IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wanda K. Mixell and Property :

Owner, :

:

Appellant :

:

 v. : No. 1243 C.D. 2022

: Submitted: February 6, 2024

Cumberland County Board of :

Assessment Appeals :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE WOJCIK FILED: March 20, 2024

Wanda K. Mixell (Taxpayer) appeals from the order of the Cumberland 

County Court of Common Pleas (trial court), dated October 6, 2022, that sustained 

the demurrer of the Cumberland County Board of Assessment Appeals (Board) and 

dismissed her appeal on the basis that she abandoned her right to be heard on the 

merits of her appeal by failing to attend the Board hearing. Taxpayer contends that 

the trial court erred, abused its discretion, and violated her constitutional rights by 

dismissing her appeal based on the application of the mailbox rule. For the reasons 

that follow, we vacate and remand. 

Taxpayer is the owner of property identified as Parcel No. 15-07-0483-

044, located in Cumberland County, Pennsylvania (Property), which received 

preferential tax status under the Pennsylvania Farmland and Forest Land Assessment 
2

Act of 1974 (Clean and Green Act),1in a land conservation program commonly 

known as “Clean and Green.” Following the division and sale of part of Taxpayer’s 

Property in December 2021, the Cumberland County Tax Assessment Office 

terminated the Clean and Green status of both parcels, which triggered roll-back 

taxes on the entire Property in the amount of $38,072.50. 

On March 15, 2022, Taxpayer filed an assessment appeal with the 

Board seeking the restoration of the Property’s Clean and Green status. The Board 

scheduled a hearing for July 14, 2022, which Taxpayer did not attend. See

Reproduced Record (R.R.) at 14a. The next day, the Board issued a decision notice 

denying Taxpayer’s appeal on the basis that she abandoned her appeal by failing to 

attend the hearing pursuant to Section 8844(e)(1) of the Consolidated County 

Assessment Law (CCAL), 53 Pa. C.S. §8844(e)(1). Id. at 16a. The notice advised 

that the decision may be appealed to the trial court within 30 days. Id. 

On August 15, 2022, Taxpayer filed a timely appeal with the trial court, 

in which she asserted that she “was unable to attend the scheduled hearing.” R.R. at 

3a. In response, the Board filed a Preliminary Objection (PO) in the nature of 

demurrer, which it amended, on the basis that Taxpayer had abandoned her right of 

appeal by failing to attend the hearing. The Board attached to its PO the hearing 

notices and decision notice. The hearing notices, dated June 8, 2022, advised that 

the hearing was scheduled for July 14, 2022. The Board also filed a brief in support. 

The Board asserted that Taxpayer’s failure to appear at the Board hearing constituted 

an abandonment of her appeal from the Clean and Green revocation warranting 

dismissal of her trial court appeal. 

1 Act of December 19, 1974, P.L. 973, as amended, 72 P.S. §§5490.1-5490.13. 
3

On September 22, 2022, the trial court issued an order directing 

Taxpayer to answer the PO and file a brief in support. On October 4, 2022, Taxpayer 

filed an Answer and New Matter and brief in support. In the Answer, Taxpayer 

admitted all averments in the PO. She asserted that her failure to appear for the 

Board hearing only had the effect of preventing her from proceeding further with an 

appeal to the Board and did not prevent her from filing an appeal with the trial court. 

Answer and New Matter, ¶¶17-18. In the New Matter and brief in support, she 

alleged that she never received a copy of the Board’s hearing scheduling notices. 

Id., ¶30; see R.R. at 36a, 38a-39a. By order dated October 6, 2022, the trial court 

sustained the Board’s demurrer.2 Taxpayer now appeals to this Court.3 

In response to Taxpayer’s Concise Statement of Errors Complained of 

on Appeal, the trial court issued a Pa.R.A.P. 1925(a) Opinion in support of its order. 

Therein, the trial court found that the Board mailed hearing notices on June 8, 2022, 

to Taxpayer at two addresses on file in accordance with the CCAL and the “Rules 

and Regulations Governing Real Estate Assessment and Appeals Before the Board 

of Assessment Appeals in and for Cumberland County, Pennsylvania” (Local 

Rules). Specifically, Local Rule 5.02 provides that “[t]he Board shall serve the 

appellant or appellants and all other interested parties with at least twenty (20) days 

written notice of each appeal hearing,” and that written notice “will be mailed to the 

2 Notwithstanding, on October 25, 2022, the Board filed a PO to Taxpayer’s New Matter

and brief in support, asserting the Answer and New Matter failed to conform to law or rule of court 

pursuant to Pa.R.Civ.P. 1028(a)(2) for failure to assert any affirmative defenses. See Original 

Record, at 62. 

3 Our review of a trial court’s order sustaining POs and dismissing an appeal is limited to 

determining whether the trial court committed an error of law or an abuse of discretion. Dixon v. 

Cameron County School District, 802 A.2d 696, 699 n.3 (Pa. Cmwlth. 2002). A PO in the nature 

of a demurrer presents a question of law; thus, our standard of review is de novo, and our scope of 

review is plenary. Martel v. Allegheny County, 216 A.3d 1165, 1171 n.11 (Pa. Cmwlth. 2019).
4

address of record . . . .” Trial Court 1925(a) Opinion, 12/30/22, at 10-11. The trial 

court noted that Taxpayer originally stated she was unable to attend the hearing. Id. 

at 10. The Board sent the hearing notices to the same address where Taxpayer 

previously received notice of the roll-back taxes. Id. Although Taxpayer later 

asserted that she never received a hearing notice, the trial court rejected her argument 

that she did not receive notice of the hearing as “without merit.” Id. The trial court 

found that Taxpayer waived her right to challenge the Board’s PO as improper,

having failed to raise an objection to the procedure in her reply and any defect in the 

proceedings did not affect her rights. Id. at 16.

Ultimately, the trial court concluded that Taxpayer received notice of 

the Board hearing based on the mailbox rule. Having failed to attend the Board’s 

hearing, Taxpayer abandoned her assessment appeal before the Board. The trial 

court further concluded that Taxpayer had the right to appeal the Board’s 

determination, which she fully exercised. Therefore, her right to an appeal was not 

violated. 

In her appeal, Taxpayer argues that the trial court erred, abused its 

discretion, and/or violated her constitutional rights by sustaining the Board’s 

demurrer and dismissing her appeal based on the application of the mailbox rule. 

Although Taxpayer did not attend the Board hearing, she challenged whether the 

notices were mailed and denied receipt of the same. Taxpayer pointed out that the 

notices themselves contained no statement indicating that they were mailed, and the 

Board offered no other evidence in support of mailing. She contends that the trial 

court compounded this error when it found that she had no valid right of appeal to 

the trial court from the Board’s decision when Sections 8844(e) and 8854(a)(1) of 

the CCAL, 53 Pa. C.S. §§8844(e) and 8854(a)(1), and article V, section 9 of the 
5

Pennsylvania Constitution, Pa. Const. art. V, §9, specifically grant the right of 

appeal. 

To begin, Pennsylvania Rule of Civil Procedure 1028(a)(4) provides 

that POs may be filed in the nature of a demurrer for legal insufficiency. Pa.R.Civ.P. 

1028(a)(4). In ruling on POs, the courts are “required to accept as true the well-pled 

averments set forth in the . . . complaint, and all inferences reasonably deducible 

therefrom.” Pennsylvania State Lodge, Fraternal Order of Police v. Department of 

Conservation and Natural Resources, 909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 

924 A.2d 1203 (Pa. 2007). However, the courts are not required to “accept as true 

conclusions of law, unwarranted inferences from facts, argumentative allegations, 

or expressions of opinion.” Id. To sustain POs, “it must appear with certainty that 

the law will not permit recovery, and, where any doubt exists as to whether the [POs] 

should be sustained, the doubt must be resolved in favor of overruling the [POs].”

Id. Where upholding a determination sustaining POsresults in dismissal of the cause 

of action, we may do so only in cases that are clear and free from doubt. Bower v. 

Bower, 611 A.2d 181, 182 (Pa. 1992).

The Clean and Green Act fosters conservation by providing lower tax 

rates to land devoted to farming and forestry. Feick v. Berks County Board of 

Assessment Appeals, 720 A.2d 504, 505 (Pa. Cmwlth. 1998). Land comprised of 10 

or more contiguous acres reserved for farming or forestry is eligible for preferential 

tax treatment. Section 3(a)(3) of the Clean and Green Act, 72 P.S. §5490.3(a)(3). 

Under Section 6 of the Clean and Green Act, the division and 

conveyance of a portion of land subject to preferential assessment exposes the entire 

tract to roll-back taxes. 72 P.S. §5490.6. Under Section 9(a) of the Clean and Green 

Act, “[t]he owner of a property which is subject to preferential assessment or for 
6

which preferential assessment is sought . . . shall have the right of appeal in 

accordance with existing law.” 72 P.S. §5490.9(a). 

In accordance with Section 8844(a) of the CCAL, the county 

assessment office “shall mail to each record property owner” at the last known 

address notice stating the mailing date, property location, parcel identifier, effective 

date, established predetermined ratio, base-year value, old assessment, and new 

assessment. 53 Pa. C.S. §8844(a). “The notice shall be mailed within five days from 

the date the county assessment office makes the change or addition to its official 

records.” 53 Pa. C.S. §8844(b). “The notice shall state that any persons aggrieved 

by the assessment and the affected taxing districts may file an appeal to the board 

within 40 days of the date of the notice.” Id. 

“Any person aggrieved by any assessment . . . may appeal to the board 

for relief.” 53 Pa. C.S. §8844(c)(1). When an appeal is filed,

the board shall notify the appellant, property owner and 

each affected taxing district of the time and place of the 

hearing. Each party attending the hearing shall have the 

right to examine any witness. The notice shall be mailed 

to the appellant at the address designated in the appeal. 

Notices required by this section shall be mailed no later 

than 20 days preceding the appeal. Any appellant who 

fails to appear for the hearing at the time fixed shall be 

conclusively presumed to have abandoned the appeal 

unless the hearing date is rescheduled by the mutual 

consent of the appellant and the board.

53 Pa. C.S. §8844(e)(1) (emphasis added). An appellant shall have the right to 

appeal the Board’s decision to the trial court. 53 Pa. C.S. §8854(a)(1).

“Under the mailbox rule, proof of mailing raises a rebuttable 

presumption that the mailed item was received.” Department of Transportation, 

Bureau of Driver Licensing v. Grasse, 606 A.2d 544, 545 (Pa. Cmwlth. 1991). For
7

the mailbox rule to apply, “there must be some evidence . . . that the notice was 

mailed . . . .” Douglas v. Unemployment Compensation Review Board, 151 A.3d 

1188, 1192 (Pa. Cmwlth. 2016). “[U]ntil there is proof that a letter was mailed, there 

can be no presumption that it was received.” Id. (citation and quotation omitted).

The presumption under the mailbox rule, once established, may be 

rebutted. Grasse, 606 A.2d at 545. However, “the presumption . . . is not nullified 

solely by testimony denying receipt of the item mailed.” Id. 

To illustrate application of the mailbox rule, we briefly examine four 

cases. In Douglas, this Court determined substantial evidence produced at the 

hearing did not support application of the mailbox rule. 151 A.3d at 1193. The 

claimant contended that the notice was not mailed and that she did not receive the 

notice. The only evidence offered was the notice itself, which bore a “mailed date.” 

Id. We noted that “[t]he ‘mailed date’ was part of the information included in the 

notice itself at the time the notice was prepared. There [was] no subsequent notation 

in the file indicating that the notice was, in fact, mailed.” Id. Thus, we concluded 

that, “[w]ithout proof of mailing or the presumption of regularity to establish that 

the notice was mailed, the presumption of receipt—i.e., the mailbox rule—cannot be 

applied.” Id. Thus, we vacated the order and remanded for further proceedings. Id.

Similarly, in Commonwealth v. Thomas, 814 A.2d 754, 760 (Pa. Super. 

2002),4the Superior Court rejected application of the mailbox rule based on the 

evidence presented. The Superior Court concluded that the Commonwealth failed 

to meet the evidentiary threshold necessary for application of the mailbox rule’s 

presumption of receipt. Id. at 759. The Superior Court explained that the 

4

In general, Superior Court decisions are not binding on this Court, but they offer 

persuasive precedent where they address analogous issues. Lerch v. Unemployment Compensation 

Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018). 
8

“Commonwealth, as the party which sought to invoke the mailbox rule presumption 

. . . had the burden of proof to show that the notice was in fact mailed or that it had 

been prepared and placed in the regular place of mailing.” Id. at 760. The Court 

noted that the Commonwealth presented only “circumstantial evidence” suggesting 

that the notice had been mailed, but it did not establish proof of the same. Id. The 

Commonwealth’s evidence consisted of an employee’s testimony regarding the 

general practice for the preparation and mailing of summary appeal hearing notices 

but did not offer any testimony regarding mailing the specific hearing notice at issue. 

Id. at 759. The employee acknowledged “that there was no official record kept of 

any of the notices . . . prepared and given to the tipstaff for delivery to the mailroom 

on” the day the notice was allegedly prepared. Id. There was no evidence, such as 

postal records or logs, that “showed that this notice was in fact mailed . . . or that 

this notice had been prepared and taken to the regular place of mailing.” Id. at 760. 

Although the notice itself was dated, there were no markings indicating that the 

original had been mailed. Id. at 756. The Superior Court held that “[m]erely 

producing an un-timestamped copy of a hearing notice . . . and offering generic 

testimony as to the standard mailing procedures for summary appeal hearing notices 

. . . was insufficient.” Id. at 760. Upon determining that the mailbox rule’s 

presumption of receipt was not triggered, the Superior Court reversed and remanded 

the matter for a de novo trial. Id. at 761-62.

Conversely, in Grasse, the evidence that was presented warranted the 

application of the mailbox rule. 606 A.2d at 546. “The trial court admitted into 

evidence [the licensee’s] certified driving record which included a document 

showing [when] the notice of the special driver’s examination was mailed to [the 

licensee]” and “a document showing [when the] official notice of suspension was 
9

mailed.” Id. This Court determined that these documents supported the presumption 

of receipt under the mailbox rule. Id. Although the licensee denied receipt of the 

notices, he offered no evidence in support. Id. 

Similarly, in Breza v. Don Farr Moving & Storage Co., 828 A.2d 1131, 

1136 (Pa. Super. 2003), the Superior Court affirmed a judgment entered against an 

appellant in absentia after the trial court determined that the mailbox rule 

presumption applied. The trial court relied on a local rule specifying that first-class 

mailing of a copy of the complaint operated as service and proof of service as 

required. Id. at 1134-35. The docket entries established the date that the complaint 

was mailed. Id. at 1135. There were no docket entries indicating that the complaint 

had been returned. Id. Such proof supported a determination that the rebuttable 

presumption that the item mailed was received. Id. The appellant’s mere assertion 

of non-receipt, without corroboration, was insufficient to overcome the presumption. 

Id.

Here, the trial court did not conduct any form of evidentiary hearing or 

factfinding proceeding. Rather, the trial court dismissed Taxpayer’s appeal on a PO 

upon determining that the mailbox rule applied even though Taxpayer disputed that 

the notices were mailed and that she received them. The only evidence offered in 

support of mailing was a copy of the scheduling notices attached to the PO. 

Although the notices are dated June 8, 2022, they bear no indication that they were 

mailed. See R.R. at 13a-14a. The Board did not offer docket entries or testimony 

supporting that the notices were placed in the regular place of mailing. See Douglas, 

151 A.3d at 1193 (holding that the “mailed date” on the notice, in and of itself, 

without more was insufficient to establish proof of mailing in the face of a 

challenge). Even assuming that the hearing notices themselves could constitute 
10

proof of mailing under local rule, see Breza, the trial court did not afford Taxpayer 

an opportunity to rebut the presumption of receipt. Although Taxpayer initially 

stated she was unable to attend the hearing, she pled in her New Matter and asserted 

in her brief that she never received the hearing notice. The trial court simply rejected 

Taxpayer’s argument and granted the PO without affording Taxpayer the 

opportunity to adduce evidence to corroborate her allegation of non-receipt. In so 

doing, the trial court erred and abused its discretion. 

Accordingly, we vacate the trial court’s order sustaining the Board’s 

PO and remand the matter to the trial court for a hearing on the mailbox rule.5 

MICHAEL H. WOJCIK, Judge

5 The trial court may proceed on the underlying merits of the roll-back assessment if the 

mailbox rule is either not established or if it is successfully rebutted. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wanda K. Mixell and Property :

Owner, :

:

Appellant :

:

 v. : No. 1243 C.D. 2022

: 

Cumberland County Board of :

Assessment Appeals :

O R D E R

AND NOW, this 20th day of March, 2024, the order of the Cumberland 

County Court of Common Pleas (trial court), dated October 6, 2022, is VACATED, 

and this matter is REMANDED to the trial court for further proceedings in 

accordance with the foregoing memorandum opinion. 

Jurisdiction is relinquished. 

__________________________________

MICHAEL H. WOJCIK, Judge