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F & M SCHAEFER BREWING CO. (STROH'S BREWERY CO.) v. BOARD ASSESSMENT APPEALS COUNTY LEHIGH (12/23/85)

decided: December 23, 1985.

F & M SCHAEFER BREWING CO. (STROH'S BREWERY CO.)
v.
BOARD OF ASSESSMENT APPEALS OF THE COUNTY OF LEHIGH, PENNSYLVANIA, AND COUNTY OF LEHIGH. COUNTY OF LEHIGH, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of F & M Schaefer Brewing Company (Stroh's Brewing Co.) v. Board of Assessment, Lehigh County, No. 83-C-3255.

COUNSEL

Lawrence W. Brenner, with him, Jeffrey R. Dimmich, Assistant County Solicitor, for appellant.

Philip J. Giannyario, with him, Calvin O. Trevenen, Garippa & Trevenen, P.A., for appellee.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 93 Pa. Commw. Page 595]

This is an appeal by the County of Lehigh (County) from an order of the Court of Common Pleas of Lehigh County (trial court) which vacated the dismissal by the Board of Assessment Appeals of the County of Lehigh (Board) of the 1984 tax assessment appeal of F & M Schaefer Brewing Company (taxpayer) and ordered the Board to conduct a hearing on taxpayer's appeal. We affirm.

Taxpayer is the record owner of a parcel of real property located in Upper Macungie Township, Lehigh County, Pennsylvania. On August 29, 1983 a Statement of Intention to Appeal taxpayer's 1984 real property assessment was filed with the Board by Robert J. Timbe of the appraisal firm of Du Charme, McMillen & Associates, Inc. At some time subsequent to September 1, 1983 and prior to October 7, 1983, an

[ 93 Pa. Commw. Page 596]

    undated letter, executed by John Dinsmore, taxpayer's Director of Real Property Taxes, and written on the stationery of the Stroh Brewery Company (Stroh) was filed with the Board. The letter stated that the firm of Du Charme, McMillen & Associates, Inc. was authorized to act on behalf of Stroh concerning real estate assessments for 1983 on property owned by Stroh in Upper Macungie Township. On September 28, 1983 an amended Statement of Intention to Appeal taxpayer's 1984 tax assessment, signed by A. J. Tonna, Executive Vice-President of taxpayer, was filed with the Board.

The Board scheduled a hearing on the appeal for October 27, 1983 and taxpayer appeared for the scheduled hearing. Without taking any testimony, the Board ruled that the August 29, 1983 Statement of Intention to Appeal was not filed in conformity with the Board's regulations and that the September 28, 1983 Statement of Intention to Appeal was not filed within the statutorily prescribed time period. The Board, therefore, dismissed the appeal as untimely filed. A written notice of the Board's decision was sent to the taxpayer on October 31, 1983. The written notice included a statement that the Board's decision could be appealed to the trial court within thirty days.

On November 7, 1983, taxpayer filed an action in mandamus with the trial court requesting that the Board's dismissal be vacated and that the Board be ordered to conduct a hearing on taxpayer's appeal. The County intervened. The trial court heard testimony and entered an order granting taxpayer the requested relief.

The County now appeals to this Court asserting two grounds of error: (1) because there is an adequate statutory remedy, mandamus is not the proper procedure to ...


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