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Unauthorized Practice of Law Committee

OPINION 98-101

SUBJECT: Unauthorized practice of law Before County Boards of Assessment Appeals by persons not licensed to practice law such as tax consultants, certified public accountants, public accountants, real estate brokers and/or salespersons and state certified real estate appraisers or other appraisers and any other persons not licensed to practice law

It is the OPINION of the Unauthorized Practice of Law Committee of the Pennsylvania Bar Association (the "Committee") that the counseling, preparation and/or filing of real estate tax assessment appeal forms and/or representation of real property owners by persons not licensed to practice law in Pennsylvania ("Unlicensed Persons") such as tax consultants, certified public accountants, public accountants, real estate brokers and/or salespersons and state certified real estate appraisers and other appraisers before the various county boards of assessment appeals throughout Pennsylvania constitutes the Unauthorized Practice of Law.BRIEF IN SUPPORT OF OPINION 98-101:

It has come to the attention of the Committee that persons not licensed to practice law, such as tax consultants, certified public accountants, public accountants, real estate brokers and/or salespersons, and state certified real estate appraisers or other appraisers (hereinafter collectively referred to as “non attorney tax consultants” or “tax consultants”) solicit owners of real property, or are solicited by such owners, for the purpose of providing services in the preparation and filing of real estate tax assessment appeals and representation therein, and subsequently represent or attempt to represent such owners in negotiations with assessors, and in proceedings before the several Pennsylvania county boards of assessment appeals. Such representation typically involves either the tax consultant’s personal appearance before a Board of Assessment, or alternative arrangements between the tax consultant and licensed attorneys acting on behalf of (aiding and abetting) the tax consultants pursuant to which the attorney purports to "represent" the owner. The tax consultant typically solicits the real estate owner to appoint the tax consultant, or the tax consultant’s attorney as “attorney or attorney in fact for the owner”, or resorts to some other subterfuge or sham. Such representation in real estate tax assessment appeal proceedings is undertaken by the tax consultant for compensation, which may vary from a fee based upon a contingent percentage of real estate taxes saved by virtue of a reduction in the property’s assessment, to a flat fee or hourly fee. The tax consultant’s fee may or may not include the cost of preparation and presentation of an appraisal report of the subject property and/or the fee, costs and expenses to provide the real property owner with attorney representation at the board of assessment appeals and/or the Court of Common Pleas of the particular county.

It has further been reported to the Committee that if the matter should be appealed to a Board of Assessment, many of the real property owners do not personally appear before the board or, if they do appear, take no part in the prosecution of the appeal. Tax consultants frequently utilize “consulting-agency agreements,” or powers of attorney, authorizing the consultant to act as the property owner’s attorney-in-fact. The tax consultant generally prepares the appeal form, including the factual and legal basis thereof; appears at the board hearing on behalf of the owner, without the owner or counsel present; argues on behalf of the property owner; negotiates with the assessors; and advises the property owner as to whether the matter warrants an appeal to the Court of Common Pleas. Tax consultants also frequently employ an attorney (with whom the property owner usually has no prior or ongoing relationship) to "represent" the taxpayer. It is the tax consultant, rather than the property owner, who instructs the attorney as to how to proceed with the appeal. The tax consultant typically communicates directly with the real estate owner on legal and factual matters notwithstanding the involvement of the attorney selected by the tax consultant.

ISSUES PRESENTED

I. Does the representation of a property owner before a board of assessment appeals by a non-attorney tax consultant, or other person not licensed to practice law in pennsylvania, constitute the unauthorized practice of law?

Suggested Answer: Yes.

II. Does the preparation of an appeal form by a non attorney tax consultant, or other person not licensed to practice law in pennsylvania, acting on behalf of a property owner who is not acting pro se, constitute the unauthorized practice of law?

Suggested Answer: Yes.

III. Does a power of attorney granted pursuant to 20 pa.c.s.a. § 5601, et seq., properly authorize a non attorney tax consultant, or other person not licensed to practice law in pennsylvania, to represent a property owner before the board of assessment appeals?

Suggested Answer: No.

BACKGROUND

I. REGULATION OF THE PRACTICE OF LAW IN THE COMMONWEALTH OF PENNSYLVANIA

The Pennsylvania Constitution provides that “[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and conduct of all courts . . . and for admission to the bar and to practice law . . . .” Pa. Const. art. V, § 10(c). The Court has the exclusive right to determine what constitutes the practice of law. Kohlman v. Western Pennsylvania Hospital, 438 Pa.Super. 352, 652 A.2d 849 (1994), appeal denied, 541 Pa. 640, 663 A.2d 692 (1995); Commonwealth v. Carroll, 358 Pa.Super. 357, 517 A.2d 980, appeal denied, 515 Pa. 573, 527 A.2d 535 (1986). See also Commonwealth v. Stern, Pa. , A.2d , October 20, 1997.

Persons engaging in the unauthorized practice of law are subject to the penalties set forth in 42 Pa.C.S.A. § 2524:

(a) General rule. Except as provided in subsection (b), any person, including, but not limited to, a paralegal or legal assistant, who within this Commonwealth shall practice law, or who shall hold himself out to the public as being entitled to practice law, or use or advertise the title of lawyer, attorney at law, attorney and counselor at law, counselor, or the equivalent in any language, in such a manner as to convey the impression that he is a practitioner of the law of any jurisdiction, without being an attorney at law or a corporation complying with 15 Pa.C.S. Ch. 29 (relating to professional corporations), commits a misdemeanor of the third degree upon the first violation. A second or subsequent violation of this subsection constitutes a misdemeanor of the first degree.

. . .

(c) Injunction. In addition to criminal prosecution, unauthorized practice of law may be enjoined in any county court of common pleas having personal jurisdiction over the defendant. The party obtaining the injunction may be awarded costs and expenses incurred, including reasonable attorney fees, against the enjoined party. A violation of subsection (a) is also a violation of the act of December 17, 1968 (P.L. 1224, No. 387), known as the Unfair Trade Practices and Consumer Protection Law.

In order to protect the public, stringent requirements have been imposed to gain admission to and remain a member of the bar. See Kohlman, 438 Pa.Super. at 356, 357, 652 A.2d at 851. “A duly admitted attorney is an officer of the court and answerable to it for dereliction of duty.” Childs et al. v. Smeltzer, 315 Pa. 9, 14, 171 A. 883, 886 (1934). As stated by the Supreme Court in Shortz v. Farrell the object of the legislation forbidding practice to laymen is not to secure to lawyers a monopoly, however deserved, but, by preventing the intrusion of inexpert and unlearned persons in the practice of law, to assure to the public adequate protection in the pursuit of justice, than which society knows no loftier aim. Shortz v. Farrell, 327 Pa. 81, 91, 193 A. 20, 24 (1937).

The Courts have not precisely delineated “the boundaries . . . which limit the practice of law” since such “[a]n attempt to formulate a precise definition would be more likely to invite criticism than achieve clarity.” Shortz, 327 Pa. at 84, 193 A. at 21. Although such an exact description does not exist, one can identify those areas which are reserved for licensed attorneys at law:

Where . . . a judgment requires the abstract understanding of legal principles and a refined skill for their concrete application, the exercise of legal judgment is called for. Shortz v. Farrell, 327 Pa. 81, 85, 193 A. 20, 21 (1973). While at times the line between lay and legal judgments may be a fine one, it is nevertheless discernible. Each given case must turn on a careful analysis of the particular judgment involved and the expertise that must be brought to bear on its exercise. Dauphin County Bar Association v. Mazzacaro, 465 Pa. 545, 553, 351 A.2d 229, 233 (1976).

II. JURISDICTION OF THE BOARD OF ASSESSMENT APPEALS

A board of assessment appeals, or other similarly titled entity, exists in each of Pennsylvania’s 67 counties The Second Class A and Third Class County Assessment Law mandates the use of the three traditional approaches to value, namely cost, comparable sales and income approaches, in order to arrive at a fair market value. 72 P.S. § 5348(d). A ratio of assessed value to actual value determines the amount of the property’s assessment for tax purposes.

Any property owner wishing to contest an assessment may file a written notice of appeal with the board. 72 P.S. § 5349(c). The board must then hold a public hearing at which the property owner and the affected taxing districts may present evidence of the property’s fair market value. After the hearing, the Assessment Law requires the board to determine the market value of the subject property as of the date of the appeal and the appropriate ratio of assessed value to actual value. 72 P.S. § 5349(d.1). If dissatisfied by the board’s determination, the property owner or taxing districts may appeal to the Court of Common Pleas of that county. 72 P.S. § 5350.

ARGUMENT

I. THE REPRESENTATION OF A PROPERTY OWNER BEFORE THE BOARD OF ASSESSMENT APPEALS BY A NON ATTORNEY TAX CONSULTANT, OR PERSON NOT LICENSED TO PRACTICE LAW IN PENNSYLVANIA, CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW.

The Supreme Court’s ability to regulate the practice of law is not restricted to courts of record. “Where the application of legal knowledge and technique is required, the activity constitutes such practice even if conducted before a so-called administrative board or commission. It is the character of the act, and not the place where it is performed, which is the decisive factor.” Shortz, 327 Pa. at 85, 193 A. at 21.

Shortz focused solely on the issue of whether proceedings before the Workman’s Compensation Board required the “application of legal knowledge and technique”, and therefore whether laymen can appear on another’s behalf. 327 Pa. at 90, 193 A. at 24. According to the Court, the Workman’s Compensation Board “considers legal questions, applies legal rules, and weighs facts in light of legal principles. It has the power to issue subpoenas, administer oaths, and require the attendance of witnesses and the production of books and documents.” 327 Pa. 81, 86, 193 A. 20, 22 (citations omitted). In light of these factors, the proceedings before this administrative agency were considered to be “essentially of a judicial character” and therefore constituted the practice of law. Id.

A. Assessment Appeals

Despite the fact that many issues decided by the board of assessment appeals are questions of valuation, one must still be familiar with court decisions and a variety of statutes. In Blair, Jr. v. Service Bureau, Inc., the Court determined that tax consultants who held themselves out to the public as capable of reducing or eliminating tax liability, committed the unauthorized practice of law because this service “requires thorough familiarity with complicated statutes and with multitudinous court decisions.” Blair, Jr. v. Service Bureau, Inc., 87 Pgh. Legal Journal 155, 165 (1939).

A taxpayer must not only present his or her case of fair market value of the appealed property, but must also be prepared to have any evidence presented to be subject to scrutiny and questioned not only by the Board, but also by the Taxing Districts through their legal counsel. Furthermore, the assessor and/or the Taxing Districts may present its own evidence which attempts not only to sustain the present assessment, but in many instances argument is made for an increase in assessment. A non-attorney clearly cannot adequately protect the rights of the taxpayer in such matters without a knowledge of the legal principles set forth infra., as well as an understanding of the basic rules of evidence. While an appeal to the Court of Common Pleas is de novo, an increase in assessment due to inadequate representation takes effect immediately in the ensuing tax year, forcing the taxpayer to pay the increased amount notwithstanding a pending court appeal. While an owner always has the right to present his or her case pro se to the Board, to permit a non-attorney tax consultant to represent tax assessment appellants presents a great danger to the public because a taxpayer who mistakenly relies on the "expertise" of such a non-attorney tax consultant is subject to great harm for which the tax consultant has no accountability.

In order to determine the propriety and advancement of an assessment appeal, one must be familiar with a variety of statutes and court rulings. For example, In Re Johnstown Associates states that rents fixed by the Department of Housing and Urban Development at below the prevailing market rate are to be considered when determining fair market value. In Re Johnstown Associates, 494 Pa. 433, 431 A.2d 932 (1981). The so-called Marple Springfield doctrine applies to commercial properties with long-term leases that contractually set the rent at a level which is below that which could be presently obtained in the market. Appeal of Marple Springfield Center, 530 Pa. 122, 607 A.2d 708 (1992), appeal after new trial, ___ Pa.Commw. ___, 654 A.2d 635, appeal denied, 542 Pa. 679, 668 A.2d 1140 (1995). In addition, in Appeal of Marple Springfield Center, Inc., the Commonwealth Court determined that the owner could not be assessed for improvements built by tenants on property that is already subject to a long term lease fixing the rental return to the owner. Appeal of Marple Springfield Center, Inc., ___ Pa.Commw. ___, 654 A.2d 635, appeal denied, 542 Pa. 679, 668 A.2d 1140 (1995). This holding may apply to any property on which a tenant assigns a ground lease and the sublessor erects improvements, and in fact has implications with regard to any industrial, commercial or residential income producing property.

u>F & M Schaeffer Brewing Company v. Lehigh County Board of Assessment Appeals states that the "value in use" standard of valuation is not acceptable for assessment purposes. F & M Schaeffer Brewing Company v. Lehigh County Board of Assessment Appeals, 530 Pa. 451, 610 A.2d 1 (1992). Accordingly, in valuing a hotel, nursing facility or other mixed real estate and business operation, one must apply the Schaeffer doctrine in formulating a legal argument on value.

Further, the presence of environmental contamination is a relevant factor to consider when determining fair market value for assessment purposes. Credible expert testimony can establish that contamination has a negative impact on the property's fair market value. B.P. Oil Company, Inc. v. Board of Assessment Appeals of Jefferson County, 159 Pa.Commw. 414, 633 A.2d 1241 (1993). Environmental contamination can impact the property to the extent that it is worthless or has only nominal value if left uncured. Monroe County Board of Assessment Appeals v. Miller, 131 Pa.Commw. 538, 570 A.2d 1386 (1990).

In many situations, each of the above case decisions must be considered when arriving at the actual value mandated in the Assessment Law. See 72 P.S. § 5348. Certain properties such as hotels, nursing facilities and recreation facilities require the application of abstract legal principles to separate out from real estate the business value, which is considered non taxable personal property for the purpose of real estate tax assessment. An attorney must apply the growing body of assessment law to the facts to determine if an appeal is appropriate.

Many tax consultants believe that since the issue is market value, they are the ones who can provide the best service for the taxpayer. Real estate appraisers and CPAs do provide valuable services to clients in valuation matters. They are, however, ill-prepared to deal with the legal and factual contexts of a tax assessment appeal.

In Dauphin County Bar Association v. Mazzacaro, our Supreme Court upheld the injunction issued against a lay public insurance adjuster engaged in the unauthorized practice of law. Dauphin County Bar Association v. Mazzacaro, supra. For a contingent percentage of any settlement, Mazzacaro, the adjuster, solicited and investigated claims by injured parties against alleged tort-feasors. 465 Pa. at 547, 351 A.2d at 230. The adjuster estimated the potential damages, sent demand letters to parties and tried to negotiate a settlement. Id. Mazzacaro claimed that he did not engage in the unauthorized practice of law because the claims he handled were uncontested, and the damage valuation and settlements did not involve the exercise of legal judgement. 465 Pa. at 553, 351 A.2d at 233.

The Supreme Court, in dismissing the adjuster’s arguments, stated

While the objective valuation of damages may . . . be accomplished by a skilled lay judgment, an assessment of the extent to which that valuation should be compromised in settlement negotiations cannot. Even when liability is not technically ‘contested’, an assessment of the likelihood that liability can be established in a court of law is a crucial factor in weighing the strength of one’s bargaining position. A negotiator cannot possibly know how large a settlement he can exact unless he can probe the degree of willingness of the other side to go to court. Such an assessment, however, involves an understanding of the applicable tort principles . . ., a grasp of the rules of evidence, and an ability to evaluate the strengths and weaknesses of the client’s case vis a vis that of the adversary. The acquisition of such knowledge is not within the ability of lay persons, but rather involves the application of abstract legal principles to the concrete facts of the given claim. 465 Pa. at 554, 351 A.2d at 233, 234 (emphasis added).

The same principles apply to non-attorney tax consultants. As previously discussed, the body of assessment law has grown and evolved in recent years. The value a property may command on the open market may differ from its taxable value. Only a licensed attorney is able to weigh the potential impact of the assessment law when evaluating a potential settlement or further appeal. If one is to determine value in isolation, a real estate appraiser may be better suited to render an opinion. Such a person, however, does not possess the requisite training to protect the legal rights of a property owner.

B. Class Action Appeals

The Second Class A and Third Class County Assessment Law states
Any person or such taxing district desiring to make an appeal shall . . . file with the board an appeal, in writing, setting forth:
(1) The assessment or assessments by which such person feels aggrieved;
(2) The address to which the board shall mail notice of the time and place of hearing.
For the purpose of assessment appeals under this act, the term “person”’ shall include, in addition to that provided by law, a group of two or more persons acting on behalf of a class of persons similarly situated with regard to assessment . . . .
72 P.S. § 5349(c) (emphasis in original). As well as providing an expedient means to initiate assessment appeals, this statute authorizes the board of assessment appeals to hear class actions. See Garret v. Bamford, 582 F.2d 810 (3d Cir. 1978). Even though the Rules of Civil Procedure do not apply to tax appeals, Appeal of the Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990), it is highly illustrative to consider Pa. R.C.P. 1701, et seq., when determining whether a putative class meets the statutory requirement of being “similarly situated with regard to assessment.” Pa. R.C.P. 1702 states:
One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Pa.R.C.P. 1702 (emphasis added).

Legal judgment must be brought to bear in appeals heard as a class by the Board of Assessment Appeals. Even though the Second Class A and Third Class County Assessment Law establishes a very simple requirement for the use of a class suit, one cannot apprehend the meaning of the statute without being trained in the Rules of Civil Procedure. A value conclusion is not the only determination to be made. Legal issues, such as commonality and typicality, are also present. A lay person cannot make the legal judgment necessary to determine whether a class suit is appropriate, or even in the best interests of the property owner or the “client.”

C. Real Estate Tax Exemptions

The Pennsylvania Constitution authorizes the exemption of certain properties from real estate taxation. Pa. Const. art. III, § 2(a). These exemptions are enumerated in the General County Assessment Law at 72 P.S. § 5020-204. Any organization seeking exemption must initiate the appeal process at the board of assessment appeals. Aquarian Church of Universal Service v. County of York, 90 Pa.Commw. 290, 494 A.2d 891 (1985). This party has the affirmative burden to prove that it is entitled to exemption. Four Freedoms House of Philadelphia, Inc. v. Philadelphia, 443 Pa. 215, 279 A.2d 155 (1971). If the entity intends to receive an exemption as a purely public charity, it must demonstrate that it:

(1) is one of purely public charity;
(2) was founded by public or private charity;
(3) is maintained by public or private charity.

See Woods School Tax Exemption Case, 406 Pa. 579, 178 A.2d 600 (1962). An organization qualifies as a purely public charity if it:

(1) advances a charitable purpose;
(2) donates or renders gratuitously a substantial portion of its services;
(3) benefits a substantial and indefinite class of persons who are legitimate subjects of charity;
(4) relieves the government of some of its burden; and
(5) operates entirely free from private profit motive.

Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985).

Exemption hearings clearly focus on legal issues rather than issues of valuation, thus requiring the use of legal judgment. A party must have the ability to interpret the salient constitutional provisions, statutes and case law. Furthermore, the primary inquiry focuses on the characteristics of the party seeking exemption rather than the characteristics of the real estate itself. One must make a legal judgment to determine if there is an exemption to pursue in cases involving such owners as churches, hospitals and parsonages. Tax consultants are wholly unqualified to represent property owners in exemption proceedings. To allow non-attorneys to represent organizations seeking exemption before boards of assessment appeals would circumvent the safeguards imposed on the legal profession which are intended to protect the public.

D. Spot Reassessment

The issue of spot reassessment appeals further underscores the need for competent representation by a licensed attorney before a board of assessment appeals. The Pennsylvania Constitution provides that “all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax.” Pa. Const. art. VII, § 1. In addition, the Second County A and Third Class County Assessment Law defines spot reassessment as “[t]he reassessment of a property or properties that is not conducted as part of a countywide revised reassessment and which creates, sustains or increases disproportionality among properties’ assessed value.” 72 P.S. § 5342.1. The Assessment Law specifically prohibits the practice of spot reassessment, and in the event that the board undertakes such practice, “the property owner may appeal the assessment to the board or the court . . . .” 72 P.S. § 5348.1. Therefore, the issue of spot reassessment is one of constitutional dimension implicating the requirement of uniformity of taxation.

A lay person cannot properly make decisions as to questions of uniformity and constitutionality. Both issues require the abstract application of legal principles and the use of legal judgment. The amount of the change in the assessment is not the focus of the inquiry, but rather the fact that the assessment has changed as a result of a spot reassessment. Only a licensed attorney can make such a reasoned determination. Our Supreme Court has stated that an action in equity for the violation of the uniformity provisions of the Pennsylvania Constitution may be heard by the Courts, even if the appellant has not exhausted the administrative remedies. Borough of Greentree v. Board of Assessment, Appeals and Review of Allegheny County, 459 Pa. 268, 328 A.2d 819 (1974). The Greentree Court reasoned that the board’s expertise would be of little use in determining constitutional issues. It follows that tax consultants would not be qualified to deal with these questions since they concern legal issues, not issues of valuation. A licensed attorney at law must be utilized to ensure the full protection of the rights of the taxpayer.

II. THE PREPARATION OF AN APPEAL FORM BY A NON-ATTORNEY TAX CONSULTANT, OR OTHER PERSON NOT LICENSED TO PRACTICE LAW IN PENNSYLVANIA, ACTING ON BEHALF OF A PROPERTY OWNER AND NOT ACTING PRO SE, CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW.

Our Supreme Court has held that the preparation of appeal forms for the Workman’s Compensation Board by a lay person on behalf of another does not constitute the unauthorized practice of law since the ‘pleadings’ . . . are so uniformly simple that it cannot fairly be said that legal skill is required in their preparation. They are executed on forms prepared by the Board, are elementary in character, and do not rise to the dignity of pleadings as that term is understood in other judicial proceedings.

u>Shortz, 327 Pa. at 92, 193 A. at 25. Citing Shortz, the Court of Common Pleas of Allegheny County held that a "real estate consultant engineer" did not commit the unauthorized practice of law by completing preprinted assessment appeal forms on behalf of property owners. Kountz et al. v. Rowlands, 46 D. & C. 461 (1942). This Committee believes that these rulings may not apply to the growing body of tax assessment appeal law. Even though the many boards of assessment appeals preprint their assessment appeal forms, these documents still require the use of legal judgment for their completion and a taxpayer must specify on what legal grounds an appeal is sought. While Kountz does seem to permit the completion of a tax appeal form by a lay person, it is more important to understand that in the nearly sixty years since the Shortz Court issued its decision, the body of assessment appeal law has grown considerably in complexity. In light of this evolution, it stands to reason that the mere length of an appeal form should not govern who is permitted to complete it for the property owners.

As discussed supra., one must apply abstract legal principles in order to state the basis of an assessment appeal. For example, the issues of contract rent discussed in the Marple Springfield Decision, supra. and value in use set forth in F & M Schaeffer, supra. mandate the exercise of legal judgment to determine whether they apply. The entire tax appeal area has become much more complicated, requiring application of an abundance of new statutes and case law. Therefore, the Committee believes that the preparation of assessment appeal forms by a lay person on behalf of another constitutes the unauthorized practice of law.

III. A POWER OF ATTORNEY, 20 Pa. C.S.A. § 5601, ET SEQ., DOES NOT AUTHORIZE A TAX CONSULTANT, OR OTHER PERSON NOT LICENSED TO PRACTICE LAW IN PENNSYLVANIA, TO REPRESENT A PROPERTY OWNER BEFORE THE BOARD OF ASSESSMENT APPEALS.

Many non-attorney tax consultants point to Chapter 56 of the Probate, Estates and Fiduciaries Code (hereinafter referred to as “Probate Code”), 20 Pa. C.S.A. § 5601, et seq., as a statutory authorization to appear before a board of assessment appeals on behalf of property owners. The Probate Code does not grant such authority in this situation. Furthermore, the power of attorney does not cloak a lay person with the power to act as an attorney at law.

Section 5602 of the Probate code provides that a principal “may . . . empower his attorney-in-fact . . . ‘to pursue tax matters.’” 20 Pa.C.S.A. § 5602(a)(22). The power to “pursue tax matters”, as defined in 20 Pa.C.S.A. § 5603(u), entitles the attorney-in-fact to

(3) Represent the principal before any taxing authority; protest and litigate tax assessments; claim, sue for and collect tax refunds; waive rights and sign all documents required to settle, pay and determine tax liabilities; sign waivers extending the period of time for the assessment of taxes or tax deficiencies.

(4) In general, exercise all powers with respect to tax matters that the principal could if present.

20 Pa.C.S.A. § 5603(u).

The Rules of Statutory Construction state that “[t]he title and preamble of a statute may be considered in the construction thereof.” 1 Pa.C.S.A. § 1924. Furthermore, statutes relating to the same person or thing are in pari materia. 1 Pa.C.S.A. § 1932(a). Statutes in pari materia “shall be construed together, if possible, as one statute.” 1 Pa.C.S.A. § 1932(b). Therefore, the title of the Probate, Estates and Fiduciaries Code may be used when construing the statute and 20 Pa.C.S.A. § 5601, et seq. must be read in pari materia with the remaining provisions of the Probate Code, since they all pertain to probate, estates, fiduciaries and other similar matters. In light of the Rules of Statutory Construction, it is clear that the use of powers of attorney in Chapter 56 of the Probate Code is limited to matters which involve decedents’ estates, probate, fiduciaries and other matters of the same class.

Furthermore, with Kohlman v. Western Pennsylvania Hospital, supra., the Superior Court specifically limited the scope of powers enumerated in the Probate Code to probate and administrative matters. In Kohlman, an attorney-in-fact attempted to represent a principal before the Court of Common Pleas of Allegheny County pursuant to 20 Pa.C.S.A. § 5601, et seq. The Superior Court held that the attorney-in-fact was engaged in the unauthorized practice of law. 438 Pa.Super at 358, 652 A.2d at 849.

Even though Kohlman deals with the unauthorized practice of law before the Court of Common Pleas, rather than an administrative board, this decision sets forth important principles that constrain the uses of powers of attorney, and 20 Pa.C.S.A. § 5601, et seq., in particular. First, and most importantly, “the powers listed in sections 5602 and 5603 [of the Probate Code] are best characterized as authorizing the agent to act as the client in an attorney-client relationship, with respect to probate and administrative matters.” 438 Pa.Super at 359, 652 A.2d at 852 (emphasis added). Second, “the power of attorney cannot be used as a device to license laypersons to act as an attorney-at-law.” Id. (emphasis added). Third, “[t]he attorney-in-fact may . . . engage in all activities authorized under sections 5602 and 5603 that do not constitute the unauthorized practice of law.” 438 Pa.Super 360 n.3, 652 A.2d 852 n.3 (emphasis added).

More recently, the Commonwealth Court applied the Kohlman rationale to a case that involves a lay tax consultant who represented taxpayers before the board of assessment appeals of Westmoreland County. See Westmoreland County v. Rodgers, ___ Pa. Commw. ___, 693 A.2d 996 (1997). In Rodgers, the defendant solicited and represented property owners for a contingent percentage of real estate tax savings. The defendant prepared tax appeal forms, introduced the taxpayer’s appraiser to the board, hired an attorney for the property owner, and advised the client as to whether to appeal the board’s decision or pay taxes. The Rodgers Court upheld the injunction issued by the Court of Common Pleas of Westmoreland County, based upon the board of assessment’s rule prohibiting persons not licensed to practice law from representing property owners. The Court, citing Kohlman, further held that “[j]ust as the attorney-in-fact provisions of the Probate Code . . . cannot empower an individual to engage in the unauthorized practice of law . . ., any rules or regulations of an adminstrative agency likewise cannot confer the power to engage in conduct that is prohibited . . . .” as the unauthorized practice of law. Rodgers, ___ Pa. Commw. at ___, 693 A.2d at 999 n.10 (citations omitted).

The Commonwealth Court’s language in Rodgers indicates that the practice of law also includes proceedings before county boards of assessment appeals. If a board of assessment’s rule cannot grant a lay person the power to practice law, then a lay person appearing before the board on behalf of another must be engaging in the practice of law.