*1 inmate, should not be allowed to appeal as to our court.
Accordingly, unlike the majority,
would rule that original this court has
jurisdiction over equity portion complaint
Miles’ and pendant
over the damages portion. KOWENHOVEN,
Thomas & Katherine DeWitt,
Robert & Michelle and Daniel Holtgraver, Appellants
& Carol
The COUNTY OF ALLEGHENY and
the Board of Assessment of
Allegheny County. Pennsylvania.
Commonwealth Court of
Argued Feb. April
Decided Silvestri, Pittsburgh, appel-
John M. lants. Storch, Pittsburgh,
Isobel for appellees. COLINS, Judge, BEFORE: President McGINLEY, PELLEGRINI, Judge, FRIEDMAN, COHN, Judge, Judge, SIMPSON, LEAVITT, Judge, Judge, and Judge. *2 of Rule complaint, their Section 5 Board Judge BY President
OPINION that, a of COLINS. when IV indicates regarding a disagree Board members Kowenhoven, and Katherine Thomas recommendation, full the hearing officer’s DeWitt, Robert and Michele and Daniel Board must review the evidence submitted Holtgraver (Taxpayers) appeal and Carol sub- hearing, any post-hearing at the and an order the Court Common Pleas missions, namely of fact proposed findings Allegheny County prelimi- that sustained requested by the and law conclusions nary objections County filed the by examiner, ac- hearing apply and should Allegheny and Board of As- reaching cepted methodology1 valuation Alleghe- sessment and Review of refer to a Board Taxpayers decision. (Board), ny resulting in the dis- to The relating appeal procedures. memo by Taxpayers’ missal the trial court of added) in memo, complaint. quoted (emphasis Taxpayers’ class action com- injunctive part: plaint sought declaratory complaint, pertinent states relief, asserting County’s assess- recommendation, making Hear- When practices improperly permitted, ment ing are Officers and Case Reviewers in fact encouraged, property assessment permitted accept evi- to or discount hearing officers and the Board to consider presented hearing dence at a based on evidence obtained outside of the record judgment, professional their valuation officers, developed hearing before knowledge of the area verifica- and/or thereby Taxpayers’ violated Data tion of market [data] [Sabre rights. complaint sought The also dam- Analysis]. ages attorney’s under fees U.S.C. Hearing Officers and Case Reviewers § 1983. are not or reappraise property objections preliminary The filed Board Hear- post-hearing submit evidence. A including adequate the claim statu- ing Reviewer has Officer Case who tory remedy exists. The trial court dis- personal knowledge area or missed complaint, agreeing with the comparables more suitable sales Board’s contention as to a reme- hearing introduced at a those dy. here contend the trial supply this information in concluding court erred that an Board’s consideration. statutory remedy exists. of that memo The terms indicate Repeated pertinent here are Taxpayers’ officer, rendering hearing recommen- factual averments. 207 of Chapter Section dation, than evi- may consider more Allegheny County 7 of the Administrative validly hearing. at a The dence admitted Code, relating powers, pro- to the Board’s suggests that the paragraph quoted second authority vides the Board with the to en- hearing officers submit- approves Board gage hearing appoint officers or Board understanding or ting personal own hearings members conduct assess- concerning area values for beliefs ment officer must rendering final to consider in fact, Board provide report, including findings case, Taxpayers contend recommendation, decision. of law and a conclusions their due practice violates to the full Board. Section 207.07 E. As because, fair when Paragraph hearing, 7 of cess to a noted industry appraisal methodology recognized assessment and Specifically, such must be IV, nationally organizations." Rule Section Board with standards "consistent evidence not face, offered on the record is con- ing statute on its here are Board, sidered precluded are essentially challenging the from exercising rights that are afford- statute assessment of their ed a due hearing, perti- most property. pertinent note that the We sec- *3 nently, right the to cross-examine wit- Code, tions of quoted the Administrative nesses, or opportunity the to be heard. In above, suggest nowhere that either hear- cases, their individual Taxpayers point to ing Board, or officers the in reviewing a record, indications in the such post-it as recommendation, may officer’s notes, support their contention that consider evidence from outside the record. the Board considered such evidence in ren- However, above, quoted as also the Board dering its decisions. memo just suggestion, by makes allowing hearing and case officers review-
Taxpayers rely upon the United States ers to supply regarding information com- Supreme Court decision v. Village Ward parable sales an area to Board mem- Monroeville, 409 U.S. 93 S.Ct. bers, when “personal knowledge have L.Ed.2d 267 for the proposition of an compara- or area more suitable sales process due is required every level bles to those hearing.” introduced at a judicial proceedings, quasi-judicial even The memo suggests also that officers proceedings such as those before the reject admitted upon evidence based case, Board. In that Ward was convicted personal knowledge. Although pro- such a by Mayor the Village the of Monroeville cess appears fly to in the face of procedur- of two traffic offenses and fined. Ward notions, al due require which system, asserted that the which allowed an parties opportunity be afforded an to con- executive mayor official —the sit as —to them, front the against witnesses must we judge in the proceedings, violated his agree that, with the trial court unlike process rights. due The Supreme Court Ward, the Taxpayers make here agreed, rejected argu- Monroeville’s implementation interpretation ment, right the to de novo to a by the Board of powers under the trial court any corrected par- unfairness a Administrative Code. ty experienced by allowing convictions an interested executive to conduct a hear- The trial recognizing while the ing at the judicial first level of proceed- right to seek equitable party relief when a ings. The Court stated challenges constitutionality the of assess- “procedural
This
safeguard” does not ment legislation,
Pennsylva-
noted that the
guarantee a fair
mayor’s
the
nia Supreme Court
has limited that
court;
nothing
there is
to suggest that
to situations
party
where a
raises a sub-
the incentive to convict would be dimin-
stantial
question
constitutional
and there is
ished
possibility
of reversal on no statutory remedy
or the
rem-
Nor,
appeal.
event,
in any
may the
edy
inadequate.
Borough Green Tree
State’s
procedure
trial court
be deemed
Assessment,
v. Board
constitutionally acceptable simply be-
Allegheny County,
Review
cause the
eventually
State
(1974).
offers a de- 268,
The trial Cmwlth.2001), court here concluded un- this Court looked to the Ward, like where complainant chal- Supreme Borough Court’s decision in lenged constitutionality Tree, underly- of the rejected Green an attempt by challenge at issue was so relief constitutional taxpayers obtain partic- of judicial they argued that the assessment authori- direct that benefit far de- ty’s ipation outweighed via use of different assessment methods inconvenience, lay, involved Equal expense violated the Protection Clause as uniformity well of the Com- with individual Id. clause monwealth’s constitution. recognize Supreme Although we Tree,
In Borough Supreme Borough Court in Green Tree did not analyzed existing question of thoroughly Court law consider the statuto- question ry remedy can when the regarding of when lies ever be challenges party’s constitutional- violates address issue *4 ity taxing adjudicator, cess in of a scheme. The Court there to a neutral Ward, only agree Taxpayers that a do concluded lies when we not with their that challenge supports argument constitutional is raised there Ward statutory no remedy statutory remedy is or the is the is inade- present the inadequate. quate. The Court included fol- While that decision does stand for lowing quotation Excavating from the that due dictates proposition Bliss 446, 451, neutral, County, impartial adju- Co. v. Luzerne Pa. that a a party 418 have (1965): 532, instance, 211 statutory challenge A.2d “The in the the 535 dicator first procedure only need if clearly challenge not be followed it is in that case a the was to to inadequate resolving plain- the task of the situation. In this statute created objections case, tiffs’ pursuit taxing or its will cause not created a the statute has irreparable system them harm.” Taxpayers’ that violates Ward, rights. cess the statute Unlike Court, in considering whether a up adjudi- system not set a where the does statutory remedy is looked the to in catory officer or Board has an interest administering role of the agency, rec- appeal. the outcome of an assessment ognized agencies that such generally do hearing There is no claim here that the not function to determine the constitution- or the Board are interested in a officers ality statutes. primary Their function is Rather, particular the Board’s outcome. expertise to in reviewing use conflicts implementation taxing may the statute involving particular subject matter system in have resulted a that enables over expertise, which have such to evidence outside the Board consider which, in the case of assessment authori- record. is, stated, generally familiarity ties with novo, to property appeal methods determine value. In an de will im- They presumed opportunity challenge any not to to exper- are have have an They may necessary tise consider a evidence. properly to stat- considered evidentiary Supreme mat- improper ute constitutional. assert that reasoned, memo are not approved Court “the more at- ters the Board’s direct the statute, it or the consti- likely permitted tack a the more is that under statute In such trial court will will not tution. exercise Viewers, appoint Allegheny a damage the role of the administrative Board A503(h), which Rule of will agency charged County with enforcement of the Court act, adjudication, reject improperly be con- require, required for informed nor only evidence and base a decision might develop the factual fabric which sidered 281, upon properly 459 evidence offered agency level.” Pa. 328 had an hearing officer which A.2d at The Court concluded that the 176 Commission, 582, addition- 515
opportunity
challenge,
or such
Oklahoma Tax
U.S.
may
2351,
(1995),
al
presented.
evidence
be then
509
115 S.Ct.
132 L.Ed.2d
Ward,
had
Unlike the driver
who
no
previous
a
of our
undermined
decision
Su
present
im-
opportunity to
his case to an
preme
County
Court
v.
Murtagh
partial adjudicator, the
hearing
Berks,
officer
50,
(1993),
535 Pa.
A.2d 179
634
necessarily partial
this case is not
to one
denied,
1397,
cert.
U.S.
S.Ct.
party, or an advocate for the Board.
128 L.Ed.2d
wherein the Court
Rather,
injected
memo simply
Board’s
bring
held that
were entitled to
an improper
element into the
county’s
tax
a constitutional
adjudication. Because
Ward involved
§
under
system
without first ex
that on
placed
scheme
its face
their administrative remedies.
hausting
judicial
person
capacity,
non-neutral
Berks,
Murtagh
an error considering of law evi ORDER Taxpayers dence. have an opportunity NOW, day April AND this 13th in request discovery a a proceeding before of the the order Court of Common Pleas of Viewers, by filing Board of with petition County Allegheny is affirmed. the real tax If the judge. estate judge taxpay against taxpayer, rules FRIEDMAN, J., part, in concurs may er that decision as an on raise error part, opinion. dissents and files appeal. Accordingly, we conclude adequate statutory have an Concurring Dissenting OPINION remedy regarding to address their claims BY Judge FRIEDMAN. appeal process. Board’s assessment agree I the Court of Common Pleas court) (trial County properly also the trial of Allegheny assert that
court claim rejecting erred in the claims the section filed dismissed However, Kowenhoven, § raise under 42 U.S.C. Thomas Katherine Rob- agree we and Daniel with the court’s conclusions ert and Michelle DeWitt & Holtgraver regard (together, Taxpayers) with to this claim. As the court Carol noted, County Allegheny has recognized against this Court and the Supreme United States Court’s decision Board of Assessment (Board). Council, of Allegheny National Truck Inc. v. and Review Private perfect “full, legal remedy cannot However, trial court disagree afford relief, extends “equity complete” Taxpayers’ dismissed properly jus- an in the jurisdiction have grounds claims furtherance to determine order tice.” remedy. adequate legal proper action lawsuit Taxpayers filed class or existing legal the face of seeking declaratory and against the Board legal if the must determine remedy, we injunctive Taxpayers alleged relief. is ade- plaintiff available to the Taxpayers’ the Board violated Where, instance, complete. quate and by considering non-record evidence rights a multi- remedy would result in legal deciding their tax assessment and, duplicative lawsuits plicity of Tax- hearing presiding officers over The contrast, action in would provided the Board with payers’ appeals resolution, this Court tidy global vide a pursuant to a the non-record evidence remedy to be inade- legal has found 9, 2002. The April Board memo dated quate. hearing that a officer “who memo stated plain- personal knowledge has of an area more involves three named This case Kowenhovens, to those intro- comparables sales tiffs: the DeWitts suitable this infor- would have hearing supply Holtgravers. duced at a plaintiffs appeals mation for the Board’s consideration.” file each of these three (R.R. 7a.) Initially, Taxpayers’ appeals, the trial court. de novo with notes to three Boards of post-it appoint officers attached trial court would Viewers, making appeals, pur- recom- of the reports assessment one for each A503(h) Allegheny to the Board on non- of the mendations based suant to Rule *6 (Rules). record Rules Under Rule evidence. Court would over- A503(j), the Boards Viewers Taxpayers’ eq- The trial court dismissed for the three process the conciliation see claims, uity concluding had conciliation,if Boards During appeals. viz., adequate legal remedy, appeal that the inter- were to decide Viewers de novo from the Board’s decision to the by justice not be served ests of would court, including appointment trial Boards of Viewers holding hearings, Board of Viewers. It is true that appeals be recommend would litigant will not lie where the Rule non-jury list. placed however, remedy; adequate legal has an were A503(j)(4). If the Boards Viewers cannot conclude that have an in these to make such a recommendation adequate legal remedy this case. of the due three cases because Multiple Duplicative I. Lawsuits issue, compelled would be the trial court multiple duplicative address Pentlong Corporation Capi- In v. GLS tal, Inc., 43-44, 1240, 820 A.2d pro- were to If the Boards of Viewers added) (citations (2003) (emphasis 1245-46 A503(Z), Rule hearings under ceed with omitted), supreme court stated: our duplicative pro- would be additional there begin circumstances, hearings All would legal ceedings.
In
most
the “rec-
presentation of
exists,
of with the Board’s
a court is divested
Be-
However,
its assessments.1
supporting
ords”
jurisdiction.
where the
evidence,
valuation
con-
appeal,
and the
a de novo tax assessment
ord into
Appeal
presumptively valid.
taxing authority presents
rec-
tained therein
its assessment
Indeed,
cause the
assessments were based on non-
ignore
seems to
evidence,
lawsuit,
fact
object
record
this is a class action
would
alleging that
“hundreds
real estate tax
by
the Board’s “records” are tainted
assessment
decisions are tainted
due process violations. The Boards of
corrupted” by
the Board’s consider-
rulings
Viewers would make
on that issue
(R.R.
ation of non-record
evidence.
and,
in each of the three cases
eventually,
20a-21a)
added). Thus,
(emphasis
in addi-
reports
file their
with the trial
pur-
court
tion to the
appeals by
three
the named
A503(m).
suant to Rule
If the trial court
case,
plaintiffs
there
hun-
could be
reject
were to
process rulings
the due
appeals
dreds of
de
novo
the trial court
Viewers,
made
the Boards of
the trial
raising
same
process question.
court would remand the three tax assess-
All of those actions could be avoided with a
ment appeals to the Boards of Viewers for
tidy global
resolution
the trial court.2
A503(m).
further proceedings under Rule
Expertise
II.
Once the Boards of
reports
Viewers filed
In Borough
Tree
v. Board
court,
acceptable
were
to the trial
Assessments,
Re-
there would
duplicative
be even more
view Allegheny County, 459 Pa.
ceedings.
losing parties
The
in the three
A.2d 819
our
court stated
appeals
objections
would file
pursuant
that, in deciding whether to
equi-
exercise
A503(n).
Rule
filing
After the
of briefs
ty jurisdiction, a court must consider
A503(o)
under Rules
A503(p)
oral
there is need for the administra-
argument
case,
A503(q)
under Rule
in each
agency
light
tive
to “throw
on the issue
the trial court would issue final orders
through
specialized
exercise of its
fact-
A503(r).
under Rule
losing parties
finding
function or
of its admin-
and,
would
to this
if this
expertise.”
istrative
Id. at
328 A.2d
court were to reverse the trial court’s due
specialized
proceedings
Where
decisions,
the individual cases
little,
any,
would be of
if
utility
deter-
would be
proceed-
remanded for further
“[wjhatever
raised,
mining the issue
bene-
ings.
might
fit
filing
be derived from the
*7
...
appeals
individual
would be far out-
our supreme
Given
court’s concern for
inconvenience,
weighed by the
delay and
lawsuits,
multiple duplicative
simply
which
expense involved.” Id.
delay
issue,
resolution of the
inconvenience
parties
and cause additional
I
expense,
Here, the issue is whether the Board’s
believe, unlike the majority, that the trial
consideration of non-record evidence vio-
court
equity juris-
should have exercised
process rights
litigants.
lates the due
of
diction
this case.
Deciding
strictly legal question
this
does
Center, Inc.,
Marple Springfield
menting
654 A.2d
on the Board’s memo with these
of
(Pa.Cmwlth.),
denied,
679,
635
542 Pa.
process appears
fly
words:
in the
”[S]uch
Here,
(1995).
179
See, e.g., Millcreek
of
review those decisions.
of Boards
expertise
not
involve the
view,
v.
District
my
specialized Township
School
Viewers.
of
(Pa.Cmwlth.1998),
Erie,
ap
of Viewers
1096
before Boards
714 A.2d
proceedings
—
—
denied,
Pa.-,
a resolution
A.2d
nothing
offer
towards
peal
would
exper-
(No.
Dkt.1998,
If
presented
the issue
here.
filed March
of
547
Alloc.
W.D.
needed, I
is not
5, 1999);
Harrisburg
tise of Boards of Viewers
v. Dau
City
of
require
court should
why
Ap
fail to see
this
County Board
Assessment
phin
(en
(Pa.Cmwlth.1996)
before Boards of
proceed
not be Tree, 278-79, Borough Green 459 Pa. at Discussing applica-
priety equity jurisdiction, the focus of
the inquiry type is not on the of constitu- attack, i.e.,
tional facial or as applied.
Rather, the focus is on the need for the expertise
Board of Viewers’ in deciding the rule, general
issues. aas the Board
of Viewers is not needed where the en-
abling legislation is under direct attack. obvious;
The reason is attack Likewise, strictly legal question.
involves a
here, the due issue raised Tax-
payers strictly legal question. Al-
though it is not a legisla- direct attack on
tion, it apparent expertise of the
Board of Viewers is not needed to decide
the issue.
Accordingly, majority, unlike the
would reverse the trial court’s dismissal of
Taxpayers’ equity claims and remand proceedings.
further