The conflict between Kennywood Entertainment and West Mifflin over collection of the borough's amusement tax is set for a May 7 jury trial.

However, that will not occur if Kennywood is successful on April 7 in its summary judgment motion with Common Pleas Court to grant judgment in Kennywood's favor.

Kennywood's attorney, Kurt A. Miller, of Thorp Reed and Armstrong, in Pittsburgh, said it is their contention that the borough has discriminatingly collected the tax exclusively from Kennywood since 1999.

Kennywood is asking that the court require the borough to surrender the amounts it collected since then and pay into a trust fund.

"The lawsuit has nothing to do with the level of the tax but with West Mifflin's collection of the tax almost exclusively from Kennywood and not from other amusement producers in the borough," said Mr. Miller.

He cited a shooting range, public golf course, and a children's-oriented amusement center as among numerous entities which fit the definition of an amusement facility under the borough ordinance, but which do not pay the tax.

West Mifflin Solicitor Mike Adams, of Adams & Foley LLC, in Pleasant Hills, said Kennywood is attempting a constitutional argument about nonenforcement under the uniformity clauses of the Pennsylvania and U.S. constitutions.

"We adamantly deny this," he said.

"Kennywood is trying to circumvent trial by filing a motion for summary judgment on the basis it can be decided purely on law without the facts. We adamantly refute that because significant facts must be resolved," he said.

The April 7 date is a re-argument on the motion for summary judgment as Common Pleas Judge Paul F. Lutty Jr. recused himself from the case on Feb. 12.

On another front, Kennywood is lobbying to eliminate the amusement tax at all such parks in the state.

A bill approved by the Senate Finance Committee on Feb. 11 would bar municipalities from levying the tax on 18 amusement and water parks. The bill must face the whole Senate and then the House.

In an opinion piece in the Post-Gazette on Feb. 25 in which he advocated repeal of the tax, Kennywood Entertainment President Peter J. McAneny said guests to parks generate "little to no additional burden for a local municipality."

He cited Kennywood's public safety department, contracting for an ambulance service, annual donations to local fire departments and its payment for all garbage collection, water, sewage, and waste-water treatment. Guests largely arrive via non-borough-maintained roads, he wrote.

The West Mifflin amusement tax was put into place in 1976 at a rate of 10 percent, with proceeds split between the borough and the West Mifflin Area School District.

In 1986, Kennywood asked the borough for tax relief, and council complied, capping the tax at $1 per ticket.

Calling it a "gentleman's agreement" with the borough, Andy Quinn, director of community relations for Kennywood Entertainment, said both taxing bodies were happy with the arrangement.

"We decided at the time to cap it at a dollar and the money saved we would put back into hardware like bigger, newer rides to attract more people," he said.

Greater attendance meant more tax money, he said.

That tax relief remained in place for nearly 18 years.

Mr. Adams said that during that time Kennywood saved millions of dollars as its ticket prices continued to rise.

In December 2003, borough council removed the cap.

That is when, said Mr. Adams, Kennywood voiced a concern about problems with the tax and the borough's enforcement of it.

The park also began lobbying the state to have the tax repealed.

In late 2005, Kennywood sued the borough, claiming it selectively collected the tax.

Mr. Quinn said Kennywood is seeking damages back to 1999 because it can document that other entities which qualified under the ordinance to pay the amusement tax did not.

"If you pay a cover charge into a bar for karaoke night, it should be taxed. Any admission like a gun club should be taxed," said Mr. Quinn.

The school district was never exempted for events requiring admission fees, like football games, he said, and the tax was never collected.

Mr. Adams said the borough welcomes a trial to resolve these issues and more.

"We look forward to our day in court," he said.