Upper Darby set to make third try on earned income tax

Upper Darby will put the wheels in motion Wednesday night to make its third try in implementing an earned income tax (EIT) on citizens of the sixth largest municipality in the commonwealth.

The agenda for tonight’s township council meeting includes a vote to introduce and advertise Ordinance 3189, which, if passed, would create a one-percent income tax.

Placing a new EIT on the agenda is nothing short of a full admission that the township’s previous EIT ordinance passed in February was illegal — or an admission that fighting it would take too long. 

When the township passed the February EIT, resident John DeMasi, along with four other citizens, called the township out by taking it to court last month. In the court filing, DeMasi and his colleagues argued the township was trying to start the tax immediately despite the fact a state law says newly implemented taxes cannot begin until 30 days later.

February’s attempt, meanwhile, was an effort to correct the township’s first failed attempt from 2024 which was eventually struck down by a judge last December.

To recap: The first try in September was struck down in December. The follow-up attempt in February is currently in court. And Wednesday night, the township will take the beginning steps on try number three.

The ordinance proposed for this evening is obviously poised to dodge the 30-day implementation issue, with the language of the proposed ordinance saying the EIT “shall not go into effect until thirty days from the time of adoption[.]”

Additionally, Wednesday’s vote only would approve some of the bureaucratic first steps — like advertising a hearing on a proposed ordinance, the kind of advertising required by the commonwealth’s sunshine laws — and does not appear to be a vote on the final tax itself.

A spokesman for the township said Mayor Ed Brown (D) declined to comment on the agenda.

DeMasi and company’s February lawsuit clearly irked Brown.

“We are confident in the legality of our actions and will strongly defend the council’s right to implement the EIT as passed,” Brown said in a statement reported by the Inquirer.

Two days after that statement, Mayor Brown took direct aim at DeMasi, blaming him for a host of the township’s woes.

“I was saddened to learn [on March 19] that a small group of residents are suing the township again to disrupt the implementation of the EIT,” Brown said at a council meeting. “The last lawsuit cost the township millions of dollars in needed revenue so it is clear their focus is not on what is best for the township.”

DeMasi said Brown’s frustration is out of line. 

“I find it highly inappropriate to point the finger at a resident who broke no law, and try to focus the anger on him,” he said. 

“I was surprised when I saw an Earned Income Tax Ordinance on the Agenda,” slated for this evening, Councilwoman Laura Wentz (I) said. “I thought they would have an ordinance to reinstate the [township’s] Mercantile Tax, since it was removed” when the township passed the EIT in February.

“This is all happening in my opinion because they don’t read the Home Rule Charter or proofread any of the documents as far as I can tell by all the mistakes,” Wentz concluded.

Republican Councilwoman Meaghan Wagner said the township has had many warnings that it wasn’t dotting the i’s and crossing the t’s.

“They are essentially admitting that yet again, they screwed up. I have suggested to the administration and council repeatedly that the best course of action is to wait until we have a new solicitor in place and do it correctly,” Wagner said. “Instead, they ignore me again, forcing the EIT down the taxpayers’ throats and did it wrong. There is so much time wasted because of sloppiness and incompetence and this is just another example to add to the list.” 

DeMasi, meanwhile, says there’s still one more legal issue to be answered, and that’s whether the township can repeal an ordinance that is currently being litigated.

“I’m not a lawyer, I’m not a judge, but as I read the law, you cannot do what they are doing,” DeMasi said. “There are steps and requirements to enact an EIT in Pennsylvania and ‘repeal and replace it while it’s under litigation after you said it was fine’ doesn’t appear anywhere in the Pennsylvania Code.”

Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at tshepherd@broadandliberty.com, or use his encrypted email at shepherdreports@protonmail.com. @shepherdreports