The opinion
Justice EAKIN,
dissenting.
“The purpose of the public utility exclusion is obviously to save the public utilities, and thus the public, the cost of the use tax which would undoubtedly be passed on to the public utility where facilities were constructed for it.” Commonwealth v. Public Constructors, 432 Pa. 589 , 248 A.2d 29, 31 (1968). If a private project provides for the public in lieu of the government doing so, tax consideration is logical and appropriate.
This logic underlies the decision of this Court in Public Constructors , which held if one is to avoid 100% of the tax, 100% of the project must benefit the public — anything less would result in a windfall for the contractor, at the expense of the taxpayer. “[Wjhere the use is less than exclusive, and the exclusion were allowed, the Commonwealth forgoes the entire tax while only part of the resulting lower cost of the project would redound to the benefit of the citizens of the Commonwealth.” Id,, at 31. The exclusion is not scaled — if applicable, 100% of the tax otherwise flowing to the public coffers is excused. Here, 88% of the project is for public use, but 12% is not, and the tax on 12% of a project this size is no small matter.
As the Majority notes, the facts of Public Constructors are nearly identical. The legislature has had years to amend the *394 statute if the rule of exclusivity was deemed inappropriate; it has not done so. Thirty-four years ago, this Court said, “[w]e cannot ascribe to the legislature an intention that anything less than exclusivity of use by a public utility suffices to enable the contractor to qualify for the [use tax] exclusion.” Id., at 31. Given the decades of apparent satisfaction with the rule, I believe the legislative intent is even clearer than it was in 1968. Given the logic of that intention, I cannot find sufficient reason to change the rule, and offer this respectful dissent.
Chief Justice ZAPPALA joins this dissenting opinion.
Justice CAPPY joins this dissenting opinion.