V.L. Rendina v. Harrisburg S.D. (Dissenting Opinion)

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[J-66-2006] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT V.L. RENDINA, INC., Appellee v. THE CITY OF HARRISBURG AND THE HARRISBURG SCHOOL DISTRICT, Appellants : : : : : : : : : : : : No. 130 MAP 2005 Appeal from the Order of the Commonwealth Court entered on October 7, 2004 at No. 46 CD 2004 which reversed the Order of the Court of Common Pleas of Dauphin County, Civil Division, entered on December 10, 2003 at No. 2003 CV 3148 MP. ARGUED: May 8, 2006 DISSENTING OPINION MR. CHIEF JUSTICE CAPPY DECIDED: December 27, 2007 I respectfully dissent. Under Ordinance 31, Appellants levied a business privilege tax. The propriety of Appellants business privilege tax is measured under the Local Tax Enabling Act, 53 P.S. §6901 et seq. In this regard, this Court s decision in Gilberti v. City of Pittsburgh, 511 A.2d 1321 (Pa. 1986) is controlling. I agree with the Commonwealth Court, that application of Gilberti to the stipulated facts leads to the conclusion that Appellee s job trailer was not a base of operations within the taxing jurisdiction. See id. at 1326. Therefore, I would hold that Appellee was not subject to Appellants business privilege tax, and would affirm the Commonwealth Court.

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