recognizing the right of an administrative tribunal to limit intervention through its rules of procedure, and that scope of party’s intervention before the administrative tribunal is determinative of its rights to pursue issues on appeal
How later courts described this case
- recognizing the right of an administrative tribunal to limit intervention through its rules of procedure, and that scope of party’s intervention before the administrative tribunal is determinative of its rights to pursue issues on appeal
- stating: “Generally, once intervention is allowed the intervenor is afforded all the rights of a party to the action, and unless otherwise specified an intervenor’s right to participate in an appeal is not contingent upon the continued participation of the original appellant”
- stating that “the intervenor takes the litigation as he finds it . . . and . . . must raise claims in subordination to and in recognition of the propriety of the original action . . . .”
- holding that the party who chooses to appeal chooses the issues and whatever is not chosen is waived
Written by the judges who cited it.
The opinion
PAPADAKOS, Justice,
dissenting.
Although I agree with the majority’s conclusion that a real property owner has the right to intervene in the appeal of the property assessment taken by a taxing body, even though such intervention comes after the expiration of such property owner’s allotted time within which to appeal, I must disagree with the majority in granting to the property owner a second bite at the apple after it has accepted the first bite as final.
When the property owner failed to appeal the assessment of $335,000 within the time allowed, even though appeals were pending to attack the assessment as too low, it conclusively accepted the assessment as fair and reasonable. Its subsequent intervention could only be condoned for the purposes of protecting the assessment from being increased. Where the taxing body timely withdrew its appeal, there was no proceeding left in which the property *174 owner could intervene and the matter should have ended there.
The majority pays lip service to the doctrine of waiver and the rules of intervention and then totally ignores them in relying upon the Board’s own administrative rules which do not deal with waiver.
I do not subscribe to the view that administrative agencies are sometimes free to exercise an unlimited or absolute discretion. They are not. They must exercise sound discretion. See, Petition of Acchione, 425 Pa. 23 , 227 A.2d 816 (1967); Eways v. Reading Parking Authority, 385 Pa. 592 , 124 A.2d 92 (1956); Blumenschein v. Housing Authority of Pittsburgh, 379 Pa. 566 , 109 A.2d 331 , appeal dismissed, 350 U.S. 806 , 76 S.Ct. 68 , 100 L.Ed. 724 (1954); R. Berger, “Administrative Arbitrariness: A Synthesis,” 78 Yale L.J. 965 (1969). Where their own rules are unclear or non-existent, they are not free to ignore the conventional principles and doctrines of civil practice and procedure. Failure to apply the commonly understood doctrine of waiver in the context of intervention here was a flagrant abuse of discretion in my view. Administrative agencies should be encouraged to conform their adjudicative practices as much as is practicable, to those used by courts throughout the Commonwealth. Our governing principles and procedures are the product of centuries of learning and experience. See, Philadelphia Electric Co. v. Public Service Comm., 314 Pa. 207 , 171 A. 690 (1934). To encourage the opposite is mischievous.
Under our Civil Procedure Rules, Pa.R.C.P. 2326-2330, and under 1 Pa. Code § 35.28 , dealing with intervention in administrative proceedings, intervention may sometimes be a matter of right, but the court or agency retains a good deal of discretion. Under the standards routinely applied under the Civil Procedure Rules, not to dismiss the real property owner’s suit on the basis of waiver under these circumstances was clearly error. For the Board not to do so was a clear abuse of discretion.
I dissent.