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PETITION MAUSOLEUM CONSTRUCTION COMPANY (12/22/80)

decided: December 22, 1980.

IN RE: PETITION OF MAUSOLEUM CONSTRUCTION COMPANY, A NON-PROFIT CORPORATION. SHALER AREA SCHOOL DISTRICT, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Petition of Mausoleum Construction Company, a non-profit corporation, No. G.D. 76-04940.

COUNSEL

Stewart A. Karn, Zimmer & Dice, for appellant.

Thomas H. Welsh, Metz, Cook, Hanna & Kelly, for appellee.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. Judge MacPhail concurs in the result only.

Author: Craig

[ 55 Pa. Commw. Page 505]

Shaler Area School District (district) appeals from the order of the Court of Common Pleas of Allegheny County striking the district's liens against property of taxpayer Mausoleum Construction Company, for real estate taxes for the years 1946 to 1973.

During those years, taxpayer was a business corporation of the State of Delaware, properly registered in this state. Taxpayer's charter and Pennsylvania registration were amended to non-profit status in 1974.

In March 1976, taxpayer filed a petition to strike tax liens and received a rule to show cause why the liens should not be stricken. After various pleadings and a hearing, the court concluded that the property in question was entitled to exemption from real estate taxation over the stated years, as a burial place not used or held for profit, pursuant to Section 204 of The General County Assessment Law,*fn1 and therefore ordered the liens stricken.*fn2

[ 55 Pa. Commw. Page 506]

Initially, we note that the petition to strike and motion for a rule against the lienholder is not the proper procedure by which to challenge the liens on the ground put forth by taxpayer. Commonwealth v. Dauphin County, 354 Pa. 556, 47 A.2d 807 (1946). Under this procedure, a lien can be stricken only for defects appearing on its face. New Kensington v. Gardner, 372 Pa. 72, 92 A.2d 685 (1952); Latrobe Borough v. Austraw, 157 Pa. Superior Ct. 643, 43 A.2d 612 (1945); see Forks Township Municipal Sewer Authority v. American Land, Inc., 6 Pa. Commonwealth Ct. 569, 297 A.2d 185 (1972). The trial court could have dismissed the petition on these grounds, as could we.

However, the taxpayer urges us to ignore these procedural irregularities and decide the merits of its claimed exemption as if the procedures of the Act of May 16, 1923*fn3 (relating to municipal claims) had been followed, i.e., the issuance of scire facias on the liens and the filing of an affidavit of defense by taxpayer. Although that process has not in fact been followed, so that no judgment upon a writ will result, neither will any prejudice result from our addressing the question of law which controls and disposes of this proceeding.

That question is the district's contention that taxpayer here is foreclosed from a collateral attack on the assessments underlying the liens because of its failure to pursue the statutory appeal process provided by The General County Assessment Law. We must agree.

In City of Philadelphia v. Dougherty, 153 Pa. Superior Ct. 554, 34 A.2d 918 (1943), the court rejected a claimed exemption as a defense to a scire facias proceeding on ...


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