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CONCERNED TAXPAYERS BEAVER COUNTY v. BEAVER COUNTY BOARD ASSESSMENT APPEALS (07/13/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 13, 1983.

CONCERNED TAXPAYERS OF BEAVER COUNTY, APPELLANT
v.
BEAVER COUNTY BOARD OF ASSESSMENT APPEALS, APPELLEE

Appeal from the Order of the Court of Common Pleas of Beaver County in the case of Concerned Taxpayers of Beaver County v. Beaver County Board of Assessment Appeals, No. 2561 of 1981.

COUNSEL

Thomas A. Dittoe, with him D. Patrick Zimmerman, for appellant.

Eugene Morris, County Solicitor, for appellee.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr. and Doyle. Opinion by Judge Doyle.

Author: Doyle

[ 75 Pa. Commw. Page 444]

This is an appeal by the Concerned Taxpayers of Beaver County (Taxpayers) from an order of the Court of Common Pleas of Beaver County which dismissed the Taxpayers' Petition to Set Aside Assessment. We affirm.

The Taxpayers, an unincorporated association, brought this action at Law in December of 1981, to stop implementation of a county-wide reassessment which was to be effective for taxes levied during 1982. The Beaver County Board of Assessment (Board) filed preliminary objections to the action and, at oral argument before the court of common pleas sitting en banc, the Board raised the question of subject matter jurisdiction. The Board urged that the Fourth to Eighth Class County Assessment Law (Act)*fn1 provided an appeal procedure and remedy which the Taxpayers failed to pursue. The court of common pleas ordered the filing of supplemental briefs on the question of jurisdiction and subsequently determined that it lacked jurisdiction in law or in equity to hear the Taxpayers' Petition.*fn2 Appeal to this Court followed.

The Petition of the Taxpayers is essentially a complaint of overassessment which challenges the manner

[ 75 Pa. Commw. Page 445]

    in which the reassessment was undertaken, and avers that it amounts to a violation of equal protection and due process guaranteed by the fourteenth amendment to the United States Constitution.*fn3 No constitutional challenge is made to the validity of the Act or any of the procedures set forth therein. In fact, the petition avers a violation of that Act as well.*fn4

Section 701 of the Act provides, in pertinent part, that "[a]ny person aggrieved by any assessment whether or not the value thereof shall have been changed since the preceding annual assessment . . . may appeal to the board for relief." 72 P.S. § 5453.701(b). Section 704 of the Act, 72 P.S. § 5453.704, provides for

[ 75 Pa. Commw. Page 446]

    appeal of decisions of the Board to the court of common pleas. It is well settled that where the legislature provides a remedy without preserving the parallel right to resort directly to the courts, that remedy is exclusive and must be strictly pursued. Lashe v. Northern York County School District, 52 Pa. Commonwealth Ct. 541, 417 A.2d 260 (1980). The record in this case is clear; the Taxpayers failed to pursue the statutory remedy.

The Taxpayers urge that the considerations giving rise to exception to the requirement that statutory remedies be exhausted, articulated in Borough of Green Tree v. Board of Property Assessments, 459 Pa. 268, 328 A.2d 819 (1974), are applicable here. We disagree. In Green Tree, the Supreme Court reviewed the approach taken in considering exceptions to the exhaustion doctrine and emphasized:

From what has been said, it is clear that we have not dispensed with the requirement that a litigant follow statutorily-prescribed remedies merely because a constitutional question is present in the case.

Id. at 279, 328 A.2d at 824. The test to be applied is whether the statutory remedy is adequate and the constitutional question substantial. Id.*fn5 The Court elaborated:

[ 75 Pa. Commw. Page 447]

Our opinions in the past have generally shown an awareness that the more direct the attack on the statute, the more likely it is that exercise of equitable jurisdiction will not damage the role of the administrative agency charged with enforcement of the act, nor require, for informed adjudication, the factual fabric which might develop at the agency level. . . . The more clearly it appears that the question raised goes directly to the validity of the statute the less need exists for the agency involved to throw light on the issue through exercise of its specialized fact-finding function or application of its administrative expertise.

Id. at 281, 328 A.2d at 825. In the case before us there is no direct constitutional attack on the statute authorizing the reassessment nor on the procedures provided in that statute for the accomplishment of reassessment. What is challenged as constitutionally infirm is the mechanics of the reassessment as it was accomplished in this case, to wit: the alleged use of unskilled and unknowledgable college students to value properties. We believe that, unlike the circumstances warranting exception to the exhaustion doctrine in Green Tree, the instant case presents circumstances where there is clearly a need "for the agency involved to throw light on the issue through exercise of its specialized fact-finding function or application of its

[ 75 Pa. Commw. Page 448]

    administrative expertise." Id.*fn6 Resolution of the constitutional issues here will turn on whether, in fact, the alleged use of college students resulted in inaccurate and unfair reassessments. It is the Board which functions as fact finder and it is the Board which has the expertise in property valuation to determine whether the manner in which the reassessment was undertaken was faulty.

Accordingly, we hold that the court of common pleas correctly dismissed the action for failure to exhaust statutory remedies.

[ 75 Pa. Commw. Page 449]

Order

Now, July 13, 1983, the order of the Court of Common Pleas of Beaver County in the above referenced matter, dated March 24, 1982, is hereby affirmed.

Disposition

Affirmed.


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