Savko v. Board of Property Assessment

Dissenting Opinion by

Judge Rogers:

I respectfully dissent. The Board of Property Assessment, Appeals and Review of Allegheny County (board) fixed the market value of the taxpayers’ property at $160,000 and the assessment at $40,000. The taxpayers appealed the assessment and on May 26, 1983, the board of this order to the common pleas court, to docket number G.D. 83-10533. The court ordered the appeal to compulsory arbitration pursuant to 42 Pa. C. S. §§7361-7362.

The arbitrators’ award made October 6, 1983 reduced the market value of the taxpayers’ property to $132,000, which would produce an assessment of $33,000. On November 7, 1983, the taxpayers, apparently seeking to appeal the arbitrators’ award of October 6, 1983, filed a pleading in the common pleas court entitled:

NOTICE OF APPEAL RE: APPEAL REAL ESTATE TAX APPRAISERS

The taxpayers wrote on the pleading the docket number G. D. 83-10533, the same number as that borne by their earlier court appeal from the board’s' original assessment. The taxpayers gave this second, appeal the caption:

PETITION FOR APPEAL FROM BOARD OF PROPERTY ASSESSMENT, APPEALS AND REVIEW

In the body of the petition there is no mention of the arbitrators’ award of October 6, 1983; indeed, the petition is an exact copy of the petition which the taxpayers *538had filed on their appeal from the boards May 26, 1983 decision, down to informing the reader that it was an appeal from the Board of Property Assessment, Appeals and Reviews order of May 26, 1983.

The prothonotary scratched off the docket number G.D. 83-10533 and gave the appeal the new number G.D. 83-19044. The common pleas court quashed the appeal filed November 7, 1983 on the ground that it was filed more than thirty days after the boards May 26, 1983 decision.

The taxpayers contend that their appeal filed November 7, 1983 should be reinstated because its appearance of late filing was the result of misdocketing by the prothonotary; that if the docket number had not been changed, it would have been apparent, despite the petitions exclusive reference to the boards May 26, 1983 order, that the petition was really an appeal from the arbitrators award of October 6, 1983. I find myself unable to accept this contention.

I would decide that the taxpayers were the authors of their own loss, if any; and that the prothonotary cannot be blamed for taking the taxpayers’ petition for what the petitioners described it, an appeal from the board’s May 26, 1983 decision.

Pa. R.C.P. No. 1308 governs appeals from arbitrators’ awards and provides in pertinent part:

1308(a) An appeal from an award shall be taken by
(1) filing a notice of appeal in the form provided by Rule 1313 with the prothonotary of the court in which the action is pending not later than thirty days after the entry of the award of the docket. . . .

Pa. R.C.P. No. 1313 prescribes the form of notice of the appeal and provides in pertinent part:

*539(a) The notice of appeal shall be in substantially the following form:
(Caption)
NOTICE OF APPEAL
FROM AWARD OF BOARD OF ARBITRATORS
TO THE PROTHONOTARY:
Notice is given that_appeals from the award of the board of arbitrators entered in this case on___

As is seen, the taxpayers’ appeal filed November 7, 1983 flagrantly disregards the rules. It makes no mention that it is an appeal from an arbitrators’ award and it is not in the form required by Pa. R.C.P. No. 1313. Surely the prothonotary was given no reason to know that there had been an arbitrators’ award and I would not hold that he was bound to search his dockets for that kind of information.

Having in mind that a final decision of a real property assessment appeal for one year is not res judicata of an appeal for a later year, I would affirm the order of the common pleas court.

*540531 A.2d 576

On reconsideration the following opinions were filed:

Opinion by

President Judge Crumlish, Jr.,

September 24, 1987:

On March 5, 1987, we entered an Order1 granting reargument of our October 16, 1986 Opinion and Order in this matter. Savko v. Board of Property Assessment, 109 Pa. Commonwealth Ct. 531, 516 A.2d Í07 (1986). In Savko, we held that the Allegheny County Common Pleas Court lacked jurisdiction to direct statutory tax assessment appeals to arbitration because Section 518.1 *541of the General County Assessment Law2 requires that such appeals be exclusively heard de novo before a common pleas court. After reconsideration of that conclusion, we vacate our decision.

Sections 7361 and 7362 of the Judicial Code govern arbitration of civil matters before the courts of this Commonwealth, 42 Pa. C. S. §§7361, 7362. Courts are permitted by Section 7361(a) to promulgate general rules or rules of court3 to require compulsory arbitration of certain matters. Limitations to this authority are found in Section 7361(b). Our Supreme Court, through Pa. R.C.P. Nos. 1301-1313, established rules regulating compulsory arbitration matters.

Pursuant to these constraints, Allegheny County Common Pleas Court on May 15, 1981, promulgated Local Rule 1301, which for our purposes states:

*(1) The following civil actions, proceedings and appeals or issues therein where the demand is for $10,000.00 or less (exclusive of interest and costs) shall first be submitted to and heard by a board of three members of the bar of the court:
(e) Matters transferred to compulsory arbitration by the court even though the original demand may have exceeded $10,000.00 (exclusive of interest and costs).
*(2) Actions, proceedings appeals or matters other than those set forth in *1 shall not be submitted to, transferred by a court to, heard by or determined by a Board of Arbitrators appointed under 42 Pa. C. S. §7361.

*542In furtherance of subsection (e) above, Allegheny County Common Pleas Court amended Local Rule 502, governing appeals from real estate tax assessments, to read:*4

In all appeals from decisions of Board of Property Assessment, Appeals and Review, the following requirements will apply:
(e) Arbitration Jurisdiction: Appeals involving decisions of the Board of Property Assessment, Appeals and Review wherein the assessed value of the property was determined to be one hundred thousand ($100,000) dollars or less will be submitted to arbitration. The Prothonotary (Arbitration Section) will schedule tax appeal hearings for cases filed in Arbitration on only one day of each week.

(Emphasis added.) This subsection was effective on December 8, 1984.

*543We now hold that Local Rules 1301 and 502 validly require tax assessment appeals emanating from the Board of Property Assessment, Appeals and Review of Allegheny County (Board) to be subject to compulsory arbitration, prior to de novo review before the common pleas court.

Although Section 518.1 of the General County Assessment Law does require review of tax assessment appeals to be conducted de novo before a common pleas court, the initial direction of appeals to a board of arbitration under common pleas court supervision does not conflict with this express requirement.

We reach this conclusion by reviewing the language of our Supreme Court in the Smith Case, 381 Pa. 223, 112 A.2d 625 (1955). In that case, the critical need for preliminary, alternative dispute resolutions is recognized. More importantly, the constitutionality of arbitration proceedings being mandatorily required prior to de novo common pleas court review was upheld.

In light of this pronouncement, we construe Section 518.1 of the Assessment Law, together with Sections 7361 and 7362 of the Judicial Code and Pa. R. C. P. 1301 and Local Rules 1301 and 502, as authorizing the present practice of the Allegheny County Common Pleas Court to initially assign tax assessment appeals to arbitration.

Turning to the matter before us, however, we are troubled in that Local Rule 502 did not expressly dictate arbitration when the Savkos’ tax assessment appeal was filed in the common pleas court on June 24, 1983.

Appellee Board states in its brief on reargument that prior to the 1984 amendment there existed “local procedures equivalent to rules which had been established by the trial court for the referral of tax appeals *544to compulsory arbitration.”5 It also argues that taxpayers Savkos tacitly “consented” to the transfer to arbitration.

The enabling provisions found in the Judicial Code require that rules directing matters to arbitration be promulgated.6 The absence of such a rule at the time Savkos’ appeal was filed makes that past assignment by the common pleas court ineffective.7 Hence, since the appeal as docketed originally at No. G.D. 83-10533 was timely and proper, we reverse the common pleas court order dated December 7, 1983, denying the Savkos’ petition to reinstate their tax assessment appeal. The common pleas court is directed to proceed with a de novo review of the Savkos’ appeal from the Board.

This Court does stress, however, that tax assessment appeals assigned to arbitration after the effective date of Rule 502 (December 8, 1984) are valid.

Order

Upon consideration of appellee’s application for reargument, it is ordered that said application is granted. This Court’s Order of October 16, 1986, is vacated. The order of the Allegheny County Common Pleas Court, entered at docket no. G.D. 83-10533, dated December 7, 1983, is reversed. This case is remanded to the common pleas court for further proceedings consistent with this Opinion.

Jurisdiction relinquished.

The Order read:'

NOW, March 5, 1987, it is ordered that the application for reargument is granted solely as to the jurisdictional question stated in the prior decision of this Court filed in this case. If desired, amicus curiae on behalf of the taxing bodies may, through counsel, file a brief and present oral argument. Briefs for amicus curiae and additional briefs for appellants and appellee on this issue shall be filed on or before April 15, 1987.
The Chief Clerk is directed to list the above case before the Court en banc on the May 1987 Argument List at Pittsburgh.

Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §§5020-101—5020-601, specifically 72 P.S. §5020-518.1.

A general rule is a rule or order promulgated by the governing authority, where a rule of court is a rule promulgated by a court regulating practice or procedure before the governing court. Section 102 of the Judicial Code, 42 Pa. C. S. §102.

Rule 502, initially adopted on October 6, 1980, read in its entirety:

Rule *502. Appeals from Tax Assessment.

(a) Notices: In all appeals from real estate tax assessments
(1) Notice of the appeal
(2) Notice of the date of hearing
(3) Notice of conciliation
Shall be given to the:
(1) Owner of the Property
(2) Board of Property .Assessment, Appeals and Review
(3) County of Allegheny
(4) Local Taxing Bodies (City, Borough or Township, School District)
(b) Times of Notice
(1) Notice of the Appeal shall be given within five (5) days (exclusive of Saturdays, Sundays, and holidays).
(c) Proof of Service: Affidavit of service of the Notice of Appeal shall be filed with the office of the Prothonotary.

Appellees brief on reargument, p. 9.

See note 3. Although the term “promulgate” is not defined in the Judicial Code, we believe the term should be construed as requiring formal publication.

We reject appellees contentions that the Savkos “consented” to the arbitration assignment. The record lacks evidence indicating any such concession, and this Court declines to find such.