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The County of Carbon, Charles Getz, William Ogurek, Wayne E. v. Panther Valley School District

January 10, 2013

THE COUNTY OF CARBON, CHARLES GETZ, WILLIAM OGUREK, WAYNE E. NOTHSTEIN, IN THEIR CAPACITY OF COMMISSIONERS OF CARBON COUNTY, AND CARBON COUNTY TAX CLAIM BUREAU
v.
PANTHER VALLEY SCHOOL DISTRICT, PANTHER VALLEY SCHOOL BOARD AND ROSEMARY POREMBO APPEAL OF: PORTNOFF LAW ASSOCIATES, LTD. THE COUNTY OF CARBON, AND CHARLES GETZ, WILLIAM J. O'GUREK AND WAYNE E. NOTHSTEIN, IN THEIR CAPACITY AS COMMISSIONERS OF CARBON COUNTY, AND THE CARBON COUNTY TAX CLAIM BUREAU
v.
THE PANTHER VALLEY SCHOOL DISTRICT, AND THE PANTHER VALLEY SCHOOL DISTRICT SCHOOL BOARD, AND ROSEMARY POREMBO, IN HER CAPACITY AS SUPERINTENDENT OF THE PANTHER VALLEY SCHOOL DISTRICT, AND RONALD SLIVKA, ANTHONY PONDISH, ANTHONY DEMARCO, DAVID HILES, THOMAS SHOBER, WILLIAM HUNSICKER, JEFF MARKOVICH, DONALD TRIMMEL, AND R. MICHEY ANGST, IN THEIR CAPACITY AS MEMBERS OF THE PANTHER VALLEY SCHOOL DISTRICT SCHOOL BOARD, APPELLANTS



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: September 10, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge

OPINION

BY JUDGE LEAVITT

The Panther Valley School District and Portnoff Law Associates, Ltd. (Portnoff) (collectively, School District) appeal the writ of peremptory mandamus issued by the Court of Common Pleas of Carbon County (trial court) to the School District.*fn1 The writ of mandamus ordered the School District to relinquish tax returns and data in its possession; to pay the County of Carbon commissions on delinquent real estate taxes collected by the School District through its agent, Portnoff; and to remit all future delinquent tax collections directly to the County's tax claim bureau for distribution to the School District. Appellants challenge the trial court's order on various grounds, including laches, failure to follow the principles governing mandamus and failure to construe, properly, the statutes governing the collection of real estate taxes in the Commonwealth. We affirm in part and reverse in part.

Background

On November 13, 2009, the County filed a complaint in mandamus against the School District seeking to revise the way the School District was collecting delinquent real estate taxes under authority of the act commonly known as the Municipal Claims and Tax Liens Act (Tax Lien Act), Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7505. The mandamus action asserted that when the School District collected delinquent real estate taxes owed to it, it was required (1) to remit the tax collections to the County's tax claim bureau; (2) to file annual returns with the tax claim bureau reporting on the status of real estate taxes paid and outstanding; and (3) to pay a 5% commission to the County on all school taxes collected by the School District. The County asserted that the Real Estate Tax Sale Law (Real Estate Tax Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101--5860.803, imposed these duties upon the School District, which had ignored them beginning in 2000. The County sought, inter alia,$223,000 in past due commissions and an order that the School District remit all taxes it collected to the tax claim bureau for its accounting and distribution to the School District.

One week later, on November 20, 2009, the County filed a motion for peremptory mandamus and requested an evidentiary hearing. Portnoff petitioned to intervene, and it was granted intervention. On May 25, 2011, the trial court conducted an evidentiary hearing.

The following facts were elicited at the hearing: Beginning with tax year 2000, the School District contracted with Portnoff to collect delinquent real estate taxes owed to the School District, using the procedures authorized by the Tax Lien Act. Prior to 2000, delinquent real estate taxes owed to the School District had been collected by the County's tax claim bureau in accordance with the Real Estate Tax Law. In January 2001, the School District notified the County of this change and, further, that it would no longer be filing an annual return with the tax claim bureau or pay it commissions. According to the County's solicitor, the County did not lodge an objection upon receiving this news from the School District.

Several years later, this Court issued a decision relating to a school district's collection of delinquent real estate taxes owed to the district. The decision was Pennsylvania Land Title Association v. East Stroudsburg Area School District, 913 A.2d 961 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 593 Pa. 743, 929 A.2d 1163 (2007). This Court ruled that school districts were required to file annual returns with the county tax claim bureau, even when they did their own tax collecting under authority of the Tax Lien Act.

In 2008, invoking East Stroudsburg, the County demanded the School District to file tax returns and to pay the tax claim bureau commissions on the delinquent taxes collected by the School District from 2000 forward. The School District agreed to file annual returns with the Tax Claim Bureau and to pay commissions for tax year 2007 forward, but it refused to pay commissions for tax years 2000 through 2006. The County then filed this mandamus action.

The trial court ordered the School District and Portnoff to relinquish tax data and records for the tax years 2000 through 2011; to make all delinquent taxes they collect made payable to the tax claim bureau and not to the School District; and to pay the County a 5% commission on all delinquent taxes collected for the tax years 2000 through 2011. The trial court authorized the County tax claim bureau to withhold all past due commissions from current tax collections until the commission debt was paid in full. It also directed the County to file a motion for a bill of costs and a motion for attorney fees.*fn2 An appeal to this Court followed.

The School District raises four issues. First, it asserts that the trial court erred in ordering retroactive commissions for tax years 2000 through 2006 because that order violates the statute of limitations and the doctrine of laches. Further, the order improperly gives East Stroudsburg, a case of first impression, retroactive application. Second, it asserts that the trial court erred in ordering that all delinquent tax payments collected by the School District must be paid to the tax claim bureau for distribution to the School District. Third, it contends that the County did not have a right to peremptory judgment under the time-honored principles relating thereto. Fourth, it contends that the trial court erred in awarding costs and attorney fees to the County.

The School District and Portnoff raised these issues in their statements of matters complained of on appeal filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). However, the trial court's Rule 1925(a) opinion does not address them. It simply opines that East Stroudsburg is controlling, without explaining how that case disposes of the County's claim for retroactive commissions or its demand that all tax payments collected by the School District must be made payable to the tax claim bureau. Notably, the School District does not challenge the trial court's order that it file annual returns with the tax claim bureau and pay the County commissions as of 2007.

Writ of Mandamus

We begin with a review of the principles of mandamus. The common law writ of mandamus lies to compel a public official's performance of a ministerial act or a mandatory duty. Chadwick v. Dauphin County Office of the Coroner, 905 A.2d 600, 603 (Pa. Cmwlth. 2006). Mandamus is a high prerogative writ that is rarely issued and never where the plaintiff seeks to interfere with a public official's exercise of discretion. Id. Rather, mandamus is appropriate to compel a public official to fulfill a mandatory duty that is ministerial in nature. As explained by this Court,

[t]he requirements to sustain an action in mandamus are clear. It is an extraordinary remedy designed to compel public officials to perform a ministerial act or mandatory duty ..

Bradley v. Casey, 547 A.2d 455, 458 (Pa. Cmwlth. 1988).

Peremptory mandamus may be filed at any time "after the filing of a petition for review, if the right of the movant thereto is clear." Mickens-Thomas v. Board of Probation and Parole, 699 A.2d 792, 795 (Pa. Cmwlth. 1997). The grant of peremptory mandamus is rarer than a writ of mandamus that is entered after a trial. Peremptory mandamus "can be entered only in [the] clearest of cases where there is not the slightest doubt as to the absence of an issue of material fact." Stilp v. Hafer, 701 A.2d 1387, 1390 n.6 (Pa. Cmwlth. 1997). It is similar to a preliminary injunction in that it may be entered before an answer is filed and without a hearing, where necessary to protect the public interest. GOODRICH AMRAM 2D, Mandamus, ยง1098:1. It is the moving party that has the burden of proving that no genuine issue of material fact exists and that judgment may be entered ...


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