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HomeMy WebLinkAbout11-8820J Helen L. Uemmill (Pa. I.D. No. 60661) MCNEES WALLACE & NURICK LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5273 `A1O?l 3 rAF10/? ? j C of U+t . Counsel for Appellant/Petitioner CPP Hess Holdings LP In Re: IN THE COURT OF COMMON PLEAS Appeal of CPP Hess Holdings, LP CUMBERLAND COUNTY, : PENNSYLVANIA From The Decisions of the Tax Assessment Appeal Cumberland County Board CIVIL ACTION - LAW of Assessment Appeals NO. 11- ?? a b CIVIL PETITION FOR APPEAL Appellant/Petitioner CPP Hess Holdings LP ("CPP Hess") hereby appeals from the October 26, 2011 Decisions of the Cumberland County Board of Assessment Appeals, and states as follows in support of the appeal: 1. CPP Hess is the owner of real property comprising two adjoining Tax Parcels known as Tax Parcels 17-09-0543-001 and 17-09-0543-002 (the "Tax Parcels") 2. Tax Parcel 17-09-0543-001 ("Tax Parcel V) consists of approximately 80 acres of land and has a street address of 1017 S. Market Street, Mechanicsburg, Pennsylvania. 3. Tax Parcel 17-09-0543-002 ("Tax Parcel 2") consists of approximately 104 acres of land and also has a street address of 1017 S. Market Street, Mechanicsburg, Pennsylvania. 4. The Tax Parcels are currently used for agricultural purposes. ?? R a• d° Pa ? C K-?c?(vA l S 1 lW 211.-7-121 5 5. Tax Parcel 1 is assessed at $1,600,000. 6. Tax Parcel 2 is assessed at $2,091,800. 7. On August 31, 2011, CPP Hess filed timely appeals to the Cumberland County Board of Assessment Appeals, challenging the assessments of the Tax Parcels. 8.. On October 25, 2011, the Cumberland County Board of Assessment heard the appeals for both Tax Parcels. 9. On October 26, 2011, the Cumberland County Board of Assessment Appeals rendered and mailed its decisions on the appeals (the "Decisions"). True and correct copies of the Decisions are attached hereto as Exhibit A. 10. The Decisions state that the appeals were denied and reflect that no changes were made in the assessed values of the Tax Parcels as a result of the appeals. 11. CPP Hess is aggrieved by the determinations of the Cumberland County Board of Assessment Appeals in the Decisions, in that the assessments on the Tax Parcels do not properly reflect the current fair market value of the tax parcels and in that the assessment valuations are excessive. 12. The Decisions of the Cumberland County Board of Assessment Appeals are in error, violate the doctrine of uniformity and are an abuse of discretion. WHEREFORE, Appellant/Petitioner CPP Hess Holdings, LP respectfully requests that this Honorable Court hear this appeal from the Decisions of the Cumberland County Board of Assessment Appeals and the proofs of this case de novo, reverse the decisions of the Board, order a reduction in the assessment for the Tax Parcels to reflect 2 the actual market value of the Tax Parcels having due regard to the valuation and the applicable predetermined ratio or common level ratio, and make such further orders as may be just and equitable. Respectfully submitted, MCNEES WALLACE & NURICK LLC By: 41??= L • cc:- n----X!/ Helen L. Gemmill Pa. I.D. No. 60661 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5273 Counsel for Appellant/Petitioner Dated: November 22, 2011 CPP Hess Holdings, LLP VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I hereby certify that I am authorized to make this verification on behalf of CPP Hess Holdings, LLP, I have reviewed the foregoing and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. By Printed Name 1 4V 117 Title shu jle.S Lg2a?-- Dated: November 2011 rl Cumberland County Tax Assessment One Courthouse Square Room 107 Carlisle, PA 17013 (717) 240-6350 Hours: 8:00am to 4:30pm Stephen D. Tiley, Assistant Solicitor Bonnie M. Mahoney, Chief Assessor CPP HESS HOLDINGS L P Parcel Identifier: C/O TIMOTHY HORSTMANN, ESQUIRE 17-09-0543-001. MCNEES WALLACE & NURICK LLC 100 PINE ST, PO BOX 1166 MAILING DATE: OCTOBER 26, 2011 HARRISBURG PA 17108-1166 APPEAL DEADLINE: NOVEMBER 25, 2011 BOARD OF ASSESSMENT APPEALS DECISION NOTICE - THIS IS NOT A TAX BILL This is a notice of a change to the assessed valuation or status of this property REASON FOR CHANGE: 04 - APPEAL BOARD DECISION (DENIED - NO CHANGE) The Board of Assessment Appeals has issued this decision regarding your tax assessment appeal. You may appeal this decision to the Court of Common Pleas by filing the appropriate paperwork with the Prothonotary's office in accordance with local rules of court. FUTURE TAX BILLING BASIS OLD NEW ASSESSMENT TAX STATUS 1,600,000 Taxable 1,600,000 Taxable C&G STATUS Not Approved Not Approved I MARKET-BASED ASSESSMENT OLD NEW (Land 1,600,000 1,600,000 'Improvements' 0 0 (TOTAL 1,600,000 1,600,000 1100% of Market Value at 2010 Base Year Rates. CLEAN AND GREEN (C&G) ASSESSMENT OLD NEW Land 59,500 59,500 Improvements 0 0 TOTAL 59,500 59,500 Land value based on rates provided by the State. CHANGE OF TAX BASIS - NET CHANGE COUNTY/MUNIC SCHOOL Land 0 0 Improvements 0 0 TOTAL 0 0 Effects Future Billing Cycles Only cc: CPP HESS HOLDINGS L P [notc_al-L) Cumberland County Board of Assessment Appeals Lloyd W. Bucher Albert Peterlin Allen Shank EFFECTIVE: 01/01/2012 for County/Manic 07/01/2012 for School PROPERTY DESCRIPTION Munic.: 17 - MECHANICSBURG 2ND WRD School: 6 - MECHANICSBURG SD Control Number: 17000001 Property Location: 1017 S MARKET STREET LAND APPROX 80 ACRES Land Size: 80.00 acres Property Type: VS Vacant Land - Subdvsn Poten Cumberland County Commissioners Gary Eichelberger Rick Rovegno Barbara Cross Dennis Marion, Chief Clerk CC: Cumberland County Tax Assessment One Courthouse Square Room 107 Carlisle, PA 17013 (717) 240-6350 Hours: 8:00am to 4:30pm Stephen D. Tiley, Assistant Solicitor Bonnie M. Mahoney, Chief Assessor CPP HESS HOLDINGS L P Parcel Identifier: C/O TIMOTHY HORSTMANN, ESQUIRE 17-09-0543-002. MCNEES WALLACE & NURICK, LLC 100 PINE ST, PO BOX 1166 MAILING DATE: OCTOBER 26, 2011 HARRISBURG PA 17108-1166 APPEAL DEADLINE: NOVEMBER 25, 2011 BOARD OF ASSESSMENT APPEALS DECISION NOTICE - THIS IS NOT A TAX BILL This is a notice of a change to the assessed valuation or status of this property. REASON FOR CHANGE: 04 - APPEAL BOARD DECISION (DENIED - NO CHANGE) The Board of Assessment Appeals has issued this decision regarding your tax assessment appeal. You may appeal this decision to the Court of Common Pleas by filing the appropriate paperwork with the Prothonotary's office in accordance with local rules of court. FUTURE TAX BILLING BASIS OLD NEW ASSESSMENT TAX STATUS 2,091,800 Taxable 2,091,800 Taxable C&G STATUS Not Approved Not Approved i MARKET-BASED ASSESSMENT OLD NEW Land 2,091,800 2,091,800 Improvements 0 0 TOTAL 2,091,800 2,091,800 1000 of Market Value at 2010 Base Year Rates. CLEAN AND GREEN (C&G) ASSESSMENT OLD NEW Land 77,100 77,100 Improvements 0 0 TOTAL 77,100 77,100 Land value based on rates provided by the State. CHANGE OF TAX BASIS - NET CHANGE COUNTY/MUNIC SCHOOL Land 0 0 Improvements 0 0 TOTAL 0 0 Effects Future Billing Cycles Only cc: CPP HESS HOLDINGS L P [notc-a11L1 Cumberland County Board of Assessment Appeals Lloyd W. Bucher Albert Peterlin Allen Shank EFFECTIVE: 01/01/2012 for County/Munic 07/01/2012 for School PROPERTY DESCRIPTION Munic.: 17 - MECHANICSBURG 2ND WRD School: 6 - MECHANICSBURG SD Control Number: 17000002 Property Location: 1017 RR S MARKET STREET & ALLENDALE ROAD LAND APPROX 99 ACRES Land Size: 104.59 acres Property Type: AS Seasonal-Used < 50% Of Year Cumberland County Commissioners Gary Eichelberger Rick Rovegno Barbara Cross Dennis Marion, Chief Clerk CC: t-Mlin I I in Fill ED-OFFICE THE PROTHONOTARY 2012 FEB -7 AM 1 I : 37 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA IN RE: APPEAL OF CPP HESS HOLDINGS, L.P. CIVIL ACTION -- LAW No. 11-8820- CIVIL TERM FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS Tax Assessment Appeal NOTICE OF INTERVENTION AND ENTRY OF APPEARANCE TO THE PROTHONOTARY: In accordance with the requirements of the Consolidated County Assessment Law, 53 Pa.C.S. §8801, et seq., the Mechanicsburg Area School District hereby intervenes as a party to the tax assessment appeal taken by the above-named Appellant. Please enter my appearance in this matter on behalf of Intervener, Mechanicsburg Area School District. Respectfully submitted, Philip RFSpar6, Esquire Supreme Court I.D. No. 65200 STOCK AND LEADER, P.C. Susquehanna Commerce Center - East 221 West Philadelphia Street Suite 600 York, PA 17401-2994 Tel: (717) 846-9800 Attorney for Mechanicsburg Area School District CERTIFICATE OF SERVICE t?' AND NOW, this LO day of F"-h , 2012, I, Philip H. Spare, Esquire, of the firm of Stock and Leader, hereby certify that I have served the within Notice of Intervention and Entry of Appearance by depositing same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Helen L. Gemmill, Esquire McNees Wallace & Nurick, LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108 Counsel for Appellant/Petitioner Stephen D. Tiley, Esq. Frey & Tiley 5 S. Hanover Street Carlisle, PA 17013 Counsel for Cumberland County Board of Assessment Appeals STOCK AND LEADER By: ! 44Mt Philip R. Sp e, Esquire Supreme Court I.D. No. 65200 STOCK AND LEADER, P.C. Susquehanna Commerce Center - East 221 West Philadelphia Street Suite 600 York, PA 17401-2994 Tel: (717) 846-9800 Attorney for Mechanicsburg Area School District IN RE: APPEAL OF CPP HESS IN THE COURT OF COMMON PLEAS OF HOLDINGS, L.P. CUMBERLAND COUNTY, PENNSYLVANIA FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS No. 11-8820- CIVIL ORDER OF COURT _2 I/ AND NOW, this day of A41 2012, the hearing to be conducted on the merits of the within appeal from an assessment is continued to 1:30 p.m., Thursday, November 1, 2012, in Courtroom Number 1, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Albert H. Masland, J. c V Helen L. Gemmill, Esquire, 100 Pine Street, Harrisburg, PA 17108-1166 rn For Petitioner -, *, --` ? Stephen D. Tiley, Esquire, 5 South Hanover Street, Carlisle, PA 17013-3385 `' For Cumberland County Board of Assessment Appeals x• > V Philip H. Spare, Susquehanna Commerce Center - East, 221 West Philadelphia qtr t Suite 600, York, PA 17401-2994 , For Mechanicsburg Area School District (?7P; F'S yrs. r'a°d ??30? ? 'ek' IN RE: APPEAL OF CPP HESS IN THE COURT OF COMMON PLEAS HOLDINGS , L.P. OF CUMBERLAND COUNTY, PENNSYLVANIA FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS No. 11-8820- CIVIL PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Please mark the above-captioned action as discontinued and ended. MCNEES WALLACE&NURICK LLC Helen L. Gemmill Pa. I.D. No. 60661 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5273 Counsel for Appellant/Petitioner Dated: October 30, 2013 CPP Hess Holdings, LLP s. .y CD CD -: cl CERTIFICATE OF SERVICE I certify that on this date a true and correct copy of the foregoing document was served by first class United States mail, postage prepaid, upon the following: Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013-3385 Counsel for Cumberland County Board of Assessment Appeals Philip H. Spare, Esquire STOCK AND LEADER, P.C. Susquehanna Commerce Center—East, Suite 600 221 West Philadelphia Street York, PA 17401-2994 Counsel for Mechanicsburg Area School District Lisa Marie Coyne, Esquire COYNE & COYNE PC 3901 Market Street Camp Hill, PA 17011-4227 Counsel for Mechanicsburg Borough Helen L. Gemmill Dated: October 30, 2013 IN RE: APPEAL OF CPP HESS : IN THE COURT OF COMMON PLEAS c; HOLDINGS, L.P. OF CUMBERLAND COUNTY, : PENNSYLVANIA C" r71 x- Fri ' FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF : c�,`r ASSESSMENT APPEALS NO. 11-8820-CIVIL MOTION TO STRIKE PRAECIPE FOR DISCONTINUANCE AND REINSTATE CASE AND NOW, comes the Mechanicsburg Area School District by and through its solicitor, Stock and Leader, LLP and moves this Honorable Court as follows: 1. The property owner CPP Hess Farms. L.P. ("Hess Farms"), initiated this tax assessment appeal before the Cumberland County Board of Assessment Appeals in 2011. 2. The Board of Assessment Appeals issued a decision on October 26, 2011. 3. Hess Farms appealed from the decision of the Board of Assessment Appeals by filing a Petition for Appeal in this Court on November 23, 2011. 4. The property at issue consists of two separate tax parcels identified as 17-09-0543-01 and 17-09-0543-002, consisting of a total of approximately 184 acres. 5. Tax parcel ending 001 is assessed at $1,600,000 and tax parcel ending in 002 is assessed at $2.091,800. for a total assessment of$3.691,800. 6. On February 7, 2013, the Mechanicsburg Area School District formally intervened as a party in this case. 0115845. 7. During the pendency of this case, Hess Farms and the District, through their respective counsel, attempted to amicably resolve the case. Those settlement negotiations were ultimately unsuccessful. 8. It is a matter of public record in Cumberland County that the two tax parcels at issue sold to a new owner by deed dated May 24, 2013 (recorded June 6, 2013) for a total consideration of$5,000,000 indicated on the Statement of Value. 9. Following the recording of the deed, additional attempts were made to resolve the case, which again proved unsuccessful. 10. Counsel for Hess Farms unilaterally filed a Praecipe for Discontinuance on October 30, 2013. 11. A property owner may not unilaterally discontinue a case without the consent of intervening taxing bodies such as a school district. (See, e.g. In re Appeal of Gateway School District, 124 Pa. Cmwlth. 463, 556 A.2d 924 (1989)) 12. The Mechanicsburg Area School District objects to the attempt to unilaterally discontinue this matter. 13. Counsel for the property owner does not concur with this Motion. WHEREFORE, Movant, the Mechanicsburg Area School District, respectfully requests your Honorable Court to issue a Rule to Show Cause why the relief should not be granted and to strike the Praecipe for Discontinuance, reinstate the case, and give the parties an opportunity to establish the appropriate fair market value and assessed value of the tax parcels in question. 0115845- Respectfully submitted, STOCK AND LEADER Date: Mov�robtr �� * G 3 r By: Phi ip . Spare, Esquire Supreme Court I.D. No. 65200 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17401 Telephone: (717) 846-9800 Facsimile: (717) 843-6134 0115845- IN RE: APPEAL OF CPP HESS : IN THE COURT OF COMMON PLEAS HOLDINGS, L.P. : OF CUMBERLAND COUNTY, : PENNSYLVANIA FROM THE DECISION OF THE • CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS : NO. 11-8820-CIVIL CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Motion to Strike Praecipe for Discontinuance and to Reinstate Case has been served upon counsel via First Class, postage- prepaid U.S. Mail this t.7'day of November, 2013, at the following address: John G. French, Esquire Helen L. Gemmill, Esquire 1304 Oak Lane McNees Wallace &Nurick, LLC New Cumberland, PA 17040 100 Pine Street P.O. Box 1166 Counsel for Cumberland County Harrisburg, PA 17108-1166 Board of Assessment Appeals Counsel,for CPP Hess Holdings, LLP Lisa Marie Coyne, Esquire Coyne & Coyne, P.C. 3901 Market Street Camp Hill, PA 17011-4227 Counsel for Mechanicsburg Borough Respectfully submitted, STOCK AND LEADER By: Philip I- . Spare, Esquire Supreme Court I.D. No. 65200 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17401 Telephone: (717) 846-9800 Facsimile: (717) 843-6134 0115845- IN RE: APPEAL OF CPP HESS IN THE COURT OF COMMON PLEAS HOLDINGS, L.P. OF CUMBERLAND COUNTY, PENNSYLVANIA FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS NO. 11-8820-CIVIL RULE TO SHOW CAUSE, AND NOW, this 5 day of 20 upon consideration of the Motion to Strike Praecipe for Discontinuance and Reinstate Case tiled on behall'ofthe Mechanicsburg Area School District, a Rule is issued upon CCP Hess Holdings, L.P., to show cause why the requested relief should not be granted. Rule returnable by the 3 day of G'vk(A A.✓ , 20 BY THE COURT, A44� J �d _C'w .J �11l845- Ciit pENNSYLVANIA CiCRLA, D COUNTY IN RE: APPEAL OF CPP HESS : IN THE COURT OF COMMON PLEAS HOLDINGS , LP : OF CUMBERLAND COUNTY, : PENNSYLVANIA FROM THE DECISION OF THE • CUMBERLAND COUNTY BOARD OF : ASSESSMENT APPEALS : No. 11-8820- CIVIL ANSWER TO MOTION TO STRIKE PRAECIPE FOR DISCONTINUANCE AND REINSTATE CASE In accordance with the Court's Rule to Show Cause docketed December 4, 2013, Appellant CPP Hess Holdings, LP ("CPP Hess Holdings") hereby answers the Motion to Strike Praecipe for Discontinuance and Reinstate Case filed by the Mechanicsburg Area School District (the "School District"). For the reasons stated herein in response to the numbered paragraphs of the School District's Motion, the Motion should be denied. 1. Admitted in part and denied in part. CPP Hess Holdings admits that the property owner filed a tax assessment appeal before the Cumberland County Board of Assessment Appeals in 2011. CPP Hess Holdings denies that the property owner was an entity named "CPP Hess Farms, L.P. (`Hess Farms')." Rather, CPP Hess Holdings was the property owner at the time that CPP Hess Holdings filed the tax assessment appeal before the Board. 2. Admitted. CPP Hess Holdings admits that the Board of Assessment Appeals issued a decision on October 26, 2011. 3. Admitted in part and denied in part. CPP Hess Holdings admits that it filed an appeal in this Court on November 23, 2011 from the decision of the Board of Assessment Appeals. CPP Hess Holdings denies that an entity named "CPP Hess Farms, L.P. (`Hess Farms')" filed any appeal. 4. Admitted. CPP Hess Holdings admits that the property at issue comprises two tax parcels, 17-09-0543-01 and 17-09-0543-002, that together total approximately 184 acres. 5. Admitted. CPP Hess Holdings admits that tax parcel 17-09-0543-01 is assessed at $1,600,000 and tax parcel 17-09-0543-002 is assessed at $2,091,800, for a total assessment of $3,691,800. 6. Admitted with qualification. CPP Hess Holdings admits that on February 7, 2013, the School District intervened as a party in this tax assessment appeal by filing a Notice of Intervention. Further answering, the School District's filing did not assert any claim for affirmative relief, did not assert any counterclaim, did not assert any new matter, did not assert any cross appeal and did not challenge the assessment. 7. Admitted in part and denied in part. CPP Hess Holdings admits that CPP Hess Holdings and the School District engaged in settlement discussions. CPP Hess Holdings denies that an entity named "CPP Hess Farms, L.P. (`Hess Farms')" engaged in settlement discussions. CPP Hess Holdings denies that the settlement negotiations were unsuccessful. The parties reached a settlement agreement, which the School District refused to honor. 8. Admitted. CPP Hess Holdings admits that it sold the properties at issue in this appeal by deed dated May 24, 2013, recorded June 6, 2013, for a total consideration of $5,000,000. 2 9. Admitted in part and denied in part. CPP Hess Holdings admits that CPP Hess Holdings and the School District had discussions after June 6, 2013. CPP Hess Holdings denies that the prior discussions were unsuccessful, as the parties had previously reached a settlement agreement that the School District refused to honor. Further answering, the discussions after June 6, 2013 concerned efforts to resolve both the pending tax assessment appeal and the dispute as to whether a settlement was previously reached. 10. Admitted in part and denied in part. CPP Hess Holdings admits that its counsel filed a Praecipe for Discontinuance on October 30, 2013. Further answering, for the reasons set forth below in ¶ 11, CPP Hess Holdings had the legal right to discontinue this tax assessment appeal without the consent of the Board of Assessment Appeals or any of the taxing authorities. CPP Hess Holdings denies that an entity named "CPP Hess Farms, L.P. (`Hess Farms')" filed the discontinuance. 11. Denied. For tax assessment appeals pending in the Court of Common Pleas of Cumberland County, there is no prohibition against the appellant discontinuing the appeal without the consent of the other parties. The case cited by the School District for the proposition that a property owner cannot discontinue an appeal, In re Appeal of Gateway School District, 556 A.2d 924 (Pa. Cmwlth. 1989), is inapplicable to the instant appeal. The Gateway School District case involved, and was decided under, a particular local rule of the Allegheny County Court governing discontinuances in tax assessment appeals. That Allegheny County local rule of court (Local Rule 502H) specifically required the consent of all parties to any discontinuance filed more than 30 days after the conciliation meeting held in the appeal. Here, however, there is no local rule of the Cumberland County Court of Common Pleas that requires the consent of other parties for the discontinuance of a tax assessment appeal. 3 Indeed, unlike in the Allegheny County Court, here there are no local court rules governing the procedure in tax assessment appeals. And of course, the Allegheny County Court rules do not govern cases pending in the Court of Common Pleas of Cumberland County. Accordingly, there is no applicable rule, or any other governing law, that prevents discontinuance by the appellant. CPP Hess Holdings was not barred from discontinuing the appeal that it brought. Notably, the School District did not cross appeal or assert any claims, counterclaims, new matter or request any affirmative relief. Therefore, the only claims in this action were the claims of CPP Hess Holdings. There is no prohibition on CPP Hess Holdings discontinuing its own claims, which were the sole claims present in the appeal. Moreover, even though the Pennsylvania Rules of Civil Procedure do not apply to tax assessment appeals (see Appeal of Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990)) and have not been adopted by this Court for use in tax assessment appeals, in the absence of an applicable local Cumberland County Rule of Court, the Pennsylvania Rules are instructive. Under the Pennsylvania Rules of Civil Procedure, consent of other parties or court approval of a discontinuance is required only if the discontinuance is entered as to less than all defendants (Pa. R. Civ. P. 229), a minor is a party to the action (Pa. R. Civ. P. 2039), a minor is beneficially interested in a wrongful death action (Pa. R. Civ. P. 2206), an incapacitated person is a party (Pa. R. Civ. P. 2064) or the action is a class action (Pa. R. Civ. P. 1714). None of these situations limiting a discontinuance are relevant here. Therefore, even if the Pennsylvania Rules applied or if the Court chose to be guided by the Pennsylvania Rules, the discontinuance by CPP Hess Holdings would be proper. 12. Admitted in part and denied in part. CPP Hess Holdings admits that the School District objects to the discontinuance of this appeal. For the reasons set forth in¶ 11 above, CPP 4 Hess Holdings denies that the School District's objection is valid. CPP Hess Holdings also denies the characterization of the discontinuance as an"attempt." CPP Hess Holdings properly and fully effected a discontinuance of this appeal. The discontinuance should not be disturbed. 13. Admitted. Counsel for CPP Hess Holdings does not concur in the School District's Motion. WHEREFORE, the School District's Motion to Strike Praecipe for Discontinuance and Reinstate Case should be denied. Respectfully submitted, MCNEES WALLACE&NURICK LLC By: t. Helen L. Gemmill Pa. I.D. No. 60661 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5273 Counsel for Appellant/Petitioner Dated: December 31, 2013 CPP Hess Holdings, LP 5 CERTIFICATE OF SERVICE I certify that on this date a true and correct copy of the foregoing document was served by first class United States mail, postage prepaid, upon the following: Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013-3385 Counsel of Record for Cumberland County Board of Assessment Appeals John G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 Counsel for Cumberland County Board of Assessment Appeals Philip H. Spare, Esquire STOCK AND LEADER, P.C. Susquehanna Commerce Center—East, Suite 600 221 West Philadelphia Street York, PA 17401-2994 Counsel for Mechanicsburg Area School District Lisa Marie Coyne, Esquire COYNE & COYNE PC 3901 Market Street Camp Hill, PA 17011-4227 Counsel for Mechanicsburg Borough Helen L. Gemmill Dated: December 31, 2013 IN RE: APPEAL OF CPP HESS : IN THE COURT OF COMMON PLEAS OF HOLDINGS, LP : CUMBERLAND COUNTY, PENNSYLVANIA FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS /r AND NOW, this "if day of March, 2014, upon consideration of the Motion : 11 -8820 CIVIL TERM ORDER OF COURT to Strike Praecipe for Discontinuance and Reinstate Case filed on behalf of the Mechanicsburg Area School District and the response filed by CPP Hess Holdings, LP, thereto, that motion is GRANTED and the Praecipe for Discontinuance is STRICKEN. Section 4.03 of the Rules and Regulations Governing Real Estate Assessment and Appeals Before the Board of Assessment Appeals In and For Cumberland County states: [a]fter a petition to intervene has been allowed by the Board, no withdrawal or abandonment of the appeal by the primary appellant shall terminate the appeal, but the Board shall proceed to hear and determine the appeal and make such order or determination as shall be proper and in accordance with the law." Accordingly, Appellant's unilateral discontinuance of the appeal was impermissible. See also In re Appeal of the Municipality of Penn Hills, 546 A.2d 50 (Pa. 1988) (finding intervenor's ability to participate in litigation of assessment appeal not dependent upon status of the original appellant). V J cn,L0 By the Court, Albert H. Mas and, J. 11 -8820 CIVIL TERM hilip.H. Spare, Esquire Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17401 elen L. Gemmill, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 -1166 isa Marie Coyne, Esquire 3901 Market Street Camp Hill, PA 1 701 1 -4227 hn G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 sal .3 al/1z( IN RE: APPEAL OF CPP HESS HOLDINGS, LP "LPRojii0 -Of Jy j�1C CUMBERLAND COUNI I PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF : ASSESSMENT APPEALS : No. 11 -8820- CIVIL MOTION FOR RECONSIDERATION OF ORDER OF COURT STRIKING DISCONTINUANCE AND REINSTATING CASE Appellant CPP Hess Holdings, LP ( "CPP Hess Holdings ") respectfully requests that the Court reconsider its Order of March 21, 2014 (Albert H. Masland, J.). In support of this Motion for Reconsideration, CPP Hess Holdings states as follows: 1. On October 30, 2013, CPP Hess filed a Praecipe for Discontinuance of this tax assessment appeal. 2. On November 26, 2013, the Mechanicsburg Area School District (the "School District ") filed a Motion to Strike Praecipe for Discontinuance and Reinstate Case ( "Motion to Strike Discontinuance "). 3. On December 13, 2013, the Court issued a rule to show cause with respect to the Motion to Strike Discontinuance. 4. On January 2, 2014, CPP Hess Holdings filed its answer to the Motion to Strike Discontinuance. 5. On March 21, 2014, the Court entered an Order granting the Motion to Strike Discontinuance. 6. In its Order, the Court cited § 4.03 of the Rules and Regulations Governing Real Estate Assessment and Appeals Before the Board of Assessment Appeals In and For Cumberland County (the "Board Rules "). Section 4.03 of the Board Rules states: After a petition to intervene has been allowed by the Board, no withdrawal or abandonment of the appeal by the primary appellant shall terminate the appeal, but the Board shall proceed to hear and determine the appeal and make such order or determination as shall be proper and in accordance with the law. 7. Neither the School District nor CPP Hess Holdings cited § 4.03 of the Board Rules in their respective Motion to Strike Discontinuance or answer to the motion. 8. The Court's reliance in its Order on § 4.03 is misplaced for two reasons: (1) the School District did not file a petition to intervene with the Board and (2) the Board Rules are inapplicable to the proceedings in this Court. 9. First, the School District did not file a petition to intervene with the Board of Assessment Appeals, and consequently no petition to intervene was allowed by the Board. If the School District had desired to intervene before the Board, the School District was required to follow § 4.01 of the Board Rules, which governs the form and contents of a petition to intervene, including the requirement that the petition for intervention be served on the property owner. 10. Because the School District did not petition to intervene before the Board, the School District's participation in the proceedings before the Board was as a non -party pursuant to § 4.04 of the Board Rules, which provides: Effect of Non - Intervention. Nothing in these Rules or Regulation shall limit or prohibit any taxing district (the County, municipality, or school district) from appearing at the Hearing, questioning the petitioner, and giving non -expert oral testimony, as to the value of any property. However, a taxing district which does not formally intervene is not a "party" for purposes of these Rules. 2 Board Rules, § 4.04 (emphasis added). 11. The School District only filed a petition to intervene in this Court, after the appeal from the Board's decision was pending in this Court. Because no petition to intervene was filed before the Board, § 4.03 of the Board Rules governing the process after the allowance of intervention by the Board is factually and legally inapplicable to the proceedings before the Board and before this Court and the continuation of this tax assessment appeal. 12. Second, even if the School District had filed a petition to intervene with the Board, the Board Rules are applicable only to tax assessment appeals while an appeal is pending before the Board. A tax assessment appeal filed in a court of common pleas is a de novo appeal, such that the proceedings below are treated as if they had not been held. Green v. Schuylkill Cnty. Bd. of Assessment Appeals, 565 Pa. 185, 195, 772 A.2d 419, 425 (2001) ( "In an assessment appeal, the matter before the trial court is heard de novo. "). 13. Thus, had the School District intervened before the Board in accordance with the Board Rules, and had CPP Hess Holdings abandoned its appeal while the matter was still before the Board, then Board would have been obligated to continue to determine the appeal before it. But any obligation under the Board Rules for the Board to continue an appeal does not apply to this Court in a de novo appeal where the Board Rules and procedures do not govern. 14. Notably, this Court has not adopted the Board Rules as part of this Court's Local Rules. As a result, there is no rule of this Court that would prevent CPP Hess Holdings from unilaterally discontinuing its tax assessment appeal. 15. Accordingly, § 4.03 of the Board Rules provides no authority for the Court to strike CPP Hess Holdings' discontinuance. 3 16. In its Order of May 21, 2014, the Court also cited In re Appeal of the Municipality of Penn Hills, 546 A.2d 50 (Pa. 1988). Neither the School District nor CPP Hess Holdings cited Penn Hills in their respective Motion to Strike Discontinuance or answer to the motion. 17. In Penn Hills, the Pennsylvania Supreme Court addressed whether the rules of the Allegheny County board of property assessment enabled an intervenor to continue an appeal pending before the board after the original appellant withdrew. Id. at 52. In deciding whether the intervenor could continue the appeal before the Board, the Supreme Court in Penn Hills looked at the rules of the Allegheny board. Id. at 52 -53. The Supreme Court found that the Allegheny board rules allowed a person to intervene "as a party" by filing a notice with the board of this intention. Because the intervenor had filed the notice, the Supreme Court ruled that under the board rules the intervenor was a party and entitled to continue the appeal before the board. Id. at 52. 18. The Supreme Court stressed, however, that it was deciding Penn Hills only under the Allegheny board rules. The Supreme Court noted that "[o]ur reference here to the rules of procedure are by way of analogy only. They are not controlling since the instant appeal fell within the scope of the Board's local rules on intervention." Id. at 52 n.1. The Supreme Court repeated that it was constrained by the board rules in addressing whether issues were waived by the intervenor before the Board: This argument has some surface appeal, and if we were presented with a judicial case where the normal rules of waiver apply, we would be inclined to accept it. However, under the unique facts of this case, where we are ruling on the intervention practices relative to an administrative proceeding, we must refer to the controlling administrative rules, as well as the enabling legislation, to determine what if anything was waived at the time this intervenor was admitted to participate in the appeal. Id. at 52 -53. 4 19. Consequently, the ruling in Penn Hills is not relevant or applicable to the CPP Hess Holdings appeal. The issue here is whether CPP Hess Holdings is barred from discontinuing the appeal under the rules applicable to this Court, not under the rules applicable to the Cumberland County Board of Assessment Appeals. There is no rule in this Court that prevents CPP Hess Holdings from discontinuing its appeal. 20. Moreover, unlike in Penn Hills, here the School District did not intervene before the Cumberland Board in accordance with the Board Rules. As discussed above, under the Board Rules the School District was required to file a petition to intervene to gain party status, which the School District did not do. Accordingly, the Penn Hills ruling, allowing an intervenor to continue an appeal before a tax assessment board if the intervenor obtained party status in accordance with the board rules, has no applicability here where the School District did not intervene before the Board and was not a party under the Board Rules. 21. Counsel for CPP Hess Holdings sought the concurrence of counsel for the School District in this Motion for Reconsideration. Concurrence was denied. WHEREFORE, for the reasons set forth above and in CPP Hess Holdings' answer to the Motion to Strike Discontinuance, CPP Hess Holdings respectfully requests that this Court grant this Motion for Reconsideration and enter an order denying the Motion to Strike Discontinuance. Respectfully submitted, MCNEES WALLACE & NURICK LLC Dated: April 17, 2014 By: / L. Helen L. Gemmill Pa. I.D. No. 60661 100 Pine Street, PO Box 1166 Harrisburg, PA 17108 -1166 (717) 237 -5273 Counsel for CPP Hess Holdings, LP 5 CERTIFICATE OF SERVICE I certify that on this date a true and correct copy of the foregoing document was served by first class United States mail, postage prepaid, upon the following: Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013-3385 Counsel of Record for Cumberland County Board of Assessment Appeals John G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 Counsel for Cumberland County Board of Assessment Appeals Philip H. Spare, Esquire STOCK AND LEADER, P.C. Susquehanna Commerce Center — East, Suite 600 221 West Philadelphia Street York, PA 17401-2994 Counsel for Mechanicsburg Area School District Lisa Marie Coyne, Esquire COYNE & COYNE PC 3901 Market Street Camp Hill, PA 17011-4227 Counsel for Mechanicsburg Borough Dated: April 17, 2014 IN RE: APPEAL OF CPP HESS : IN THE COURT OF COMMON PLEAS OF HOLDINGS, LP : CUMBERLAND COUNTY, PENNSYLVANIA FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS : 11-8820 CIVIL TERM ORDER OF COURT AND NOW, this 'day of May, 2014, upon consideration of the Motion for Reconsideration of Order of Court Striking Discontinuance and Reinstating Case filed by CPP Hess Holdings, LP, that motion is DENIED.' By the Court, Philip H. Spare, Esquire Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17401 -lelen L. Gemmill, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Lisa Marie Coyne, Esquire 3901 Market Street Camp Hill, PA 17011-4227 G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 Albert H. Maslan CaPp P2b;tccL stijiy 1 The court notes that we may have erred in characterizing the Board Rules as binding on the instant proceeding, but absent Local Rules to guide us, the reference to the Board Rules should be considered by way of analogy only and we still reach the same conclusion as before. An "intervenor's right to participate in an appeal is not contingent upon the continued participation of the original appellant." In re Appeal of the Municipality of Penn Hills, 546 A.2d 50, 52 (Pa. 1988). cy 77.17 • 11-8820 CIVIL TERM Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 sal -2- In. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: APPEAL OF CPP HESS HOLDINGS, L.P. FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS : CIVIL ACTION — LAW : Tax Assessment Appeal : No. 11 -8820 -CIVIL TERM STIPULATION AND JOINT MOTION FOR AGREED ORDER AND NOW, this 1 lth day of November, 2014, it is hereby Agreed and Stipulated by and between the Appellant, CPP Hess Holdings, L.P., by its attorney, Helen L. Gemmill, Esquire, McNees Wallace & Nurick LLC; Cumberland County Board of Assessment Appeals and County of Cumberland by John G. French, Esquire; Borough of Mechanicsburg by Lisa Marie Coyne, Esquire, Coyne & Coyne, P.C.; and Mechanicsburg Area School District by Gareth D. Pahowka, Esquire, Stock and Leader, LLP; as follows: 1. On November 23, 2011, Appellant CPP Hess Holdings, L.P. filed a Petition For Appeal for Tax Parcel Nos. 17-09-0543-001 and 17-09-0543-002 containing a total of approximately 184 acres with a street address of 1017 S. Market Street, Mechanicsburg, Pennsylvania ("Property"). 2. The parties stipulate that the total assessed value of the Property shall be: a. $3,500,000 for 2012 (effective January 1, 2012); b. $4,350,000 for 2013 (effective January 1, 2013); and, 0195208- c. $5,000,000 for 2014 (effective January 1, 2014) and continuing for subsequent years until changed as provided by law. 3. The total assessed value of the Property shall be allocated forty-three percent (43%) to the Tax Parcel ending in 001 and fifty-seven percent (57%) to the Tax Parcel ending in 002. 4. The stipulated assessments shall be implemented beginning with the year 2012 county and municipal taxes and with the 2012-2013 school taxes and shall continue as stated above. 5. The Cumberland County Assessment Office shall promptly notify the appropriate taxing bodies of the change in assessment, and instruct the taxing bodies to make any refunds due, which shall be paid within 90 days of the date of the final Order implementing this Stipulation. 6. Each party to this appeal shall bear its own costs. 7. The Court is requested to enter the proposed Order attached hereto. 8. The undersigned Attorneys have specific authorization to enter into this settlement Stipulation by her/his client(s). 0195208- 2 Respectfully submitted, By: / -e,- L . (12( --- Helen L. Gemmill, Esquire Attorney I.D. No. 60661 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Counsel for CPP Hess Holdings, L.P. By: John G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 Solicitor for Cumberland County Board of Assessment Appeals By: Lisa Marie Coyne, Esquire Coyne & Coyne, P.C. 3901 Market Street Camp Hill, PA 17011-4227 Solicitor for Mechanicsburg Borough By: Gareth D. Pahowka, Esquire Stock and Leader, LLP 221 W. Philadelphia Street Suite 600 York, PA 17401 Attorney for Mechanicsburg Area School District 0195208- 3 Respectfully submitted, By: Helen L. Gemmill, Esquire Attorney I.D. No. 60661 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Counsel for CPP Hess Holdings, L.P. Bv: ohn G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 Solicitor for Cumberland County Board of Assessment Appeals By: Lisa Marie Coyne, Esquire Coyne & Coyne, P.C. 3901 Market Street Camp Hill, PA 17011-4227 Solicitor for Mechanicsburg Borough By: Gareth D. Pahowka, Esquire Stock and Leader, LLP 221 W. Philadelphia Street Suite 600 York, PA 17401 Attorney for Mechanicsburg Area School District 0195208- 3 Respectfully submitted, By: Helen L. Gemmill, Esquire Attorney I.D. No. 60661 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Counsel for CPP Hess Holdings, L.P. By: John G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 Solicitor for Cumberland County Board of Assessment Appeals By. Marie Coyne, E:uire //2/2-0// ne & Coyne, P.C, 3901 Market Street Camp Hill, PA 17011-4227 Solicitor for Mechanicsburg Borough By: Gareth D. Pahowka, Esquire Stock and Leader, LLP 221 W. Philadelphia Street Suite 600 York, PA 17401 Attorney for Mechanicsburg Area School District 0195208- 3 Respectfully submitted, By: Helen L. Gemmill, Esquire Attorney I.D. No. 60661 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Counsel for CPP Hess Holdings, L.P. By: John G. French, Esquire 1304 Oak Lane New Cumberland, PA 17040 Solicitor for Cumberland County Board of Assessment Appeals By: Lisa Marie Coyne, Esquire Coyne & Coyne, P.C. 3901 Market Street Camp Hill, PA 17011-4227 Solicitor : chanicsbur : s rough epi By. tor D. Pahowka, 'quire ck and Leader, LLP 221 W. Philadelphia Street Suite 600 York, PA 17401 Attorney for Mechanicsburg Area School District 0195208- 3 t 2.0 i DEC 23 PM 4: ! CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: APPEAL OF CPP HESS HOLDINGS, L.P. FROM THE DECISION OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS ORDER : CIVIL ACTION — LAW : Tax Assessment Appeal : No. 11 -8820 -CIVIL TERM AND NOW, thi§23 day of,4(52e, 2014, upon consideration of the Stipulation and Joint Motion for Agreed Order, said Stipulation is accepted and adopted as an Order of this Court as follows: 1. Tax Parcel Nos. 17-09-0543-001 and 17-09-0543-002 containing a total of approximately 184 acres with a street address of 1017 S. Market Street, Mechanicsburg, Pennsylvania ("Property") shall have a total assessed value of: a. $3,500,000 for 2012 (effective January 1, 2012); b. $4,350,000 for 2013 (effective January 1, 2013); and, c. $5,000,000 for 2014 ((effective January 1, 2014) and continuing for subsequent years until changed as provided by law. 2. The total assessment for the Property shall be allocated forty-three percent (43%) to the Tax Parcel ending in 001 and fifty-seven percent (57%) to the Tax Parcel ending in 002. 0195208- 3. The stipulated assessments shall be implemented beginning with the year 2012 county and municipal taxes and with the 2012-2013 school taxes and shall continue as stated above. 4. The Cumberland County Assessment Office shall promptly notify the appropriate taxing bodies of the change in assessment, and instruct the taxing bodies to make any refunds due, which shall be paid within 90 days of the date of the final Order implementing this Stipulation. 5. Each party to this appeal shall bear its own costs. eien L . 6' arnrm 11, acL t.chn C3. Franck►, v l Lisa Marie 0,09,16 , v g".a. TPahowka sy_ By the Court, Albert H. Masland, J. pig 0195208- 2