IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

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1 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA DAVID & RUTH GRABB; PINE RIDGE MANOR HOMEOWNERS ASSOCIATION, DCE PROPERTIES, INC., CORDAY YEAGER, THEODORE R. & ELLYN B. PAUL, SCOTT & JACQUELINE MIROWITZ, MARY & PATRICK MCARDLE, JEFFREY & KATHLEEN ROSS, GUPTA FAMILY LIMITED, PENINSULA PROPERTIES, MONROEVILLE CHRISTIAN JUDEA FOUNDATION, GARDEN CITY HALL, INC. AND KENNETH B. SKOLNICK, vs. Plaintiffs, THE COUNTY OF ALLEGHENY and THE BOARD OF PROPERTY ASSESSMENT, APPEALS AND REVIEW OF ALLEGHENY COUNTY, Defendants. CIVIL DIVISION NO. GD MIROWITZ AND GARDEN CITY HALL REPLY TO THE ASSESSMENT BOARD BRIEF OPPOSING WRITTEN NOTICE OF A DISMISSAL OF AN ASSESSMENT APPEAL - (CLAIMS OF MIROWITZ ARE AT PARAGRAPHS 52 thru 56 OF THE COMPLAINT AND CLAIMS OF GARDEN CITY HALL ARE AT PARAGRAPHS 57 thru 66 OF THE COMPLAINT) Filed on behalf of Plaintiffs, SCOTT & JACQUELINE MIROWITZ and GARDEN CITY HALL, INC. Counsel of Record for this Party: JOHN M. SILVESTRI, ESQ. Pa. I.D. No JOHN M. SILVESTRI, ESQ. Firm No North Negley Avenue Pittsburgh, PA (412)

2 MIROWITZ AND GARDEN CITY HALL REPLY TO THE ASSESSMENT BOARD BRIEF OPPOSING WRITTEN NOTICE OF A DISMISSAL OF AN ASSESSMENT APPEAL (CLAIMS OF MIROWITZ ARE AT PARAGRAPHS 52 thru 56 OF THE COMPLAINT AND CLAIMS OF GARDEN CITY HALL ARE AT PARAGRAPHS 57 thru 66 OF THE COMPLAINT) A. THE MAIN ISSUE AND SIDE ISSUES 1. This is a Reply Brief to the Board of Assessment Brief in opposition to the Issuance of Written Notices of Decisions. This Brief is divided into two parts. 1. The first part of this Brief will address the main issue the Court requested to be briefed, i.e., whether a party appellant to the Assessment Board is entitled to a written Notice of an Assessment Board decision. Said otherwise, entitled to an appeal de novo to the Court of Common Pleas. 2. The second part of this Brief will address side issues. One side issue was raised by Mirowitz and other side issues were raised by the Assessment Board. Mirowitz raised a side issue that if the Assessment Board did not make a year 2001 decision (the Assessment Board nomenclature in its Rules is non-decision ), then a year 2002 hearing must be conducted for a decision to be made. The Assessment Board raised side issues that hearings scheduled and completed for the year 2001 Garden City Hall appeal and for the

3 year 2002 Mirowitz appeal (timely filed for 2002 after the :dismissal of the 2001 appeal) should not be decided, but placed in its limbo of nondecision. B. CONSTITUTIONAL AND STATUTORY FRAMEWORK 2. As set forth in the main Brief of Mirowitz, Pennsylvania Constitutional and Judicial Code Provisions guaranteeing and providing for the right of a party to an administrative hearing to have the administrative tribunal s disposition reviewed by a court of record were cited, and the statutory provisions in the General County Assessment Law providing for a Court of Common Pleas hearing de novo were cited; see the Pennsylvania Constitution, Article 5, 9, titled Right of Appeal, the Judicial Code at 42 Pa.C.S and General County Assessment Law, 72 P.S C. THE ASSESSMENT BOARD S RULES AND VIEWS 3. The Assessment Board cites its Rules and presents three arguments in its Brief to deny the Constitutional and Statutory rights of Appeal. 4. The Assessment Board adopted Rules, including Rule IV and Rule V, which provide:...failure of appellant to appear at the hearing after due notice thereof shall result in the Appeal being dismissed and the assessment remaining unchanged. [Rule IV, Section 6, emphasis supplied.] Page -2-

4 * * * * *...the dismissal will result in no change in the assessed value and no decision rendered by the Board... [Rule V, Section 2, second sentence, emphasis supplied.] 5. These Rules are confusing at best, inasmuch as Rule IV, Section 6 states that an appeal is dismissed and Rule V, Section 2, second sentence, states that the Assessment Board is making no decision. The confusion and inconsistency within the Assessment Board s own Rules most likely stems from its desire to negate the Constitutional and Statutory Rights of Appeal, as the Assessment Board attempts to do in Rule V, by stating: No appeal to the Court of Common Pleas can be taken from an appeal that has been dismissed. [Rule V, Section 2, last sentence.] 6. However, the case of Chartiers Valley School District v. Board of Property Assessment, 52 Pa. Cmwlth. 262, 415 A.2d 963 (1980) and the slip opinion of the Trial Court at No. GD , which was adopted by the Commonwealth Court, holds that an Assessment Board rule may not negate a statutory right of appeal. This case is discussed below. 7. The Assessment Board also argues that the Pennsylvania Rules of Procedure at Pa.R.C.P. 218, which allows for a non-suit or non pros somehow empowers it to deny a right of appeal. Such an argument makes no sense. Pa.R.C.P. 218 is promulgated by the Supreme Court of Pennsylvania. Non-suits and non proses are issued Page -3-

5 in written form. Motions for post-trial relief or to open a non pros are provided for in other Rules promulgated by the Supreme Court of Pennsylvania. There is a right of appeal to either the Superior Court of Pennsylvania or the Commonwealth Court of Pennsylvania from the entry of an order affirming a non-suit or non pros. 8. Lastly, the Assessment Board s brief claims there is an informal process of communication directly with the Board and the formal process of filing a petition with the Court for reconsideration of the Board action due to extenuating circumstances. It is beyond belief that such an argument supports a position that no written decision of a dismissal is to be issued to commence the time period for filing an appeal de novo to Common Pleas Court. Moreover, such a procedure is fraught with the potential of ignoring its publicly published rules to engage in selective favoritism as to whom gets a hearing, and thus, an appealable written decision, after failing to appear. 9. The Board of Assessment, in its brief, cited no decisional law to support the proposition that it is empowered to deny a right of appeal. D. A BOARD OF ASSESSMENT MAY NOT NEGATE A RIGHT OF DE NOVO APPEAL THROUGH RULE MAKING 10. The case of Chartiers Valley School District v. Board of Property Assessment, 52 Pa. Cmwlth. 262, 415 A.2d 963 Page -4-

6 (1980), through the slip opinion of the Trial Court at No. GD adopted by the Commonwealth Court addresses the main issue briefed. The Commonwealth Court stated at 52 Pa.Cmwlth. 265, 415 A.2d 965: In affirming the lower court order dated September 14, 1979, we adopt the well-stated and well-reasoned unpublished Opinion of Judge Del Sole in connection therewith, at No. G.D , Court of Common Pleas of Allegheny County, Civil Division A copy of the slip opinion is supplied to the Court and counsel with this brief, as is set forth in the Certificate of Service of this Brief. 11. The relevant history of the Chartiers Valley case before it came before Judge Del Sole is as follows. The Chartiers Valley School District filed a tax appeal before the Assessment Board to increase the assessment of property owned by Virginia Mansions Apartments. Chartiers Valley School District appeared at an Assessment Board hearing, but presented no evidence. The Assessment Board utilized then existing Rules, of which Section 3 was quoted in Judge Del Sole s slip opinion. Section 3. Failure to appear at hearing Failure of the Appellant to appear at the hearing after due notice thereof, or failure of the Appellant to submit information regarding market value as may be required by the Board shall be considered an abandonment of the appeal and grounds for dismissal. Page -5-

7 12. The matter which came before Judge Del Sole was the property owner s Motion to Quash the Chartiers Valley School District Appeal from the Assessment Board to Common Pleas Court because of the Assessment Board Rule which considered the failure of the Appellant to present evidence to be an abandonment of its appeal resulting in a dismissal of the appeal. After Judge Del Sole fully discussed the procedural history, which also involved a prior appeal from the Assessment Board to the Court of Common Pleas, which resulted in a remand to the Assessment Board and a retention of jurisdiction by Common Pleas Court, Judge Del Sole then discussed multiple bases for permitting the taxing jurisdiction s appeal de novo to proceed forward. 13. First, Judge Del Sole referenced the obvious retention of jurisdiction by Common Pleas Court. Then, Judge Del Sole proceeded into a deeper and more thorough analysis, beginning on page 5 of his slip opinion, last paragraph, stating: Notwithstanding the purported failure of Appellants to submit the required market value information, this Court is of the opinion that it is not permissible for an administrative agency by any rule or artifice to deny to the two taxing bodies their right guaranteed by Section 12 of the Act of June 21, 1939, P.L. 626, as amended Section which provides the absolute right of any taxpayer dissatisfied with the assessment of his property to appeal therefrom to the Court of Common Pleas of the County within sixty (60) days from the date of notice of the assessment. Section goes on to state that Page -6-

8 ...it shall be the duty of the court to hear and determine said appeal, and, if necessary, to make such changes in the assessment as may be right and proper. (emphasis added) Accordingly, the Pennsylvania General Assembly has bestowed upon this Court an affirmative duty to hear the instant appeal. This Court is without power or authority to relinquish that duty based upon any administrative regulation. Judge Del Sole went on to cite and discuss a Superior Court case as follows:... As was aptly noted by our Superior Court in the case of In re Reininger, 160 Pa. Super. 443, 51 A.2D 506 (1947) An owner of real estate, who had actually appealed to the board of assessment and revision of taxes in accordance with the Act [footnote 1], is entitled to a further appeal to the common pleas on the failure of the board to hear and dispose of the first appeal for any reason. 51 A.2d at 507. (Emphasis added) [Footnote 1 stated: The subject appeal in the Reininger case was filed pursuant to Section 704 of the Act of May 21, 1943, P.L. 571, 72 P.S. Section an analogous Act governing appeals from the Board of Assessment and Revision of Taxes in counties of the fourth to eighth classes. ] The Reininger case involved an appeal to the Superior Court from a decision of the Court of Common Pleas of Northampton County reducing the assessed valuation of the property owner s real estate. In Reininger the Board of Assessment and Revision for Northampton County declined review of the property owner s appeal from the valuation as fixed by the county assessor for the stated reason that no declaration of Page -7-

9 intention to appeal was filed with the board prior to the expiration of time fixed by statute for the filing of such an appeal. Thereafter, the property owner filed a timely appeal to Common Pleas Court under 72 P.S. Section The Court of Common Pleas proceeded to hold a hearing on the appeal wherein it was established by competent evidence that the appeal to the Board was, in fact, timely filed. The lower court then proceeded to reduce the assessed valuation and the County of Northampton, substituted for the Board by stipulation, appealed the reduction to the Superior Court. In upholding the decision of the Court below, the Superior Court noted that the decision of the Board declining review of the matter was the equivalent of an Order dismissing the appeal... Nevertheless, the Superior Court held that the landowner s establishment of the timely filing of the appeal to the Board by competent evidence before the lower court was sufficient to entitle the property owner to a further appeal to the Court of Common Pleas regardless of the reason for the failure of the Board to hear and dispose of the appeal. See also, In Re Appeal of Shamokin Dress Company, 21 Northumb. L.J. 254 (1950). * * * * * As was aptly noted, our Pennsylvania Supreme Court in the landmark decision of Weber v. Lynch, 473 Pa. 599, 375 A.2d 1278 (1977) holding Rule 303(J) of the Court of Common Pleas of Allegheny County, which in de novo appeals from compulsory arbitration generally restricted a party from calling witnesses not called at the arbitration hearing, invalid, the right to trial de novo includes the right to proceed to trial with no evidentiary limitations...other than those which would be applicable to an original trial. Moreover, the Supreme Court in Weber specifically rejected the Appellants contention that the right to a de novo appeal from the award of the arbitrators encompasses no more than a right to Page -8-

10 have a judge and jury hear essentially the same evidence and testimony which was presented to the arbitrators and to reach a new decision uninfluenced in any way by their prior decision. 375 A.2d at Rather, the Court, speaking through Chief Justice Eagen, clearly stated that it seems clear that the legislature in providing for compulsory arbitration did not intend to limit the evidence at the de novo jury trial to that which had been presented to the arbitrators. Id. at Likewise, it seems clear that the Legislature did not intend to deny a part, dissatisfied with the assessment of his property who has failed to produce before the board information regarding its market value, the right to appeal to the Court of Common Pleas. Conversely, the Legislature has unambiguously stated that it is the duty of the Court to hear and determine such an appeal. 72 P.S. section , supra. There is no provision in the Act of June 21, 1939, or as far as this Court is aware, in any subsequent statue, denying the right of appeal to a party who has failed to present market value information before the Board. 14. It is to be noted that Judge Del Sole cited 72 P.S of the Second Class County Assessment Law, which has been repealed. This section was repealed when it was determined the Judicial Code s uniform provision for appeal time periods to be 30 days applied to assessment appeals, rather than the 60 day time period discussed by Judge Del Sole. In any event, the General County Assessment Law at 72 P.S , cited above, has a similar or parallel right of appeal provision for de novo appeals from an Assessment Board to Common Pleas Court. 15. It is also to be noted that in additional appellate litigation in the Chartiers Valley case, being Chartiers Page -9-

11 Valley School Dist. v. Board of Property Assessment, Appeals and Review, 154 Pa.Cmwlth. 81, 622 A.2d 420 (1993), it became necessary to re-visit the well-stated and well-reasoned Opinion of Judge Del Sole. At this point in time, a trial de novo had transpired in Common Pleas Court in 1983, but the parties only presented evidence as to the value of the property under appeal for 1976 through There was an issue as to whether further proceedings were required for tax years 1980 through In this en banc Opinion of the Commonwealth Court at 154 Pa.Cmwlth. 99, 622 A.2d 430, it is stated: As noted by the opinion we adopted in Virginia Mansions Apartments Appeal, "ultimate jurisdiction" of an appeal from the board's determination in the matter lay in the court of common pleas. When the case came before Judge Weir in 1983, the assessments for tax years '76-'82 were incorporated. Evidence of the value of the property for tax years '76-'79 was presented. No party presented evidence relevant to any change in value for any assessment later than Nor did Judge Weir remand any of those later assessment issues to the board; no bifurcation of issues occurred. By not presenting evidence, all parties have waived any argument that the fair market value of the property changed in tax years '80 and '81. (FN21) FN21. We must distinguish the effect of failure to present evidence at the court of common pleas level from the effect of a failure to present evidence before the board. In the opinion we adopted in Virginia Mansions Apartments Appeal, Judge Del Sole held that the failure to present evidence in front of the board was not abandonment of the issues because the taxing authorities had the opportunity to present evidence at the de novo hearing before the court of common pleas. "[T]he right to trial de novo includes the right 'to proceed to trial with no evidentiary limitations... other Page -10-

12 than those which would be applicable to an original trial.' " (Slip opinion, G.D , September 14, 1979, p. 7, quoting Weber v. Lynch, 473 Pa. 599, 610, 375 A.2d 1278, 1281 (1977)). Once at the court of common pleas level, however, a party has no right to present evidence at the next step of the process. As all parties failed to present evidence relevant to tax years '80-'82 at the last forum where that opportunity was available to them, they have waived any claim that the assessments for those years should have been different from that determined for tax year In conclusion, based upon the Constitutional and statutory authority set forth in the main brief of Mirowitz and based upon the decisional law of Chartiers Valley School District, Mirowitz is entitled to an appeal de novo. In order to obtain an appeal de novo, in the context of due process, the Assessment Board is required to issue a written decision. E. SIDE ISSUES 17. If this Court s decision as to the claims of Mirowitz is favorable to Mirowitz, the Assessment Board will be required to declare whether it has made a dismissal decision under its Rule IV, Section 6, in which case it must place the decision in a written form, or whether it has made no decision under its Rule V, Section 2, second sentence (because there was no hearing), then a hearing needs to be conducted. 18. If this Court s decision as to the claims of Mirowitz is not favorable to Mirowitz, a side issue raised by the Page -11-

13 Assessment Board as to Mirowitz is that a year 2002 appeal timely filed by Mirowitz on May 31, 2002 after the Assessment Boards unwritten decision of dismissal or no decision, which was scheduled and heard, is not to be decided. Such an issue was not perceived to exist and is not pleaded as a claim in the Complaint. Hence, if this side issue must be addressed because this Court does not grant relief to Mirowitz as to the year 2001 appeal of Mirowitz, then it will be necessary for Mirowitz to amend the Complaint to add an additional claim for the purpose of litigating their entitlement to pursue their timely filed year 2002 assessment appeal. 19. There are factual side issues as to the Garden City Hall which must be addressed if this Court does not grant relief to Mirowitz being entitled to a written decision of dismissal or a hearing. The Garden City Hall appeal was, in fact, postponed, as was set forth in the Appeal Status screen of the County/Assessment Board web site. Counsel for Garden City Hall relied upon the Appeal Status being postpone, rather than being dismissed, in not filing a prophylactic year 2002 appeal, as was done with Mirowitz. Additionally, requests within one week of a hearing were regularly granted. Interrogatories and Requests for Production have been filed which seek an admission that a postponement was granted to the Garden City Hall and posted in the computer system. If these issues are reached, the Garden City Hall requests the opportunity to Compel answers and responses to its Page -12-

14 Interrogatories and Requests for Production, and to prepare an affidavit for counsel s secretarial/clerical staff, who reviewed the web site information for the Appeal Status of the Garden City Hall appeal to know that the web site Appeal Status was postponed as of about August 28, 2002 (this date is known because the review was done by counsel s secretarial/clerical staff preliminary to a letter to the appeals manager dated August 28, 2002, requesting hearings for unheard year 2001 appeals) and an affidavit of counsel to provide supplemental information that counsel was aware of the postponed status of the Garden City Hall appeal prior to the deadline for filing year 2002 appeals, but did not record the fact of said observation in any file, and if the he had observed the status to be dismissed, rather than postponed, counsel would have filed a year 2002 appeal, just like counsel filed a year 2002 appeal for Mirowitz as a prophylactic measure, counsel will identify to the Court the last six postponements granted, which were made within one week of the hearing. Contrary to the beliefs of the Assessment Board s solicitor, it was a regular practice to permit both postponements within a week of the hearing and in certain instances, to permit immediate rescheduling so as to group appeals at convenient times. Also, the affidavit of counsel will also describe his experience with the so-called informal process of the Assessment Board. Counsel recently experienced the so-called informal process when a property owner who hired counsel after filing her own appeal received a Notice of Hearing, which was not Page -13-

15 received by counsel. This property owner s case was dismissed. When the property owner learned of the dismissal by viewing the Assessment Board web site for her property as to Appeal Status, she telephoned the Assessment Board and was told that her counsel should attend an Assessment Board weekly meeting and request a Hearing and be prepared to go to Hearing the same day. In fact, this process was followed and the Assessment Board granted a Hearing after the so-called dismissal or non-decision. Respectfully submitted, JOHN M. SILVESTRI, ESQ. Attorney for Plaintiffs Page -14-

16 CERTIFICATE OF SERVICE I certify that on January 16, 2003, a copy of the foregoing and the slip opinion of Judge Del Sole at No. GD , was served upon the person(s) set forth below at the address(es) set forth for each by X first class mail or hand delivery CRAIG STEPHENS, ESQ. ALLEGHENY COUNTY LAW DEPT 300 FORT PITT COMMONS BUILDING 445 FORT PITT BOULEVARD PITTSBURGH, PA (Counsel for Allegheny County) ISOBEL STORCH, ESQ. BOARD OF PROPERTY ASSESSMENT COUNTY OFFICE BLDG, 3 RD FLOOR 452 FORBES AVENUE PITTSBURGH, PA (Counsel for Assessment Board) Respectfully submitted, JOHN M. SILVESTRI, ESQ. Attorney for Plaintiffs Page -15-

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