Appeal from judgment of Court of Common Pleas of Dauphin County, No. 659 Commonwealth Docket, 1964, in case of Commonwealth v. Public Constructors, Inc.
Ethel S. Barenbaum, with her S. Sandra Barenbaum, Herman M. Barenbaum, and Barenbaum and Barenbaum, for appellant.
Eugene J. Anastasio, Deputy Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno did not participate in the decision of this case.
This is an appeal from the judgment of the Court of Common Pleas of Dauphin County, refusing to allow
to appellant a Use Tax Exclusion. Appellant, a construction contractor located in New Jersey, constructed runways for the Philadelphia and Allentown-Bethlehem-Easton airports. The Commonwealth assessed a Use Tax under the Selective Sales and Use Tax Act of March 6, 1956, P. L. (1955) 1228 as amended, 72 P.S. 3403-1 et seq. on the materials used in the construction of the runways for the two airports. Appellant contended that the materials used in the construction of the runways were exempt from tax under the public utility exclusion provided for in the Act, as amended by the Act of April 5, 1957, P. L. 34, which provides: ". . . the term 'use' shall not include . . . (3) The use or consumption of tangible personal property including, but not limited to machinery and equipment and parts and foundations therefor, and supplies . . . directly in any of the operations of . . . (iii) The producing, delivering or rendering of a public utility service, or in constructing, reconstructing, remodeling, repairing or maintaining the facilities used in such service. . ." (Emphasis supplied)
The court below refused to apply the exclusion, holding that the public utility exclusion only extends to contracts performed for a public utility.
The instant contract was not performed for a public utility, the court held, because the airports themselves were not public utilities,*fn1 and the acknowledged
public utilities, the air carriers, did not have the exclusive right to use the runways.
Appellant urges that the clear meaning of the words of the statute requires that the exclusion be applied. The statute says that "use" does not include materials involved "in constructing . . . ...