DV Journal

Some Upper Darby residents who sued to stop the township’s one percent earned income tax (EIT) from taking effect have now asked the court for an injunction.

In their lawsuit against Mayor Edward Brown, Upper Darby, and the Upper Darby Town Council, the residents argue the Democratic majority council and mayor violated the Home Rule Charter when they passed the ordinance in February.

The charter says a law must not go into effect for 30 days, but the tax ordinance that passed said it was effective immediately.

Asked why they’ve now filed for an injunction, lead plaintiff John DeMasi said it was because the township did not respond to their lawsuit, even though officials had been served with the documents and they’d discussed it in meetings.

Now Upper Darby officials “decided that after they told everyone that everything was fine with the original ordinance, they are introducing a new ordinance (on May 8) to replace the other ordinance,” said DeMasi.

“So, they’re introducing a new tax ordinance to replace the old tax ordinance that hasn’t even gone into effect and is under legal challenge. You tell me how that works,” DeMasi said. “Does that make any sense to you?”

Upper Darby’s solicitor, Sean Kilkenny, resigned in January but is still on board until the council hires a new law firm. DVJournal called Kilkenny’s law office for a response and was told James Gallagher handles Upper Darby. Gallagher did not respond to a request for comment Thursday.

Robert Ellis, a spokesman for Upper Darby, said the township had no comment on the injunction.

“They sent us an email saying they were not properly served,” DeMasi said. The township “had 20 days to file a preliminary objection and could have told the court, ‘We object to this service.’ And they didn’t.”

“We sent them a notice saying because they haven’t responded, they now have 10 days from our notice to respond. Otherwise, we can file for default judgment.”

“That’s when they sent us a letter saying if you file for default judgment, we will sue you for court costs and damages,” said DeMasi.

“So, the mayor, who has presided over an obvious debacle and errors by his solicitor, instead of telling his solicitor, ‘We need to fix this,’ he said, ‘We need to sue the people that are holding us accountable.’”

“The solicitor who made all these errors and required them to redo an ordinance is still getting paid to defend the lawsuit…He gets paid to defend the ordinance he screwed up in the first place.”

In 2024, Judge Spiros E. Angelos invalidated a previous version of an EIT that Upper Darby Council had adopted, ruling it had violated the Home Rule Charter during the adoption process. DeMasi was also the lead plaintiff in that case, too.

Demasi and the other plaintiffs, John Vizzarri, Rebecca Duggan, and Joanne Nammavong, are not represented by an attorney. They had filed their original lawsuit in March, alleging defects in the EIT ordinance.

They claim in their injunction request, “Upper Darby Township has shown a blatant disregard for its residents’ rights” and also disregarded “strict adherence to statutory procedure when enacting an ordinance.”

Township officials “made comments disparaging the plaintiffs in the press” and “in the mayor’s message on March 19, 2025, at the Upper Darby Council meeting,” the legal filing said.

The case was assigned to Common Pleas Judge George A. Pagano. However, the judge has not yet scheduled a hearing.

Residents filed a lawsuit to block Upper Darby’s newly enacted earned income tax (EIT), saying the township did not follow its home rule charter in how it adopted the ordinance.

The lawsuit against Mayor Edward Brown, Upper Darby, and the Upper Darby Town Council, was filed Monday in Common Pleas Court.

It alleges the Democratic majority council and mayor violated the home rule charter when they passed the earned income tax ordinance 7 -4 on Feb. 19. That ordinance said it would take effect immediately. However, since that was the first time the township levied an earned income tax, the Home Rule Charter Local Tax Enabling Act says it must not go into effect for 30 days.

Upper Darby Township “did not strictly comply with statutory procedure,” the lawsuit said.

The residents ask the court to strike down the ordinance for the tax as “invalid from its inception.”

This is Upper Darby’s third attempt to enact a 1 percent earned income tax. The previous mayor, Barbarann Keffer, first proposed it in 2023. In December 2024, it was stopped by a judge as improperly voted on.

Resident John DeMasi was the lead plaintiff in both lawsuits. He says he’s outraged at what he sees as Upper Darby officials’ excessive spending, including adding positions and giving employees hefty raises.

The township spent $9 million more than it should have last year, DeMasi said, because the council members thought they would have money from the previous EIT ordinance. However, the court struck that ordinance down.

The council hired the township Chief Administrative Officer Crandall Jones for $191,000 last year. His salary is $196,730 for 2025. Several other management employees received  25 percent raises, he said. The previous CAO made $140,000.

“If they can pay him that much, they don’t need my 1 percent,” said DeMasi.

In one year, Crandall’s assistant went from $62,000 to $92,000, said DeMasi. Upper Darby officials hired a new public information officer for $82,000 and a risk management specialist for $72,000. The human resources director’s salary increased from $100,000 to $119,000.

“Planning and Zoning got three new positions for a total of about $175,000,” said DeMasi.

Upper Darby employees also have a cushy health plan, he noted. They get a zero deductible, $1,000 out-of-pocket maximum for an individual and $2,000 maximum for a family.

“Ten dollars to visit your primary care physician. Three dollars for a generic prescription, $5 for a brand, no matter what brand, preferred or not. Free surgery. There is no charge for surgery.  Forty dollars to visit the emergency room. Twenty-eight dollars to visit an urgent care. What is the incentive to control costs?” asked DeMasi.

“I think it’s fair to say that the vast majority of the residents of Upper Darby – whom they are telling to pay 1 percent of their income – don’t have that kind of benefit or anything anywhere close,” he said.

Instead of a sudden 1 percent EIT, he’d prefer the township start with a .25 percent EIT.

A spokesman for the township sent a response on behalf of Brown and Upper Darby, saying they were disappointed by the new litigation against the EIT.

“This opposition stems from a small group focusing on technicalities rather than addressing the core sustainability issues facing the township. Over the past year, we have held approximately 11 public meetings to clearly explain the need for EIT and to be transparent with our community about the financial challenges facing the municipality. 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 advisor and a financial advisory firm specializing in serving the government.

“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.

“Upper Darby, with more than 86,000 residents, depends on reliable municipal services such as fire protection, road maintenance, sanitation, and police protection. With the (possible) closure of Crozer Hospital, we now must add emergency medical services to that list of underfunded services.

“The costs of these essential services continue to rise due to inflation and increased labor expenses, while our revenue base remains stagnant. Currently, the township relies too heavily on local property taxes, placing an undue and growing burden on homeowners. The EIT offers a more sustainable and fair revenue stream that would reduce pressure on property taxpayers and also ensure that certain non-residents who work within the township contribute.

“Our administration and the majority of council are confident that all proper procedures were followed in adopting this tax. The EIT is set to take effect on July 1, 2025, giving the township sufficient time to prepare and allowing residents time to adjust. We are confident in the legality of our actions and will strongly defend the council’s right to implement the EIT as passed.

“We remain dedicated to fiscal responsibility, government transparency, and providing essential services to the people of Upper Darby. Our residents deserve nothing less,” they said.

DeMasi questioned the township officials’ justification for the tax hike.

“Increasing the licenses and inspections director (salary) from $103,000 to $154,000 is a lot of sustaining,” he said. “They are sustaining $34,000 health insurance subsidies.”

The plaintiffs– DeMasi, John Vizzarri, Rebecca Duggan, and Joanne Nammavong–also asked the court to award them the cost of the litigation.

Upper Darby taxpayers may have dodged a bullet.

Lame duck Mayor Barbarann Keffer, a Democrat, had proposed the township adopt a 1 percent earned income tax (EIT), bringing dozens of unhappy residents to meetings to complain. They opposed a tax increase amid inflation and other economic woes.

A vote on the EIT was scheduled for Nov. 29. But Keffer failed to properly introduce the ordinance, so it was postponed. Perhaps, indefinitely, said Republican Council President Brian Burke. He believes Keffer does not have the votes she needs to pass it.

“There’s nothing good about it,” said Burke, about the possible new tax.

Council also drafted a revised budget discussed on Nov. 29 that will be on the agenda on Dec. 6, he said. That $88,717,242 general fund budget includes money for nine new police officers, a key item Keffer wanted to fund through the EIT.

Keffer did not respond to DVJournal’s question about whether she planned to try to get the EIT through the council in the last month of her administration.

A Drexel Hill resident told the council at the Nov. 15 meeting that the EIT is a bad idea.

“The financial burden on residents, we have Bidenomics going on, high inflation, and we suddenly might enter World War III,” he said. “Adding an extra tax like this will make it a lot worse. A lot of my fellow residents are living paycheck to paycheck.”

A woman said, “I wholeheartedly oppose the tax.”

The audience applauded another woman when she said, “Do something about crime. Don’t keep asking us for more money.”

John DeMasi, a resident, said the EIT would hit residents making $15, $16, or $17 an hour the hardest. He said rent is up “double digits,” and credit card interest rates have climbed 6 or 7 percent.

“They’re not just getting a raise because all of these things are going up,” said DeMasi. “And you are going into their wallet and saying, ‘Give us 1 percent more.’”

He added, “It’s going to affect me and my family, yes. Are we looking to move? Yes. Do we have that ability? Yes.” But many residents can’t afford to move, he said.

“I strongly encourage you to find other ways to cut… We have seen disastrous spending,” said DeMasi. “The only person getting rich by default is the solicitor.”

Making her case for the new tax, Keffer said, “The EIT is part of a multi-pronged financial strategy to secure the future of Upper Darby, which includes the implementation of the realty transfer tax two years ago, the inclusion of third parties to manage delinquent taxes and fees and the business privilege tax as well as a stronger project and purchase bidding process which has resulted in higher revenues and lower costs over the last four years.”

The EIT would generate $9 million in new revenue in the first year.

She said property taxes would be frozen for 2024; seniors on fixed incomes would not pay it, and it would spread the cost of services more evenly. Funding for five new police officers and pension and retiree health care costs would be included.

Revenue that now goes to other towns with the EIT would return to Upper Darby. A state Department of Community and Economic Development report recommended the EIT.

The EIT does not apply to interest earnings, dividends, Social Security, capital gains, lottery winnings, unemployment, third-party sick pay, insurance proceeds, gifts, bequests, inheritances, and active military duty pay.

Council Vice President Hafiz Tunis supported the EIT.

“The 1 percent Earned Income Tax will put our township in a stronger financial position. With the EIT, we can take the burden off our seniors, invest more funds in our police department, and bring back revenue to our community that has been invested in other communities for decades. I would like to applaud the Keffer administration for this proposal,” he said.

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