Monroe County Bd. of Assessment Appeals v. Miller

• Decision Date: 01 March 1990
• Citation: 570 A.2d 1386,131 Pa.Cmwlth. 538
• Parties: MONROE COUNTY BOARD OF ASSESSMENT APPEALS, Appellant, v. Joan Marie MILLER, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1386

570 A.2d 1386

131 Pa.Cmwlth. 538

MONROE COUNTY BOARD OF ASSESSMENT APPEALS, Appellant, v. Joan Marie MILLER, Appellee.

Commonwealth Court of Pennsylvania.

Argued Dec. 15, 1989.

Decided March 1, 1990.

Mark S. Love, Miller & Love, Mount Pocono, for appellant.

Edmund G. Flynn, Bensinger, Flynn & Weekes, P.A., Stroudsburg, for appellee.

Before DOYLE and PALLADINO, JJ., and BARBIERI, Senior Judge.

DOYLE, Judge.

Before us for consideration is the appeal of the Monroe County Board of Assessment Appeals (Board) from an order of the Court of Common Pleas of Monroe County which sustained the assessment appeal of Joan Miller. The genesis of this case was a county-wide reassessment effective with the 1989 tax year. Miller owns four lots situate in the Borough of Mount Pocono which were reassessed as a result thereof. She appealed the valuation of her lots to the Board, and claimed that their worth was substantially diminished by benzene contamination. Although the Board reduced the assessment on three of the four lots by either thirty-five or fifty percent, Miller filed an appeal in the common pleas court. Following a hearing, the court sustained Miller's appeal as it related to three of the four lots, determining that those three lots were valueless and worth one dollar each due to contamination. With regard to Miller's fourth parcel, however, (tax code No. 10/5/1/14) the court found that Miller's expert had failed to express an opinion as to its fair market value, and, since the ground water beneath that lot was not contaminated, held that Miller had not met her burden of proof and affirmed the Board's determination of its fair market value. However, the Court went further, and sua sponte directed the Board to reduce the assessments of Miller's property in accordance with the court's application of the State Tax Equalization Board (STEB) common level ratio (CLR) of ten and four-tenths percent rather than Monroe County's twenty-five percent existing predetermined ratio (EPR). The Board's appeal to this Court followed.

Before this Court, the Board raises three issues. First, it contends that Miller's appeal to the common pleas court was untimely and that the court therefore lacked subject matter jurisdiction to hear the appeal. Second, it argues that the common pleas court improperly applied the STEB CLR rather than the County EPR. Third, it maintains that the common pleas court's valuation of Miller's three lots was not supported by substantial evidence.

With regard to the timeliness issue, Section 5571(b) of the Judicial Code, 42 Pa.C.S. § 5571(b), provides that an appeal from a decision of a tax assessment board must be filed within thirty days after the entry of the Board's order. If the order is served by mail, Section 5572 of the Judicial Code, 42 Pa.C.S. § 5572, provides that the date of mailing is deemed to be the date of entry of the order. In the instant case, it is undisputed that Miller was notified of the Board's decision by computer generated notices dated December 17, 1986. Each notice, however, stated that Miller had "the right to appeal this decision to Court.... within 60 days of the date hereof," (emphasis added) and each was sent over the name of Barry C. Seegar, Secretary to the Board. At the hearing, counsel for the Board made the following statement to the court:

A petition for appeal was prepared and was clocked in at the Prothonotary's Office on December 16, '88, which is within the 60-day period as set forth in the notice and was subsequently presented to the court.

I simply bring to the court's attention that the governing statute provides for a 30-day appeal period. The notification from the Board of Assessment Appeals was, therefore, erroneous. I will stipulate for the record that the taxpayer relied on the erroneous notification from the Board of Assessment Appeals.

I am not making any motion to dismiss the appeal on this basis because it is the county's position that because our notice was defective, that the taxpayer should not be charged with that error in filing date.

That's as a matter of fundamental fairness; however, I wanted to bring it to the court's attention just in case the court felt it was a jurisdictional matter that could not be waived by a party. If it can be waived we waive it. If it can't be waived, the property owner knows that they can appeal this thing next year. I just wanted to bring that to the court's attention.

By the way, we have corrected the notices. They now read 30 days. The prior statute did have 60.

(N.T. 2/2/89 at 4-5).

It is well-settled that the timeliness of an appeal is a jurisdictional question which cannot be waived, and it may be raised at any stage of the proceedings by any party or by the court sua sponte. Wilson Townhouses v. Berks County Board of Assessment Appeals, 112 Pa.Commonwealth Ct. 498, 535 A.2d 1226 (1988). Thus, it is properly raised here by the Board. However, an appeal nunc pro tunc may be granted where a litigant is unintentionally misled by officials as to the proper procedure to be followed. Tarlo v. University of Pittsburgh, 66 Pa.Commonwealth Ct. 149, 443 A.2d 879 (1982).

In Tarlo, counsel relied on the written statement of the Director of the Pittsburgh Human Relations Commission--official but erroneous--that an appeal was to be filed within thirty days of the receipt of the Commission's letter dismissing Tarlo's complaint, and filed an appeal to the common pleas court accordingly. The University, relying on Sections 5571(b) and 5572 of the Judicial Code, filed a motion to quash the appeal as untimely. The lower court granted the motion and Tarlo appealed. This Court reversed, and held that "even though the misleading information here was unintentional, we should not adopt a view which would permit the errors of public officials, having an effect equivalent to fraud on their part, to free an agency from review." Tarlo, 66 Pa.Commonwealth Ct. at 152, 443 A.2d at 880-881.

We believe that this rationale applies with equal force in the case at bar where it is clear that Miller relied on the erroneous statement contained on the Board's notice of decision and timely filed her appeal within that period. As such, the common pleas court did not abuse its discretion by hearing Miller's appeal.

The Board next argues that the common pleas court's sua sponte application of the STEB CLR rather than the County's EPR to Miller's assessments was improper because, inter alia, Miller waived the issue of the applicable ratio when she admittedly failed to raise it before the Board and before the court. Miller's waiver of the ratio issue was recognized by the court in its opinion but, based upon its reading of the applicable statute and the case law, the court determined that it had an affirmative statutory duty to apply the STEB CLR. ¹

The applicable statute is the Fourth to Eighth Class County Assessment Law (Law), Act of May 21, 1943, P.L. 571, as amended, 72 P.S. §§ 5453.101-5453.706. Section 704 of the Law, 72 P.S. § 5453.704, provides in pertinent part:

(b) In any appeal of an assessment the court shall make the following determinations:

(1) The market value as of the date such appeal was filed before the board of assessment appeals. In the event subsequent years have been made a part of the appeal, the court shall determine the respective market value for each such year.

(2) The common level ratio which was applicable in the original appeal to the board. In the event subsequent years have been made part of the appeal, the court shall determine the respective common level ratio for each such year published by the State Tax Equalization Board on or before July 1 of the year prior to the tax year being appealed.

(c) The court, after determining the market value of the property pursuant to subsection (b)(1), shall then apply the established predetermined ratio to such value unless the corresponding common level ratio determined pursuant to subsection (b)(2) varies by more than fifteen per centum (15%) from the established predetermined ratio, in which case the court shall apply the respective common level ratio to the corresponding market value of the property.

(d) Nothing herein shall prevent any appellant from appealing any base year valuation without reference to ratio. (Emphasis added.)

In Butler Area School District Appeal, 100 Pa.Commonwealth Ct. 452, 515 A.2d 326 (1986), petition for allowance of appeal denied, 516 Pa. 643, 645, 533 A.2d 714, 715 (1987), this Court held that when a taxpayer...