No. 136 January Term, 1979, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 936
Paul L. Herron, Kenneth R. Gross, Bryn Maur, for appellants.
Vincent J. Dopko, Deputy Atty. Gen., for appellee.
Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., and Wilkinson, J., did not participate in the consideration or decision of this case. Roberts, J., filed a Concurring Opinion.
This is an appeal from a final order of the Commonwealth Court affirming an order of the Board of Finance and Revenue ("Board") denying appellants' petition for a refund of taxes paid pursuant to the Realty Transfer Tax Act.*fn1
The specific issue before us is whether the parties to an executed conveyance of real estate are entitled to a refund of the taxes paid thereon solely by reason of the fact that the corresponding deed subsequently is declared null and void ab initio by agreement of the parties. We hold that they are not so entitled, and, accordingly, affirm.*fn2
The undisputed facts are as follows. On November 24, 1972, appellants, William and Mary Madden ("sellers"), conveyed by deed certain real estate which they owned to appellants, Anthony and Victoria Sabatine ("buyers").*fn3 At the time of settlement, the parties paid a realty transfer tax in the amount of $5,510.48 to the Commonwealth, appellee here.*fn4
Approximately fourteen months after the conveyance, buyers initiated an action in equity in the Court of Common Pleas of Montgomery County requesting that the deed be declared null and void on the ground that they were allegedly induced to enter into the transaction by sellers' misrepresentations concerning the profitability of the properties or by mutual mistake of fact. Sellers' answer to the complaint specifically denied the allegations. The parties settled prior to trial, however, and submitted a consent decree to the court which was approved on July 17, 1974. The consent decree provided in its entirety:
(1) That the alleged Deed dated November 24, 1972, recorded in this county in Deed Book 3808 at page 139 et seq. be and is declared null ...