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ALLEGHENY COUNTY (12/19/72)

decided: December 19, 1972.

ALLEGHENY COUNTY, SOUTHERN DISTRICT, TAX ASSESSMENT APPEALS


Appeals from the Order of the Court of Common Pleas of Allegheny County in case of Borough of Green Tree and John C. Phillips and Elizabeth P. Phillips, his wife, Emil S. Kapcar and Helen Capcar, his wife, Adelbert J. Willitts and Ruth E. Willitts, his wife, Frank P. Beitel, Jr., and Charlotte E. Beitel, his wife, Andrew T. Fertal and Eda C. Fertal, his wife, and Fred Baraky and Evelyn Baraky, his wife and all other persons similarly situated in Allegheny County, Pennsylvania v. The Board of Property Assessment, Appeals and Review of Allegheny County, Pennsylvania, and Leonard L. Staisey, Chairman, Thomas J. Foerster and William R. Hunt, Members of the Board of County Commissioners of Allegheny County, No. 1341, April Term, 1970. Appeals transferred from the Supreme Court of Pennsylvania to the Commonwealth Court of Pennsylvania, December 29, 1971.

COUNSEL

Donald J. Lee, with him Dougherty, Larrimer & Lee, for plaintiff-appellants.

Gilbert E. Morcroft, for intervenor, Borough of Crafton.

Anthony P. Bartiromo, with him Lichtenstein & Bartiromo, for intervenor, Township of Scott.

Richard G. Zeleznik, for intervenor, Borough of West Mifflin.

Alfred James Duff, with him Miller, Entwisle and Duff, for intervenor, Borough of Brentwood.

John F. McGinty, with him Smiley and McGinty, for intervenor, Township of South Park.

Henry E. Rea, Jr., with him Brandt, McManus, Brandt & Malone, for intervenor, Borough of Pleasant Hills.

Thomas M. Rutter, Jr., Assistant County Solicitor, with him John F. Murphy, Assistant County Solicitor, and Francis A. Barry, County Solicitor, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers, and Blatt.

Author: Per Curiam

[ 7 Pa. Commw. Page 294]

These consolidated cases are appeals from an order of the Court of Common Pleas of Allegheny County in which Judge Olbum dismissed the complaint for lack of jurisdiction of the subject matter.

We have carefully researched the law in this area and agree with the lower court that this case is controlled by Rochester & Pittsburgh Coal Company v. Indiana County Board of Assessment, 438 Pa. 506, 266 A.2d 78 (1970). That case, as does the instant case, involves an objection to the levying of taxes on the basis of a partial revaluation of property in one county.

We conclude that we must affirm the court below based upon the thorough opinion of Judge Olbum which is made a part hereof by reference thereto and set forth below in its entirety.

"Olbum, J.

"In these two equity cases which have been consolidated by the Court, the plaintiffs, including intervenors, are sixteen municipalities situate in the 'Southern District' of Allegheny County; and a number of individual residents and real estate taxpayers in four of said municipalities.

"Plaintiffs seek a decree declaring unconstitutional the provision of the Second Class County Assessment Act which empowers the defendant Board of Property Assessment, Appeals and Review (Board) to adopt a system of triennial assessments by dividing the County into three districts, which system has been in effect in Allegheny County for a number of years: Act of 1939, P.L. 626, § 7, as amended, 72 P.S. § 5452.7. Plaintiffs contend that the legislative enactment contravenes the uniformity requirement of Article VIII, Section 1, of the Pennsylvania Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Plaintiffs also contend that the 'application of the assessment law' in Allegheny

[ 7 Pa. Commw. Page 295]

County is likewise unconstitutional because, beginning in 1969, the Board began its triennial assessments for the years 1970, 1971 and 1972 in the 'Southern District' of the County, raising the ratio of assessments to market value of real estate in said district to 50%, while a much lower ratio prevails in the two remaining districts of the County.

"In addition to a decree of unconstitutionality as aforesaid, the complaints seek a decree (1) ordering that all increases in triennial assessments resulting from defendant Board's 'new method of assessing' be held in abeyance until completion of reassessment of all real estate in Allegheny County on the basis of the same ratio to fair market value; (2) suspending all increases in triennial assessments resulting from the Board's 'new method' until completion of the reassessment of all real estate in Allegheny County on the basis of the same ratio to fair market value; and (3) enjoining defendant Board of County Commissioners from levying and collecting any tax on increases in triennial assessments from defendant Board's 'new method of assessing' until completion of the reassessment of all real estate of Allegheny County on the basis of the same ratio to fair market value. Plaintiffs at No. 1341, April Term, 1970, have filed an amendment to their complaint, which consists of an amplification of their averment of lack of an adequate remedy at law. In the amendment plaintiffs asseverate the unconstitutionality also of Act No. 138, approved June 22, 1970, which is an amendment to the Second Class County Assessment Law, providing that interest commencing one year after the date of payment of taxes be included with a refund of excess taxes paid in such counties.

"The defendants answered both complaints, in substance denying that a new method of assessing real estate was adopted in 1969, and averring that it is adjusting

[ 7 Pa. Commw. Page 296]

    real estate assessments in the 'Southern District' so that such assessments shall be at a uniform level to conform to the ratio of assessments to market value in effect in Allegheny County, as confirmed by the Pennsylvania State Tax Equalization Board. Defendants aver that this adjustment process is a continuous one and accords with the Constitution and the laws of the Commonwealth; that the Board assesses property uniformly; and that 'the uniform level of the ratio of assessments to market value . . . is in all three triennial districts of Allegheny County at or reasonably near the 50% ratio as determined by the calculations of the State Tax Equalization Board.'

"The question of the jurisdiction of this Court of Equity over the subject matter of these cases was not raised by any party hereto. However, jurisdiction cannot be conferred on a Court or waived by the parties, and a Court is duty-bound to raise the issue sua sponte: Eberhardt v. Ovens, 436 Pa. 320; Gardner v. Allegheny County, 382 Pa. 88; Pa. R.C.P. 1032(2), made applicable to actions in Equity by Pa. R.C.P. 1501. We therefore ordered an argument, limited to the question of equity jurisdiction, particularly in light of the Opinion of the Supreme Court in Rochester & Pittsburgh Coal Company v. Indiana County Board of Assessment and Revision of Taxes, 438 Pa. 506, filed May 27, 1970. We are now impelled to the same conclusion as that reached by the Supreme Court in Rochester, supra, namely, that this Court lacks equity jurisdiction over the subject matter because plaintiffs have an adequate statutory remedy available to them.

"In Rochester, supra, an action in equity was brought to enjoin the application of a method of taxation undertaken by the Board of Assessment and Revision of Taxes of Indiana County. The complaint alleged that during 1968 the assessors undertook a revaluation and reassessment of real estate in certain areas of Indiana

[ 7 Pa. Commw. Page 297]

County which allegedly resulted in substantial increases in many assessments in some areas, while assessments of other parcels in the County remained unchanged. Contending that this reassessment method violated the Uniformity Clause of the Pennsylvania Constitution and the Equal Protection Clause of the United States Constitution, plaintiff sought an injunction to restrain the Board from applying the revised assessments. The Supreme Court affirmed the lower Court's dismissal of the Complaint for lack of equity jurisdiction, saying at page 508: 'In a positive sense, what is required to confer jurisdiction on an equity court is the existence of a substantial question of constitutionality (and not a mere allegation) and the absence of an adequate statutory remedy.' (Emphasis added.)

"Plaintiffs here argue that Rochester, supra, is distinguishable from the instant case, because that case involved an attack on the constitutionality of the application of the law, whereas the instant case involves a direct attack on the constitutionality of an Act of the Legislature as written.

"It is true that the Supreme Court did say in Rochester that the plaintiff was attacking the application of a statute, and not the statute itself. It is clear to us, however, that in undertaking the revaluation and reassessment in 1968 of properties in nine of Indiana County's thirty-eight political subdivisions, the Indiana County Board had adopted, without statutory authorization, a system not different in kind from the triennial assessment system specifically authorized by statute for Counties of the Second Class. Here, as in Rochester, it is basically the method of assessment which is under attack. Whether that method is followed either with or without statutory authority does ...


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