Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Century 21, Neil M. Montella, Inc. and Neil M. Montella, in his capacity as President of the Brookhaven Professional and Business Association v. The Borough of Brookhaven, No. 78-16190.
James P. Gannon, Beagan, Gannon & Barnard, for appellant.
Nicholas J. Emper, with him Ronald J. Klimas, Eckell, Sparks, Vadino, Auerbach & Monte, for appellees.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Rogers.
[ 57 Pa. Commw. Page 212]
The Borough of Brookhaven (Brookhaven) appeals from an order of the Court of Common Pleas of Delaware County which invalidated several parts of Brookhaven's taxing ordinance and regulations. We affirm in part and reverse in part.
In May of 1978, Brookhaven enacted a Business Privilege Tax Ordinance, which provides, in Section 102, as follows:
There is hereby levied for the tax year beginning June 16, 1978, and annually thereafter a tax for the general Borough purposes on the
[ 57 Pa. Commw. Page 213]
privilege of doing business as herein defined in the Borough of Brookhaven as follows:
A. The rate of the tax on each and every dollar of the whole or gross volume of business transacted within the territorial limits of the Borough of Brookhaven shall be 1.5 mills per $1000.00 of gross volume of business.
Brookhaven promulgated regulations in order to effectively administer this ordinance. Sections III-1 and III-2 of those regulations delineate what is meant by the term "doing business . . . in the Borough" and Section III-2(b) specifically provides that
[i]f a person engaged in a profession or vocation or in rendering personal services maintains a place of business only in the Borough of Brookhaven, the entire receipts from personal services must be included in the measure of the tax whether or not the services are performed in the Borough of Brookhaven. Receipts will be deemed attributable to the Borough of Brookhaven if they result from the efforts of employees who ...