Upper Darby Residents Ask for Injunction To Block Earned Income Tax
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.
