# Cedarbrook Realty, Inc. v. Nahill

> Supreme Court of Pennsylvania · March 16, 1979 · 484 Pa. 441

URL: https://www.frixlaw.com/law-library/cases/9700109

## Case

- **Full name:** CEDARBROOK REALTY, INC. and John W. Merriam and Thomas Wynne, Inc., T/A Cedarbrook Joint Venture, Appellants, v. Charles F. NAHILL, Jr., Tax Collector of Cheltenham Township, School District of Cheltenham Township, Montgomery County, Cheltenham Township, Montgomery County Institution District, Montgomery County Tax Claim Bureau, the Board of Assessment Appeals for Montgomery County, Appellees
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 16, 1979
- **Citations:** 484 Pa. 441; 399 A.2d 374; 1979 Pa. LEXIS 483
- **Precedential status:** Published
- **Opinion:** Dissent by Manderino
- **Judges:** Eagen, O'Brien, Roberts, Nix, Manderino, Larsen, Pomeroy
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700109

## How later opinions describe it (automated extraction)

- explaining that two provisions are only irreconcilable if they cannot operate concurrently

## Opinion text

MANDERINO, Justice,
dissenting.
I must dissent. The provisions of the rent sequestration act, 72 P.S. § 5511.19, are unconstitutional. While the majority pays lip service to the principle that property rights are not entitled to less constitutional protection than personal rights, it nonetheless concludes that a statute which fails to provide for a prior hearing or a prompt post-seizure hearing passes constitutional muster. This conclusion is misguided. In the absence of a compelling state interest, a hearing should precede a governmental decision adversely affecting one’s property. Fuentes v. Shevin, 407 U.S. 67 , 93 S.Ct. 1983 , 32 L.Ed. 556 (1922); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 , 95 S.Ct. 719 , 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600 , 94 S.Ct. 1895 , 40 L.Ed.2d 406 (1974); Fahey v. Mallonee, 322 U.S. 245 , 67 S.Ct. 1552 , 91 L.Ed. 2030 (1947). The majority however seems to suggest that the traditional importance of the tax collection procedures in this case rises to the level of a compelling state interest and therefore justifies seizing appellant’s property without a hearing. The United States Supreme Court, however, recognizes that this issue is not so easily resolved in favor of the government:
*463 “Our conclusion that the Court of Appeals correctly reversed the judgment of the District Court and remanded for further proceedings is fortified by the fact that construing the [Anti-Injunction] Act to permit 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. This Court has recently and repeatedly held that, at least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties, the Due Process Clause requires that the party whose property is taken be given an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made. 11
Commissioner of Internal Revenue v. Shapiro, 424 U.S. 614, 629 , 96 S.Ct. 1062, 1075 , 47 L.Ed.2d 278, 291 (1976).
The majority attempts to distinguish the above-quoted language from Shapiro because “it is clear” that appellant, the taxpayer, knew the basis of the tax assessment, and that the “right to injunctive relief is available only if the taxpayer can establish that the taxing authority could not possibly prevail in its tax claim.” (p. 381). What concerns me is the majority’s complete disregard of the balancing test which takes into account the individual and governmental interests involved when an allegation of procedural due process is *464 made. In this case, the individual interest is considerable. Appellant asserts that without the rental income, payments for utilities and other essential services cannot be made. Appellant also alleges that the irreparable injury to its goodwill will result through the loss of existing and prospective tenants. Furthermore, appellant claims that the remedy available to it in a subsequent suit is totally inadequate. This analysis is missing from the majority’s opinion.
Additionally, I must reject the majority’s acceptance of appellee’s contention that appellant’s rights were protected because it received a hearing before the Court of Common Pleas. Whatever due process was afforded to appellant when it petitioned the court for a hearing did not arise from the application of the rent sequestration act. Rather, appellant petitioned the court to use its injunctive powers in a collateral proceeding. Yet, the majority justifies the application of a narrow scope of review because appellant seeks to obtain on its own the process which it cannot otherwise seek under the act. Such a Catch 22 situation cannot be said to meet even the minimum standards of due process.
As the provisions of 72 P.S. § 5511.19 fall short of providing appellant the process that is due, I must dissent.
Goldberg v. Kelly, 397 U.S. 254, 264 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970) (temporary deprivation of welfare payments may deprive recipient of ‘the very means by which to live while he waits’); Sniadach v. Family Finance Corp., 395 U.S. 337, 341-342 , 89 S.Ct. 1820 , 23 L.Ed.2d 349 (1969) (temporary deprivation of wages may ‘drive a wage-earning family to the wall’); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608 , 95 S.Ct. 719 , 42 L.Ed.2d 751 (1975) (‘probability of irreparable injury’ sufficient to warrant preseizure probable-validity hearing); see also Gerstein v. Pugh, 420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975) (incarceration must be preceded by probable-cause hearing); cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 156 , 95 S.Ct. 335 , 42 L.Ed.2d 320 (1974) (no probable-cause hearing required where complainant eventually will be ‘made whole’ for any inadequacy in compensation for confiscated property).”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700109. Public record. Not legal advice.