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PENNSYLVANIA CO. FOR BANKING & TRUSTS v. CITY AND COUNTY PHILADELPHIA (11/14/50)

November 14, 1950

PENNSYLVANIA CO. FOR BANKING & TRUSTS
v.
CITY AND COUNTY OF PHILADELPHIA



COUNSEL

Abraham Wernick, Asst. City Solicitor, Frank F. Truscott, City Solicitor, Philadelphia, for appellant.

L. Alton Blake, George V. Strong, and Strong, Sullivan, Saylor & Ferguson, all of Philadelphia, for appellee.

Before Rhodes, President Judge, and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, Judges.

Author: Reno

[ 167 Pa. Super. Page 638]

RENO, Judge.

The Pennsylvania Company for Banking and Trusts, hereafter called the Company, was trustee for Frank Nalle, a resident of Virginia, and during 1936, 1937 and 1938, erroneously paid $1354.43 to the City of Philadelphia for personal property taxes assessed against trust securities in its possession in Philadelphia.

[ 167 Pa. Super. Page 639]

On February 11, 1949, it instituted assumpit against the city and county*fn1 for a refund of the taxes under the Act of May 21, 1943, P.L. 349, § 1, 72 P.S. § 5566b et seq. Jury trial was waived, and the trial judge, with the approval of the court en banc, entered judgment for the Company, from which the city appealed.

The Act of 1943, § 1, requires all political subdivisions to refund, after September 1, 1944, taxes which have been 'erroneously or inadvertently paid * * * under an assumption that such taxes * * * were due and owing, when in fact such taxes * * * were not due and owing * * *.' If the political division refuses refunds, 'the aggrieved person or corporation shall have the right to recover the sum involved by instituting an action in assumpsit * * *.' Id. § 2. The provisions of the Act are 'retroactive and effective as to any and all taxes * * * heretofore erroneously or inadvertently paid * * * for a period of not exceeding three years prior to the discovery of such erroneously paid taxes * * *.' Id. § 3.

On May 16, 1939, the Company applied to the Board of Revision of Taxes for a refund, relying upon Act of July 12, 1935, P.L. 682, (repealed by the Act of 1943, supra, § 4) which authorized but did not compel refund of erroneously paid taxes. The refund was refused, and the Company appealed to the common pleas which dismissed the appeal, and held that the Act of 1935 authorized but did not require refunds, did not provide a court appeal, and gave the taxpayer no 'right of suit which he may not have had prior to the act.' Appeal for Pennsylvania Company, etc.,

[ 167 Pa. Super. Page 64036]

D. & C. 212. Although the decision was against the Company, the claim for a refund, and the proceedings thereon, constituted a sufficient demand for a refund of taxes paid during 'a period of not exceeding three years prior to the discovery of such erroneously paid taxes * * *.' After the enactment of the Act of 1943, that is, on December 24, 1948, the Company renewed its demand, and payment was again refused.

The city tacitly admits that the taxes were erroneously paid, and relies upon laches as its major defense. This is an action in law in a common law court, an assumpsit action expressly authorized by a statute. Laches is a purely equitable doctrine which cannot be maintained in a court of law, unless redress for a violation of an equitable right is sought under common law forms in a court of law. Transbel Investment Co., Inc., v. Scott, 344 Pa. 544, 26 A.2d 205; Freeman v. Lawton, 353 Pa. 613, 46 A.2d 205. In Girard Trust Co. v. Philadelphia City and County, 359 Pa. 319, 325, 59 A.2d 124, 127, where the taxpayer sued in 1946 for taxes paid in 1934, 1935 and 1936, the Supreme Court affirmed a judgment for plaintiff, and stated: 'Whether the doctrine of laches is to be applied to suits instituted under this act [of 1943] need not now be decided for clearly the doctrine is inapplicable here.' ...


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