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January 12, 1953


Appeal No. 234, Jan. T., 1952, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1950, No. 4488, in case of The Pennsylvania Railroad Company v. Board of Revision of Taxes and The City of Philadelphia. Order affirmed.


Harold E. Kohn, with him Robert McCay Green, for appellant.

Joseph H. Lieberman, Solicitor for Board of Revision of Taxes, with him Abraham L. Freedman, City Solicitor, and Michael D. Hayes, Assistant City Solicitor, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 372 Pa. Page 469]


This appeal is from an order sustaining an increased realty assessment made by the Board of Revision of Taxes for Philadelphia County. The procedure to be followed by the Board in making such an assessment is prescribed by the Act of June 27, 1939, P.L. 1199, 53 PS § 4805.1 et seq. Section 10 (53 PS § 4805.10) provides that "At least ten days prior to the first Monday in October of each year, the board shall give printed or written notice to the registered owners of all real property situated within the county, the assessment upon which has been increased or decreased, specifying the change made from the last preceding assessment, and setting forth that an appeal may be filed from such assessment on or before the first Monday of October, and stating as definitely as possible the time or times at which appeals will be heard by the board...." The valuation placed upon the property by the Board's increased assessment is expressly not contested. The sole question involved is whether the foregoing statutory provision as to the time of sending notice of the change in assessment is mandatory or directory.

[ 372 Pa. Page 470]

The land, which was the subject-matter of the increased assessment, had been owned by the Pennsylvania Railroad Company for many years. Adjoining it was a larger tract which the Railroad company had sold and conveyed to the Cuneo Eastern, Press, Inc., in 1936. On January 7, 1947, the Railroad company leased to the Cuneo company the property first above mentioned with permission to Cuneo in the lease to erect on the property a bindery and warehouse, and on the following day (January 8, 1947) the Railroad company agreed in writing to sell the leased property to Cuneo with "Settlement to be made as of December 1, 1946, and taxes apportioned accordingly." Cuneo thus became liable, as between it and the Railroad company, for all taxes due on the leased property from January 1, 1947, onward. A year and a half later, viz., on August 25, 1948, Cuneo entered into a contract with Robert E. Lamb & Son, Inc., building contractors, for the erection of a warehouse and a bindery on Cuneo's property, both that which it had owned since 1936 (on which there were already some buildings) and the property which it occupied under the lease of January 7, 1947, and to which it had not yet taken title under the agreement of sale of January 8, 1947. Construction under the contract with Lamb was begun in October 1948 and was completed, according to the Railroad company, the present appellant, in May 1949, but, according to the City of Philadelphia, the appellee, around November 1949. In effectuation of the agreement of sale of January 8, 1947, the Railroad company conveyed the leased land to Cuneo by deed of July 8, 1949. The deed was not recorded, however, until November 30, 1950.

During the summer of 1949, the district real estate assessor, acting pursuant to the precept to assess issued to him by the Board of Revision, obtained from the

[ 372 Pa. Page 471]

    real estate department of the Railroad company a plan of the land, both leased and sold to Cuneo. The assessor checked this plan with the plans for the buildings to be erected thereon which Cuneo had filed with the department of building inspection of the City. The plans coincided and each showed the land as belonging to Cuneo. It was, in fact, the assessor's understanding that all of the land on which the buildings stood was the property of Cuneo; and, having concluded in November 1949 that the buildings had been completed, he sent to Cuneo on December 1, 1949, one notice of the increased assessment for the ensuing calendar year 1950, the assessment covering the whole of the new construction and all of the land on which it was situate.

Cuneo filed a protest against the increased assessment on or before December 16, 1949, within the time allowed therefor according to the notice. The basis of the protest was that "notice [of the increased assessment] was not given as required by statute prior to October 1." A hearing was held on the protest before the Board of Revision of Taxes on December 27, 1949. At a further hearing on April 12, 1950, counsel for Cuneo pointed out that, at the time of the assessment, Cuneo (which was then the actual owner) was not the registered owner of the portion of the land, occupied by that company under the lease and requested that that company's increased assessment be reduced commensurately. The Board complied, deducting from the increased assessment $38,800 for the land and $270,173 for the portion of the new construction on the land. Cuneo then paid its 1950 ...

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