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CEDARBROOK REALTY v. CHARLES F. NAHILL (05/18/78)

decided: May 18, 1978.

CEDARBROOK REALTY, INC. ET AL., APPELLANTS
v.
CHARLES F. NAHILL, JR. ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Cedarbrook Realty, Inc. and John W. Merriam & Thomas Wynne, Inc., t/a Cedarbrook Joint Venture v. Charles F. Nahill, Jr., Tax Collector of Cheltenham Township, School District of Cheltenham Township, Montgomery County, Cheltenham Township, Montgomery County Institution District, Montgomery County Tax Claim Bureau and The Board of Assessment Appeals for Montgomery County, No. 77-16993.

COUNSEL

Jeffrey A. Less, with him Patrick J. Broderick, and, of counsel, Dilworth, Paxson, Kalish, Levy & Kauffman, for appellants.

Charles Potash, with him Harris F. Goldrich, Samuel H. High, Jr., Roger B. Reynolds, and, of counsel, Wisler, Pearlstine, Talone, Craig & Garrity, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Rogers. Judge Blatt concurs in this dissent.

Author: Wilkinson

[ 35 Pa. Commw. Page 354]

This case is on appeal to us following a decision of the Court of Common Pleas of Montgomery County denying appellants' request for a preliminary injunction. We affirm.

Appellants, whom we will refer to as Cedarbrook, operate a large commercial complex in Cheltenham Township, Montgomery County. This complex consists of five separate parcels of land, three of which contain apartment buildings, one a shopping center, and the last a golf course and some vacant, undeveloped land. Cedarbrook owes almost two million dollars in taxes on these properties for the year 1977. These taxes are owed to the Cheltenham Township School District, Montgomery County, Cheltenham Township, and the Montgomery County Institution District, all of whom are appellees in this suit. These appellees have threatened to sequester the rent from Cedarbrook's properties under the provisions of Section 19 of the Local Tax Collection Law, Act of May 25, 1945, P.L. 1050, as amended, 72 P.S. § 5511.19, hereinafter referred to as the 1945 Act. Cedarbrook has therefore instituted this action, seeking to enjoin appellees from utilizing the sequestration provisions of the 1945 Act.

The first argument raised by Cedarbrook is that the sequestration provisions of Section 19 of the 1945 Act, 72 P.S. § 5511.19, have been impliedly repealed by the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101 et seq., hereinafter referred to as the 1947 Act. For this contention

[ 35 Pa. Commw. Page 355]

    to succeed, Cedarbrook must demonstrate that the sequestration provisions found in the 1945 Act are irreconcilable with the provisions of the 1947 Act. Once there is a finding that two statutes are irreconcilable, the one later in date of final enactment would prevail. Statutory Construction Act of 1972, 1 Pa. C.S. § 1936.

Cedarbrook must carry a heavy burden to demonstrate that the 1945 and 1947 Acts are irreconcilable. Repeals of statutes by implication are not favored, and accordingly there is a presumption against the implied repeal of a statute. Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975); Lehigh Valley Cooperative Farmers v. Commonwealth, 8 Pa. Commonwealth Ct. 18, 305 A.2d 908 (1973). The lower court found that the two statutes were not irreconcilable and we must agree.

The 1947 Act, as its title implies, deals mainly with the entering of liens against real property for delinquent taxes, and the subsequent sale of such realty for the satisfaction of those liens. Under its provisions the tax collector must, by the first Monday in May of each year, return to the tax claim bureau a list of all properties against which taxes were levied during the preceding year, but which remain unpaid. Sequestration of rents by the tax claim bureau cannot begin until the expiration of twenty days from the date the tax claim becomes absolute. Section 401 of the 1947 Act, 72 P.S. § 5860.401. A tax claim does not become absolute until the year following the delinquency, with the exact date depending upon when the tax claim notice was sent to ...


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