Cedarbrook Realty, Inc. v. Nahill

Opinion by Judge Wilkinson, Jk., This case is on appeal to us following a decision of-the Court of Common Pleas of Montgomery County denying appellants’ request for a preliminary injunction. We affirm. Appellants, whom we will refer to as Cedarhrook, operate a large commercial complex in Cheltenham Township, Montgomery County. This complex consists of five separate parcels of land, three of which contain apartment buildings, one a shopping center, and the last a golf course and some vacant, undeveloped land. Cedarhrook owes almost two million dollars in taxes on these properties for the year 1977. These taxes are owed to the Cheltenham. Township School District, Montgomery County, Cheltenham Township, and the Montgomery County Institution District, all of whom are appellees in this suit. These' appellees have threatened to sequester the rent from Cedarbrook’s properties under the provisions of Section 19 of the Local Tax Collection Law, Act of May 25,1945, P.L. 1050, as amended, 72 P.S. §5511.19, hereinafter referred to as the 1945 Act. Cedarhrook has therefore instituted this action, seeking to enjoin .appellees from utilizing the sequestration provisions, of the 1945 Act. The first argument raised by Cedarhrook' is that the sequestration provisions of Section 19 of the.1945 Act, 72 P.S. §5511.19, have been impliedly repealed by the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101 et seq., hereinafter referred to as the 1947 Act. For this contention [355] to succeed, Cedarbrook must demonstrate that the sequestration provisions found in the 1945 Act are irreconcilable with the provisions of the 1947 Act. Once there is a finding that two statutes are irreconcilable, the one later in date of final enactment would prevail. Statutory Construction Act of 1972, 1 Pa. C.S.§1936. Cedarbrook must carry a heavy burden to demonstrate that the 1945 and 1947 Acts are irreconcilable. Eepeals of statutes by implication are not favored, and accordingly there is a presumption against the implied repeal of a statute. Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975); Lehigh Valley Cooperative Farmers v. Commonwealth, 8 Pa. Commonwealth Ct. 18, 305 A.2d 908 (1973). The lower court found that the two statutes were not irreconcilable and we must agree. The 1947 Act, as its title implies, deals mainly with the entering of liens against real property for delinquent taxes, and the subsequent sale of such realty for the satisfaction of those liens. Under its provisions the tax collector must, by the first Monday in May of each year, return to the tax claim bureau a list of all properties against which taxes were levied during the preceding year, but which remain unpaid. Sequestration of rents by the tax claim bureau cannot begin until the expiration of twenty days from the date the tax claim becomes absolute. Section 401 of the 1947 Act, 72 P.S. §5860.401. A tax claim does not become absolute until the year following the delinquency, with the exact date depending upon when the tax claim notice was sent to the delinquent taxpayer. Section 311 of the 1947 Act, 72 P.S. §5860.311. Thus, in the instant case the tax claim bureau, under the 1947 Act, could not begin sequestration of Cedarbrook’s rents [356] for delinquent 1977 taxes until sometime after January 1,1979. Tlie 1945 Act, on the other hand, provides a'means whereby the tax collector may sequester rents at any time after an owner of real estate neglects or refuses' to pay any tax levied against such realty.' "When this-' provision is read along with the provisions of ;the 1947 ■ Act, it becomes clear that the legislature has provided two procedures for sequestration of rent in the' collection of delinquent taxes. Until the first Monday.'of May following the year in which taxes are due, the tax collector may sequester the rents from the realty' on which the delinquent taxpayer owes taxes. If at that time taxes remain unpaid, the tax collector must make a return to that effect to the tax claim bureau.' The' bureau may then institute sequestration of rents under the provisions of the 1947 Act. Our decision in this regard is supported by our Supreme Court’s decision in Tremont Township School District v. Western Anthracite Coal Co., 364 Pa. 591, 73 A.2d 670 (1950), which held that the 1947 Act did not deprive the tax collector of his right to sue a delinquent taxpayer in assumpsit. The second contention put forth by Cedarbrook is that Section 19 of the 1945 Act is unconstitutional on the grounds that it deprives the taxpayer of due process by not providing for notice and a hearing prior to the seizure of the taxpayer’s property. We cannot agree. Two other provisions of the 1945 Act, namely Section 20, 72 P.S. §5511.20, and Section 20.1, 72 P.S. §5511.20a, have been held constitutional even though they provide for the attachment of wages for unpaid taxes prior to a hearing. Hartman v. Columbia Malleable Castings Corp., 164 Pa. Superior Ct. 1, 63 A.2d 406 (1949); Wetzel v. Harrisburg Steel Co., 97 Dauphin 208 (1975). Cedarbrook attempts' to'distinguish [357] those eases on the grounds that they did not deal with taxes on realty, hut we are not persuaded by this argument. Cedarbrook also relies on the recent United States Supreme Court decision in Commissioner v. Shapiro, 424 U.S. 614 (1976), wherein the Court stated that permitting “the Government to seize and hold property on the mere good-faith allegation of an unpaid tax would raise serious constitutional problems in cases, such as this one, where it is asserted that seizure of assets pursuant to a jeopardy assessment is causing irreparable injury.” Shapiro, supra, at 629. We do not believe that Shapiro requires that we strike down the sequestration provisions of the 1945 Act. Shapiro involved a rather unique situation in that the assets the government wished to seize were needed by the taxpayer for bail. If the assets were frozen, Shapiro would have been incarcerated pending his criminal trial. Thus, while a later appeal by Shapiro to the tax court may have freed the assets, it would not have cured the irreparable injury which Shapiro would have suffered as a result of his incarceration. No such set of circumstances exists in the instant case. Cedarbrook may appeal the tax liability assessed it for the year 1977, and if it is determined that this assessment is in error an appropriate refund would be made to Cedarbrook. Section 518.1 of The General County Assessment Law, Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §5020-518.1; Section 9 of the Act of «Tune 26, 1931, P.L. 1379, as amended, 72 P.S. §5350. Cedarbrook will not suffer irreparable injury of the type contemplated by the Supreme Court in Shapiro, and is fully protected from an erroneous assessment by virtue of the appeal provisions of the assessment laws previously cited. [358] Accordingly, we will enter the following Order And Now, May 18, 1978, the decision of the Court of Common Pleas of Montgomery County, at Civil Action No. 77-16993, dated November 7, 1977, is affirmed.