Kowenhoven v. County of Allegheny

Concurring and Dissenting OPINION BY

Judge FRIEDMAN.

I agree that the Court of Common Pleas of Allegheny County (trial court) properly dismissed the section 1983 claim filed by Thomas and Katherine Kowenhoven, Robert and Michelle DeWitt and Daniel & Carol Holtgraver (together, Taxpayers) against the County of Allegheny and the Board of Property Assessment Appeals and Review of Allegheny County (Board). *177However, I disagree that the trial court properly dismissed Taxpayers’ equitable claims on grounds that Taxpayers have an adequate legal remedy.

Taxpayers filed a class action lawsuit against the Board seeking declaratory and injunctive relief. Taxpayers alleged that the Board violated Taxpayers’ due process rights by considering non-record evidence in deciding their tax assessment appeals. The hearing officers presiding over Taxpayers’ appeals provided the Board with the non-record evidence pursuant to a Board memo dated April 9, 2002. The memo stated that a hearing officer “who has personal knowledge of an area or more suitable sales comparables to those introduced at a hearing may supply this information for the Board’s consideration.” (R.R. at 7a.) In Taxpayers’ appeals, the hearing officers attached post-it notes to their reports making assessment recommendations to the Board based on non-record evidence.

The trial court dismissed Taxpayers’ equity claims, concluding that Taxpayers had an adequate legal remedy, viz., an appeal de novo from the Board’s decision to the trial court, including the appointment of a Board of Viewers. It is true that equity jurisdiction will not lie where the litigant has an adequate legal remedy; however, I cannot conclude that Taxpayers have an adequate legal remedy in this case.

I. Multiple Duplicative Lawsuits

In Pentlong Corporation v. GLS Capital, Inc., 573 Pa. 34, 43-44, 820 A.2d 1240, 1245-46 (2003) (emphasis added) (citations omitted), our supreme court stated:

In most circumstances, where a legal remedy exists, a court is divested of equity jurisdiction. However, where the legal remedy cannot afford “full, perfect and complete” relief, “equity extends its jurisdiction in the furtherance of justice.” Thus, in order to determine whether equity jurisdiction is proper in the face of an existing legal or statutory remedy, we must determine if the legal remedy available to the plaintiff is adequate and complete. Where, for instance, a legal remedy would result in a multiplicity of duplicative lawsuits and, in contrast, an action in equity would provide a tidy global resolution, this Court has found the legal remedy to be inadequate.

This case involves three named plaintiffs: the Kowenhovens, the DeWitts and the Holtgravers. The majority would have each of these three plaintiffs file appeals de novo with the trial court. Initially, the trial court would appoint three Boards of Viewers, one for each of the appeals, pursuant to Rule A503(h) of the Allegheny County Court Rules (Rules). Under Rule A503(j), the Boards of Viewers would oversee the conciliation process for the three appeals. During conciliation, if the Boards of Viewers were to decide that the interests of justice would not be served by holding hearings, the Boards of Viewers would recommend that the appeals be placed on a non-jury trial list. Rule A503(j)(4). If the Boards of Viewers were to make such a recommendation in these three cases because of the due process issue, the trial court would be compelled to address multiple duplicative appeals.

If the Boards of Viewers were to proceed with hearings under Rule A503(Z), there would be additional duplicative proceedings. All of the hearings would begin with the Board’s presentation of the “records” supporting its assessments.1 Be*178cause the assessments were based on non-record evidence, Taxpayers would object that the Board’s “records” are tainted by due process violations. The Boards of Viewers would make rulings on that issue in each of the three cases and, eventually, file their reports with the trial court pursuant to Rule A503(m). If the trial court were to reject the due process rulings made by the Boards of Viewers, the trial court would remand the three tax assessment appeals to the Boards of Viewers for further proceedings under Rule A503(m).

Once the Boards of Viewers filed reports that were acceptable to the trial court, there would be even more duplicative proceedings. The losing parties in the three appeals would file objections pursuant to Rule A503(n). After the filing of briefs under Rules A503(o) and A503(p) and oral argument under Rule A503(q) in each case, the trial court would issue final orders under Rule A503(r). The losing parties would appeal to this court, and, if this court were to reverse the trial court’s due process decisions, the individual cases would be remanded for further proceedings.

Given our supreme court’s concern for multiple duplicative lawsuits, which simply delay resolution of the issue, inconvenience the parties and cause additional expense, I believe, unlike the majority, that the trial court should have exercised equity jurisdiction in this case.

Indeed, the majority seems to ignore the fact that this is a class action lawsuit, alleging that “hundreds of real estate tax assessment appeal decisions are tainted and corrupted” by the Board’s consideration of non-record evidence. (R.R. at 20a-21a) (emphasis added). Thus, in addition to the three appeals by the named plaintiffs in this case, there could be hundreds of appeals de novo to the trial court raising the same due process question. All of those actions could be avoided with a tidy global resolution by the trial court.2

II. Expertise

In Borough of Green Tree v. Board of Property Assessments, Appeals and Review of Allegheny County, 459 Pa. 268, 328 A.2d 819 (1974), our supreme court stated that, in deciding whether to exercise equity jurisdiction, a court must consider whether there is a need for the administrative agency to “throw light on the issue through exercise of its specialized fact-finding function or application of its administrative expertise.” Id. at 281, 328 A.2d at 825. Where the specialized proceedings would be of little, if any, utility in determining the issue raised, “[wjhatever benefit might be derived from the filing of individual appeals ... would be far outweighed by the inconvenience, delay and expense involved.” Id.

Here, the issue is whether the Board’s consideration of non-record evidence violates the due process rights of litigants. Deciding this strictly legal question does *179not involve the expertise of Boards of Viewers. Thus, in my view, specialized proceedings before Boards of Viewers would offer nothing towards a resolution of the issue presented here. If the expertise of Boards of Viewers is not needed, I fail to see why this court should require Taxpayers to proceed before Boards of Viewers.

III. Complete Relief

As indicated above, if a legal remedy cannot afford full, perfect and complete relief, equity extends its jurisdiction in the furtherance of justice. Pentlong. As stated, this is a class action lawsuit. Among other things, Taxpayers seek an order requiring the Board to re-decide all tax assessment appeals in which the Board considered non-record evidence. (R.R. at 23a-24a.) In other words, the named plaintiffs here do not seek relief only for themselves. Because Taxpayers cannot obtain the complete relief they seek here by filing individual appeals de novo with the trial court, I conclude that the legal remedy is inadequate.

IV. As Applied

In dismissing Taxpayers’ equitable claims, the trial court relied upon Borough of Gh'een Tree, as discussed by this court in dicta in Jordan v. Fayette County Board of Assessment Appeals, 782 A.2d 642 (Pa. Cmwlth.2001) {en banc). I submit that the trial court was misled by Jordan.

In Jordan, this court stated that, under Borough of Gh'een Tree, the exercise of equity jurisdiction is not appropriate where a constitutional challenge is raised to the application of a tax statute. However, since Borough of Green Tree, this court, even sitting as an en banc panel, has exercised equity jurisdiction in cases where a constitutional challenge was raised to the application of a tax statute; moreover, our supreme court has declined to review those decisions. See, e.g., Millcreek Township School District v. County of Erie, 714 A.2d 1096 (Pa.Cmwlth.1998), appeal denied, — Pa.-, — A.2d(No. 547 W.D. Alloc. Dkt.1998, filed March 5, 1999); and City of Harrisburg v. Dauphin County Board of Assessment Appeals, 677 A.2d 350 (Pa.Cmwlth.1996) (en banc), appeal denied, 548 Pa. 620, 693 A.2d 590 (1997). My review of Borough of Green Tree indicates our supreme court did not preclude the exercise of equity jurisdiction in cases where a constitutional challenge is raised to the application of a tax statute.

The question before our supreme court in Borough of Green Tree was whether, in determining the propriety of equity jurisdiction, it was necessary to consider the existence of an adequate legal remedy. Acknowledging inconsistent case law on the matter, the court adopted the holding expressed in Rochester & Pittsburgh Coal Company v. Board of Assessment & Revision of Taxes of Indiana County, 438 Pa. 506, 266 A.2d 78 (1970), as follows: “[W]hat is required to confer jurisdiction on an equity court is the existence of a substantial question of constitutionality (and not a mere allegation) and the absence of an adequate statutory remedy.” Borough of Green Tree, 459 Pa. at 274, 328 A.2d at 822 (quoting Rochester, 438 Pa. at 508, 266 A.2d at 79) (emphasis omitted). The court then stated:

We have, however, at the same time recognized that the above rule is not to be unthinkingly applied, but rather that exception will be made where the statutory remedy is pointless or inadequate .... Our approach has been, in effect, a flexible one, such as that advocated by Prof. Jaffe: ‘Where the administrative process has nothing to contribute to the decision of the issue and there are no special reasons for postponing its *180immediate decision, exhaustion should not be required.”

Borough of Green Tree, 459 Pa. at 278-79, 328 A.2d at 824. Discussing the application of the rule, the court stated that “generally ... the more direct the attack on the statute, the more likely it is that exercise of equitable jurisdiction will not damage the role of the administrative agency....” Id. at 281, 328 A.2d at 825 (emphasis added).

In other words, in determining the propriety of equity jurisdiction, the focus of the inquiry is not on the type of constitutional attack, i.e., facial or as applied. Rather, the focus is on the need for the Board of Viewers’ expertise in deciding the issues. Thus, as a general rule, the Board of Viewers is not needed where the enabling legislation is under direct attack. The reason is obvious; such an attack involves a strictly legal question. Likewise, here, the due process issue raised by Taxpayers is a strictly legal question. Although it is not a direct attack on legislation, it is apparent that the expertise of the Board of Viewers is not needed to decide the issue.

Accordingly, unlike the majority, I would reverse the trial court’s dismissal of Taxpayers’ equity claims and remand for further proceedings.

. In a de novo tax assessment appeal, the taxing authority presents its assessment record into evidence, and the valuation contained therein is presumptively valid. Appeal *178of Marple Springfield Center, Inc., 654 A.2d 635 (Pa.Cmwlth.), appeal denied, 542 Pa. 679, 668 A.2d 1140 (1995). Here, the Board would present the non-record evidence as part of its assessment "record,” and the Board’s valuation based on the non-record evidence would be presumptively valid. The burden would be on Taxpayers to rebut the evidence. Id.

. Ironically, the majority, in dicta, appears to have decided the due process question, commenting on the Board’s memo with these words: ”[S]uch a process appears to fly in the face of procedural due process notions.” (Majority op. at 174.) Later, the majority states that “the Board’s memo ... injected an improper element into the process of adjudication.” (Majority op. at 176.) Such remarks leave little doubt that the Board’s process is constitutionally deficient.