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ALBERT A. SAVKO AND OLGA SAVKO v. BOARD PROPERTY ASSESSMENT (10/16/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 16, 1986.

ALBERT A. SAVKO AND OLGA SAVKO, HIS WIFE, APPELLANTS
v.
BOARD OF PROPERTY ASSESSMENT, APPEALS AND REVIEW OF ALLEGHENY COUNTY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Albert A. Savko and Olga Savko, his wife v. Board of Property Assessment, Appeals and Review of Allegheny County, No. G.D. 83-10533.

COUNSEL

David C. Martin, Jr., for appellants.

John M. Silvestri, for appellee.

Francine T. Boone, for intervenor.

President Judge Crumlish, Jr., Judges Rogers and Colins, sitting as a panel of three. President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Colins. Dissenting Opinion by Judge Rogers.

Author: Colins

[ 109 Pa. Commw. Page 532]

This is the appeal of Albert and Olga Savko (taxpayers) from an order of the Court of Common Pleas of Allegheny County denying the taxpayers' petition to reinstate what taxpayers argue was an appeal to that court from an award of arbitrators in a case involving the assessment of their real estate for local tax purposes.

On January 8, 1982, the Board of Property Assessment, Appeals and Review of Allegheny County (Board) fixed the market value of the taxpayers' property at $160,000.00 and the assessment at $40,000.00 for the year 1982. The taxpayers appealed the 1982 assessment, and on May 26, 1983, the Board reduced the

[ 109 Pa. Commw. Page 533]

    assessment to $36,000.00 for the year 1982. The Board's order also fixed the 1983 assessment at $36,000.00 in response to an appeal of the 1983 assessment filed by the taxpayers on February 17, 1983. The taxpayers appealed the Board's decision to the Common Pleas Court on June 24, 1983. The prothonotary assigned Docket Number G.D. 83-10533 to the appeal.

The appeal was ordered to compulsory arbitration before a panel of arbitrators pursuant to Allegheny Court Rule No. 1301, which relies upon Pa. R.C.P. No. 1301, which generally gives a common pleas court the authority to determine whether there shall be arbitration in its judicial district. Judicial arbitration is governed by Sections 7361-62 of the Judicial Code (Code), 42 Pa. C.S. §§ 7361-62.

The arbitrators' award on October 6, 1983, reduced the market value of the taxpayers' property to $132,000.00.

On November 7, 1983, (legally within the thirty-day statutory appeal period*fn1), the taxpayers filed a pleading in the Allegheny County Court of Common Pleas entitled:

NOTICE OF APPEAL RE: APPEAL REAL ESTATE TAX APPRAISERS

The taxpayer typed the original Docket Number G.D. 83-10533 on the cover sheet. The caption on the first page read:

PETITION FOR APPEAL FROM BOARD OF PROPERTY ASSESSMENT, APPEALS AND REVIEW

[ 109 Pa. Commw. Page 534]

The petition, filed within thirty (30) days of the arbitration award, did not mention the arbitrators' award of October 6, 1983, or that that award was the subject of the appeal. The petition filed was an exact copy of the petition previously filed from the Board's May 26, 1983, decision, even informing a reader that it was an appeal from the Board of Property Assessment, Appeals and Review's Order of May 26, 1983. The prothonotary scratched off the Docket Number G.D. 83-10533 and substituted Docket Number 83-19044, presumably because he thought that it was an appeal from the Board's decision and, as a new case, required a new docket number.

On November 29, 1983, the appeal filed November 7, 1983, was quashed, sua sponte, by the Common Pleas Court because it was filed more than thirty days after the Board's May 26, 1983, decision. The trial court was apparently unaware that what was being timely appealed from was the October 6, 1983, arbitration decision.

The taxpayers filed a Petition to Reinstate their appeal filed November 7, 1983, as an appeal from the arbitrators' award. The petition was denied by the Court of Common Pleas because that court found there had been no appeal from the arbitrators' award to reinstate. The taxpayers' appeal from that order is presently before us.

The taxpayers claim that their appeal should be reinstated and heard by the Common Pleas Court because the appearance of late filing was a result of a misdocketing by the prothonotary. The taxpayers assert that if the docket number had not been changed from Number G.D. 83-10533 to Number G.D. 83-19044, it would have been apparent that their appeal was from the arbitrators' award of October 6, 1983, and not the Board's May 26, 1983, order. The litigants believe that

[ 109 Pa. Commw. Page 535]

    the issue before this Court is whether or not the taxpayers' attempted appeal from an arbitrators' award should be allowed despite the fact that it did not comply with the rules governing appeals from arbitration awards so that it appeared that their appeal was untimely taken from an earlier decision of the Board. However, we need not decide that question because our determination of a jurisdictional issue not raised by the litigants requires that we remand this matter to the Court of Common Pleas of Allegheny County for a ruling on the merits of the taxpayers' substantive case.

Preliminarily, we note that our Court may raise the question of subject matter jurisdiction sua sponte at any time. Witt v. Department of Banking, 493 Pa. 77, 425 A.2d 374 (1981). Since tax appeals are statutory in nature, they cannot be subject to arbitration procedures. Accordingly, the arbitrators were without jurisdiction to resolve this controversy and a remand is necessary so that the case may be properly heard before a judge of the common pleas court.

Section 1 of the Act of May 22, 1933 (Act), P.L. 853, as amended, 72 P.S. § 5020-518.1, governs appeals from the assessment board to the Court of Common Pleas of Allegheny County. This provision provides in part as follows:

Any owner of real estate or taxable property in this Commonwealth, who may feel aggrieved by the last or any future assessment or valuation of his real estate or taxable property, may appeal from the decision of the county commissioners, acting as . . . [or] the Board of Property Assessment, Appeals and Review, in counties of the second class, . . . as the case may be, to the court and, thereupon, the court shall proceed, at the earliest convenient time to be by them appointed, of which notice shall be given to the

[ 109 Pa. Commw. Page 536]

    county commissioners, acting as . . . [or] the Board of Property Assessment, Appeals and Review, in counties of the second class, . . . as the case may be, to hear the said appeal and the proofs in the case and to make such orders and decrees touching the matter complained of as to the judges of said court may seem just and equitable. . . . (Emphasis added.)

We hold that this method of appeal is exclusive. While it is true that Pa. R.C.P. No. 1301 provides that the Rules of Civil Procedure apply to matters submitted to compulsory arbitration pursuant to local rule under Section 7361 of the Code, 42 Pa. C.S. § 7361, and that no section of the Code specifically precludes tax appeals from being submitted to arbitration, it is obvious that Section 1 of the Act, which is more specific, mandates that a judge decide these cases. It has long been the rule that when interpreting the law, the specific must prevail over the general. Section 1933 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1933. Additionally, this Court has ruled that the Rules of Civil Procedure do not specifically govern matters which fall within the common pleas court's statutory appeal jurisdiction. Pennsylvania Liquor Control Board v. Kayden Corp., 95 Pa. Commonwealth Ct. 306, 505 A.2d 393 (1986); Pennsylvania Liquor Control Board Appeal (Dinardi), 84 Pa. Commonwealth Ct. 598, 480 A.2d 338 (1983).

Accordingly, the decision of the Court of Common Pleas of Allegheny County is hereby reversed and the matter is remanded to the Court of Common Pleas of Allegheny County.

Order

And Now, this 16th day of October, 1986, the order of the Court of Common Pleas of Allegheny County, No. G.D. 83-10533, dated December 7, 1983, is hereby reversed,

[ 109 Pa. Commw. Page 537]

    and the matter is remanded to the Court of Common Pleas of Allegheny County for further proceedings consistent with this opinion.

Jurisdiction relinquished.

Disposition

Prior order vacated. Order of lower court dated December 7, 1983 reversed. Case remanded.

Dissenting Opinion by Judge Rogers:

I respectfully dissent. The Board of Property Assessment, Appeals and Review of Allegheny County (board) fixed the market value of the taxpayers' property at $160,000 and the assessment at $40,000. The taxpayers appealed the assessment and on May 26, 1983, the board of this order to the common pleas court, to docket number G.D. 83-10533. The court ordered the appeal to compulsory arbitration pursuant to 42 Pa. C.S. §§ 7361-7362.

The arbitrators' award made October 6, 1983 reduced the market value of the taxpayers' property to $132,000, which would produce an assessment of $33,000. On November 7, 1983, the taxpayers, apparently seeking to appeal the arbitrators' award of October 6, 1983, filed a pleading in the common pleas court entitled:

NOTICE OF APPEAL RE: APPEAL REAL ESTATE TAX APPRAISERS

The taxpayers wrote on the pleading the docket number G.D. 83-10533, the same number as that borne by their earlier court appeal from the board's original assessment. The taxpayers gave this second appeal the caption:

PETITION FOR APPEAL FROM BOARD OF PROPERTY ASSESSMENT, APPEALS AND REVIEW

In the body of the petition there is no mention of the arbitrators' award of October 6, 1983; indeed, the petition is an exact copy of the petition which the taxpayers

[ 109 Pa. Commw. Page 538]

    had filed on their appeal from the board's May 26, 1983 decision, down to informing the reader that it was an appeal from the Board of Property Assessment, Appeals and Review's order of May 26, 1983.

The prothonotary scratched off the docket number G.D. 83-10533 and gave the appeal the new number G.D. 83-19044. The common pleas court quashed the appeal filed November 7, 1983 on the ground that it was filed more than thirty days after the board's May 26, 1983 decision.

The taxpayers contend that their appeal filed November 7, 1983 should be reinstated because its appearance of late filing was the result of misdocketing by the prothonotary; that if the docket number had not been changed, it would have been apparent, despite the petition's exclusive reference to the board's May 26, 1983 order, that the petition was really an appeal from the arbitrator's award of October 6, 1983. I find myself unable to accept this contention.

I would decide that the taxpayers were the authors of their own loss, if any; and that the prothonotary cannot be blamed for taking the taxpayers' petition for what the petitioners described it, an appeal from the board's May 26, 1983 decision.

Pa. R.C.P. No. 1308 governs appeals from arbitrators' awards and provides in pertinent part:

1308(a) An appeal from an award shall be taken by

(1) filing a notice of appeal in the form provided by Rule 1313 with the prothonotary of the court in which the action is pending not later than thirty days after the entry of the award of the docket. . . .

Pa. R.C.P. No. 1313 prescribes the form of notice of the appeal and provides in pertinent part:

[ 109 Pa. Commw. Page 539]

(a) The notice of appeal shall be in substantially the following form:

(Caption)

NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS

TO THE PROTHONOTARY:

Notice is given that appeals from the award of the board of arbitrators entered in this case on .

As is seen, the taxpayers' appeal filed November 7, 1983 flagrantly disregards the rules. It makes no mention that it is an appeal from an arbitrators' award and it is not in the form required by Pa. R.C.P. No. 1313. Surely the prothonotary was given no reason to know that there had been an arbitrators' award and I would not hold that he was bound to search his dockets for that kind of information.

Having in mind that a final decision of a real property assessment appeal for one year is not res judicata of an appeal for a later year, I would affirm the order of the common pleas court.


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