In re Appeal of Maoying Yu

DISSENTING OPINION BY

President Judge DAN PELLEGRINI.

This is a simple case made complicated by the conflating of the April 2, 2013 discontinuance of the appeal from the Board’s1 original November 15, 2012 Decision (Original Decision) with the issue of whether the Board had jurisdiction to issue its Revised December 18, 2012 Decision (Revised Decision). Simply put, the only issue before the trial court was whether to strike Taxpayer’s discontinuance of her appeal.

There is no rule of court that requires a person to seek permission to discontinue an appeal. However, Rule 229(c) of the Pennsylvania Rules of Civil Procedure permits the trial court to strike a discontinuance for, inter alia, unreasonable inconvenience, expense or prejudice. Pa. R.C.P. No. 229(c). It was under this Rule of Civil Procedure that the School District sought to strike the discontinuance.

However, the Pennsylvania Rules of Civil Procedure do not apply to tax assessment appeals. Appeal of Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990). Because the Rules of Civil Procedure do not apply, the School District cannot seek *585to strike dismissal of the appeal under Pa. R.C.P. No. 229(c) because it is inapplicable and the general rule that permission is not needed to withdraw applies.

Moreover, the collateral effect of the discontinuance of the appeal of the Original Decision on the Taxpayer is irrelevant to her absolute right to discontinue her appeal of the original assessment or any other assessment that may be before the Board.2

Accordingly, because I would affirm the decision of the trial court, albeit on different grounds, I respectfully dissent.

Judges BONNIE BRIGANCE LEADBETTER and PATRICIA A. McCULLOUGH join in this dissenting opinion.

. Delaware County is a home rule county. Section 420 of its Home Rule Charter establishes the Board of Tax Assessment Appeals which shall perform the function of hearing and adjudicating taxpayer appeals from County real property tax assessments. Section 418 of its Charter provides that the County Treasurer shall be responsible for real property tax assessments. See, Board of Property Assessment, Appeals and Review of Allegheny County v. County of Allegheny, 773 A.2d 816 (Pa.Cmwlth.2001).

. In footnote 4, the majority, agreeing that Rules of Civil Procedure do not apply, posits that Churchill allows the trial court to exercise its discretion and use the factors in Pa. R.C.P. 229(c) to determine whether Taxpayer should be allowed to discontinue her appeal.

What this ignores is that it was not the trial court but the School District that requested the trial court to adopt Pa.R.C.P. 229(c) factors to determine whether a taxpayer can discontinue a tax assessment appeal. As the majority states, one of the School District’s primary arguments on appeal is that “the trial court failed to evaluate properly the prejudice caused by Taxpayer's withdrawal and the trial court’s subsequent refusal to strike off the discontinuance.” Opinion at page 579. As was within its discretion, the trial court rejected those standards and permitted her to withdraw her appeal of the assessment that was the subject of the appeal.

If the majority finds that the trial court somehow found that those standards were applicable or that it was somehow an abuse of discretion not to apply a Rule that it agrees does not apply, then, at the very least, the majority should have remanded the matter to the trial court to make that analysis as the School District requested, instead of just to striking the discontinuance of her appeal.