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Ciavarra v. Commonwealth

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


February 17, 2009

EUGENE F. CIAVARRA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT

Per curiam.

ORDER

AND NOW, this 20th day of April, 2009, it is ordered that the opinion filed on February 17, 2009, shall be designate OPINION rather than MEMORANDUM OPINION, and shall be reported.

Argued: February 17, 2009

BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

SENIOR JUDGE FRIEDMAN

The Commonwealth of Pennsylvania (Commonwealth) has filed a "Motion to Quash" (Motion) the "Petition for Review" (Petition) filed by Eugene F. Ciavarra (Ciavarra). We quash the Petition to the extent Ciavarra seeks review of the Board of Finance and Revenue's (Board) February 29, 2008, order on the merits. We dismiss the Petition to the extent Ciavarra seeks review of the Board's August 7, 2008, denial of reconsideration.

The Department of Revenue assessed Ciavarra for unpaid realty transfer taxes in connection with a quitclaim deed showing that Ciavarra conveyed property to Palena Capital, L.L.C., an entity in which Ciavarra is the principal, for $10.00. Ciavarra paid the taxes and filed an appeal with the Board, arguing as follows:

1. Conveyance was for familial estate planning purposes.

2. Claimant is the sole member of the grantee LLC.

3. The subject Deed is a Quit-Claim Deed, not conveying complete title.

4. Claimant erroneously interpreted the provisions of the Act providing for exemptions.

5. Agents of the Commonwealth accepted the Deed for recording as exempt, thus making the same interpretational error as Petitioner.

6. Based on Number 5, the principles of estoppel apply as to the Commonwealth.

(Motion, ex. C.) In his request for relief, Ciavarra sought a refund of the taxes, nullification of the conveyance and/or a tax-exempt corrective deed. Id.

On February 29, 2008, the Board mailed its determination to Ciavarra, denying him the requested relief. By letter dated March 26, 2008, Ciavarra requested reconsideration, pointing out that the Board did not address whether Ciavarra could avoid the realty transfer tax by agreeing to allow the Board to nullify the deed. By letter dated August 7, 2008, the Board denied Ciavarra's request for reconsideration and stated that the February 29, 2008, order was final.

On September 8, 2008, Ciavarra filed his Petition with this court, seeking review of the Board's August 7, 2008, denial of reconsideration. Ciavarra sets forth the same issues presented in his appeal to the Board, adding that "[t]he Board failed to address the requested nullification of the transaction in its decision." (Petition at 1.) Ciavarra again requests relief in the form of a refund of the taxes, nullification of the conveyance and/or a tax-exempt corrective deed. (Petition at 2.)

In its Motion, the Commonwealth argues that this court should quash the Petition as untimely because Ciavarra did not file his Petition within thirty days of the Board's February 29, 2008, order, as required by Pa. R.A.P. 1571(b).

The Commonwealth's argument assumes that Ciavarra is appealing from the Board's February 29, 2008, order,*fn1 even though Ciavarra expressly states in his Petition that he is appealing from the Board's August 7, 2008, denial of reconsideration.*fn2 However, during oral argument on the Motion, Ciavarra maintained that he timely appealed the February 29, 2008, order as well as the August 7, 2008, order because the Board's appeal process did not end until the Board issued its August 7, 2008, order stating that the February 29, 2008, was final.*fn3 We disagree with Ciavarra.

Pa. R.A.P. 1571(b) requires that a petition for review of a determination of the Board shall be filed within thirty days of the entry of a Board order that does not expressly state that it is interlocutory in nature. Here, the Board's February 29, 2008, order did not expressly state that it was interlocutory in nature; thus, Ciavarra had thirty days from February 29, 2008, to file a petition for review of that order.

Because Ciavarra failed to meet that deadline, Ciavarra is not entitled to review of the Board's February 29, 2008, decision on the merits.*fn4

Moreover, Ciavarra is not entitled to a review of the Board's denial of reconsideration because the Board lacked jurisdiction to issue its August 7, 2008, decision.

In Fleeher v. Department of Transportation, Bureau of Driver Licensing, 850 A.2d 34 (Pa. Cmwlth. 2004), this court stated that the timeliness of a request for reconsideration is jurisdictional. The General Rules of Administrative Practice and Procedure (GRAPP) require that an application for reconsideration be filed "within 15 days, or another period as may be expressly provided by statute applicable to the proceeding, after the issuance of an adjudication or other final order by the agency."*fn5

1 Pa. Code §35.241(a). This court has held that the fifteen-day period is mandatory and that the failure to request reconsideration within that period deprives an agency of jurisdiction to consider the request. Fleeher. Here, the Board entered its order on February 29, 2008, but Ciavarra did not write his letter requesting reconsideration until March 26, 2008, more than fifteen days later. Because Ciavarro's request for reconsideration was untimely, the Board did not have jurisdiction to consider it.

Moreover, if an agency does not act on a request for reconsideration within thirty days after the request is filed, the request shall be deemed to have been denied. 1 Pa. Code §35.241(d). This is because an agency that does not act on a request for reconsideration within the period for taking an appeal loses jurisdiction over the request, and any action taken beyond the appeal period would be null and void. City of Philadelphia Police Department v. Civil Service Commission, 702 A.2d 878 (Pa. Cmwlth. 1997); Sewickley Valley Hospital v. Department of Public Welfare, 550 A.2d 1351 (Pa. Cmwlth. 1988), appeal denied, 524 Pa. 614, 569 A.2d 1372 (1989); and Monsour Medical Center v. Department of Public Welfare, 533 A.2d 1114 (Pa. Cmwlth. 1987)). Here, the thirty-day period for taking an appeal from the Board's February 29, 2008, order to this court under Pa. R.A.P. 1571(b)(1) expired on March 31, 2008. By the time the Board acted on Ciavarra's reconsideration request on August 7, 2008, the Board lacked jurisdiction to consider it. This means that the Board's denial of reconsideration on August 7, 2008, is void ab initio and that this court has nothing to review. City of Philadelphia.

Accordingly, we quash the Petition to the extent it seeks review of the Board's February 29, 2008, order on the merits. We dismiss the Petition to the extent it seeks review of the Board's August 7, 2008, denial of reconsideration.

ORDER

AND NOW, this 17th day of February, 2009, the petition for review (Petition) filed by Eugene F. Ciavarra is quashed to the extent it seeks review of the February 29, 2008, order of the Board of Finance and Revenue (Board). The Petition is dismissed to the extent it seeks review of the Board's August 7, 2008, order denying reconsideration.

ROCHELLE S. FRIEDMAN, Senior Judge


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