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LAND HOLDING CORPORATION v. BOARD FINANCE AND REVENUE. (03/18/57)

March 18, 1957

LAND HOLDING CORPORATION, APPELLANT,
v.
BOARD OF FINANCE AND REVENUE.



Appeal, No. 18, May T., 1957, from order of Court of Common Pleas of Dauphin County, Commonwealth Docket 1955, No. 226, in case of Land Holding Corporation v. Board of Finance and Revenue. Order affirmed.

COUNSEL

Bernard Wolfman, with him Samuel A. Goldberg, Marvin Katz, and Wolf, Block, Schorr & Solis-Cohen, Compton, Handler & Berman, for appellant.

Edward Friedman, Deputy Attorney General, with him Herbert B. Cohen, Attorney General, for appellee.

Before Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 388 Pa. Page 62]

OPINION BY MR. JUSTICE CHIDSEY

Land Holding Corporation, incorporated in Pennsylvania, appeals from the decree of the Court of Common Pleas of Dauphin County dismissing its complaint in mandamus upon preliminary objections filed by the defendant, Board of Finance and Revenue, to the jurisdiction of the court.

Summarized, plaintiff's complaint averred the following facts: Plaintiff is the grantee in a deed of certain property in Montgomery County, Pennsylvania; the deed was made, issued, executed, delivered, accepted and acknowledged outside of the Commonwealth of Pennsylvania, at the office of the grantor, the White Motor Company, in Cleveland, Ohio. On May 3, 1954 the deed was presented at the Office for the Recording

[ 388 Pa. Page 63]

    of Deeds of Montgomery County at Norristown; recordation was refused by the Recorder on the ground that the deed required stamps under The Realty Transfer Tax Act of December 27, 1951, P.L. 1742, as amended by the Act of May 29, 1953, P.L. 257. At that time under protest plaintiff through its agent paid $18,000 tax to the Recorder and affixed stamps in that amount to the deed as demanded by that official; on August 27, 1954 the plaintiff filed with the Board of Finance and Revenue a petition for refund of the tax so paid; on September 15, 1955 the Board refused the refund. The complaint further averred that there was no tax due on the transaction and that exaction and retention of the tax under the purported authority of the Act of December 27, 1951 or otherwise was unconstitutional and that it had no other adequate remedy at law for the relief sought.

The preliminary objections filed by the defendant to the jurisdiction of the court were: "First. The action of the Board of Finance and Revenue in connection with the Petition for Refund in the instant case is final, and not subject to review by mandamus. Second. Plaintiff had a full, complete and adequate legal remedy for the adjudication of the legal questions raised by it other than mandamus against the Board of Finance and Revenue. Third. The action of the Board of Finance and Revenue, being in accordance with and following the interpretation of the statute by the Attorney General of the Commonwealth of Pennsylvania, cannot be reviewed by mandamus.".

At the time of the presentation of the plaintiff's deed for recording, Section 3 of The Realty Transfer Tax Act of December 27, 1951, as amended by the Act of May 29, 1953, imposed a tax upon: "Every person who makes, executes, issues, delivers or accepts any document, or in whose behalf any document is made,

[ 388 Pa. Page 64]

    executed, issued, delivered or accepted, ...". Section 2 of the Act defined the word "Document" as: "Any deed, instrument or writing whereby any lands, ... within this Commonwealth... shall be granted, bargained, sold, or otherwise conveyed to the grantee, purchaser, or any other person, ...". (Emphasis supplied). Section 8 of the Act imposed penal sanctions upon any ...


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