Motion to Submit Case on Briefs Being Filed
CLEARFIELD – An appeal has been scheduled for next month by the Commonwealth Court in the David Fox federal lawsuit against the Clearfield County Commissioners and the Clearfield County Board of Assessment.
According to county Solicitor Kim Kesner, the appeal has been scheduled by the court for argument on March 7. Last week, Fox’s counsel asked Kesner if he’d agree to submit the case on briefs to which Kesner agreed.
Kesner then signed a motion prepared for submission to the court, which it can either grant or deny. “If it grants it, there will be no argument and the appeal will be decided on the briefs. If the court [denies] the motion, we will appear for argument as scheduled,” he said.
Fox, of Lawrence Township, filed the lawsuit on behalf of himself and a group of unidentified concerned citizens, seeking a countywide property tax reassessment. He’s alleging that the county’s property tax system is unconstitutional, while it hasn’t conducted a reassessment in more than 20 years.
Clearfield County President Judge Fredric Ammerman dismissed the lawsuit on June 22, 2010, determining that Fox proceeded improperly and was “insufficiently pleading standing.” Further, he stated that Fox listed unnamed persons and also failed to first exhaust the “statutory remedy” of filing an appeal with the board of assessment for his individual property.
However, Fox filed an appeal of the decision.
According to a prior GantDaily report, the lawsuit brought against the county last January by Fox sought “a declaration of the defendants’ unconstitutional assessment and taxation of real property … due to a lack of uniformity and fairness in taxation.
“This action also sought to have (the court) compel the defendants to conduct a county-wide reassessment of all properties in Clearfield County for taxation purposes,” the lawsuit reads.
In addition, the lawsuit cited a recent decision in Allegheny County; however, Kesner said it would be a mistake to compare markets. He posted that an urban area, such as Allegheny County, should not be compared with a rural county like Clearfield.
The lawsuit claimed that Fox’s property is currently being taxed at a higher percentage of the fair market value than other properties throughout the taxing area.
“Fox’s property is thus being unfairly and unconstitutionally taxed, such that, under the circumstances, relief must be granted in the form of a county-wide reassessment of property values for real estate taxation purposes,” the lawsuit reads.
“Clearfield County has over 68,000 parcels in 51 municipalities, all contributing to an unacceptably significant disparity from uniformity in taxation within the county, and as compared to generally acceptable, constitutionally mandated, standards of assessment.”
The lawsuit also pointed to the last time Clearfield County conducted a county-wide reassessment, 1989. “Clearfield County’s hiatus of over 20 years in undertaking a county-wide reassessment has created intolerable and illegal assessment disparities among properties of comparable value.
It continued, “The ratios of assessed values and market values of comparable properties in Clearfield County are not uniform and in fact, are frequently highly divergent and inconsistent. The existing assessments have created and perpetuated an illegal discriminatory effect between taxpayers in the county. “
Kesner countered the complaint, filing four preliminary objections to the lawsuit in February of last year. He first objected to legal insufficiency of pleading in the lawsuit.
Kesner postulated the following objections, which were that Fox filed his lawsuit “on behalf of a Committee of Concerned Citizens,” but neglected to obey the rules of civil procedures, while none of the “concerned citizens” were identified by him.
The complaint filed by Fox neglected to exercise or exhaust an adequate statutory remedy by pursuing a court-ordered, county-wide reassessment. In addition, it didn’t contain any “allegation of actual empirical studies or statistical proofs” to demonstrate disparities in actual assessments.
Lastly, Fox’s complaint was found lacking in conformity to law or rule of court, while it included impertinent matter as an exhibit evidentiary material, which Kesner sought to be struck.
Kesner’s filing asked the judge to dismiss Fox’s complaint.
Ammerman’s opinions on the case were filed June 22, 2010 in which he addressed Kesner’s preliminary objections. The judge agreed that Fox attempted to pursue the matter individually as well as in the representative capacity for “A Committee of Concerned Citizens.”
However, Ammerman wrote that Fox failed to identify these persons and didn’t sufficiently allege how the members of the committee have existing rights that can be adjudicated.
Further, Ammerman found that an examination of Fox’s complaint revealed none of the facts necessary to establish a direct, immediate and substantial injury to the individual “concerned citizens.”
“The complaint is merely replete with allegations of unconstitutionality, contain none of the allegations of injury which could confer standing to pursue this action by (Fox) on behalf of ‘A Committee of Concerned [and unidentified] Citizens,’” he wrote.
In regard to the county’s second objection, Ammerman ruled in favor of the county, finding that Fox failed to exhaust his statutory remedy. For that reason, he said Fox couldn’t circumvent the process to present his uniformity challenge in the court’s equitable jurisdiction.
Ammerman later stated Fox didn’t support his contention that this property is being taxed at a higher rate of fair market value than other properties. He found that Fox’s complaint merely consisted of generalized and conclusory allegations of ‘taxation inequality,’ which are not sufficient to confer equity jurisdiction.
The court concluded that Fox has an adequate remedy through the appeal process, where he can appeal to the Clearfield County Board of Assessment, and if he is not satisfied, he can appeal for review by the court.
