HomeMy WebLinkAbout10-0363A.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg
Area School District And The Borough
Of Shippensburg From The Decision
Of The Board OF Assessment
Appeals Of Cumberland County
Property:
120 North Seneca Street
Shippensburg, PA 17257
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CIVIL ACTION - LAW
Assessment Appeal
NO. ID - 31v3 ?lVil I?rm
Filed on Behalf of:
Shippensburg Area School
District and The Borough
Of Shippensburg
Zoe E. Babe, Esquire
Pa. I.D. No. 92979
Counsel for Shippensburg Area
School District
ANDREWS & BEARD
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
814-296-2305
FAX -- 814-943-0519
Samuel E. Wiser, Jr., Esquire
Pa. Id. No. 203665
: Counsel for Shippensburg Borough
Salzmann Hughes, P.C.
Chambersburg Office
79 St. Paul Drive
Chambersburg, PA 17201
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District And The Borough
Of Shippensburg From The Decision Assessment Appeal
Of The Board OF Assessment ;
Appeals Of Cumberland County NO. 3 6
PETITION FOR APPEAL FROM DECISION OF THE
CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS
AND NOW COMES, the Shippensburg Area School District and the
Borough of Shippensburg, by and through their undersigned counsel, and hereby
files the within Real Estate Tax Assessment Appeal, and in support thereof,
allege the following:
1. The Appellant, Shippensburg Area School District ("District"), is a
school district duly organized under the laws of the Commonwealth of
Pennsylvania, including the Pennsylvania School code of 1949, as amended with
its main offices located at 317 North Morris Street, Shippensburg, PA 01527-
1654.
2. The Appellant, the Borough of Shippensburg ("Borough"), is a body
politic, organized and existing under the laws of the Commonwealth of
Pennsylvania with its main offices located at 111 North Fayette Street,
Shippensburg, PA 17257-1101.
3. The Appellee is the Board of Assessment Appeals of Cumberland
County ("Board"). The Board is appointed pursuant to the General County
1
Assessment Law 72 P.S. §5020-101 et seq. and 72 P.S. §4543 et seq. as
amended.
Tax Parcel No. 34-33-1867-006
4. Upon information and belief, the Richard Textiles Corporation is the
owner of the real property, located within the Shippensburg Area School District
and the Borough of Shippensburg, situate at 120 North Seneca Street,
Shippensburg, PA 17257, and identified by the Board of Assessment as Parcel
No. 34-33-1867-006.
5. On or about August 24, 2009, the property owner, Richard Textiles
Corporation, filed an Assessment Appeal to the Board of Assessment
challenging the value of Nine Hundred Fifty Thousand Dollars ($950,000.00), an
appeal hearing having been held on October 23, 2009, wherein the Board of
Assessment set the fair market value at Five Hundred Thousand Dollars
($500,000.00) resulting in a new assessed value of Three Hundred Ninety Five
Thousand, Five Hundred Dollars ($395,500.00).
6. The Order from the Board of Assessment set the New Assessed
Value at Three Hundred Ninety Five Thousand, Five Hundred Dollars
($395,500.00).
7. The Assessment identified in this Petition is not in conformity with
applicable law because:
a. The Assessment represents a value of the Premises which
is less than its fair market value, taking into account the
price which a purchaser, willing but not obligated to buy,
would pay an owner, willing but not obliged to sell, taking
2
into consideration all uses for which the Premises is adapted
and might reasonably be applied;
b. The Assessment is not comparable with assessments of
other similar real estate in the vicinity of the Premises; and
C. The Assessment and its valuation of the Premises is
arbitrary and unreasonable when compared with
comparable and neighboring properties.
9. The Appellants have been aggrieved by the action of the Board and
each Assessment of the parcels subject to this Petition.
WHEREFORE, the Appellants, by and through their respective Counsel,
respectfully request this Honorable Court, in accordance with the General County
Assessment Law and 72 P.S. §5453, to hear this appeal and to render an
appropriate, just and equitable Order and Decree with respect to this Appeal.
Respectfully submitted:
ANDREWS & BEARD
S
Zoe E. Babe, Esquire
Pa. I.D. No. 92979
3366 Lynnwood Drive
Altoona, PA 16603-1311
814-296-2305
Counsel for Shippens4g A School Disb ict
r., E quire
amuel E. Wis;LN9,403665
Pa. I. Salzmann Hughes P.C.
79 St. Paul Drive
Chambersburg, PA 17201
Counsel for Shippensburg Borough
3
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District And The Borough
Of Shippensburg From The Decision Assessment Appeal
Of The Board OF Assessment
Appeals Of Cumberland County : NO.
CERTIFICATE OF SERVICE
1, Zoe E. Babe, Esquire, hereby certify that on this --12,! day of January, 2010, a true and correct copy of the foregoing Petition for appeal has been sent
via regular U.S. Mail, postage prepaid to the following parties:
Stephen D. Tiley, Esquire
One Courthouse Square
Carlisle, PA 17013
Jan L. Budmann II, Esquire
Buchanan Ingersoll & Rooney PC
213 Market Street, 3?d Floor
Harrisburg, PA 17101-2121
ANDREWS & BEARD
Zoe . Babe, Esquire
Pa. I.D. No. 92979
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
814-296-2305
N
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: APPEAL OF THE SHIPPENSBURG
AREA SCHOOL DISTRICT AND THE
BOROUGH OF SHIPPENSBURG FROM
THE DECISION OF THE BOARD OF
ASSESSMENT APPEALS OF CUMBERLAND
COUNTY
CIVIL ACTION - LAW
ASSESSMENT APPEAL
NO. 2010-363
MOTION TO QUASH PETITION FOR APPEAL
FROM THE DECISION OF THE
CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS
NOW COME Hoffman Mills, Inc./Richard Textiles Corporation (collectively "Property
Owner"), by its undersigned attorneys, and move this Court to quash the above-captioned
Petition for Appeal filed by the Shippensburg Area School District ("School District") and the
Borough of Shippensburg ("Borough") (collectively "Appellants") from the October 23, 2009
decision of the Cumberland County Board of Assessment Appeals with respect to Tax Parcel No.
34-33-1867-006, and in support thereof state as follows:
1. On August 25, 2009, the Property Owner, timely filed a Formal Notice of
Assessment Appeal for its Commercial/Industrial Property located at 120 North Seneca Street,
Shippensburg, PA 17257, Tax Parcel No. 34-33-1867-006 ("Assessment Appeal") with the
Board of Assessment Appeals for Cumberland County ("Board")
2. By way of correspondence dated September 10, 2009, the Board scheduled the
Assessment Appeal for Hearing at 2:15p.m. on October 23, 2009 at the Old Courthouse, 2nd
Floor Courtroom, Carlisle, PA 17013 ("Hearing").
3. On October 12, 2009, in accord with Rules and Regulations Governing Real
Estate Assessment Appeal Before the Board, Section 5.07, Property Owner timely submitted
seven (7) copies of written evidence to the Board in advance of Hearing.
4. On October 23, 2009, at approximately 2:15p.m., the Board heard Property
Owner's Assessment Appeal and, at the conclusion of the Hearing, rendered its decision to revise
the assessment.
5. The Shippensburg Area School District ("School District") and/or the Borough of
Shippensburg ("Borough") were represented by Counsel who was/were present during the entire
October 23, 2009 Hearing and, therefore, had actual knowledge of the Board's decision to revise
Property Owner's assessment.
6. On October 26, 2009, the Board officially noticed its October 23, 2009 decision to
revise the assessment based on the Hearing ("Decision Order").
7. In addition to the revised assessment amounts, the October 26, 2009 Decision
Order also provided:
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 November 25, 2009.
8. The instant Petition for Appeal was filed by Appellants on January 14, 2010,
eighty (80) days after the Board's Decision and Order were issued.
9. According to the Fourth to Eighth Class County Assessment Law, 72 P.S. §
5453.704, and the General County Assessment Law governing assessment appeals by
2
municipalities, 72 P.S. § 5020-520, the limitation period to file such appeal is guided by the
Judicial Code at 42 Pa.C.S. § 5571, "an appeal from a tribunal or other government unit to a
court ...must be commenced within 30 days after the entry o the order from which the appeal is
taken." See 42 Pa.C.S. § 5571(b) (emphasis added); see also Monroe County Bd. of Assessment
Appeals v. Miller, 570 A.2d 1386, 1387-88 (Pa. Cmwlth. 1990) ("[a]n appeal from a decision of
a tax assessment board must be filed within thirty days after the entry of the Board's order.")
(emphasis in original).
10. The Appellants' failure to file a timely appeal of the Board's decision denies this
Court of jurisdiction over the instant action.
11. Because of the nature of this Motion to Quash, concurrence of counsel, as
provided for under Local Rule 208.2(d), is not required.
12. To date, no Judge of the Cumberland County Court of Common Pleas has ruled
upon any issue in this matter as contemplated by Local Rule 208.3(a)(2).
WHEREFORE, Hoffman Mills, Inc./Richard Textiles Corporation, as property owner of
120 North Seneca Street, Shippensburg, PA 17257, Tax Parcel No. 34-33-1867-006,
respectfully requests that this Honorable Court quash the instant appeal with prejudice.
Respectfully submitted,
By:
Jag& Bu an II, Esquire
P/A I.D. #203200
BUCHANAN INGERSOLL & ROONEY PC
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17101-2121
DATE: January 21, 2010
3
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Motion to
Quash Petition for Appeal from the Decision of the Cumberland County Board of
Assessment was served on the following via first class mail, postage prepaid, on this 21 st day of
January, 2010, addressed as follows:
Zoe E. Babe, Esquire
ANDREWS & BEARD
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
Samuel E. Wiser, Jr., Esquire
SALZMANN HUGHES, P.C.
Chambersburg Office
79 St. Paul Drive
Chambersburg, PA 17201
Stephen D. Tiley, Esquire
5 South Hanover Street
Carlisle, PA 17013
IN RE: APPEAL OF THE
SHIPPENSBURG AREA SCHOOL
DISTRICT AND THE BOROUGH OF
SHIPPENSBURG FROM THE
DECISION OF THE BOARD OF
ASSESSMENT APPEALS OF
CUMBERLAND COUNTY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
10-0363 CIVIL TERM
ORDER OF COURT
AND NOW, this (V7 day of January, 2010, upon consideration of
the motion to quash filed by Hoffman Mills, Inc./Richard Textiles Corporation, a Rule is
issued on the Shippensburg Area School District and the Borough of Shippensburg to
show cause why their appeal from the order of the Cumberland County Board of
Assessment Appeals should not be quashed.
Rule returnable twenty-one (21) days from service.
By the Court,
Jan L. Budman, II, Esquire
Zoe E. Babe, Esquire
Samuel E. Wiser, Jr., Esquire
/Stephen D. Tiley, Esquire
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Albert ?HM?asland, J.
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Stephen D. Tiley, Esquire 2010 FEB 2 1`??.: 4 t Supreme Court I.D. No.32318
- " '
Attorney for Cumberland County
Board of Assessment Appeals CLPa
5 South Hanover Street - , Tel: 717-243-5838
Carlisle Pennsylvania 17013 Fax: 717-243-6441
IN RE: APPEAL OF THE : IN THE COURT OF COMMON PLEAS
SHIPPENSBURG AREA SCHOOL : OF CUMBERLAND COUNTY,
DISTRICT AND THE BOROUGH OF : PENNSYLVANIA
SHIPPENSBURG FROM THE
DECISION OF THE BOARD OF CIVIL ACTION - LAW
ASSESSMENT APPEALS OF
CUMBERLAND COUNTY ASSESSMENT APPEAL
Petitioner : NO. 2010-363
TO THE PROTHONOTARY:
Please enter my appearance on behalf of the Respondent, Cumberland County Board of
Assessment Appeals, in the above captioned matter.
Dated:
h
Respectfully submitted,
By -?_ ??
Stephen D. Tiley, Esquire
Attorney for Cumberland County Board
of Assessment Appeals
5 South Hanover Street
Carlisle, PA 17013
(717) 243-5838
Supreme Court I.D.#32318
Stephen D. Tiley, Esquire Supreme Court I.D. No.32318
Attorney for Cumberland County
Board of Assessment Appeals
5 South Hanover Street Tel: 717-243-5838
Carlisle Pennsylvania 17013 Fax: 717-243-6441
IN RE: APPEAL OF THE : IN THE COURT OF COMMON PLEAS
SHIPPENSBURG AREA SCHOOL : OF CUMBERLAND COUNTY,
DISTRICT AND THE BOROUGH OF : PENNSYLVANIA
SHIPPENSBURG FROM THE
DECISION OF THE BOARD OF CIVIL ACTION - LAW
ASSESSMENT APPEALS OF
CUMBERLAND COUNTY ASSESSMENT APPEAL
Petitioner
: NO. 2010-363
I hereby certify that I served a true and correct copy of the foregoing Answer by
placing a certified true and correct copy of the same in the United States mail, postage
pre-paid, addressed to:
Jan L. Budman, II, Esquire
Buchanon Ingersoll & Rooney, P.C.
Attorney's for Petitioner
213 Market Street, 3rd Floor
Harrisburg, PA 17101-2121
Zoe E. Babe, Esquire
Counsel for Shippensburg
Area School District
Andrews & Beard
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
Samuel E. Wiser, Jr., Esquire
Counsel for Shippensburg Borough
Salzmann Hughes, P.C.
Chambersburg Office
79 St. Paul Drive
Chambersburg, PA 17201
Date:, 17
Stephen IS. Tiley, Esquire
Assistant Cumb. Co. Solicitor
5 S. Hanover Street
Carlisle, PA 17013
(717) 243-5838
Attorney I.D.#32318
Fa?Er} i I ^c.
,F T HE
2019 FED 19 PM I• ,;3
v lY; _. .
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: APPEAL OF THE SHIPPENSBURG
AREA SCHOOL DISTRICT AND THE
BOROUGH OF SHIPPENSBURG FROM
THE DECISION OF THE BOARD OF
ASSESSMENT APPEALS OF CUMBERLAND
COUNTY
CIVIL ACTION - LAW
ASSESSMENT APPEAL
NO. 2010-363
PETITION TO MAKE RULE ABSOLUTE
AND NOW, comes Hoffinan Mills, Inc./Richard Textiles Corporation (collectively
"Property Owner"), by its undersigned attorneys, and files this Petition to Make Rule Absolute
("Petition") and in support thereof states as follows:
1. On January 25, 2010, Property Owner filed a Motion to Quash Petition for Appeal
from the Decision of the Cumberland County Board of Assessment Appeals (the "Motion")
2. Paragraph 5 of the Motion avers:
The Shippensburg Area School District ("School District") and/or
the Borough of Shippensburg ("Borough") were represented by
Counsel who was/were present during the entire October 23, 2009
Hearing and, therefore, had actual knowledge of the Board's
decision to revise Property Owner's assessment.
(Emphasis added)
3. Paragraph 6 of the Motion avers that "[o]n October 26, 2009, the Board officially
noticed its October 23, 2009 decision to revise the assessment based on the Hearing ("Decision
Order")."
f
4. Paragraph 7 of the Motion, in pertinent part, quotes from the October 26, 2009
Decision Order wherein it provides: "[a]ny 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 November 25, 2009."
5. Paragraph 8 of the Motion, in pertinent part, avers that the School District's
"Petition for Appeal was filed ... on January 14, 2010, eighty (80) days after the Board's
Decision and Order were issued." (Emphasis in original).
6. Paragraph 10 of the Motion avers that the School District and the Borough's
"failure to file a timely appeal of the Board's decision denies this Court of jurisdiction over the
instant action." (Emphasis added).
7. On January 27, 2010, this Honorable Court issued a rule upon Shippensburg Area
School District ("School District") and the Borough of Shippensburg ("Borough") to show cause
why the relief requested in Property Owner's Motion should not be granted. ("Rule")
8. The Rule was returnable within twenty (21) days of service.
9. Answers to motions where the Court has decided to enter an order and to issue a
rule to show cause are bound to proceed under Pa. R.C.P. 206.7. See Pa. R.C.P. 208.4(b)(1).
10. Answers filed under rule Pa. R.C.P. 206.7, must be divided into separately
numbered paragraphs that deny or dispute the averments presented in the corresponding
numbered paragraphs of the petition. See Pa. R.C.P. 206.2; see also Pa. R.C.P. 1029 (requiring a
responsive pleading to either admit or deny and to refer specifically to the corresponding
paragraph in which the averment admitted or denied is set forth).
2
11. On or about February 17, 2010, the School District responded to the Rule and
filed its Answer to Motion to Quash ("School District's Answer").'
12. The School District's Answer at paragraphs 5, 6, 7, and 8 does not deny the
averments in the corresponding paragraphs 5, 6, 7, and 8 of the Motion.
13. The School District's Answer does not even include a response to paragraph 10 of
the Motion.
14. Accordingly, the following material facts from the Motion must be deemed
admitted and undisputed:
(a) the fact that the School District, by its presence at the
Hearing, had actual knowledge of the Board's decision on
October 23, 2009 (Motion at ¶5);
(b) the fact that Board mailed or otherwise delivered the
Decision Order on October 26, 2009 (Motion at ¶6);
(c) the fact that the deadline for any aggrieved person to appeal
the Decision Order was November 25, 2009 (Motion at ¶7);
(d) the fact that the School District's appeal was filed almost
fifty (50) days after the November 25, 2009 deadline
established by the Board's Decision Order (Motion at ¶8);
and
(e) the fact that the School District and Borough failed to file a
timely appeal denies this Honorable Court of jurisdiction
(Motion at ¶ 10).
15. Therefore, the Rule is now ripe for adjudication as to the School District. See Pa.
R.C.P. 206.7(b).
' The School District's Answer is also styled as a Petition to Appeal Nunc Pro Tunc. While the Property
Owner reserves all rights to respond once if this Court would request such a response, it still feels compelled to point
out that an appeal nunc pro tunc is an extraordinary remedy requiring fraud or other unique and compelling
circumstances. Criss v. Wise, 566 Pa. 437, 442-43, 781 A.2d 1156, 1159-60 (2001); Cook v. Unemployment
Compensation Bd of Review, 543 Pa. 381, 383-84, 671 A.2d 1130, 1131 (1996). Nunc pro tunc relief would be
particularly inappropriate on a set of facts where the potential appellant, who was represented by counsel that was
present at the very decision it now seeks to appeal, sat on its hands for almost eighty (80) days before taking any
action.
3
16. To date, Property Owner is not aware of any filing by the Borough in response to
the Motion in accordance with the Rule.
17. The time for filing any other opposition has now expired and no other written
response in opposition to the Rule has been filed or served
18. All averments of fact in the Motion may be deemed admitted as to the Borough.
Pa. R.C.P. 206.7(a).
19. Accordingly, the Rule is also ripe for adjudication against the Borough. Pa.
R.C.P. 206.7(a).
WHEREFORE, Hoffman Mills, Inc./Richard Textiles Corporation, now moves that this
Honorable Court enter an order, in the proposed form attached, making the Rule absolute and
thus granting the aforesaid Motion to Quash Petition for Appeal from the Decision of the
Cumberland County Board of Assessment Appeals.
Respectfully submitted,
B
Jan I,. Bud an II, Esquire
P I.D. #203200
BUCHANAN INGERSOLL & ROONEY PC
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17101-2121
DATE: February 18, 2010
4
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Petition to
Make Rule Absolute was served on the following via first class mail, postage prepaid, on this
18th day of February, 2010, addressed as follows:
Zoe E. Babe, Esquire
ANDREWS & BEARD
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
Samuel E. Wiser, Jr., Esquire
SALZMANN HUGHES, P.C.
Chambersburg Office
79 St. Paul Drive
Chambersburg, PA 17201
Stephen D. Tiley, Esquire
5 South Hanover Street
Carlisle, PA 17013
Budman II, Esquire
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA °
In re: Appeal Of The Shippensburg
Area School District From The Decision
Of The Board Of Assessment
Appeals Of Cumberland County
Property:
120 North Seneca Street
Shippensburg, PA 17257
CIVIL ACTION - LAW,: --
Assessment Appeal
NO.2010-363.
C)
ANSWER TO MOTION TO QUASH AND
PETITION TO APPEAL NUNC PRO
TUNC
Filed on Behalf of:
Shippensburg Area School
District
Zoe E. Babe, Esquire
Pa. I.D. No. 92979
Counsel for Shippensburg Area
School District
ANDREWS & BEARD
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
814-296-2305
FAX - 814-943-0519
m
-c
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District From The Decision
Of The Board Of Assessment Assessment Appeal
Appeals Of Cumberland County
NO. 2010-363
ANSWER TO MOTION TO QUASH AND PETITION TO APPEAL NUNC PRO TUNC
AND NOW COMES the Shippensburg Area School District, by and through their
undersigned counsel, and hereby files the within Answer to Motion to Quash and Petition
to Appeal Nunc Pro Tunc, and in support thereof, allege the following:
1. Appellants the Shippensburg Area School District ("District"), along with
Shippensburg Borough, filed a Petition for Appeal from the Decision of the Cumberland
County Board of Assessment Appeals on January 14, 2010 pertaining to the real
property located at 120 North Seneca Street, Shippensburg, PA 17257, and Tax Parcel
No. 34-33-1867-006.
2. On January 21, 2010, Counsel for property owner, the Richard Textiles
Corporation, filed a Motion to Quash Petition for Appeal from the Decision of the Board
of Assessment Appeals, arguing that the Petition for Appeal of the District was untimely.
3. It is denied that the Petition was untimely inasmuch as the School District
did not receive the Order of the Board of Assessment prior to January 12, 2010 when
counsel for the District received the Order by facsimile from the Cumberland County
Assessment Office. (Attached hereto marked Exhibit "A", and made part hereof, is a
copy of both the cover page and the Order received from the Board of Assessment on
January 12, 2010.)
4. The time for filing an Appeal within which the City, Borough, Township or
School District is entitled to appeal from actions of the Board shall commence to run on
the day "notice is mailed or otherwise delivered," as 72 P.S. §5453.703a states as
follows, "The time limit within which the city, borough, township and school district is
entitled to appeal from the actions of the board or from the decision of the court of
common pleas shall commence to run on the day such notice is mailed or otherwise
delivered."
5. The thirty (30) day time period pursuant to 42 Pa. C.S. §5571 therefore
would not have begun to run until the Notice was mailed or otherwise delivered to
counsel for the District on January 12, 2010.
6. Further, because no prejudice has resulted to any party involved as a
result of the filing of the Petition for Appeal, in the alternative, even if this Honorable
Court finds a timeliness issue, Appellant respectfully requests that this Court allow the
Petition for Appeal Nunc Pro Tunc.
7. An appeal Nunc Pro Tunc is appropriate in non-negligent circumstances
when the Appeal is filed within a short time after the Appellant or his Counsel learns of,
and has an opportunity to address, a timeliness issue. (See Cook v. Unemployment
Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996)).
8. In situations where a taxing authority does not receive notice pursuant to
statute, the taxing authority may petition the Court of Common Pleas to allow a nunc pro
tunc appeal. Morrisons Cove Home v. Blair County Board of Assessment Appeals, 764
A.2d 90, 92 n. 4 (Pa. Cmwlth. 2000).
9. Even if the Court should find that the statutory period had run, the
Appellant has not been negligent and filed their Appeal within two days of receiving the
Order and respectfully request that this Court allow the taxing authorities Appeal Nunc
Pro Tunc.
WHEREFORE, the Shippensburg Area School District respectfully requests that
this Honorable Court dismiss the Motion to Quash and strike the Motion from the record
or alternatively grant the Appellant's Petition to Appeal Nunc Pro Tunc.
Respectfully submitted,
ANDREWS & BEARD
By:
Zoe E. Babe, Esquire
Pa. I.D. No. 92979
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
814-296-2305
FAX: 814-943-0519
Counsel for Shippensburg Area School District
Jan 11 2010 22:08
7172406354 p-1
County of Cumberland
One Courthouse Square
Carlisle, PA 17013
Assessment Office
Main Phone#: 717-240-6350 / Fax#: 717-240-6354
Date:
To: ?ae-
From: _ Z'0,o1 n 1'e- MA-Alp
Number of Pages (including cover sheet):
EXHIBIT
A
l'--- j_
Jan 11 2010 22:08
7172406354 P.2
Cumberland County Board of Assessment Appeals
Old Courthouse
One Courthouse Square
Carlisle, PA 17013
Board ofAsmsament Appeals
Uoyd W. Bucher
R. Fred Hefelfinger
Sarah Hughes
I
l?
(717) 240 6350
(717) 240-635 (fax)
BONNIE M. MAH NEY
ChisfAsse or
STEPHEN TILEY
Assistant S fiNtor --J
DECISION ORDER
MAILING DATE: October 26, 2009
PARCEL NUMBER: 3433-1867-006.
RICHARD TEXTILES CORPORATION
PO BOX 330
SHIPPENSBURG PA 17257
Dear Property Owner:
This letter is to officially notify you of the decision of the Cumberland County Board of Assessment Appeals
regarding the above-referenced parcel.
DATE OF APPEAL HEARING: 10123/2009
DATE DECISION RENDERED: 10123/2009
EFFECTIVE FOR TAX YEAR: 2010
DECISION RENDERED: [ ] Withdrawn By Applicant
[ ] Abandoned For Failure To Appear
[ ] Denied - No Change
[ } Approved Review Appraiser's Changes
[X] Revised Assessment Based on Hearing
[ ] Other:
TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GR
STATUS
Old Assessed Value: 950,000 NOT
New Assessed Value: 395,500 APPLICABLE
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 November 25, 2009.
! A
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District From The Decision
Of The Board Of Assessment : Assessment Appeal
Appeals Of Cumberland County
NO. 2010-363
ORDER OF COURT
AND NOW, this day of
, 2010, it is hereby
ORDERED, ADJUDGED, and DECREED that the Motion to Quash Petition for
Appeal filed by property owner Hoffman Mills, Inc./Richard Textiles, is hereby
dismissed and stricken from the record.
BY THE COURT:
J.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District From The Decision
Of The Board Of Assessment Assessment Appeal
Appeals Of Cumberland County
NO. 2010-363
CERTIFICATE OF SERVICE
I, Zoe E. Babe, Esquire, hereby certify that on this It ' day of February,
2010, a true and correct copy of the foregoing Answer to Motion to Quash
Petition for appeal has been sent via regular U.S. Mail, postage prepaid to the
following parties:
Stephen D. Tiley, Esquire
One Courthouse Square
Carlisle, PA 17013
Jan L. Budmann II, Esquire
Buchanan Ingersoll & Rooney PC
213 Market Street, 3rd Floor
Harrisburg, PA 17101-2121
Samuel E. Wiser, Jr. Esquire
Salzmann Hughes, P.C.
79 St. Paul Drive
Chambersburg, PA 17201
--? Z--Et6'-
Zoe E. Babe, Esquire
Andrews & Beard
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
FILED-4:!;==ICE
T K-:: ID`i!': 'gCTARY
2010 FEB 17 PM 3: 35
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District And The Borough
Of Shippensburg From The Decision Assessment Appeal
Of The Board OF Assessment
Appeals Of Cumberland County NO. 2010-363
ANSWER TO MOTION TO QUASH
AND
Property: PETITION TO APPEAL NUNC PRO
120 North Seneca Street TUNC
Shippensburg, PA 17257
Filed on Behalf of:
The Borough
Of Shippensburg
Samuel E. Wiser, Jr., Esquire
Pa. Id. No. 203665
Counsel for Shippensburg Borough
SALZMANN HUGHES, P.C.
Chambersburg Office
79 St. Paul Drive
Chambersburg, PA 17201
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District And The Borough
Of Shippensburg From The Decision Assessment Appeal
Of The Board OF Assessment
Appeals Of Cumberland County NO. 2010-363
ANSWER TO MOTION TO QUASH AND PETITION TO APPEAL NUNC PRO
TUNC
AND NOW COMES the Borough of Shippensburg, by and through their
undersigned counsel, Samuel E. Wiser, Jr. of Salzmann Hughes, P.C. and
hereby files the within Answer to Motion to Quash and Petition to Appeal Nunc
Pro Tunc, and in support thereof, allege the following:
1. Appellants the Shippensburg Area School District ("District") and the
Borough of Shippensburg ("Borough") filed a Petition for Appeal from the
Decision of the Cumberland County Board of Assessment Appeals on January
14, 2010 pertaining to the real property located at 120 North Seneca Street,
Shippensburg, PA 17257, and Tax Parcel No. 34-33-1867-006.
2. On January 21, 2010, Counsel for property owner, the Richard
Textiles Corporation, filed a Motion to Quash Petition for Appeal from the
Decision of the Board of Assessment Appeals, arguing that the Petition for
Appeal of the District and the Borough was untimely.
3. It is denied that the Petition was untimely inasmuch as the Borough
did not receive the Order of the Board of Assessment prior to January 12, 2010
when counsel for the District received the Order by facsimile from the
Cumberland County Assessment Office.
4. The time for filing an Appeal within which the Borough is entitled to
appeal from actions of the Board shall commence to run on the day "notice is
mailed or otherwise delivered," as 72 P.S. §5453.703a states as follows, "The
time limit within which the city, borough, township and school district is entitled to
appeal from the actions of the board or from the decision of the court of common
pleas shall commence to run on the day such notice is mailed or otherwise
delivered."
5. The thirty (30) day time period pursuant to 42 Pa. C.S. §5571
therefore would not have begun to run until the Notice was mailed or otherwise
delivered to counsel for the Borough on January 12, 2010.
6. Further, because no prejudice has resulted to any party involved as
a result of the filing of the Petition for Appeal, in the alternative, even if this
Honorable Court finds a timeliness issue, Appellants respectfully request that this
Court allow the Petition for Appeal Nunc Pro Tunc.
7. An appeal Nunc Pro Tunc is appropriate in non-negligent
circumstances when the Appeal is filed within a short time after the Appellant or
his Counsel learns of, and has an opportunity to address, a timeliness issue.
(See Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130,
1131 (Pa. 1996)).
8. In situations where a taxing authority does not receive notice
pursuant to statute, the taxing authority may petition the Court of Common Pleas
to allow a nunc pro tunc appeal. Morrisons Cove Home v. Blair County Board of
Assessment Appeals, 764 A.2d 90, 92 n. 4 (Pa. Cmwlth. 2000).
9. As stated, when the Borough did not received the Order of the
Board of Assessment, the Appellants inquired to the Board of Assessment and
were faxed the Order on January 12, 2010, the Appellants filing an Appeal two
days after receiving the Order on January 14, 2010.
10. Even if the Court should find that the statutory period had run, the
Appellants have not been negligent and filed their Appeal within two days of
receiving the Order and respectfully request that this Court allow the taxing
authorities Appeal Nunc Pro Tunc.
WHEREFORE, the Borough of Shippensburg respectfully request that this
Honorable Court dismiss the Motion to Quash and strike the Motion from the
record or alternatively grant the Appellant's Petition to Appeal Nunc Pro Tunc.
Respectfully submitted,
By:
/ Sarhuel E. W4 t, Jr. Esquire
Pa. 1. . 0.203665
Salzmann Hughes P.C.
79 St. Paul Drive
Chambersburg, PA 17201
Counsel for Shippensburg Borough
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District And The Borough
Of Shippensburg From The Decision Assessment Appeal
Of The Board OF Assessment
Appeals Of Cumberland County NO. 2010-363
ORDER OF COURT
AND NOW, this day of , 2010, it is hereby
ORDERED, ADJUDGED, and DECREED that the Motion to Quash Petition for
Appeal filed by property owner Hoffman Mills, Inc./Richard Textiles, is hereby
dismissed and stricken from the record.
BY THE COURT:
J.
VERIFICATION
I verify that all the statements made in the foregoing Answer to Motion to
Quash are true and correct to the best of my knowledge, information and belief
and that any false statements made are subject to the penalties of 18 Pa. C.S.
Section 4904 relating to unsworn falsification to authorities.
ell
Earl Parshall, Borough Manager
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: Appeal Of The Shippensburg CIVIL ACTION - LAW
Area School District And The Borough
Of Shippensburg From The Decision Assessment Appeal
Of The Board OF Assessment
Appeals Of Cumberland County NO. 2010-363
CERTIFICATE OF SERVICE
I, Samuel E. Wiser, Jr., Esquire, hereby certify that on this 1 day of
February, 2010, a true and correct copy of the foregoing Answer to Motion to
Quash Petition for appeal has been sent via regular U.S. Mail, postage prepaid to
the following parties:
Stephen D. Tiley, Esquire
One Courthouse Square
Carlisle, PA 17013
Jan L. Budmann II, Esquire
Buchanan Ingersoll & Rooney PC
213 Market Street, 3?d Floor
Harrisburg, PA 17101-2121
Zoe E. Babe, Esquire
Andrews & Beard
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603-1311
00141iiai1i1 nl
79 St.
Chambersburg,
Y ,,, A
IN RE: APPEAL OF THE IN THE COURT OF COMMON PLEAS OF
SHIPPENSBURG AREA SCHOOL CUMBERLAND COUNTY, PENNSYLVANIA
DISTRICT AND THE BOROUGH OF
SHIPPENSBURG FROM THE
DECISION OF THE BOARD OF C . -"
ASSESSMENT APPEALS OF
CUMBERLAND COUNTY 10-0363 CIVIL TERM -
- r-,,
a _.
ORDER OF COURT
AND NOW, this day of March, 2010, upon consideration of* parses
responses to the rule to show cause why Petitioners' appeal should not be quashed as
untimely, IT IS ORDERED:
(1) Respondent's petition to make rule absolute is denied.
(2) Petitioners allege the Cumberland County Board of Assessment Appeals
(Board) failed to mail timely notice of its decision reassessing the value of respondent's
real property. This raises a disputed issue of material fact. See Connor v.
Westmoreland County Bd. of Assessment Appeal, 598 A.2d 610, 612-13 (Pa. Cmwlth.
1991) (concluding allegation of official's negligent failure to mail notice of tax
assessment raised material issue of fact dispositive to appellant's petition to appeal
nunc pro tunc). Accordingly, the petition shall be decided under Pa. R.C.P. No.
206.7(c).
(3) The parties shall conduct necessary discovery or depositions within thirty-five
(35) days of entry of this order on the issue of when, how and by whom notice was
provided and, specifically, whether the Board failed to mail timely notice of the
reassessment.
(4) Briefs shall be filed in chambers at least seven (7) days prior to argument,
which shall be held on Wednesday, May 19, 2010, at 10:00 a.m., in Courtroom Number
5, Cumberland County Courthouse.
(5) Notice of the entry of this order shall be provided to all parties by petitioners.
(6) All proceedings shall stay pending further order of court.
By the Court,
Jan L. Budman, II, Esquire
Zoe E. Babe, Esquire
,--!!<;a'muel E. Wiser, Jr., Esquire
,,-g't'ephen D. Tiley, Esquire
sal
G6L
Albert H. Maslan , J.
7 r
~ ,~.
5
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: APPEAL OF THE SHIPPENSBURG
AREA SCHOOL DISTRICT AND THE
BOROUGH OF SHIPPENSBURG FROM
THE DECISION OF THE BOARD OF
ASSESSMENT APPEALS OF CUMBERLAND
COUNTY
CIVIL ACTION -LAW
ASSESSMENT APPEAL
NO. 2010-363
ORDER OF COURT
AND NOW, this ~/ da of May, 2010, upon consideration of the Joint Motion for
Continuance, it is hereby ORDERED that said Motion is GRANTED. The March 12, 2010
Order is continued and briefs shall be ftled in chambers at least seven (7) days prior to argument,
which shall be held on ,June ~o°, 2010 at IJ; ifs a.m./p..~r., in
Courtroom Number 5, Cumberland County Courthouse.
J/ an L. Budman II Es uire
q
~E. Babe, Esquire
~muel E. Wiser, Jr., Esquire
~phen D. Tiley, Esquire
l ~.S i'h.~.l ~ 1..~
s /-3~1D
BY T COURT:
Albert H. Masland, J.
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