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January 2, 1951


Appeals, No. 160, March T., 1950, and Nos. 5 and 6, March T., 1951, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 1591 and Oct. T., 1949, No. 2695 and April T., 1950, No. 11, in cases of Pittsburgh Coal Company v. School District of Forward Township, Same v. School District of Snowden Township, Same v. School District of Elizabeth Township. Judgments affirmed; reargument refused January 29, 1951.


William J. Kenney, with him Roy Thomas Clark and Rose, Eichenauer, Stewart & Rose, for appellant.

William H. Eckert, with him John G. Buchanan, Jr., Smith, Buchanan & Ingersoll, Joseph L. Best, Solicitor for Forward Township School District, Frank R. Bolte, Solicitor for Snowden Township School District and George W. Munnell, Solicitor for Elizabeth Township School District, appellees.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Jones

[ 366 Pa. Page 490]


These appeals grow out of separate actions of assumpsit instituted by the plaintiff against the several defendant school districts for the recovery of taxes allegedly paid erroneously and inadvertently: see Act of May 21, 1943, P.L. 349, 72 PS § 5566b. In each instance, the taxes were imposed by due resolution of the respective school district, acting under authority of the Act of June 25, 1947, No. 481, P.L. 1145 (53 PS § 2015.1-2015.8); and the plaintiff paid them knowingly. Following our decisions in Lawrence Township School District Tax Case, 362 Pa. 377, 67 A.2d 372, and Jamison Coal & Coke company v. Unity Township School District, 362 Pa. 389, 66 A.2d 759, where we held invalid substantially similar taxing resolutions, as to corporations paying a State tax, the plaintiff company thereupon ceased paying the taxes so imposed by the defendant districts and instituted the suits here involved to recover the sums already paid on account of such taxes. All of the material facts appear by the

[ 366 Pa. Page 491]

    pleadings and are not disputed. After argument of the legal questions involved, the court below entered the judgments for the defendants from which the plaintiff brought these appeals.*fn1

By the express terms of the Act of 1943, supra, it is essential to an action thereunder that the taxes sought to be recovered were paid erroneously or inadvertently. True, the plaintiff does allege that such was the attending situation with respect to the payments here in suit; but the allegation is a bald and unsupported conclusion in direct conflict with the material facts pleaded by the complaints. In each case, the plaintiff avers that the taxing resolutions were expressly adopted under the authority of Act No. 481 of 1947 and that, pursuant to such resolutions, the plaintiff paid into the respective treasury of the defendant districts the taxes which it now seeks to recover. There is not even the slightest intimation that the plaintiff did not knowingly and understandingly pay the precise amounts of the taxes imposed upon it by the duly enacted tax resolutions. This is further confirmed by the fact that, as also averred by the complaints, the plaintiff paid the taxes in question under protest in writing, -- a clear indication that it knew

[ 366 Pa. Page 492]

    exactly what it was doing when it paid the taxes. That the resolutions later proved to be legally ineffectual did not serve to make the plaintiff's intentional and deliberate payments erroneous or inadvertent.

In Columbia Casualty Company v. Westmoreland County, 365 Pa. 271, 274, 74 A.2d 86, it is implicit that a payment of taxes to be made erroneously or inadvertently must be made "under [a] mistaken assumption as to the facts." The language of the Supreme Court of South Dakota in Security National Bank v. Twinde, 52 S.D. 352, 217 N.W. 542, 544, in construing the term "erroneously paid" as a prerequisite to a tax-recovery under a statute of that State, is so apposite presently as to justify the following quotation therefrom: "We think the word 'erroneously,' as used in subdivision 5 of section 6813, must be taken in its ordinary sense of 'mistakenly'. There was no error or mistake in the payment made by the plaintiff. It paid the very tax and the amount of tax that it intended to pay; nor was there any error in noting the payment or in issuing the receipt. In our view, the words 'erroneously paid' were clearly intended to cover cases where payment was made under a misapprehension as to what was being paid. But a tax intentionally and understandingly paid, although the assessment was made or the tax levied incorrectly, is not erroneously paid, and we do not think that section 6813 was designed to allow a refund of taxes in such a situation." See, also, Shea v. State Tax Commission, 101 Utah 209, 120 P. 2d 274, 275, which cites and accords ...

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