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decided: January 9, 1985.


Appeal from the Order of the Court of Common Pleas of Berks County in case of City of Reading v. Van Bennett Food Co., Inc., No. 289 June 1982.


Gene M. Venzke, Mogel, Speidel & Roland, for appellant.

Peter F. Cianci, First Assistant City Solicitor, with him, Jack A. Linton, City Solicitor, for appellee.

Judges Doyle, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 87 Pa. Commw. Page 31]

The City of Reading (City) filed a complaint on June 24, 1982, in the Court of Common Pleas of Berks County (trial court) seeking a declaratory judgment that the revenue which Van Bennett Food Co., Inc. (Appellant) receives from its production of certain food products is subject to the City's Business Privilege Tax which was enacted pursuant to the authority of The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. §§ 6901-6922.

The articles produced by Appellant which are at issue include: potato salad, macaroni salad, cole slaw, pepper cabbage, baked lima beans, rice pudding, tapioca pudding, health salad, egg salad, tuna salad,

[ 87 Pa. Commw. Page 32]

    cranberry relish, potato filling, bread filling, corn pies, clam corn pies, oyster pies, clam chowder, macaroni and cheese and red beet eggs. The City argued before the trial court that these articles do not constitute manufactured goods and therefore do not fall within the manufacturing exemption found in Section IIIc(5) of the City's ordinance, which is similar to the exemption in Section 2(4) of the Enabling Act, 53 P.S. § 6902(4).

At the non-jury trial the City offered evidence showing that since 1980, Appellant had not included in its gross receipts the income derived from the production and sale of the nineteen different food products listed above. The City also introduced into evidence Appellant's answers to the City's interrogatories detailing the method of preparation for each of these food products. Based on this evidence, the Chancellor concluded that Appellant's corn pies, clam corn pies and oyster pies are manufactured goods and are therefore not subject to the tax. The Chancellor further concluded that the remaining sixteen products are not manufactured and are subject to the City's tax. Appellant appealed this adjudication of the Chancellor which, after consideration of Appellant's exceptions, was adopted by the trial court en banc. This appeal followed.*fn1 For the reasons that follow, we affirm the trial court.

Section 2 of the Enabling Act, 53 P.S. § 6902(4), provides that local authorities shall not have the authority:

(4) To levy, assess, and collect a tax on goods and articles manufactured in such political subdivision or on the by-products of manufacture

[ 87 Pa. Commw. Page 33]

. . . or on any privilege, act or transaction related to the business of manufacturing . . . with respect to the goods, articles and products of their own manufacture. . . .*fn2

Thus, the issue presented for our consideration is whether Appellant's production of any or all of the sixteen different food products at issue constitutes "manufacturing" under the provisions of the Enabling Act and the City's ordinance so as to exempt the revenue derived from their sale from the City's Business Privilege Tax.

Inasmuch as the term "manufacturing" is not defined in either the Enabling Act or the City's ordinance, we are guided by numerous decisions of our Supreme Court from which has emerged the following definition:

"Manufacturing" 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: Commonwealth v. Weiland Packing Company, 292 Pa. 447, 449, 141 Atl. 148 (1928); Pittsburgh v. Electric Welding Company, 394 Pa. 60, 145 A.2d 528 (1958). 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: General Foods Corp. v. Pittsburgh, 383 Pa. 244, 118 A.2d 572 (1955). If there is merely a superficial change in the original

[ 87 Pa. Commw. Page 34]

    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. Weiland, supra. Pittsburgh Electric Welding Co., supra.

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)). "The process of manufacture brings about the production of some new article by the application of skill and labor to the original substance or material out of which such new product emerges." Commonwealth v. Weiland Packing Co., 292 Pa. 447, 450, 141 A. 148, 149 (1928).

Several cases involving the production or processing of articles of food illustrate that "manufacturing" involves more than "merely a superficial change." For example, in Weiland Packing Co. our Supreme Court denied the "manufacturing" exemption to a corporation which cut, cured and smoked "hams" from the carcasses of slaughtered animals. The Court reasoned that "the purpose and use for which [the ham] was originally cut from the carcass . . . is exactly the same -- to be used as food." Id. at 452-453, 141 A. at 150. Similarly, the Court in Armour & Co. v. Pittsburgh, 363 Pa. 109, 69 A.2d 405 (1949) held that the pickling, smoking, boiling, etc., of meat did not constitute "manufacturing" because a new and different substance did not emerge from the processing. In Berlo Vending Co., mixing "popcorn" kernels, coconut oil, and salt and heating the mixture until the kernels "popped" was also held not to constitute "manufacturing". Although the kernels expanded to many times their original size, this change in form was deemed by the Court to be merely superficial. Moreover, the Court noted:

[ 87 Pa. Commw. Page 35]

The popping of corn does not require any specific skill or elaborate machinery. It can be done in the home by a child in a smaller scope in the same manner as appellant accomplishes in its plant. There is no application of labor, skill, art or science to provide a well signalized change as those terms are known. There can be little doubt that the courts have required a certain degree of skill, art or science be employed.

Id. at 105, 202 A.2d at 96.

In Commonwealth v. Lowry-Rodgers Co., 279 Pa. 361, 123 A. 855 (1924), our Supreme Court held that roasting coffee beans does not constitute "manufacturing" for mercantile license tax purposes. In response to the argument that the chemical change resulting from the roasting of beans brings that process within the definition of "manufacturing" the Court stated: "If this supposed distinction furnished the test, then frying eggs, etc., etc., would be manufacturing, for the application of heat to them requires skill, and effects a chemical change also; . . . [I]t is probable that few, if any, people would say that the process of cooking is in fact manufacturing. . . ." Id. at 367, 123 A. at 856. In General Foods Corp. v. Pittsburgh, 383 Pa. 244, 118 A.2d 572 (1955), the Court concluded that decaffeinated and instant coffee and tapioca were not manufactured goods inasmuch as these products had not "gone through a substantial transformation in form, qualit[y], and adaptability in use from the original material so that a new article or creation ha[d] emerged." Id. at 251-252, 118 A.2d at 576.

[ 87 Pa. Commw. Page 36]

On the other hand, there have been cases in which certain food products have been deemed to be "manufactured" goods. In Rieck-McJunkin Dairy Co. v. Page 36} School District of Pittsburgh, 362 Pa. 13, 66 A.2d 295 (1949), the Court held that the making of ice cream, cottage cheese and butter constitutes manufacturing. The Court concluded that although these articles are made from milk which has been deemed not to be a manufactured product, they constitute "'a new and different article' from the milk." Id. at 22, 66 A.2d at 299. In the more recent case of Kirks Milk Products, Inc. v. Commonwealth, 58 Pa. Commonwealth Ct. 230, 427 A.2d 688 (1981), this Court held that the production of skim milk powder and buttermilk constitutes "manufacturing". The Court found that production involved a high degree of skill, science and labor, and the final products were substantially different in form, qualities and adaptability in use from liquid milks.*fn3 In Commonwealth v. Snyder's Bakery, 348 Pa. 308, 35 A.2d 260 (1944), the production of potato chips from raw whole potatoes, hot fat, vegetable oils, and salt constituted "manufacturing" for mercantile license tax purposes. The Court held that the production of potato chips, consisting of cleaning, slicing, drying, immersing in hot fat and vegetable oils, draining, drying and salting raw potatoes resulted in a product which is different in its form and content from a raw potato and is adapted to an entirely different use.*fn4 The Court noted that

[ 87 Pa. Commw. Page 37]

"[t]his is not a case where there has been a mere chemical change in the article itself." Id. at 310, 35 A.2d at 261. And in Pillsbury Mills, Inc. v. Pittsburgh School District, 408 Pa. 369, 184 A.2d 236 (1962), the milling of wheat into flour was said to be "manufacturing" for mercantile license tax purposes. The milling operation was said to be "an intricate technologically sophisticated process . . . [which] includes the grinding, blending and processing of the many types of wheat into flour of varying characteristics which will be used for countless purposes". Id. at 372, 184 A.2d at 237.

Thus, we must determine first whether the preparation methods used for the food products at issue consists of the application of a high degree of skill, science and labor; and second, whether there has been a substantial transformation in form, qualities and

[ 87 Pa. Commw. Page 38]

    adaptability in use so as to produce a new, different and useful article.

With respect to the food products at issue in the instant case, the record indicates that the preparation of cole slaw, pepper cabbage, health salad, tuna salad, and cranberry relish all involve a similar process consisting of cutting, chopping or dicing the primary ingredients,*fn5 blending them together in a prepared dressing and packaging the final product. We do not find that the preparation of these products constitutes "manufacturing" as that term has been defined. We fail to see how the preparation of these products requires a high degree of skill, science or labor. It can certainly be done in the home on a smaller scale. See Berlo Vending Co. Moreover, although the method of preparation altered the size, shape and, in some instances, color of the original ingredients, these ingredients had not been changed to new and useful articles, substantially different in qualities and adaptability in use. The ingredients retained their same essential qualities and surely the final product is not to be put to a use not intended for the original ingredients.

The preparation of potato and macaroni salad, baked lima beans, potato filling, bread filling, red beet eggs, egg salad, macaroni and cheese, rice pudding, tapioca pudding, and clam chowder also involves the blending together of a number of ingredients.*fn6 The distinguishing feature is that the preparation of these products involves cooking some or all of the ingredients.

[ 87 Pa. Commw. Page 39]

The preparation of both macaroni salad and macaroni and cheese involves cooking the macaroni to the desired consistency prior to blending it together with the other ingredients. Baked lima beans are prepared by baking the beans in a prepared sauce. Potato salad and filling are prepared by steaming the diced potatoes prior to mixing them together with the other ingredients. Bread filling is prepared by sauteing various vegetables and spices prior to blending them together with bread. The preparation of red beet eggs consists of steaming eggs prior to adding them to the prepared beet juice. The eggs in egg salad are boiled and cooled prior to blending them in a prepared dressing. Rice pudding is prepared by cooking the rice, adding the remaining ingredients and baking the mixture. Tapioca pudding is prepared by cooking the granulated tapioca, milk and the remaining ingredients in a kettle. Finally, clam chowder is prepared by cooking the clam base, chopped clams, chopped vegetables and remaining ingredients in a kettle.

Although cooking is involved in the preparation of these products, no high degree of skill, science or labor is required. Moreover, as noted previously, our Supreme Court in Lowry-Rodgers Co. concluded that cooking is not manufacturing. Although cooking chemically and physically altered the original ingredients a new and different product has not emerged. The final product is not to be put to a use other than that which had been intended for the original ingredients.

For these reasons, we conclude that Appellant's preparation of the sixteen food products at issue does not constitute "manufacturing" and hence is not entitled to the exemption. Accordingly, we affirm the order of the trial court.

[ 87 Pa. Commw. Page 40]


And Now, January 9, 1985, the order of the Court of Common Pleas of Berks County at Civil Action No. 289, June, 1982, dated November 14, 1983, is affirmed.



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