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HomeMy WebLinkAbout01-05601JOHN L. SWEEZY, IN THE COURT OF COMMON PLEAS OF PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND COUNTY NO.2001-5601 CIVIL BOARD OF ASSESSMENT APPEALS, RESPONDENT ORDER OF COURT AND NOW, this 20TH day of MAY, 2002, argument on Petitioner's Motion to Compel Discovery is scheduled before the undersigned on THURSDAY, JiJNE 13, 2002, at 1:00 p.m. Edward E. Guido, J. Stephen D. Tiley, Esquire For Board of Assessment Appeals --Y m,~.~.ep-rA. 5, .1i-~~- :sld ~'iN~9ri"ih5N?~~~~' ~n by ~ o~y 1 ~ r psi <<~ ~°~~ ~~,~ ~, g ;.11~:'~:..I ~ ~ i JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM ANSWER TO THE HONORABLE. THE JUDGES OF SAID COURT: Respondent, Cumberland County Board of Assessment Appeals, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor, submits this Answer to the Petition for Review in the above captioned matter of which the following is a statement: Admitted. 2. Admitted in part. Denied in part. The averments of this paragraph are admitted except it is denied that Petitioner paid any of such taxes "under protest" as the information concerning whether or not a taxpayer pays taxes "under protest" is solely within the control of the taxpayer and the tax collectors and Respondent does not have sufficient information with which to form an opinion as to the accuracy of this averment. Admitted. 4. Denied. Respondent has insufficient information for which to form a belief as to the accuracy of the averment that Petitioner's Federal and State Income Tax returns show a net loss from professional sources for the year 2000. Respondent avers that if true the fact of such net loss for the year 2000 is irrelevant to the admhustration of the Pennsylvania Occupation Tax for the yeaz 2001 or any other year. Furthermore, the averments of this pazagraph set forth conclusions of law to which no responsive pleading is required. 5. Denied. The avernents of this paragraph are denied as they set forth conclusions of law to which no responsive pleading is required. 6. Denied. The averments of this pazagraph are denied as they set forth conclusions of law to which no responsive pleading is required. Denied. The averments of this paragraph are denied as they set forth conclusions of law to which no responsive pleading is required. 8. Denied. The averments of this pazagraph are denied as they set forth conclusions of law to which no responsive pleading is required. 9. Denied. The averments of this paragraph are denied as they set forth conclusions of law to which no responsive pleading is required. WHEREFORE, Respondent respectfully respects Your Honorable Court to deny Petitioner's appeal. Dated: ®v~ew ~S 7p®~ Respectfully submitted, By ~ ~~ St hen . TIley, Esquire Attorney for Cumberland County Board of Assessment Appeals and Cumberland County 5 South Hanover Street Carlisle, PA 17013 (717)2430-5838 Supreme Court I.D.#32318 VERIFICATION I verify that the statements made in the foregoing Answer are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attomeys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: /D/Z6~~/ Bonnie M. Mahoney U Chief Assessor r ___ < `~ < m -~ .- < ~ < _ , , r ` ~- ., - : ~: _. __ < i :. ~ rs, JOHN L. SWEE2:Y, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 NO.2001-5601 CIVIL TERM ORDER AND NOW, this ~~ ~ day of November, 2001, the hearing scheduled for Wednesday, November 21, 2001 at 1:00 p.m. is canceled and the matter is continued generally at the call of either party, upon representation by Stephen D. Tiley, Esquire, counsel for the Cumberland County Board of Assessment Appeals, that the parties are in settlement negotiations and that Petitioner John L. Sweezy, Esquire concurs with the general continuance of the case. cc: Stephen D. Tiley, Esquire ~ John L. Sweezy, Esquire ~' f/-~9.0~ ~' Edward E. Guido, J. ~IN't1{~uSNN~d ,.. .r ~(i'cr'~(1-~ ]--{ j~-j ~=S- r~ J~lr~ 0 3 X002 John L. Sweezy, Petitioner In the Court of Common Pleas of v Cumberland County, Pennsylvania Cumberland County Board of Appeal from Board Order of Assessment and Appeals, August 31, 2001 Respondent No. 2001 - 5601 Civil Term BRIEF OF PETITIONER RE MOTION TO COMPEL DISCOVERY TO THE HONORABLE, THE JUDGES OF SAID COURT: The Brief of Petitioner John L. Sweezy, respectfully represents: I. STATEMENT OF FACTS; HISTORY OF CASE This case arises from the imposition upon Petitioner by Lower Allen Township and West Shore School District, of Occupation tax pursuant to the Local Tax Enabling Act of 1965 as amended, 53 P.S. X6901 et seq. in the classification (cf. attached Exhibit A Cumberland County Assessment Schedule) of Attorney 700. Petitioner is a fully licensed Pennsylvania attorney with limited practice whose income from professional sources for the tax years 1999, 2000, and 2001 has shown a net loss. Petitioner has contended from the outset that the Occupation tax (although not an income tax) is fiscal in nature, and that absent evidence of net earnings in the taxed category, there is no lawful basis for the levy. Petitioner has contended further that because of its patent inequity as among and within classes of taxpayers, the Occupation tax -- if not on its face unconstitutional as lacking uniformity under Pa. Constitution Article III Section 10 -- then is an unconstitutional application by the Board which institutes and perpetuates widespread tax injustice. This difficulty is stated succinctly in 27 5umm..PaJur. 2d "Taxation" at 1715, quoted in part as follows: "The tv~ serious problems with the tax are its inequities and costs of administration. The inequities, based on ability to pay considerations, arise in several ways. First, since in a given jurisdiction all persons within an occupation are taxed at the same rate, regardless of the variations-that may exist in actual earnings, the criterion of vertical equity is violated." However, the Court need not decide constitutional issues in order to hold for Petitioner in this instance. It is, nevertheless, important to an understanding of the Motion for Discovery that Petitioner ha; urged a constitutional duty in the Board to establish a special occupational classification effectively exempHic~7 occupational taxpayers who are not retired but earn no net income from their classified occupations. It is apparently the Board's position in Petitioner's case that he must be taxed occupationally at some level simply because he is a licensed and qualified attorney. It should be noted that the controlling statute at 53 P.S.s6902 provides no relief for Petitioner since it exempts from occupation tax only those whose income from all sources is less than $5000 per annum. It should be further noted, however, that the Board ha; sought to provide a modicum of administrative relief by reclassifying certain taxpayers into "100 Part-Time Work" (1040 hours or less per year)(cf, Exhibit A), a category which assumes net yearly compensa- tion for up to 50 per cent of a normal half-year's work activity, but which is taxed in the lowest possible grade. Such ad hoc solutions are not only subjective in nature and rarely uniform in application, 2. but in Petitioner's case defy fiscal logic since Petitioner had no net professional earnings for the tax years in question. It seems obvious that matters of Board and Board-related policy and practice (such as establishing job classifications, providing special exemptions, and even the uncertainty of continued imposition of the tax by the School District), are fraught with ambiguities which make it difficult for Petitioner to intelligently assess his legal options, in the absence of information which discovery would provide. Finally, there are no procedural issues for the Court to consider such as timeliness of Petitioner's actions in paying and appealing the contested occupational taxes. The total occupational taxes paid by Petitioner for the tax years 2000, 2001 and 2002 to date are $205.80 for the Township and $891.80 for the School District. II. STATEMENT AND DISCUSSION OF ISSUES A. HAS PETITIONER ESTABLISHED A LEGAL BASIS FOR THE TRIAL COURT TO ALLOW DISCOVERY? B. ARE PETITIONER'S INTERROGATORIES PROPERLY ALLOWED IN THIS CASE? Discussion A. Has Petitioner Established a Legal Basis for the Trial Court to Allow Discovery? Petitioner has pointed in his Motion (par. 5 p. 2) to Appeal of Borough of Churchhill, 525 Pa. 80, 575 AZ 550 (1990) ss the source from which answers to the legal dilemmas involved in this casd may be found. Churchhill, and the line of subsequent ~~ which have followed to date, actually pose t~ somewhat contradictory principles: First: Rules of Civil Procedure as such may not be employed in statutory appeals. Secondly: Lower (trial) Courts have plenary power extending back to the earliest days of the Commonwealth to make their own rules for proper disposition of cases before them. Why has the Supreme Court not included statutory appeals among the twenty-six types of litigation which it lists in Churchhill as being within the ambit of the Rules of Civil Procedure? The simple answer is that the Supreme Court, being vested with exclusive power by Pa. Constitution Article V Section 10(c), has chosen in its wisdom not to do so. The only more specific clue is that given in Churchhill at Pa. 91, A2 555 -- that lower Courts can better judges how granting of procedural amenities will affect "the court calendar" and (presumably, but not stated) certain other local Court prerogatives. (It must be noted that the rule of Churchhill sprang from the relatively narrow issue of post-trial exceptions, which apparently the Supreme Court continues to approve if a lower Court has done so.) On the positive side, the plenary power of trial Courts to make rules for the disposition of cases before them still prevails, and this has been reiterated by the Commonwealth Court as recently as in Rutkowski v. CW Dept. of Transp., 780 A2 860 (Pa.Cmwlth.2001)- Both parties agree(MOtion and Answer pars. 6 and 7) that there i5 no precedential assistance in either Cumberland County Rules or in actual decided cases surveyed over a twenty-year span. Local discovery practice in other Pennsylvania local courts provides no insights, since it varies widely among jurisdictions, and in any event is not controlling in this Judicial District. In the absence of clear precedents, it appears the question of whether a legal basis for discovery exists in this case must be answered in the affirmative, for the reason that this Court has plenary power to apply broad principles of justice in cases before it, to afford judicial access by citizens to unprivileged information in matters of serious public concern. B. Are Petitioner's Interrogatories Properly Allowed in this Case While Rules of Civil Procedure as such may not be presently employed in assessment appeals, there is no case which holds that their general scheme or a simulacrum of them may not used by local Courts in providing discovery relief in appropriate cases. Their test of "discoverability" ("any-matter, not privileged, relevant to subiect matter") is not limited to the RCP but derives from a broad evidentiary principle of admissibility which may be invoked by this Court. The nature of things inquired into by Petitioner are clearly relevant to the subject matter. The Board's particular objection (Answer to Motion par. 8) that response by the Board would impose an administrative burden, is mat by giving Petitioner a reasonable opportunity to inspect and copy. Or this Court may simply ignore the RCP (so long as its proposed remedy "does not violate statewide rules"): The form and scope of discovery, if allowed, are within the Court's sole discretion. It may simply order Board responses or adopt some other method of direction, and it may limit the nature and/or number of items inquired into, under such terms and conditions as it sees fit. III. CONCLUSIONS A. The trial Court has the power to adopt and implement a discovery formula in this case, as part of its full authority to make rules for the proper disposition of cases before it. B. Sound public policy generally, and a particular concern for the rights of the appealing taxpayer, require responses to the fundamental tax questions involved. espectfully submitted, John L. Sweezy, Petitioner 125 Victoria Drive Mechanicsburg, Pa. 17055-3527 (717) 697-7003 ID 15506 Dated: June 3, 2002 6 ' ~ ._ ~ ~ ~~ p `i' a A ~~_ _ r~ ~ H ~ ~ ~ ~i ~, `off a; p ~ S ~ ~ ~ x Ux V ~ v ~ ~ F O vai ~ Xii .~ ~ '~ G ~ b ~' c 00 - d d ~ ¢ # ~ 3 0 -'~ Q ~' x' x ~`C~'. ~ ^CC ~v m u pgpg a"i o '6b ~ ~ ~ .o. 3Q~ ~~Xe' ~pp o o ~ ~ ~ 0 0 0 ,e `; p F. r~. A~VI VJ VI a~VJ 6i f-"E'F+ Gc~ Q6~4 W ~ W W C7 Ri L~ a m~?~ UUUwrn rn $$$°c$$°o$$c~$$ $ o,o°$$ $o°O$°o$go° °oSc~o° o$o°o$g ~`~ V1 v1 v1 V1 V1 ~/l V1 Y1 Vl h V1 h \p l~ h [~ h h h h l~ h r r r h r r ~-. 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(V tV N N N tC+t MM (~1 t~1~MMMM~000 00 OOOOOSOO ~a CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Brief of Petitiara're Motion to Compel Discovery upon the person indicated below by first class mail postage prepaid: Stephen D. Tiley, Solicitor Cumber]_and County Board of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17013 ~~ John L. Sweezy, A orney Petitioner Dated: June 3, 2002 Jt,R4 0 3 2002 John L. Sweezy, Petitioner In the Court of Common Pleas of Cumberland County, Pennsylvania v. Cumberland County Board of _ Appeal from Board Order of Assessment and Appeals, August 31, 2001 Respondent No. 2001 - 5601 Civil Term BRIEF OF PETITIONER RE MOTION TO COMPEL DISCOVERY TO THE HONORABLE, THE JUDGES OF SAID COURT: The Brief of Petitioner John L. Sweezy, respectfully represents: I. STATEMENT OF FACTS; HISTORY OF CASE This case arises from the imposition upon Petitioner by Lower Allen Township and West Shore School District, of Occupation tax pursuant to the Local Tax Enabling Act of 1965 as amended, 53 P.S. X6901 et seq. in the classification (cf. attached Exhibit A Cumberland County Assessment Schedule) of Attorney 700. Petitioner is a fully licensed Pennsylvania attorney with limited practice whose income from professional sources for the tax years 1999, 2000, and 2001 has shown a net loss. Petitioner has contended from the outset that the Occupation tax (although not an income tax) is fiscal in nature, and that absent evidence of net earnings in the taxed category, there is no lawful basis for the levy. Petitioner has contended further that because o£ its patent inequity as among and within classes of taxpayers, the Occupation tax -- if not on its face unconstitutional as lacking uniformity under Pa. Constitution Article III Section 10 ---then is an unconstitutional application by-the Board which institutes and perpetuates widespread tax injustice. This difficulty is stated succinctly in 27 Summ.PaJur. 2d "Taxation" at 1715, quoted in part as follows: "The ttoserious problems with the tax are its inequities and costs of administration. The inequities, based on ability to pay considerations, arise in several ways. First, since in a given jurisdiction all persons within an occupation are taxed at the same rate, regardless of the variations-that may exist in actual earnings, the criterion of vertical equity is violated." However, the Court need not decide constitutional issues in order to hold for Petitioner in this instance. It is, nevertheless, important to an understanding of the Motion for Discovery that Petitioner h~ urged a constitutional duty in the Board to establish a special occupational classification effectively exempttic~ occupational taxpayers who are not retired but earn no net income from their classified occupations. It is apparently the Board's position in Petitioner's case that he must be taxed occupationally at some level simply because he is a licensed and qualified attorney. It should be noted that the controlling statute at 53 P.S.~6902 provides no relief for Petitioner since it exempts from occupation tax only those whose income from all sources is less than $5000 per annum. It should be further noted, however, that the Board ha;_sought to provide a modicum of administrative relief by reclassifying certain taxpayers into "100 Part-Time Work" (1040 hours or less per year)(cf, Exhibit A), a category which assumes net yearly compensa- tion for up to 50 per cent of a normal half-year's work activity, but which is taxed in the lowest possible grade. Such ad hoc solutions are not only subjective in nature and rarely uniform in application, 2 but in Petitioner's case defy fiscal logic since Petitioner had no net professional earnings for the tax years in question. It seems obvious that matters of Board and Board-related palicy and practice (such as establishing job classifications, providing special exemptions, and even the uncertainty of continued imposition of the tax by the School District), are fraught with ambiguities which make it difficult for Petitioner to intelligently assess his legal options, in the absence of information which discovery would provide. Finally, there are no procedural issues for the Court to consider such as timeliness of Petitioner's actions in paying and appealing the contested occupational taxes. The total occupational taxes paid by Petitioner for the tax years 2000, 2001 and 2002 to date are $205.80 for the Township and $891.80 for the School District. 3 II. STATEMENT AND DISCUSSION OF ISSUES A. HAS PETITIONER ESTABLISHED A LEGAL BASIS FOR THE TRIAL COURT TO ALLOAT DISCOVERY? B. ARE PETITIONER'S INTERROGATORIES PROPERLY ALLOWED IN THIS CASE? Discussion A. Has Petitioner Established a Legal Basis for the Trial Court to Allow Discovery? Petitioner has pointed in his Motion (par. 5 p. 2) to Appeal of Borough of Churchhill, 5~5 Pa. 80, 575 AZ 550 (1990) ss the source from which answers to the legal dilemmas involved in this casd may be found. Churchhill, and the line of subsequent ~~ which have followed to date, actually pose ttio somewhat contradictory principles: First: Rules of Civil Procedure as such may not be employed in statutory appeals. Secondly: Lower (trial) Courts have plenary power extending back to the earliest days of the Commonwealth to make their own rules for proper disposition of cases before them. Why has the Supreme Court not included statutory appeals among the twenty-six types of litigation which it lists in Churchhill as being within the ambit of the Rules of Civil Procedure? The simple answer is that the Supreme Court, being vested with exclusive power by Pa. Constitution Article V Section 10(c), has chosen in its wisdom not to do so. The only more specific clue is that given in Churchhill at Pa. 91, AZ 555 -- that lower Courts can better judges how granting of procedural amenities will affect "the court calendar" and (presumably, but not stated) certain other local Court prerogatives. (It must be noted that the rule of Churchhill sprang from the relatively narrow issue of post-trial exceptions, which apparently the Supreme Court continues to approve if a lower Court has done so.) On the positive side, the plenary power of trial Courts to make rules for the disposition of cases before-them still prevails, and this has been reiterated by the Commonwealth Court as recently as in Rutkowski v. CW Dept. of Transp., 780 AZ 860 (Pa.Cmwlth.2001). Both parties agree (Motion and Answer pars. 6 and 7) that there is no precedential assistance in either Cumberland County Rules or in actual decided cases surveyed over a twenty-year span. Local discovery practice in other Pennsylvania local courts provides no insights, since it varies widely among jurisdictions, and in any event is not controlling in this Judicial District. In the absence of clear precedents, it appears the question of whether a legal basis for discovery exists in this case must be answered in the affirmative, for the reason that this Court has plenary power to apply broad principles of justice in cases before it, to afford judicial access by citizens to unprivileged information in matters of serious public concern. B. Are Petitioner's Interrogatories Properly Allowed in this Case While Rules of Civil Procedure as such may not be presently employed in assessment appeals, there is no case which holds that their general scheme or a simulacrum of them may not used by local Courts in providing discovery relief in appropriate cases. Their test of "discoverability" ("any matter, not privileged, relevant to subject matter") is not limited to the RCP but derives 5 from a broad evidentiary principle of admissibility which may be invoked by this Court. The nature of things inquired into by Petitioner are clearly relevant to the subject matter. The Board's particular objection (Answer to Motion par. 8) that response by the Board would impose an administrative burden, isms by giving Petitioner a reasonable opportunity to inspect and copy. Or this Court may simply ignore the RCP (so long as its proposed remedy "does not violate statewide rules"): The form and scope of discovery, if allowed, are within the Court's sole discretion. It may simply order Board responses or adopt some other method of direction, and it may limit the nature and/or number of items inquired into, under such terms and conditions as it Sees fit. III. CONCLUSIONS A. The trial Court has the power to adopt and implement a discovery formula in this case, as part of its full authority to make rules for the proper disposition of cases before it. B. Sound public policy generally, and a particular concern for the rights of the appealing taxpayer, require responses to the fundamental tax questions involved. Respectfully submitted, ~~ John L. Sweezy, titioner 125 Victoria Drive Mechanicsburg, Pa. 17055-3527 (717) 697-7003 ID 15506 Dated: June 3, 2002 6 • ~ s N w y c C U ~ .. •~ '~ o a ~ G @ @ C. U v ~ ~ a. ° ~ ~ a. . ~uS~~~~g pp u' .5m ~'~d°o RSrn•agY6u~> OUaO,~~~~ gg av~~v ,v"iv~r ~~ nHF F w ¢a", Q ¢~ f5wu~3wc7ac C a> a`vs oo pp p p 00000 S ~ 000 O0 ~ p p 0000 p 400000 b p O S 00 ~/1 V1 V1 V1 V1 h V1 ` ~~~ xN ~a> GOO~.f~vaico~FoH'~r P O 0 0 0 0 0 M M M M M M M O e °'~,~~~ ~~~~~~ d u ~~ o o ¢UC.xzH o$$o$o .. b x ~y O ~y' ~' N M d W ~ ao ~ ~ ~~~•~~ gC ,3 !>p ~ D. ~ U ~~ ~ m o~~aa~o3 p3 ~cd a~~¢cammw~UCU~~nAaw V ~ V OV R V' •OV v01 VOY VOi 10 O O O ~O ~ ~O vOY ~n ~ Y01 h vOi O O O z a ~ o ~~ v, 3 b '~ ~ o° ~ e ~ ~ ~ ~ A wa UU~g5~Za~vi3 oS Od00o8030 N N N N N N N N N N O {.N a ~g~~~ U w w ~ ~ '~ 4 ~~~0.1~~ ~UU ~QG OOO000S$80o000 M M M M M M M M M M M M M M x~ a~ y ~ ~ ~ ~i W ~ _ O~ q m ~' ~ 7 {~U 5~ q~ ~ G~G C ~'1~i C 7. V G eJ O> h ~ 4m4 ~ O~ O L O a ° O U UUam~n ,~ i 00000 ~W ~ooo'~o ~ O O O O FF ~~ A+ W J I v c# .y N y O C `v ~ ~~ a ~~ b ~ ;~ a x a~ y ~ ~ O v p v q ~ '~ ~ O O W i~ A ~ v q~ O O ~ ~ A ttl W W W cu G.T+~-, ~. ..1~ 0 0 0 0 0 0 p p O O 0 0 0 0 0 0 0 0 0 0 _ „ a •' 3 x ~ ° ~z 4 4 A C 'm ~ ~' nw~~.~oa~~,zr~ O S OS00+0000 M M M M M M M M M M ~j(~li~lT A ,~.~ CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Brief of Petitiag re Motion to Compel Discovery upon the person indicated below by first class mail postage prepaid: Stephen D. Tiley, Solicitor Cumberland County Bpard of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17013 -. John L. Sweezy, ttorney Petitioner Dated: June 3, 2002 a~ 4 APR 0 ~ 2002 John L, Sweezy, Petitioner In the Court of Common Pleas of v, Cumberland County, Pennsylvania Cumberland County Board of APPeal from Board Order of Assessment and Appeals, August 31, 2001 Respondent No. 2001 - 5601 Civil Term ,,yy~~ ORDER AND NOW, this ~ ( 'day of April, 2002, upon consideration of the appended Motion and upon application of John L. Sweezy, attorney, Petitioner, a rule is hereby granted upon Respondent Board to show cause why discovery should not be allowed and Board. compelled to respond to Petitioner's Written Interroga- tories~ under such procedures as the Court may prescribe. J . LfIIt./r~ ~ ~ . ~4. ~~ Vr ~l ,t1NC,~a;~ . _ r-_r 1-:T~... ' 1 John L. Sweazy, Petitioner v. Cumberland County Board of Assessment and Appeals. Respondent In the Court of Common Pleas of . Cumberland County, Pennsylvania Appeal from Board Order of August 31, 2001 No. 2001 - 5601 Civil Term MOTION FOR ISSUANCE OF RULE UPON RESPONDENT BOARD TO SHOW CAUSE WHY DISCOVERY SHOULD NOT BE ALLOWED AND BOARll COMPELLED TO RESPOND TO PETITIONER'S WRITTEN INTERROGATORIES AND NOW, April `2„ 2002, comes Petitioner John L. Sweezy, pro se and as an attorney, and moves this Honorable Court to issue a rule upcn Respondent Board to show cause why discovery should not be allowed, and Board compelled to respond to Written Interrogatories posed by Petitioner, and in support of said Motion states as follows: 1. This matter is before the Court pursuant to Petition for Review filed 9-26-01; Board's Answer filed 11-02-C1; Court Order by Judge Guido dated ).1-19-01 granting general continuance pending settlement negotiations, and subsequent exchanges between counsel of correspondence and proposed settlement conditions. 2. On February 16, 2002 Petitioner served upon Respondent's counsel Written Interrogatories analogous to RCP 4005, concerning issues relevant to the subject matter of the above appeal, and issues mooted between the parties during the course of the proceedings, including Board establishment of a special occupation tax category for cextain professionals, refunds of taxes paid and appealed, and interest on such refunds. (Cf. Interrogatories: Attachment A) 3. Assuming thirty days to be a reasonable time (and as specified on RCP 4005) for response to Interrogatories, such time has now elapsed, and Respondent's counsel has raised by letter dated 3-25-02 (Attachment B) the defense that Rules of Civil Procedure as such -. do not apply to tax assessment appeals and that discovery may be invoked only by special allowance of the trial Court. 4. Respondent Board has not replied to Petitioner's letter of March 6, 2002; Petitioner believes the present state of the record satisfies the requirement of C.C.R.P. 206-2(c). (Cf. Attachment C ) 5. The current law concerning use of discovery in tax assess- ment appeals in lower Courts is reflected in Appeal of Borough of Churchhill, 525 Pa. 80, 575 A2 550 (1990) at Pa. p.89 and A2~p. 554 and in a subsequent line of cases to the following effect: "Since the Pules of Civil Procedure are inapplicable to statutory appeals, rules of practice and procedure did not have to be enacted in strict compliance with the provisions of Rule 239. Rather, our trial courts have had the right to enact rules and publish these to cover practice in this area of the law: Where they have not enacted such rules, then each trial court has been vested with the full authority of the court to make rules of practice for the proper dis- position of cases before them, and that we have enforced these rules unless they violated the Constitution or laws of the Commonwealth or United States or our statewide rules." (See also Rutkowski v._CW Dept. of Trans., 780 A2 860, Pa. Cmwlth 2001, at A p. 862) 6. Petitioner has been unable to find in this Court's local rules any reference which addresses or provides guidance to the manner in which discovery is to be authorized and executed in tax appeal matters, nor has Petiticrrier's search of reported Cumberland. County cases 1983 to date disclosed any relevant holdings. 7. Since allowance of discovery in tax appeals is a question of law to be decided by the trial Court, Petitioner has concluded that proceeding by motion is fitting in this case. 8. Petitioner believes that access to matters adduced in the Interrogatories is essential to a fair and, just resolution of the appeal. - 2 - ,~~ WHEREFORE, Petitioner moves this Honorable Court to issue a rule upon Respondent Board to show cause why discovery should not be allowed and Board compelled to respond to Peti- tioner's Written Interrogatories, pursuant to such procedures as the Court deems appropriate. spectfully submitted, OHN L." SWE ZY, titioner 125 Victoria Drive Mechanicsburg, Pa. 17055-3527 (717) 697-7003 ID 15506 Dated: April 2 , 2002 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Mation for Rule to Show Cause upon the person indicated below by first class mail postage prepaid: Stephen D. Tiley, Solicitor Cumberland County Board of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17013 /~K/y John L. Sweezy ttorney Petitioner Dated: April 'z 2002 .:: John L.Sweezy, Petitioner v. Cumberland County Board of Assessment and Appeals, Respondent In the Court of Common Pleas pf Cumberland County, Pennsylvania ' Appeal from Board Order of ' August 31, 2001 No. 2001 - 5601 Civil Term INTERROGATORIES ADDRESSED TO RESPONDENT BOARD PURSUANT TO RCP 4005 Petitioner John L. Sweezy hereby serves the following interrogatories to be answered by the respondent Board and verified, within thirty (30) days from date of service. These interrogatories are continuing and any additional information which becomes knoon to respondent or respondent's counsel after answers are filed, shall be set forth in supple- mentary answers which are to be filed, without demand by petitioner, as soon as the additional information is known. Whenever the word. "Board" appears hereinafter, it shall be construed to mean not only respondent in its own right, but also respondent's agents, servants, employes or attorneys. JOHN L. SWEEZY, etitioner Post Office Box 224 Harrisburg, Pa. 17108-0224 (717) 697-7003 ID 15506 AT7f1C H M~hi"r' ~ GENERAL INFORMATION 1. State: a.Name and business address of the person responding to these interrogatories. b. Nature of employment, title and how long employed by Board. c. Whether person responding is responsible for: (1) Determination of content of Cumberland County Assessment Schedule and changes thereto. (2) Changes in occupation classification of individual taxpayers, including reclassification into category "100 Part Time Work". (3) Determination as to refunds to be paid to individual taxpayers, where tax was improperly assessed and collected. (4) Determination as to whether interest is to be paid on refundsand from what dates. (5) Determination of Board policy generally, concerning assessment and collection of occupation taxes. - 1 - 2. Is the Cumberland County Assessment Schedule currently used (hereinafter CCAS) based. (a) on a standard model employed by taxing districts generally, or (b) a construct devised for use in Cumberland County. 3. If (a) in 2. above, identify the source of the model and any substantial departures from it in the Cumberland County version. 4. If (b) in 2. above, descr'i}~ the manner in which statistical (economic) data used in establishing the rating categories for various occupations, was arrived at. 5. Is category "100 Part Time Work" in CCAS derived from a model or a construct by the Board. a. Are you familiar with the recent proposal to change petitioner's classification from "700 Attorney" to "100 Part Time Work". b. Has the Board at least preliminarily approved such proposal. 6. Given the disparity in the economic value (earnings) within taxpayers in the same occupational category, has the Board considered establishing an assessment scheme which more nearly reflects economic variations within a specific category. a. If yes, has it done so with respect to category "700 Attorney" or any other professional 700 designation. - 2 - 7. Given the disparity in the economic value (earnings) as amon numerical categories in the OCAS, what relief, if any, has the Board proposed or considered to relieve such inequity. 8. In situations where a taxpayer in a-::taxable category is shown to have no net occupational earnings during the tax year, has the Board proposed or considered establishing a non-taxable assessment.category reflecting that fact. a. If not, what legal or other impediment prohibits the Board from doing so. 9. With respect to professional occupations where a taxpayer with no occupational earnings is required to be licensed and meet other qualifications in order to maintain professional standing, has the Board proposed or considered establishing a non-taxable category reflecting that fact. a. If not, what prohibits the Board from doing so. 10. Given that "100 Part Time Work" contemplates earnings for up to 50~ of a normal half-year's work activity, what is the Board's rationale for assigning it a lower numerical category. 11. Is the "100 Part Time t4ork" categszy generally applied by the Board to reclassify for purposes of tax relief regardless of the category originally assigned. - 3 - 12. In the past five years how many occupational taxpayers in Cumberland County in categories 200 through 500 were reclassified to "100 Part Time Work". a. How many of these were taxpayers of Lower Allen Township and/or West Shore School District. 13. In the past five years how many occupational taxpayers in Cumberland County in categories 600 through 1000 were reclassified to "100 Part Time Work". a. How many of these were taxpayers of Lower Allen Township and/or West Shore School District. b. How many of these were in licensed professionalcategories. c. How many were reclassified from "700 Attorney" 14. In the past five years how many occupational taxpayers in Cumberland County have been granted refunds as the result of reclassification to lower numerical categories or to non-taxable (100) categories. 15. In the past five years how many taxpayers in Cumberland County have been paid interest on refunds where (a) amount of tax (not validity) was in question, and (b) validity of tax as assessed was at issue. a. If any, from what date (taxpayer's payment or thereafter) was interest paid. 16. Is the Board aware of any action or proposed action by west Shore School District to reinstate the occupation tax for future years notwithstanding the 2001 referendum result. Dated: February 16 , 2002 ~` John L. Sweezy etitioner - 4 - CERTIFICATE OF SERVICE I hereby certify that I am this day serving the original and two copies of the foregoing written interrogatories upon the person indicated below by first class mail postage prepaid: Stephen D. Tiley, Solicitor Cumberland County Board of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17013 /U. John L. Sweez , Petitioner Dated: February ~~ , 2002 . . FREY & Tt1.EY ATTORNEYS•AT LAW s souni wwoveR srn~7 cawsLE, FewNSnvauw 77ots ROBERT M. FREY OF COUNSEL STEPHEN D. TILEY ROBERT O.FAEY February 25, 2002 TELEPHONE (777) 243.5838 FACSIMILE (717) 243-8447 John L. Sweezy, Esquire P.O: Box 224 Harrisburg, PA 17108 Re: Occupation Assessment Appeal No. 2001-5601 Civi! Term Dear Mr. Sweezy: t am in receipt of your letter of February 16, 2002 and its enclosures. Please be advised that the Rules of Civil Procedure, including the rules concerning discovery, are not applicable to assessment appeals because it is a statutory appeal. See Appeal of the Borough of Churchill, 575 A2.d 550 (PA.1990). Cumberland County has not made the Rules of Civil Procedure applicable to assessment appeals and therefore discovery is at the discretion of the Court. I assume that you will either choose to petition the Court for discovery or settle this case as previously discussed. 1 understand that the only issue outstanding concerning settlement is your desire for interest on the refund. Sincerely ours, ~. ._. Stephen D. Tiley SDT/tl cc: Joanne D. Sommer, Esquire Steven P. Miner, Esquire Bonnie M. Mahoney, Chief Assessor ~T~'Ac at Nt E N'~ ~ ~~_. JOHN L. SWEEZY ATTpRNEV AT LAW vw r ovvice eox aae HARR~UR6. PA, t 7108 TetspnoNe to sar wo3 ~xs vicraat. owve Mtxw.wcssuaa~aa itoss March 6, 2002 Stephen D. Tiley, Escruire Frey & Tiley 5 south Hanover Street Carlisle, Pa. 17613 Re: Sohn L. Sweeny No. 2001 - 9601 Civil Term Dear Mr. Tiley: This wi12-.a'knowledge receipt of your letter of February 25, 2002. Assuming the Board does not modify its position it is my present intention to request the Court to decide that use of interrogatories under the aegis of RCP 4005 is appropriate in the present appeal, affording of course reasonable additional time for ::the Board to answer or ob3ect to the discovery being sought. Since a considerable exchange of correspondence has already taken place, I believe characterizing one issue as being paramount might only impede settlement at this time.. .. Very truly yours, N. John L. Sweeny JLS-:der ATTAC. N APt ~ 8JT" r: ~~ ~~ ~~~ , ~ ~ _ ., • ~ L I7 ~ ~ .~~ l' ~ .~~ Z`~) i i',_ ._ 7 ._ . ...._ ._ . .: 1_ ~ ~ _ 1! 1 1 _ ~- _.1 i, . J 7.t _U 7 . _. "~ rS _ .. . ,_ . JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT ~: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM ANSWER TO RULE TO SHOW CAUSE RE: DISCOVERY TO THE HONORABLE. THE JUDGES OF SAID COURT: Respondent, Cumberland County Board of Assessment Appeals, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor, submits this Answer to the Rule to Show Cause entered by Order dated April 8, 2002, and granted pursuant to Petitioner's "Motion for Issuance of Rule Upon Respondent Board to Show Cause Why Discovery Should Not be Allowed and Boazd Compelled to Respond to Petitioner's Written Intenrogatories" (the "Motion") filed in the above captioned matter, of which the following is a statement: 1. Admitted. (However, the Boazd's Answer was filed on October 26, 2001.) 2. Admitted in part. Denied in part. It is admitted that Petitioner attempted to serve interrogatories upon the Board, the remaining averments of this paragraph of the Motion are denied. It is denied that the Interrogatories concern issues relevant to the subject matter of the above appeal. The subject matter of the appeal is the occupation assessment of Petitioner and the proposed interrogatories involve issues far beyond the scope of the appeal. It is denied that there was ever consideration of establishing a "special occupation tax category for certain professionals" and indeed there could not be a settlement creating such a category as the occupation assessment categories are created by the Cumberland County Commissioners. The interrogatories address issues that came up in failed settlement negotiations, and as such are irrelevant to a resolution of the proceeding by the Court, and are wholly inappropriate. 3. Admitted. 4. Admitted in part. Denied in part. While it is admitted that Respondent Boazd has not replied to Petitioner's letter of Mazch 6, 2002, Respondent denies the inference that that letter in any way required, called for, or suggested that a response was needed or desirable. It is admitted that the record satisfies the requirements of C.C.R.P. 206-2(c). 5. Admitted. Answer to Rule to Show Cause Re: Discovery - Sweezy v. Board of Assessment Appeals Page 1 of 2 6. Admitted. Admitted. Denied. The averments of this paragraph are denied as they set forth conclusions of law to which no responsive pleading is required. Paragraph two (2) of this Answer is incorporated herein by reference thereto. Furthermore, the requested interrogatories are irrelevant and are the result of an apparent lack of understanding of occupation assessment law and practice, and even an apparent lack of understanding of the discussions and/or conespondence between Petitioner and Respondent's counsel since the appeal was first filed before the Board (which discussions are in any event irrelevant to a Court resolution of the original Petition). Some of the requested interrogatories would impose a large administrative burden on the Board and/or the assessment staff in analyzing and creating historical data, none of which would be relevant to this proceeding. In at least one instance, the requested interrogatories ask for information which is not within the knowledge of the Board nor the assessment office. Furthermore, the interrogatories are not sufficiently clear. For example, it is unclear if the requested information concerning "taxpayers" applies to all taxes, including real estate taxes, or just payors of the occupation taxes. WHEREFORE, Respondent respectfully respects Your Honorable Court to deny Petitioner's request for discovery. Dated: /~~/ ~~ ~:~~ ~ Respectfully submitted, ?J ' ~~ By Stephen D. Tiley, Esquire Attorney for Cumberland County Board of Assessment Appeals and Cumberland County 5 South Hanover Street Carlisle, PA 17013 (717) 2430-5838 Supreme Court I.D.#32318 ,.. Answer to Rule to Show Cause Re: Discovery - Sweezy v. Board of Assessment Appeals Page 2 of 2 ~~ i .t JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD pF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Answer to Rule Show Cause Re: Discovery upon the Petitioner by sending the same by first-class mail postage paid addressed as follow: John L. Sweezy, Esquire Petitioner P.O. Box 224 Harrisburg, Pa 17108 John L. Sweezy Petitioner 125 Victoria Drive Mechanicsburg, PA 17055 ~ ~~~ Step~D. Tiley, Esquire Frey & Tiley Attorney for Cumb. County Board of Assessment Appeals 5 S. Hanover Street Carlisle, PA 17013 717-243-5838 Dated: ~ ~!~ ~ ~aS~"- - L~ti.itMSxas~w.~~'rk~eEax~t.ax-x~.;..- ~.~ ~.~. _ _ _ , _ _ ._. ~ < i ~a SEP 2001 John L. Sweezy, Petitioner In the Court of Common Pleas of Cumberland County, Pennsylvania v. Appeal from Board Order of Cumberland County Board of August 31, 2001 Assessment and Appeals, ~„ „ Respondent No. d~- Jr~OU~ 0~ -~,'(J ORDER AND NOW, this Nay of a~o6 ~ , 2001, upon consideration of the foregoing Petition for Review of the order of the Cumberland County Board of Assessment and Appeals dated August 31, 2001, and upon application of John L. Sweezy, Petitioner, a hearing de novo is hereby granted to determine whether the said Board order shall be set aside and relief granted as sought in the Petition. Hearing set for(,~~~ ~ ~/~ ~ 2001, at~~ FPM. , in Gourtroom No.3 of the Courthouse in Carlisle, Pa. ~+ J. •t ~wf-~..~ E. G~.'era V 0 id 3' ~,... 1~~`,i'~ `-~ ;;; ~ John L. Sweezy, Petitioner In the Court of Common Pleas of Cumberland County, Pennsylvania v. Cumberland County Board of Appeal from Board Order of August 31, 2001 Assessment and Appeals, ~~~ ~ _ Respondent No. Q~ ,~,{;,(.J'`~~~ PETITION FOR REVIEW TO THE HONORABLE, THE JUDGES OF SAID COURT: Petitioner John L. Sweezy respectfully petitions the Court pursuant to the provisions of the Fourth to Eighth Class County Assessment Law, 72 P.S. X5453.704 (hereinafter FECI;AW) for review of the order of the Cumberland County Board of Assessment and Appeals (hereinafter Board) dated August 31, 2001, denying Petitioner's appeal from the Board's assessment for Occupation tax in the category of "700 Attorney", for reasons as follows: 1. Petitioner John L. Sweezy is a resident of 125 Victoria Drive, Lower Allen Township (Mechanicsburg), Cumberland County, Pennsylvania, and is an attorney licensed to practice law pursuant to rules of the Pa. Supreme Court. 2. Lower Al1en.Township and West Shore School District have levied Occupation taxes on Petitioner under Board's schedule of assessments in the category of "700 Attorney" for the tax years 2000 and 2001, and 2000-01 and 2001-02, respectively; and Petitioner has filed timely .appeals with the Board and has paid all Occupation taxes thus levied "Under Protest" in the total amount of $1029.00. 3. On August 31, 2001 the Board held a hearing on Petitioner's appeal at which Petitioner presented evidence substantially the same as is contained in the within Petition; and on August 31, 2001 the Board issued an order denying Petitioner's appeal and request for change in Occupation assessment (Cf. Exhibit 1 attached). 4. Economic return to the pract'ttffi~r is an essential ingredient in the value of an Occupation tax assessed under the Local Tax Enabling Act, 53 P.S. X6901 et seq. (hereinafter LTEA); Petitioner's federal and state income tax returns show a net loss from professional sources for the year 2000. 5. Occupation taxes as ~sessed under LTEA and FECLAW are un- constitutional on their face in that they patently violate Article III Section 1 of the Pa. Constitution requiring all taxes to be uniform upon the same class of taxpayers; a wide disparity of economic return exists both among and within classes of taxpayers taxable under controlling law. 6. The Board has the power and duty under FECLAW to value and assess "all professions, trades and occupations..." 72 P.S. ~5453.201(b); the Board has unconstitutionally applied the law by failing to establish a category of assessment providing tax uniformity for the class of taxpayers whose occupations now assessed in high brackets do not yield a commensurate economic return. 7. LTEA exemption provisions at 53 P.S. s6902 are inadequate in that they authorize relief only for taxpayers whose income from all sources is less than $5000 per annum; informal exemptions granted by some taxing districts on an individual basis are subjective in nature and inherently lack uniformity. - 2 - 8. Occupation tax laws as presently enacted and applied unjustly punish certain legal professionals and their pro Bono clients, since only fully-accredited, and thus Occupation-taxable, attorneys may provide free legal service. 9. Act No. 24 of 2001 providing for possible elimination of Occupation taxes by referendum does not rectify current abuses nor ensure future tax uniformity, because its application is pros- pective only, and uncertain of approval by a majority of the tax- paying electorate. WHEREFORE, Petitioner respectfully requests that the Court set this matter down for a de novo hearing pursuant to 72 P.S. x5453.704, to determine whether Petitioner shall be granted relief, to include establishing through Court order and/or through remand to the Board a separate Occupation tax category exempting from future Occupation tax assessment Petitioner and others in his class of high-bracketed/low job-related income taxpayers; allowing refund to Petitioner under FECLAW or 72 P.S.x5566b of Occupation tax payments previously made to Lower Allen Township and West Shore School District; setting aside the Board's order of August 31, 2001; and such other relief as the Court may deem appropriate. e ecl submitted, JOHN L. SWEEZY 125 Victoria Drive Mechanicsburg, Pa. 17055-3527 Exhibit 1 Petitioner Attachment - Board Order ID 15506 of August 31,2001 Dated: Septembers , 2001 GAY O. McGEARY DIRECTOR OF FINANCE f~um6erCaub ~Couutp ,giuauce & ~ggeggmeut ®ffice ONE COURTHOUSE SOUARE, CARLISLE, PA 17013 TELEPHONE (717) 240-6350 August 81, 2001 John L. Sweezy 125 Victoria Drive Mechanicsburg, PA 17055-3527 Re: Occupation Assessment Appeal Dear Mr. Sweezy: RANDY L. WAGGONER CHIEF ASSESSOR STEPHEN D. TILEY ASSISTANT SOLICITOR As a result of the recently concluded appeal hearings, the Board of Assessment has issued the following order: No change to current assessment of 700, Attorney Any person aggrieved by the order of the Board of Assessment may appeal to the Court of Common Pleas by filing a petition in the Prothonotary's office on or before September 29, 2001. Sincerely, ~~ ~~ Gay O. McGeary Director of Finance ~~h~i~~v VERIFICATION I verify that the statements made in the foregoing Petition for Review are true and correct. I understand that false state- ments herein are made subject to the penalties of 18 Pa.C.S. X4904 relating to unsworn falsification to authorities. JOHN L. SWEEZY etitioner Dated: September ~ , 2001 - ., ~..,w~~-. ^,. CERTIFICATE OF SERVI I hereby certify that I am this day serving the foregoing Petition for Review upon the persons indicated below by first class mail postage prepaid: Stephen D. Tiley, Solicitor Cumberland County Board of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17013 Honorable Mike Fisher Attorney General of Pennsylvania c/o Secretary 16th Floor Strawberry Square Harrisburg, Pa. 17120 (~ JOHN L. SWEEZY etitioner Dated: September ~ , 2001 .~ ~~~ -~ ~~ s -~ ~ ~, __ ~_ _ .. _ - ~ ~~ ,n ~. F ... ; u -~f .J r C. ~.. y ` _: i .i - ~ y y`l fJD -.~ JOHN L. SWEEZY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant 01-5601 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of June, 2002, after argument, the Court feels it is in the interest of justice to allow petitioner limited discovery. The Respondent Board is directed to answer and/or object to the interrogatories attached to petitioner's motion within 30 days of today's date. The parties are then directed to try to resolve any objections between themselves. If a satisfactory resolution cannot be reached, the matter may be submitted to the Court. We will then set a briefing schedule and argument in connection with the unresolved objections. By the Edward E John L. Sweezy, Esquire For Petitioner Stephen D. Tiley, Esquire For the Respondent 1 do, J. It `a`Tdtbil;;SP~h~?d rte rino;, ~_ : ,~~,-r~ ~n~ 7~..~:~.. i..i-L.. i!~~ F'C C.-~ .~ ,:~... ~ _.~u JOHN L. SWEE2:Y, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM RESPONDENT'S ANSWERS & OBJECTIONS TO INTERROGATORIES AND NOW comes Respondent, by its attorney, Stephen D. Tiley, Assistant Cumberland County Solicitor, and makes the following Answers and Objections to Petitioner's Interrogatories. Respectfully Submitted, Dated: ~~~ i2, °2~°z gy ~, ~ - ~ `°`~ S ephen D. Tiley, Esquire Attorney for Cumberland County Board of Assessment Appeals and Cumberland County 5 South Hanover Street Carlisle, PA 17013 (717) 2430-5838 Supreme Court I.D.#32318 ~_ ~-~ ~* . JOHN L. SWEEZY, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. . CUMBERLAND COUNTY BOARD : APPEAL FROM BOARD ORDER OF OF ASSESSMENT APPEALS, AUGUST 31, 2001 RESPONDENT : N0.2001-5601 CIVIL TERM ANSWERS & OBJECTIONS TO INTERROGATORIES' 1a. Bonnie M. Mahoney 1 Courthouse Square Carlisle, Pennsylvania 17013 1b. Chief Assessor since September 10, 2001 Assessor since October 1, 1984 1c(1). No. 1c(2). Objection. The Objection to Interrogatory 5 is incorporated herein by reference thereto. Partial Answer. Changes and reclassifications are made by staff in the occupational assessment office, which operates under the Chief Assessor. 1c(3). No. Refund amounts to be paid are determined and made by the taxing bodies and tax collectors. The Assessment Office only determines assessments. 1 c(4). No. 1c(5). No. ' Because the space provided for answers to the Interrogatories was insufficient for some of the answers and objections, Respondent provides answers or objections to all of the Interrogatories in this one document as it may be more convenient for all such responses to be in one place. Answers and Objecfions to Interrogatories - Sweezy vs. Bd. of Assessment Appeals Page 1 of 7 2(a). I am unaware of any model like that of Cumberland County in existence in the immediately surrounding counties. 2(b). The Assessment office has no knowledge of when or how the current Cumberland County occupation assessment schedule was adopted. 3. Not Applicable. 4. Unknown. 5. Objection. This interrogatory, and its subparts, is objected to as in violation of Pa.R.C.P. 4003.1 and 4011(a) in that it seeks information that would be inadmissible at trial and is not reasonably calculated to lead to the discovery of admissible evidence.2 The category "100 Part Time Work" is totally irrelevant to this appeal of the taxpayer's "Attorney 700" classification. As Petitioner admitted to the Court during oral argument on June 13, 2002, the category "100 Part Time Work" was only raised as part of a settlement offer by Respondent. Pa. R.E. 408 provides, inter alia, that: "Evidence of conduct or statements made in compromise negotiations is likewise not admissible." Petitioner's placement of settlement negotiations before the Court is wholly inappropriate, and interrogatories in aid of that effort are "sought in bad faith" pursuant to Pa.R.C.P. 4011(a). The gravemen of Petitioner's appeal is that he is inappropriately assessed as an Attorney, or that the entire Occupation Assessment scheme in Pennsylvania is unconstitutional, because it does not take into consideration the "economic return"3 of the Petitioner/taxpayer. The Petitioner evidently chooses to only provide pro bono legal services, and therefore evidently has no "net income" (emphasis added) from his law practice.' Although interrogatories concerning the "Attorney 700" classification may be somewhat relevant to the appeal since it relates to attorneys, whether or not ' References are made to the Rules of Civil Procedure as instructive, but not binding upon the Court. See Appeal of the Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990). ' See Petitian for Review filed in this case, paragraphs 4, 5 & 6. ° Quote is from second full paragraph of Brief of Petitioner Re Motion To Compel Discovery. See also Petition for Review filed in this case, paragraph 8. Reference is also made to Petitioner's statements during oral argument on June 13, 2002. Answers and Objections to Interrogatodes - Sweezy vs. Bd. of Assessment Appeals Page 2 of 7 they have income due to limiting their practice to pro bono work, no other assessment classification is at all relevant. In the Brief of Petitioner Re Motion To Compel Discovery, Petitioner described his appeal as follows: "Petitioner has contended from the outset that the Occupation tax (although not an income tax) is fiscal in nature, and that absent evidence of net earnings in the taxed category, there is no lawful basis for the levy. Petitioner has contended further that because of its patent inequity as among and within classes of taxpayers, the Occupation tax -- if not on its face unconstitutional as lacking uniformity under Pa. Constitution Article III Section 10 --- then is an unconstitutional aoolication by the Board which institutes and perpetuates widespread tax injustice." [Brief of Petitioner Re Motion To Compel Discovery, page 1. Emphasis supplied.] .. Petitioner has urged a constitutional duty in the Board to establish a special occupational classification effectively exempting occupational taxpayers who are not retired but earn no net income from their classified occupations." [Brief of Petitioner Re Motion To Compel Discovery, page 2.] Even if the category "100 Part Time Work" was not being raised solely because of settlement negotiations, nothing in Petitioner's contentions has any relevance to category "100 Part Time Work", or to any reclassification of individuals to that category. Other than being raised solely because of settlement negotiations, information regarding category "100 Part Time Work" is no more relevant than information regarding any other category. Partial Answer. Irrespective of the objectionable nature of interrogatories concerning the "100 Part Time Work" category, Respondent answers that there is no Board policy, procedure or history of offering 100 Part Time Work as an alternative classification for attorneys nor any other class of taxpayer. Petitioner was offered this classification only after an appeal was filed to court and because he described himself as semiretired and it was felt that if Petitioner in fact worked less than the 1040 hours (the limit provided for the part-time category) that this would be both an appropriate category for him and an appropriate settlement. To the knowledge of the Assessment office and the assistant County Solicitor this is the only instance in which the "100 Part Time Work" category has been offered to an attorney, and its offer is limited to the facts of this case. Answers and Objections to Interrogatories - Sweezy vs. Bd. of Assessment Appeals Page 3 of 7 6. Objection. This interrogatory, and its subpart, is objected to as in violation of Pa. R.C. P. 4003.1 and 4011(c) in that it seeks information that would be inadmissible at trial and is not reasonably calculated to lead to the discovery of admissible evidence. Economic disparity within job categories is irrelevant to the occupation assessment scheme. Even if the Board had made such considerations, they would not be relevant to the question of whether or not the present Cumberland County job classification system is constitutional. The question is over broad as there is no timeframe for such considerations and therefore the interrogatory is objected to as in violation of Pa. R.C.P. 4011(b) & (e). The county has no readily available history of Board hearings and the question could conceivably involve a review of Commissioners' minutes back into 1800's when, at least, the occupation assessment scheme was first implemented. Partial Answer. Irrespective of the objectionable nature of this interrogatory, if the question is limited to the present Board of Assessment Appeals for Hearings and the present Commissioners Board of Assessment Appeals, the answer is: No. Further Partial Answer: Irrespective of the objectionable nature of this interrogatory, the Assessment Office understands that some years ago the Commissioner's Office searched for historical records concerning the longstanding assessment schedule but found nothing. 7. Objection. The objection to Interrogatory 6 is incorporated herein by reference thereto. Partial Answer. Irrespective of the objectionable nature of this interrogatory, some years ago, say about 10, a "blue ribbon panel" was appointed by the Cumberland County Commissioners to consider changes to the assessment category schedule. Ultimately that panel did not recommend any changes to the category schedule. Answers and Objections to Interrogatories - Sweezy vs. Bd. of Assessment Appeals Page 4 of 7 8. The Objection, and Partial Answer, to Interrogatory 6 is incorporated herein by reference thereto. 8a. The Objection to Interrogatories 5 & 6 are incorporated herein by reference thereto. Byway of further objection, the Interrogatory calls for the creation of a legal opinion, which is not a proper subject for discovery. 9. The Objection, and Partial Answer, to Interrogatory 6 is incorporated herein by reference thereto. 9a. The Objection to Interrogatory 8a is incorporated herein by reference thereto. 10. The Objections, and Answers or Partial Answers, to Interrogatories 2, 4 & 5 are incorporated herein by reference thereto. Partial Answer. Irrespective of the objectionable nature of this interrogatory, although the undersigned does not have specific knowledge regarding the adoption of the present occupation assessment category schedule, which has been in use for more than 20 years, Respondent would be willing to assume and therefore stipulate that perceptions earnings potential was a factor in establishing all of the occupation assessment categories, including the 100 Part Time Work" category. 11. The Objection, and Partial Answer, to Interrogatory 5 is incorporated herein by reference thereto. 12 & 12a. The Objection, and Partial Answer, to Interrogatory 5 is incorporated herein by reference thereto. The question is in violation of Pa.R.C.P. 4011(b) & (e) as it would involve a significant amount of administrative time and effort for no relevant end. The are, presumably, a number of individuals who left full time work for part time work and had their occupation assessment changed. Whatever that number is, it is wholly irrelevant to this preceding. Answers and Objections to Interrogatories - Sweezy vs. Bd. of Assessment Appeals Page 5 of 7 13, 13a, 13b, 13c. The Objection to Interrogatories 12 & 12a is incorporated herein by reference thereto. 14. The Objection to Interrogatories 12 & 12a is incorporated herein by reference thereto. There are presumably quite a number of individuals who were successful in having their job classification changed because they were assessed at one classification, but were able to show that they property fit into a lower classification. However, whatever that number is, it is wholly irrelevant to this preceding. By way of further objection, the 100 categories are not nontaxable, but rather are taxable at the rate of 100. 15 & 15a. The Objection, and Partial Answer, to Interrogatory 5 is incorporated herein by reference thereto. In addition, the question is in violation of Pa.R.C.P. 4011(b) & (e) as it would involve a significant amount of administrative time and effort for no relevant end. Respondent firmly objects to the raising of Interrogatories concerning the issue of interest on refunds as Respondent believes that Petitioner only raises it as a result of failed settlement negotiations. The issue of interest on refunds, if it is before the Court at all, is a legal issue for resolution by the Court and concerning which the prior practices of the County would be irrelevant. The Interrogatory is also over broad as it references "taxpayers," which would include payers of real estate taxes who were later deemed entitled to a refund. The Interrogatory concerns issues outside of the knowledge of the County as the County does not impose an occupation tax and therefore would not pay any refunds, nor, therefore, pay any interest on any refunds. Only certain municipalities and school districts impose such a tax. The County only fixes the Assessment. Partial Answer. Irrespective of the objectionable nature of interrogatory, to the best of the recollection and knowledge of the undersigned, no Cumberland County taxing body has ever paid interest on a refund of occupation or real estate taxes. 16. Objection. This interrogatory, and its subparts, is objected to as in Answers and Objections to Interrogatories - Sweezy vs. Bd. of Assessment Appeals Page 6 of 7 violation ofi Pa.R.C.P. 4003.1 and 4011(c) in that it seeks information that would be inadmissible at trial and is not reasonably calculated to lead to the discovery of admissible evidence. The Objection to Interrogatory 5 is incorporated herein by reference thereto, insofar as it discusses the subject matter of Petitioner's appeal. Whether or not West Shore School District would choose to impose an occupation assessment is irrelevant to the question of whether or not the Petitioner's assessment is proper, or constitutional. Respondent so Answers and Objects to Petitioner's Interrogatories. Regarding Objections, Dated: ~/~ l~ 022902 By _ e~~d l/ Steph n D. Tiley, Esquire Attorney for Cumberland County Board of Assessment Appeals and Cumberland County 5 South Hanover Street Carlisle, PA 17013 (717) 2430-5838 Supreme Court I.D.#32318 VERIFICATION REGARDING ANSWERS I verify that the statements made in the foregoing Answers (and Partial Answers) to Interrogatories are true and correct, partially upon personal knowledge and partially upon my knowledge, information and belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attorneys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: l~ ~~,p~_ ~~2&~t~~ov~-c~~. -~- C I Bonnie M. Mahoney 0 Chief Assessor Answers and Objections to Interrogatories - Sweezy vs. Bd. of Assessment Appeals Page 7 of 7 JOHN L. SWEEZY, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND COUNTY BOARD APPEAL FROM BOARD ORDER OF OF ASSESSMENT APPEALS, AUGUST 31, 2001 RESPONDENT N0.2001-5601 CIVIL. TERM CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Answers and Objections to Petitioner's Interrogatories upon the Petitioner by sending the same by first-class mail postage paid addressed as follow: John L. Sweezy, Esquire Petitioner P.O. Box 224 Harrisburg, Pa 17108 John L. Sweezy Petitioner 125 Victoria Drive Mechanicsburg, PA 17055 SYephe D. Tiley, Esquire Frey & Tiley Attorney for Cumb. County Board of Assessment Appeals 5 S. Hanover Street Carlisle, PA 17013 717-243-5838 Dated: ~~~ylrLfj- A'xr ozO~~ __ ,_ ~~ ~w dw8.~.vr.~i. „mr ,~.sa~cu~ n ~l C. <' •'v -; 7 1 fT1 r~ lil - 7 .A~ ~ ... ?~ l .. Ll L_ i~~ _?'~ *''C7 r .C-a =~ A c ~ ~m ~ ~~ _ il ~ ,f JOHN L. SWEEZY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND COUNTY N0.2001-5601 CIVIL BOARD OF ASSESSMENT APPEALS ORDER OF COURT AND NOW, this 31sT day of JULY, 2002, Plaintiff is strongly admonished not to copy this Court with his correspondence to opposing counsel. Any communication with the Court shall be by Petition or as otherwise authorized by the Rules. Plaintiff's letter to Attorney Tiley dated, July 25, 2002, has not been considered by the Court. Byt o Edward E. Guido, J. John L. Sweezy, Esquire P.O. Box 224 Hamsburg, Pa. 17108 Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, Pa. 17013 ,~; in-~-d P-b~-o~ :sld _ _ ~~ 0 { H4P~d,"~JLS~1!V~d„v ~~v :~, GF;~ k ~ ~nr ~~~ Li JI ;~µl ;'~._i. __~~_~• •t JOHN L. SWEEZY ATTORNEY AT LAW JUG Z 9 2002 POST OFFICE BOX 220 HgRR15BUR0, PA, 17106 TELEPHONE 111 8 81 10 03 t28 VICTORIA DRIVE MECHANIC8BUR0. PA. 110% July 25, 2002 Stephen D, Tiley, Esquire Frey & Tiley 5 South Hanover Street Re: ,Sweeny v. Board of Assessment Carlisle, Pa. 17013 No. 2001-5601 Civil Term Dear Mr, Tiley: This letter is being written pursuant to Judge Guido's direction in his order of June 13, 2002 and remarks at argument, that the parties should initially attempt to ress~lve between themselves any differences. as to Petitioner's ~^lritten Interroga- tories and the Board's responses thereto, Generally, the Board's factual answers are so minimally- reaponsive that they provide few insights as to how the Board administers the occupation tax program in terms of reliance upon the program's rationale, contents and origins, This is to be contrasted with the Board's own more expansive view of its occupa- tion tax mission as set forth forth in Cumb.Co.Diselosure State- ment 2-26-99: "Cumberland County, through its Assessment Office, esta.4lishes occupation tax assessments..."; and in the Board's d'etailxng in Cumb:Co.Occ,Tax Rules &'Rec~.6-3-93 of the statutory sections undergirding ias powers in this area. The Board's objections are mainly on grounds of relevance, with particular objections varying with the nature of the information sought. However, the true test to be applied-here is "relevance to the subject matter of the gending action" (RCP 4003.1(a). The subject matter in this case is the whole ambit o`_ occupation tax procedure, from establishment of assessment schedules and individual assessments, through Board action in-changing individual assessments and possible creation of new categories, to final dis- position of appeals. By this criterion, little of Petitioner's discovery is properly excludable as irrelevant,-and much of it, such. as the Assessment Schedule and its components, has been in the record. from the outset. Certainly nothing in the Interrogatories is so irrelevant as to warrant the ixlplication of "bad faith" as suggested by the Board's responses. Furthermore, in discovery matters "the seeking party does not to justiFy-complefi.e relevance in advance" and Rthe objecting has the burden ofestablishing the right to refuse discovery." _ _ .. akd~ Pa' P~act3~ee;='2d~ 34:1.8 ~br~d 84~.~~9. r ~-; t Stephen D. Tiley, Esquire July 25, 2002 Also of doubtful merit is the Board's reliance upon principles enunciated in Pa. Rules of Evidence, since information- seeking through discovery is preliminary in nature and "the rules should be liberally construed" (Ibid. 34:3}, while acceptance at trial is an actual admission for probative purposes. More particukarly_, the Board's attempt to disqualify discovery re "100 Part Time Work" by citing Pa. Rule of Evidence 408 is also not persuasive, since the Assessment Schedule and its categories ~' are integral to the occupation tax process, and Rule 408 expressly provides: "this rule does not require the exclusion of an admission of fact because it is submitted in the course of compromise negotiations." Moreover, the Board's objection in response 8.a that the Interrogatory "calls for the creation of a legal opinion" runs completely counter to the manifest purpose ~ RCP 4003.1 in revoking prior prohibitions upon opinion discovery, and is not validated by any other Rule pertaining to discovery of opinion material. This transmittal is not intended to ad~.ress exhaustively each of the Board's responses, but to demonstrate that material sought is generally discoverable under the law and applicable rules. 9bjection that response to to certain Interrogatories would require an "unreasonahle investigation" contrary to Rule 4001(e} is met by the expedient of making records available for inspection. Reference in Inter.cogatory 14 to "non-taxable (1(10) Categories" is a typo and was intended to read "non-taxable (000) categories." Interrogatory 16 is surplusage, in that it h~ been overtaken by events. In summary, matters of Board are replete with quest for relief The Board's resp concerns: as asserted in Petitioner's recent Brief, and Board-related policy re the occupation tax uncertainties which frustrate Petitioner's and which discovery is intended to help remedy. ~nses have thrown little light on two main First, the extent to which the Board has employed the 100 Part Time Work category -- despite its disclaimer in Objection 6 that "Economic disparity within job categor- ies is irrelevant to the occupation ta.x scheme" -- to mitigate obvious cases of injustice in situations other than those (which the Board speculates in response l2 but does not clearly state)-which involve taxpayers merely changing from full-time to part-time employment. The Board offers only in response 5 that this is the sole case this category°.~has been offered to "an attorney." Page Two ~' Stephen D. Tiley, Esquire July 25, 2002 Secondly, and more pertinent to Petitioner's case, why -- in the face of obvious public discontent and informed condemnation of the occupation tax system -- the Board has not seen fit to create a non-taxable category or categories exempting those who can demonstrate absence of net earnings from the occupation assessed, whether or not licensed in that occupation. To accomplish this the Board can act on its own, without legislative or judicial assistance. Finally, the Board's moving positively upon this latter concern would do much to alleviate inequities in the system, and to assist in prompt resolution of the present appeal. Very truly yours, ohn L. weez y 3LS:dar co: Honorable Edward E. Guido PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next Argunent Court. CAPTION OF CASE (entire caption must be stated in full) John L. Sweezy, Petitioner In the Court of Common Pleas of Cumberland County, Pennsylvania Appeal from Board Order bf August 31, 2001 ~~~~~X V5. (Petitioner) Cumberland County Board of Assessment and Appeals, Respondent ~~R ~ (Respondent) No. 5601 Civil Term X2001 1. State matter to be argued (i.e., plaintiff's motion for nEw trial., defendant's demurer to complaint, etc.): Petitioner's Motion for Summary Judgment (filed December 9, 2002) 2. identify counsel wl'ro will argue case: (8) f~ t ~ n John L. Sweezy, Esquire ~~s; 125 Victoria. Drive Mechanicsburg, Pa. 17055-3527 RespndeANn¢: Stephen D. Tiley, Esquire {b) fos Ads; 5 South Hanover Street Carlisle, Pa. 17013 (Soldcitor'for Board) 3. I w5.11 notify aLl parties in writing within two days that this case has been Listed for argument. 4. Argunent Court Date: February 12, 2003 N~ Attorney for ~- ..,...~..~. January 7, 2003 ~ Ca C7 - C- ~ .~ . _a -vv ` - m r- ,.._. ^ _ ~ :~'~- t - i':~ Z c,~. _` G3 ._ G ~- - i y ` ij '' G. t- 1 efl -< ~~ JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM RESPONSE TO MOTION BY PETTTIONER FOR SUMMARY .TUDGMENT AND NOW, comes the Cumberland County Board of Assessment Appeals, and files this response to the Motion by Petitioner for Summary Judgment dated December 9, 2002: Admitted. 2. Admitted in part. Denied in part. It is admitted that the record includes the pleadings and the affidavit filed by the Petitioner, but the record does not include other items listed by Petitioner at pazagraph two, such as his brief, or the text reference and Hearing Memorandum set forth as Exhibits "A" and "D" of Petitioner's December 9, 2002 Affidavit. 3. Admitted in part. Denied in part. It is admitted that no genuine issue of material fact exists, however, the facts are not as stated by Petitioner and the record does not establish the facts as listed by Petitioner, specifically, Respondent responds as follows: (a) Admitted. It is Denied that the fact that Petitioner has a "limited practice" is relevant. Petitioner has previously maintained that he has no "net income" and Respondent believes, and therefore avers, that the fact that Petitioner has some income from his law practice is a part of the record. (b) Admitted in part. Denied in part. The averments of this paragraph aze admitted except that Respondent does not have independent knowledge of the amounts of tax, which are irrelevant to the disposition of the matter. (c) Admitted. While Respondent has no independent knowledge as to the payment of the occupation taxes, respondent is willing to admit the same and that Petitioner timely filed appeals. (d) Admitted in part. Denied in part. Paragraph 6 of Respondent's Answer & Objections to Interrogatories does not discuss the blue ribbon panel which considered the occupation tax about a decade ago. That matter is discussed Response to Motion by Petdtioner for Summary Judgmend Page 1 of 3 at prargraph 7 of Respomdent's Answers & Objections. Nevertheless, the averred fact of sub-paragraph "d" is admitted except that the blue ribbon panel declined to "recommend" changes. The blue ribbon panel would not have the power to "make" changes to the occupation assessment schedule. After consideration of various alternatives, the blue ribbon panel could not decide on another schedule which was superior to the one in existence at that time, and continuing to today. It is admitted that the schedule has not been changed for at least two decades. Respondent maintains that there is no relevance to this action to the fact that no changes have been made to the assessment schedule in over 20 years. (e) Admitted in part. Denied in Part. Upon appeal by a taxpayer, the Cumberland County Board of Assessment Appeals has the power to establish and change individual occupation classifications and has done so with respect, probably, to every single classification in the course of individual appeals where an applicant has proved that they should have properly been classified differently. It is denied that the power to establish and change classifications is relevant at all to this appeal, nor is the specific reference to the "100 Part Time Workers" classification relevant to this appeal. (f) Admitted. It is admitted that the occupation taxis fiscal in nature in that it raises money for the taxing bodies. It is also admitted that the perception of earnings potential was a factor in establishing all occupation assessment categories. (g) Denied. The text reference included as Exhibit "A" to the affidavit of Petitioner does not establish any facts but merely establishes an opinion of the authors of the text. In addition, the text reference states that "inequities" exist but it does not state that "gross inequities" exist as set forth in this sub-paragraph 3(g) of Petitioner's motion. The reference also does not speak at all "to Petitioner in particular" (as set forth in this sub-paragraph 3(g)) as the text reference speaks only generally. While Respondent will admit that some inequities do exist in the occupation tax, Respondent denies any implied conclusion of law from that fact. (h) Admitted. Notwithstanding the fact that it would be the Cumberland County Commissioners and not the Respondent, Cumberland County Board of Assessment Appeals, which would make any changes to the assessment schedule. (i) Denied. This sub-paragraph sets forth conclusions of law as a fact established by the record. It is further noted again that the Pennsylvania Rules of Civil Procedure are not applicable to this appeal as this is a statutory appeal. Response to Motion by Petitioner for Summary Judgment Page 2 of 3 4. Admitted. WHEREFORE, Respondent prays Your Honorable Court to deny Petitioner's Motion for Summary Judgment and to dismiss this action. Respectfully Dated:~~~ ~ a'o®9 Stephen D. Tiley, Esquire Attorney for Cumberland County Board of Assessment Appeals and Cumberland County 5 South Hanover Street Carlisle, PA 17013 (717)2430-5838 Supreme Court LD.#32318 Response to Motion by Petitioner for Summary Judgmeru Page 3 of 3 I ~~ti °: JOAN L. SWEEZY, PETTTIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Response upon the Petitioner by sending the same by first-class mail postage paid addressed as follow: John L. Sweezy, Esquire Petitioner P.O. Box 224 Harrisburg, Pa 17108 John L. Sweezy Petitioner 125 Victoria Drive Mechanicsburg, PA 17055 St~phen'D. Tiley, Esquire Frey & Tiley Attorney for Cumb. County Board of Assessment Appeals 5 S. Hanover Street Carlisle, PA 17013 717-243-5838 Dated; /d ~Dv3 c~ ~~ ,~ c. ~3 ~~~ c ~ _a ~--, rS ,~ ~ ~; ~ . ~%:_ .~ ^'. C~ --i l -a ~ -L ~U -< ~.~ : ~: 1 John L. Sweezy, Petitioner In the Court of Common Pleas of v Cumberland County, Pennsylvania Cumberland County Board of Appeal from Board Order of Assessment and Appeals, August 31, 2001 Respondent No. 2001 - 5601 Civil Term CERTIFICATE OF SERVICE I hereby certify that I am this d.ay serving a copy of of a Praecipe for listing Petitioner's Motion for Summary Judgment for the next Argument Court upon the person indicated below by first class mail postage prepaid: Stephen D. Tiley, Esguire Solicitor, Cumberland County Board of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17013 ~~ _ John L. Swee y Attorney Petitioner Dated: January 7, 2003 _~ ~, .~s`&a':~ffi,~i~t~4~~kri~'tfv'ei~li~.4vu~e.ss -,iU ,~. ,. ..,r.r .~, ..e~r~}7d' ~P.~: - - - ._. - ._.. -~n CJ C:3 t- ; c--- '_~, . y ~ = ~~ . i ____ ~ ~ ~'. G '.f, _y ~' V i o zoos John L..Sweezy, Petitioner In the Court of Common Pleas of Cumberland County, Pennsylvania v. Cumberland County Board of Appeal from Board Order of Assessment and Appeals, August 31, 2001 Respondent No. 2001 - 5601 Civil Term ORDER AND NOW, this day of December, 2002, upon consideration of the appended Motion for Summary Judgment, and upon application of John L. Sweezy, attorney, Petitioner, Respondent Board is hereby ordered to file a response to the aforesaid Motion in accordance with Rules of Civil Procedure 1035.3. J. John L. Sweezy, Petitioner v. Cumberland County Board of Assessment and Appeals, Respondent In the Court of Common Pleas pf Cumberland County, Pennsylvania Appeal from Board Order of August 31, 2001 : No. 2001.E 5601 Civil Term MOTION BY FETITIONER FOR SUMMARY JUDGMENT AND NOW, December ~ 2002, comes Petitioner John L. Sweezy, pro se aid as an attorney, and moves this Honorable Court for summary judgment against Respondent Board pursuant to RCP 1035 et seq., and in support of said Motion states as follows: 1. This action is an appeal by Petitioner from a decision by Respondent Board upholding assessment and collection of Occupa- tion tax upon Petitioner by West Shore School District and Lowez Allen Township, and has been assigned to Honorable Edward E. Guido for review and disposition. 2. Petitioner's Motion for Summary Judgment is based on the record in the instant case as comprising the following: a. Petitioner's Petition for Review (appeal from Board) filed 9-26-01 and Respondent's Answer filed 10-26-O1; b. Court's Order of October 2, 2001 setting hearing .for November 21, 2001; c. Court's Order of November 19, 2001 for general continuance at the call of the parties; d. Petitioner's Motion filed April 5, 2002 to Allow Discovery and Compel Board's Response, with Peti- tioner's Written Interrogatories attached thereto; e. Court's Order of April B, 2002 granting Rule to Show Cause on Motion to Compel; f. Respondent's Answer filed May 2, 2002 to Motion to Compel; g. Court's Order of May 20, 2002 setting June 13, 2002 for argument on Motion to Compel and Answer; h. Petitioner's Brief filed June 3, 2002 on Motion to Compel; i. Court's Order of June 13, 2002 allowing limited discovery; j. Respondent's Answers and Objections to Interrogatories, filed July 12, 2002; k. Court's Order of July 31, 2002 re communication with Court; 1. Affidavit of John L. Sweezy supplementing record as provided by RCP 1035.1(2) and 1035.4. 3. No genuine issue of any material fact remains as to Petitioner's basis of appeal, in that the record in the case establishes the following, inter alia (references are to sub- paragraphs of paragraph 2, above): a. Petitioner is and has been a fully-licensed attorney with limited practice and resides in Lower Allen Township.(l.) b. West Shore School District (for tax years 2000 and 2001) and Lower Allen Township (for tax years 2000, 2001, and 2002) have assessed and collected Occupation tax against Petitioner in the category of "700 Attorney" of the Cumberland County Assessment Schedule in the total amounts of $891.80 and $205.80 respectively. (1.2c.) c. Petitioner has timely paid all Occupation taxes assessed as above and has timely appealed such payments. (1.2c) d. Background facts as to the Assessment Schedule are unavailable but a blue ribbon panel considered but declined to make changes about ten years ago. (j.par. 6) e. Respondent has the power under 4th to 8th. Class Assessment Law to establish and change Occupational classifica- tions, and has done so with respect to "100 Part Time Workers", int-r alia. (j.par.14; 1.2b.) - 2 - f. Occupation tax is fiscal in nature in that perception of earnings potential was a factor in establishing all assessment ~ categories. (j.par. 10; 1.2d) g. Gross inequities exist in the Occupation tax program generally and as to Petitioner in particular in that it disregards variations in earnings among persons in a given occupation. (1.2a) h. Respondent takes the position that economic disparity within job categories is irrelevant to the occupation assessment scheme (j.par. 6) a.nd has declined to make changes (j.par. 7). i. This Court has the power to decide constitutional and legal issues inherent in the instant litigation, including the issue of refunds and interest thereon (j. par. 15 & 15a), and the power to issue a partial summary judgment (RCP 1035.2 Note) or a judgment upon less than the whole case or the relief asked (RCP 1035.5) 4. Counsel for the parties have been unable to agree upon which facts may be presented to the Court for a determination of this matter. WHEREFORE, Petitioner moves this Honorable Court to order Respondent Board to file a response to the within Motion for Summary Judgment pursuant to RCP 1035.3; and absent such response and/or upon consideration of the record and such additional materials as may be presented, to enter summary judgment against Respondent Board invalidating Petitioner's Occupational category and ordering full refund of Occupation taxes paid with interest thereon from the date of payment, and .for such other or further relief as the Court may dim appropriate. - 3 - Respectfully submitted, JOHN L. SWEEZY, itioner 125 Victoria Drive Mechanicsburg, Pa. 17055-3527 ID 15506 Dated: December ~ 2002 CERTIFICATE OF SERVICE T hereby certify that I am this day serving the foregoing Motion for Summary Judgment upon the person indicated below by first class mail postage prepaid: Stephen D. Tiley, Solicitor Cumberland County Board of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17013 4'L /~'~~~Nr~Ni John L. Sweezy Attorney Petitioner Dated: December ~ 2002 ~~, PETITIONER'S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT The affidavit of John L. Sweezy, Petitioner, pursuant to RCP 1035.1(2) and 1035.4 is as follows: 1. Report of income from Petitioner's performance of professional (legal) services for the tax years 2000, 2001 and 2002 as appearing on United States and Pennsylvania Income Tax returns has shown and will show a net loss. 2. The following attachments from legal authorities and other souxces are true and come ~_copies of material relevant to the within Motion: a. Excerpt from Summary of Pennsylvania Jurisprudence "Taxation" at 17:15 (Exhibit A). b. Rules and Regulations for the (Cumberland County) Board of Assessment Appeals (issued 2000)(Exhibit B). C. Letter of May 24, 2001 from Petitioner to Cumberland County Occupation Tax Office. (Exhibit C). d. Excerpt from Petitioner's Hearing Memorandum before Respondent Board, August 31, 2001. (Exhibit D). The statements made in this affidavit are based on personal knowledge and are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. s4904 relating to unsworn falsi ication to authorities. Dated: December ~', 2002 John L. Sweezy, itioner SUMMARY OF PENNSYLVANSA JURISPRUAENCE "TAXATION" ~ iris raxarlor! and occupation priviloge taxes, the assessed occupation tax has get~n sled more taxpayor xesantment than any other local non-real estate tax in Pennsylvania. The two serious problems with the tax are its inequities and costs of adntinistradon. The inequities, based on ability to pay considerations, arise in several ways. First, since ist a given jurisdiction all parsons within as occupation era taxed at the same rate, regardless ofthe varia- tion that may exist is actual oarnings, the critorion of vertical equity is violated. The tax in fact has been found to be quite mgreasiva iu its incidence, that is, the ratio of assessed occupation tax paid to family inaome falls as family income rises. Second, sines there era variations in earnings among parsons is a given occupation, persona in different occupations who happen to !rave the same attnuai income pay widely differing occupation taxes, which violates horizontal equity. Finally, wide variations exist among similar jurisdictions in the tax liabilities assessed on s gives occupation. Because it raquir®s assessing occupations, the occupation tax fs ox- posed to the same administrative problat~ that arise with the real estate tax, including unrealistic or inaccurate assessment schedules and wide variation in assessment practices among jusisdiations. Administration and enforcement are complicated Piirther becauso the tax is not subject to :w}thhoi~ng by e>np!®yars, and taxpayers ros~t having to pay the tax-iil"a single payment. 47. 47. Final Report of Pa Tax Commn 36 (1981} (footnotes omitted). ~X~~ ~ '; 1 RULES AND REGULATIONS FOR~,THE BOARD OF ASSESSMENT APPEALS RE: OCCUPATION AP~D PER CAPITA ASSESSMENTS (a)~Background 1.1. The Local Tax Enabl following political subdivisi of the 2nd class A, cities townships of the 1st and 2nd 2nd, .3 rd and 4th class to lev on. persons., transactions, oc personal property. ng Act, 53 PS § 6902, authorizes the ns, cities of the 2nd class, cities f the 3rd class, boroughs, towns, class, ,and school districts of the such taxes as they shall determine upations, privileges, subjects and 1.2. Section 5453.201(b Assessment Law provides for salaries and emoluments of ofi professions, trades and occuX of eighteen years who do not well as unnaturalized foreign within this Commonwealth for Commonwealth.11 of the Fourth to Eighth Class County ie assessment and valuation of "all ce, all offices and posts of profit, lions, and al.l persons over the age ollow any occupation or calling, as born persons who shall have resided one whole year as citizens of this 1.3. Section 5453.301 0~ the Fourth to Eighth Class County Assessment Law establishes the~Board of Assessment and Revision of Taxes (Board) which consists o~ the three County Commissioners and which is responsible for 'ladptirig rules: and regulations which shall govern the Chie£ P:ssesso , his Assistants and local elected assessors im the making of the'I'assessments" (5453.302(2)). 1c 4.. Section 5.453.402 0~ the Fourth to Eighth Class County Assessment .Law provides for.theyappointment by the Board of a Chief Assessor. That section of~'; the.Act .also :provides for. the appointment of Assistant Assssors (employees .of the County). Section 545.3".501 provides for t e election'of assessors in wards of cities, boroughs and towns, an in townships and boroughs. 1.5. Section 5453.506 pr vides "It shall be the duty. of each elected assessor to gather.an~ report to .the .Chief Assessor all data and information necessa~±y to .assess, rate and value. all subjects Or objebts of local taxation within the respective ward, borough,;. town.:. ; ~~ _~ ~.i ). Cumb.Cly.Occ.Taz Ruke & Rey. Y adopted June 3. 1947 1.6. Section 5453.601 of the Fourth to Eighth Class County Assessment Law provides: "Annually, on or before the first day of July, the chief assessor shall, from the returns made by the local assessors, prepare and submit to the board, in the form prescribed by the board, an assessment roll or list of persons and property subject to local taxation " 1.7. Section 5453.701 of the Fourth to Eighth Class County Assessment Law provides in part: "Upon receipt of the assessment roll .from the assessor, or as soon thereafter as possible, the board shall examine and inquire whether the assessments and valuations have been made in conformity with the provisions of this act, and shall revise the same, increasing or decreasing the assessments and valuations as in their judgment may seem proper, and shall add thereto such property or subjects of taxation as may have been omitted." 1.8. Except .where specifically noted, these Rules and Regulations apply to both occupation and per capita taxes (personal taxes).. Whenever the term occupation assessment or occupation taxes is used in these Rules and Regulations it shall be deemed to mean.and..include per capita taxes also, unless otherwise noted in a particular Rule or Regulation. (b) Determination of occupation Assessments 2.1. .Each individuals occupation assessment shall be based upon his or her principal occupation.. The Assessment.Offiee shall determine each individual's assessment as of January 1 and July .1. of each year. and the .most recent determination shall be~used.for each occupation tax levied,. .to wit: January i.for municipal taxes and July 1 for school taxes. The last. assessment fixed by the... Assessment Office shall remain-the individual's assessment until a. change is made. The Assessment Office skull report monthly to the Board alT proposed changes to the assessment roll: 2.2. A taxpayer requesting.a change in assessment shall do so no. later than 90 days after the date of his or her tax bill.-.No change requested by a taxpayer shall be retroactively appled.prior to. the most recent deterttiination.date, to wit: July 1 or January 1. To. the extent. practical, .appeals of. occupation assessments to the Board shall be Beard in conjunction with real estate tax appea]:s heard by the Board: Cumb.Cty.Occ.Tax Rules & Rgs.'ar adopted June 1, 199J ~ ~ ~ _ ~ '. 2.3. Temporary Unemployed Classification. (A) Not withstanding any other provision of these Rules and Regulations, if an individual is unemployed on the determination date applicable to any occupation tax bill, he or she may, no later than 90 days after the date of his or her tax bill, request a change to "Temporary Unemployed" classification. In such event, the individual's assessment applicable to that tax bill only will be changed to zero and the individual shall receive a corrected tax bill showing no occupation tax due. The individual's assessment shall remain on the assessment roll at the rate last established for him or her and the individual will be required to make application for "Temporary Unemployed" classification after receiving each such bill.. An individual is temporarily unemployed if he or she was not employed. on the applicable determination date, but seeking employment on that date. A seasonal employee or other similar employee who does not regularly work on a given determination date is employed and shall not be classified as "Temporary Unemployed." Examples of seasonal or' other similar employees are school teachers,. farm laborers..and construction workers. This Rule 2.3 applies only to Ocicupation takes and not to per capita taxes. (B) Proof of unemployed shall be by means of a sworn affidavit on form provided by the Assessment Office which must be delivered to. the Cumberland County Assessment Office by the person claiming temporary unemployed classification, or by certified return receipt mail. (c) Information Provided to Assessment Office 3.1. For purposes of these Rules, whenever a reference is made to the Assessment Office; the individual. or entity reporting to said Office shall report .to the department or individual responsible for occupation tax assessment information within said Office. 3:.2. In Cumberland County, the Local."Elected. Assessor shall. classify all individuals age 18 or over to which the occupation tax applies. Each month the Local Elected Assessor. shall .report such information, including a recommended classification and assessment, to the Assessment office which shall rate and value each individual repartee for.pnd~w~w~=_s of the Occup;:~ion Tax. All reports snail be on the form attached hereto.: 3.3. Any school district desiring to assist the occupation assessment .process:. shall do. so by assisting the Local, Elected Assessor. Cuuib.Cly.Occ.Tax Rule+&.Rege.u adopted Jaoe 3. 1993 - 3.4. In municipalities or wards where there is no Local Elected Assessor, the applicable school district or municipality may choose to investigate individuals age 18 or over to which the occupation tax applies and report such information monthly to the Assessment Office, which shall receive such information the same as other information from the public, and may classify individuals for purposes of the occupation tax from said information, or may choose to review, investigate, assess, or otherwise act upon such information, as time and personnel permit; provided that any school district or municipality shall by written instrument insure, defend, and indemnify the County of Cumberland from any and all requests, demands, litigation, losses or amounts due as a result of the activities of the school district in regard to occupation taxes. Any municipality or school district reporting to the Assessment Office pursuant to this section shall do so, and be subject to, all Rules and Regulations applicable to Local Elected Assessors. 3.5. When individuals report directly to the Assessment Office, the Assessment Office shall take such information, and may choose to review, investigate, assess, or otherwise act upon such information, as time and personnel permit, or in the alternative, may transmit the information to the Local Elected Assessor for investigation. and action. 3.6. The Local Elected Assessor, or any municipality or school district, shall only classify or provide information concerning a taxpayer if the elected assessor, municipality, or school district has ascertained the actual principal occupation of the said taxpayer. The Local Elected Assessor, or any municipality or school district is responsible for ma3cing good faith attempts to investigate and ascertain the occupation of each adult individual within their area, prior to submitting any report to the Assessment Office. 3.7 If any individual has failed to respond to one or more written inquiries which clearly set forth the following admonition: "FAILURE TO RESPOND TO THIS INQUIRY:. MAY RESULT. IN YOUR BEING CLASSIFIED AS A.SPECIALIST 500", the individual may be classified: as a."Specialist 50a." The Local Elected Assessor, municipality, or. school district shall maintain records of the attempts. to contact each individual assessed by.default. Each individual reported as a "Sgecialist 500" by reason of.said default, shall be identified as such on all reports provided to the Assessment Office. The report shall contain a certification that the attempts t.o contact have been made and records of those attempts maintained. (d) Compensation of Local Elected Assessors 4.1'. Only :Local Elected Assessors shall be _coinperisated. Local Elected..:ASSessors.shall..be compensated at the rate ,of $:50 per change in classification, or deletion.,fro~n the occupation. _. assessment rolls, and $3.50 per new addition to the occupation assessment rolls. Cumb.Cty.Occ.Tez Rulee & Rege. w adopted June I, 1993 4.2. Municipalities, school districts and members of the public providing information concerning assessments for occupation taxes shall not be compensated by the County. 4.3. Local Elected Assessors shall not be compensated for changes to the assessment rolls within their areas which are the result of an individual reporting directly to the Assessment Office and that Office fixing an assessment without the involvement of the Local Elected Assessor. 4.4. Unless waived by the Assessment Office pursuant to this Rule 4.4, Local Elected Assessors shall not be compensated for names or changes submitted on incomplete reports, whether or not the Assessment Office has processed the incomplete reports and fixed an assessment or made a change pursuant thereto. The Assessment Office may elect to compensate a Local Elected Assessor in instances where the Local Elected Assessor has made 'a good faith effort to obtain all the information required on the report but not all such information is .available. (e) Occupation Tag Bills 5.1. Tax bills for new additions for municipal occupation tax shall be dated no later than August 1 of that year based or. changes to the assessment roll received on or before July 15th of that year, reporting an individual's occupation as of January 1 of that year. Any reports received after July 15th of that year shall only be reflected in bills the following year. Tax bills for new additions for school occupation. tax shall be dated na later than Nover}tber 1 of that year based on changes to the assessment roll received on or before .October 15th of that year, reporting an individual's occupation as of .July 1 of that year. Tax bills for new additions from school districts which print their own tax bills may be dated according. to their own schedule but no supplemental bill for a new addition shall be. sent based.on information received by~the Assessment office after October 15th. Any reports received after October 15th of that fiscal. year shall only be reflected in . bills the following fiscal year.. New additions to the tax roll are defined as individuals added to that roll after regular mailing of the Bills for'-any per.iod:. 5.2. On each Occupation Tax Bi1I a notice shall be printed as follows: "Deadline for correction. or appeal of job title is 90 days from-date of bi.ll., Call 2!'0-636 or 6~7-Q371;-ext. 6365 or 532-7286; ext. 6365." 5.3. Anyone"who fails to file and pay occupation taxes shall be retroactively assessed for up to three (3) years and may be immediately billed at the applicable penalty, face or discount amounts by the appropriate taxing bodies. ' Cumb.Cty.0u.Tez RWo & Regs. u adapted June 3, 1993 (f) Appeal of Occupation Tax Assessment 6.1. Formal appeals of Occupation Tax assessments are heard by the Board of Assessment appeals twice yearly, generally in October and April. To avoid penalty, taxpayers who are appealing their assessment and who have received a tax bill must pay their tax bill under protest. Formal appeals are appeals to the Board of Assessment Appeals from a decision of the Assessment Office. Cumb.Cty.Oee.Tax Rulee & Rego. u cdopted June 3, 1993 JOHN t. SWEEZy! ATTOFTNEY AT LAW POST GPFIC6 HO% 2ib NARR190URG, PA. 17108 TeLLP,IONe lf7 68? r0o3 +n vKroriv pave MECMAImCBBUlKf. P0.. 1'~i5 May 24, 2001 County of Cumberland Attn: Occupation Tax Office One Courthouse Square Carlisle, Pa, 17013 The undersigned--was assessed for Occupation Tax as an Attorney for the year 2000 by Lower Allen Township and West Shore School District, and filed appeals from such actions with your office under date of October 20, 2000 and November 2000 respectively. These appeals included a statement o facts and legal reasoning as to why they should be sus- tained. L have subsequently heard nothing about this from any involved entity. Y must therefore assume that the matters are sti13. pending a.nd that my recourse to higher appellate bodies in the event of initial adverse decision, has been preserved. On March 1, 2001 Lower Allen Township again assessed Occupatior. Tax and I paid same Under Protest ¢Exhibit A). This is in fact and law a continuation of the appeal filed October 20, 2000.Since the material facts and applicable Saw remain tha same as in the original appeal, filing of further appeal documents would be surplusage and is therefore omitted. Your prompt decision and notification concerning all pending appeals is necessary to insure my timely access to further appellate procedures if this becomes necessary. ,,Very truly ours, t'~3/~' G~ hn L. Sweex Jo y JLS:dar Att. - Exhibit A ru ti .... si~.i'~ ~: ~ ~~~ N Pee a -10.34 ~ O@9YIBfl Fe9- Heyxrenece~ptFae- ~ ~1 •,~ R1 ;;;(FiWrxsemsM Flequlr6d) d ';,< YJ'r'.:'RMb1cJ~Ddllvery Fee C .:(fJiCot$Bm9kASquked) ~.~ ra • 7pW aaaeaae ®ieas $13.74 M1 ~ Sentt fro ~, ~ ' ~.Lb ~ 1..~ vvyyW SY COat,T.elk ue~e 05/25l2l~1 BILL DATE 3/01/2001 SILL NO 899b ~ PpYFaF .*o- MARY ANN PRIOR, TREASURER I 1993 HDNA2EL AVENUE 'I CAMP RILL, PA 17011-5438 case JOB TITLE ATTORNEY _uyg, CTL 13 16891 ~~~~~t`G®~i ~~i~,t SSN 189-G9-0730 \Ts /~ - xe.=. A ~ I~~~ ~ t, erSo'~~sbtF „uc ~"s`r SWEE2Y, JCHN L. '~J^~"D.pOt p`~ 125 VICTORIA DR. ~ MECHANICSBURG PA 17055-3527 I'r'` ASONDAY,TUESDAY&THURSDAY 9AM°4PSA I~.;,~. CLOSED WEDNESDAY & FRIDAYS PHONE (7175 975-7575 2001 PERSONAL TAX NOTICE COUNTY 4F CUMBERLAND TOWNSHIP OF LOWER ALLEN NQSPERSONAL CH~CKSOAFTEROI2/1~5%01~TION 12/15/01 e VALUE i • 7001 :NTY PfC I 5.00000 4,90' 5.00 iUN P/C ! s.oooo0 4.90 5.00 t[TN OCC I .10000 68.60 70.00 occuP~~'ibN' 'r ~~ O ~ ®~ie PR. .,--'_ ~ ~ - - - °' 78.40 tf.00 NTY P/C a, Drs 10. '~S5'r@t'J FACE oN P/c a.o~ to.a~ 3/OS/2001'i 5/0112 0 0 1 Dra occ a.e~ lo.o~ I TO I TO ~ 4/30/2001 6/30/2001 ~ ; S.SC 5.5C 77.oc i~ 88.00 PENALTY AFTER 6/30/2001 .. ~'~'` ~, ~e z~ s Complete (tams i, 2, and 3. Also complete Rem 4 fi Restricted Dellvsry is desired. ^ PriM your name and address on the reverse so that we can return the card to you. B Attach this card to the back of the mailpiece, or on the front if space parmRs. t. gwrtlcle~Address~d to: /,g t7 y A p~ ~~I`r 1 1 ~ C~Iry~F/TFRHPs~Y ~ c~ r~t~t}p DFFtt..~ ~5 ~ ~ Pzc~db K~- ~G7o obr~ ~a z ~ ~~~ 2. Artfols Number (Copy from service Iabe0 A: e. Date dr C. SI na ~n ,~ ggent X (~ ~ Adds D. b delivery address diserent from Bern t? ^ Vas e YES, enter deilvery atldress belo~H: ^ No 3. Service TyPs ~CerKPied Mail ^ Express Meil ~ gegtatered ^ Return Receipt for Meronantlise ^ Insuretl Mail ^ C.O.O. 4. Restricted Delivery? (Extra Fea; ~ Yes .._ ::~ _ ... _ _ r 4. In re: Appeal of John L. Sweeny, Before Cumberland Attorney, from Imposition, County, Pa. Board of Occupation Taxes by of Assessment dower Allen Township and West Shore School District No. 2001 HEARING MEMORANDUM This is an appeal from impasition of Occupation taxes upon appellant in the classification of "Attorney"'; assessed pursuant to Local Tax Enabling Act of 1965, as amended, 53 P.S. ~b901 et seq, by Lower Allen Township for the tax years 2000 and 2001, and by West Shore School District for the tax years 2000-2001 and 2001-2002. All taxes in question have been paid "Under Protest" and appeals timely made to the Board, with the exception of the 2001-2002 District tax which will be paid "Under Protest" and should be considered part of the instant appeals. SUMMARY OF FACTS Appellant currently is and was at the time of the tax levies, a resident of Lower Allen Township and an attorney fully licensed to practice law in Pennsylvania pursuant to rules of the Pa. Supreme Court. This is a status he maintain; not only for revenue and intellectual engagement, but for the continuing ability to practice 'without fee. Appellant's tax return shows a net professional loss for the calendar year 2000. ARGUMENT I. THE OCCUPATION TAX AS ASSESSED BY THE TOWNSHIP AND SCHOOL DISTRICT VIOLATES THE TAXATION AND FINANCE CLAUSE OF THE PA. CONSTITUTION Article VIII Section 1 of the Pa. Constitution requires that "All taxes shall be uniform, upon the same class of subjects..." (Emphasis supplied) (When} "the tax scheme imposes substantially unequal tax burdens upon persons:..similarly situated, the tax is unconstitutional." (at 831) PPG Inc. v. Com, 681 A2 g24 (CW 1995), citing cases The constitutional uniformity provision applies to occupation taxes (syllabus) Crosson v. Downingtown Area.SD, 440 Pa. 468 (1970) (A non-uniform tax is) "in violation of equal protection and state uniformity standards." (at 1314) Com. v. Mereadante, 676 A2 1309 (CW 1996) ~jC}, ~~~ A. The Occupation Tax Lacks Uniformity Both as,Among Classes and Within Classes of Taxpayers All occupation tax schedules only roughly approxi- mate the economic differences existing among classes, and these vary widely as between taxing jurisdictions. The schedules are also totally deficient in recognizing differences within each class. "...there must be no lack of uniformity within the class, either on the given subject of the tax or the persons affected as taxpayers." (at 37.9) Saulsbury v. Beth.Steel Co., 413 Pa.316 {1964) No citation of law is needed to establish that imposition of the same monetary tax upon a lawyer earning $500 a year from his profession and one earning S1 million, is unconscionably inequitable. B. Some Pa. Courts Have Confused the Uniformity Issue by Ne ating the Centrality of Economic Factors Pa. coasts have•not agreed upon whether Occupation taxes are upon property or upon other less tangible components. However, "uniformity" for taxation purposes is an economic word of art which pan only be applied properly with reference to the real financial impact upon those assessed. (Cf. Haberman Appeal, 37 CW 97 (1978) recognizing the role of economic factors.) It serves no purpose to consider collateral matters such as professional status or social prestige, when inequitable economics is at the root of the problem. (See "SUMMARY AND CONCLUSIONS" below for a succinct analysis by a recognized authority.) II. STATUTORY PROVISIONS FOR EXTENDING EXEMPTIONS DO NOT MITIGATE THE ECONOMIC BURDEN OR CURE CONSTITUTIONAL DEFECTS OF OCCUPATION TAX LAWS The Enabling act of 53 P.S. X6902 permits adoption by taxing districts of regulations for processing claims for exemption, but only for taxpayers "whose income from alI sources is less than $5000 per annum." This does nothing to relieve the elderly taxpayer on more or less fixed income from the fiscal onus of 'the Occupation tax. It is understood that certain jurisdictions afford a type of informal exemption relief to some taxpayers by arbitrarily reducing taxes collected; this only perpetuates the inequities inherent in subjective administrative judgments made on an individual taxpayer basis. - 2 - --......e ~~, - - - - ~ ~ ._ W s`51 iB~.m~++s63,s^5-...ra re lam `h£4i;,~ - N~~ r c. c: ,. .- ~ ~ - F r ,' '~ ~- .~ _ -., {=° ~ ' ` , 'S'1 w -„i CIi --~F ~- JOHN L. SWEEZY, Petitioner vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT AND APPEALS, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5601 CIVIL CIVIL ACTION -LAW IN RE: PETITIONER'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, J.J. ORDER AND NOW, this /?' day of March, 2003, the motion of the petition, John L. Sweeny, far summary judgment is DENIED. BY THE COURT, John L. Sweeny, Esquire Pro Se Stephen D. Tiley, Esquire For Cumberland County :rlm ,C,vapc.eo ~,w.,cb~-~. 3 - I S°. ~~ ~. ,. ~,~., ~.,.,r~ r~ L ='i .r - JOHN L. SWEEZY, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT AND APPEALS, Respondent O1-5601 CIVIL CIVIL ACTION -LAW 1N RE: PETITIONER' S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, J.J. OPIlVION AND ORDER The appellant in this case, John L. Sweeny, is a licensed Pennsylvania attorney residing in Lower Allen Township, Cumberland County, Pennsylvania. Under the Cumberland County Assessment Schedule for occupation tax assessments, Sweeny is classified as a "700 Attorney." He was assessed an occupation tax by the West Shore School District ($891.80) and by Lower Allen Township ($205.80). He remitted the tax due under protest. He now disputes his "700 Attorney" classification and the assessment of an occupation tax in general. On October 20, 2000, Mr. Sweeny filed a formal appeal with the Cumberland County Board of Assessment Appeals. After holding a hearing, the Board denied his appeal. The instant petition for review of the Board's order was subsequently filed in the Cumberland County Court of Common Pleas. There then followed an attempt to fettle the matter. In addition, throughout much of the year of 2002, there were several proceedings having to do with discovery. On December 9, 2002, the petitioner filed a motion for summary judgment. Occupation assessment appeals are governed by the Game statutes as are applicable to real estate assessment appeals. Specifically applicable are Section 201 of the General County Assessment Law and Section 704 of the ~#`~' to 8`~' Class fotlt:lty Assessment Law. Occupations 01-560"r CIVIL reasonable; and (2) that the tax itself must be applied equally within the designated class. If either condition fails, the tax is unenforceable for want of uniformity." Carl v. Southern Columbia Area School District, 400 A.2d 650, 651 (Pa.Cmwlth. 1979). An occupation tax is based on the assessed value of an occupation regardless of the taxpayer's income from the occupation. Appeal of Haberman, 388 A.2d 1159, 1162 (Pa.Cmwlth. 1978). Evidence of a shift in occupational earnings, without more, is not sufficient to show a violation of uniformity with respect to an occupation tax assessment. Id. Clearly, the occupational tax is not violative of the uniformity clause of Article XIII Section 1 of the Pa. Constitution in that it is unreasonable. Furthermore, if the court granted the petitioner's motion for summary judgment, that decision would violate requirement two of the uniformity clause; the tax would no longer be "applied equally within the designated class." The final claim raised by the petitioner is that the occupation tax violates Article V Section 10 of the Pennsylvania Constitution. This section, of course, gives the Supreme Court exclusive authority to prescribe general rules governing practice and procedure as well as the adoption of standards for admission to the bar and the practice of law. As the petitioner candidly admits, the weight of appellate case law is against him on this issue. ORDER AND NOW, this ~3" day of March, 2003, the motion of the petition, John L. Sweezy, for summary judgment is DENLED. IiY Tl1F, COiJRT, A 01-5601 CIVIL John L. Sweezy, Esquire Pro Se Stephen D. Tiley, Esquire For Cumberland County :rhn 5 .~ _ ~., a, ~~ :. +~ MAY 0 6 2003 John L. Sweeny, Petitioner v, Cumberland County Board of Assessment and Appeals, Respondent In the Coust of Common Pleas of . Cumberland County, Pennsylvania Appeal from Board Order of August 31, 2001 No. 2001 - 5601 Civil Term ORDER AND NOW, this ~~ day of M ~ , 2003, upon consideration of the appended Motion for Rule to Show Cause and proposed Amend- ment, and upon application of John L. Sweezy, attorney, Petitioner, a rule is hereby granted upon Respondent Board to show cause why the Amendment should not be allowed and the amended material added to the recozd of the case. ~ ~d J. {~ ~~ V .~,~#A=rz~.1'A; ~~P~~-'~"~s tiro i_i aake;s > ...: ~ .,~ ~~ l~ ~~ `\~ \~\) W ~' A ~ ~~ CERTIFICATE OF SERVICE 2 hereby certify that 2 am this day serving the foregoing Motion for Rule to Show Cause and proposed Amendment to the Petition for Review upon the person indicated below by first class mail postage prepaid: Stephen D. Tiley, Solicitor Cumberland County Board of Assessment & Appeals 5 South Hanover Street Carlisle, Pa. 17}013 N John L. Sweezy, torney Petitioner Dated: April ~i6 , 2003 John L. Sweeny, Petitioner in the Court of Commpn Pleas of v. Cumberland County, Pennsylvania Cumberland County Board of Appeal from Board Order of Assessment and Appeals, August 31, 2001 Respondent No. 2441 - 5601 Civil Term AMENDMENT TO PETITION FOR REVIEW The Petition for Review filed September 26, 2001 is hereby amended to add the following after paragraph 6: "6a. Board has a continuing duty to annually re- evaluate and adjust for equity the classifications of its Occupation Assessment Schedule and may not lawfully perpe- tuate an inherently-inequitable system which is at least twenty years old and has not been reviewed for at least ten years. That review and updating is legally appropriate and practically, feasible is confirmed by the Lycoming County (Pa.) Board of Assessment's complete 1997 revamping of its Occupation Tax program and annual fine-tuning adjustments since. An excerpt titled '"Alphabetical Occupation Listing" from the Lycoming County 2402 Assessors Manual, and copy of letter dated March 8, 2402 from the Lycoming County Director of Administration, are attached hereto as Exhibit 2 of the Amended Petition for Review; and the entire Lycoming County 2002 Assessars Manual is incorporated herein and made a part hereof by reference." e/ul y a bmi ted, ohn L. 9wea2y, etitioner 125 Victoria Drive Mechanicsburg, Pa. 17055-3527 717 697-7003 ID 15506 Attachment - Exhibit 2: Excerpt titled " Alphabetical Occupation Listing" from Lycoming County (Pa.) 2002 Assessors Manual, and letter March 8, 2002 Dated: April , 2003 VERIFICATION i verify that the statements made in the foregoing Amend- ment to Petition for Review are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. ~~ JOHN L. SWEEZY, P 'tioner Dated: April 3 D, 2003 Alphabetical Occupation Listingo • 0 0 Code Occupational Title Remarks v~ia~P 00020 AccountanbAuditor 90 00015 Accountant CPA 0 - 5 Years 120 00035 Accountant CPA 6 - 10 Years 225 00030 Accountant CPA 10 + Years 300 00040 Activities/Pro ram/Recreation Director 80 00060 Advertisin A ent 90 00090 Air Traffic Controller Federal/State 200 00100 Air ort Director Local Government 175 02320 Animal Hos ital Owner 375 00120 Announcer Radio/TV 80 00160 Architect 225 00180 Artificiallnseminator 9g. 00190 Artists/Scul tors 50 00200 Assessor - ElectedlA ointed Local Government 0 00210 Assessor -Field Local Government 60 01930 Assistant Mana er 1 - 5 Em to ees 70 01931 Assistant Mana er 6 - 15 Em to ees 80 01932 Assistant Mana er 16 - 50 Em to ees 90 01933 Assistant Mana er 51 - 100 Em to ees 110 01934 Assistant Mana er 101 - 250 Em to ees 120 01935 Assistant Mana er 251 - 350 Em to ees 140 .01936 Assistant Mana er 351 - 500 Em to ees 175 01937 Assistant Mana er 500 + Em to ees 200 00244 Attorne 0 - 5 Years 90 00242 Attorne 6 - 10 Years 225 00240 Attorne 11 + Years 325 00246 Attorne Public Service 110 00250 Auctioneer 0 - 4 Em to ees 120 00251 Auctioneer 5 + Em to ees 250 00260 Auditor Independent Contractor 150 00275 Auto Mechanic Head 120 00270 Auto MechaniclBod Tech 70 02820 Auto/Truck Mechanic w/License 80 02110 Automobile Dealer New Sin le Franchise 200 02111 Automobile Dealer New Multi Franchise One Locale 400 02112 Automobile Dealer New Multi Franchise Multi Locale 600 02116 Automobile Dealer/Owner Used Auto 0 - 3 em to ees 150 02115 Automobile Dealer/Owner Used Autos 4 + em to ees 225 00360 Aviation Fli fit Attendant 90 00370 Aviation Mechanic Industrial 90 30 r Code Occupational Title Rr±msrkc v~~,~o 00320 Aviation Pilot 175 00380 Aviation Pilot Instructor 70 00390 Bab -sitter 30 00405 Baker -Industrial 30 00400 Baker -Retail 50 00420 Bank Examiner Federal/State 225 00430 Bank Loan Officer/Branch Mana er 120 00440 Bank President Re Tonal 600 00445 Bank President Local 300 00450 Bank Teller 50 00460 Bank Trust Officer 175 00470 Bank Vice-President 250 00480 Barber/Beautician Em to ee 70 00500 Barber/Beautician Owner/Mana er 90 00490 Bartender 60 03530 Bevera a Distributor 120 00520 Boilermaker Industrial 1 0 00530 Bookkee er/Pa roll Clerk/Tax Pre arer 0 02854 Briefer (Federal Aviation Administration Em to ees 225 00590 Broker/Sales Real Estate -Sales, non -owner 150 00592 Broker/Sales Stock -Sales, non - owner 300 00594 Broker/Sales Fire and Casualty Insurance -Sales, non owner 225 00596 Broker/Sales Life Insurance - Sales, non owner 150 00600 Bus Driver Over -the -Road 120 00610 Bus Driver Public Trans ortation 90 00620 Bus Driver School 30 00720 Car enter -Basic 50 00725 Car enter - Finishin 60 00730 Car et Installer 60 00750 Cashier Retail 50 00760 Caterer 120 00770 Cementer/Cement Finisher 60 00800 Chef/Brewer 80 00810 Chemist Industrial 175 01440 Chief Administrator/ Department Mana er County Officials 150 01290 Cit Officials Local Government 100 00860 Cleaners and D ers Worker 50 01055 Colle a Assistant Professor 130 01050 Colle a Associate Professor 150 31 Code Occu ationall'itle Remarks Value 01060 Colle a Dean 200 01095 Colle a De artment Head 150 01053 Colle a Instructor 110 01080 Colle a President 450 01090 Colle a Professor 175 00045 Colle a Pro ram Director 120 01105 Colle a Residential Advisor 80 01100 Colle a Residential Director 150 01292 Commissioner Count Officials 150 01120 Com uter Mainframe O erator gp 01130. Com uter Pro yammer/PC S ecialist 120 01140 Com uter Re airman 90 01150 Com uter S stems Anal st 175 01160 Constable Local Government 90 01170 Construction General Mana er 150 01190 Construction Su erintendent 120 01220 Construction Foreman 90 01180 Construction Worker 60 01210 Consultant Businessrfechnical 120 01232 Controller/Com troller 0 - 50 Em to ees 100 01233 Controller/Com troller 51 - 100 Em to ees 110 01234 Controller/Com troller 101 - 250 Em to ees 120 01235 Controller/Com troller 251 - 350 Em to ees 150 01236 Controller/Com troller 351 - 500 Em to ees 225 01237 Controller/Com troller 500 + Em to ees 300 00705 Cook 30 01260 Cost Estimator 110 01265 Cottage/Casual Business Owner 40 01270 Counselor Guidance 140 01275 Counselor Marria a 140 01300 Credit Anal st 70 01330 Custodian/Housekee er/Groundskee er 50 01350 Dance Instructor -Non owner 5Q 00830 Da care Worker 40 01380 Delive ICC Commercial 110 01370 Delive Local 60 01400 Dental Assistant 50 01405 Dental H ienist 80 01410 Dentist General Practice 400 01411 Dentist S ecialist 600 01431 De artment Mana er 0 - 15 Em io ees 80 01432 De artment Mana er 16 - 50 Em to ees 100 01433 De artment Mana er 51 - 100 Em to ees 120 01434 De artment Mana er 101 - 250 Em to ees 140 01435 De artment Mana er 251 - 350 Em to ees 175 32 Code Occupational Title Remarks v~~~~o 01436 De artment Mana er 351 - 500 Em to ees 200 01437 De artment Mana er 500 + Em to ees 225 000000000 -01465 Detective County Officials 140 02856 Director Federal Aviation Administration Em to ees 300 01500 Dishwasher 30 01510 Dis atcher 50 00248 District Attorne Count Officials 350 01520 District Ma istrate Count Officials 150 01423 Division Mana er 51 - 100 Em to ees 250 01424 ', Division Mana er ' 101 - 250 Em to ees 300 01425 ' Division Mana er 251 - 350 Em to ees 350 01426 Division Mana er 351 - 500 Em to ees 400 01427 Division Mana er 500 + Em to ees 450 00110 Doctor Anesthesiolo ist 750 01530 ' Doctor Cardiolo 600 00840 Doctor Chiro odist 450 00850 Doctor Chiro ractor 225 01545 Doctor Gastorentenolo 600 04590 Doctor Nuclear Medicine 750 03010 Doctor O tometrist 150 03415 Doctor Ps chiatrist 300 03416 Doctor Ps cholo ist 200 04110 Doctor Radiolo ist 750 04025 Doctor/Generallnternist/Pediatrician 300 01540 Doctor/Family Practice/Medical Doctor/Doctor of Osteo ath Less than 5 ears 300 04010 Doctor/S ecialist Non-Sur ical 450 04030 Doctor/Sur eon General 675 04035 Doctor/Sur eon S ecialist 750 01550 Domestic/Hotel Worker/Maid 30 01570 Draftsman 80 01580 Driller Industrial 90 01620 Electrician 70 03482 En ineer Aeronautical 200 03483 En ineer Civil 120 03484 En ineer Construction 110 03485 En ineer Consultin 200 03486 En ineer Electrical 100 03487 En ineer Environmental 140 03480 En ineer Radio/TV 80 03481 En ineer Structural 130 '' 03489 En ineer Industrial Desi ner Mechanical 140 03488 En ineer Time Stud Industrial 130 33 Code Occupational Title Ramarkw v~i~~o 01860 En raver Industrial ^ 80 01200 E ui ment O erator Li ht 70 04550 E ui ment O erator Hea 90 01900 Executive Secreta 90 01920 Exterminator 50 04560 Facilities/Plant Mana er 80 01950 Facto /Plant/Industrial Worker 70 00290 Farm Machine O erator 30 01980 Farmer With Em to ees 150 02000 Farmer 7p 02010 FBI A ent Federal/State 225 02858 Federal Marshall/Investi ator 100 02030 Financial Advisor/Counselor 140 02040 Fire Chief County Officials aid 140 02042 Fireman - Ca tain Local Government 120 02050 Fireman - Firefi hters Local Government 100 02046 Fireman -Ins ector Local Government 110 02044 Fireman -Lieutenant Local Government 110 00700 Food Service Worker 30 00701 Food Service Worker Institutional 40 02080 Forest Ran er Federal Government 80 02090 Forester 90 02100 Found man Industrial 70 02120 Frei ht Handler 40 02130 Funeral DirectorlOwner 200 02880 Funeral Home Em to ee 50 02180 Galvanizer Industrial 60 00915 General Clerk Government 50 00910 General Clerk -Retail Shelf Stocker/Customer Service 50 01881 General Mana er 0 -15 Em to ees 90 01882 General Mana er 16 - 50 Em to ees 120 01883 General Mana er 51 -100 Em to ees 150 01884 General Mana er 101 - 250 Em to ees 175 01885 General Mana er 251 - 350 Em to ees 200 01886 General Mana er 351 - 500 Em to ees 375 01887 General Mana er 500 + Em to ees 425 02290 Health Officer Federal Government 130 02330 Health Officer Local Government 100 02310 Hi hwa Worker 80 02340 Hostess 50 02380 House erson/Unem to ed 0 03460 Ins ector/Quali Control 70 00050 Insurance Ad'uster 90 34 Code ®ccucational Title RPma~~c v~r„® 02520 Insurance A entlSales Life Insurance vy.80 02521 Insurance Agent/Sales General Liability and Auto 100 '~ 02530 Insurance Owner/General Mana er 0 - 5 Em to ees 225 02531 Insurance Owner/General Mana er 6 - 15 Em to ees 300 02532 Insurance Owner/General Mana er 16 - 50 Em to ees 375 02533 Insurance Owner/General Mana er 51 - 100 Em to ees 450 02534 insurance Owner/General Mana er 101 - 250 Em to ees 500 02535 Insurance Owner/General Mana er 251 - 350 Em to ees 500 02536 Insurance Owner/General Mana er 351 - 500 Em to ees 500 02537 Insurance Owner/General Mana er 500 + Em to ees 500 02540 ~ Interior Desi n/Decorator 70 02545 Investi ator Public 140 02580 Jude 350 02585 ~ Jud a -Senior Federa9 80 02600 Junk Dealer/Wholesale Industrial 450 01294 Ju Commissioner Count Officials 20 01970 Laborer -Farm 30 02610 Laborer- Landsca er 30 01955 Laborer -non skilled 30 00930 Law Clerk 90 03770 Le al Secreta 60 02650 Librarian Administrator and S ecialist 110 02640 Libra Worker 30 02670 Locksmith Non owner 50 02690 Lumbe and Worker Industrial 50 02730 Machinist Industrial 80 0456$ Maintenance Worker Buildin 70 00540 ~ Mana er - Borou h Local-Government 80 00545 Mana er-Townshi Local Government 225 00580 Mason/Brick/Stone La er 70 02780 Material Handler Industrial 40 02800 Ma or Cit Local Government 150 02810 Meat Cutter 70 03780 Medical Secreta 60 02555 Medical Technician 90 02850 Meteorologist (Federal Aviatian Administration Em to ees 225 I 02860 Minister/Priest/Rabbi/Nun O I 02890 Mortician Non owner 80 'i 00550 Munici al Worker Local Government 60 02910 Music Teacher Private 70 ' 02920. Musician/Actor 70 01610 News a er Editor Industrial 120 03430 News a er Publisher/Owner Industrial 300 35 Code Occupational Title Rerrearks value 02940 Newspaper/Magazine Distributor OwnerlMana er 300 99991 Non-Resident Moved Out of Coun 0 02960 Nurse AidelOrderl 30 02970 Nurse LPN 60 02980. Nurse RN gp 02550, Nurse S ecialist g0 01490 Nutritionist/Dietician g0 03040: Painter Commercial 120 03041 ' Painter Residential 90 03050 Pa er Cutter/Han er Wall a er 80 03060 Parale al Public 80 030651 Parale al Private 70 03070 Paramedic 60 03265 Patrol Officer Borou h/Townshi 110 03090' Patternmaker Industrial 60 03020 Personal Homecare 40 03101 Personnel Director 0 - 15 Em to ees 70 03102 Personnel Director 16 - 50 Em to ees 80 03103 Personnel Director 51 - 100 Em to ees 90 03104 Personnel Director 101 - 250 Em to ees 120 03105 Personnel Director 251 - 350 Em to ees 130 03106 Personnel Director 351 - 500 Em to ees 140 03107 Personnel Director 500 + Em to 'ees 175 03110 Pet Breeder 30 03120 Pet Groomer 30 00230 Pet Sitter 20 01600 Pharmacist Non-Owner 100 03140 Photo ra her 100 03145 Photo ra her Commercial 200 01905 Ph sician Assistant/Intern/Resident MD Less than 5 ears 100 03150 Ph sicist Industrial 225 03160 Piano Tuner 100 03170 Pi efitter Industrial 100 03180 Planner Federal Government 150 03185 Planner Local Government 120 03190 Planner -Assistant Federal Government 120 03195 Planner Assistant Local Government 90 03200 Plaster/D alley 60 03210 Plumber 70 03215 Plumber with License 90 00820 Police Chief Borou h Local Government 110 03220 Police Chief Ci Local Government 150 03235 Police Commissioned Officer Local Government 140 01460 Police Detective Federal Government 120 03245 Police Noncommissioned Officer Local Government 130 36 Code Ocouaational TitBe RPmarkc vii®~e 03260 Police Patrolman Local Government v120 03230 Police State Commissioned Officer 200 03240 Police State Noncommissioned Officer 175 03250 Police State Troo er 150 04520 Postal Worker Federal Government 100 03300 Postmaster Cit 275 03290 Postmaster Other _ 150 01890 President/OwnedPlant Mana er 0 - 5 Em to ees 150 01891 President/Owner/Plant Mana er 6 - 15 Em to ees 200 01892 PresidentiOwner/Plant Mana er 16 - 50 Em to ees 275 ~ 01893 President/Owner/Plant Mana er 51 - 100 Em to ees 350 ' 01894 PresidenUOwner/Plant Mana er 101 - 250 Em to ees 450 01895 President/Owner/Plant Mana er 251 - 350 Em to ees 500 01896 ' President/Owner/Plant Manager _ 351 - 500 Em to ees 600 01897 President/Owner/Plant Mana er 500 + Em to ees 750 03320 Print Press Operator Industrial, large machine 60 03322 03324 Print Press Operator _ Print Press Operator Industrial, small machine Industrial, web machine 50 80 03345 Prison Guard/Correction Officer Local Government 70 03340 Prison Guard/Corrections Officer Federal/State Govt 100 02560 Private Investi ator 120 03380 Probation Officer Federal Government 120 03390 Probation Officer Local Government 90 03401 Professions! Athlete Local 50 03400 Professional Athlete National 750 03410 Proof Reader/Editor Writin ! 100 03420 Public Relations 150 03452 Purchasin A ent 16 - 50 Em to ees 80 03453 Purchasing Agent 51 - 100 Em to ees 90 03454 Purchasin Agent _ 101 - 250 Em to ees 120 03455 Purchasing Agent _ 251 - 350 Em to ees 150 __ 03456 Purchasin A ent 351 - 500 Em to ees 175 03457 Purchasin~c A ent 500 + Em to ees 200 03461 Qualit~ Control Industrial 90 04610 Quar man Industrial 60 0349D Radio/TV Station Pro yammer 150 04110 Radiolo ist 450 03504 Real Estate Agency Owner/Manager 0 - 5 Employees/Agents 225 ', 03505 _ Real Estate Agency Owner/Manager 6 - 15 Em to ees/A ents 300 103506 Real Estate Agency Owner/Manager ~ 116 + Employees/Agents 375 ~ 37 Code Occu at6onaf T6#le Remaeks Value 03500 Real Estate A ent 100 03509 Real Estate A raiser 120 03510 Rece tionist 50 99990 Record Deleted _ Deceased or Du licates 0 00080 Re airman Commercial 80 00130 Re airman Residential 60 02140 Re airman/Maintenance -Industrial Facto /Plant 100 03520 Re orter Radio/TV/Press 80 99992 Resident Non-Taxable (Military, etc.) Disabled, Age, Nursin Home 0 00150 Residential House Mana er 60 03531 Restaurant Mana er 100 03550. Retired 0 03570 Roadmaster Railroad g0 03580 ' Roofers 60 01285 ROW Officers Coun Officials 120 01280 ROW Officers De uties Count Officials 90 00010 Sales -Account Executive 120 00280 Sales -Automobile 80 00140 Sales -Commercial 120 02170 Sales -Industrial 300 01590 Sales -Pharmaceutical 175 04570 Sales -Retail 50 04575 Sales - Telemarketer 40 04540 Sanitation Worker Non-Owner 50 01165 Safet Officer 120 04620 School Easiness Mana er 175 03700 School Principal Public 200 03705 School Princi al Private/Headmaster 110 03711 School Substitute Teacher -Public Da - to - Da 40 03710 School Substitute Teacher-Public Lon -Term 90 03720 School Su erintendent 225 03735 School Teacher -Private Full -Time 40 03736 School Teacher -Private Part -Time 20 03731 School Teacher -Public Part -Time 90 03730 School Teacher -Public Full -Time 120 03740 School Teacher Aide 40 03750 Secreta 50 03802 Secreta /Treasurer Cor 16 - 50 Em to ees 90 03803 Secreta (Treasurer Cor 51 - 100 Em to ees 90 03804 Secreta /Treasurer Cor 101 - 250 Em to ees 110 03805 Secreta /Treasurer Cor . 251 - 350 Em to ees 150 03806 Secreta /Treasurer Cor 351 - 500 Em to ees 225 03807 Secreta !Treasurer Cor 500 + Em to ees 300 03810 Securi Guard 40 38 i Code Occu ational Title Remarks Value 03820 Service Advisor Auto Dealer 90 03830 Sewin Machine O erator 40 01450 Sheriff De ut Local Government 80 03840 Shoemaker/Re airman g0 03860 Si nalman 60 03920 Steamfitter Industrial 100 03930 Steel Worker Industrial1 70 03950 Steno ra hedCourt Federal Government 90 03955 Steno ra herlCourt Local Government. 90 01240 Store Mana er, Convenience Store g0 00410 Store Manager, Su ermarket/De artment Store 225 03995 Student -College, full time (12 or more credits 0 03990 Students - Seconda School _ 0 04020 Surve or 110 01040 Tax Collector Federal Government 90 04040 Tax Goifector Local Gov1ernment 40 04050 Taxi Driver Non -owner 70 04070 Technician 120 02852 Technician (Federal Aviation Administration Employees) 225 03005 Tele hone 0 erator Office 50 03000 Tele hone O erator Public Utilit 90 04090 Tele hone Switchman/Installer 110 03835 Textile Worker 50 04100 Thera ist Ph sical/Speech 100 104105 04150 ~ 00570 ~ Therapist Tool and Die Maker Train Brakeman Occu ational Industrial Industrial 80 90 80 00070 Travel A enc OwnerlMana er 140 04180 ~TravelA ent 80 04190 Tree Sur eon Laborer 40 04210 Truck Driver Local 40 04220 Truck Driver Over the Road 150 00740 T ist/Data Ent 70 04270 Underwriter 175 02230 Union Business A ent 0 - 5 Em to ees 110 02231 Union Business A ent 6 - 15 Em to ees 110 02232 Union Business A ent 16 - 50 Em to ees 110 02233 Union Business A ent 51 - 100 Em to ees 110 02234 ~ Union Business A ent 101 - 250 Em to ees 120 02235 Union Business A ent 251 - 350 Em to ees 130 0~ 2236 02237 - ~ 04290 Union Business A ent Union Business A ent U holster 351 - 500 Em to ees 500 + Em to ees 150 150 50 39 Code Occu ational Title Remarks Value 02660 Utilit Lineman/Re airman 100 04300 Utili Meter Reader g0 04310 Veterinarian 150 01940 Vice -President 0 - 5 Em to ees 120 01941 Vice -President 6 - 15 Em la ees 150 01942 Vice -President 16 - 50 Em to ees 225 01943 Vice -President 51 - 100 Em to ees 325 01944 Vice -President 101 - 250 Em to ees 375 01945 Vice -President 251 - 350 Em to ees 450 01946 Vice -President 351 - 500 Em to ees 500 01947 Vice -President 500 + Em to ees 650 03360 Warden - De u Prison Local Government 110 03365 Warden - De u Prison Federal Government 225 02070 Warden -Fish 100 02190 Warden -Game 100 03350 Warden -Prison Local Government 150 03355 Warden -Prison Federai Government 300 04380 Wei htmaster 50 04390 Welder Industrial 90 03890 Welfare/Case/Social Worker Federal Government 120 04400 Welfare/Case/Social Worker Local Government 90 04490 Window Trimmer/Dis la 80 04500 Writer/Commercial 50 04510 Zoning Officer Local Government 80 40 Mazch 8, 2002 Mr. Gerald McLaughlin Business Office Manager Loyalsock School District 1225 Clayton Avenue Williamsport, PA 17701 Dear Mr. McLaughlin: This letter is in reply to your March 7, 2002 telephone conversation and request for the changes in the Assessors Manual. During our conversation you noted that the question of increased Occupational Assessment Taxes was raised at the last School Boazd Meeting, and that several members of the Board noted that the values had been changed. The corrections, additions, and deletions are the changes that were approved by the County Commissioners for the 2002 Assessors Manual based on input from local Assessors and County citizens. Similar changes were made to each new yearly manual since the County completely revised the Occupational Assessment Categories and Values in 1997. Attached as an Enclosure are the Corrections, Additions, and Deletions that were approved for the 2002 Assessors Manual. You further stated that you aze considering options to replace the Occupational Tax. I strongly encourage you to follow the footprints of either the Williamsport School District or that of the East Lycoming School District to replace the Occupational Assessment Tax for several reasons. First, I will state as I have stated repeatedly in the past, the Occupational Assessment Tax is the most unfair taxing scheme ever devised. It is an unfair and extremely difficult tax to manage or assess based strictly on the premise that it is a tax on Occupational Title alone and not inwme. That is why for the last twelve years it has not been collected as a Tax for Lycoming County Government. Within Lycoming County only eight School Districts and seven of the fifty-two townships/municipalities collect the Occupational Tax. The County is responsible for setting the Occupational Classification Values, for administering the records, and for hearing appeals. Elected Assessors are responsible for assessing titles to the citizens of their respective electorate, and the tax is collected by elected Tax Collectors for each electorate. The current law mandates that the County assess and assign Occupational Titles. Section 602 of the Fourth to Eight Class County Assessment Law states that it shall be the duty of the Chief Assessor to rate and value all subjects and objects of local taxation. Section 201 of the Fourth to Eight Class County Assessment Law defines as proper subjects of taxation "All salaries and emoluments of office, all offices and posts of profit, professions, trades, and occupations" (72 P.S. 5453.201(b)). (~~y~C 1~ 1 ~ 2~ y . Until that law is changed or eliminated, the Lycoming County Board of Assessment is mandated bylaw to set occupational values. Second, setting values for Occupational Titles is not an exact science. In order to address the concerns raised by the School Board Members about increased Occupational Taxes as a result of increased values, it is important to understand what has happened to the Occupational Tax Value System within Lycoming County in the last five years. During October and November of 1996, the Board of Lycoming County Commissioners heard over 800 appeals and complaints pertaining to the old Occupational Tax values. In reviewing the 1996 Assessors Manual approved by the previous Board of Commissioners, it was evident that the scale of values assigned to the Occupational Titles was unbalanced, particulazly in the values assigned to the middle-income occupations within the County. For example, a Nurse RN had a value of 500 assigned on a scale of 150 to 750, and this meant that in most school districts these individuals were paying approximately $500 on an occupation that was in most cases earning less then $35,000. At the same time, the occupation of Doctor was rated at a value of 750, and this meant that in most school districts these individuals were paying approximately $750 on occupations earning over $200,000. Other occupations such as Veterinarian and School Superintendent were also assessed a value of 750 for occupations that were generally earning less then $80,000. This meant that the middle income occupations were paying a much higher proportion of their income (from 1 to 2 percent) while the higher income occupations were paying less than a half (.5) percent, and many occupations were just incorrectly valued too high. During the formal appeal process of 1996, the County Commissioners committed to several citizens that they would change the Occupational Tax values to a more uniform, equitable scale. They basically agreed to take whatever steps they needed to take to make this a more equitable tax in Lycoming County. During February and Mazch of 1997, the three Commissioners, the Chief Assessor, and the Director of Administration developed a new value scale based on occupational data available in surveys such as the Pennsylvania Department of Labor & Industry Occupational Wage Survey and the West Branch Manufacture's Association Salary Survey. On March 27, 1997, the Commissioners approved the 1998 Tax Assessors Manual with the new values. The new manual contained a new scale of values from 750 down to 20 with the middle-income occupations in the 60 to 150 value range. The old scale went from 750 down to 150 and middle-income values were 350 to 500. In addition, many new classifications/titles were added and many classifications/titles were significantly expanded. I must note that the values assigned were based on numerous factors other than and including the potential of an occupation to earn income. Pennsylvania Courts have held "It is appazent that other factors than income affect the value which maybe attributed to an occupation. These may include social status, historical attributes, type, kind and quality of work required, degree of education and training demanded and many other such real or fancied social and economic distinctions (Haberman Appeal, 388 A.2d 1159, 37 Pa Cmwlth.97, 1978, citing Crosson v. Downingtown Area School District, 270 A.2d 377, 440 Pa 468, 1970). Since the initial complete revision of the value scale, the Board of Assessment has continued to fine tune the Tax Assessor Manual with over 100 changes to decrease or increase 2 values based on input from citizens of Lycoming County, and added over 30 new titles. The changes to the Occupational Tax Assessors Manual combined with the efforts to ensure that taxpayers are conectly titled and listed (over 15,000 changes as a result of school district submissions) have reduced the occupational tax burden on the lower and middle-income occupations. An example of this is that the old value of 500 assigned to a Registered Nurse is now 80 on the scale of values between 20 and 750. Under the present valuation structure, occupational assessment tax values are more equitable and uniform on the scale of 20 to 750 than the old value scale of 150 to 750. This was affirmed on November 9, 1998 in Case Number 98-00,408 Court of Common Pleas of Lycoming County wherein Judge J. Michael Williamson, 25`h Judicial Distract of Pennsylvania, opined that in reviewing and analyzing the testimony presented on behalf of the County, "the Court was impressed with the effort and integrity of the Commissioners in attempting to create a fair and equitable occupational tax schedule considering the significant lack of guidance provided by the legislature or the appellate courts." Judge Williamson further opined that "The Court is satisfied that the Commissioners and staff made a conscientious and comprehensive effort to secure the necessary information, including income statistics, to acwmplish their legislatively mandated task. While it is obvious that the primary factor considered by the Commissioners was earning potential, the Court is satisfied that other factors were considered, especially when those factors were particulazly relevant to certain occupations. This Court is particulazly impressed with the Commissioners decision to initially rank occupations in descending order based upon the factors set forth. The Court believes that the Commissioners and their staff did an excellent job of putting together an occupational assessment schedule which reflects a common sense ranking of occupations and fair, equitable, and uniform valuations applied to those assessments." hi another court case that was decided January 4, 1999, by Judge Stuart Kurtz regazding Case Numbers 98-2379 and 98-2433, several Centre County Area school districts (Bald Eagle, Bellefonte, and State College) filed action against the Centre County Board of Assessment and the three Commissioners. In deciding this casein favor of the School Districts, Judge Kurtz referred to Judge Williamson's opinion regarding Lycoming County's new occupational value scale. Judge Kurtz stated "Lycoming County was able to reassess occupations in 1998 and that effort has already received commendation from our colleague, the Honorable J. Michael Williamson of the 25u' Judicial District, Specially Presiding, who after a review of the reassessment opined "that the commissioners and their staff did an excellent job of putting together an occupational assessment schedule which reflects a common sense ranking of occupations and fair, equitable, and uniform valuations applied to those assessments." In re: Appeal of Elliot B. Weiss, Lycoming County No. 98-00,408, November 9. As you are awaze, the assessment value standing alone means nothing until the taxing body sets a millage to be applied to the evaluation. For fiscal year 1999-2000, school district millages for the Occupational Tax in Lycoming County ranged from the high of 4,275 (Montgomery) to the low of 3,100 (Jersey Shore). Doctors in the Montgomery School District paid occupation taxes ranging from $427.50 to $3,206.25. In the Jersey Shore School District, the district that levies the lowest Occupational Tax millage, doctors paid occupational taxes ranging from $310.00 to $2,325.00. This example of inequity is just another one of the reasons why I state that the Occupational Assessment Tax is unfair. 3 .~..,. .~ ., The new system developed by the Board of Assessment is admittedly not perfect, but it is faz better than the structure it replaced. For example, the prior schedule of occupations was grossly unfair to the average worker and many professionals in Lycoming County. Under the old system, truck drivers paid 50% of the dollar amount of occupational taxes paid by a specialty physician. That did not seem fair to me. Under the prior schedule, family practice doctors paid the same occupational tax as heart surgeons. That did not seem fair to me. Under the prior schedule, substitute teachers paid the same as full time teachers. That did not seem fair to me. Under the prior value scale, an owner of a mom and pop business paid the same occupational taxes as the president of amulti-million dollar corporation. That did not seem fair to me. Under the old schedule, an attorney just admitted to the baz paid the same occupational tax as an attorney who had a 25-year established practice. That did not seem fair to me. These are but a few of the hundreds of examples of inequities in the prior value system. I truly believe that the Lycoming County Board of Assessment has developed a more fair, equitable and uniform Occupational Title Value Scale when compazed to the old values assessed in 1997. The two aforementioned Court Decisions concur with these comments. The Lycoming County Board of Assessment believes that they have established a classification and value system that is as fair and uniform as they can make it, and that by approving yearly corrections, additions, and deletions to the Classifications and Values they aze meeting the requirement of their mandated legal responsibility. Although the new value scale is a much fairer and equitable scale, and two courts have reaffirmed this opinion, the County Commissioners and I still believe the Occupational Assessment Tax to be unfair, and unfixable. In addition to being based on an occupational title and very subjective factors such as social status, type, kind and quality of work, degree of education and training demanded, and many other fancied social and economic distinctions, there are no penalties for not being correctly listed, for not being listed at all, or for deliberately misleading the assessor to get a lower value. That is why the County Commissioners have been working with the State Legislators since 1996 to eliminate the Occupational Assessment Tax. Many citizens have suggested that we simply "do away with this ridiculous system and base the tax on the taxable income". The current law does not permit the Occupational Tax to be based on income, and the Occupational Assessment Tax is not a tax that the Lycoming County Government can eliminate. This is a tax that is collected by your School District, and only you can eliminate it, or replace it with an Earned lncome Tax under the Tax Reform of Act 50 or 24. If enacted, in its place would be an earned income tax of up to 1.5% for the School District and a .5% earned income tax for the municipality. So, a physician, or anyone else earning $200,000 annually would pay roughly $3000 as an earned income tax to the school district and another $1000 to the municipality in place of the present Occupational Assessment Tax. Compare that with the current Occupational Assessment Tax that produces a tax of $1,282.50 for a Family Practice Doctor (value 300) in the Montgomery School District that at 4,275 mils levies the highest millage. In conclusion, I again state that I totally agree with you that the Occupational Assessment Tax is an unfair tax, and I remind you that not one dollar of the Occupational Assessment Tax Revenue comes to Lycoming County Government. I also believe that this Board of Assessment has fulfilled its legal and moral responsibility to make the current scale of Occupational .er.w:.w...._ .__.... .l __._ ,_: uu..r.~."..L .~.:. _ n A, Assessment values as uniform and fair as possible. Therefore, I encourage and hope that you do take action to eliminate this unfair tax by enacting the new tax reform of Act 50 or Act 24. If I can be of any further assistance or answer any other questions pertaining to the Occupational Tax please call me at (570) 327-2314. Respectfully, Andrew C. Follmer Director of Administration Enclosure 5 '^ A. 2002 ASSESSORS MANUAL CLASSIFICATIONS AND VALUES CORRECTIONS, ADDITIONS AND DELETIONS VALUES CODE CLASSIFICTION 2001 2002 COMMENTS 00100 .Airport Director 140 175 00190 Artists/Sculptors 100 50 01930 Assistant Manager 1-5 Employees 60 70 01931 Assistant Manager 6-15 Employees 60 80 01932 Assistant Manager 16-50 Employees 60 90 00270 Auto MechanicBody Technician 50 70 00320 Aviation Pilot 120 175 00915 Clerk General/Customer Service 50 01292 County Commissioner 120 150 00830 Daycare Worker 50 40 01431 Department Manager 1-5 Employees 90 80 01432 Department Manager 16-50 Employees 90 100 01910 Executive Vice-President 1-5 Empl 90 01911 Executive Vice-President 6-15 Emp 120 01912 Executive Vice-President 16-50 Emp 150 01913 Executive Vice-President 51-100 Emp 225 01914 Executive Vice-President 101-250 Emp 225 01915 Executive Vice-President 251-350 Emp 375 01916 Executive Vice-President 351-500 Emp 500 01947 Executive Vice-President 500+ Emp 600 00701 Food Service Worker Institutional 40 01880 General Manager 1-5 Employees 80 01881 General Manager 1-IS Employees 90 90 02290 Health Officer Federal Government 110 130 02330 Health Officer Local Government 70 100 03780 Medical Secretary 50 60 03265 Patrol Officer Borough/Township 110 01890 PresidentlOwner/Plant Manager 1-5 Emp 90 150 01891 President/Owner/Plant Manager 6-15 Emp 150 200 01892 President/Owner/Plant Mgr 16-50 Emp 225 275 01893 President/Owner/Plant Mgr 51-100 Emp 325 350 01894 President/Orvner/Plant Mgr 101-250 Emp 425 450 Changed to 01940 Changed to 01941 Changed to 01942 Changed to 01943 Changed to 01944 Changed to 01945 Changed to 01946 Changed to 01047 Addition Changed to 01881 Add 1-5 Emp Addition 6 ~, VALUES CODE CLASSIFICTION 2001 2002 COMMENTS 01897 PresidenUOwner/Plant Mgr 500+ Emp 700 750 01165 Safety Officer 120 03750 Secretary 60 50 03830 Sewing Machine Operator 30 40 01940 Vice-President 1-5 Employees 90 120 01941 Vice-President 6-15 Employees 120 150 01942 Vice-President 16-50 Employees 150 225 01943 Vice-President 51-100 Employees 175 325 01944 Vice-President 101-250 Employees 200 375 01945 Vice-President 251-350 Employees 375 450 01946 Vice-President 351-500 Employees 425 500 01947 Vice-President 500+ Employees 500 650 Addition Occupations Added to the list that cannot be considered as Part Time for Value (Can not make assessment value one-half (1/2) of the value of that Occupation). 00190 Artist/Sculptor 50 00705 Cook 30 01265 Cottage/Casual Business Owner 40 01500 Dishwasher 30 01550 Domestic/Hotel Worker/Maid 30 01294 Jury Commissioner 20 01970 Laborer/Farm 30 02610 Laborer/Landscaper 30 01955 Laborer/Non-skilled 30 02640 Library Worker 30 02960 Nurse Aide/Orderly 30 01950 Physician Assistant/Intern/Resident MD 100 03110 Pet Breeder 30 03120 Pet Groomer 30 00230 Pet Sitter 20 04190 Tree Surgeon Laborer 40 04575 Sales Telemarketer 40 ~~ John L. Sweezy, Petitioner In the Court of Common Fleas of v, Cumberland County, Pennsylvania Cumberland County Board of Appeal from Board Ordex• of Assessment and Appeals, August 31, 2001 Respondent No. 2001 - Sb01 Civil Term CERTIFICATE OF SERVICE I hereby certify that I am this day serving upon the person indicated below by first class mail postage prepaid the Court's Order of May 7, 2003 granting a rule upon Res- pondent Board to show cause why the proposed Amendment to Petitioner's Petition for Review should not be allowed and the amended material added to the record of the case. Stephen D. Tiley, Esquire Erey & Tiley ~ South Hanover Street Carlisle, Pa. 17013 h ~www John L. Sweezy, ttorney~~ Petitioner Dated: May 15, 2003 ,$' :ds~Na#SCa}ys.~.s...,~:e~e!asc;~mw ,,,~'~.:~ ~ .~.,-:x.~;~aas~^+AUa~utitccs~~~em!~Eam~air¢,e.~.~ :..~ ..._. ,, < any .. r,~ ~~ ~ ems; -;~ _ -,~ -,' -_ - ;~ ; : ~- _ -,, ~' -. ,. ..• 'y J : ~ =k~ -~ ~~ "!~ 4 ~ ~ • ~ JOHN L. SWEEZY, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. . CUMBERLAND COUNTY BOARD APPEAL FROM BOARD ORDER OF OF ASSESSMENT APPEALS, AUGUST 31, 2001 RESPONDENT . N0.2001-5601 CIVIL TERM ANSWER (Re: Amendment of Petition) AND NOW, comes Cumberland County Board of Assessment Appeals, by its attorney, Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor, and files this ANSWER to Petitioner's Motion For Issuance Of Rule Upon Board To Shown Cause Why Amendment Of Petition For Review Should Not Be Allowed Pursuant To RCP 1033, of which the following is a statement: Admitted in part. Denied in part. It is admitted that Pa. R.C.P. 1033 provides, inter alia., as quoted by Petitioner. It is denied that this action is governed by the Rules of Civil Procedure as this action is a statutory appeal. (Appeal of the Borough of Churchill 525 Pa. 80, 575 A:?d 550 (1990)) Pursuant to said case the Rules of Civil Procedure would only be applicable if they had been adopted by a Rule of the Cumberland County Court of Common Pleas. There being no such local rule, the Pennsylvania Rules of Civil Procedure do not govern this action. Nevertheless, it is admitted that the Pennsylvania Rules of Civil Procedure may be used as guidance by the Court in rendering its decision as to whether or not to grant leave to amend, as requested by Petitioner. 2. Denied. The materials sought to be included by amendment describe neither a "transaction" nor "occurrence" related to the occupation assessment of the Petitioner (which is the subject of this appeal), nor to the occupation assessment of other Cumberland County residents (which the Petitioner may desire to include in his appeal but has not done so), nor to the constitutionality of the occupation assessment tax or Cumberland County's implementation thereof. Rather, the requested material is at best evidence which Pettonerr may wish to attempt to have admitted at some future Hearing. Respondent believes, and therefore avers, that the evidence which Petitioner attempts to add as a portion of his Petition, is in any event irrelevant to the subject matter of the Petition. 3. Admitted. By way of further Answer, Petitioner's Motion for Discovery .vas assigned to the Honorable Edward Guido. It is unclear to Respondent that the "case" was so assigned. WHEREFORE, Respondent prays Your Honorable Court for an Order denying Petitioners request to amend his Petition. Dated: ~,~ a?j ~~,,~ Respectfully submitted, BY_ Step en. D. iley, Esquire Attorney for Cumberland County Board of Assessment ,Appeals and Cumberland County 5 South Hanover Street Carlisle, PA 17013 (717)2430-5838 Supreme Court LD.#32318 (i (~ r _~~ ~ _~,;~ ~i - _ _ 4:~ r :, .~, - y" .. - r~ ''-; =2 ~; JOHN L. SWEEZY, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. . CUMBERLAND COUNTY BOARD APPEAL FROM BOARD ORDER OF OF ASSESSMENT APPEALS, AUGUST 31, 2001 RESPONDENT N0.2001-5b01 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Respondent's Motion for Summary Judgment upon the Petitioner by sending the same by first- class mail postage paid addressed as follow: John L. Sweezy, Esquire Petitioner P.O. Box 224 Harrisburg, Pa 17108 John L. Sweezy Petitioner 125 Victoria Drive Mechanicsburg, PA 17055 '~` !~ ~/ Stephen . Tiley, Esquire Frey & Tiley Attorney for Cumb. County Board of Assessment Appeals 5 S. Hanover Street Carlisle, PA 17013 717-243-5838 Dated: l"~Z.~ ~~ °2©p3 C) ` 7 ~- . - , <; . Z7 ~iJ [_ CTiI'+ . _ ~ ;._ -. ? C,' N _ Gri . E... ~~~ -. __r__ .._.,. :_~ .. ~ -% _ 1 1~ . Al ~ _LJ _L ~~~ 1 JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVII, TERM CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Answer Re: Amendment of Pefition upon the Petitioner by sending the same by first-class mail postage paid addressed as follow: John L. Sweezy, Esquire Pefitioner P.O. Box 224 Harrisburg, Pa 17108 John L. Sweezy Petitioner 125 Victoria Drive Mechanicsburg, PA 17055 Stephen . Tiley, Esquire Frey & Tiley Attorney for Cumb. County Board of Assessment Appeals 5 S. Hanover Street Carlisle, PA 17013 717-243-5838 Dated: /~i9~/ oZ ~ ~2eO 3 ,.srr.oti ~~~~-'S+t~&"rt6a'Y~&. ~3" ~lF.?m5 R"bx .~:..,. s_~ t,av.~z.;~~Zetiti~=ate*std«OG~iSrvdmmaeuii"~ '~IY~3531 ."~••••,"~•••. •. ~•.. k~ `~'. n ~ C'3 _ :.v ! r! e_~ r. f`a jr; __ _(` ~ - hJ F i ..` - i l-; ~ ._ ~ _L% .. _.i_, ] C i _. ~ 7. __ - __ va_ -;. f17 ~ i c ,~ 7 i JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM RULE TO SHOW CAUSF AND NOW, this day of , 2003 a Rule is entered upon Petitioner, John L. Sweezy, Esquire, to show cause why the Respondent's Motion for Summary Judgment should not be granted. Rule Returnable within 30 days after service. BY THE COURT, By: J. JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001~5601 CIVIL TERM ORDER AND NOW, this day of 2003, the motion of Respondent, Cumberland County Board of Assessment Appeals, for Summary Judgment is GRANTED. ~, BY THE COURT, By: J. cc: John L. Sweeny, Esquire Pro Se, Petitioner Stephen D. Tiley, Esquire for Respondent, Cumberland County JOHN L. SWEEZY, PETITIONER V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM BOARD ORDER OF AUGUST 31, 2001 N0.2001-5601 CIVIL TERM RESPONDENT'S MOTION FOR SUMMARY T GMENT AND NOW, comes the Respondent, Cumberland County Board of Assessment Appeals, by its attorney, Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor, and files this Motion for Summary Judgment, of which the following is a statement: 1. As the Pennsylvania Rules of Civil Procedure are not technically applicable to the within proceeding because it is an occupation tax assessment apgeal (Appeal of the Borough of Churchill 525 Pa. 80, 575 A.2d 550 (1990)), Respondent, Cumberland County Board of Assessment Appeals, files this Motion for Summary Judgment based upon the Court's inherent power to regulate its own practice and to make rules.of practice for the proper disposition of cases before it. Nevertheless, it is respectfully suggested that the Pennsylvania Rules of Civil Procedure may be used as guidance by the Court in rendering its decision as to whether or not to grant leave to amend, as requested by Petitioner. 2. Respondent believes, and therefore avers, that if the Pennsylvania Rules of Civil Procedure applicable to Motions for Summary Judgment (Pa. R.C.P. 1035 et seq.) were applicable to the within proceeding that the Respondent would be entitled to Summary Judgment in this case based upon those Rules and standards. There is no genuine issue of any material fact necessary to a determination of this case. 4. Petitioner having admitted that his initial assessment is "Attorney 700" the burden of proof shifts to Petitioner (Deitch Company v. Board.of Property Assessment, 417 Pa. 213, 209 A.2d 397 (1965)), and Petitioner has failed to prgduce evidence of any facts essential to the cause of action which, in a jury trial, would require that the issues to be submitted to a jury, or otherwise supporting Petitioner's claim that the occupation assessment of the Petitioner is wrong, or that the occupation assessment of other Cumberland County residents is wrong, or to the constitutionality of the occupation assessment law or Cumberland County's implementation thereof. Petitioner has not averred any facts, nor provided. any evidence or offers of proof, which would entitle Petitioner to any relief !tinder his various theories. 6. To the contrary, as a matter of law, Petitioner is not entitled to relief under any of the theories advanced by him. 7. The Opinion and Order of the Honorable Kevin A. Hess, dated March 13, 2003, entered in this case and denying Petitioner's Motion for Summary Judgment, is determinative of the issues and res judicata as to the within Respondent's Motion for Summary Judgment. 8. Honorable Edward E. Guido resolved a Discovery issue in this case by Order of Court dated June 13,2002. Oral argument on Petitioner's Motion for Summary Judgment was heard by the Honorable Kevin A. Hess and the Edgar B. Bayley, with Order and Opinion entered by the Honorable Kevin A. Hess on March 13, 2003. Thereafter, the Honorable Edgar B. Bayley entered an Order dated May 7, 2003, granting a Rule upon Respondent to show cause why Petitioner should net be granted leave to amend his Petition. WI~EREFORE, Respondent prays Your Honorable Court for: (a) A Rule upon the Petitioner to Show Cause why Respondent's Motion for Summary Judgment should not be granted, returnable within 3U days after service (analogous to Pa R.C.P. 1035.3(a)); and (b) An Order granting Summary Judgment in favor of Respondent and against Petitioner. Dated: ,~~ ~~ a?®p~- Respectfully submitted,. By ~ ~ ,° `~ Step n D. iley, Esquire Attorney for Cumberland County Board of Assessment Appeals and Cumberland County 5 South Hanover Street Carlisle, PA 17013 (717)2430-5838 Supreme Couri LD.#32318 ~, - c r ,; ~ ~-; __ _ ;-, _ - - -'} , ~ <<, , ~~ - ~,, G~~