Appeal from the Order of the Court of Common Pleas of Lancaster County in case of David G. Heisey, John E. Martin, Blaine E. Miller, David Z. Heisey, Robert F. Strickland, Charles M. Cobaugh, David Martin, Mr. and Mrs. Wilbur F. Geibe, Jacob N. Olweiler, David Gerber, Spencer A. Heisley, Paul Fick, Harry J. Graham, Steven L. Reinhold, Ronald Fink, Michael Marchiori, Wayne E. Miller, Lloyd P. Cratsley, Rodney E. Miller, Gerald A. Mellinbach, John C. Good, Helen Miller, Robert M. Miller, JoAnn Miller, Dennis Snyder, James H. Erb, Donald R. Weider, Richard A. Erb, Louis Ulrich, Joseph W. Maher, Mr. and Mrs. Warren Aungst, Jr., Mr. and Mrs. John Grosh, Donald S. Miller, Mr. and Mrs. James Miller, Barbara A. Miller, Nancy Harnish, Jay Ronald Harnish, Christian N. Miller, Susan E. Miller, Robert T. Gorden, Michael Chapman, Joseph Kauffman, Dennis Martin, Kathy Martin, Mr. and Mrs. Glenn Mellinger, John S. Williams, Paul M. Brubaker, Richard A. Sweigart, Dr. Proas B. Modglin, Mr. and Mrs. Jay E. Kretzing, Michael W. Gantz, Troy Sweigart, Frank Hoover, Audrey Hoover, Robert White, Ruth White, Robert B. Kready, Harold Murphy, Mary Murphy, Jay Dupler, Joyce Dupler, Edward Murphy, Ralph Horn, Sandy Horn, Carl Donough, Robert Wagner, Less Brosius, Daniel J. Lamb, Paul J. Liskey, Keith E. Murphy, Herbert E. Hoover, Allen E. Good, Robert I. Good, Michael L. Autrey, Samuel R. Jones, Jay F. Risser, Albert Goodling, Daniel C. Gohn, Slaugh-Fagan, Jones & Zink, Jacolyn M. Schulman, Harry S. Snyder and John H. Fry v. Elizabethtown Area School District, Trust Book No. 46, Page 214.
Michael J. Hohenadel, with him John P. Hohenadel, Nikolaus, Hohenadel & Greiner, for appellants.
Michael W. Babic, with him George T. Brubaker, Hartman, Underhill & Brubaker, for appellee.
President Judge Crumlish, Jr. and Judges Blatt, Williams, Jr., Craig and MacPhail. Opinion by Judge Craig. President Judge Crumlish, Jr. concurs in the result only. Judge Mencer did not participate in the decision in this case. Judge Palladino did not participate in the decision in this case. Dissenting Opinion by Judge Blatt. Judge MacPhail joins in this dissent. Dissenting Opinion by Judge MacPhail.
The appellants seek review of an order of the Court of Common Pleas of Lancaster County upholding a tax imposed by the Elizabethtown Area School District on the privileges of obtaining a building permit and engaging in building construction.*fn1
as used in a legislative enactment is given its ordinary and general meaning. It consists in the application of labor or skill to material whereby the original article is changed into a new, different and useful article. . . . Whether or not an article is a manufactured product depends upon whether or not it has gone through a substantial transformation in form, qualities and adaptability in use from the original material, so that a new article or creation has emerged. . . . If there is merely a superficial change in the original materials, without any substantial and well signalized transformation in form, qualities and adaptability in use, it is not a new article or new production. . . ."
Commonwealth v. Deitch Co., 449 Pa. 88, 93-94, 295 A.2d 834, 837 (1972) (quoting Commonwealth v. Berlo Vending Co., 415 Pa. 101, 104, 202 A.2d 94, 96 (1964)) (citations omitted).
There has been no judicial determination as to whether or not manufacturing under Section 2(4) of the Act includes the construction of homes, although the building of homes has been held not to be a manufacturing process for purposes of the Capital Stock Tax Act, Act of June 1, 1889, P.L. 420, as amended, 72 P.S. § 1871-1903. Commonwealth v. Wark Co., 301 Pa. 150, 151 A. 786 (1930). The court there commented that the common usage of the word "manufacture" was not applicable to homes, which are consistently referred to as being "built", "constructed" or "erected". Id. at 155-56, 151 A. at 788.
We are not bound by the court's ruling in Wark,*fn2 but we find its reasoning to be persuasive. We agree
that, in common parlance, a home is not said to have been "manufactured" but rather it is "built", "constructed" or "erected",*fn3 and that the common and accepted definition of "manufacture" does not include the construction of a home. We acknowledge that building a house may involve "the application of labor or skill to material whereby the original article is changed into a new, different and useful article." Deitch, 449 Pa. at 93, 295 A.2d at 837. However, to apply the word "manufacture" to the process of erecting a home would require a strained interpretation of that term as it is used in Section 2(4) of the Act.
The legislature did define "manufacture" in Section 201 of the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7201, and that definition is consistent with our proposed resolution of the issue here concerned; it provides that manufacture "shall not include construction, altering, servicing, repairing or improving real estate. . . ."
We must conclude, therefore, in light of the language of Section 2(4) of the Act, of our Supreme Court's ruling in Wark, of the common usage of the word "manufacture" and of the legislature's definition of that term in Section 201 of the Tax Reform Code, that the General Assembly ...