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SABLOSKY v. MESSNER (11/18/52)

November 18, 1952

SABLOSKY, APPELLANT,
v.
MESSNER



Appeal, No. 4, May T., 1953, from judgment of Court of Common Pleas of Dauphin County, 1952, Commonwealth Docket No. 14, Equity Docket No. 2011, in case of Lewis Sablosky et al., trading as Norris Amusement Company and Lawrence Tornetta v. Otto F. Messner, Secretary of Revenue. Judgment affirmed.

COUNSEL

Harold E. Kohn, with him Robert McCay Green, Aaron M. Fine, Dilworth, Paxson, Kalish & Green, Sydney S. Stern, Philip Sterling, Sterling, Stern & Levy, and Harry M. Sablosky, for appellants.

Edward Friedman, Deputy Attorney General, with him Robert E. Woodside, Attorney General, for appellee.

Before Stern, Stearne, Jones, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 372 Pa. Page 49]

OPINION BY MR. JUSTICE CHIDSEY

This appeal is from the judgment of the Dauphin County Court upholding the constitutionality of The Realty Transfer Tax Act, approved December 27, 1951, P.L. 1742, effective February 1, 1952, to remain in force until and including May 31, 1953.

Lewis Sablosky, et al., co-partners trading as Norris Amusement Company, on January 18, 1952 entered into a written agreement to sell and convey within 90 days from the date thereof a tract of land in Ply-mouth Township, Montgomery County, to Lawrence Tornetta for the consideration of $13,500. The sellers and purchaser joined as plaintiffs in a bill in equity brought against the Secretary of Revenue of the Commonwealth praying that the Act be declared unconstitutional

[ 372 Pa. Page 50]

    and void and the Secretary enjoined from collecting the tax imposed thereby with respect to the conveyance of the land thus agreed to be sold. There were no facts in dispute, the only issues raised being pure questions of law involving the constitutionality of the Act which were disposed of on plaintiffs' amended bill and defendant's responsive answer. The court en banc directed judgment to be entered in accordance with the decree nisi of the chancellor which dismissed the bill.

Appellants first contend that Section 3 of the Act is unconstitutional because vague and uncertain as to whether the buyer or the seller, or both, must pay the tax imposed. This section provides: "Every person who makes, executes, issues, delivers or accepts any document, or in whose behalf any document is made, executed, issued, delivered or accepted, shall be subject to pay for and in respect thereof, or for or in respect of the vellum parchment or paper upon which such document is written or printed, a State tax at the rate of one (1) percentum of the value of the property represented by such document, which State tax shall be payable at the time of making, execution, issuance, delivery or acceptance of such document."

We think it clear that the tax imposed is upon transactions relating to real estate as evidenced by documents as the latter are defined in Section 2 of the Act, with dual liability for its payment. We approve and adopt the language of the chancellor: "It is not a tax on the real estate itself, nor a tax on the document per se, nor a tax upon the vellum, parchment or paper on which it is written. It is a tax 'for and in respect' to the document, 'or for or in request of the vellum, parchment or paper upon which such document is written or ...


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