Appeal from the Order of the Board of Finance and Revenue in the case of Re: Appeal of Joseph F. Rossi, t/a Pizzeria.
Ernest B. Orsatti, with him Joseph J. Pass, Jr., Neal R. Cramer, McKay, Arch & Steele, and Jubelirer, McKay, Pass & Intrieri, for appellant.
Paul S. Roeder, Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Judge Wilkinson concurs in the result only.
[ 20 Pa. Commw. Page 518]
This is an appeal by Joseph F. Rossi, t/a Pizzeria, from an order of the Board of Finance and Revenue. The Board refused Rossi's petition for review and sustained the decision of the Sales Tax Board of Review assessing Rossi for sales tax for the period January 1, 1968 through June 30, 1970. The issue in this case is whether the sale of baked pizza by Rossi was a sale from an "eating place." We conclude that it was not and, therefore, reverse.
In lieu of a trial by jury, the parties have entered into a stipulation which sets forth the pertinent facts and the procedural features of this case. The stipulation reads in pertinent part as follows:
1. Appellant, Joseph F. Rossi, is the sole proprietor of the Pizzeria situated at 1225 Fourth Avenue, Coraopolis, Pennsylvania 15108.
2. Appellant's business operation, which is identical to the present operation, has remained the same during the entire period of the assessment which is in question herein.
3. The pizza prepared by Appellant is prepared from basic raw ingredients by a process of mixing them together with the end result being an edible product.
4. Appellant prepares on its business premises all the dough, sauce and other assorted ingredients used in the making of pizza.
5. All the pizza sold by Appellant is boxed and taped for take-out by the customer.
[ 20 Pa. Commw. Page 5196]
. Appellant provides no place on its immediate business premises where patrons can consume the pizza.
7. Some of the pizza sold by Appellant is baked and some is sold unbaked. The Bureau of Taxes for Education considered taxable only that portion of Appellant's sales which were baked and assessed only those sales.
8. The Appellant does not cater to or home-deliver pizza or any other product to any customer.
9. There is no distinction in the making of a pie, bread, cake and the like than in the way the Appellant makes its pizza, except ...