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HomeMy WebLinkAbout01-2445 IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA. CUMBERLAND COUNTY In Re: Interest of Joseph W. Elhaj No. ~/. PETITION FOR RELIEF UNDER THE RIGHT-TO-KNOW ACT, 65 P.S. SECTION 66.4 To The Honorable, The Judges of The Said Court: Petitioner, Joseph W. Elhajj, by and through his attorney, Joseph A. Macaluso, respectfully states: 1. Petitioner is a sui jurls adult, whose address is 1 West King Street, Shippensburg, Cumberland County, Pennyslvania 17257. 2. Petitioner performs residential and commercial real estate appraisals in and about Cumberland County, Pennsylvania, and the surrounding counties. 3. In or about September, 2000, petitioner made request, under the the Right-to- Know Act, 65 P.S. Section 66.3, to Randall Wagner, Chief Assessor of Cumberland County, for permission to inspect and photocopy, at petitioner's expense, the independent appraisal reports relating to commercial and industrial tax appeals in the Tax Assessor's Office in Cumberland County for the year 2000, as well as for a list of such appeals. 4. The Chief Assessor referred petitioner's request to their legal counsel, Stephen D. Tiley, Esq., 5 S. Hanover St., Carlisle, Pennsylvania 17013. 5. Petitioner, through his own legal counsel, by way of letter dated September 26, 2000, set forth petitioner's request to Attorney Tiley, a copy whereof is attached hereto as Exhibit A. 6. The ChiefAesessor, through legal counsel, answered petitioner's u letter dated January 26, 2001, stating that "nrovidi-- ,,-- . req est by violate the copyri-,ht -ro ....... " -u ~,use copies to your client WOuld = ~, [-c,on which WOuld, apparentJy, preclude your client from using them for its business purposes .... Should you desire to pursue this further, you must show to us how the copying of these documents to your client WOuld not violate the copyright laws." A copy of said leEer is affached hereto as Exhibit B. 7. By way of letter dated February 14, 2001 (a copy whereof is attached hereto as Exhibit C), petitioner, through his legal counsel, altempted to show how copying the subject documents WOuld not violate the copyright laws. 8. Petitioner avers that the Right-to-Know Act contains no exemption fi'om its requirements based on copyright infringement. 9. Petitioner further maintains that the copyright laws do not '--- -'- .... rights " ual ~ne Petiaoner's under the Right-to-Know Act for the following reasons: d . a. the information contained in real estate appraisels is based largely on public eeo records which are not subject to coPYright; b. the general appraisal methodology, e.g. the ,,,~,,,,_._,, ...... comparable sales a~nroa,~ ;,, - ,-,,,,~=a wnlcn Cloes not appear to be subject to copyright; '-" '"" '° = c. the typical appraisal forms, i.e. the standard Freddie Mac Form 70 or Fannie Mae Form 1004, are not subject to copyright; and d. the Pennsylvania Commonwealth Court has already held that real estate appraisals am public records within the meaning of the Right-to-Know Act, e.g. City of Chester v. Getek, 572 A. 2d 1319 (1990). 10. To date, petitioner has not received permission te copy the public documents. 11. Under the Right-to-Know Act, 65 P.S. Section 66.3, any Pennsylvania citizen has the right to make copies of public records. 12. Petitioner is a Pennsylvania citizen. 13. In accordance with 65 P.S. Section 66.1, the appraisal reports which petitioner seeks te inspect and copy must be considered an "essential component of an decision", since the determinations mede by the Assa,,,,, ,,~ ~__,. .... a.gency aPril=Is a ......... '-~,- ,,-,.,u,,~u~,ano County in tax ,--~. ,= uu~ungen! on the ~nformation contained in these appraisal reports. 14. Therefore, the appraisal reports which petitioner seeks to inspect and copy are public records under the Right-to-Know Act, 65 P.S. Section 66.3. 15. Petitioner is entitled to inspect and copy the appraisal reports under the Right- to-Know Act, 65 P.S. Section 66.3. 16. Petitioner has been denied permission to inspect and without just and proper cause. COPy the appraisal reports 17. This Court has jurisdiction pursuant te 65 P.S. Section 66.4. · WHEREFOR. E, petitioner requests that Ibis Court enter an Order for disclosure directing the Ch~efAssassor of Cumberland County, to permit petitioner to inspect and photooopy, lit I~tilionat'~ ~xi~n~, any and ~,11 indaplmdant appral~! rapo~ relliti~ to oomm~mi~l lind indusltlil t~x ll~ fil~cl in th~ Tax Az~,or'l Ofllc~ in OUfllbltl~lCl Oounty in oonn~Xion with ~ny tax 8pl~l~ I~ ~ ~ cl~.iclecl by tim Chief A~r of Cumberland County. ~'~ey for Pelilioner · ' Joseph A. Macalu$o Al~orney al Law ' '" 9614 Rowe Run Loop · Shippensburs, Pennsylvania ~7257 Admi~ed ~o Practice m Pennsylvania, New Jee,,ey, and New York September 26, 2000 (717) 532-4832 Stephen D. Tiley, Esq. cO~Y 5 S. Hanover St. Carlisle, PA 17013 Dear Mr. Tiley: I represent .Apex yaluation Serv!ces, Whl.ch. perfo.mm..re?dential and commemial rea ~Su~eariPaPn~i~aoluSr~n.P.e~nns.y.lva.n.,a, and wh,ch rna,nta,n. ,ts offices j, Shippensbum Cumberland Coun~i nny Cllem nas recently asked Randall Wagner, ChiefAssea~r of for permisison to inspect and photocopy, at my ciient's expense, the independent appraisal reports relating to commercial and industrial tax appeals in Cumberland County for the current year, as well as for a Ii issue has been mi .,~,~._. ,~. .... at of such ap eals T e ,s entitled to insnect a,~,~ .... ,,,_ pp sal r~...ort~, are pubhc records which client Cou ,- .,,. ~.,~,y. vv~ understano ~at ou are s ' ' my nty Tax Assessment Office and s .. Y oh.c!t.or for Cumberland o I am writing to you about m~a. ~l~dt~thm~kR~gchot~eaK~f~ubA/ili~ 6re5( P.S..S~. ion 66.3, any Pennsylvania citizen has the P cords. N°te 7 °f 65 P.S. Section 66.1 cites City of Chester v. Getek, 572 A. 2d 1319 (1990), whom the Pennsylvania Commonwealth Court held that real estate appraisals relating to the purchase of property by the city were public records within the meaning of the act Other P.S. Section 66 1 hold -eh-.---- ,,- ..... ' cases cited in Note 7 of 65 · u o,o,,y u,m mr a oocument to be considered a public record, it must be an essential component of an agency decision, and that cons,dered an essential comnnnent M ......... such a document is · . ....,-- .,,, o,., agency cec,s,on if the decision was ~. n[ or [ne oecisJon). Other examples of documents held to be public records are: statistical data on racial and ethnic programs for exceptional children compiled by the Department of Education; and property report cards of tax asses.sment boa..rds. While not every document in th. · .agency..may be said to const,tute a n h,,. ,.~..~ ...... e possess,on of an ,n quest,on meet the standard sat ~oPr~r)~)~:~-u:, .v~_.~.e.,,eve that the appraisal reports agree, my chent would like to h ~ ~.... = o.u ma.[. mey am pubhc records. If ou next week W -. ..... .._._ av.. -~,~,roval to make the conies ,~,,,,--,--., ..... Y · · d., ,=,p,u~ate your prompt attention in this i~1~.'~''=°~'u uumer, me Sincerely, Joseph A. Macaluso .- FREY & TILEY ATTORNEYS-AT. LAW 5 8OIJTH HN~X)VER Sli~=E.r CAP, USLE. PENNSYLVN~IIA 17013 ROBERT Id. FREY O~FF COUNSEL 8TEPHEN D. TIL.EY ROBERT G. FREY TELEPHONE (7'17) 243-5838 FACSIMILE (717) 2436441 January 26,' 2001 Joseph A. Macaluso, Esquire 9614 Rowe Run Loop Shippensburg, PA 17257 Re: Apex Evaluation Services Dear Mr. Macaluso: In response to your letter of September 26, 2000, the County believes that copying of appraisals which were submitted to the Board of Assessment Appeals and providing those copies to your client would violate the copyright protection which would, apparently, PreClude your client from using them for its business purposes. We do not want the County to participate in any copyright infringement. Should you desire to pursue this further, you must show to us how the copying of these documents to your client Would not violate the copyright laws. Sincerely yours, Stephen D. Tiley SDT/tal cc: Robert C.Saidis, Esquire Randy L. Waggoner, Chief Assessor .. Joseph A. Macaluso · - Attorney at Law ' ' ' ' 9614 Rowe Run Loop · Shippensbur8, Pennsylvania 17257 AdmJlled Io Praclice in Pennsylvania, New Imey, and New York (717) 532-4832 February 14, 2001 St~hen D. 'riley, F. aq. 5 S. Hanover St. Cerliaie, PA 17013 la.e: Apex Valuation 8ervi~ Dear Mr. Tiley: Thank you for your reply of January 26, 2001, in which you reise the issue of copyright protection of the appreissl reports for commercial and industrial tax appeals in Cumberland County, which my client, Apex Valuation 8ewicas, hss requested permission to inspect and photocopy under the Right-to-Know Act, 65 P.S. Section 66.3. You have asked me to ehow how the copying would not violate the copyrigM lewd. My reaponse is aa follows. First, the Right-to-Know Act contains no exemption from its requirements based on copyright. The information contained in an appraisal ia bassd largely on public deed records, and the gensrel appreical methodology, e.g. the oompereble sslss approach, does not itself appear to be subject to copyright. In fact, the typical meidentlal appraisal is prepared on a standard Freddie Idem Form 70 or Fannie Mae Form 1004. A better question may be: how can an appraiser offer an appraisal as a public document in a tax appeal and still maintain copyright protection? Second, and more importantly, there is already precedent in the case of Cily of Chester v. Getek, 572 A. 2d 1319 (1990), where the Pennsylvania Commonwealth Court held b~at real estate appraisals are public records within the meaning of the Act. I believe we have submitted sufficient authority to support my client's position. My client has directed me to take eppropdale action if the request is not granted. Please let me know if your client still refuse~ to grant the request. ~dncaraly,. ,-. _// ~ ,~oe~ Yaluatlon OF COMMON pLEAS OF THE 9TH JUDICIAl- DISTRICT ,., ~-.,= oURT ..... . eER~O COU"~' ...___ ' ,o. In Re: Interest of Joseph W. Elha~ RULE W, this "~~-O-~O day of ~' 2001, upon consideration of O · .to-Know Act, 65 P.S. Se~ion 66.4, a ;ule AND N . . ,,_,:,a llnder the Right _ .~ r, umbertand County, · - issued upon ;seponau ..... ~A 47013, as follows I~lne CoUrt H" 'se Squefe, c;eRtsm, rn - . . "" the d~te of service of · . within 20 d~yS .... ,-nswer the petition ._,~/. ~ ~..,CL ~ .-* ~ / 1)Respondentsna'' _.,_n+' ~4~ -"-- ....~..,~ ,,non the respo..u~ ,~. I,.~. ~o -~ th..,~.,_n ?~-~. t,~ ~,~~ '~"~'~'~ ---t · 2001 o' .m. in Court ---'-' the disputed shall be' the , ~_.m. in tatum Rule $ ,~o~.°~ OI :1 Nd OE;ard~ I0 A F~ .... . , · ELY,., ............. ~ JO .-'J ,. :'-!.-....- d:, .... IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA ' CUMBERLAND COUNTY In Re: Interest of Joseph W. EIhaii No. 0t-2445 Civil Term MOTION TO MAKE RULE ABSOLUTE To the Honorable, the Judges of the said Court: NOW comes movant, Joseph A. MacolusO, attorney for petitioner, Joseph W. Elhaii, and respectfully moves this Court to make absolute the Rule which was issued in the above-captioned proceeding on April 30, 2001, and in support hereof states the following: 1. On April 26, 2001, petitioner filed with the Court his Petition for Relief Under the Right-to-Know Act, seeking permission to inspect and photocopy the independent appraisal reports relating to commercial and industrial tax appeals in the Tax Assessor's Office in Cumberland County for the year 2000, as well as for a list of such appeals. 2. On April 30, 2001, a Rule was issued to respondent, Randall Wagner, Chief Assessor, One Court House Square, Carlisle, PA 17013, directing him to file an answer with the Court within 20 days of service of same. A copy of the Rule is attached hereto as Exhibit A. 3. On May 3, 2001, movant served the aforesaid Petition and Rule upon Randall Wagner by certitied mail return receipt requested, postage prepaid, in accordance with movant's certificate of service filed with the Court on May 4, 2001. 4. On May 4, 2001, the aforesaid Petition and Rule were received by the Chief Assessor's office, as indicated in the copy of the certified moil return receipt attached hereto as Exhibit B. 5. More than 20 days have expired since service of the Petition upon respondent, but movant has not received any answer to the Petition. 6. On the date hereof, Movant inquired of the Prothonotary's Office in Cumberland County whether any answer has been filed, and the response wes negative. 7. For the foregoing reasons, petitioner is entitled to the relief mquestod. WHEREFORE, movant respectflJIly requests that your Honorable Court moke the Rule absolute and grant the relief requested in the Petition for Relief Under the Right-to-Know Act. Respectfully Submitted, VERIFICATION I verify that the within motion is true and correct to the best of. my k.n .o~_e__d..g_e_._ · . · that an false statements moae nerem ~nfofmation and bel~..ef. I u. nde. rstand_._..__.,Y~, oa c. R Section 4904, relating to subject to the penalties o~ pequry comam~.-u ,,, ,-,. ....... Dated: May 30, 2001 CERTIFICATE OF SERVICE I hereby certify that on May 30, 2001, I caused to be served a true and correct copy of the within Motion to Make Rule Absolute, by first class mail, postage prepaid, addressed to the following individual: Randall Wagner, Chief Assessor, One Court House Square, Carlisle, PA 17013· further certify that the statements made herein are tree and correct, and I ~1 .... -' '~-'~ if an" false statements were made here!n: the. same wo__u_ld be unoemtul~u u,a, ~ _.. am.. ~- o ~,,'.~inn 49Q4 relating tO unswom · ct to the enalfies OT lO Fa. v. g, w ........... subje P falsification to authorities. Dated: May 30, 2001 ~ IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENN~YI.VANIA ' CUMBERLAND COUNTY In Re: Interest of Joseph W. Elheii No. ~ RULE AND NOW, this .~0 day Of._.~LE~.L-----.~ 20011 upon consideration of the within Petition for Relief Under the R~gnt-to-Know Act, 65 P.S. Section 66.4, a rule is issued upon respondent Randall Wagner, Chief Asse~or of Cumberland County, One Court House Square, Carlisle, PA 17013, as follows (appropriate items checked): 1) Respondent shall answer the p~ti, 'tion within 20 day~.o~: the dat~ of, siervice of the within I~u,~ up~gn thq I~esPo,~den, ti_ ~.~_~ ~~ o'clock .m. County shall return r By the Cou~t, TRUE CO.P.~ F'R~.'M RECORD In Testimony wh .rr-o~, I h: '.,;t.o set my MnlJ and tl~ seal of sai¥Cour)Lat C/ariMa,/1aa- Joseph A. Macaluso Attorney at Law 9614 Rowe Run Loop · Shippensburs, Pennsylvania 17257 (717) 532-4832 qJUN 0 1 200'~ ~,.'.'~"v~ .......... ,am · m~ .elatmnil le~lce.. I milo wish to ~ei~ the ~11. W~q ncc ~s~, ~-~ ,- ~ ~ ~~_. .......... .--~ ~M~C RE~RN RECEI~ IN RE: iNTEREST OF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND cOUNTY, PENNSYLVANIA JOSEPH W. ELHAJJ i 01-2445 CIVIL TERM ND NOW, this __ ~.~'" --day of June, 2001, upon consideration of the A -- - -'-- ~'ule to shoW cause issued on respondent, · orion, IT IS ORDERED thai mu n within m .... ~. ,.=nERED that the Randall Wagner, Chief Assessor, IS MADE ABSOLUTE. i/ Assessor shall permit petitioner, Joseph W. EIhajj, to inspect and photOcopy the independent appraisal reports in the Tax Assessor's Office in Cumberland County, as well as the list of such appeals. ;S88 OF PENNSYLVANIA In Re: Interest of Joseph W. Elhaii No. 01-2445 Civil Term CERTIFICATE OF SERVICE · thM '- - der the Hig~-t~ - I hereby ~ ., ~. PMition ~r Reh~ Un ...... ~ il return .~ ~=ov of the p~,one-- - .~_ ~,,~ n indivieuat oy ~,-~-- ~.~ Ho ~ ~, ......~ - .. ~ ~nn4 u~n m=,u,'---'~= .... . ~..=asor, u~e ~ ...... u ~u~ p~ge pmpatu. ~ ~uare, Carlisle, PA 17013. I ~er ~ ~at ~e s~~ ~de heroin are ~ue and ~rre~, and I if an ~1~ ~n~ ~ made hemtn,.~e ~ ~uld be unde~nd, th~j--,.~ M 18 Pa. C. S. Se~on 49~, miming m uns~rn sub~ to the falsifi~ion to a~oriti~. ATToRNEYS'AT'LAW G/~ ~LV~ 1~3 I~ER~' M. FREY TELEPHONE (717) 243-5838 COUNSEL FACSIMILE (717) 243~441 [PHEN D. TILEY ~BEm e. FREY June 4, 2001 Hon. Edgar B. Bailey Court of common pleas Cumberland County, Pennsylvania One South Hanover Street Carlisle, Pennsylvania 17013 In Re: Interest of Joseph W. EIhaii No. 2001-2445 Civil Term Dear Judge Bailey: In regard to the above referenced matter, the County has determined not to defend the petition and is in the process of establishing procedures for the accessing of the records requested. Sincerely yours, Stephen D. Tiiey SDTImm cc: Joseph A. Macaluso, Esq.