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APPEAL CEDARBROOK REALTY v. BOARD ASSESSMENT APPEALS FOR MONTGOMERY COUNTY ET AL. CEDARBROOK REALTY (12/11/78)

decided: December 11, 1978.

APPEAL OF CEDARBROOK REALTY, INC. FROM THE REAL ESTATE TAX ASSESSMENTS FOR THE TAX YEARS 1970-1976. THE BOARD OF ASSESSMENT APPEALS FOR MONTGOMERY COUNTY ET AL. CEDARBROOK REALTY, INC., APPELLANT. CEDARBROOK REALTY, INC. AND CEDARBROOK JOINT VENTURE
v.
THE BOARD OF ASSESSMENT APPEALS FOR MONTGOMERY COUNTY ET AL. CEDARBROOK REALTY, INC. AND CEDARBROOK JOINT VENTURE, APPELLANTS



Appeals from the Orders of the Court of Common Pleas of Montgomery County in cases of Cedarbrook Realty, Inc. and Cedarbrook Joint Venture v. The Board of Assessment Appeals for Montgomery County, the School District of Cheltenham Township, The Township of Cheltenham, County of Montgomery and The Montgomery County Institution District, No. 76-16915; and Appeal of Cedarbrook Realty, Inc. from the Real Estate Assessments for the Tax Years 1970-1976, No. 76-16916.

COUNSEL

Richard L. Bazelon, with him Roger F. Wood, and, of counsel, Dilworth, Paxson, Kalish, Levy & Kauffman, for appellants.

Joseph A. Smyth, Charles Potash, Scott E. Townsley, Samuel H. High, Jr., with them, Michael D. Marino, Roger B. Reynolds, Harris F. Goldich, and, of counsel, Wisler, Pearlstine, Talone, Craig & Garrity, for appellees.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 39 Pa. Commw. Page 151]

Cedarbrook Realty, Inc. and Cedarbrook Joint Venture (Cedarbrook) appeal here from an order of the Court of Common Pleas of Montgomery County

[ 39 Pa. Commw. Page 152]

    dismissing two actions in which they challenged tax assessments of their properties for the years 1970 through 1976.

The two actions initially brought by Cedarbrook before the lower court and which have been consolidated for purposes of this appeal consisted of (1) a Petition for Allowance of Appeal from the denial of assessment appeals nunc pro tunc by the Board of Assessment Appeals for Montgomery County (Board) in which Cedarbrook requested a de novo determination of the assessments and a refund of any excessive taxes paid and (2) a Complaint in Equity against the Board and the School District of Cheltenham Township, the Township of Cheltenham, the County of Montgomery and the Montgomery County Institution District (taxing districts)*fn1 seeking the relief requested in the first action as well as damages.

Cedarbrook has alleged that the assessed values for properties as determined by the Board for the years 1970 through 1976 were arbitrary and unlawful for two reasons: (1) they were based on an assessment ratio substantially higher than the lawful assessment ratio and (2) they were based on excessive and arbitrary figures as to fair market value. Cedarbrook admitted its failure to file a timely appeal to the Board in accordance with the Third Class County Assessment Law*fn2 (Act), but alleged that its failure to do so resulted from material misrepresentations made by employees of the Board as to the relevant assessment ratio for Montgomery County.

The Board and the taxing districts filed preliminary objections to both actions which, after argument and consideration of briefs, were sustained by the lower

[ 39 Pa. Commw. Page 153]

    court. The lower court in dismissing Cedarbrook's actions held that it was without power to entertain the action in equity because Cedarbrook failed to pursue its mandatory and exclusive statutory remedy. In addition, it concluded that Cedarbrook had failed to establish a legally adequate claim of fraud, in that even if the Board had made the alleged misrepresentations Cedarbrook had no right to rely on them because tax assessments are a matter of record, and that even if Cedarbrook could establish fraud the action would be barred by laches. Our scope of review is limited here, of course, by the fact that the findings of a court of common pleas in a tax assessment ...


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