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LITMANS v. ODONNELL (07/14/53)

July 14, 1953

LITMANS
v.
ODONNELL



COUNSEL

Meyer W. Gordon and Marvin J. Apple, Pittsburgh, for appellant.

James H. Brennan and Brennan & Brennan, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.

Author: Reno

[ 173 Pa. Super. Page 571]

RENO, Judge.

On July 10, 1937, Elizabeth H. Zinke conveyed real estate situate in Pittsburgh to Thomas M. O'Donnell, defendant-appellee. At that time a tax assessed by the County of Allegheny against Zinke and levied in 1937 was unpaid, and on March 18, 1940, the County filed a claim for the tax against Zinke. On December 31, 1941, O'Donnell conveyed the property to Lazar and Dora Litmans by a general warranty deed. Dora subsequently conveyed her interest to Lazar Litmans, plaintiff-appellant. On December 3, 1947, Litmans conveyed the property to Arnold Huttner and wife. In that transaction the tax claim was discovered and plaintiff, after giving notice to O'Donnell to discharge it, paid the claim in the sum of $478.84, which included the tax, penalty, interest and costs. He sued O'Donnell in assumpsit for that sum, averring a breach of the general

[ 173 Pa. Super. Page 572]

    warranty. Defendant's preliminary objections were sustained and judgment entered for him, and from that order plaintiff appealed.

The aforementioned deeds were promptly recorded. Allegheny County maintains a registry office, pursuant to the Acts of May 2, 1899, P.L. 162, 21 P.S. § 321 et seq., and July 18, 1941, P.L. 421, § 1, 21 P.S. § 325.1, where all deeds are registered within ten days after they have been recorded. As stated, the lien was filed against Zinke, the owner at the time the tax was assessed and levied, and not against O'Donnell, the registered owner at the time the lien was filed. Plaintiff contends that the lien was a valid encumbrance even though filed in the name of the assessed owner, Zinke; defendant contends that the law compelled filing against the registered owner, O'Donnell.

The Act of May 16, 1923, P.L. 207, 53 P.S. § 2021 et seq., established a complete and statewide system for filing tax and municipal claims, and it provides the answer to the controversy. Under it, § 2, 53 P.S. § 2022, taxes are a first lien upon real estate and claims to continue the lien must be filed 'on or before the last day of the third calendar year after that in which the taxes or rates are first payable'. Id. § 9, 53 P.S. § 2029. The Act, § 10, 53 P.S. § 2030, requires that the claim be filed against the owner, and 'owner' is defined, § 1, 53 P.S. § 2021, as 'the person or persons in whose name the property is registered, if registered according to law, and, in all other cases, means any person or persons in open, peaceable and notorious possession of the property, as apparent owner or owners thereof, if any, or the reputed owner or owners thereof in the neighborhood of such property.' (Emphasis added.)

This definition has been held to be a clear and unambiguous command. Blairsville Borough v. Donatelli, 123 Pa. Super. 51, 186 A. 247. 'This requirement

[ 173 Pa. Super. Page 573]

[of the Act, §§ 1, 10] that the names of the owner shall be set forth is mandatory'. St. Clair Savings & Trust Co., for use of Billhartz v. Groeschel, 137 Pa. Super. 1, 3, 8 A.2d 466, 467. Spramelli v. Borough of Punxsutawney, 102 Pa. Super. 557, 157 A. 522, ?? not a factual parallel, indicates that in areas where a registry office is maintained the claim must be filed against the registered owner.*fn1 And in Tiegel v. Love, 61 Pa. Super. 149, it was held that a municipal lien was valid ...


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