Appeal from judgment of Court of Common Pleas of Dauphin County, No. 619 Commonwealth Docket, 1963, in case of Commonwealth of Pennsylvania v. Central Pennsylvania Quarry Stripping & Construction Company.
Richard C. Fox, with him McNees, Wallace & Nurick, for appellant.
Eugene J. Anastasio, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice O'Brien and Mr. Justice Roberts concur in the result.
This appeal raises the question of whether diesel fuel used to propel vehicles used by Central Pennsylvania Quarry Stripping & Construction Company (appellant) in its highway and other real estate construction business is taxable under the Selective Sales and Use Tax Act of March 6, 1956, P. L. (1955) 1228, as amended, 72 P.S. §§ 3403-1 to 3403-605. Appellant, following receipt of a use tax assessment for the period January 1, 1959, to May 31, 1962, from the Department of Revenue, pursued its administrative remedies and an appeal to the Court of Common Pleas of Dauphin County, all to no avail. It then took this appeal.
As originally enacted, the "Selective Sales and Use Tax Act" (Act) imposed a tax upon the use of tangible personal property within the Commonwealth. "Tangible personal property" was specifically defined in seventeen categories, the ones bearing on the present problem being as follows: "(1) Motor vehicles, trailers, semi-trailers and aircraft and all accessories, parts and equipment used in the maintenance, operation or repair of such motor vehicles, trailers, semi-trailers and aircraft, except gasoline.
"(3) All materials, supplies and equipment used in the construction, reconstruction, remodeling, repair and maintenance of any real estate.
"(4) Furnishings, appliances, supplies, fittings, ornaments, furniture, equipment and accessories for home, business, industrial or commercial use for indoor or outdoor purposes.
"(5) Business, industrial, professional and commercial supplies, equipment and machines of all types, including parts and accessories purchased on, or used in connection therewith.
"(13) Fuel oil and petroleum products for heating purposes, natural, manufactured and bottled gas and steam."
This initial enactment, however, had a short life for the Act of May 24, 1956, P. L. (1955) 1707, completely revised the Act. The relevant portions of the definition of tangible personal property became: "(1) Motor vehicles, trailers, semi-trailers and aircraft and all accessories, supplies, parts, lubricants and equipment used in the maintenance, operation or repair of such motor vehicles, trailers, semi-trailers and aircraft." (3) and (4) were unchanged. In (5) the word "on" was changed to "for." "(13) Fuel oil and petroleum products for heating purposes; steam and natural, manufactured and bottled gas; electricity, intra-state telegraph service and intra-state telephone service." In addition, the May 24 amendment added an exemption*fn1 from tax to § 203 of the Act as follows: "(f) The sale at retail, or use of gasoline and other ...