November 13, 1962
BRADDOCK BOROUGH, APPELLANT,
Appeals, Nos. 73 and 74, March T., 1962, from judgments of Court of Common Pleas of Allegheny County, July T., 1961-D, No. 2952, in case of Borough of Braddock and School District of Borough of Braddock v. Anna Bartoletta and Joseph Bartoletta, her husband, et al. Judgments affirmed; reargument refused December 18, 1962.
Francis A. Muracca, for plaintiff-borough, appellant.
Anton W. Bigman, for plaintiff-school district, appellant.
Leonard M. Mendelson, with him Daniel Krause, Sidney Baker, George J. Miller, Charles G. Notari, James A. Danahey, Coleman Harrison, Tasso E. Camarinos, Allan H. Cohen, John A. Virostek, and James H. Brennan, for defendants, appellees.
Sylvan Libson, for Redevelopment Authority of Allegheny County, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
[ 409 Pa. Page 282]
OPINION PER CURIAM
Judgments affirmed on opinion of Judge WALTER P. SMART, 28 Pa. D. & C. 2d 529.
ING OPINION BY MR. JUSTICE COHEN:
While I agree with the majority that no tax was incurred by the transactions in question, I am forced to dissent because of the procedure used by the taxpayer. A taxpayer who desires to challenge a deed transfer tax must either pay the tax and sue for refund - the payment of the tax permitting him to record his deed - or refuse to pay and await suit. He cannot, without putting the sum demanded in the public treasury, both gain the advantages of payment and also avoid the possibility of interest and penalty payments. I would, therefore, vacate the judgment entered by the court below.
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