645 A.2d 944 | Pa. Commw. Ct. | 1994
West Allegheny School District (District) petitions for review of an order of the Court of Common Pleas of Allegheny County which denied the District’s motion to strike an order of settlement and discontinuance. We affirm.
In 1990, the Board of Property Assessment, Appeals and Review of Allegheny County (Board) increased the tax assessment of property owned by Mosites Park West Associates/Giltspur-Pittsburgh (taxpayers). The taxpayers’ appeal was filed with the Board and was subsequently denied.
Thereafter, the taxpayers filed an appeal
The District, alleging that it was not notified of this final conciliation on January 28, 1993, filed a motion to strike with the trial court to have this final conciliation invalidated.
The trial court denied the District’s motion as it failed to establish that the order of settlement and discontinuance was entered
The District essentially raises two issues on appeal.
The District alleges that the trial court committed error by ruling that notice was indeed served upon the District. We disagree. The taxpayers counter, and argue that the District’s attorney was sent notice of the January 28, 1993 conciliation.
This Court has ruled that under the “mailbox rule,” proof of mailing raises a re-buttable presumption that the item mailed was received. Department of Transportation, Bureau of Driver Licensing v. Grasse, 146 Pa.Commonwealth Ct. 17, 606 A.2d 544 (1991).
The record, in this ease, is devoid of any evidence, other than a denial, that notice was received. As this Court has continually ruled, notice, therefore, has been sent and is presumed to have been received by the District.
The District’s second argument asserts that the trial court’s order of settlement and discontinuance is invalid on its face as all parties in interest were not present; and all parties must assent to the settlement agreement for it to be valid. We disagree.
As an “interested party,”
As previously discussed, the record clearly reveals proof that the District was sent notice. As the District failed to overcome the presumption of notice being sent, their absence at the conciliation of January 28, 1993 is dispositive of its choice to not participate in the outcome of the proceeding.
Accordingly, we affirm the decision of the Court of Common Pleas of Allegheny County.
ORDER
AND NOW, this 12th day of July, 1994, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed.
. The District and Township were sent copies of notice and appeal and notice to defend, but chose not to enter an appearance or file a pleading in response to the appeal.
. A motion to strike a judgment is in the nature of a demurrer directed to defects in the record. Such a motion will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining, the motion to strike must be denied. Edlis v. County of Allegheny, 89 Pa.Commonwealth Ct. 209, 492 A.2d 455 (1985) (citations omitted).
. Our scope of review is limited to determining whether the trial court committed an error of law or an abuse of discretion. Edlis.
. This document is from the Court of Common Pleas of Allegheny County, Board of Viewers, Civil Division, and is signed by John M. Flaherty, Laymaster of the Board of Viewers. On the bottom left-hand corner of the document, it reads, "Notices sent to:” and lists five names including that of David P. Hvizdos, Esq., who is counsel for District.
. Additionally, when notice is mailed to party's last known address and is not returned by the post office, the party is presumed to also have received notice. John Kenneth, Ltd. v. Unemployment Compensation Board of Review, 66 Pa.Commonwealth Ct. 377, 444 A.2d 824 (1982).
. Rule 502 of the Allegheny County Rules identifies an appellant in a real estate tax assessment action as that party who files the appeal, and the appellee as the Board of Property Assessment, Appeals and Review and that all other parties "shall ” be listed as interested parties.