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decided: April 18, 1983.


Appeals in cases of Lucille Lalmant Deigendesch and Jean Lalmant Leighton v. County of Bucks, Board of Assessment of the County of Bucks, Township of Upper Southampton and Centennial School District, No. 80-4587-12-1, and in case of In re: Appeal of Feeneys Nursery Inc., from the Order of the Bucks County Board of Assessment Appeals, T.P. 6-18-164 incl. 6-18-160, Assessments 1973 thru 1979, No. 80-3473-09-6.


Martin J. King, Solicitor, for appellant.

John Philip Diefenderfer, with him Robert F. Ruehl, Albert L. Blackman, Jr., Robert C. Steiger and Robert L. White, for appellees, Lucille Lalmant Deigendesch and Jean Lalmant Leighton.

William T. Renz, Power, Bowen & Valimont, for appellee, Feeneys Nursery, Inc.

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

Author: Williams

[ 73 Pa. Commw. Page 489]

These consolidated cases require that this Court examine an act*fn1 permitting counties to covenant with

[ 73 Pa. Commw. Page 490]

    property owners for the preservation of unimproved land to obtain preferential tax assessment treatment (Act). Under the provisions of such a covenant, a land owner agrees, on behalf of "himself and his successors and assigns in right, title and interest"*fn2 to maintain the subject tract as farm, forest, water supply, or open space land, for a specified period of years. In turn, the county agrees to consider the restriction on the use of the land in assessing same. Should the property owner breach the covenant, he is required to pay the tax differential between the full assessed value and the compensatory assessed value from the effective date of the covenant.

Although the cases sub judice share an issue relating to whether the conveyance of a portion of covenanted land out of common ownership constitutes a breach of the Act, procedural and factual differences lead us to discuss the cases individually.

116 C.D. 1982

In 1972, the Claytons covenanted with Bucks County that they would maintain their 76-acre tract as farm land,*fn3 pursuant to the provisions of the Act and the Bucks County Declaration of General Conditions for Covenants. They subsequently sold the property to the appellee herein, Feeneys Nursery, Inc., subject to that covenant. Thereafter, on November 4, 1979, a real estate broker serving as selling agent for Feeneys notified the Bucks County Board of Assessment Appeals (Board) that Feeneys was selling 5.4 acres of the restricted tract, and requested that the property be considered

[ 73 Pa. Commw. Page 491]

    in breach of the Act.*fn4 The Board treated the sale as a breach, and computed the back taxes which would be due as a result thereof.*fn5 The money was escrowed at the November 16, 1979 settlement, and was ultimately paid.

Feeneys took a timely appeal of the determination of breach to the Board, which, after hearing, concluded that its original decision was correct; the sale of a portion of the tract constituted a breach of the covenant and the Act. On appeal, the common pleas court rejected that conclusion. It examined both the Act and the county Declaration of Conditions, and determined that neither enactment so limited the free exercise of the rights of ownership, as to forbid the property owner to either subdivide or sell the tract as a unit.

The Board appealed that decision to this Court, asking (1) whether the sale of 5.4 acres out of common ownership constitutes a breach of the Act, and (2) whether the notification to the Board of the impending sale by the real estate agent bound the landowner. Because we opine that the common pleas court properly interpreted the Act in asserting that the sale, without more, did not result in a breach of the Act and covenant, we need not address the second question raised.

Under Section 6 of the Act, 16 P.S. § 11946, a breach occurs:

If the land owner, his successors or assigns, while the covenant is in effect, alters the use of the land to any use other than that designated in the covenant. . . .

[ 73 Pa. Commw. Page 492]

This section provides the only discussion of breach in the Act, and clearly limits that event to an alteration of use, even while contemplating the possibility that the successors or assigns of the land owner might effectuate that breach. As the common pleas court correctly stated:*fn6

It is clear under the Act that a change in ownership of the entire tract, to heirs, assigns, successors, etc., will not breach the covenant. Further, all such new owners would be bound by the covenant and have all the rights, privileges, duties and liabilities of the original owner. We believe that a change of ownership by conveying a portion of a tract should follow the same reasoning. The new owners will have the same responsibilities and duties as the original owner, i.e., they must maintain the land in the use for which it was covenanted. Any change in use whether it be on half an acre or 20 acres would breach the covenant for the entire tract and cause the recomputation of taxes on the entire tract. Of course, the original owner who sells a portion of his covenanted land runs the risk that his purchaser may violate the Act 515 agreement and thus invoke the roll-back tax penalty on the original owner's entire retained land, even possibly long after the transfer.

This analysis, resulting in a determination that a change in ownership of all or part of the covenanted tract does not constitute a breach, is not inconsistent with our statement in Appeal of Pfirrmann, 63 Pa. Commonwealth Ct. 407, 410, 437 A.2d 1336, 1338 (1981), that

     the statutory definitions of "farm land" and "open space land" were intended to describe

[ 73 Pa. Commw. Page 493]

    the kind of property which is initially eligible to be placed in the program. (Emphasis added.)

The property in question was initially eligible to be placed in the program because at that time it was in common ownership. Absent a change of use from that covenanted for, it remains eligible for the assessment treatment permitted by the Act.

1136 C.D. 1981

In August, 1972, Eugene Lalmant covenanted with Bucks County to maintain his 23.492-acre tract as farm land. He died in 1975, and the property passed into his wife's possession. When she, in turn, died in 1976, she left a will devising the land to her two daughters. In settlement of the estate, the sisters executed two deeds, the first of which conveyed approximately 4 1/2 acres and the farmhouse to one; the second conveyed the remainder of the tract to both as tenants-in-common. By letter of September 19, 1979, the Office Supervisor for the Board notified the executrix that the property transfer breached the covenant, and that "[a]ny person aggrieved by this decision may appeal to the Board within 30 days." No appeal was filed. On April 25, 1980, the sisters filed a declaratory judgment action in the common pleas court, seeking a declaration that the roll-back of the taxes and concomitant determination of breach were improper. The Board filed preliminary objections asserting that jurisdiction over the matter is vested solely in it, that this was a collateral attack on a matter which should have been appealed, and therefore declaratory judgment was an inappropriate avenue of relief.

The common pleas court dismissed the objections, reversed the Board on the merits in a Decree Nisi, and subsequently entered that decision as a final order. On appeal to this Court the Board raises the same questions it presented in preliminary objections below,

[ 73 Pa. Commw. Page 494]

    as well as that, preserved below, of whether the conveyance of land out of common ownership breached the Act and the covenant. That issue was resolved, supra, and will not be further addressed.

We turn to the question of whether the common pleas court erred in determining that a declaratory judgment action is an available legal remedy under the circumstances. The Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541, makes clear that such suits are "additional and cumulative to all other available remedies"*fn7 except those enumerated in 42 Pa. C.S. § 7541(c), two of which are pertinent to this matter:

(2) Proceeding within the exclusive jurisdiction of a tribunal other than a court.

(3) Proceeding involving an appeal from an order of a tribunal.

[ 73 Pa. Commw. Page 495]

Since our review of the law establishes that the Board is a tribunal,*fn8 Cf. Iannarone v. Township of Springbrook, 65 Pa. Commonwealth Ct. 42, 441 A.2d 810 (1982), and this Court has previously described the statutory remedy*fn9 available for assessment appeals*fn10 as "mandatory and exclusive," Appeal of Cedarbrook Page 495} Realty, Inc., 39 Pa. Commonwealth Ct. 150, 395 A.2d 613 (1978), we are constrained to hold that this declaratory judgment action is precluded by subsection (2) above-quoted. We therefore conclude that the common pleas court erred when it determined that it had jurisdiction to entertain such a suit.

Order in 1136 C.D. 1981

And Now, this 18th day of April, 1983, the order of the Court of Common Pleas of Bucks County dated April 30, 1981, docketed at No. 80-4587-12-1, is hereby reversed and vacated for lack of jurisdiction.

Order in 116 C.D. 1982

And Now, this 18th day of April, 1983, the order of the Court of Common Pleas of Bucks County dated December 23, 1981, docketed at No. 80-3473-09-6 is hereby affirmed.


Order in 1136 C.D. 1981 reversed and vacated. Order in 116 C.D. 1982 affirmed.

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