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APPEAL LUTHERAN HOME AT TOPTON v. BOARD ASSESSMENT APPEALS LEHIGH COUNTY (09/03/86)

decided: September 3, 1986.

APPEAL OF THE LUTHERAN HOME AT TOPTON, PENNSYLVANIA FROM THE DECISION OF THE BOARD OF ASSESSMENT APPEALS OF LEHIGH COUNTY. THE BOARD OF ASSESSMENT APPEALS OF LEHIGH COUNTY, COUNTY OF LEHIGH, TWP. OF SOUTH WHITEHALL AND PARKLAND SCHOOL DISTRICT. COUNTY OF LEHIGH, APPELLANT. APPEAL OF THE LUTHERAN HOME AT TOPTON, PENNSYLVANIA FROM THE DECISION OF THE BOARD OF ASSESSMENT APPEALS OF LEHIGH COUNTY. THE LUTHERAN HOME AT TOPTON, APPELLANT
v.
THE BOARD OF ASSESSMENT APPEALS OF LEHIGH COUNTY, COUNTY OF LEHIGH, TWP. OF SOUTH WHITEHALL AND PARKLAND SCHOOL DISTRICT, APPELLEES



Appeals from the Order of the Court of Common Pleas of Lehigh County, in case of In Re: Appeal of the Lutheran Home at Topton, Pennsylvania, from the decision of the Board of Assessment Appeals of Lehigh County, No. 83-C-1988.

COUNSEL

Jeffrey R. Dimmich, Assistant County Solicitor, Snyder & Dimmich, with him, Lawrence J. Brenner, for appellant/appellee, Lehigh County.

William G. Malkames, with him, Mark Malkames, for appellee/appellant, Lutheran Home at Topton, Pennsylvania.

Judges MacPhail and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail. Concurring and Dissenting Opinion by Judge Colins.

Author: Macphail

[ 100 Pa. Commw. Page 246]

The Board of Assessment Appeals of Lehigh County (Board) appeals here from a decision of the Court of Common Pleas of Lehigh County which sustained the real estate tax exemption claim of the Lutheran Home at Topton, Pennsylvania (Home) with respect to its Luther Crest retirement residence.

The Home, a non-profit corporation, owns and operates Luther Crest as well as several other retirement facilities. Luther Crest consists of 310 residential apartments, a common dining room, an auditorium, a gift shop, an activity room, a library, administrative offices, and a 60-bed nursing facility.

On September 20, 1982, the Board exempted Luther Crest from the payment of all real estate taxes effective January 1, 1983 pursuant to an appeal filed by Luther Crest on September 1, 1982. On December 23, 1982, our Supreme Court handed down its decision in Appeal of Marple Newton School District, 500 Pa. 160, 455 A.2d 98 (1982). On March 4, 1983, the County of Lehigh (County) filed with the Board a request for reconsideration of the September 20, 1982 decision averring as the sole grounds therefore that Marple Newton mandated a reversal of the Board's decision. The Board granted the County's request for reconsideration, and following a hearing, reversed itself and held that Luther Crest was not entitled to a real estate tax exemption.

The Home appealed the Board's decision to the Court of Common Pleas of Lehigh County, claiming (1) that because the County did not appeal from the September 20, 1982 decision, the Board was without the power to rehear the case and (2) assuming the Board properly heard the matter, the Marple Newton School District decision did not warrant the Board's reversal of Luther Crest's tax exempt status.

[ 100 Pa. Commw. Page 247]

A hearing was held by the court November 14-15, 1984. By decision dated January 25, 1985, the court first held that "where . . . the County seeks reconsideration by the Board, and authority exists for the County to ask the Board to correct allegedly erroneous and/or improper assessments after the normal time for appeal has run, we are not inclined to dismiss the substantial substantive question because of possible procedural imperfections." Appeal of the Lutheran Home at Topton, Pennsylvania, (Opinion) (No. 83-C-1988 Assessment Appeal, filed January 25, 1984), slip op. at 8 (emphasis in original). The court, however, then went on to hold that the residential units and health center at Luther Crest are devoted to charitable purposes and that the facility was founded and maintained by private charity.

The County filed an appeal to this Court from the trial court's order sustaining the Home's tax exemption claim; the Home cross-appealed*fn1 on the issue of the timeliness of the County's request for reconsideration of the original Board decision.

We shall first address the issue of whether the Board properly reconsidered its original decision. The Home argues that the County had thirty days*fn2 from which to appeal the Board's September 20, 1982 decision granting Luther Crest tax exempt status, and when the County failed to appeal within that time frame, it was precluded from thereafter appealing the decision in the form of a "Petition for Reconsideration." The Home further points out that the right to petition an administrative agency, such as the Board, to reconsider its decision after a statutorily prescribed appeal period has expired, must be a right that is conferred by statute or regulation, and no such statute or regulation permits the

[ 100 Pa. Commw. Page 248]

County to petition the Board to reconsider the original decision. See Olson v. Borough of Homestead, 66 Pa. Commonwealth Ct. 120, 443 A.2d 875 (1982). The County concedes that it did not file a timely appeal from the Board's original decision but argues that Appeal of Marple Newton School District changed the law applicable to Luther Crest, and that therefore the Board was obliged to "correct" its error in law.

Assessments in third class counties, such as Lehigh County, are governed by the provisions of the Third Class County Assessment Law (Assessment Law), Act of June 26, 1931, P.L. 1379, as amended, 72 P.S. §§ 5342-5350k. The Assessment Law provides that the Board must make annual assessments, 72 P.S. § 5344(a). Section 7 of the Assessment Law, 72 P.S. § 5348 further provides that:

(a) The said board shall, on or before the first day of July, examine and revise the said annual assessments and valuations, increasing or decreasing the same as in their judgment may seem proper . . .; and such added assessments may be used for the taxation of the property . . . for the following calendar and fiscal tax years for which the assessment roll is being prepared, for the current year and for the preceding three years if there was liability for such taxes under existing law.

(b) The board shall, on or before the fifteenth day of July, prepare an assessment roll or list of persons and property subject to local taxation, together with the value placed upon each person and each parcel or tract of real property. The board shall at the same time prepare a list of all property exempted by the law from taxation.

(f) The board is authorized to make additions and revisions to the assessment roll of persons

[ 100 Pa. Commw. Page 249]

    and property subject to local taxation at any time in the year, so long as the notice provisions of subsection (b) of section 8 are complied with. All additions and revisions shall be a supplement to the assessment roll for levy and collection of taxes for the tax year for which the assessment roll was originally prepared, in addition to being added to the assessment roll for the following calendar or fiscal tax years.

Section 8 of the Assessment Law, 72 P.S. § 5349 states:

(b) The board shall cause to be mailed to each owner of property . . . assessed and taxing district having any interest therein, . . . the value of whose property . . . assessment has been changed from that finally fixed in the preceding assessment roll . . ., a notice of such change . . . and the amount of the new assessment. . . . Such notice shall be mailed within five days from the date the board made such change . . . and shall state that any person aggrieved by any assessment and the said taxing districts may appeal to the board for trial by filing with the board, within forty days of the date of such notice, an appeal, in writing, designating the assessment or assessments by which such person is aggrieved. . . .

[(c)] Any person or such taxing district desiring to make an appeal shall, on or before the first day of September, file with the board an appeal.

(d.4) When the board has completed the hearing of appeals and has in each case entered its order it shall make ...


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