to Plaintiffs to redress their constitutional claims, the Court must look to the nature of those claims.
In Bishop v. Wood , 426 U.S. 341, 344, n.7, 96 S. Ct. 2074, 2077, n.7, 48 L. Ed. 2d 684 (1976), the United States Supreme Court, citing Board of Regents v. Roth , 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972) stated that a property interest may not be derived from the due process clause itself but must be created and defined by some independent source such as state law. It is the Court's view that the property right involved in the above-captioned case is the right to retain money unless it is taken by properly imposed taxes. The Act of July 31, 1968, P.L. 1036, No. 315, as amended by the Act of July 9, 1976, P.L. 852, No. 150, 72 P.S. § 5453.701(a), provides in pertinent part that a notice of change of assessment "shall state that any person aggrieved by such change or by any assessment, may appeal to the board for relief by filing with the board on or before the first day of September, a statement in writing of such intention to appeal, designating the assessment or assessments by which such person is aggrieved, and the address to which notice of when and where to appear for a hearing of the appeal shall be mailed."
It is clear to the Court that the Defendants have literally complied with this appeal notice. Exhibits showing the notices of change in assessment sent to the Plaintiffs demonstrate that the Plaintiffs were informed of (1) the change in assessment, (2) the amount of the old assessment and (3) the amount of the new assessment. Most significant, however, is that the notices sent to the Plaintiffs informed them of their right to appeal assessments of their land. The statutory scheme provided a means to appeal assessments to the board and to the courts ultimately. See 72 P.S. §§ 5453.701 and 5453.704. Since the Court of Common Pleas has the power to hear appeals of anyone feeling aggrieved by an assessment if that person has properly utilized the statutory remedies, it appears to the Court that it cannot grant Plaintiffs any more relief than a state court. see Garrett v. Bamford , 582 F.2d 810, 817 (3d Cir. 1978). The Fourth to Eighth County Code does provide a plain, speedy and efficient remedy to vindicate the right to due process of these individual Plaintiffs.
The Plaintiffs in their amended complaint and at trial apparently have tried to persuade the Court to read into the notice requirement that portion of the Act of May 21, 1943, P.L. 571 § 602 as amended, 72 P.S. § 5453.602(a) which requires in pertinent part that "real property shall be assessed at a value based upon an established pre-determined ratio, of which proper notice shall be given , not exceeding 75 per centum (75%) of its actual value..." (emphasis supplied). It is the view of the Court that this argument of Plaintiffs must be rejected for a number of reasons. First, the quoted portion of § 5453.602 cannot fairly be read into the requirements of § 5453.701. There is absolutely no case authority in Pennsylvania for reading the statutes that way. § 5453.701 does not explicitly require that the assessment change notice state the ratio of the assessed value to fair market value. Thus, it is the view of the Court that the Defendants did not violate § 5453.701.
Second, it may be that the Defendants have violated § 602 in that they may not have given "proper notice" of the change of assessment ratio.Defendants submit that they have complied with § 5453.602 and in particular note that the minutes of the Bradford County Commissioners indicating that assessment ratio had been set at 25 per cent was attached to the cadastre.Notice of the cadastre's availability for inspection was published in several newspapers. Further, Defendants suggest that they have complied with § 5453.602(a) by satisfying the notice requirements set forth in § 5453.604. However, the Court need not reach that issue. The issue before the Court is whether the Plaintiffs have been deprived of a property interest without due process of law. Because the property interest involved in the above-captioned case is money possessed or at one time possessed by the Plaintiffs, the Court must focus upon whether the Plaintiffs have available to them the plain, speedy and efficient remedy to vindicate that interest. Clearly, at one time the parties had the right to appeal pursuant to 72 P.S. § 5453.701, et seq. This Court has found by finding of fact No. 19 that the change in the assessment value notices sent to the Plaintiffs informed them of such right. Thus, they were aware or should have been aware of the existence of the plain, speedy or efficient remedy for redress of their constitutional claims. See Tully v. Griffin, Inc ., 429 U.S. 68, 97 S. Ct. 219, 50 L. Ed. 2d 227 (1976). As a result, the Tax Injunction Act, 28 U.S.C. § 1341, bars this suit.
It may be that the Plaintiffs contend that the Defendants had an obligation to comply with the "proper notice" provisions of 72 P.S. § 5453.602(a) independent of the requirements of 72 P.S. § 5453.701. Although this theory was not clearly presented at trial by the Plaintiffs, such that the parties focused on it to any extent, it is the Court's view that it merits some discussion.
The ratio at which the actual value of the property was reflected by the assessed value is not in the Court's view intimately related to the tax actually imposed on the land. Taxes are computed on the basis of assessed value multiplied by the applicable millage. Lack of notice of the changes in an assessment ratio and thus the absence of an opportunity to appeal such a change does not involve any property interest.If a person had had a complaint about the amount of money actually imposed as a tax, he would challenge the assessed value or the millage, not the assessment ratio. The Court is not persuaded that the provisions of § 5453.602(a) in themselves created a property interest. That section merely provides that a procedural process for assessing the land and by itself does not furnish a protectable property interest. See Lake Michigan Federation of Teachers v. Lake Michigan Community College , 518 F.2d 1091 (6th Cir. 1975), cert. denied , 427 U.S. 904, 96 S. Ct. 3189, 49 L. Ed. 2d 1197 (1976); Suckle v. Madison General Hospital , 499 F.2d 1364 (7th Cir. 1974); See also Pugliese v. Nelson , 617 F.2d 916 (2d Cir. 1980); Cofone v. Manson , 594 F.2d 934 (2d Cir. 1979).
Although the Court is not persuaded by the contention that § 5453.602(a) creates a property interest, it is arguable that the lack of knowledge of the assessment ratio could involve a property interest because the taxpayer might wish to dispute the amount of his taxes if he were aware of the actual assessment ratio. For example, if a taxpayer believed that the assessment ratio were 30%, he might have no quarrel with an assessed value of $10,000. However, if the assessed value were $10,000, but the assessment ratio were in fact 25%, he might take the position that his property has been overvalued and as a result he is paying taxes at too high a rate. The Court has noted above that it is not persuaded that the requirement of proper notice under § 5453.602 must be given along with the other notice requirement in § 5453.701. However, § 5453.602 does require that proper notice of an assessment ratio be given. Thus, the Court's inquiry here is whether the Defendants have complied with § 5453.602.
No Pennsylvania cases that have been called to the Court's attention or that the Court has discovered through its own research discuss the meaning of "proper notice" under 72 P.S. § 5453.602(a). The Plaintiffs appear to argue that such notice must be given in the form of notice required for changes in assessments by § 5453.701. The Court has already rejected this argument. Defendants suggest that compliance with 72 P.S. § 5453.604 satisfies the requirements of § 5453.602(a). Section 5453.604 provides that an assessment roll will be open to public inspection during certain hours. Although this Court has found that the Defendants gave notice by publication of the availability of the assessment roll for inspection, that notice did not indicate that the assessment ratio was also available for inspection. Commissioner Gannon did testify that the minutes containing the assessment ratio were public records. However, Defendants did not prove that notice of that fact was made available. To be sure, an examination of the assessment roll even without an examination of the minutes containing the ratio would have ultimately disclosed the assessment ratio. 72 P.S. § 5453.603 requires that the assessment will contain among other things the value of each parcel or tract of real property. See 72 P.S.§ 5453.603(e). Using the assessed value and the actual value set forth in the assessment roll, the assessment ratio could easily be calculated. Nevertheless, this is not direct notice of the assessment ratio.
Thus, it is the Court's task to determine what is meant by "proper notice" in § 5453.602(a). As noted before, no Pennsylvania cases have construed this phrase under this statute. It is the Court's view that proper notice requires such notice as is reasonably calculated to inform the public of the assessment ratio. See generally Armour Transportation Co. v. Pennsylvania P.U.C., 138 Pa.Super. 243, 250, 251, 10 A.2d 86 (1939). Plaintiff Bonin testified that there were numerous newspaper discussions of the 25% assessment ratio, both before and after the assessment notices were mailed to the public. Commissioner Gannon also testified that the ratio was common knowledge through the media. Although Bonin indicated that there was some uncertainty as to the applicability of the ratio because two different notices of assessment were received, it is clear to the Court that Bonin and the other Plaintiffs received notice of the 25% assessment ratio. The basis for the Court's conclusion is that on August 11, 1978, a suit was filed in the Court of Common Pleas of Bradford County at No. 78-25(e), equity term, 1978, challenging the absence of the 25% assessment ratio in the assessment notices sent to taxpayers.Plaintiffs' brief filed on August 20, 1979 in opposition to the motion to dismiss states in pertinent part that "[realizing] that the notices sent to taxpayers did not fully nor properly notify them of the extent of the increase of their property valuations, the named Plaintiffs filed a second action before the state equity court to enjoin Defendants from taxing the entire class of Bradford County property owners based upon an assessment of which they received no meaningful notice." Brief at page 1. (emphasis supplied). Thus, it is the Court's conclusion that the named Plaintiffs, Frank Bonin, Charles Meador, Linnea Priestner, and Kenneth Buck, had actual notice of the 25% ratio. Although Mrs. Priestner testified that she did not learn of the 25% ratio until the Summer of 1979, the fact that her brief in opposition to the Defendants' motion to dismiss states that she filed suit protesting the 25% ratio belies her statement.
In their brief in opposition to Defendants' motion to dismiss this action because of the Tax Injunction Act, Plaintiffs contend that in Pennsylvania when notice in a particular manner is prescribed by a statute, that method of notice is exclusive. See Elfman, Point Bar, Liquor License Case , 212 Pa.Super. 164, 240 A.2d 395 (1968); Gramley v. City of Williamsport , 66 Pa.D. & C.2d 495 (1974). In Elfman , the liquor code required that an enforcement officer of the Board notify the licensee of the nature and date of an alleged violation within 10 days. Although the licensee was aware of the alleged violation, no notice had been given by an enforcement officer or the Board. As a result, the Court held that the notice given was ineffective. In Gramley , an appeal from a decision of the Board of Health was held to be timely because the alleged violators had not been given notice of the Board's decision as required by statute. In the above-captioned case, the statute only requires that "proper notice" be given. The method of notice is not set forth. It is the Court's view that proper notice is given if the parties are made aware of the assessment ratio by means of a reliable method of communication. The appearance in the newspaper of a number of articles regarding the change of assessment ratio is in the Court's view proper notice. Because the Court of Common Pleas has the power to hear an appeal from the Board regarding any assessment, it appears to the Court that a disagreement with the assessment ratio could also be addressed in such an appeal. "Proper notice" in the Court's view does not require that notice of the manner in which the assessment ratio could be challenged be set forth with the notice of the ratio because Plaintiffs and other taxpayers would have been aware or should have been aware of their right to appeal from their tax assessment. The assessment notices indicated that any person aggrieved by the assessment could appeal to the Board of Assessment Appeals. Thus, the Court concludes that state law provided a plain, speedy and efficient remedy for the deprivation of the property right alleged here. Consequently, the above-captioned case must be dismissed for lack of jurisdiction in this Court.
For the foregoing reasons the Court makes the following
IV. Conclusions of Law.
1. The Defendants have complied with 72 P.S. § 5453.701.
2. The Plaintiffs have a plain, speedy and efficient remedy under state law by which to address the constitutional violations alleged by them.
3. The Court lacks jurisdiction over the above-captioned case.
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