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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allen E. Ertel and Catharine K. Ertel, :

Appellants :

:

v.

: No. 1190 C.D. 2004

: SUBMITTED: December 10, 2004
Lycoming County Board of

:
Assessment Appeals, James Carpenter, :
Peter Burchanowski, 21st Century
:
Appraisals, Inc.

:

BEFORE:
HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE DAN PELLEGRINI, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER

FILED: March 2, 2005

Allen E. and Catharine K. Ertel, husband and wife, appeal from the
order of the Court of Common Pleas of Lycoming County (common pleas), which
affirmed the imposition of roll-back taxes pursuant to the Pennsylvania Farmland
and Forest Land Assessment Act of 1974, commonly known as "the Clean and
Green Act."1

1 Act of December 19, 1974, P.L. 973, as amended, 72 P.S. §§ 5490.1 5490.13 (also
known as "Act 319"). The Act created the "clean and green" program to facilitate preservation of
agriculturally suitable acreage. It protects the owners of large tracts from the increased tax
(Footnote continued on next page...)

In general, the Clean and Green Program provides a preferential real
estate tax assessment for land that complies in its acreage and usage with certain
statutory requirements. When a disqualifying conveyance or change in use occurs,
the preferential assessment is revoked retroactively subjecting the landowner to
roll-back taxes. In the present case, the Ertels contest the imposition of roll-back
tax liability for a disqualifying event that occurred prior to their purchase and they
challenge the authority of the County tax assessor to calculate the amount of roll-
back taxes and to file a lien therefore.

In 1988, the Ertels enrolled approximately 148 acres in the Clean and
Green Program. In March of 1995, they conveyed approximately 48 of the total
acreage to their daughter, Amy. Of the 48 acres she received, Amy promptly
conveyed 18 acres and she enrolled her remaining 30 acres in the Program. In
October of 1996, Amy agreed to sell 3.16 acres to David Calehuff but she did not
convey a deed until December of 1999. This conveyance of less than ten acres
created a lot not eligible for enrollment in the Program under Section 3 and,
because it was more than two acres, the lot did not fall within the limited exception
from roll-back taxes established in Section 6. See 72 P.S. §§ 5490.3, 5490.6.

At the time he agreed to purchase the 3.16-acre lot, Calehuff also
agreed to pay the taxes on the entire 30-acre tract and the assessment office records
indicate that it sent tax bills to Calehuff from 1997 through 2000. However, after
the conveyance to Calehuff, the County never demanded that either he or Amy pay
_____________________________
(continued...)
burden that results when land values increase due to surrounding development. The legislature
intended to mitigate the pressure for a landowner to sell some or all of his farmed or forested
land in order to pay taxes. We note that by the Act of December 8, 2004, P.L. 235, the legislature
amended the Act. These amendments are not applicable in the present case.
2

roll-back taxes stemming from the split-off of the 3.16 acre lot. In March of 2000,
Amy conveyed her remaining acreage, approximately 27 acres, back to her parents.
Her father, Allen Ertel, an attorney, prepared all of the sales agreements and deeds
concerning conveyances to and from Amy.

In August of 2002, Calehuff sold his 3.16 acres to Benjamin
O'Connell. On January 16, 2003, the County identified this lot as a separate tax
parcel on its map and assigned a tax parcel number. Approximately two weeks
later, the County notified the Ertels that they owed roll-back taxes due to the split-
off of the 3.16 acre lot. By a letter dated September 5, 2003, Allen Ertel notified
the County Board of Assessment Appeals that he and his wife intended to use the
27 acres conveyed by Amy for purposes other than those permitted under the Clean
and Green Program and requested removal of that parcel from the Program.

The County initially demanded payment of $888.14 from the Ertels
representing roll-back tax liability but later, recalculated the roll-back tax liability
to include additional taxes and demanded a total payment of $10,077.32.2 The
Ertels paid the lesser amount while continuing to dispute their liability and filed an
appeal to the County Board of Assessment Appeals (Board). Following a hearing,
the Board concluded that the Ertels owed $10,077.32. Thereafter, the Ertels
appealed to common pleas. They challenged the validity of the tax assessor's
appointment and asserted that he lacked authority to impose the additional tax
liability, asserted that a prehearing conversation between only the assessor and the
tax bureau attorney breached their right to due process before the Board, and

2 The record is confusing, to say the least, as to the basis of those calculations. However, the
accuracy of the calculations is not in issue. It does appear that the $888.14 figure represented
roll-back taxes due for the single year 1996.
3

contended that no tax liability could accrue to them for the split-off that occurred
prior to their acquisition.

Following the submission of stipulations and a de novo hearing
focused primarily on the manner of calculating the tax liability, common pleas
opined that "the ultimate question before us is when the split-off occurred which
would have triggered rollback taxes." Common pleas found that the split-off
occurred in 1996, when Amy and Calehuff executed and recorded an agreement of
sale rather than 1999 when Amy executed a deed. Based on this finding, common
pleas opined:
Because we believe the split off occurred in 1996 and
because the policy of the Board of Assessment Appeals
at that time was not to impose the full extent of rollback
taxes, we find that the Board of Assessment Appeals
committed an error of law in assessing rollback taxes in
the amount of $10,077.32, rather than in the amount of
$888.14. We reject all arguments of Petitioners with
respect to the procedure used by the Board of Assessment
Appeals because we specifically find that Husband
Petitioner, being an attorney actively involved in the
practice of law and real estate endeavors within
Lycoming County, was not prejudiced in any way by the
numerous procedural errors committed by the Board and
counsel during this dispute.
Ertel v. Lycoming County, (No. 03-01317, filed May 7, 2004) Order at 2-3.
Following the entry of common pleas' order, the Ertels filed the present appeal,
again challenging the assessor's authority to impose the roll-back taxes and
contending that, having purchased the property after the split-off and before any
lien for additional taxes had attached, they incurred no liability and acquired the
property free of the asserted lien. The County did not challenge, in a cross appeal,
the reduction in the amount of tax liability.
4

In a challenge to the assessed value of real estate for purposes of
taxation, the Board of Assessment Appeals is limited in its inquiry. The Board is
authorized to determine the proper assessment but no statute or regulation
authorizes its inquiry into alleged impropriety in the appointment of the chief tax
assessor. See Section 702 of The Fourth to Eighth Class County Assessment Law,
Act of May 21, 1943, P.L. 571, as amended, 72 P.S. § 5453.702. In Finucane v.
Pennsylvania Milk Marketing Board, 581 A.2d 1023 (Pa. Cmwlth. 1990), our court
ruled that a complainant could not challenge the appointment of a member of the
Milk Marketing Board in the action challenging the Board's imposed pricing
limits. Id. at 1027. Relying on Spykerman v. Levy, 491 Pa. 470, 421 A.2d 641,
(1980), the court, in Finucane, explained that the acts of either de jure officials or
de facto public officials, acting under the apparent authority derived from either
election or appointment, are valid and the official's right to exercise the authority
of his position cannot be challenged collaterally. Rather, any challenge to the right
to public office must be asserted in an action in quo warranto. The court stated:
A quo warranto is addressed to preventing a continued
exercise of authority unlawfully asserted, rather than to
correct what has already been done under the authority.
The gravamen of the complaint is the right to hold and
exercise the powers of the office in contradistinction to
an attack upon the propriety of the acts performed while
in office.

. . . .
If a private person has a special right or interest, as
distinguished from the right or interest of the public
generally, or he has been specially damaged, he may
have standing to bring a quo warranto action.
Finucane, 581 A.2d at 1027 (quoting Spykerman at 485-86, 421 A.2d at 648-49).
Inasmuch as the chief assessor acted with apparent authority, his performance of
official actions, such as assessment of roll-back taxes, pursuant to that authority
5

would not be rendered invalid or void by any subsequent determination that he had
not been legally appointed. Hence, the Ertels' contention that the chief assessor
lacked authority due to a failure to properly appoint him provides them with no
grounds for relief from liability for otherwise properly assessed roll-back taxes.
Unquestionably,
when
Amy conveyed the 3.16 acre lot she effected a
split-off.3 Section 6 of the Act establishes the tax consequences, as follows:
(a.1)(1) The split-off of a part of land which is subject to
preferential assessment under this act shall subject the
land so split off and the entire tract from which the land
was split off to roll-back taxes as set forth in section 5.1.
The landowner changing the use of the land to one
inconsistent with this act shall be liable for payment of
roll-back taxes. The landowner of land which continues
to be eligible for preferential assessment shall not be
liable for any roll-back taxes triggered as a result of a
change to an ineligible use by the owner of the split-off
tract. Roll-back taxes under section 5.1 shall not be due if
one of the following provisions applies:
(i) The tract split off does not exceed two acres annually .
. . .

. . . .

3 In Section 2, the Act defines "split-off" as "A division by conveyance or other action of the
owner of lands devoted to agricultural use, agricultural reserve or forest reserve and
preferentially assessed under the provisions of this act into two or more tracts of land, the use of
which on one or more of such tracts does not meet the requirements of section 3." 72 P.S. §
5490.2. In order to satisfy the eligibility requirements under section 3, the land must be "not less
than ten contiguous acres in area." 72 P.S. § 5490.3. In Feick v. Berks County Board of
Assessment Appeals, 720 A.2d 504 (Pa. Cmwlth. 1998), our court held that upon transfer of
ownership, even if the separated land remained in agricultural use, agricultural reserve or forest
reserve, a split-off occurs if the land does not meet the ten acre requirement. "In other words, if
any land that was `split-off' could not satisfy the criteria for entry into the Clean and Green
Program, all of the land listed in the application was subject to roll-back taxes under Section 6 of
the Act." Saenger v. Berks County Bd. of Assessment Appeals, 732 A.2d 681, 685 (Pa. Cmwlth.
1999).
6

(2) Each tract which has been split off under paragraph
(1)(i) shall be subject to roll-back taxes for such period of
time as provided in section 5.1. The landowner changing
the use of the land shall be liable for payment of roll-
back taxes.
(3) The split-off of a tract of land which meets the
provisions of paragraph (1) shall not invalidate the
preferential assessment on any land retained by the
landowner which continues to meet the [eligibility]
provisions of section 3.
72 P.S. § 5490.6. Section 5.1 provides that roll-back taxes shall be assessed for up
to the seven most recent tax years during which the land removed from eligibility
as well as the entire tract from which it was derived had been preferentially
assessed and interest on each year's roll-back tax shall be paid at six percent per
annum. Added by the Act of December 21, 1998, P.L. 1225, 72 P.S. § 5490.5a.
Section 8 of the Act establishes, in pertinent part, that the taxes "shall be paid by
the owner of the land at the time of change in use, or any other termination of
preferential assessment" and that "unpaid roll-back taxes shall be a lien upon the
property collectible in the manner provided by law for the collection of delinquent
taxes." 72 P.S. § 5490.8.

Pursuant to the above provisions, liability for roll-back taxes due to
the split-off of the 3.16 acre lot fell upon Amy, the owner at the time who effected
the split-off.4 The Ertels are correct that as the subsequent purchasers, they

4 Notably, when she agreed to sell to Calehuff, Amy failed to comply with Section 4 of the
Act, which, in pertinent part, requires that "a landowner receiving preferential assessment under
this act shall submit 30 days notice to the County assessor of a proposed change in use of the
land, a change in ownership of any portion of the land, or any type of division or conveyance of
the land." Section 4 further requires that the application for enrollment in the Program notify the
applicant of this duty by containing language as follows:
The applicant for preferential assessment hereby agrees, if his
application is approved for preferential assessment, to submit thirty
(Footnote continued on next page...)
7

incurred no personal liability for the taxes arising out of the split-off effected by
Amy.5 However, the unpaid taxes did trigger the attachment of a lien on the
property.6 The Ertels do not dispute that the unpaid taxes operate as a lien, but
contend that no lien could attach prior to a demand upon Amy and her refusal to
pay. We find no support for this assertion in the Act.

Accordingly, we affirm.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge
_____________________________
(continued...)
days'-notice to the county assessor of a proposed change in use of the
land, a change in ownership of a portion of the land or of any type of
division or conveyance of the land. The applicant for preferential
assessment hereby acknowledges that, if his application is approved for
preferential assessment, roll-back taxes under section 5.1 of the act may
be due for a change in use of the land, a change in ownership of any
portion of the land, or any type of division or conveyance of the land.
72 P.S. § 5490.4(c).
5 In this regard, we note that common pleas did not enter an in personam judgment against
the Ertels, but simply denied (in part) their appeal from the imposition of roll-back taxes. The
order stated, in pertinent part, "We determine the appropriate amount of roll-back taxes to have
been $888.14 which amount has previously been paid by Petitioners." In paying this tax, the
Ertels have satisfied a lien placed upon their land, and may have a personal claim against Amy,
but the latter issue is not before this court.
6 It may be noted that under the circumstances of this case, it is beyond dispute that the
Ertels can make no colorable claim to be bona fide purchasers for value who lacked notice of the
circumstances which gave rise to the lien.
8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allen E. Ertel and Catharine K. Ertel, :

Appellants :

:

v.

: No. 1190 C.D. 2004

:
Lycoming County Board of

:
Assessment Appeals, James Carpenter, :
Peter Burchanowski, 21st Century
:
Appraisals, Inc.

:

O R D E R

AND NOW, this 2nd day of March, 2005, the order of the Court
of Common Pleas of Lycoming County in the above captioned matter is hereby
AFFIRMED.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge