comparable language in 396-60, exemptions, to indicate that no Federally-regulated railroad's operations qualify as amusements.
What the railroad is asking for, however, isn't something that any 'ordinance' could cover: it is at least two separate contractual agreements with the Borough of Jim Thorpe (and not with the persons on the current council): one stating that the borough will never reinstate the back-tax action; the other being that the borough agrees never to seek to instate an amusement tax, or any other tax relating to the renewed passenger operations. I don't think there is any particular ethical difficulty with assuring the former; I tend to agree with Zug on the latter. What I think would work is an agreement that says that the railroad, in its sole judgment, can suspend all operations involving boarding or alighting in Jim Thorpe immediately upon the borough's passing any ordinance or measure imposing a tax on passenger operations (they can specify what aspects of operations are to be free from harassment 'or else'.
As mentioned in the 'back threads' from last year, there are steps the railroad can take to keep Jim Thorpe 'taxability' from applying even to excursions it runs that are only 'out and back' transportation for tourists.
BaltACD and zugmann basically have it right. In Pennsylvania at least, (in theory) no government can contract away it's legislative powers, which would bind future governments. Here, the tax ordinance and any contract* based on it would be of that kind. Which is why John Kneiling said he woldn't trust governments to not 'welch' on deals. Other 'proprietary' matters which look like normal business - such as employee contracts, material purchases, vehicle leases, land purchases, etc. - can be the subject of long-term contracts. Not unheard for governments to renege on them, either, but at least then there's (in theory) a right to sue for breach of contract.
*Then again, there are the tax abatement zones to spur economic development, but somehow once a real estate deal is entered under those, then they're binding. Maybe because they're 'grandfathered'. Maybe they need to restructure that deal . . .
- PDN.
P.S. - From a post below the NewsWire article:
RBM&N probably figures they have all the time in the world to haggle about this. Who's going to want to ride their train during this pandemic anyway?
Here is the railroad's side of the story:
https://www.rbmnrr.com/happenings/2020/5/4/rbmn-update-regarding-passenger-trains-tofrom-jim-thorpe
EuclidHere is the railroad's side of the story: https://www.rbmnrr.com/happenings/2020/5/4/rbmn-update-regarding-passenger-trains-tofrom-jim-thorpe
Sounds like the lawyers for the Burough Council wants a lawyers full employment plan at the Council's expense. Have to keep up the billable hours.
I conclude that the town offered what seemed to be an offer to settle the disagreement over the tax, but the offer was not complete in its terms. When the railroad requested that the terms be made complete, the town refused. So there never was a complete offer to end the tax, or the collection process for what they regarded as back due tax. Apparently, the town's offer was not to permanently end the dispute or the tax, but rather, it was only an offer of a temporary suspension of the matter of collection. Then when the railroad asked the town to clarify their offer by making it permanent, the town refused. So it appears that the town's offer was not made in good faith.
BaltACDSounds like the lawyers for the Burough Council wants a lawyers full employment plan at the Council's expense. Have to keep up the billable hours.
Don't most towns have regular solicitors already? My borough does.
EuclidI conclude that the town offered what seemed to be an offer to settle the disagreement over the tax, but the offer was not complete in its terms. When the railroad requested that the terms be made complete, the town refused. So there never was a complete offer to end the tax, or the collection process for what they regarded as back due tax. Apparently, the town's offer was not to permanently end the dispute or the tax, but rather, it was only an offer of a temporary suspension of the matter of collection. Then when the railroad asked the town to clarify their offer by making it permanent, the town refused. So it appears that the town's offer was not made in good faith.
It's more complicated than that -- likely much more complicated.
It is interesting to compare this 'affair' with the white-water rafting precedents set in 49 Pa. D & C 3d 639 (1988), in which it is established that the 'amusement tax' is imposed on patrons for the right to enter the establishment in the Borough, with the railroad acting only as an unpaid collection and forwarding agent, and that providing the actual 'entertainment' in a government-protected region or area does not excuse payment of the tax as intended by the Legislature.
Why the Borough is having difficulty in getting the supposed 'amendment' to its ordinances published is another matter -- I'm giving them the benefit of a doubt on 'good faith' until I see the actual amendation date and amended text of the ordinance.
The legal 'sticking point' is likely just as Zug et al. say: the Borough does not want to be bound in perpetuity by a specific guarantee of exemption to the particular railroad. I don't blame them. On the other hand I see no reason why the Borough, which says it's willing to enter into contract to permanently waive tax-enforcement efforts and to exempt the railroad from the provisions of the amusement-tax ordinance, cannot and should not do that -- completely separate from their retaining the nominal authority to reinstate any tax 'persecution' or impose taxes of this or a novel type in future.
Remember what Chief Justice John Marshall said:
"The power to tax is the power to destroy."
In this case however, it just might mean self-destruction.
They should also remember what Jean-Baptiste Colbert said:
"The art of taxation consist of plucking the goose to obtain the maximum amount of feathers with the least amount of hissing."
Which means, when the goose starts hissing furiously, back off if you know what's good for you!
And in the immortal words of Samuel Goldwyn:
"A verbal agreement isn't worth the paper it's printed on!"
Sometimes I think a common mistake that these preservation/excursion operators make, is to assume everyone in their host city is a railfan.
I'm sure that it is an easy mistake to make, when you are out there running excursions, and both sides of the track are lined up elbow to elbow with footstomping foamers.
It's a shame for those operators that not everyone shares that enthusiasm.
Euclid I conclude that the town offered what seemed to be an offer to settle the disagreement over the tax, but the offer was not complete in its terms. When the railroad requested that the terms be made complete, the town refused. So there never was a complete offer to end the tax, or the collection process for what they regarded as back due tax. Apparently, the town's offer was not to permanently end the dispute or the tax, but rather, it was only an offer of a temporary suspension of the matter of collection. Then when the railroad asked the town to clarify their offer by making it permanent, the town refused. So it appears that the town's offer was not made in good faith.
When I assume that the offer was not complete in its terms, I mean that it left out the terms that would give any kind of permanence to the town's committment to do what the railroad wanted.
So that is what the railroad was asking for as an ammendment to the town's offer. The request for the ammendment is understanable because without it, the agreement is meaningless, and so it would leave standing the town's position that the amusment tax is justified and owed, and thus there may be another attempt to collect it soon.
So that is why I conclude that there never was an agreement even though the two parties seemed to agree verbally prior to the written committment. Also, it seems that it was the council that failed live up to the agreement by not giving any timeframe for their committment.
I doubt that there was a request for an agreement to last for all time. But with the agreement offered, there apparenly was no timeframe in the town's "committment." Without any time frame, the town could cancel the committment whenever they wanted to. Nobody wants to run a business in an uncertain setting like that. The railroad would not need an unconditional guarentee for eternity, but they would need some reasonalble assurance that the current dispute has been ended.
Overall, it seems like the Council feels trapped between the need to give up what they feel they are owed, and anger of the citizens for driving out the railroad. So they want to have it both ways.
Are these Philadelphia Lawyers?
Convicted One Sometimes I think a common mistake that these preservation/excursion operators make, is to assume everyone in their host city is a railfan. I'm sure that it is an easy mistake to make, when you are out there running excursions, and both sides of the track are lined up elbow to elbow with footstomping foamers. It's a shame for those operators that not everyone shares that enthusiasm.
Except in this case it's not a preservation/excursion operator complaining, it's the Reading & Northern, an FRA regulated regional railroad subject to the common carrier rules of interstate commerce. The Lehigh Gorge portion might carry sight seers and railfans but it also provides transportation to the Lehigh Gorge, it's not in the business of entertaining patrons.
Regardless of what PA law says what the railroad is asking is not beyond reasonable, nor does it go against PA law. The railroad is regulated by the Federal government, there fore you can conclude it is not providing a amusement/entertainment service(which is not what the railroad is regulated for as per their response). Technically speaking it's not even a tourist service as you can take the train one way from Jim Thorpe into the Lehigh Gorge and visit the Gorge, so it's really providing a transportation service, which is not an amusement/entertainment service. If I lived there I'd start a recall petition for the entire council and the city attorney(if he's elected and not hired) and start over with an entirely new council...one that at least might have some intelligence on it.
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