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In re Appeal of D'Ignazio

March 5, 2010

RE: APPEAL OF SILVIO F. AND ELIZABETH O. D'IGNAZIO FROM THE DECISION OF THE CHESTER COUNTY BOARD OF ASSESSMENT APPEALS DENYING A CLAIM FOR CLASS ACTION AND DETERMINATION THAT THE FILING FEES CHARGED BY THE CHESTER COUNTY BOARD OF ASSESSMENT APPEALS ARE ILLEGAL AND VOID
APPEAL OF: SILVIO F. AND ELIZABETH O. D'IGNAZIO:



The opinion of the court was delivered by: Senior Judge Flaherty

Argued: February 8, 2010

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Silvio F. (now deceased) and Elizabeth O. D'Ignazio (collectively, Appellants) appeal from an order of the Court of Common Pleas of Chester County (trial court) which denied Appellants' amended petition for appeal from the decision of the Chester County Board of Assessment Appeals (Board) which denied class action certification and the refund of filing fees. The trial court also granted the Board's motion to dismiss the amended petition. We affirm.

Appellants are the owners of three commercial properties in West Nottingham Township, Chester County. In March of 2009, the Board notified Appellants that the assessment on the three properties was being increased as a result of interim modification.

Appellants filed an appeal of each of the assessment increases on April 21, 2008 to the Board. Appellants also paid a $50.00 filing fee for each property.*fn1 In each appeal, the Appellants included the following language:

**ILLEGAL SPOT ASSESSMENT

The filing fee is illegal with no statutory basis. It discriminates between residential and commercial property. This is being filed as a class action on behalf of all persons who have paid or will be charged [a] $25.00 or $50.00 filing fee.

The Board denied Appellants interim assessment appeals and denied the claim for class certification. Appellants filed a petition for appeal with the trial court. In the petition, Appellants claimed that the Board did not have the authority to require a filing fee and that such should proceed as a class action. Thereafter, Appellants filed an amended petition for appeal, again claiming that the Board did not have the authority to require a filing fee and that the filing fee of $25.00 for residential property and the $50.00 filing fee for commercial property is disparate and unconditionally discriminates between property types in violation of the uniformity clause of the United States and Pennsylvania constitutions. Appellants also claimed that they have satisfied the requirements for a class action and sought a determination on behalf of those persons similarly charged a filing fee, that such fees collected by the Board be returned.

The trial court determined that Appellants' appeal was not a true tax assessment appeal and dismissed the action. The trial court noted that Appellants cited no authority for their argument that the Board has the authority to adjudicate the validity of filing fees established by the County Commissioners or that such filing fees may be contested before the Board and decided in a class action proceeding. Although the Board can adjudicate assessments, Section 8 of the Act of June 26, 1931, P.L. 1379, as amended, 72 P.S. § 5349(c) does not authorize it to adjudicate the validity of filing fees. The trial court additionally observed that denial of class certification by an assessment appeals board is reviewed under an abuse of discretion standard and the record is silent as to the basis for the Board's decision and thus, the trial court could not state that the Board abused its discretion. Also, class certification is not essential to resolution of Appellants' claim and the Board has jurisdiction to approve or reject a class in an assessment brought before it. In re Mackey, 687 A.2d 1186 (Pa. Cmwlth.), petition for allowance of appeal denied, 548 Pa. 638, 694 A.2d 623 (1997). Moreover, the trial court determined that Appellants have a remedy under Section 2 of the Act of May 21, 1943, P.L. 349, as amended, 72 P.S. § 5566c, for a refund of money, but such may not be pursued as a class action.*fn2 Aronson v. City of Pittsburgh, 510 A.2d 871 (Pa. Cmwlth. 1986). Additionally, the trial court stated that Appellants could arguably pursue a class action under Pennsylvania Rule of Civil Procedure No. 1708 (Pa. R.C.P).*fn3 This appeal followed.*fn4

Initially, we address the issue of whether the trial court erred in determining that Appellants could not bring a class action before the Board on behalf of individuals required to pay a filing fee in order to appeal an annual or interim assessment.

Appellants argue that they can maintain a class action in accordance with 72 P.S. § 5349(c) which provides:

(c) Any person aggrieved by any assessment. may appeal to the ...


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