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ANTHONY A. AND VICTORIA SABATINE AND WILLIAM A. AND MARY L. MADDEN v. COMMONWEALTH PENNSYLVANIA (03/07/79)

decided: March 7, 1979.

ANTHONY A. AND VICTORIA SABATINE AND WILLIAM A. AND MARY L. MADDEN, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Board of Finance and Revenue in case of In Re: Appeal of Anthony and Victoria Sabatine and William and Mary Madden, Docket No. M-1576.

COUNSEL

Paul L. Herron, with him Zion and Klein, P.A., for appellants.

Vincent J. Dopko, Deputy Attorney General, for appellee.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge DiSalle dissents.

Author: Macphail

[ 41 Pa. Commw. Page 110]

Anthony and Victoria Sabatine and William and Mary Madden (collectively, Appellants) have appealed an order of the Board of Finance and Revenue (Board) denying their petition for a refund of realty transfer tax. Section 1104 of The Fiscal Code (Code), Act of April 9, 1929, P.L. 343, as amended, 72 P.S. ยง 1104, provides that such appeals shall be heard de novo. The record in this case consists of a stipulation of facts with related exhibits attached from which we make the following

Findings of Fact

1. William A. Madden, Jr. and Mary L. Madden, his wife, hereinafter referred to as Madden, were, prior to November 25, 1972, the owners of certain properties known as 780 Lancaster Avenue, and 6, 8, 10 and 12 Elliott Avenue, Lower Merion Township, Montgomery County, Pennsylvania.

2. On or about November 24, 1972, Madden conveyed the aforesaid properties by deed to Anthony A. Sabatine and Victoria Sabatine, hereinafter referred to as Sabatine.

3. At the time of settlement, a Realty Transfer Tax in the sum of five thousand five hundred ten and 48/100 dollars ($5,510.48) was paid to the Commonwealth.

4. On or about January 28, 1974, Sabatine filed suit in equity in the Court of Common Pleas of Montgomery County against Madden seeking to set aside the aforesaid conveyance and to have the deed declared void because of misrepresentations by Madden or a mutual mistake of fact or both.

5. After Madden filed an answer to the complaint, they and Sabatine resolved their differences and submitted a ...


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