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January 3, 1950


Appeal, No. 193, Jan. T., 1949, from decree of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1948, No. 703, in case of Thomas J. Murray et ux. v. City of Philadelphia et al. Decree, as modified, affirmed.


Abraham Wernick, Assistant City Solicitor, with him Frank F. Truscott, City Solicitor, for appellants.

Albert Barnes Zink, with him George F. Shinehouse, Jr., for appellees.

Robert Dechert, with him Francis L. Van Dusen and Barnes, Dechert, Price & Myers, for Corporate Fiduciaries Association of Philadelphia, under Rule 61.

Leslie M. Swope, with him Henry S. Drinker, Howard H. Yocum and Robert M. Blair-Smith, for Investment Bankers Association et al., intervening appellees.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Linn

[ 363 Pa. Page 526]


This appeal by the city involves the application of the ordinance considered in Breitinger v. Philadelphia, argued immediately before this case, 363 Pa. 512, 70 A.2d 640. The plaintiffs, husband and wife, filed their bill to restrain the collection of taxes on income received from certain transactions, contending that only earned income, as defined in the ordinance, was subject to the tax and that the income proposed to be taxed by defendants was not earned income within the terms of the ordinance.

Much that was said in disposing of the City's appeal in Breitinger's case is applicable in this case and need not be repeated. The chancellor, KUN, J., made findings of fact, among them, the following: "3. The plaintiff, Thomas J. Murray, is eighty-five years of age, and has been engaged in the haberdashery business at 4515 Frankford Avenue, Philadelphia, Pennsylvania, for a period of approximately sixty years. He has spent all his time in said business until approximately three years ago, when he became inactive by reason of his age. 4. The plaintiff, Thomas J. Murray, has not engaged in any business, trade, profession, activity or enterprise other than the haberdashery business. 5. The plaintiff, Kathryn M. Murray, is a housewife and is not engaged in any business.... 8. During the years 1939 to 1947, inclusive, the plaintiffs... owned premises 4613 and 4615 Frankford Avenue, and 4515 Frankford Avenue in the City of Philadelphia, all acquired by the plaintiffs in the years 1910 and 1911. 9. Premises 4613 and 4615 Frankford Avenue were each three story buildings, on lots approximately fifteen feet in width and one hundred nineteen feet in depth. Each building was occupied by one tenant. 10. Premises 4515 Frankford Avenue consisted of a one story building occupied by the plaintiff, Thomas J. Murray, as his haberdashery shop, and a small building on the rear

[ 363 Pa. Page 527]

    thereof, which was leased out to a tenant for storage space. 11. The plaintiffs furnished no heat, light, janitor or elevator service, or any other services, to the tenants occupying any of the leased property, and plaintiffs did not in any way operate said premises as business enterprises. 12. All that plaintiffs did with respect to the leased real estate was to collect the rents, pay the taxes, and maintain fire insurance thereon.... 14. In the year 1946 the plaintiff sold 4615 Frankford Avenue and realized a profit of $21,333.51; and in the year 1947 sold premises 4613 Frankford Avenue, and realized a profit of $23,911.90. 15. During the years 1939 to 1947, and for many years prior thereto, the plaintiffs had investments in stocks and bonds of an average value of approximately $150,000.00 consisting of between forty and fifty separate securities.... 18. All the plaintiffs' purchases and sales of securities, during the period 1939 through 1947, were made through Howard J. Lynch, a broker. The plaintiffs paid no fees or service charges of any nature to their broker, other than regular brokerage commissions. 19. For the years 1940 through 1947, inclusive, the plaintiffs averaged ten purchases per year, and slightly less than eleven sales per year, including purchases and sales in connection with the receipt and disposition of stock rights, stock dividends and securities called or redeemed. The foregoing number of transactions include as separate transactions sales executed on different dates pursuant to a single order.... 21. For the years 1941 ...

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