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POWELL v. SHEPARD (04/18/55)

April 18, 1955

POWELL
v.
SHEPARD, APPELLANT.



Appeal, No. 158, Jan. T., 1955, from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1954, No. 6449, in case of Naomi Powell v. Marshall L. Shepard, Commissioner of Records, ect. Order reversed; reargument refused May 4, 1955.

COUNSEL

Edward Friedman, Deputy Attorney General, with him Colbert C. McClaim, Special Counsel, and Herbert B. Cohen, Attorney General, for appellant.

William T. Coleman, Jr., with him Aaron M. Fine, Harry A. Kalish and Dilworth, Paxson, Kalish & Green, for appellee.

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

Author: Jones

[ 381 Pa. Page 407]

OPINION BY MR. JUSTICE JONES

This appeal brings up for review the order of the court below taking jurisdiction of a mandamus action involving the commissioner of records of the City of Philadelphia in his capacity as agent of the Secretary of Revenue of the Commonwealth for the collection of the State realty transfer tax.

The plaintiff filed her complaint in the court below in an effort to compel the commissioner of records of Philadelphia to accept for recording a deed without payment of the tax imposed by The Realty Transfer Tax Act of May 27, 1951, P.L. 1742, as amended, 72 PS ยง 3283 et seq. For convenience, we shall hereinafter refer to the commissioner of records as the recorder of deeds whose functions the commissioner performs in Philadelphia.*fn1

In the same complaint, the plaintiff also sought to compel the defendant's recording of the deed without payment of the stamp tax imposed by Philadelphia's realty transfer tax ordinance of December 9, 1952. With that phase of the proceeding, this appeal is not concerned.

An appearance, de bene esse, was entered by the Attorney General (and deputies), as counsel for the defendant, with a view to raising the question of the court's jurisdiction of the defendant in his capacity as an agent of the Secretary of Revenue of the Commonwealth for the collection of the State realty transfer tax. The city solicitor of Philadelphia also entered

[ 381 Pa. Page 408]

    an appearance as attorney for defendant in his capacity as collector of the Philadelphia realty transfer tax.

The Attorney General filed preliminary objections raising the question of jurisdiction, setting forth that the defendant is the agent of the Secretary of Revenue of the Commonwealth for the collection of the State realty transfer tax, that, since the Department of Revenue is charged by The Realty Transfer Tax Act of 1951 with the enforcement of the provisions of that Act, the Secretary of Revenue is a necessary and indispensable party to the proceeding, and that, consequently, the court of common pleas of Dauphin County is vested with exclusive jurisdiction of that phase of the complaint: Pa. R.C.P. 1092(c)(1). The learned court below dismissed ...


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