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MILTON A. CALESNICK AND ELEANOR J. CALESNICK v. COMMONWEALTH PENNSYLVANIA (03/09/88)

decided: March 9, 1988.

MILTON A. CALESNICK AND ELEANOR J. CALESNICK, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, BOARD OF FINANCE AND REVENUE, RESPONDENT



Original Jurisdiction in the case of Milton A. Calesnick and Eleanor J. Calesnick v. Commonwealth of Pennsylvania, State Board of Finance and Revenue.

COUNSEL

Milton A. and Eleanor J. Calesnick, for themselves.

Bart J. Deluca, Jr., Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for respondent.

Judges MacPhail, Barry, and Senior Judge Narick, sitting as a panel of three. President Judge Crumlish, Jr. did not participate in the decision in this case.

Author: Per Curiam

[ 114 Pa. Commw. Page 293]

Cross-motions for summary judgment are before us for disposition in this equity action brought in our original jurisdiction.

[ 114 Pa. Commw. Page 294]

Plaintiffs are Milton A. Calesnick and Eleanor J. Calesnick. They have brought suit against the Commonwealth of Pennsylvania, State Board of Finance and Revenue (Defendant), seeking to recover monies they allege were erroneously turned over to the Defendant.

Summary judgment is available when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, considered together, reveal that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Superior Ct. 225, 464 A.2d 1313 (1983). In addition, this severe disposition should be granted only in cases where the right thereto is clear and free from doubt. Id.

We consider first the Plaintiffs' motion. The parties agree that there are no issues with respect to any material facts. Briefly, those facts are as follows. In 1970, the Plaintiffs, acting through the Sheppard Corporation, in which they were shareholders, purchased property in the City of Philadelphia. Title to the property was vested in Sheppard Corporation. Some years later, this property was sold at a sheriff's sale and the proceeds, $11,395.02, were turned over to Defendant as payment of Sheppard Corporation's past-due corporate taxes. It is this sum Plaintiffs seek to recover.

In 1986, Plaintiffs and the Sheppard Corporation entered into what Plaintiffs term an amicable action in common pleas court, which resulted in the following court order:

AND NOW, this 8th day of October, 1986, upon examination of the Plaintiffs' Agreement For An Amicable Action, and examination of the Defendant's Answer thereto, it is hereby ORDERED and DECREED that the entire sum of money which developed from the sale of ...


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