K. Dutton v. Tax Review Board ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kelly Dutton, :
: No. 108 C.D. 2016
Appellant : No. 109 C.D. 2016
: No. 110 C.D. 2016
v. : Submitted: November 10, 2016
:
Tax Review Board :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 2, 2017
Kelly Dutton (Landowner) appeals pro se the orders of the
Philadelphia County Court of Common Pleas (trial court) affirming the decisions
of the City of Philadelphia’s (City) Tax Review Board (Board), which abated half
of the interest and all of the penalties imposed on the overdue real estate taxes
owed on Landowner’s properties located at 5601 Warrington Avenue, 48 North
51st Street, and 5518 Market Street in the City (collectively, Properties). We
affirm.
On April 8, 2014, Landowner filed with the Board an appeal of the
overdue taxes, including interest and penalties, owed on the Properties for the
years 2003 through 2012.1 Following hearing before a Master, on August 1, 2014,
1
Section 19-1705(2) of the Philadelphia Code states:
(Footnote continued on next page…)
the Board issued decisions abating the penalties imposed for the years 2008
through 2012. Landowner requested a rehearing and, following a hearing before
the full Board, on October 7, 2014, the Board issued decisions abating the penalties
and half of the interest imposed for the years 2008 through 2012. Landowner
appealed the Board’s decisions to the trial court and, following oral argument, the
trial court affirmed.2
The sole claim raised by Landowner in these consolidated appeals3 is
that the Board erred in failing to consider appraisals and pictures of the Properties
in issuing its decisions. However, our review of the transcript of the Board hearing
reveals that Landowner never sought to introduce this evidence to the Board. See
N.T. 10/7/144 at 2-19. As a result, it cannot be said that the Board erred in failing
to consider evidence that was never offered for its consideration.5
(continued…)
(2) Upon the filing of any petition for the waiver of interest and
penalties accruing upon any unpaid money or claim collectible by
the Department of Revenue, for or on behalf of the City or the
School District of Philadelphia, the [Board] may abate in whole or
in part interest or penalties, or both, where in the opinion of the
Board the petitioner acted in good faith, without negligence and no
intent to defraud.
2
Where the trial court takes no additional evidence, our review is limited to determining
whether constitutional rights were violated, whether an error of law was committed and whether
the Board’s findings of fact are supported by substantial evidence. City of Philadelphia v. Tax
Review Board, 901 A.2d 1113, 1116 n.3 (Pa. Cmwlth. 2006).
3
To the extent that Landowner raises an additional issue in the Statement of Questions
Involved portion of his appellate brief, it has been waived for purposes of appeal because it is not
addressed or developed in the Argument portion of that brief. Pa. R.A.P. 2119; Harvilla v.
Delcamp, 555 A.2d 763, 764 n.1 (Pa. 1989).
4
“N.T. 10/7/14” refers to the transcript of the Board’s October 7, 2014 hearing.
(Footnote continued on next page…)
2
(continued…)
5
Landowner does not argue that the trial court erred or abused its discretion in failing to
consider the matter de novo or in failing to remand the matter to the Board for the admission and
consideration of this evidence. Nevertheless, we discern no trial court error in this regard.
Section 754 of the Local Agency Law states, in relevant part:
(a) Incomplete record.—In the event a full and complete record
of the proceedings before the local agency was not made, the court
may hear the appeal de novo, or may remand the proceedings to
the agency for the purpose of making a full and complete record or
for further disposition in accordance with the order of the court.
(b) Complete record.—In the event a full and complete record of
the proceedings before the local agency was made, the court shall
hear the appeal without a jury on the record certified by the
agency.
2 Pa. C.S. §754.
As this Court has explained:
A trial court is not obligated to conduct a de novo hearing
unless a full and complete record of the proceedings was not made
before the local agency. This Court has defined a ‘full and
complete record’ as ‘a complete and accurate record of the
testimony taken so that the appellant is given a base upon which he
may appeal and, also, that the appellate court is given a sufficient
record upon which to rule on the questions presented.’ Only if the
trial court determines that the record before the agency is
incomplete, does it have discretion to hear the appeal de novo or
remand to the local agency.
Situations in which a record has been deemed incomplete
include such instances where the record fails to contain a transcript
of the proceedings before the local agency, or where a party
refuses to provide relevant and necessary documentation to the
local agency. However, ‘[t]he record before the local agency is not
considered incomplete based solely on [a party’s] failure to present
evidence available at the hearing.’ Indeed, we [have] stated that
(Footnote continued on next page…)
3
Accordingly, the trial court’s orders are affirmed.
MICHAEL H. WOJCIK, Judge
(continued…)
‘[t]he trial court has no authority under section 754(b) of the Local
Agency Law to remand a matter to the local agency to give the
appellant another opportunity to prove what he or she should have
proved in the first place.’
Kuziak v. Borough of Danville, 125 A.3d 470, 475-76 (Pa. Cmwlth. 2015) (citations and footnote
omitted). The determination of whether a local agency’s record is adequate is a matter
committed to the discretion of the court of common pleas. Id. at 475 n.3. Because Landowner
never sought to introduce the appraisals or pictures at the Board hearing, the trial court did not
abuse its discretion in refusing to consider this evidence on appeal or in failing to remand the
matter to the Board to permit its admission. Id.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kelly Dutton, :
: No. 108 C.D. 2016
Appellant : No. 109 C.D. 2016
: No. 110 C.D. 2016
v. :
:
Tax Review Board :
ORDER
AND NOW, this 2nd day of March, 2017, the orders of the
Philadelphia County Court of Common Pleas dated October 6, 2015, at Nos. 00735
November Term, 2014, 00741 November Term, 2014, and 00748 November Term,
2014, are AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge