Opinion
No. 2288 C.D. 2011
12-05-2012
Washington School District and McGuffey School District v. Washington County and Lawrence O. Maggi, J. Bracken Burns, Sr., and Diana L. Irey, Washington County Commissioners, and Robert Neil, Chief Assessor, Appellants
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This appeal arises from a mandamus action brought by two school districts in Washington County against Washington County, its County Commissioners, and its Chief Assessor (collectively, the County) to compel the County to undertake a county-wide real estate reassessment. The appeal before the Court is from a November 15, 2011 Order of the Washington County Court of Common Pleas (trial court) denying a stay of an order that lifted a stay of the County's obligation to proceed with the reassessment under an earlier injunctive order entered on November 25, 2008, on stipulated facts and with the agreement of the parties. Plaintiff school districts have moved to quash the appeal. Because we conclude that the November 15, 2011 Order denying a motion for stay is not an appealable order, we grant plaintiffs' motion to quash.
Plaintiffs filed their motion to quash the appeal on January 17, 2012. The motion to quash was granted by a single-judge order entered on February 14, 2012, but that order was vacated on March 9, 2012, on the County's motion for reargument and the motion to quash was listed for submission with the merits to a panel of this Court. In addition, on July 5, 2012, plaintiffs filed an application to strike three documents from the Reproduced Record on the ground that they are not in the trial court's certified record. That application was also referred to this panel. In light of our conclusion that the appeal is not properly before us, we need not and do not address the application to strike or the parties' arguments on the merits.
Plaintiff school districts filed this action in January 2008 seeking a county-wide real estate reassessment on the grounds that no county-wide reassessment had been conducted since 1979 and that, as a result, there was a high variance in the property valuations on which real estate taxes are levied in violation of the Uniformity Clause of the Pennsylvania Constitution, PA. CONST. art. VIII, § 1. On September 11, 2008, plaintiffs filed a motion for summary judgment seeking a judgment of mandamus directing the County to commence a county-wide reassessment on or before September 30, 2009.
At the hearing on plaintiffs' summary judgment motion on November 25, 2008, the parties jointly presented to the trial court a document containing nine stipulations of fact and a proposed order. The proposed order was drafted by the County's counsel based on discussions between the parties. (County's Answer to Plaintiffs' Motion for Civil Contempt ¶3, R.R. at 169a; County's Answer to Plaintiffs' Motion to Enforce Judgment in Mandamus/Consent Order ¶4, R.R. at 258a; December 14, 2009 Hearing Transcript (H.T.) at 15-17, 31.) At that hearing, counsel for both plaintiffs and the County represented to the trial court that their clients "are in agreement with the proposed order," and the Court made clear that the Order was being entered on the agreement of the parties, stating: "Now, I reviewed the proposed order and now that I know that everybody is on board, I will certainly sign it, but I want to make it perfectly clear that we're doing this agreement of the parties through their counsel." (November 25, 2008 H.T. at 3-4, 7, R.R. at 468a-469a, 472a.) The November 25, 2008 Order granted plaintiffs' motion for summary judgment in part and ordered that
[p]rovided that no legislative action or judicial decision mandating a substantial change in real estate assessment practices or school tax reform is enacted by the Commonwealth of Pennsylvania Legislature or ordered by the Pennsylvania appellate courts by September 30, 2009, the Commissioners are directed to initiate and pursue a program of county-wide reassessment and to proceed diligently with the intention of completing said reassessment program within their current term of office.(November 25, 2008 Order, R.R. at 56a.)
In October 2009, plaintiffs filed a motion to compel the County to hire a vendor to commence the reassessment on the ground that no legislation or judicial action changing real estate assessment or reforming school taxes had occurred. The County opposed this motion and requested a stay based on the passage by the Pennsylvania House of Representatives of a resolution requiring a study of property tax assessment systems to be completed by June 30, 2010, and a bill that had passed in the House and was pending in the Pennsylvania Senate that would impose a moratorium on court-ordered county-wide reassessments until June 30, 2011. (County's Answer to Motion to Compel, R.R. at 84a-107a; December 14, 2009 H.T. at 25-39, 42-47.) On January 11, 2010, the trial court ordered a nine-month stay of the County's reassessment obligation with periodic status conferences at which the County was to report on the status of pending legislation. (Trial Court Memorandum and Order of January 11, 2010, R.R. at 120a-124a.) Plaintiffs did not file a notice of appeal from this Order, but sought certification for interlocutory appeal by permission. The trial court denied the motion to certify for interlocutory appeal and this Court denied plaintiffs' petition for review of the denial of interlocutory appeal.
The trial court held status conferences in April 2010, December 2010 and April 2011. Plaintiffs filed a motion for contempt on March 3, 2011, and a motion to enforce judgment on May 20, 2011. The County opposed both these motions, contending that the stay was still in effect and should remain in effect because of pending legislative initiatives. (County's Answer to Plaintiffs' Motion for Civil Contempt, R.R. at 173a-177a; County's Answer to Plaintiffs' Motion to Enforce Judgment in Mandamus/Consent Order, R.R. at 259a-261a.) However, no legislation altering the basis for requiring reassessment or substantially changing reassessment practices had been enacted. (April 14, 2011 H.T. at 16-50; June 1, 2011 H.T. at 41-42, 55, 109, R.R. at 520a-521a, 534a, 588a.) Indeed, at the April 14, 2011 status conference hearing, the County reported that the response it had received from a State Senator was that "[p]redicting the likelihood of positive action on these initiatives by the General Assembly and the governor is unfeasible at this time." (April 14, 2011 H.T. at 49.)
On June 1, 2011, the trial court issued two separate orders on the two motions. In its Order on the contempt motion, the trial court found that the County was not in contempt, but lifted the stay of the November 25, 2008 Order. (June 1, 2011 Contempt/Stay Order, R.R. at 263a.) In its Order on the motion to enforce, the trial court granted the motion and ordered the County to take the necessary actions to enter into a contract to begin the county-wide reassessment within five weeks. (June 1, 2011 Reassessment Order, R.R. at 264a.) The County did not file any appeal from either of the June 1, 2011 Orders.
On July 12, 2011, the County filed a Motion for Stay of the trial court's June 1, 2011 Contempt/Stay Order lifting the stay, seeking reinstatement of the stay and extension of the stay until November 30, 2012 (the Motion for Stay). (Motion for Stay, R.R. at 268a ¶1, 271a, 273a.) The County based this motion on the fact that in late June 2011, both houses of the legislature had passed a bill imposing a moratorium on court-ordered county-wide reassessments limited to counties of the fourth class with a population between 185,000 and 210,000 that was vetoed by the Governor on July 8, 2011, on the ground that it was unconstitutional because it was limited only to Washington County. (Motion for Stay, R.R. at 269a, 275a-279a.) The County argued that the stay should be reinstated because the veto might be overridden, there were other moratorium bills pending that would apply to all counties and two House Resolutions had passed that set up task forces to develop proposed reassessment standards that would report back to the legislature in six months. (Motion for Stay, R.R. at 269a-271a, 275a-317a.) The trial court allowed the filing of an amicus brief of a State Representative in support of the Motion for Stay. That amicus brief, filed September 27, 2011, discussed the status of legislation affecting reassessment and did not report that any legislation had been enacted or report any significant events since the Motion for Stay was filed on July 12, 2011. (Amicus Brief in Support of Motion for Stay, R.R. at 434a-447a.)
On November 15, 2011, the trial court entered an Order denying the Motion for Stay. On December 8, 2011, the County filed the instant appeal from the November 15, 2011 Order denying its motion for stay of the June 1, 2011 Contempt/Stay Order.
The threshold and dispositive issue before us is whether the November 15, 2011 Order is an appealable order. We conclude that it is not. The November 15, 2011 Order from which the County appealed is an order denying a motion for stay of another order, a June 1, 2011 Order from which no appeal was taken. Orders granting or denying a motion for stay are non-appealable interlocutory orders. Commonwealth v. Morris, 565 Pa. 1, 14-18, 771 A.2d 721, 728-30 (2001); Farmers First Bank v. Wagner, 687 A.2d 390, 391-92 (Pa. Super. 1997); Richardson Brands, Inc. v. Pennsylvania Dutch Co., 592 A.2d 77, 80 (Pa. Super. 1991); Grimme Combustion, Inc. v. Mergentime Corp., 560 A.2d 793, 794 (Pa. Super. 1989).
This Court, in the past, had on occasion treated the granting or denial of a stay as an appealable order under Pa. R.A.P. 311(a)(4), which permits appeal as of right from an interlocutory "order that grants or denies, modifies or refuses to modify, continues or refuses to continue, or dissolves or refuses to dissolve an injunction." See In re Appeal of American College, 500 A.2d 911, 912-13 (Pa. Cmwlth. 1985); In re Petition of Woodland Hills School District, 473 A.2d 257, 258 n.1 (Pa. Cmwlth. 1984); see also Blackwell v. State Ethics Commission, 523 Pa. 347, 352, 359, 567 A.2d 630, 633, 636 (1989). However, subsequent to these decisions, both the Supreme Court and the Superior Court have expressly rejected the argument that denial or grant of a stay is appealable under Rule 311(a)(4) as the grant or denial of an injunction. Morris, 565 Pa. at 14-16, 771 A.2d at 728-29; Richardson Brands, 592 A.2d at 80; Grimme Combustion, 560 A.2d at 794. Rule 311(a)(4) therefore does not give this Court jurisdiction over this appeal.
The County argues that the denial of a stay is effectively a permanent denial of relief because it "compelled the Appellants to proceed with a countywide reassessment without further delay" (Appellants' Application for Reargument of Motion to Quash at 6), and that the November 15, 2011 Order is therefore appealable under Philco Corp. v. Sunstein, 429 Pa. 606, 241 A.2d 108 (1968); see also Chestnut v. Pediatric Homecare of America, Inc., 617 A.2d 347, 348-49 (Pa. Super. 1992). That, likewise, is not a basis for holding that the November 15, 2011 Order is an appealable order. The Supreme Court in Morris abrogated this basis for appeal of a stay and held that review of the grant or denial of a stay must be under Chapter 17 of the Rules of Appellate Procedure ancillary to an appeal from the order that appellant seeks to stay. Morris, 565 Pa. at 15-18, 771 A.2d at 729-30. Thus, to obtain appellate review as of right of the denial of the stay, the County was required to appeal the June 1, 2011 Order that it sought to stay. The County filed no timely appeal from that Order, instead only appealing in December 2011 from the November 15, 2011 denial of stay, six months after the underlying June 1, 2011 Order was entered, far beyond the deadline for appeal from that underlying order.
The other cases relied on by the County involve appeals where final orders had been entered and do not address the appealability of an order denying or granting a stay at all. See PNC Bank v. Bluestream Technology, Inc., 14 A.3d 831 (Pa. Super. 2010) (appeal was from final order refusing to open confessed judgment); Johnson v. Martofel, 797 A.2d 943 (Pa. Super. 2002) (judgment of possession had been granted).
Moreover, even if an order denying a stay were appealable in some circumstances, that could not give this Court jurisdiction over this appeal. The order that modified or denied an injunction and "compelled the Appellants to proceed with a countywide reassessment without further delay" was the trial court's June 1, 2011 Order lifting the stay, not the November 15, 2011 Order. The County's Motion for Stay asked the trial court to reverse itself and rescind or revise that June 1, 2011 Order. The November 15, 2011 Order was, therefore, in effect, a denial of a motion for reconsideration. The law is clear that an order denying reconsideration is not an appealable order. City of Philadelphia v. Frempong, 865 A.2d 314, 318-19 (Pa. Cmwlth. 2005); Thorn v. Newman, 538 A.2d 105, 108 (Pa. Cmwlth. 1988).
For the reasons set forth above, the November 15, 2011 Order is not an appealable order. Accordingly, this appeal must be quashed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 5th day of December, 2012, the appeal from the order of November 15, 2011 of the Washington County Court of Common Pleas in the above-captioned matter is QUASHED. Appellees' Application to Strike Portions of the Reproduced Record is DISMISSED as MOOT.
/s/_________
JAMES GARDNER COLINS, Senior Judge