Appeals, Nos. 172 and 173, Jan. T., 1950, from judgment of Court of Common Pleas of Schuylkill County, March T., 1948, No. 193, in case of Tremont Township School District v. Western Anthracite Coal Company. Judgment affirmed.
Earl G. Harrison, with him Roy P. Hicks, Ralph M. Bashore, Louis F. Floge, Wm. A. Schnader, Hicks, Williamson & Friedberg, Bashore & Bashore and Schnader, Harrison, Segal & Lewis, for appellant.
Henry Houck, with him Charles L. Frank, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE JONES
The defendant appeals at No. 172 from the money judgment in favor of the plaintiff entered by the court below on the pleadings on June 20, 1949,*fn1 and at No. 173 from an order of the court below on January 30, 1950, discharging the defendant's rule on the plaintiff to show cause why the judgment above mentioned should not be opened. We shall treat first with the appeal from the judgment as that raises the appellant's questions as to its merit.
The action, being in assumpsit, was instituted by the plaintiff, a school district of the fourth class, for the purpose of obtaining a judgment in personam against the defendant company for unpaid taxes with penalties for the years 1939 to 1947, both inclusive, assessed against the defendant as owner of the realty covered by the assessments. Passing by a preliminary procedural
skirmish and an intervening motion for judgment on the pleadings (refused without prejudice with leave to the defendant to answer over), we come at once to the lower court's entry of judgment for the school district on the plaintiff's subsequent like motion.
The complaint set forth nine separate causes of action, one for each of the tax years involved. The defendant's amended answer expressly admitted all of the material averments of the complaint, including averments common to all of the causes to the following substantial effect: that the defendant company became the owner of the therein described seated lands in Tremont Township, Schulykill County, on December 20, 1938 ; that, for the year 1939, the aforesaid seated lands of defendant were assessed in Tremont Township at a specified valuation; and that, for the fiscal year embraced by the particular cause of action, the Board of Directors of the school district levied a tax of so many mills per dollar of assessed valuation of all lands situate in Tremont Township for school purposes. In addition thereto, the facts averred by the complaint as to the amount of the taxes so assessed, the defendant's failure to pay the same and the amount of such taxes remaining unpaid were not categorically denied. The defendant's denial thereof consisted solely of its own legal conclusion of non-liability for reasons set out under new matter in the amended answer.
The defenses thus interposed by the defendant were (1) that the causes of action pleaded by the plaintiff for the first three of the tax years involved were barred by the statute of limitations contained in Sec. 312 of the Real Estate Tax Sale Law of July 7, 1947, P.L. 1368 (72 PS § 5860.312, Pkt. Part), and (2) that the school district was not a proper party to institute the action, the unpaid taxes having been returned or transferred ...