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HomeMy WebLinkAbout96-1233 CivilLESTER ASSOCIATES, a general partnership, Plaintiff Ve GATEWAY SQUARE ASSOCIATES, LLC, a Tennessee limited liability company; and DEPARTMENT OF REVENUE OF THE COMMONWEALTH OF PENNSYLVANIA Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -- LAW : 96-1233 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF BEFORE BAYLEY and OLER, JJ. FINAL DECREE AND NOW, this ~ day of October, 1996, upon consideration of Plaintiff's Motion for Post-trial Relief with respect to the Adjudication and Decree Nisi dated July 26, 1996, and for the reasons stated in the accompanying opinion, the relief requested is granted in par't and denied in part, with the following facts being found to have been established as between the parties as a consequence of Defendant's failure to respond to Plaintiff's complaint or amended complaint, or being otherwise demonstrated by the record: 1. Plaintiff, Lester Associates, is a general partnership with its principal office at 111 Presidential Boulevard, Suite 140, Bala Cynwyd, Montgomery County, Pennsylvania 19004-1086. 2. Plaintiff is registered as a fictitious name with the Pennsylvania Department of State, Corporation Bureau. 3. Defendant, Gateway Square Associates, LLC, is a Tennessee limited liability company with its registered office at 408 North Cedar Bluff Road, Suite 350, Knoxville, Tennessee 37923. 4. Defendant is not registered with the Pennsylvania Department of State, Corporation Bureau, as a foreign limited company. 96-1233 CIVIL TERM 5. By way of a deed dated August 19, 1992, and recorded October 23, 1992, in the Cumberland County Recorder of Deeds Office in Deed Book 35Y, Page 442, Plaintiff took title to a certain commercial real property (hereinafter "Real Property") located in Hampden Township, Cumberland County, Pennsylvania, bearing Tax Parcel Number 10-20-1842-088A, and being a shopping center. 6. It is uncontroverted in the record that from October 23, 1992 to the present, Plaintiff has treated the Real Property as a partnership property. 7. On March 20, 1995, a deed was recorded in Cumberland County Deed Book 119, Page 916, in which Plaintiff conveyed the Real Property to "Lester Associates, L.L.C." 8. At recording, an exclusion from transfer tax was claimed on the basis that the transfer was in the nature of a corrective deed. 9. On August 23, 1995, a deed was recorded in Cumberland County Deed Book 127, Page 62, in which Lester Associates, L.L.C, conveyed the Real Property to Defendant. 10. At recording, an exclusion from transfer tax was claimed on the basis that the transfer was in the nature of a corrective deed. 11. On December 8, 1995, a notice of determination was mailed by the Department of Revenue notifying Plaintiff that realty transfer tax had been assessed with respect to the March 20, 1995 deed. 12. On March 6, 1996, Plaintiff filed an appeal with the Department of Revenue's Board of Appeals. 13. On March 6, 1996, Plaintiff also filed the instant action asking that the two deeds recorded respectively on March 20, 1995, and August 23, 1995, be declared null and void ab initio and that title to the Real Property be vested in Plaintiff. 14. The instant action was brought as an action for declaratory judgment pursuant to 42 Pa. C.S. §§7531-41~ with the expressed purpose of determining a question of actual controversy between the parties thereto; jurisdiction was based on 42 Pa. C.S. §7533.2 15. GateWay Square Associates, LLC, and the Department of Revenue were named as defendants. Declaratory Judgment Act of July 9, 1976, P.L. 586, §2. Id. 16. An affidavit of service indicates that the complaint was served on both parties and the Attorney General of Pennsylvania. 17. On March 19, i996, the Attorney General filed preliminary objections on behalf of the Department of Revenue, contending that the sole involvement of the Commonwealth concerned the imposition of realty transfer tax and that that issue lay within the exclusive jurisdiction of the Department of Revenue's Board of Appeals. 18. On April 19, 1996, Plaintiff filed an amended complaint which eliminated the Department of Revenue as a defendant. 19. Defendant Gateway Square Associates, LLC, did not file an answer to the complaint or amended complaint or otherwise respond. 20. On May 24, 1996, Lester Associates filed a praecipe for default judgment with a notice to defend attached. 21. A certificate of service by Plaintiff's counsel indicates that the praecipe for entry of judgment by default against Defendant was served by first-class mail upon Defendant, the Department of Revenue, and the Attorney General. 22. The Cumberland County Prothonotary entered a default judgment against the Defendant on May 24, 1996. 23. Notice of the entry of a default judgment was served on Defendant. 24. On May 24~ 1996, Plaintiff filed a motion for adjudication and final decree upon default judgment pursuant to Pennsylvania Rule of Civil Procedure 1511(b). A certificate of service indicates that Defendant, the Department of Revenue and the Attorney General were served with copies of the motion. 25. By Order dated June 7, 1996, a hearing on the motion was scheduled for June 27, 1996, and the Order was served on Defendant, the Department of Revenue and the Attorney General. 26. The hearing on June 27, 1996, was attended by Plaintiff's counsel, Mark E. Halbruner, Esq., and by Sidney Becker, one of Plaintiff's general partners. 27. Mr. Becker testified that to the best of his knowledge there never was an entity called Lester Associates, L.L.C., and that he had simply made a mistake in preparing the deed in that regard. 28. It is uncontroverted in the record that Lester Associates, L.L.C., is not registered as a fictitious name or as a limited liability company in Pennsylvania, or in any other jurisdiction. 29. Also present at the hearing were Kathleen K. Shaulis, Esq., from the Department of Revenue, and Ronald H. Skubecz, Esq., assisted by John Bobber, legal intern, from the Attorney General's Tax Litigation Section. 30. The court afforded Attorneys Shaulis and Skubecz an opportunity to formally enter their appearances in this matter on behalf of the Commonwealth. 31. Speaking on behalf of himself and Ms. Shaulis, Mr. Skubecz acknowledged that the Commonwealth had been given a full opportunity to intervene in the proceeding. Mr. Skubecz then stated that the Commonwealth declined to enter its appearance, as its only interest in the proceeding was the transfer tax associated with the deed of March 20, 1995, an issue then pending before the Department of Revenue's Board of Appeals. 32. Attorneys Shaulis and Skubecz observed but did not participate in the remainder of the hearing. 33. As the instant action does not directly involve the transfer tax associated with the deed of March 20, 1993, the Court believes that the Department of Revenue's interests in this action have been adequately represented as contemplated by 42 Pa. C.S. §7540(b).3 34. Defendant did not appear and was not represented at the hearing. 35. At the conclusion of the hearing, the Court entered an Order closing the record and taking the matter under advisement. 36. Plaintiff' has submitted a brief in support of its position that title to the property in question remains in Plaintiff. 37. An adjudication and decree nisi was entered by the court on July 26, 1996. 38. Plaintiff filed a motion for post-trial relief with respect to the adjudication and decree nisi pursuant to Pennsylvania Rule of Civil Procedure 227.1. 3 Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §7540(b) provides that: In any proceeding which involves the effect of any asserted legal relation, status, right, or privilege upon the determination of any tax, the appropriate taxing authority shall be served with a copy of the proceeding, but if such taxing authority does not enter its appearance, the requirements of this section shall nevertheless be satisfied if the court considers that the interests of the taxing authority are adequately represented. 96-1233 CIVIL TERM It is DECLARED, ADJUDGED, AND DECREED that, by virtue of Defendant's default, and as between the parties to this action, title to the property bounded and described as follows shall be deemed to be in Plaintiff, Lester Associates: ALL THAT CERTAIN tract of land situated in Hampden Township, Cumberland County, Pennsylvania, being designated as Tract "A" on a Plan of Subdivision made for Crossgates, Inc. and recorded in the Recorder of Deeds Office of Cumberland County in Plan Book 51, Page 109, and being bounded and described as follows: BEGINNING at an iron pin on the Southern right of way line Carlisle Pike, of U.S. Route 11, said point being thirty (30) feet South of centerline of said Carlisle Pike at the lands now or formerly of Hampden Township, thence from said point of beginning South 10 degrees 3 minutes 57 seconds West 790.29 feet to an iron pin, thence by the same lands South 88 degrees 34 minutes 24 seconds West 1113.75 feet to an iron pin in the centerli~e of Brandy Lane, a 33 foot wide road; thence along the centerline of said Brandy Lane and by the lands now or formerly of the United States Government the following courses and distances: North 3 degrees 40 minutes 36 seconds West 275.55 feet to a spike; thence by the same, North 00 degrees 40 minutes 36 seconds West 315.49 feet to a spike, said point being the Southerly line of New Brandy Lane, as shown on the aforesaid Plan of Subdivision for Crossgates, Inc.; thence by said line of New Brandy Lane, with a curve to the right, having a radius of 270.00 feet, (subtended by a chord North 59 degrees 42 minutes, 27 seconds East 266.86 feet) an arc distance of 279.14 feet to a point; thence by the same North 89 degrees 19 minutes 24 seconds East 152.81 feet to a point; thence by the same with a curve the left, having a radius of 390.00 feet (subtended by a chord North 74 degrees 45 minutes 54 seconds East 196.06 feet) an arc distance of 198.19 feet to a point; thence by the same South 29 degrees 47 minutes 36 seconds East 15.00 feet to a point; thence by the same, with a curve to the left, having a radius of 405.00 feet, (subtended by a chord North 48 degrees 53 minutes 47 seconds East 158.86 feet) and arc distance of 159.89 feet to a point; thence by the same, North 37 degrees 35 minutes 11 seconds East 175.65 feet to a point; thence by the same, with a curve to the right, having a radius of 65.00 feet, (subtended by a chord North 77 degrees 58 minutes 44 seconds East 84.24 feet) an arc distance of 91.65 feet to a point on the southern right of way of Carlisle Pike aforesaid; thence by the same, with a curve right, having a radius of 7609.49 feet, (subtended by a chord south 59 degrees 57 minutes 47 seconds East 442.68 feet) an arc distance of 442.74 feet to an iron pin at THE POINT OF BEGINNING; CONTAINING 22.35 acres and being part of a tract of land surveyed by D.P. Raffensperger and Associates for Crossgates Inc last revised June 19, 1986. NOTHING HEREIN is intended to express an opinion as to the effect of this Decree, if any, upon any issues of real estate transfer tax liability. BY THE COURT, Mark E. Halbruner, Esq. 1013 Mumma Ro~d, Suite 100 Lemoyne, PA 17043 Attorney for Plaintiff Barnett & Weiskopf 408 North Cedar Bluff Road Suite 350 Knoxville, TN 37923 Agents for Gateway Square Associates, LLC Ronald H. Skubecz, Esq. Office of the Attorney General Tax Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 (Courtesy Copy) Kathleen K. Shaulis, Esq. Pennsylvania Department of Revenue Office of Chief Counsel Department 281061 Harrisburg, PA 17128-1061 (Courtesy Copy) : rc LESTER ASSOCIATES, a general partnership, Plaintiff Vo GATEWAY SQUARE ASSOCIATES, LLC, a Tennessee limited liability company; and DEPARTMENT OF REVENUE OF THE COMMONWEALTH OF PENNSYLVANIA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW 96-1233 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF BEFORE BAYLEY and OLER, JJ. OPINION and FINAL DECREE This case involves the question of title to commercial real property located in Hampden Township, Cumberland County, Pennsylvania, bearing Tax Parcel Number 10-20-1842-088A. Presently before the court is Plaintiff's Motion for Post-trial Relief requesting that the court add certain findings of fact and conclusions of"law to the adjudication and decree of July 26, 1996, delete other findings of fact and conclusions of law, and declare two deeds purporting to convey title to the Real Property to Lester Associates, L.L.C., and Defendant, respectively, to be null and void ab initio. STATEMENT OF FACTS; PROCEDURAL HISTORY The pertinent facts in this case are as follows. On March 20, 1995, a deed was recorded in which Plaintiff conveyed certain real property located in Hampden Township, Cumberland County, Pennsylvania, bearing Tax Parcel Number 10-20-1842-088A (hereinafter, Real Property) to "Lester Associates, L.L.C." Then, 96-1233 CIVIL TERM in a deed recorded on August 23, 1995, "Lester Associates, L.L.C." conveyed the Real Property to Defendant. An exemption from the real estate transfer tax was claimed at each recording on the ground that the transfer was in the nature of a corrective deed. Nevertheless, a realty transfer tax was assessed against the March 20, 1995 deed by the Department of Revenue. Plaintiff filed an .appeal with the Department of Revenue's Board of Appeals, contesting the realty transfer tax assessment. Plaintiff also filed a declaratory judgment action in this court, asking that the two deeds be declared null and void ab initio and that title to the Real Property be vested in Plaintiff. Both Gateway Square Associates, L.L.C., and the Department of Revenue were °named as defendants in this action. Preliminary objections were filed by the Department contending that the sole involvement of the Commonwealth in the matter concerned the imposition of realty transfer tax, an issue that was required to be resolved by the Department of Revenue's Board of Appeals. Plaintiff then voluntarily filed an amended complaint which eliminated the Department of Revenue as a defendant in this action. When Defendant Gateway failed to file an answer to the complaint or amended complaint or otherwise respond, a default judgment was entered against it, in favor of Plaintiff. Plaintiff, then, filed a motion for adjudication and final decree pursuant to 96-1233 CIVIL TERM Pennsylvania Rule of Civil Procedure 1511(b). A hearing on the motion was held on June 27, 1996. Following the hearing, the court entered an adjudication and decree nisi dated July 26, 1996. In response, Plaintiff filed the pOst-trial motion presently before the court requesting several forms of relief. First, Plaintiff requests that the following findings of fact be added to the Adjudication and Decree: (1) From October 23, 1992, to the present, Plaintiff has treated the Real Property as a partnership property; (2) the Complaint was duly served on both parties and the Attorney General of Pennsylvania, and an Affidavit of Service was filed; (3) a copy of the default notice was served on the Department of Revenue and the Attorney General; (4) notice of the default judgment was served on Defendant, the Department of Revenue and the Attorney General by first-class mail on May 24, 1996; (5) on May 24, 1996, Plaintiff filed a motion for adjudication and final decree upon default judgment and served Defendant, the Department of Revenue and the Attorney General with copies of the motion; (6) by Order dated June 7, 1996, a hearing on the motion was scheduled for June 27, 1996, and the Order was served on Defendant, the Department of Revenue and the Attorney General; (7) at the outset of the hearing and after an in camera discussion with all counsel, the Court afforded Attorneys Shaulis and Skubecz an opportunity to formally enter their appearances in this matter on behalf of the Commonwealth; (8) 3 96-1233 CIVIL TERM speaking on behalf of himself and Ms. Shaulis, Mr. Skubecz acknowledged that the Commonwealth had been given a full opportunity to intervene in the proceeding and stated that the Commonwealth declined to enter its appearance; and (9) attorneys Shauli$ and Skubecz observed but did not participate in the remainder of the hearing. Plaintiff maintains that the first requested finding of fact is necessary to determine whether Plaintiff or Defendant is liable for taxes, expenses, and damages incurred in connection with the Real Property. The remaining requested findings of fact are, according to Plaintiff, important to the issue of notice given to the Department of Revenue. Second, Plaintiff requests that the following finding of fact be deleted from the Adjudication and Decree: The Department of Revenue determined that one of the two deeds may have been corrective; therefore, one tax determination was made on the March 20, 1995 deed. Plaintiff maintains that this finding of fact is not supported by the record. Third, Plaintiff asks that the following be added as conclusions of law: (1) This is an action for declaratory judgment pursuant to 42 Pa. C.S. S7531 et seq., for the purpose of determining a question of actual controversy between the parties hereto; (2) jurisdiction of this action is based on 42 Pa. C.S. S7533; (3) Lester Associates, L.L.C. does not exist as a legal 4 96-1233 CIVIL TERM entity; (4) as a non-existent entity, Lester Associates, L.L.C. could neither receive nor convey title to the Real Property; (5) this action involves the effect of the parties' legal relation, status, right and privilege upon the aforesaid determination of realty transfer tax, and Revenue may therefore have entered its appearance in this action pursuant to 42 Pa. C.S. S7540(b); and (6) Revenue's interests in this action have been adequately represented as contemplated by 42 Pa. C.S. §7540(b). Plaintiff maintains that the first two conclusions of law are necessary to describe the nature of these proceedings and the court's jurisdiction over them. The third and fourth conclusions of law are said by Plaintiff to be the foundation of the court's determination'that the deeds in question had no legal effect. The remaining conclusions of law are purportedly necessary to explain why the Department of Revenue and the Attorney General were given notice of the proceeding and the opportunity to intervene in the hearing. FOurth, Plaintiff requests that the Court declare that the deeds of March 20, 1993 and August 23, 1993, were null and void ab initio, that the said deeds did not convey, transfer, devise, vest, confirm or evidence any transfer or devise of real estate, and that the said deeds should be expunged from the public record. This is necessary, according to Plaintiff, to make clear that the deeds had no effect, in order to resolve any questions that might arise as to 5 96-1233 CIVIL TERM Plaintiff's liability for taxes, expenses, and damages incurred between the time of the recording of the March 20, 1995 deed and the time of this court's decree. Fifth, Plaintiff asks that the court delete the following statement from the Adjudication and Decree: "NOTHING HEREIN is intended to represent a determination as to any issues of real estate transfer tax liability, nor to bind any entity not now a captioned party to this litigation." Plaintiff claims that this statement is unnecessary and that the court does not have jurisdiction to state what effect its decree will have on such issues. Finally, Plaintiff requests that the court delete the following underlined passage from the Adjudication and Decree: "It is DECLARED, ADJUDGED, AND DECREED that by virtue of Defendant's default, and as between the parties to this action, title to the property bounded and described as follows shall be deemed to be in Plaintiff, Lester Associates." Plaintiff contends that the court should not indicate impact, or lack of impact, its decree will have on non-parties. For the reasons stated below, the relief requested will be granted in part and denied in part. 6 96-1233 CIVIL TERM DISCUSSION The purpose of the Declaratory Judgment Act "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and [the act] is to be liberally construed and administered." Act of July 9, 1976, P.L. 586, S2, 42 Pa. C.S. S7541(a). However, "the presence of antagonistic claims indicating imminent and inevitable litigation coupled with a clear manifestation that the declaration sought will be of practical help in ending the controversy are essential to the granting of relief by way of declaratory judgment." Gulnac v. South Butler School District, 526 Pa. 483, 487, 587 A.2d 699, 701 (1991). "A declaratory judgment must not be employed to determine rights in ant'icipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion." Id. at 488, 587 A.2d at 701. Furthermore, declaratory relief is not available with respect to any "[p]roceeding within the exclusive jurisdiction of a tribunal other than a court [or any] proceeding involving an appeal from an order of a tribunal." Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §7541(c)(2), (3) (Supp. 1996). If declaratory judgment proceedings are "used to prejudge issues that are committed for initial resolution to an administrative forum ... then the trial court can be said to have exceeded the limitations 7 96-1233 CIVIL TERM of the Act." Clearfield Bank & Trust Co. v. Shaffer, 381 Pa. Super. 259, 262, 553 A.2d 455, 456 (1989). Under the Realty Transfer Tax Act, Act of March 4, 1971, P.L. 6, §~ll01-C to 1113-C, as amended, 72 P.S. §§8101-C to 8113-C, appeals from determinations of realty transfer tax are to be heard, in the first instance, by the Department of Revenue's Board of Appeals. Jurisdiction over any further appeal from the Board's determination is conferred upon the Board of Finance and Revenue, Act of March 4, 1971, P.L. 6, §llll-C, as amended, 72 P.S. §8111- C(c), and, thereafter, upon the Pennsylvania Commonwealth Court, Act of June 2, 1915, P.L. 736, §427, as amended, 42 Pa. C.S. §763(a). Thus, declaratory relief is unavailable in matters relating to ta'x assessments. See Deigendesch v. County of Bucks, 505 Pa. 555, 565-66, 482 A.2d 228, 233 (1984). First, regarding Plaintiff's requested additions to the findings of fact, the Court has added those findings of fact requested by Plaintiff to the extent that they are supported by the record. As to the service of the notice of the default judgment on the Department of Revenue and the Attorney General, the record includes a certificate of service by Plaintiff's counsel indicating that the praecipe for entry of judgment by default against Defendant was served by first-class mail upon Defendant, the Department of Revenue, and the Attorney General. The record is less clear that the Prothonotary's entry of judgment in compliance 8 96-1233 CIVIL TERM with the praecipe was served upon the Department or the Attorney General, and no finding will be made that it was. Second, regarding the deletion requested by Plaintiff, the record does not explicitly contain the Department of Revenue's determination that one of the two deeds may have been corrective and the court has removed this finding of fact in the final decree. The record does indicate that a tax assessment was made by the Department of Revenue as to the March 20, 1995 deed; however, since this finding of fact is included in paragraph 11 of the Decree, it need not be retained in the finding which Plaintiff finds offensive. Third, regarding the conclusions of law requested by Plaintiff on the subjec~' of whether Lester Associates, L.L.C., existed as a legal entity, the findings which the court is willing to make have been supplied in paragraphs 27 and 28 of the Decree. Regarding the conclusion of law sought on the effect which this court's decree should have on the issue of the realty transfer tax assessed, it is noted that the tax issue is the subject of an administrative appeal to the Department of Revenue's Board of Appeals. A declaratory judgment on this issue is not within the jurisdiction of this court; we must, instead, under the Declaratory 9 96-1233 CIVIL TERM Judgment Act, limit our determination to a controversy which exists between named Plaintiff and Defendant.4 In this regard, a controversy purportedly exists between Plaintiff and Defendant over whether title to the Real Property is vested in Plaintiff or Defendant. In response to Defendant's default, the court has resolved this controversy by decreeing that, as between Plaintiff and Defendant, title to the property is vested in Plaintiff and not in Defendant. It is unnecessary for this court to involve itself through conclusions of law in an area within the jurisdiction of another body. Fourth, regarding the requested declaration that the deeds were null and void ab initio; such a declaration would primarily serve to advance Plaintiff's interests against a nonparty in an area within another body's jurisdiction.5 Such a declaration would probably not have the desired effect,6 and the court is not willing to participate in this endeavor in the context of a default judgment. 4 See Gulnac v. South Butler School District, 526 Pa. 483, 587 A.2d 699 (1991). ~ See Generally Bolus v. United Penn Bank, 360 Pa. Super. 234, 520 A.2d 433 (1987). 6 See Sabatine v. Commonwealth, 497 Pa. 453, 442 A.2d 210 (1981) (parties to an executed conveyance of real estate held not entitled to refund of taxes paid thereon solely by reason of fact that the deed was subsequently declared null and void ab initio by a consent decree entered in equity action). 10 96-1233 CIVIL TERM Finally, regarding Plaintiff's request that the court delete statements from the Decree that the Decree is not "intended to represent a determination as to any issues of real estate transfer tax liability, nor to bind any entity not now a captioned party to this litigation," and that the court's declaration is meant to resolve the controversy "as between the parties to this action" only, the statements represent the court's intent and understanding of the law. The former statement will, however, be modified somewhat to be less dispositive in tone. For the above stated reasons, the following Final Decree will be entered: FINAL DECREE AND NOW, {his 7th day of October, 1996, upon consideration of Plaintiff's Motion for Post-trial Relief with respect to the Adjudication and Decree Nisi dated July 26, 1996, and for the reasons stated in the accompanying opinion, the relief requested is granted in part and denied in part, with the following facts being found to have been established as between the parties as a consequence of Defendant's failure to respond to Plaintiff's complaint or amended complaint, or being otherwise demonstrated by the record: 1. Plaintiff, Lester Associates, is a general partnership with its principal office at 111 Presidential Boulevard, Suite 140, Bala Cynwyd, Montgomery County, Pennsylvania 19004-1086. 11 96-1233 CIVIL TERM 2. Plaintiff is registered as a fictitious name with the Pennsylvania Department of State, Corporation Bureau. 3. Defendant, Gateway Square Associates, LLC, is a Tennessee limited liability company with its registered office at 408 North Cedar Bluff Road, Suite 350, Knoxville, Tennessee 37923. 4. Defendant is not registered with the Pennsylvania Department of State, Corporation Bureau, as a foreign limited company. 5. By way of a deed dated August 19, 1992, and recorded October 23, 1992, in the Cumberland County Recorder of Deeds Office in Deed Book 35Y, Page 442, Plaintiff took title to a certain commercial real .property (hereinafter "Real Property") located in Hampden Township, Cumberland County, Pennsylvania, bearing Tax Parcel Number 10-20-1842-088A, and being a shopping center. 6. It is uncontroverted in the record that from October 23, 1992 to the present, Plaintiff has treated the Real Property as a partnership property. 7. On March 20, 1995, a deed was recorded in Cumberland County Deed Book 119, Page 916, in which Plaintiff conveyed the Real Property to "Lester Associates, L.L.C." 8. At recording, an exclusion from transfer tax was claimed on the basis that the transfer was in the nature of a corrective deed. 9. On August 23, 1995, a deed was recorded in Cumberland County Deed Book 127, Page 62, in which Lester Associates, L.L.C, conveyed the Real Property to Defendant. 10. At recording, an exclusion from transfer tax was claimed on the basis that the transfer was in the nature of a corrective deed. 11. On December 8, 1995, a notice of determination was mailed by the Department of Revenue notifying Plaintiff that realty transfer tax had been assessed with respect to the March 20, 1995 deed. 12. On March 6, 1996, Plaintiff filed an appeal with the Department of Revenue's Board of Appeals. 13. On March 6, 1996, Plaintiff also filed the instant action asking that the two deeds recorded respectively on March 20, 1995, and August 23, 1995, be declared null and void ab initio and that title to the Real Property be vested in Plaintiff. 12 96-1233 CIVIL TERM 14. The instant action was brought as an action for declaratory judgment pursuant to 42 Pa. C.S. ~§7531-41? with the expressed purpose of determining a question of actual controversy between the parties thereto; jurisdiction was based on 42 Pa. C.S. ~7533.8 15. Gateway Square Associates, LLC, and the Department of Revenue were named as defendants. 16. An affidavit of service indicates that the complaint was served on both parties and the Attorney General of Pennsylvania. 17. On March 19, 1996, the Attorney General filed preliminary objections on behalf of the Department of Revenue, contending that the sole involvement of the Commonwealth concerned the imposition of realty transfer tax and that that issue lay within the exclusive jurisdiction of the Department of Revenue's Board of Appeals. 18. On April 19, 1996, Plaintiff filed an amended complaint which eliminated the Department of Revenue as a defendant. 19. Defendant Gateway Square Associates, LLC, did not file an answer to the complaint or amended complaint or otherwise respond. 20. On May 24, 1996, Lester Associates filed a praecipe for default judgment with a notice to defend attached. 21. A certificate of service by Plaintiff's counsel indicates that the praecipe for entry of judgment by default against Defendant was served by first-class mail upon Defendant, the Department of Revenue, and the Attorney General. 22. The Cumberland County Prothonotary entered a default judgment against the Defendant on May 24, 1996. 23. Notice of the entry of a default judgment was served on Defendant. 24. On May 24, 1996, Plaintiff filed a motion for adjudication and final decree upon default judgment pursuant to Pennsylvania Rule of Civil Procedure 1511(b). A certificate of service indicates that Defendant, the Department of Revenue and the Attorney General were served with copies of the motion. Declaratory Judgment Act of July 9, 1976, P.L. 586, ~2. Id. 13 96-1233 CIVIL TERM 25. By Order dated June 7, 1996, a hearing on the motion was scheduled for June 27, 1996, and the Order was served on Defendant, the Department of Revenue and the Attorney General. 26. The hearing on June 27, 1996, was attended by Plaintiff's counsel, Mark E. Halbruner, Esq., and by Sidney Becker, one of Plaintiff's general partners. 27. Mr. Becker testified that to the best of his knowledge there never was an entity called Lester Associates, L.L.C., and that he had simply made a mistake in preparing the deed in that regard. 28. It is uncontroverted in the record that Lester Associates, L.L.C., is not registered as a fictitious name or as a limited liability company in Pennsylvania, or in any other jurisdiction. 29. Also present at the hearing were Kathleen K. Shaulis, Esq., from the Department of Revenue, and Ronald H. Skubecz, Esq., assisted by John Bobber, legal intern, from the Attorney General's Tax Litigation Section. 30. The court afforded Attorneys Shaulis and Skubecz an opportunity to formally enter their appearances in this matter on behalf of the Commonwealth. 31. Speaking on behalf of himself and Ms. Shaulis, Mr. Skubecz acknowledged that the Commonwealth had been given a full opportunity to intervene in the proceeding. Mr. Skubecz then stated that the Commonwealth declined to enter its appearance, as its only interest in the proceeding was the transfer tax associated with the deed of March 20, 1995, an issue then pending before the Department of Revenue's Board of Appeals. 32. Attorneys Shaulis and Skubecz observed but did not participate in the remainder of the hearing. 14 96-1233 CIVIL TERM 33. As the instant action does not directly involve the transfer tax associated with the deed of March 20, 1993, the Court believes that the Department of Revenue's interests in this action have been adequately represented as contemplated by 42 Pa. C.S. §7540(b).9 34. Defendant did not appear and was not represented at the hearing. 35. At the conclusion of the hearing, the Court entered an Order closing the record and taking the matter under advisement. 36. Plaintiff has submitted a brief in support of its position that title to the property in question remains in Plaintiff. 37. An adjudication and decree nisi was entered by the court on July 26, 1996. 38. Plaintiff filed a motion for post-trial relief with respect to the adjudication and decree nisi pursuant to Pennsylvania Rule of Civil Procedure 227.1. It is DECLARED, ADJUDGED, AND DECREED that, by virtue of Defendant's d~'fault, and as between the parties to this action, title to the property bounded and described as follows shall be deemed to be in Plaintiff, Lester Associates: ALL THAT CERTAIN tract of land situated in Hampden Township, Cumberland County, Pennsylvania, being designated as Tract "A" on a Plan of Subdivision made for Crossgates, Inc. and recorded in the Recorder of Deeds Office of Cumberland County in Plan Book 51, Page 109, and being bounded and described as follows: 9 Act of July 9, 1976, P.L. 586, ~2, 42 Pa. C.S. ~7540(b) provides that: In any proceeding which involves the effect of any asserted legal relation, status, right, or privilege upon the determination of any tax, the appropriate taxing authority shall be~served with a copy of the proceeding, but if such taxing authority does not enter its' appearance, the requirements of this section shall nevertheless be satisfied if the court considers that the interests of the taxing authority are adequately represented. 15 96-1233 CIVIL TERM BEGINNING at an iron pin on the Southern right of way line Carlisle Pike, of U.S. Route 11, said point being thirty (30) feet South of centerline of said Carlisle Pike at the lands now or formerly of Hampden Township, thence from said point of beginning South 10 degrees 3 minutes 57 seconds West 790.29 feet to an iron pin, thence by the same lands South 88 degrees 34 minutes 24 seconds West 1113.75 feet to an iron pin in the centerline of Brandy Lane, a 33 foot wide road; thence along the centerline of said Brandy Lane and by the lands now or formerly of the United States Government the following courses and distances: North 3 degrees 40 minutes 36 seconds West 275.55 feet to a spike; thence by the same, North 00 degrees 40 minutes 36 seconds West 315.49 feet to a spike, said point being the Southerly line of New Brandy Lane, as shown on the aforesaid Plan of Subdivision for Crossgates, Inc.; thence by said line of New Brandy Lane, with a curve to the right, having a radius of 270.00 feet, (subtended by a chord North 59 degrees 42 minutes, 27 seconds East 266.86 feet) an arc distance of 279.14 feet to a point; thence by the same North 89 degrees 19 minutes 24 seconds East 152.81 feet to a point; thence by the same with a curve the left, having a~radius of 390.00 feet (subtended by a chord North 74 degrees 45 minutes 54 seconds East 196.06 feet) an arc distance of 198.19 feet to a point; thence by the same South 29 degrees 47 minutes 36 seconds East 15.00 feet to a point; thence by the same, with a curve to the left, having a radius of 405.00 feet, (subtended by a chord North 48 degrees 53 minutes 47 seconds East 158.86 feet) and arc distance of 159.89 feet to a point; thence by the same, North 37 degrees 35 minutes 11 seconds East 175.65 feet to a point; thence by the same, with a curve to the right, having a radius of 65.00 feet, (subtended by a chord North 77 degrees 58 minutes 44 seconds East 84.24 feet) an arc distance of 91.65 feet to a point on the southern right of way of Carlisle Pike aforesaid; thence by the same, with a curve right, having a radius of 7609.49 feet, (subtended by a chord south 59 degrees 57 minutes 47 seconds East 442.68 feet) an arc distance of 442.74 feet to an iron pin at THE POINT OF BEGINNING; CONTAINING 22.35 acres and being part of a tract of land surveyed by D.P. Raffensperger and Associates for Crossgates Inc last revised June 19, 1986. 16 96-1233 CIVIL TERM NOTHING HEREIN is intended to express an opinion as to the effect of this Decree, transfer tax liability. if any, upon any issues of real estate BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Mark E. Halbruner, Esq. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Attorney for Plaintiff Barnett & Weiskopf 408 North Cedar Bluff Road Suite 350 Knoxville, TN 37923 Agents for Gateway Square Associates, LLC Ronald H. Skubecz, Esq. Office of the Attorney General Tax Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 (Courtesy Copy) Kathleen K. Shaulis, Esq. Pennsylvania Department of Revenue Office of Chief Counsel Department 281061 Harrisburg, PA 17128-1061 (Courtesy Copy) : rc 17