Upper Darby’s attempts to enact an earned income tax has again run into resistance.
On Monday, four residents filed a petition in Common Pleas Court, claiming the newly enacted earned income tax has multiple errors that invalidate it.
The ordinance was approved by a 7-4 vote in late February, and would go into effect on July 1.
The plaintiffs claim wording in the ordinance enacted the tax immediately upon the signature of Mayor Ed Brown, which he did Feb. 19, following its passage in council.
The suit also states the EIT ordinance overwrote a 2023 Business Mercantile License Fee and uses the same section dedicated to that fee, which the plaintiffs believe means either the fee or EIT can’t be implemented.
The suit also claims the ordinance violates the State Statutory Construction Act by trying to make the ordinance liberally construed in the favor of the township, which they said is a violation.
“The law says it has to be done a certain way. We quote sections of the law they clearly violate,” said John DeMasi, one of the four residents who filed the suit. “The law clearly said the ordinance cannot go into effect.”
DeMasi said during discussions in council on the ordinance, it was pointed out there were multiple issues and they should have taken the time to do it properly but “they rushed it.”
Township’s response
In reaction to the suit, Mayor Ed Brown and the township administration sent out a press release refuting the claim that the EIT was done improperly.
“Our administration and the majority of Council are confident that all proper procedures were followed in adopting this tax,” said the press release.
Upper Darby Mayor Ed Brown
Brown said the four opposing it are focusing on technicalities, rather than addressing the core sustainability issues facing the township.
He said over the past year, officials have held numerous public meetings to clearly explain the need for EIT and to be transparent about the financial challenges facing the sixth most-populous municipality in Pennsylvania.
The proposed EIT is a crucial step to address the significant operational and capital shortfalls projected, based on studies from a leading independent municipal finance adviser and a financial advisory firm specializing in serving government, the press release said.
Brown pointed out Upper Darby is one of thousands of municipalities in the state who use the EIT
“This proposal is neither extreme nor without precedent. According to the Pennsylvania Department of Community and Economic Development, as of 2013, 2,356 municipalities in the state have implemented an EIT, including all municipalities with a population similar to Upper Darby,” Brown said in his press release.
Activist residents
DeMasi said he wants what is best for the township. He suggested a gradual phase in of the tax at 0.25% while offsetting reductions in real estate taxes, but those suggestions have been nonstarters with the administration.
DeMasi and the group of vocal residents have been successful in the past stopping the EIT as well as pointing out errors in township legislation.
DeMasi was one of the seven residents who brought a suit against the previous EIT attempt to court and in December Common Pleas Judge Spiros E. Angelos agreed and invalidated the township’s Sept. 4 ordinance because it violated the township’s home rule charter and it was voted on at a workshop meeting, not a regular council meeting.
A township ordinance on limiting public speaking times during public hearings was also overturned for the same issue.
In January 2024, the residents pointed out an accounting error that would have made real estate taxes a fraction of their assessed rate. The residents also successfully sued to stop the township from taking back promised ARPA funds from the Upper Darby Art Foundation.
A judge has not yet been assigned to hear the lawsuit.
A request to the township administration on whether the EIT had been reviewed by the Pennsylvania Department of Community and Economic Development was not answered Tuesday.
On the agenda for the council meeting Wednesday, is Vice President Andrew Hayman’s announcement of his resignation as he is moving away.
Council is also expected to discuss the situation with paramedic service of Crozer EMS.
Originally Published: March 19, 2025 at 7:16 AM EDT