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HomeMy WebLinkAbout01-2445 FX ~~" , , ',0 , ,;!,,- _ ,- j', " ,< ", ~.:;,:" "~ ~-'-;- '. , . . IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA . CUMBERLAND COUNTY In Re:lnterest of Joseph W. ElhaD No. C! 1- 2'f'/ D Cu;.;j "T ~ PETITION FOR RELIEF UNDER THE RIGHT-TO-KNOW ACT, 65 P.S. SECTION 66.4 To The Honorable, The Judges of The Said Court: Petitioner, Joseph W. ElhaD, by and through his attorney, Joseph A. Macaluso, respectfully states: 1. Petitioner is a sui juris adult, whose address is 1 West King Street, Shippensburg, Cumberland County, Pennyslvania 17257. 2. Petitioner performs residential and commercial real estate appraisals in and about Cumberland County, Pennsylvania, and the surrounding counties. 3. In or about September, 2000, petitioner made request, under the the Right-to- Know Act, 65 P.S. Section 66.3, to Randall Wagner, Chief Assessor of Cumberland County, for permission to inspect and photocopy, at petitioner's expense, the independent appraisal reports relating to commercial and industrial tax appeals in the Tax Assessor's Office in Cumberland County for the year 2000, as well as for a list of such appeals. 4. The Chief Assessor referred petitioner's request to their legal counsel, stephen D. Tiley, Esq., 5 S. Hanover St., Carlisle, Pennsylvania 17013. -~~ , ~., - ~ . ~ \..- " --~ ','B , , . 5. Petitioner, through his own legal counsel, by way of letter dated September 26, 2000, set forth petitioner's request to Attorney Tiley, a copy whereof is attached hereto as Exhibit A. 6. The Chief Assessor, through legal counsel, answered petitioner's request by letter dated January 26, 2001, stating that "providing those copies to your client would violate the copyright protection which would, apparently, preclude your client from using them for its business purposes. ._. Should you desire to pursue this further, you must shoW to us how the copying of these documents to your client would not violate the copyright laws." A copy of said letter is attached hereto as Exhibit B. 7. By way of letter dated February 14, 2001 (a copy whereof is attached hereto as Exhibit C), petitioner, through his legal counsel, attempted to show how copying the subject documents would not violate the copyright laws. 8. Petitioner avers that the Right-to-Know Act contains no exemption from its requirements based on copyright infringement. 9. Petitioner further maintains that the copyright laws do not bar the petitioner's rights under the Right-to-Know Act for the following reasons: a. the information contained in real estate appraisals is based largely on public deed records which are not subject to copyright; b. the general appraisal methodology, e.g. the comparable sales approach, is a "proc;ess" which does not appear to be subject to copyright; c. the typical appraisal forms, i.e. the standard Freddie Mac Form 70 or Fannie Mae Form 1004, are not subject to copyright; and j -~, , , ,- ""', ~- ~-" , -,,-, , ': "-,, ~' "\\fiti--, ~ d. the Pennsylvania Commonwealth Court has already held that real estate appraisals are public records within the meaning of the Right-to-Know Act, e.g. City of Chester v. Getek, 572 A. 2d 1319 (1990). 10. To date, petitioner has not received permission to copy the public documents. 11. Under the Right-to-Know Act, 65 P.S. Section 66.3, any Pennsylvania citizen has the right to make copies of public records. 12. Petitioner is a Pennsylvania citizen. 13. In accordance with 65 P.S. Section 66.1, the appraisal reports which petitioner seeks to inspect and copy must be considered an "essential component of an agency decision", since the determinatiohs made by the Assessor of Cumberland County in tax appeals are contingent on the information contained in these appraisal reports. 14. Therefore, the appraisal reports which petitioner seeks to inspect and copy are public records under the Right-to-Know Act, 65 P.S. Section 66.3. 15. Petitioner is entitled to inspect and copy the appraisal reports under the Right- to-Know Act, 65 P.S. Section 66.3. 16. Petitioner has been denied permission to inspect and copy the appraisal reports without just and proper cause. 17. This Court has jurisdiction pursuant to 65 P.S. Section 66.4. WHEREFORE, petitioner requests th~t this Court enter an Order for disclosure directing the Chief Assessor of Cumberland County, to permit petitioner to inspect and r ,\i__r"- -, ~. ~~ . ~ ~_.m_" - ~~ 'L-, photocopy, at petitioner's expense, ally and all independent appraisal reports relating to commercial and industrial tax appeal. filed in the Tax Assessor's OffIce in Cumberland County in connection with any talC appeals that have been decided by the Chief As.Hor of Cumberland County. VERIFICATION I verify that the statements made In the foregoing petition are true and accurate to the best of my per&Ona' knowledge, information and belief. I understand that my statements are made &ubject to the penalties of 18 Pa. C.S. Seotion 4904. relating to unawom falsification to authorities. ~~J GJ Joseph W. EthaB ~ DetecI: Y /; /,/0/ --~ -~( ill L 1OO-:..J'~ ,~," "J'",- '-" ,'';' ~" -" ,--,,-.-~ -~ <',~ Joseph A. Macaluso Attorney at Law 9614 Rowe Run Loop. Shippensburg, Pennsylvania 17257 Admitted to Practice in Pennsylvania, New Jersey, and New York September26,2000 (717) 532-4832 Stephen D. Tiley, Esq. 5 S. Hanover St. Carlisle, PA 17013 Dear Mr. Tiley: I represent Apex Valuation Services, which performs residential and commercial real estate appraisals in Pennsylvania, and which maintains its offices in Shippensburg, Cumberland County. My client has recently asked Randall Wagner, Chief Assessor of Cumberland County, for permisison to inspect and photocopy, at my client's expense, the independent appraisal reports relating to commercial and industrial tax appeals in Cumberland County for the current year, as well as for a list of such appeals. The issue has been raised whether the appraisal reports are public records which my client is entitled to inspect and copy. We understand that you are solicitor for Cumberland County Tax Assessment Office and so I am writing to you about this. Under the Right-to-Know Act, 65 P.S. Section 66.3, any Pennsylvania citizen has the right to make copies of public records. Note 7 of65 P.S. Section 66.1 cites City of Chester v. Getek, 572 A. 2d 1319 (1990), where the Pennsylvania Commonwealth Court held that real estate appraisals relating to the purchase of property by the city were public records within the meaning of the act. Other cases cited in Note 7 of 65 P.S. Section 66.1 hold generally that for a document to be considered a public record, it must be an essential component of an agency decision, and that such a document is considered an essential component of an agency decision if the, decision was contin~ent on the information contained in the document (i.e. the document must be either the basis for or a condition precedent of the decision). Other examples of documents held to be public records are: statistical data on racial and ethnic programs for exceptional children compiled. by the Department of Education; and property report cards of tax assessment boards. While not every document in the possession of an agency may be said to constitute a publiC record, we believe that the appraisal reports in question meet the standard set forth above and that they are public records. If you agree, my client would like to have approval to make the copies requested sometime next week. We do appreciate your prompt attention in this matter. Sincerely, Joseph A. Macaluso /1 It\!\. -~ .: , ,. \J : FREY & TILEY ATTORNEYS-Al'LAW 5 SOUTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 ROBERT M. FREY OF COUNSEL STEPHEN D. TILEY ROBERT G. FREY TELEPHONE (717) 243-5838 FACSIMILE (717) 243.6441 January 26; 2001 Joseph A. Macaluso, Esquire 9614 Rowe Run Loop Shippensburg, PA 17257 Re: Apex Evaluation SeNices Dear Mr. Macaluso: In response to your letter of September 26, 2000, the County believes that copying of appraisals which were submitted to the Board of Assessment Appeals and providing those copies to your client would violate the copyright protection which would, apparently, preclude your client from using them for its business purposes. We do not want the County to participate in any copyright infringement. Should you desire to pursue this further, you must show to us how the copying of these documents to your client would not violate the copyright laws. Sincerely yours, , ~"[)-?"~ .' Stephen D. Tiley SOT/tal cc: Robert C.Saidis, Esquire Randy L. Waggoner, Chief Assessor 1'13 t\ ;~.~~' --" I I -_.c'~';' p-~ "'->-~'O- ",",,,::-,,,~,".---.~' , , ,-'"---~,,:i '.. Joseph A. Macaluso . . Attorney at law 9614 Rowe Run Loop' Shippensburg, Pennsylvania 17257 . . , . ~ Admitted to Practice in Penn5yl'lania, New Jersey, and New York (717) 532-4832 February 14, 2001 Stephen D. Tiley, Esq. 5 S. Hanover St. Carlisle, PA 17013 Re: Apex Valuation Services Dear Mr. Tiley: Thank you for your reply of January 26, 2001, in which you raise the issue of copyright protection of the appraisal reports for commercial and industrial tax appeals in Cumberland County, which my client, Apex Valuation Services. has requested permission to inspect and photocopy under the Right-to-Know Act. 65 P.S. Section 66.3. You have asked me to show how the copying would not violate the copyright laws. My response is as follows. First, the Right-ta-Know Act contains no exemption from its requirements based on copyright. The information contained in an appraisal is based largely on public deed records, and the general appraisal methodology, e,g. the comparable sales approach. does not itself appear to be subject to copyright. In fact. the typical residential appraisal is prepared on a standard Freddie Mac Form 70 or Fannie Mae Form 1004. A better question may be: how can an appraiser offer an appraisal as a public document in a tax appeal and still maintain copyright protection? Second, and more importantly, there is already precedent in the case of City of Chester v. Getek, 572 A. 2d 1319 (1990), where the Pennsylvania ComlTlQnwealth Court held that real estate appraisals are public records within the meaning of the Act. I believe we have submitted sufficient authority to support my client's position. My client has directed me to take appropriate action if the request is not granted. Please let me know if your client still refuses to grant the request. incerely, f~ ph A. Macaluso Apex Valuation Services tlG \t ~~~- 1.__" ~__" ~.- -" ~ -, ,""-, -'Bjj[!!1-'\\~ " ^. IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY InRe: InterestofJosephW.Elhajj No. ()1-~.LI4S eo.:('-r-~ RULE AND NOW, this ~O day of ~ ' 2001, upon consideration of the within Petition for Relief Under the Right-to-Know Act, 65 P.S. Section 66.4, a rule is issued upon respondent Randall Wagner, Chief Assessor of Cumberland County, One Court House Square, Carlisle, PA 17013, as follows (appropriate items checked): ~ 1) Respondent sha, II answer the petition within 20 iays..t. tr: date o~ service of the within Rule up'on the respondentl J4r1'1 ~ ~ ~ ~ S' W,oo ~ ~~ IM.t ~ ~VU)~ -+0 !.:.Y1 . 2) he pa ies sh II: a pear R om N 0 the Cum erland Cou propri e pro dure for etermining nsult Ith the ourt with n da ppropri te pro dure for etermining , 2001 at o'clock Court Hous ,to dete isputed facts; after an ans r is filed to deter ne the isputed facts' .m. in Court ine the n disputed acts shall be , 2001, t o'c ck .m. in Cumbe land Co nty Cou House; eld on th urt Room No. d Y fthe 4) Arg ment sh o'cloc ,2 01, at of Cumberla County ourt Hou e. Thi Rule sh II be se ed upon r sponde by certified ipt req ested. ~IC\ Ul1. (30~ i -j,~_~~~~'i!ii'':;',"ffi,-'hl'.!iUi;!/1i'11!lL~M1ii1i1!'i::.;r.'lli~!2.>>M1Sj~'''_hj]t",a'-id~,,,,,,i!!;:;J~'l!~_"'rl~'l\;I~ji . >--' ''''''''...........,~~M>'' ~ -,.JL". ~.~ ,"..,_ ^~~~"" ~.~~ _e ~iiilli~~IIli'" . " " ifIN\iA1A8NN3d ,1JNnOJ Or~ntE18~m 01 :1 Wd OE l:ldV i 0 luV.n;.',,"f"..... AU 1.l..,.c!\~.J1 L"j\.!~; 3Jij~C)-{J:J IU ::10 ~-',r"_c'" ____'0-_.,,", _,^". ^_~~c, '.___~,",~,_~__,.. "^ h ~--..- ' ~......""". 16, " !l1.' ....,""'" r"", ,"", , ~,-, '---c :;;,-~-~"-,-~'V ~ ""ii_ \ IN THE COURT OF COMMON PLeAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY In Re: Interest of Joseph W. EIMll No. 01-2445 Civil Term MOTION TO MAKE RULE ABSOLUTE To the Honorable, the Judges of the said Court: NOW comes movant, Joseph A. Macaluso, attorney for petitioner, Joseph W. Elhall, and respectfully moves this Court to make absolute the Rule which was issued in the above-captioned proce,eding on April 30, 2001, and in support hereof states the following: 1. On April 26, 2001, petitioner filed with the Court his Petition for Relief Under the Right-to-Know Act, seeking permission to inspect and photocopy the independent appraisal reports relating to commercial and industrial tax appeals in the Tax Assessor's Office in Cumberland County for the year 2000, as well as for a list of such appeals. 2. On April 30, 2001, a Rule was issl,led to respondent, Randall Wagner, Chief Assessor, One Court House Square, Carlisle, PA 17013, directing him to file an answer With the Court within 20 days of service of same. A copy of the Rule is attached hereto as Exhibit A. 3. On May 3, 2001, movant served the aforesaid Petition and Rule upon Randall Wagner by certified mail return receipt requested, postage prepaid, in accordance with movant's certificate of service filed with the Court on May 4, ,,~,', . 2001. 4. On May 4, 2001, the aforesaid Petition and Rule were received by the Chief Assessor's office, as indicated in the copy of the certified mail return receipt attached hereto as Exhibit B. 5. More than 20 days have expired since service of the Petition upon respondent, but movant has not received any answer to the Petition. 6. On the date hereof, Movant inquired of the Prothonotary's Office in Cumberland County whether any answer has been filed, and the response was ~ negative. 7. For the foregoing reasons, petitioner is entitled to the relief requested. WHEREFORE, movant respectfully requests that your Honorable Court make the Rule absolute and grant the relief requested in the Petition for Relief Under the Right-to-Know Act. Respectfully Submitted, VERIFICATION I verify that the within motion is true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of perjury contained in Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: May 30, 2001 ,j--- - ", . ....~ ,- ~ ' -i' ,_-t, -"",-, . ',;- '';' ,,0, ",_">"_ d ''';'''-'''\; .. . CERTIFICATE OF SERVICE I hereby certify that Qn May 30, 2001, I caused to be served a true and correct copy of the within Motion to Make Rule Absolute, by first class mail, postage prepaid, addressed to the following individual: Randall Wagner, Chief Assessor, One Court Ho~se Square, Carlisle, PA 17D13. I further certify that the statements made herein are true and correct, and I understand that if any false statements were made herein, the same would be subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Dated: May 30, 2001 "" " '. J' ,.-,,11 C",_,_""" ',", ;;.;:. . APR 2 72ooif1l' IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA . CUMBERLAND COUNTY In Re: Interest of Joseph W. Elhajj No. (',1- .:J4l../..i du~( ~~ RULE AND NOW, this 30 day of 'J - ~~ L ,200( upon consideration of the within Petition for Relief Unde~ht-to-KnOW Act, 65 P.S. Section 66.4, a rule is issued upon respondent Randall Wagner, Chief Assessor of Cumberland County, One Court House Square, Carlisle, PA 17013, as follows (appropriate items checked): L1) Respondent shall answer the P, etition within 2~...dt'1!j,t'J d;W o~~rvice of ~~~"de"'.A ~~.t.J ) The arties hall ' . ppear ,20 1 at o'clock .m. in C rt oom N . f th Cu berland ounty C urt Ho e, to det rmine he propri te pro ing disp ed fact ; c nsult ith the days a r an a swer is fil d to term ne the a propri te pro ing disp ted fa ~ Argu clock 3 An evi entia held on he ourt Ro m No. da of he 01, County ourt ouse. This Ru e shall iI return r ceipt equest d. By the Court, /5 I(A-tI ~ ~, ~- SENDER: (;) . CompletE! itome: 1 and/or 2 for additiane'l services. CD . Complete items 3, and 4a & b. :! . Print your nama and addtes::; on tho reveille of this form so that we can G) roturn this card to you. ' ~ . Attach 'this form to the bont of the- mailpioce. or on the back i'fllpace .... does not p.ermlt. . Write "Return Receipt Requested" on the mailprece below the article number, 2. 0 Restri'cted, Delivery . The Return Receipt will show to whom tho article wa" cktlivered and the date ~ delivered. :-:: Cpnsult ostm8sie,t~ - r fee. 3. Article Addressed to: 4a. Article Number I also wish to receive the following services {for an extra f..I: ,. 0 Addresseefs Address 'i,-3 R~(>(:lo..lf V!'^9 ne...r, ~.{.. As~~s~("" , Dnt. eo\Jr.+oO:<I+C~ ~Uare.. Co,,(i~k ,PA 1'1013 " ---'," ,-"..",. . 5. Signatu dd as eel I 63 ~'B 4b, Service Type o jteglStsred gCertified o Express Mail 0' (n~_ured OCOO,~ o Returnr Receipt for em a dis , 7. Date of Del~y, 8. Addressee's A dr and fea I. paid) " o . > S5 (Onlv If requested $. " a ""... ""<>. '..........714 DOI'!'ta;TIC RETURN RECEIPT ------~. ,---,.. < ~ .,.J rrf!/ + ~ "~ .. ~ 0. "8 " a:: c - " ~ " a:: Ol c ";;; " - 0 - _ , . __~,. _' '~~ ,"'," ,o,,-~__,' ,c, ' , ~ '"'~,," ",,' .'" ,.,,,.-_,,,,,,, .',~i""',h" ,V. \. _,_ 'ry, " , IN RE: INTEREST OF JOSEPH W. ELHAJJ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2445 CIVIL TERM AND NOW, this ORDER OF COURT '" \-' day of June, 2001, upon consideration of the within motion, IT IS ORDERED that the Rule to show cause issued on respondent, Randall Wagner, Chief Assessor, IS MADE ABSOLUTE. IT IS ORDERED that the Assessor shall permit petitioner, Joseph W. Elhajj, to inspect and photocopy the independent appraisal reports in the Tax Assessor's Office in Cumberland County, as well as the list of such appeals. :saa ~\-D\ V'" 'ljleMillil;lIiall'W~lill;1:WmrA'~lli!i"'l;M"",'!il-;;:i",,,'i!:~~M.l<i'i!MM~it<H':;')-,?"~1!di.,,~:;rkit@',AA.&"'"iil<;~iIIW,aliii. 'i ~~ Iilil:i~"" p,j C<"" J;..,';' kR JilL ~, ..,,~,,~, \IlNV^1ASNN3d AlNnm ONiI'1l::l38Wno SO:Z Wd Tj- Nor 10 J..WIO''''''''.,.,, ''''',. ,il)( ,..... ,~ : .''-' -i'~" . ,,,-,,' '-'''''';'.''.< -' ,.;.. 38!:1:iO-O:Jl!:i :10 ~,~,~ =."-",,~ ",'--^ .."""-:",,~,,, '",', , .,-' 0''''' <"C jijf.":'c , JjI!~~1l!i ~ ....1 "I I ~ , ~,'~ , --, __~ .' , ,'-l "...',,,' """, -L~~^'o-""-):+c;'~~""~ - ,."~,,, "',,~jG<-'f,; IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY In Re: Interest of Joseph W. Elhan No. 01-2445 Civil Term CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of May, 2001, I caused to be served 1iI true and correct copy of the petitioner's Petition for Relief Under the Right-to-Know Act and the Rule dated April 30, 2001, upon the following individual by certified mail return receipt requested postage prepaid: Randall Wagner, Chief Assessor, One Court House Square, Carlisle, PA 17013. I further certify that the statements made herein are true and correct, and I understand that if any false statements were made herein, the same would be subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Dated: May 3, 2001 "Ii!i~~lli:M-lliWj~t~;!l;j!Sf~~#W;>'1i"'5M..a..q.;'1'!#.ii;";'b~'~l>i<I&'i>trill."-_:k-<;~'"!1JiI~I~\:tiliW.i,t ~"_,,,"..~h ",---.~~....." ~ _","">C,',_ ~,. ,_,.~, ~_ . ..I - ~~, "._M ."~'_'.'. - "" o::,! 0 <:::> 0 ~ -n -oCJ:; ::n: ::;:1 ~,~ ",. -< j"'ff~~ 635: "'- :'~l0:! ~~ c'':r' ::jC"' <J "..,.J J>r. -- .. Z;..,,-' 3;: ~~)~ ::;;;0 .PC ,.<:- Csrn Z " ~ =< :,,: t.O ::0 -<: . .~,<, '^' <~ --, ---~,~-.---- ,~- -'"',","c;;_~h__," ''',''='_o'''~' -"~-,,' '" "2;-;';;~ FREY & TILEY ATTORNEYS-AT-LAW 5 SOUTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 ROBERT M. FREY OF COUNSEL STEPHEN D. TILEY ROBERT G. FREY TELEPHONE (717) 243.5838 FACSIMILE (717) 243-6441 June 4, 2001 Hon. Edgar B. Bailey Court of Common Pleas Cumberland County, Pennsylvania One South Hanover Street Carlisle, Pennsylvania 17013 In Re: Interest of Joseph W. Elhajj No. 2001-2445 Civil Term Dear Judge Bailey: In regard to the above referenced matter, the County has determined not to defend the petition and is in the process of establishing procedures for the accessing of the records requested. Sincerely yours, ~7~ Stephen D. Tiley SDT/mm cc: Joseph A Macaluso, Esq.