Phipps v. Kirk

• Decision Date: 22 March 1939
• Docket Number: 66
• Citation: 5 A.2d 143,333 Pa. 478
• Parties: Phipps et al., Trustees, v. Kirk, Treasurer, Appellant
• Court: Pennsylvania Supreme Court

5 A.2d 143

333 Pa. 478

Phipps et al., Trustees, v. Kirk, Treasurer, Appellant

No. 66

Supreme Court of Pennsylvania

March 22, 1939

Argued January 12, 1939.

Appeal, No. 66, March T., 1939, from order of C.P. Allegheny Co., Oct. T., 1938, No. 2654, in case of John S. Phipps et al., trustees, v. James P. Kirk, Treasurer. Order affirmed.

Mandamus proceeding.

The opinion of the Supreme Court states the facts.

Demurrer to answer by defendants sustained and order entered directing issuance of peremptory writ of mandamus, opinion by McNAUGHER, J. Defendant appealed.

Error assigned was order.

The order of the lower court is affirmed at the cost of appellant.

N. R Criss, for appellant.

Mahlon E. Lewis, with him Harold R. Schmidt, and Stewart & Lewis for appellees.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. DREW, JUSTICE.

Pursuant to the provisions of the Act of July 9, 1897, P.L. 219, appellees, as the owners of certain real estate situated in the City of Pittsburgh, appealed to the Court of Common Pleas from the triennial assessments for the years 1937, 1938 and 1939, as reduced by the Board of City Assessors of the City of Pittsburgh acting as a Board for the Revision of Taxes. The court materially reduced the valuations fixed by the assessors, exonerations were thereafter issued adjusting the tax on the Treasurer's books to the new valuations and corrected tax assessments were given to the appellees covering city and school taxes for the years 1937 and 1938, to which were added the penalties and interest claimed to have accrued, under the Act of May 12, 1911, P.L. 295, as amended by the Acts of May 31, 1913, P.L. 390, June 15, 1915, P.L. 976, and July 20, 1917, P.L. 1173, while appellees' appeals to the board and the lower court were pending. Immediately upon receipt of the corrected tax statements, appellees offered to pay the face amount of their taxes, but the Treasurer of the Board of Public Education of the School District of Pittsburgh (hereinafter called the Treasurer) refused to accept such payment unless appellees also tendered the penalties and interest figured on the reduced valuations. Thereupon, the lower court, on petition of appellees, issued a writ of alternative mandamus, to which the Treasurer filed an answer praying that the petition be dismissed and the writ be quashed; and after hearing an order was entered directing that a writ of peremptory mandamus forthwith issue against the Treasurer requiring his acceptance, in full payment of the school tax liability of appellees for the years 1937 and 1938, the face amounts shown to be due by the tax bills issued by him as Treasurer in conformity with the reduced assessments fixed by the court, without the addition of the penalties and interest thereon. From which order this appeal is taken by the Treasurer.

While the Act of 1897, under which these proceedings were originally instituted, provides for no right of appeal from the decision of the court below, nevertheless this court will consider the case as on certiorari: Schmuck v. Hartman, 222 Pa. 190; Pittsburgh Brewers, etc., Supply Co.'s Mercantile Tax, 38 Pa.Super. 121.

There is but one question for our consideration, i.e., can penalties and interest on unpaid taxes for the years covered by an assessment which have allegedly accrued while his appeal is pending, and as the result of which litigation he obtains a substantial reduction in the assessed valuation, be exacted from a taxpayer, where the statute allowing the appeal contains no provision for a refund of any excess in case a reduction is had. Regardless of what might be decided under other circumstances, a thorough consideration of this case convinces us that, on its facts, the appellees should not be required to pay the penalties and interest here in question.

Believing that the original assessments of the Board of Assessors were grossly excessive, appellees diligently proceeded under the Act of 1897, the only applicable statute, to seek a reduction thereof, first, by appeal to the Board, and then to the Court of Common Pleas; they, sustaining the appellees' belief, reduced the valuations in an amount of over $1,000,000. The Act of 1897 contains no proviso that if an appeal was taken by the taxpayer from an assessment such appeal should not prevent the taxing authorities from collecting the taxes complained of, nor does it provide that if the taxes were paid on the original assessment there could be a refund of any excess in case a reduction was secured. Such provisions are embodied in the Act of May 22, 1933, P.L. 853, which relates only to appeals from county assessments, but repeals the following: Act of April 19, 1889, P.L. 37, as amended by the Act of June 12, 1931, P.L. 548; Act of June 26, 1901, P.L. 601, as amended by the Act of June 12, 1931, P.L. 547, all of which contained similar provisos. Since the Treasurer took no steps to enforce payment during the pendency of the litigation, and since the Act of 1897 failed to provide for a refund and under such circumstances a payment in whole or in part would have been deemed a voluntary one, appellees justly did not pay or offer to pay the tax, or any part thereof, based on the original assessments, but rather awaited the successful conclusion of their appeal to the Court of Common Pleas, when they promptly tendered the tax at face based on the reduced assessments. In this connection, Mr. Chief Justice KEPHART, in Wilson v. Phila. School Dist., 328 Pa. 225, 243, said: "This court has uniformly adhered to the well-established rule that 'money voluntarily paid on a claim of right, where there has been no mistake of fact, cannot be recovered back on the ground that the party supposed he was bound in law to pay it when in truth he was not': Union Ins. Co. v. City of Allegheny, 101 Pa. 250, 255. In that case Justice MERCUR set forth the requisites to the maintenance of an action to recover back tax payments: the tax must have been void, the money received by the municipal corporation, and the payment by the plaintiff made under compulsion. Unless these elements are present, mere protest is of no avail in the absence of a statutory right permitting recovery on a different basis. In Phila. & Reading C. & I. Co. v. Tamaqua Borough School District, 304 Pa. 489, 494, the same principle is enunciated: 'Undoubtedly, the well established rule in this State is that a voluntary payment of taxes to the public authorities, without any duress, threats, or misstatements on the part...