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ALBERT A. SAVKO AND OLGA SAVKO v. BOARD PROPERTY ASSESSMENT (09/24/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 24, 1987.

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., Esq. Arthur J. Murphy, Jr., Esq., SOLICITOR FOREST HILLS, Thomas Rutter, Esq. SOLICITOR, WOODLAND HILLS SCHOOL DISTRICT, James J. McLean, Esq.; for APPELLANT.

James J. Dodaro, Esq., John Silvestri, Esq., Handsel B. Minyard, Esq., Carl Oxhoom, III, Esq., Francine T. Boone, Esq.; for APPELLEE.

Opinion by President Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge Colins. Judge MacPhail and Judge Doyle join.

Author: Crumlish

[ 109 Pa. Commw. Page 540]

On March 5, 1987, we entered an Order*fn1 granting reargument of our October 16, 1986 Opinion and Order in this matter. Savko v. Board of Property Assessment, 109 Pa. Commonwealth Ct. 531, 516 A.2d 107 (1986). In Savko, we held that the Allegheny County Common Pleas Court lacked jurisdiction to direct statutory tax assessment appeals to arbitration because Section 518.1

[ 109 Pa. Commw. Page 541]

    of the General County Assessment Law*fn2 requires that such appeals be exclusively heard de novo before a common pleas court. After reconsideration of that conclusion, we vacate our decision.

Sections 7361 and 7362 of the Judicial Code govern arbitration of civil matters before the courts of this Commonwealth, 42 Pa. C.S. §§ 7361, 7362. Courts are permitted by Section 7361(a) to promulgate general rules or rules of court*fn3 to require compulsory arbitration of certain matters. Limitations to this authority are found in Section 7361(b). Our Supreme Court, through Pa. R.C.P. Nos. 1301-1313, established rules regulating compulsory arbitration matters.

Pursuant to these constraints, Allegheny County Common Pleas Court on May 15, 1981, promulgated Local Rule 1301, which for our purposes states:

*(1) The following civil actions, proceedings and appeals or issues therein where the demand is for $10,000.00 or less (exclusive of interest and costs) shall first be submitted to and heard by a board of three members of the bar of the court:

(e) Matters transferred to compulsory arbitration by the court even though the original demand may have exceeded $10,000.00 (exclusive of interest and costs).

*(2) Actions, proceedings appeals or matters other than those set forth in *1 shall not be submitted to, transferred by a court to, heard by or determined by a Board of Arbitrators appointed under 42 Pa. C.S. § 7361.

[ 109 Pa. Commw. Page 542]

In furtherance of subsection (e) above, Allegheny County Common Pleas Court amended Local Rule 502, governing appeals from real estate tax assessments, to read:*fn4

In all appeals from decisions of Board of Property Assessment, Appeals and Review, the following requirements will apply:

(e) Arbitration Jurisdiction: Appeals involving decisions of the Board of Property Assessment, Appeals and Review wherein the assessed value of the property was determined to be one hundred thousand ($100,000) dollars or less will be submitted to arbitration. The Prothonotary (Arbitration Section) will schedule tax appeal hearings for cases filed in Arbitration on only one day of each week.

(Emphasis added.) This subsection was effective on December 8, 1984.

[ 109 Pa. Commw. Page 543]

We now hold that Local Rules 1301 and 502 validly require tax assessment appeals emanating from the Board of Property Assessment, Appeals and Review of Allegheny County (Board) to be subject to compulsory arbitration, prior to de novo review before the common pleas court.

Although Section 518.1 of the General County Assessment Law does require review of tax assessment appeals to be conducted de novo before a common pleas court, the initial direction of appeals to a board of arbitration under common pleas court supervision does not conflict with this express requirement.

We reach this conclusion by reviewing the language of our Supreme Court in the Smith Case, 381 Pa. 223, 112 A.2d 625 (1955). In that case, the critical need for preliminary, alternative dispute resolutions is recognized. More importantly, the constitutionality of arbitration proceedings being mandatorily required prior to de novo common pleas court review was upheld.

In light of this pronouncement, we construe Section 518.1 of the Assessment Law, together with Sections 7361 and 7362 of the Judicial Code and Pa. R.C.P. 1301 and Local Rules 1301 and 502, as authorizing the present practice of the Allegheny County Common Pleas Court to initially assign tax assessment appeals to arbitration.

Turning to the matter before us, however, we are troubled in that Local Rule 502 did not expressly dictate arbitration when the Savkos' tax assessment appeal was filed in the common pleas court on June 24, 1983.

Appellee Board states in its brief on reargument that prior to the 1984 amendment there existed "local procedures equivalent to rules which had been established by the trial court for the referral of tax appeals

[ 109 Pa. Commw. Page 544]

    to compulsory arbitration."*fn5 It also argues that taxpayers Savkos tacitly "consented" to the transfer to arbitration.

The enabling provisions found in the Judicial Code require that rules directing matters to arbitration be promulgated.*fn6 The absence of such a rule at the time Savkos' appeal was filed makes that past assignment by the common pleas court ineffective.*fn7 Hence, since the appeal as docketed originally at No. G.D. 83-10533 was timely and proper, we reverse the common pleas court order dated December 7, 1983, denying the Savkos' petition to reinstate their tax assessment appeal. The common pleas court is directed to proceed with a de novo review of the Savkos' appeal from the Board.

This Court does stress, however, that tax assessment appeals assigned to arbitration after the effective date of Rule 502 (December 8, 1984) are valid.

Order

Upon consideration of appellee's application for reargument, it is ordered that said application is granted. This Court's Order of October 16, 1986, is vacated. The order of the Allegheny County Common Pleas Court, entered at docket no. G.D. 83-10533, dated December 7, 1983, is reversed. This case is remanded to the common pleas court for further proceedings consistent with this Opinion.

Jurisdiction relinquished.

[ 109 Pa. Commw. Page 545]

Concurring and Dissenting Opinion by Judge Colins:

While I concur with the result reached by the majority, I must disagree with the rationale used by my learned colleagues. My dissent is based upon the reasons outlined in the former majority opinion of this Court. Savko v. Board of Property Assessment, Appeals and Review of Allegheny County, 109 Pa. Commonwealth Ct. 531, 516 A.2d 107 (1986) (Savko I).

I agree with the majority that the efficient administration of justice may be better served by allowing matters such as this to proceed to arbitration. However, as stated in Savko I, the legislature explicitly mandated that these matters be heard by a judge of the common pleas court. See Section 1 of the Act of May 22, 1933, P.L. 853, as amended, 72 P.S. § 5020-518.1.


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