Appeal from the Order of the Board of Finance and Revenue in case of In Re: Petition of Eastern Auto Car Wash, Inc. Transferred to the Commonwealth Court of Pennsylvania from the Court of Common Pleas of Dauphin County, September 1, 1970.
Lewis H. Markowitz, with him Markowitz, Kagen & Griffith, for appellant.
Edward T. Baker, Deputy Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
[ 10 Pa. Commw. Page 208]
The appellant, Eastern Auto Car Wash, Inc. (Eastern), is the owner and operator of two self-service, coin-operated car washes. Both of these operations are unattended but are visited by Eastern's employees at various
[ 10 Pa. Commw. Page 209]
times each week for the purpose of checking to determine if they are functioning properly, emptying coin changers and coin collection boxes, and replacing any items of equipment requiring change or repair.
In 1967 Eastern's operations were audited by the Bureau of Taxes for Education, for the period from January 5 to October 31, 1965, and this audit resulted in an additional assessment of sales taxes against Eastern in the amount of $764.22, plus interest, pursuant to the Tax Act of 1963 for Education.*fn1 Eastern filed a petition for reassessment, which was denied by the Sales Tax Board, and this decision was affirmed by the Board of Finance and Revenue. An appeal then taken to the Court of Common Pleas of Dauphin County was later transferred to this Court. The parties have filed a stipulation of facts which we adopt as our findings of fact and incorporate herein by reference. A trial by jury has been waived as provided by the Act of April 22, 1874, P.L. 109, § 1, 12 P.S. § 688.
The essential question at issue is whether or not the provision of Eastern's self-service car washes for the use of their customers constitutes a "sale at retail" for sales tax purposes.
Section 201(a) of the Tax Act of 1963 for Education, 72 P.S. § 3403-201(a), imposed a tax*fn2 "upon each separate sale at retail as defined herein," and Section 2(j) of the Act listed a series of definitions of "sale at retail." The definition cited by the Sales Tax Board in this case was that contained in Section 2(j)(4) and it read as follows: " The rendition for a consideration of the service of repairing, altering, mending, pressing, fitting, dyeing, laundering, dry cleaning or cleaning tangible personal property or applying or installing tangible
[ 10 Pa. Commw. Page 210]
personal property as a repair or replacement part of other personal property for a consideration, whether or not the services are performed directly or by means of coin-operated equipment or by any other means, and whether or not any tangible personal property is transferred in conjunction therewith, except such services as are rendered in the construction, reconstruction, remodeling, repair or maintenance of real estate. . . ." (Emphasis added.) It is argued by Eastern, however, that its operations, if taxable, would have to be covered by the definition of Section 2(j)(3)(i) which reads as follows: "The rendition for a consideration of the service of -- (i) Washing, cleaning, waxing, ...