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BOROUGH WEST HOMESTEAD v. MESTA MACHINE COMPANY ET AL. (09/08/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 8, 1982.

BOROUGH OF WEST HOMESTEAD, PETITIONER
v.
MESTA MACHINE COMPANY ET AL., RESPONDENTS. BOROUGH OF WEST HOMESTEAD, APPELLANT V. MESTA MACHINE COMPANY ET AL., APPELLEES

Appeals from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of Mesta Machine Company from Assessment of Property in the Borough of West Homestead, County of Allegheny, by the Board of Property Assessment, Appeals and Review, No. GD 81-10468.

COUNSEL

John J. Klein, for appellant.

Anthony J. Basinski, with him Donald C. Fetzko, Richard T. Wentley, and E. W. Seifert, Reed, Smith, Shaw & McClay, for appellee.

President Judge Crumlish and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 68 Pa. Commw. Page 596]

Appellant asks this Court to resolve whether or not an appeal from a final assessment under the Act regulating Assessments in Counties of the Second Class*fn1 is governed by the provisions of that Act, or by the conflicting provisions of the Judicial Code.*fn2 We hold that the Judicial Code controls.

[ 68 Pa. Commw. Page 597]

The Board of Property Assessment, Appeals and Review of Allegheny County notified Mesta Machine Company (Mesta) of its determination concerning the final assessments on certain of Mesta's real estate holdings by decision dated February 27, 1981. Mesta did not file its appeal until April 24, approximately fifty-six days later. The Borough of West Homestead intervened, and filed a motion to quash the appeal, asserting that the thirty day appeal period set forth in Section 5571(b) of the Judicial Code, 42 Pa. C.S. § 5571(b),*fn3 had run on March 29. The common pleas court rejected that argument, because 72 P.S. § 5452.12*fn4 was not specifically repealed by the Judiciary Act Repealer Act (JARA),*fn5 and therefore Mesta had sixty days within which to file its appeal.

Our discussion of the interplay between the First Class Township Code and the Judicial Code, relating to appeal periods, governs this case. See Crown v. Ross Township, 68 Pa. Commonwealth Ct. 588, 449 A.2d 878 (1982) wherein we held, quoting Section 2(g) of JARA, 42 Pa. C.S. § 20002(g), that "all . . . acts and

[ 68 Pa. Commw. Page 598]

    parts of acts are hereby repealed insofar as they are in any manner inconsistent with" the Judicial Code. Cf. Appeal of Chartiers Valley School District, 68 Pa. Commonwealth Ct. 592, 450 A.2d 230 (1982).

Mesta argues that even if we find that the Judicial Code governs all appeals from orders, the assessment levied by the Board is not an "order" as contemplated by 42 Pa. C.S. § 5571(b), and it attempts to distinguish between the issuance of an "order" and the "assessment" of property. We find no basis for such a distinction. The action taken by the Board in assessing property is a "determination" as defined in 42 Pa. C.S. § 102:

Action or inaction by a government unit which action or inaction is subject to judicial review by a court under section 9 of Article V of the Constitution of Pennsylvania or otherwise. The term includes an order entered by a government unit.

From that determination, the aggrieved party files an "appeal," a

     petition or other application to a court for review of subordinate governmental determinations.

42 Pa. C.S. § 102. In holding that the appeal in this instance should have been filed within thirty days of the entry of the assessment decision, we hereby reverse the order of the common pleas court.

Order

And Now, this 8th day of September, 1982, the Order of the Court of Common Pleas of Allegheny County, dated November 6, 1981, is hereby reversed, and the Motion to Quash Appeal filed by Intervenor Borough of West Homestead is granted.

Disposition

Reversed. Motion to quash granted.


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