IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richland Properties, Inc., :

Appellant :

:

v. : No. 854 C.D. 2017 : Argued: May 8, 2018 North Allegheny School District, : McCandless Township, and : The County of Allegheny :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: July 1 7 , 2018

Richland Properties, Inc. (Richland) appeals from the Court of

Common Pleas of Allegheny County’s (trial court) order denying Richland’s right

to file

, nunc pro tunc
, a p roperty t ax a ssessmen t a ppeal for the 2016 tax year

challenging the assessment for a property it purchased under the mistaken belief

that it was t ax exempt. For the following reasons, we affirm.

On October 11, 2016, Richland closed on the purchase of a property

located at 9700 McKnig ht Road, Wexford, P ennsylvania, 15090, and designated as

Block and Lot No. 945

- E

- 21 (hereinafter, Property )

, for $5 50,000. Richland2

purchased the Property at a public auction from Rave Pittsburgh North, L.L.C.

(Seller) who operated movie theaters on the Property.

The Property that Richland purchased was p art of a lot that Seller had

divided into two parcels. Approx imately a year earlier on September 28, 2015

,
Seller sold one of the parcel s to the Port Authority of Allegheny County (Port

Authority) for use as a park and ride lot

. Because the Port Authority is exempt

from real estate taxes

, the Office of Property Ass essment of Allegheny County

assessed the Port Authority’s parcel as tax exempt for the 2016 tax year

.

However, apparently because it was part of the original lot

, the

Property was also classified as “exempt from realty tax” t o be paid based on its

$ 4,000 ,000 assessed value. (Reproduced Record (R.R.) at 24a.) The County of

Allegh eny ( County ) then informed Seller that the entire parcel was exempt from

property tax and that Seller was entitled to a refund for the taxes already paid. On

A ugust 9, 2016 , Sel ler received a $ 16,353.63 refund check f rom the County.

When Richland attempted to close on the Property, t he title c ompany required that $25,000 be held in escrow until it could procure :

P roof that the Allegheny County [A] ssessment Office has corrected the property assessment to show that the property owned by Seller and known as Block 945

- E Lot 21 as a [sic] taxable and that the 2016 County Tax for the property has been paid in full.3

(R.R. at 29a.) Nothing in the record indicates whether the Propert y ’s classification

was changed from exempt to taxable or if the taxes had been paid in full. On

October 11, 2016, Richland closed on the Property and a special warranty deed

was recorded.

On December 5, 2016, Richland filed a Request for a Late Filed

Ap peal for the Property with the Board of Property Assessment, Appeals and

Review of Allegheny County (Board) s eeking to challenge the status of the

Property as subject to real estate taxes. It claimed that the taxing bodies only

became aware that the Prope rty had err oneously been classified as exempt when

Richland filed its request to “late file” its appeal. The Board denied the request

because it could not “identify an administrative breakdown that justified a nunc

pro tunc appeal in this matter.” (R.R. at 34a.) I n its denial letter , the Board

acknowledged that the Office of Property Assessment of Allegheny County

erroneously classified the Property as “exempt

, ” but the error occurred well after

the March 31, 2016 deadline for appeal of the 2016 tax year

. 1 T he Board noted

1 We surmise that the Board was attempting to s tate that the Property was changed from taxable to exempt sometime after March 31, 2016

, but there is nothing in the record as to precisely when this change occurred

. We admit we are nonplussed because

, pursuant to the common law tax assessment day rule, a property ’s t axability is determined on January 1 of each year, and if property is taxable on the date of assessment, then tax es must be paid for the entire year, even if the property becomes tax exempt during that year. Appeal of Title Services, Inc

., 252 A.2d 585, 5 87 (Pa. 1969). Likewise , if property is exempt for day one of the assessment, it remains exempt the entire year. Id

.

Notwithstanding the tax assessment day rule, it appears that the Board changed the Property’s classification from taxable to exempt some time during the 2016 tax year. However,
where the Board makes a mathematical or clerical error, it may change the assessment or move a property from exempt to taxable and vice versa. See Callas v. Armstrong County Board of
Assessment , 453 A.2d 25 (Pa. Cm wlth. 1982). In this c ase, it is undisputed that the P roperty was (Footnote continued on next page...)4

that to the exten t Richland relied upon the incorrec t classification, th at reliance was

not reasonable given the patent commercial nature of the subject property.

Richland appealed to the trial court. In Paragraph 12 of that appeal, it

contended that “[t] he current assessment of $4,000, 000 is vastly in excess of the

market value of said property and would have been changed if a timely appeal had

been filed.” (R.R. at 11a.) Following oral argument, the trial court den ied

Richland’s r equest for a nunc pro tunc assessment appeal for the 2016 tax year for

the same reason the Board denied the request . This appeal followed. 2

Addressing the issue on the record before us, Richland contends that

the County’s negligence in misclassifying th e Property as exempt amounts to

fraud , which would constitute an award of nunc pro tunc relief so that Richland

(continued...)

misclassified as “exempt” due to a clerical error. To correct its clerical error, the Board would have to issue a new corrected assessment from which the taxpayer could appeal. At oral

ar gument, the Board stated that sometime i n 2016

, the P roperty was changed from exempt back
to taxable

, but the Board apparently never notified Richland or anyone else of this change. It also stated that it managed to issue a stop payment for the $16,353.63 refund check from the County

, and the matter could be settled because the County’s taxes had been paid. Based on that representation

, we issued an order that gave the parties until June 8, 2018

, to resolve the matter. On June 12, 2018, we received a joi nt status report, notifying the Court that the parties were unable to reach an agreement.

2 Our scope of review is limited to determin ing wheth er the trial court committed an error
of law or abused its discretion. Kaminsky v. Montgomery County Board of A ssessment , 657 A.2d 1028 (Pa. Cmwlth. 1995).5

may file its appeal well past the March 31, 2016 deadline

. 3 It is true that for appeal

purposes, negligence on the part of administrative offic ials may be deemed to be

the equivalent of fraud. Hanoverian, Inc. v. Lehigh County Board of Assessment

, 701 A.2d 288, 289 (Pa. Cmwlth. 1997) . However, that negligence must have been

the reason for the delay in filing the appeal in a timely manner. See Branch v.

Workmen’s Compensation Appeal Board , 393 A.2d 55 (Pa. Cmw l th. 1978)

(holding that while the administrative negligence prevented a claimant from

receiving notice of the hearings, it did not prevent her from learning of the

referee’s decisions agai nst her and maki ng a timely appeal therefrom). In

situations where the courts have granted nunc pro tunc relief based upon

administrative negligence that has deprived a party of the right to file an appeal,

the circumstances have been such that the would

- be appellant reasonably relied on

the government’s error. See Union Electric Corporation v. Board of Property

Assessment, Appeals & Review of Allegheny County , 746 A.2d 581 (Pa. 2000).

In this case, because Seller owned the Property at all times durin g the

appeal period, Rich l and’s claim for nunc pro tunc relief to file its appeal is

dependent on whether Seller was in any way misled from filing an appeal by the

March 31, 2016 deadline. Based upon the record, such as it is, Seller could not

have relied o n the misclassification as exempt, or , for that matter

, the $4,000,000

3 T he Allegheny County Ad ministrative Code § 5

- 210.09(C) sets the deadline for an interested party to timely file a property as sessment appeal with the Board a s Mar ch 31st of the year at issue. “ When a statute fixes the time within which an appeal may be taken, a court may not extend that time period or allow an appeal nunc pro tunc absent a showing that extraordinary circumstances involving fraud or its equivalent, duress, or coercion caused the delay in filin g an appeal

. ” Hanoverian, Inc

. v. Lehigh County Board of Assessment , 701 A.2d 288, 289 (Pa. Cmwlth. 1997) (citations omitted) (emphasis in original).6

assessment as the reason for not filing an appeal because Seller pa id the tax based

on the $4,000, 000 assessment

. Seller only became aware that the Property was

listed as exempt when t he County refunded the taxes it already paid. Therefore, it

is not feasible that Seller could have reasonably relied upon the misclassification

when it failed to appeal prior to the March 31, 2016 deadline.

Because Seller did not rely upon the County’s misclassificatio n of the

Property as tax exempt in failing to take a timely appeal, there is no basis to grant

Richland’s appeal nunc pro tunc

. Accordingly, for the foregoing reasons, we

affirm.

_________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richland Properties, Inc., :

Appellant :

:

v. : No. 854 C.D. 2017

: North Allegheny School District, : McCandless Township, and : The County of Allegheny :

O R D E R

AND NO W, this 1 7 th day of July , 2018, the Court of Common Pleas

of Allegheny County’s order dated March 24 , 2017, is affirmed.

_________________________________ DAN PELLEGRINI, Senior Judge