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JOHN H. LANG v. TAX REVIEW BOARD CITY PHILADELPHIA (11/04/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 4, 1982.

JOHN H. LANG, APPELLANT
v.
TAX REVIEW BOARD OF CITY OF PHILADELPHIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Tax Review Board, City of Philadelphia v. John H. Lang, No. 2027 July Term, 1976.

COUNSEL

Kenneth E. Aaron, Davidson & Aaron, for appellant.

Stewart M. Weintraub, Deputy City Solicitor, with him Alan J. Davis, City Solicitor, Ellis M. Saull, Chief Assistant City Solicitor, and Ellis Eisen, Assistant City Solicitor, for appellee.

President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 69 Pa. Commw. Page 526]

A Philadelphia County Common Pleas Court by order denied John H. Lang's appeal from a Philadelphia Tax Review Board (Board) decision. We affirm.

[ 69 Pa. Commw. Page 527]

The City Department of Collections assessed Lang $233.20 for his failure to pay city wage tax.*fn1 He petitioned for review on July 29, 1975. A hearing, originally scheduled for January 8, 1976, was ultimately held on June 6, 1976. The Board denied Lang's petition. On appeal to the trial court, Lang raised for the first time the issue of subject matter jurisdiction grounded on the Board's delay in convening a hearing.*fn2 The court dismissed the appeal, concluding (1) that the issue of subject matter jurisdiction could not be raised initially on appeal and (2) that, in any event, an appellate court could not review a local agency's subject matter jurisdiction.

Whether a local agency is competent to make a binding determination is reviewable by the court. Section 754(b) of the Local Agency Law*fn3 provides in pertinent part, that:

In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with the law. . . or that a finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. (Emphasis added.)

[ 69 Pa. Commw. Page 528]

The question of an agency's competency to make a valid determination, that is, its subject matter jurisdiction, is clearly a constitutional issue since it relates directly to the parties' procedural due process rights.*fn4 Further, an agency's competency is a legal question subject to judicial scrutiny. Moreover, that the jurisdictional question was not pressed at the Board hearing does not now preclude its consideration on appeal since the lack of subject matter jurisdiction may be raised at any time by the parties or sua sponte by an appellate court. See Daly v. Darby Township School District, 434 Pa. 286, 252 A.2d 638 (1969).

Turning to the substantive issue, Lang's contention that the Board lacked jurisdiction to rule on his petition stems from its failure to hold a timely hearing as provided for in Section 19-1701(3)(a) of the Philadelphia Code:

(3) Hearings and Decisions

(a) All matters coming before the Tax Review Board shall be listed by the Board and shall be heard within 90 days after filing. (Emphasis added.)

Lang argues that this time period is mandatory and that, since a hearing was not convened within this period, the Board was no longer competent to review his tax claim. We disagree.

The word "shall" may be interpreted as either mandatory or directory, but "[w]hen referring to the time of doing something, shall has usually been considered

[ 69 Pa. Commw. Page 529]

    as directory." Delaware County v. Department of Public Welfare, 34 Pa. Commonwealth Ct. 165, 171, 383 A.2d 240, 242 (1978). Our Supreme Court held that:

The provisions of a statute requiring public officers to act within a specified time are generally regarded as directory, unless time is of the essence of the thing to be done, or the statute indicates that the provision is to be regarded as mandatory.

Commonwealth ex rel. Fortney v. Wozney, 326 Pa. 494, 497, 192 A. 648, 649 (1937). Here, there is nothing in the pertinent Philadelphia Code sections to indicate that the ninety-day period is mandatory.*fn5 Neither has Lang argued that time was of the essence in this matter. Lang has not been prejudiced by the delay since he had the opportunity to argue fully the merits of his defense before the Board. He cannot now have the merits reconsidered simply because the Board was delinquent in holding a hearing.*fn6

Affirmed.

Order

The Philadelphia County Common Pleas Court Order No. 2027 of July Term 1976, Civil Trial Division, dated June 25, 1981, is hereby affirmed.

Disposition

Affirmed.


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