Appeal, No. 127, Jan. T., 1958, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1955, No. 2002, in case of Glendale Heights Ownership Association v. The School District of the Borough of Glenolden. Judgment affirmed.
Lewis B. Beatty, Jr., with him Butler, Beatty, Greer & Johnson, for appellant.
Joseph D. Calhoun, with him John E. Power, Jr., for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal from the action of the court below in awarding to a taxpayer, the Glendale Heights Ownership Association, the sum of $11,673.51 which it had paid, under protest, to the School District of Glenolden as a tax on the transfer of certain real estate.
On January 11, 1955, the Federal Government, acting through the Public Housing Administration, notified the tenants of the Glendale Homes Federal Housing Project that the project was to be sold to private interests and advised them, in accordance with federal law, that a first option would be given to a cooperative formed by the tenants able to purchase the project so that it might be operated on a mutual basis for the benefit of all tenant members. A cooperative of tenants was subsequently formed and incorporated as the Glendale Heights Ownership Association. On April 18, 1955, a bid of $1,075,900 on behalf of the Association was qualifiedly accepted by the government agency. On October 17, 1955, final settlement was held in New York
City, and the Association purchased the project for a consideration of $1,075,900.
On June 10, 1955, the School District adopted a resolution to become effective on July 5, 1955, imposing a tax "upon the privilege of transferring real estate situate wholly or partly within the School District ... at the rate of one per cent (1%) of the value of the real estate transferred." The resolution defined "transferring real estate" as: "... The transfer or change of possession of real estate from the grantor to the grantee by the surrender of possession by the grantor or his agent, and the entry or constructive entry into possession by the grantee or his agent, which transfer or change of possession takes place at the site of the real estate involved, regardless of where the deed is prepared, executed, delivered, accepted, recorded or where settlement is consummated." The resolution also provided that the grantor was primarily liable for the tax, but, if for any reason the grantor did not pay, the grantee would then be liable.
On June 28, 1955 - eighteen days after adoption of the above resolution - the legislature amended the so-called "Tax Anything" Act of 1947 by Act No. 60 of 1955, P.L. 197 (53 P S § 6851) expressly granting school districts the power to levy such taxes "as they shall determine to be paid by the transferor upon the transfer of real property, or of any interest in real property, situate within such political subdivisions regardless of were the instruments making the transfers are made, executed, or delivered or where the actual settlement on such transfers take place ..." On December 22, 1955 and January 31, 1956, the legislature again amended the 1947 Act by Act No. 276 of 1955, P.L. 897 and Act No. 300 of 1955, P.L. 971 (53 P S § 6851). Act No. 276 provided in part: "The provisions of this subsection requiring taxes upon the transfer of real
property, or of any interest in real property, to be paid by the transferor, shall not apply to any ordinance or resolution imposing such tax adopted prior to June twenty-eighth one thousand nine hundred fifty-five. All such ordinances shall continue in full force and effect until the end of the year for which the tax was imposed. All such ordinances and resolutions and the collection of all taxes thereunder are validated." Act No. 300 provided in part: "All ordinances and resolutions, heretofore adopted, imposing taxes upon the transfer of real property, or of any interest in real property, and directing the tax to be paid by the transferee, shall continue in full force and effect. All such ordinances and resolutions and the collection of all taxes thereunder are validated."
At the settlement on October 17, 1955, subsequent to the taxing resolution of the School District and Amendatory Act No. 60, but prior to Amendatory Acts Nos. 276 and 300, the Public Housing Administration advised the Association of the existence of the resolution and that, since as a federal agency, the Public Housing Administration would not be liable for the tax, the Association would have to pay the tax or settlement would not be concluded because of the possible impairment of a large mortgage being taken back by the Public Housing Administration.
The Association paid the tax under protest in order to complete the transaction and subsequently brought an assumpsit action to recover the amount of the tax. Preliminary objections in the nature of a demurrer filed on behalf of the School District were dismissed, and a verdict eventually rendered for the Association. Motions for a new trial, judgment n.o.v., and exceptions to the verdict were filed. Upon the ...