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REVENUE APPEALS BOARD v. RICHARD C. FUISZ (09/07/89)

decided: September 7, 1989.

REVENUE APPEALS BOARD, NORTHAMPTON COUNTY AND COUNTY OF NORTHAMPTON, APPELLANTS,
v.
RICHARD C. FUISZ, APPELLEE



Appeal from Common Pleas Court, Northampton County, Honorable Robert A. Freedberg, Judge.

COUNSEL

Edward L. Redding, Assistant County Solicitor, Bethlehem, for appellants.

Leonard M. Cohen, Hellertown, for appellee.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Colins

[ 128 Pa. Commw. Page 465]

The Northampton County Revenue Appeals Board (Board) and the County of Northampton (County) (collectively referred to as appellants) appeal an order of the Court of Common Pleas of Northampton County, dated October 4, 1988, which granted the appeal of Richard C. Fuisz (appellee), reinstated a covenant entered into between appellee, his brother, Robert E. Fuisz (Robert) and the County, and struck the revised assessment and rollback taxes imposed.

On November 26, 1975, appellee and Robert covenanted with the County pursuant to the Act of January 13, 1966, P.L. (1965) 1292, as amended, 16 P.S. §§ 11941-11947 (commonly referred to as Act 515)*fn1 to preserve 57.37 acres of land they held as joint tenants as open space land in exchange for a real property tax assessment which would reflect the fair market value of the land as restricted by the covenant. On May 21, 1987, Robert conveyed to appellee his one-half interest in 3.75 acres of the covenanted land. The County notified the Fuiszes on June 15, 1987, that this conveyance constituted a breach of the covenant they had entered into in 1975 and that they would now be subject to a revised assessment and rollback taxes.*fn2 They were subsequently billed by the County Tax Claim Bureau for the additional taxes due in the amount of $6,757.67. Appellee petitioned for review of the revised assessment, which was

[ 128 Pa. Commw. Page 466]

    denied by the Board. He then appealed to the trial court which found in his favor, reinstating the covenant, and ordering the revised assessment and rollback taxes stricken. Hence, the Board and County appeal to this Court.

The central issue presented for our review is whether the conveyance of a portion of Act 515 covenanted land from both joint owners to one owner individually, both parties to the covenant, constitutes a breach of the covenant.

Section 1(4) of Act 515, 16 P.S. § 11941(4), requires that land covenanted as open space land be (1) in common ownership, and (2) consist of at least 10 acres in area. The central issue focuses on the first of the two requirements; i.e., whether the conveyance by Robert to appellee effectively terminated the "common ownership," as required by Act 515.

Appellants focus on paragraph 5 of the covenant the Fuiszes executed on November 26, 1975 which states:

5. BREACH OF COVENANT BY LANDOWNER. Section 6 of Act 515, aforesaid, as now effective or as hereafter amended and effective, shall govern a breach of covenant by the Owner(s), their successors and assigns. It is understood and agreed particularly, without intending to limit the definition of a breach of covenant hereunder, that a conveyance of a portion of the parcel of land, which is the subject of covenant hereunder, shall, in itself, constitute a breach of covenant unless the successor entitled to the portion will enter upon a further ...


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