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COMMONWEALTH v. WILLSON PRODUCTS (10/09/63)

October 9, 1963

COMMONWEALTH, APPELLANT,
v.
WILLSON PRODUCTS, INC.



Appeals, Nos. 5, 6 and 7, May T., 1963, from order and decrees of Court of Common Pleas of Dauphin County, No. 535, Commonwealth Docket, 1959, Nos. 502 and 542, Commonwealth Docket, 1960, and Nos. 2451 and 2457, Equity Docket, in cases of Commonwealth of Pennsylvania v. Willson Products, Inc. and Ray-O-Vac Company, and American Machine and Metals, Inc. v. Theodore B. Smith, Secretary of Revenue, and Humble Oil and Refining Company v. Same. Order and decrees affirmed.

COUNSEL

Edward Friedman, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Robert R. Batt, with him Ballard, Spahr, Andrews & Ingersoll, for appellees.

Frank A. Sinon, with him Alphonse Kenison, Robert D. Myers, and Rhoads, Sinon & Reader, for appellee.

Thomas V. Lefevre, with him Ferdinand P. Schoettle, Jr., Park B. Dilks, Jr., and Morgan, Lewis & Bockius, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 412 Pa. Page 80]

OPINION BY MR. CHIEF JUSTICE BELL

The Commonwealth has appealed in the case of Willson Products, Inc. from a Final Order and in each of the other two cases from a Final Decree of the Court of Common Pleas of Cauphin County. Each Decree restrained the Secretary of Revenue from imposing, assessing or collecting a realty transfer tax in each of said cases. The facts were stipulated in each case; the cases were argued together and will be disposed of in this Opinion.

The basic question involved in each case is the applicability of The Realty Transfer Tax Act*fn1 to the transfer of real estate resulting not from a deed of conveyance, but from a merger of two or more corporations.

In 1959 Esso Standard Oil Company,*fn2 a Delaware corporation, and Humble Oil and Refining Company,*fn3 a Delaware corporation, and Carter Oil Company,*fn4 a West Virginia corporation - all of which were wholly owned subsidiaries of Standard Oil Company, a New Jersey corporation - were merged into Humble, and all real estate of Esso, which included real estate situate in Pennsylvania, vested in Humble the surviving corporation by operation of law as a result of said merger. Standard Oil Company, as the result of the merger of its three subsidiaries, owned all of the stock of Humble, whereas previously it had owned all of the stock of the three merging corporations, namely, Humble, Esso and Carter.

This merger took place outside of the Commonwealth of Pennsylvania. The Agreement of Merger became

[ 412 Pa. Page 81]

    effective under Delaware law when filed, as it was, with the Secretary of State of Delaware on December 31, 1959. Subsequent to the merger, namely, on February 5, 1960, Humble filed a "Statement of Merger" with the Secretary of the Commonwealth of Pennsylvania, who thereupon issued to Esso a ...


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