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HomeMy WebLinkAbout01-5601 CivilJOHN L. SWEEZY, Petitioner VS. CLA/[BERLAND COUNTY BOARD OF ASSESSMENT AND APPEALS, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5601 CIVIL CIVIL ACTION - LAW PETITIONER'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS. J.J. OPINION AND ORDER The appellant in this case, John L. Sweezy, is a licensed Pennsylvania attorney residing in Lower Allen Township, Cumberland County, Pennsylvania. Under the Cumberland County Assessment Schedule for occupation tax assessments, Sweezy is classified as a "700 Attorney." He was assessed an occupation tax by the West Shore School District ($891.80) and by Lower Allen Township ($205.80). He remitted the tax due under protest. He now disputes his "700 Attorney" classification and the assessment of an occupation tax in general. On October 20, 2000, Mr. Sweezy filed a formal appeal with the Cumberland County Board of Assessment Appeals. After holding a hearing, the Board denied his appeal. The instant petition for review of the Board's order was subsequently filed in the Cumberland County Court of Common Pleas. There then followed an attempt to settle the matter. In addition, throughout much of the year of 2002, there were several proceedings having to do with discovery. On December 9, 2002, the petitioner filed a motion for summary judgment. Occupation assessment appeals are governed by the same statutes as are applicable to real estate assessment appeals. Specifically applicable are Section 201 of the General County Assessment Law and Section 704 of the 4th to 8th Class County Assessment Law. Occupations 01-5601 CIVIL are specifically described as subjects of taxation at Section 201 of the General County Assessment Law 72 P.S. 5020-201(b). Section 704 of the 4th to 8th Class County Assessment Law states, inter alia, that a person "aggrieved by the order of the board ... may appeal ... to the court and thereupon the court shall proceed ... to hear the said appeal ... and to make such orders and decrees determining from the evidence submitted at the hearing." 72 P.S. 5453.704(a). Tax assessment appeals are de novo and require the court to take evidence and make a determination as to value. Westinghouse Electric Corp. v. Board of Property Assessment of Allegheny County, 652 A.2d 1306 (Pa. 1995). Motions for summary judgment in civil cases are governed by Pa.R.C.P. 1035.1 et seq. In this case, the rules of civil procedure are not technically applicable since this is a statutory appeal. See Appeal of the Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990). On the other hand, we know of no authority for the proposition nor has the Board of Assessment Appeals opposed the notion that we can entertain a motion for summary judgment in this particular case. A party may move for summary judgment after pleadings are closed in two situations. First is when there is no genuine issue of material fact that could be established by additional discovery and, secondly, after discovery, if an adverse party bearing the proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2. See also, Fazio v. Fegley Oil Company Inc., 714 A.2d 510 (Pa. Cmwlth. 1998). Both parties here have agreed that there is no genuine issue of fact which would prevent the court from considering the petitioner's motion for summary judgment. The petitioner has established, by affidavit, that for the tax years in question his occupation was not only not income-producing, but that he suffered a net income loss with respect to monies earned as a lawyer. The respondent has not attempted to controvert these facts. 2 01-5601 CIVIL As noted by the Supreme Court of Pennsylvania in Crosson v. Downingtown Area School District, 270 A.2d 377, 381 (Pa. 1970): Economic return is not the sole measure of the value of an occupation .... It is apparent that other factors than income affect the value which may be attributed to an occupation. These may include social status, historical attributes, type, kind and quantity of work required, degree of education and training demanded, and many other such real or fancied social and economic distinctions. Clearly, the petitioner cannot be assessed a different tax rate than others in the "700 Attorney" classification because his income was less than others within that classification. Furthermore, to grant petitioner a different tax rate would completely destroy the legislature's desire for uniformity in the classifications. The court would be changing the occupational tax into an income tax, which is not the legislature's intent nor within the power of this court. "The fact that the local occupational tax as administered is archaic, outmoded, ineffectual, inequitable, illogical and incapable of meeting modern standards of municipal taxation were problems to be considered by the legislature and the municipalities, were not legally sufficient reasons to declare such a tax invalid." Archbold v. Condors Tp. School District, 33 D.&C.2d 311 (1963). The petitioner next argues that the occupation tax violates Article XIII, Section 1 of the Pennsylvania Constitution which requires that "all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." This so-called uniformity clause applies to occupation taxes. Crosson v. Downingtown Area School District, supra. "The uniformity clause requires that two conditions be met: (1) that the classification of taxpayer subject to a specified tax must be 3 01-5601 CIVIL reasonable; and (2) that the tax itself must be applied equally within the designated class. If either condition fails, the tax is unenforceable for want of uniformity." Carl v. Southern Columbia Area School District, 400 A.2d 650, 651 (Pa. Cmwlth. 1979). An occupation tax is based on the assessed value of an occupation regardless of the taxpayer's income from the occupation. Appeal of Haberman, 388 A.2d 1159, 1162 (Pa. Cmwlth. 1978). Evidence of a shift in occupational earnings, without more, is not sufficient to show a violation of uniformity with respect to an occupation tax assessment. Id. Clearly, the occupational tax is not violative of the uniformity clause of Article XIII Section 1 of the Pa. Constitution in that it is unreasonable. Furthermore, if the court granted the petitioner's motion for summary judgment, that decision would violate requirement two of the uniformity clause; the tax would no longer be "applied equally within the designated class." The final claim raised by the petitioner is that the occupation tax violates Article V Section 10 of the Pennsylvania Constitution. This section, of course, gives the Supreme Court exclusive authority to prescribe general rules governing practice and procedure as well as the adoption of standards for admission to the bar and the practice of law. As the petitioner candidly admits, the weight of appellate case law is against him on this issue. ORDER day of March, 2003, the motion of the petition, John L. AND NOW, this Sweezy, for summary judgment is DENIED. BY THE COURT, Kevin A. Hess, J. 4 01-5601 CIVIL John L. Sweezy, Esquire Pro Se Stephen D. Tiley, Esquire For Cumberland County :rlm JOHN L. SWEEZY, Petitioner VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT AND APPEALS, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5601 CIVIL CIVIL ACTION - LAW IN RE: PETITIONER'S MOTION FOR SUMMARY JUDGMENT AND NOW, this Sweezy, for summary judgment is DENIED. BEFORE BAYLEY AND HESS. J.J. ORDER day of March, 2003, the motion of the petition, John L. BY THE COURT, John L. Sweezy, Esquire Pro Se Stephen D. Tiley, Esquire For Cumberland County :rlm Kevin A. Hess, J.