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WESTINGHOUSE ELECTRIC CORPORATION v. BOARD ASSESSMENT APPEALS DELAWARE COUNTY (02/18/83)

decided: February 18, 1983.

WESTINGHOUSE ELECTRIC CORPORATION, APPELLANT
v.
BOARD OF ASSESSMENT APPEALS OF DELAWARE COUNTY, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Delaware County in case of Westinghouse Electric Corporation v. Board of Assessment Appeals of Delaware County, Nos. 77-61; 77-17319; 79-693, and 80-2370.

COUNSEL

Lloyd R. Persun, with him R. Scott Shearer, Shearer, Mette & Woodside, for appellant.

Thomas L. Kelly, with him Peter J. Nolan, Kelly, Haase & Dunn, for appellee.

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

Author: Doyle

[ 72 Pa. Commw. Page 201]

This is an appeal by Westinghouse Electric Corporation (Westinghouse) from the amended order of the Delaware County Court of Common Pleas, dated June 17, 1981, which granted a Petition to Extend Refund Payments and awarded Westinghouse simple interest on the unpaid balance of its refund at the rate of six percent per annum. For the reasons which follow, we reverse the order of the court of common pleas.

Westinghouse, owner of approximately 434 acres of land in Tinicum Township, Delaware County, challenged the assessed value of this property for the years 1977, 1978, 1979 and 1980. After paying each year's real property tax under protest, Westinghouse appealed to the Delaware County Board of Assessment Appeals (Board) for relief. From an adverse determination by the Board, Westinghouse filed appeals in the court of common pleas. Subsequently, following negotiations among Westinghouse, the Board and the Township of Tinicum, a settlement was reached which was reduced to a stipulation and submitted to the court of common pleas for its approval.*fn1 On June 10, 1980, the court of common pleas entered an order fixing the assessed value of Westinghouse's real property in Tinicum Township for the years 1977, 1978, 1979 and 1980 as provided in the stipulation.*fn2

On July 7, 1980, Interboro School District (Interboro), as intervenor, filed an appeal from the June 10, 1980 order of the court of common pleas with this court. In response, Westinghouse filed a motion to

[ 72 Pa. Commw. Page 202]

    quash. On September 16, 1980, this Court entered an order granting the motion to quash and dismissing Interboro's appeal. Four months later, on January 13, 1981, Interboro filed with the court of common pleas a petition to extend refund payments pursuant to Section 518.1 of The General County Assessment Law (Law).*fn3 On April 23, 1981, following a hearing, the trial court entered its order which established a seven-year refund schedule and awarded Westinghouse interest on the unpaid refund at the rate of six percent per annum computed from December 4, 1980, the date when formal written demand for the refund was made. On May 21, the trial court granted Westinghouse's application for reconsideration of that court's April 23, 1981 order. Following a hearing, the court of common pleas entered an order on June 17, 1981 which reiterated the refund payment schedule and interest award contained in the April 23, 1981 order. On July 15, 1981, Westinghouse filed a timely appeal for each tax year to this court from the trial court's amended order. By order dated August 12, 1981, these appeals have been consolidated.

In this appeal, Westinghouse seeks (1) immediate payment of the refund due from Interboro, (2) an award of interest in excess of a six percent per annum rate, and (3) an award of costs and attorney's fees.

Westinghouse raises four alternative arguments to support its contention that the refund to which it is entitled should be paid immediately. Westinghouse initially argues that Interboro's petition to extend refund payments, and the issues raised therein, are either moot or non-justiciable. In support of this argument, Westinghouse points out that Interboro chose not to participate in the negotiations or to join in the

[ 72 Pa. Commw. Page 203]

    stipulation which resulted in Westinghouse's reduced assessment. Further, Westinghouse contends that the June 10, 1980 order, which gradually reduced the assessments over a four-year period, was designed to lessen the financial impact on Interboro. We find that while the stipulation which phased-in the reduction in the assessment does exhibit compassion toward Interboro's position, it does not address the issue of the extension of refund payments. Thus, the issue is not moot. Similarly, the doctrine of res judicata does not apply. Application of this doctrine requires an identity in the thing sued upon, an identity of the cause of action, and an identity of the quality or capacity of the parties suing or sued. Sharp v. Department of Transportation, Pa. Commonwealth Ct. , 447 A.2d 1057 (1982). "The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appeal and assert their rights." Township of Ohio v. Builders Enterprises, Inc., 2 Pa. Commonwealth Ct. 39, 276 A.2d 556 (1971), aff'd. 446 Pa. 319, 284 A.2d 686 (1971). While Interboro did have the opportunity to appeal and assert its rights in the assessment appeal, the issues raised in Interboro's petition to extend refund payments were not decided in the prior proceeding. The earlier appeal resolved the issue of the proper assessment of Westinghouse's land. Here, however, the separate and distinct issue of Interboro's ability to pay a refund in one year is raised. Since there is no identity of the cause of action, the doctrine of res judicata does not apply. Id.

Westinghouse next argues that Interboro lacks standing to petition to extend refund payments because Interboro failed to intervene and depended instead on the County of Delaware to protect its interest in the assessment appeal. We ...


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