Braddock Borough v. Bartoletta

409 Pa. 281 (1962)

Braddock Borough, Appellant,
v.
Bartoletta.

Supreme Court of Pennsylvania.

Argued March 21, 1962. November 13, 1962.

Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

Francis A. Muracca, for plaintiff-borough, appellant.

Anton W. Bigman, for plaintiff-school district, appellant.

Leonard M. Mendelson, with him Daniel Krause, Sidney Baker, George J. Miller, Charles G. Notari, James A. Danahey, Coleman Harrison, Tasso E. Camarinos, Allan H. Cohen, John A. Virostek, and James H. Brennan, for defendants, appellees.

Sylvan Libson, for Redevelopment Authority of Allegheny County, appellee.

OPINION PER CURIAM, November 13, 1962:

Judgments affirmed on opinion of Judge WALTER P. SMART, 28 Pa. D. & C. 2d 529.

DISSENTING OPINION BY MR. JUSTICE COHEN:

While I agree with the majority that no tax was incurred by the transactions in question, I am forced to dissent because of the procedure used by the taxpayer. A taxpayer who desires to challenge a deed transfer tax must either pay the tax and sue for refund — the payment of the tax permitting him to record his deed — or refuse to pay and await suit. He cannot, without putting the sum demanded in the public treasury, both gain the advantages of payment and also avoid the possibility of interest and penalty payments. I would, therefore, vacate the judgment entered by the court below.