July 21, 2015
In Re: Appeal of Maoying Yu from the Delaware County Board of Assessment and Revision of Taxes Folio #14-00-01186-00 Municipality: Darby Borough Address: 110 N. Front Street Assessment For the Year Beginning January 1, 2013 Property of: Maoying Yu; Appeal of: William Penn School District
Argued June 17, 2015
Appealed from No. 2012-010354. Common Pleas Court of the County of Delaware. Green, J.
Joseph J. McAlee, New Britain, for appellant.
Kevin J. McGarrey, Lester, for appellee Maoying Yu.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
OPINION
Page 577
P. KEVIN BROBSON, J.
Maoying Yu (Taxpayer) initiated this matter by filing a Petition for Review of Assessment (Petition for Review) with the Court of Common Pleas of Delaware County (trial court). Taxpayer's Petition for Review challenged the denial of her tax assessment appeal for tax year 2013 by the Delaware County Board of Assessment Appeals (Board). After Taxpayer filed her Petition for Review, the Board issued a revised tax assessment, reducing the assessed value of Taxpayer's property (Property). In response, Taxpayer unilaterally discontinued her appeal of the original tax assessment by filing a Praecipe to Withdraw
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Appeal (Praecipe to Withdraw). Thereafter, William Penn School District (School District) filed a Petition to Strike Praecipe to Withdraw Appeal (Petition to Strike), which the trial court denied by order dated April 8, 2014. On appeal, the School District argues that: (1) the trial court erred by denying its Petition to Strike and not striking Taxpayer's discontinuance of her original tax assessment appeal; and (2) the trial court erred in refusing to void the revised assessment for Taxpayer's Property and reinstate the original assessment for her Property.[1] We now reverse.
Taxpayer's Property, located at 110 N. Front Street in Darby Borough, Pennsylvania, was initially assessed at $45,070 for the year beginning January 1, 2013. Following Taxpayer's appeal of her assessment to the Board, the Board denied her appeal on November 15, 2012, thereby maintaining the Property's assessment at $45,070 (Initial Decision). (Reproduced Record (R.R.) at 29a.) Taxpayer, thereafter, filed her Petition for Review of the Board's Initial Decision with the trial court on December 17, 2012,[2] and the School District timely intervened on January 9, 2013. (Trial Ct. Op. at 2.)
On December 18, 2012, however, after Taxpayer had already filed her Petition for Review with the trial court, the Board issued a revision to its Initial Decision (Revised Decision). (R.R. at 34a.) Using strikethroughs and interlineations, the Board's Revised Decision, dated December 18, 2012, purported to reduce Taxpayer's assessment for 2013 to $21,600. There is no explanation in the record or the parties' briefs as to why the Board issued its Revised Decision. Thereafter, on April 2, 2013, Taxpayer filed with the trial court's Office of Judicial Support, a Praecipe to Withdraw Appeal, indicating that the matter has been " Settled, Discontinued, and Ended." (R.R. at 15a.)
The School District filed its Petition to Strike on July 5, 2013. (R.R. at 18a.) Therein, the School District asserted that this case was discussed at the trial court's Call of the List held on March 22, 2013. The School District alleged that " [a]t the Call of the List, . . . Taxpayer's [c]ounsel stated that in view of the 'revised'" tax assessment, the Petition for Review would be withdrawn. (R.R. at 19a.) Moreover,
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as alleged in the Petition to Strike, the School District's Solicitor advised Taxpayer's counsel that the School District would not consent to the withdrawal, because the Revised Decision of the Board was void ab initio and the Board lost jurisdiction to take additional action after Taxpayer filed her Petition for Review.
The School District further alleged that Taxpayer withdrew her Petition for Review without seeking leave of the trial court or the School District's consent and without providing notice to the School District that she would discontinue her appeal. The School District averred that, because it believed the tax assessment appeal was still pending, it retained an expert to prepare an appraisal of the Property. The expert examined the Property on April 6, 2013, and released an appraisal report on April 14, 2013. (R.R. at 20a, 38a-48a.) The School District also alleged that it first learned that Taxpayer withdrew her appeal on June 19, 2013, after its counsel reviewed the docket. The School District asserted that Taxpayer has never advised it that the appeal was withdrawn, even though the School District provided Taxpayer with a copy of its appraisal report.
On April 8, 2014, without hearing or oral argument, the trial court issued an order, denying the School District's Petition to Strike (April 8th Order). The School District filed a notice of appeal on May 8, 2014. After the School District filed a statement of errors complained of on appeal, the trial court issued an opinion in support of its April 8th Order. In its opinion, the trial court indicated that it denied the School District's Petition to Strike, because the School District failed to appeal the Board's Revised Decision: " Once the December 18, 2012 determination was entered, it was incumbent upon the School District or other taxing authorities to perfect an appeal. They failed to do so." (Trial Ct. Op. at 3.) Because the School District failed to appeal, the trial court reasoned that it would be " inequitable to force Taxpayer to litigate a determination with which she was apparently satisfied" -- i.e., the Revised Decision. ( Id. at 4.)
On appeal to this Court,[3] the School District raises two principal arguments. First, the School District contends that the trial court failed to evaluate properly the prejudice to the School District caused by Taxpayer's withdrawal and the trial court's subsequent refusal to strike off the discontinuance.[4] Specifically, the
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School District notes that Taxpayer withdrew her appeal without leave of court and without the consent of the School District. Moreover, the School District did not receive timely notice of the discontinuance. The School District incurred costs and fees preparing for the appeal, most of which accrued after Taxpayer filed her Praecipe to Withdraw and before the School District had notice of that withdrawal. The School District also accuses the trial court of condoning Taxpayer's " forum shopping." Second, the School District contends that the Revised Decision was not authorized under the Consolidated County Assessment Law (Assessment Law), 53 Pa. C.S. § § 8801-8868. As an unauthorized act by the Board, the Revised Decision cannot serve as a basis for the trial court's refusal to strike the discontinuance in this case. The trial court's order, therefore, must be reversed and the matter remanded with direction to the trial court to set the assessed value for the Property.
For her part, the Taxpayer defends the trial court's decision. She maintains that once the Board issued the Revised Decision, her appeal of the Initial Decision became moot. The burden then shifted to the taxing authorities, including the School District, to challenge the Revised Decision. They failed to do so. With respect to the legality of the Revised Decision, Taxpayer argues that there is nothing in the Assessment Law that prohibits the Board from revising its decisions. Taxpayer also cites specifically to Section 8844(f) of the Assessment Law, contending that the intent of the Assessment Law was to provide the Board " wide latitude in issuing and amending Hearing Result notices when circumstances arise." (Taxpayer's Br. at 13.)
The Assessment Law authorizes counties to establish a board of assessment appeals, with enumerated powers and duties. 53 Pa. C.S. § 8851(a)-(b). Under the Assessment Law, a county's assessment office is charged with the initial duty of assessing property values and preparing and submitting to the county's board of assessment appeals annually an assessment roll of the properties subject to and exempt from local taxation. Id. § § 8841-8842. Taxpayers may challenge the county assessment office's determinations by lodging an appeal with the board of assessment appeals. Id. § 8844. The board of assessment appeals is empowered, inter alia, to " [h]ear and determine appeals, as provided in section 8844." Id. § 8851(b). Section 8844(e) of the Assessment Law requires the board of assessment appeals to issue its decisions " no later than November 15." The county assessment office thereafter is required to " make the appropriate changes in the assessment roll to
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conform to the decision of the board." Id. § 8844(e).
Appeals from decisions of a board of assessment appeals to the trial court are authorized under Section 8854 of the Assessment Law. Appeals must be filed within thirty days of the board's decision. Id. § 8854(a)(1); 42 Pa. C.S. § 5571(b). Time is of the essence in the Assessment Law: " All dates specified in this chapter for the performance of any acts or duties shall be construed to be mandatory and not discretionary with the officials or other persons who are designated by this chapter to perform such acts or duties." 53 Pa. C.S. § 8804(a). Once an appeal is filed, the court of common pleas must determine the market value of the subject property as of the date of the appeal to the board of assessment appeals and the applicable common level ratio. Id. § 8854(a)(2).
As a creature of statute, a board of assessment appeals may only exercise those powers expressly conferred upon it by law or by necessary implication to effect those express powers. See Pa. Div., Horsemen's Benevolent & Protective Ass'n, Inc. v. Mountainview Thoroughbred Racing Ass'n, Inc., 855 A.2d 957, 961 (Pa.Cmwlth. 2004). We see nothing in the Assessment Law that expressly authorizes the Board, once it issues its decision in an appeal, to revisit and revise that decision after the November 15th deadline. This is particularly true where an appeal from the Board's assessment decision is already pending before the court of common pleas. In this situation, the Assessment Law expressly and clearly vests in the common pleas court, not the Board, the power and duty to assess the value of the property at issue. So long as an appeal is pending, the Board lacks authority to further consider the matter.[5] Allowing boards to mull over their decisions after an appeal is lodged with the common pleas court and to revise these decisions as they see fit is contrary to the express language of the Assessment Law and could lead to inconsistent decisions and never-ending appeals.[6]
Taxpayer relies on Section 8844(f)(2) of the Assessment Law as conferring some authority to the Board to revise its appeal decisions after the statutory deadline of November 15th. Subsection (f) relates to the requirement imposed on the county assessment office in subsection (e) to " make the appropriate changes in the assessment roll to conform to the decision of the board." 53 Pa. C.S. § 8844(e)(2). The related language in subsection (f) provides:
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(1) The county assessment office shall prepare three copies of the assessment roll and shall deliver as follows the copies on or before November 15 with its certificate that each copy is a true copy of the original assessment roll:
. . . .
(2) All copies of the roll so furnished shall for all purposes be considered as originals. The original assessment roll and the true copies may be corrected, amended or changed after November 15 as circumstances may require.
Id. § 8844(f)(1)-(2). Under the Assessment Law, the county assessment office creates and maintains the county assessment roll. The above-quoted language provides the authority to the county assessment office to make changes to the assessment roll " as circumstances may require." We are not faced here, however, with a situation where the county assessment office made changes to the county assessment roll. Here, the Board,[7] not the
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county assessment office, purported to issue a revised assessment appeal determination after the November 15th statutory deadline and while an appeal from its Initial Decision was pending before the trial court. Because Section 8844(f) confers no power on the Board to do so, Taxpayer's reliance on this portion of the Assessment Law is misplaced.
Nor do we find that the Board has the power by necessary implication to revisit its determinations. In the event of an error by the Board, the Assessment Law provides the express remedy of an appeal to the common pleas court. The trial court hears appeals under the Assessment Law de novo. Green v. Schuylkill Cnty. Bd. of Assessment Appeals, 565 Pa. 185, 772 A.2d 419, 425-26 (Pa. 2001). Accordingly, there is no implicit need to confer on the Board the power issued a revised decision with respect to a particular appeal after the November 15th statutory deadline and after an appeal of its initial decision is pending before the court of common pleas. To the extent the Board feels that it erred in its assessment decision, it can convey its position to the judge of the common pleas court hearing the appeal.
The Board lacked the authority to issue the Revised Decision.[8] As the Revised Decision was not a determination by the Board that triggered a right, let alone the obligation, to appeal under Section 8854(a) of the Assessment Law,[9] the trial
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court misapplied the Assessment Law and thus abused its discretion in denying the School District's Petition to Strike. The Board's Revised Decision lulled Taxpayer into believing that she had won, and it caused the trial court to deny the School District's request to strike the discontinuance. Reversing the trial court here rights both wrongs and puts the question of the Property's market value back before the trial court, where it belongs under the Assessment Law, without prejudice to either Taxpayer or the School District.[10] We, therefore, reverse the trial court's April 8th Order. We remand the matter to the trial court with instruction that the trial court strike Taxpayer's discontinuance of her appeal and proceed to determine the market value of the Property in accordance with the Assessment Law.
ORDER
NOW, this 21st day of July, 2015, the order of the Court of Common Pleas of Delaware County, entered in the above-captioned matter, is hereby REVERSED, and the matter is REMANDED for further proceedings consistent with the accompanying opinion.
Jurisdiction relinquished.
DISSENTING OPINION
DAN PELLEGRINI,
President Judge
This is a simple case made complicated by the conflating of the April 2, 2013 discontinuance of the appeal from the Board's[1] original November 15, 2012 Decision (Original Decision) with the issue of whether the Board had jurisdiction to issue its Revised December 18, 2012 Decision (Revised Decision). Simply put, the only issue before the trial court was whether to strike Taxpayer's discontinuance of her appeal.
There is no rule of court that requires a person to seek permission to discontinue an appeal. However, Rule 229(c) of the Pennsylvania Rules of Civil Procedure permits the trial court to strike a discontinuance for, inter alia, unreasonable inconvenience, expense or prejudice. Pa. R.C.P. No. 229(c). It was under this Rule of Civil Procedure that the School District sought to strike the discontinuance.
However, the Pennsylvania Rules of Civil Procedure do not apply to tax assessment appeals. Appeal of Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (Pa. 1990). Because the Rules of Civil Procedure do not apply, the School District cannot seek
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to strike dismissal of the appeal under Pa. R.C.P. No. 229(c) because it is inapplicable and the general rule that permission is not needed to withdraw applies.
Moreover, the collateral effect of the discontinuance of the appeal of the Original Decision on the Taxpayer is irrelevant to her absolute right to discontinue her appeal of the original assessment or any other assessment that may be before the Board.[2]
Accordingly, because I would affirm the decision of the trial court, albeit on different grounds, I respectfully dissent.
Leadbetter and McCullough, Judges join in this dissenting opinion.