W.H. Croft v. Board of Property Assessment, Appeals and Review, Borough of Ben Avon Heights, Avonworth SD, Allegheny County

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William H. Croft, :
Appellant :
:
v. : No. 116 C.D. 2015
: Argued: November 17, 2015
Board of Property Assessment, Appeals :
and Review, Borough of Ben Avon :
Heights, Avonworth School District, :
Allegheny County :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: March 8, 2016
William H. Croft (Taxpayer) appeals the September 3, 2014 order of
the Court of Common Pleas of Allegheny County (Trial Court), which denied
Taxpayer’s appeal from the May 28, 2014 decision of the Board of Property
Assessment, Appeals and Review (Board) that determined Taxpayer was not
permitted to file a nunc pro tunc appeal from tax assessments made by the
Borough of Ben Avon Heights, Avonworth School District, and Allegheny County
(collectively the Taxing Authorities) pursuant to Second Class County Assessment
Law.2
The Board concluded that Taxpayer was prohibited from filing an
appeal nunc pro tunc because Taxpayer “failed to demonstrate the occurrence of an
1
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
2
Act of June 21, 1939, P.L. 626, as amended, 74 P.S. §§ 5452.1-5452.20.
administrative breakdown or fraud, or mental or physical infirmity, and the due
diligence required as a basis for granting a late-filed appeal.” (Board Decision,
Reproduced Record (R.R.) at 152a.) Taxpayer appealed to the Trial Court and a
hearing was held on August 21, 2014. (Hearing Transcript (H.T.), R.R. at 78a-
150a.) Following the hearing, the Trial Court affirmed the Board and Taxpayer
appealed the Trial Court’s order to this Court. We conclude that Taxpayer has
demonstrated that he was denied his right to timely appeal the tax assessments due
to repeated administrative breakdowns that constitute the extraordinary
circumstances a nunc pro tunc appeal was intended to remedy; therefore, we
reverse the order of the Trial Court and remand this matter to the Trial Court with
direction to remand to the Board to permit Taxpayer to proceed with a nunc pro
tunc appeal.3
Taxpayer and Helen T. Croft, now deceased, husband and wife,
received the Deed for a dwelling known as 11 Oxford Road, Pittsburgh, PA (the
Property) in Ben Avon Heights Borough, Allegheny County, from J. Scott
Teachout and Elizabeth Novak Teachout, husband and wife, on September 19,
1999, for and in consideration of the sum of $363,000. (Deed, R.R. at 14a.) The
3
A request to appeal nunc pro tunc is directed to the trial court’s equitable powers. Darden v.
Montgomery County Tax Claim Bureau, 629 A.2d 321, 323 (Pa. Cmwlth. 1993). This Court’s
standard of review of a denial of an appeal nunc pro tunc is whether the trial court abused its
discretion or committed an error of law. Starwood Airport Realty v. School District of
Philadelphia, 115 A.3d 410, 413 n.6 (Pa. Cmwlth. 2015). Our Supreme Court discussed the
proper basis for granting an appeal nunc pro tunc in Union Electric Corp. v. Board of Property
Assessment, Appeals and Review of Allegheny County, 746 A.2d 581 (Pa. 2000), stating that:
“[a]llowing an appeal nunc pro tunc is a recognized exception to the general rule prohibiting the
extension of an appeal deadline. This Court has emphasized that the principle emerges that an
appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right
has been lost due to certain extraordinary circumstances.” Id. at 584 (internal citations omitted);
see also Radhames v. Tax Review Board, 994 A.2d 1170, 1175 (Pa. Cmwlth. 2010); Hanoverian,
Inc. v. Lehigh County Board of Assessment, 701 A.2d 288, 289 (Pa. Cmwlth. 1997).
2
Deed and the Little Plan of Lots designates the Property as Block and Lot No. 214-
C-89 (No. 89) and Block and Lot No. 214-C-88 (No. 88). (Id.; Little Plan of Lots,
R.R. at 13a.) No. 89 is an L-shaped lot containing the bulk of Taxpayer’s house
and garage. (Real Estate Map, R.R. at 34a.) No. 88 is a rectangular lot that
includes part of the house and part of the garage, and begins at the front of the
house and extends to the back of the Property. (Id.) The Deed was recorded by the
Allegheny County Department of Records on September 30, 1999. (Deed, R.R. at
14a.) Following receipt of the Deed, Taxpayer did not examine the Deed, instead
merely filing it away in his personal papers. (H.T. at 17, 31, R.R. at 94a, 108a.)
When the Deed was processed in 1999, No. 89 was transferred to
Taxpayer and his wife by the Real Estate Department of Allegheny County, but
No. 88 was not transferred. (Emails between Amy Yanke, Mapping Supervisor for
Allegheny County, and Taxpayer, R.R. at 64a-65a.) Taxpayer paid taxes on No.
89 beginning with the purchase of the Property. (H.T. at 19, R.R. at 96a.)
Taxpayer did not pay taxes on No. 88. (No. 88 Jordan Tax Service Liens, R.R. at
17a; H.T. at 19, R.R. at 96a.) At the time of purchase, Taxpayer escrowed his
taxes with the bank providing his mortgage; currently the mortgage is held by and
the taxes are escrowed with Northwest Savings. (H.T. at 18, 44, R.R. at 95a,
121a.) Neither Taxpayer nor his bank received notice of taxes owed for No. 88 or
assessments for No. 88 from 1999 through 2013. (H.T. at 19, R.R. at 96a.)
From the time of purchase in tax year 1999 until 2013, No. 88
remained in the name of J. Scott Teachout and Elizabeth Novak Teachout, husband
and wife. (No. 88 Jordan Tax Service Liens, R.R. at 17a; H.T. at 23-27, R.R. at
100a-104a; Emails between Amy Yanke, Mapping Supervisor for Allegheny
County, and Taxpayer, R.R. at 64a-65a.) Notices were mailed to J. Scott Teachout
3
and Elizabeth Novak Teachout at 13 Oxford Road, Pittsburgh, PA 15202, a
nonexistent address. (Tax Receivable Inquiries, R.R. at 19a-21a; Oxford Road
Address List, R.R. at 22a; H.T. at 23-27, R.R. at 100a-104a.) While it is unclear in
the record why or how, in 2003 J. Scott Teachout and Elizabeth Novak Teachout
received a partial exoneration of the tax lien against No. 88 and at that time, their
address was listed as 4242 North Harlem Avenue, Noridge, Illinois. (H.T. at 25-
26, R.R. at 102a-103a.) In 2006, the Avonworth School District attempted to file a
judgment against J. Scott Teachout and Elizabeth Novak Teachout for unpaid taxes
on No. 88, however, the Sheriff was unable to perfect service and noted that there
was no such address as 13 Oxford Road, Pittsburgh, PA. (H.T. at 26-27, R.R. at
103a-104a.)
In 2005, Taxpayer applied for and received a building permit to
expand the utility shed located in the back of the Property. (Application for
Variance, 59a-52a, R.R. at 49a-52a; H.T. at 34-37, 111a-114a.) Although the
zoning process included a survey of the Property showing two separate lots, neither
the Zoning Board of Adjustment nor Taxpayer became aware that the shed was
constructed on two lots, and that No. 88 had multiple liens filed against it. (Id.) In
2012, Taxpayer received an assessment changing the value of No. 89 from
$360,000 to $450,900. (H.T. at 28, R.R. at 105a.) Taxpayer hired an attorney, Mr.
Biernicki, and filed a tax assessment appeal in 2012. (H.T. at 28, 48-55, R.R. at
125a-132a.) On September 18, 2013, Mr. Biernicki’s associate reached a
stipulation with the Board reducing the fair market value of No. 89 to $395,000.
(Tax Appeal Stipulation, R.R. at 25a; H.T. at 29-30, 39-42, 48-55, R.R. at 106a-
107a, 116a-120a, 125a-132a.) Taxpayer assumed the assessment and stipulation
applied to the full Property. (H.T. at 39-42, R.R. at 116a-120a.) Mr. Biernicki
4
testified before the Trial Court that he was unaware that there was another parcel,
that had he known he would have filed two assessment appeals, that his office
acted and signed on Taxpayer’s behalf beginning at the administrative level in
2012, and that he believed the Stipulation covered the whole Property. (H.T. at 48-
55, R.R. at 125a-132a.) Mr. Dellecker, Allegheny County’s attorney, testified that
he had no memory of the Stipulation and could not testify as to whether No. 88
was discussed. (H.T. at 61-64, R.R. at 138a-141a.) Mr. Dellecker also testified
that when a structure straddles two lots, as Taxpayer’s house straddles No. 88 and
No. 89, standard operating procedure is to assign the building value to a single lot
and treat the second lot as a continuous side or back lot. (H.T. at 64, R.R. at 141a.)
In May 2013, prior to the Stipulation, Taxpayer and his neighbor,
Alan Cuteri, who is a member of the Ben Avon Heights Council, were outside
talking and Mr. Cuteri asked Taxpayer if he was aware that the Property was
broken into two lots and that one of the lots had tax liens filed against it. (H.T. at
20, R.R. at 97a.) Taxpayer called Denise Raves, treasurer of the Ben Avon
Heights Council, and she said that she had information that there were two lots that
made up the Property and suggested that Taxpayer call the County Mapping
Department. (H.T. at 20, R.R. at 97a.) Taxpayer then spoke with Amy Yanke,
who is the Mapping Supervisor for Allegheny County in the Real Estate
Department; Ms. Yanke discovered that only No. 89 had been transferred to
Taxpayer when he purchased the Property, but that the Property also included No.
88, and suggested that Taxpayer have the lots combined into one parcel. (H.T. at
21-22, R.R. at 98a-99a.) However, in further investigating the matter, Ms. Yanke
informed Taxpayer in a June 20, 2013 email that:
5
I have received a copy of the state statute of the state assessment law
PA. 72 sub-section 5452.13 stating that when a correction has to be
made by law the correction can be made only 5 yrs back & including
the current year. In the scenario with your case in 1999 a deed was
recorded and both parcels were listed [No. 88] & [No. 89]. When the
deed was processed, erroneously only one parcel [No. 89] was
transferred, this error was discovered in May 2013 which at that point
our office corrected the error and transferred [No. 88] for tax years
2008 through 2013 which based on assessment law we followed
instead of processing the deed back from time of recording in 1999.
Based on the recorded deed you did purchase the full lot which
consists of parcels [No. 88] & [No. 89] which means you are
responsible for any taxes to be paid by law. Any further concerns
should be directed to liens department of Allegheny County [contact
info] & your municipal tax authority regarding any past due taxes.
These offices are the only authority that will be able to assist you with
any concerns regarding past due taxes.
(Emails between Amy Yanke, Mapping Supervisor for Allegheny County, and
Taxpayer, R.R. at 64a-65a; H.T. at 21-22, R.R. at 98a-99a.) Taxpayer was also
sent a letter, dated Friday June 14, 2013 and signed by Scott Waslelewski, Senior
Draftsman, stating that the lots could not be combined until all delinquent taxes
were paid, and advising Taxpayer to contact the Allegheny County Treasurer’s
Office. (Waslelewski No. 88 Letter, R.R. at 36a.) Taxpayer then called Mr.
Tobin, the attorney who has represented him throughout this matter, and Mr. Tobin
began his investigation on behalf of Taxpayer. (H.T. at 23, R.R. at 100a.)
Taxpayer, through Mr. Tobin, attempted to file a nunc pro tunc appeal of the
assessments for No. 88 with the Board on October 23, 2013, citing an
administrative breakdown. (Request for Late Appeal, R.R. at 15a.) Mr. Tobin
sought to present Taxpayer’s petition for relief before the Board on February 27,
2014 and because of scheduling issues, was granted a hearing on the petition for
relief on April 27, 2014. (Tobin, Montgomery, Vogel emails, R.R. at 75a-77a.)
6
The record does not make clear when corrections were made to the
Taxing Authorities’ records for No. 88. Taxpayer submitted printouts of the
Allegheny County Assessment website on July 18, 2013 that list the correct
mailing address for No. 88 as “11 Oxford Road,” the correct tax bill address as
Taxpayer’s bank, and provides that the assessed value for No. 88 was $39,600 in
2012 and $69,100 in 2013. (Allegheny County Assessment Website Printout, R.R.
at 22a, 31a.) The same source identifies the address for No. 88 itself as simply
“Oxford RD,” and states that the lot is vacant. (Id.) There is also a tax bill in the
record with the statement date July 19, 2013, addressed to Taxpayer and his
deceased wife at “11 Oxford Road,” which reflects liens in the name of the
Teachouts. (No. 88 Jordan Tax Service Liens, R.R. at 17a.) There are no
assessment notices or tax bills addressed to Taxpayer or his bank identifying a
balance owed by him to the taxing Authorities for No. 88.
On May 28, 2014, the Board denied Taxpayer’s request to file a late
appeal of the assessments from 1999-2013 for No. 88. Following appeal to the
Trial Court, the Trial Court conducted a hearing and issued an order but it did not
issue an opinion containing findings of fact. During the hearing, the Trial Court
specifically questioned each of the Taxing Authorities on whether they would
stipulate that an administrative breakdown had taken place and each agreed that an
administrative breakdown had taken place; following agreement, the Trial Court
stated for the record that all parties stipulated to the fact that an administrative
breakdown had taken place. (H.T. at 9-14, R.R. at 86a-91a.) Ultimately, however,
the Trial Court concluded that Taxpayer was charged with knowledge of the two
parcels when he received the Deed and that, even if he was not on notice, Taxpayer
had not acted with due diligence once he discovered the existence of No. 88.
7
Following appeal to this Court, the Trial Court did not write a 1925(a) opinion and
instead relied upon its order, which states, in relevant part:
1) the September 28, 1999, deed conveying the property at issue to
[Taxpayer] and his wife (now deceased) clearly identified two parcels,
Block and Lot No. 214-C-88 and Block and Lot No. 214-C-89;
2) assuming, arguendo, that [Taxpayer] was reasonably unaware of
his ownership of parcel Block and Lot No. 214-C-88 until May of
2013, he did not file his request with the [Board] to appeal his
assessment nunc pro tunc until April of 2014, thus demonstrating a
lack of due diligence; and
3) assuming, arguendo, [Taxpayer] acted reasonably throughout the
entire period in question, he has presented no authority supporting his
request for tax exoneration.
(Trial Court September 3, 2014 Order.)
Before this Court, the Taxing Authorities argue in support of the Trial
Court’s order. The Taxing Authorities contend that Taxpayer is charged with
knowledge of his Deed and that ignorance of its contents is a result of Taxpayer’s
own negligence. Second, the Taxing Authorities argue that Taxpayer’s request to
file an assessment appeal nunc pro tunc was untimely because he learned of the
liens from his neighbor in May 2013 and he did not present his request for an
appeal nunc pro tunc to the Board until April 24, 2014. The Taxing Authorities
further argue that the delay cannot be excused by an administrative breakdown
because the significant gap of time between notice and filing demonstrates a lack
of due diligence.
Taxpayer argues that his late appeal is the result of an administrative
breakdown both in 1999 when only No. 89 was transferred to his and his now
deceased wife’s name, and from 1999-2013 because he was not given notice of the
8
assessments for No. 88. Taxpayer also argues that the Taxing Authorities failed to
demonstrate that he acted unreasonably or that the Taxing Authorities were
prejudiced by his delay in bringing a nunc pro tunc appeal.
The Taxing Authorities rely on the contents of Taxpayer’s deed and
the maxim “if a party who can read…will not read a deed put before him for
execution; or if, being unable to read, will not demand to have it read or explained
to him, he is guilty of supine negligence, which…is not the subject of protection,
either in equity or at law.” In re Greenfield’s Estate, 14 Pa. 489, 496 (1850); see
also Standard Venetian Blind Co. v. American Empire Insurance Co, 469 A.2d
563, 566 (Pa. 1983). Although the rule cited by our Supreme Court in Greenfield’s
Estate remains axiomatic today, it is not dispositive of the instant matter.
Taxpayer is not seeking to set aside his deed, denying its contents, or arguing he
should be released from the obligations that accrued with his signature; the true
remedy Taxpayer seeks is to pay the taxes owed, no more, no less.4 A more
availing analogy from the law of contracts, though equally inapplicable to the
instant matter, is the principle of mutual mistake: both Taxpayer and the Taxing
Authorities failed to ascertain that the Property was divided into two
unconsolidated lots and only one of the lots was transferred to Taxpayer and his
now deceased wife.5 The record demonstrates, however, that the Taxing
4
Before the Trial Court and this Court, Taxpayer asked for exoneration of his taxes merely as an
alternative remedy if he is unable to file an appeal nunc pro tunc. (Taxpayer’s brief at 33; see
also H.T. at 66, R.R. at 143a.)
5
There is no question that Taxpayer has a duty to pay taxes on No. 88. However, the recorder
of deeds likewise has a duty to properly record the conveyance of real property. See Section 6 of
the Second Class County Assessment Law, Act of June 21, 1939, P.L. 626, as amended, 72 P.S.
§ 5452.6 (“Recorder of deeds to file reports of conveyances with board: It shall be the duty of the
recorder of deeds in each county of the second class to report every deed or conveyance of land
in said county entered in his office for recording, which record shall set forth the following
information, to wit: The recording date of the deed or conveyance, the names of the grantor and
9
Authorities had ample notice in the form of mounting liens and undeliverable
notices that something here was amiss. Yet it was Taxpayer’s own investigation,
rather than action by the Taxing Authorities, which brought this matter to light.
In Connor v. Westmoreland County Board of Assessment Appeal, 598
A.2d 610 (Pa. Cmwlth. 1991), this Court addressed whether the taxpayer had
presented sufficient allegations of fact which could support a grant of an appeal
nunc pro tunc, warranting a hearing before the trial court, and if the facts were
proven, remand to the county board of assessment appeal to hear taxpayer’s appeal
nunc pro tunc. Id. at 612. Reviewing the allegations in the taxpayer’s petition, this
Court concluded that:
Even though mere allegations of a failure to receive notice are
insufficient cause for allowing an appeal nunc pro tunc, [taxpayer’s]
petition contains more than mere allegation of a failure to receive
notice. He sets forth specific facts which, if proven, may constitute
negligence on the part of the [taxing authority] in mailing the tax
assessment notices. A failure to properly send a notice may amount to
a breakdown in operations which is the equivalent of negligence on
the part of administrative officials.
Id. at 612 (internal citations omitted). Holding that sufficient facts had been
alleged by the taxpayer, this Court remanded the matter in Connor to the trial court
to hold a hearing on the petition. Id. at 613. What distinguishes Connor from the
instant matter is the fact that a hearing was held below and Taxpayer did prove that
the Board was negligent in mailing Taxpayer tax assessment notices, even though
the Taxing Authorities had knowledge that the address it was mailing the tax
grantee in the deed, the location of the property as to city, borough, ward, town, or township
mentioned. It shall be the further duty of the recorder at intervals to file the aforesaid report in
the office of the board together with his certificate appended thereto that such record is
correct.”).
10
assessment notices to did not exist. We cannot, on this record, conclude that the
failure to transfer No. 88 and the failure to give notice of multiple years of tax
assessments are negated, or that Taxpayer’s request for nunc pro tunc relief can be
resolved, by the fact that Taxpayer failed to appreciate that his deed identified one
Property consisting of two separate lots.
Nor can we conclude that Taxpayer should be denied nunc pro tunc
relief because he failed to exercise due diligence following discovery of No. 88
and the back taxes owed. The Trial Court identifies May 2013 as the time when
Taxpayer first learned of No. 88 and the liens against the lot by the Taxing
Authorities. The record makes clear, however, that Taxpayer did not, for example,
receive notice from the Taxing Authorities in May 2013 or learn about the taxes
owed from the assessment appeal he was engaged in for No. 89. Instead, May
2013 marks the general period when Taxpayer learned of the possibility of the
predicament in which he now finds himself via a vague conversation by
happenstance with one of his neighbors. Following this conversation, Taxpayer
took consistent, documented steps to resolve the situation and determine the
amount he must pay the Taxing Authorities. The inability of the Taxing
Authorities to schedule a hearing on Taxpayer’s request to appeal nunc pro tunc
until April 24, 2014 does not amount to a lack of due diligence on Taxpayer’s part,
any more than the scheduling of a hearing on a plaintiff’s complaint by the court
affects the statute of limitations applicable to the counts alleged.
The Taxing Authorities cite a series of cases in support of their
argument that Taxpayer failed to exercise due diligence, focusing in each instance
on the amount of time between when the petitioner realized the necessity for action
and when the petitioner filed the request to appeal nunc pro tunc. For example, in
11
Department of Transportation, Bureau of Traffic Safety v. Johnson, 569 A.2d 409
(Pa. Cmwlth. 1990), this Court denied the petitioner’s request to appeal nunc pro
tunc a license suspension for failure to submit to a blood test because the petitioner
was aware of the suspension at the end of April but did not file an appeal nunc pro
tunc until the end of July. Id. at 411. Similarly, in Kaminski v. Montgomery
County Board of Assessment, 657 A.2d 1028 (Pa. Cmwlth. 1995), the taxpayers
received notice of a tax assessment that they timely appealed to the county board
of assessment appeals, but there was a six-month delay in the taxpayers’ appeal to
the trial court. Id. at 1031-1032.
Although time is certainly a factor, our cases addressing due diligence
do not rest on the specific amount of time that lapses between a petitioner gaining
knowledge of the need to act and a petitioner filing for nunc pro tunc relief. In
Kaminski, we held that the taxpayers had failed to establish a right to appeal nunc
pro tunc not because of the length of time that had passed but because “[t]axpayers
have not attempted to explain the reason for this lapse in time.” Id. at 1032.
Likewise, in Johnson we noted that the standard for a nunc pro tunc appeal
established by our Supreme Court in Bass v. Commonwealth, 401 A.2d 1133 (Pa.
1979), limited relief to instances where there had been “unique and compelling
factual circumstances presented to the court.” Johnson, 569 A.2d at 411. This
Court then concluded that the petitioner in Johnson was not entitled to relief
because “[a] review of the record in the case sub judice indicates that such unique
and compelling factual circumstances do not exist.” Id. In the instant matter,
Taxpayer has presented unique and compelling factual circumstances to the court
to explain his delay in requesting to file an appeal nunc pro tunc. Moreover, even
if a bright line rule regarding the length of time within which a petitioner seeking
12
nunc pro tunc relief must act was discernable, it would not be applicable to the
instant matter.
The factual matrix here is markedly distinct from requests to appeal
nunc pro tunc that typically reach this Court. In Johnson, notice of the license
suspension was mailed to the petitioner’s home. This fact pattern is typical of nunc
pro tunc appeals: the petitioner receives notice of governmental action; the
petitioner does not challenge the governmental action within the specified time
period; and the petitioner, citing good cause, requests additional time to respond.6
By contrast, in the instant matter, the record fails to demonstrate that Taxpayer
received an assessment for No. 88 prior to his request to appeal nunc pro tunc.7
Instead, Taxpayer went to the Taxing Authorities and requested that they take
action. The facts demonstrate that even upon receiving a vague suggestion from a
neighbor that his Property was divided into two lots, Taxpayer followed up,
weaving from one official to another among the Taxing Authorities until it became
clear that he needed legal assistance. In discussing the meaning of “due diligence”,
our Supreme Court concluded in Sprague v. Casey, 550 A.2d 184 (Pa. 1988), that:
6
See, e.g. Suber v. Unemployment Compensation Board of Review, 126 A.3d 410 (Pa. Cmwlth.
2015); Schofield v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d 510
(Pa. Cmwlth. 2003); Ardolino v. City of Pittsburgh Civil Service Commission, 658 A.2d 847 (Pa.
Cmwlth. 1995); Bradley v. Pennsylvania Board of Probation and Parole, 529 A.2d 66 (Pa.
Cmwlth. 1987); Western Pennsylvania Water Co. v. Board of Property Assessment Appeals and
Review, Allegheny County, 439 A.2d 1259 (Pa. Cmwlth. 1981).
7
In Schmidt v. Commonwealth, 433 A.2d 456 (Pa. 1981), our Supreme Court held that where
the time in which an appellant has to commence an appeal is triggered by the date of mailing of
notice of action taken by a governmental unit, such as a notice of determination from a tax
appeals board, the governmental unit has a duty to clearly advise the appellant of the date of
mailing. Id. at 458. This rule is certainly applicable to the underlying governmental action that
led a petitioner to seek redress from the governmental unit in the first place. See also California
University of Pennsylvania v. Zoning Hearing Board of Borough of California, 107 A.3d 241,
246 (Pa. Cmwlth. 2014) (confusion created by zoning board notice regarding the actual date the
appeal period began created grounds for nunc pro tunc relief).
13
The correct inquiry in determining whether his conduct resulted in a
want of due diligence is to focus not upon what the plaintiff knows,
but what he might have known, by the use of the means of
information within his reach, with the vigilance the law requires of
him. What the law requires of petitioner is to discover those facts
which were discoverable through the exercise of reasonable diligence.
In the instant case, petitioner had not only to discover the facts
surrounding his claim, but also to ascertain the legal consequences of
those facts.
Id. at 188 (internal citations omitted) (holding that six and one half months
between constructive notice of factual circumstances and commencement of legal
action did not demonstrate a lack of due diligence). Like the petitioner in Sprague,
Taxpayer exercised reasonable diligence to discover the facts underpinning his
request to appeal nunc pro tunc and the legal consequences of those facts. The
record does not support the conclusion that Taxpayer dawdled in doing so.
Moreover, the Taxing Authorities’ argument to the contrary is undermined by its
own failure to untangle this situation for more than thirteen years, despite
possessing superior knowledge.8
8
Though not wholly analogous to the factual circumstances at issue here, Eye & Ear Hospital v.
Department of Public Welfare, 514 A.2d 976 (Pa. Cmwlth. 1986), is instructive. In Eye & Ear
Hospital, this Court held that it was an abuse of discretion for the Department of Public Welfare
to deny waiver of the time period within which the petitioner-hospital could seek specific
Medicaid reimbursements following confusion over whether Department of Health approval was
necessary for the provision of certain services. Id. at 977, 981. We concluded that the
Department of Public Welfare created confusion regarding the applicable regulatory scheme and
the time frame within which reimbursement requests must be made, and that this confusion when
combined with evidence that the petitioner-hospital acted with diligence “once the regulatory
policy was fully elucidated,” obliged the Department of Public Welfare to allow the petitioner-
hospital additional time to submit its claims. Id. at 981. In reaching this conclusion, we
reasoned that the rule that “those in the position of the hospitals, operating under and seeking the
benefits of a government-funded program, must be charged with knowledge of the applicable
regulatory scheme,” was inapplicable. Id. at 979. We noted that this was not an instance where
the petitioner-hospital was arguing that the regulation was inapplicable or that the Department of
14
Next, Taxpayer argues that the five-year statutory period allowing for
revision of assessments or the six-year statutory period allowing for correction of
assessment errors provided by the Second Class County Assessment Law should
not apply to his unique factual situation, and instead Taxpayer should be permitted
to appeal the assessment of No. 88 dating back from 2013 to his purchase of the
Property in 1999.
There are two sections of the Second Class County Assessment Law
addressing revision of assessments in counties of the second class. Section 13
provides that the taxing authorities shall add property omitted to the assessment
roll between triennial assessments but that the taxing authorities may only go back
five years preceding the year when the omitted property was added to the rolls and
that the taxpayer retains the right to appeal the assessment for this five year
period.9 Section 13.a provides that where a mathematical or clerical error is made
Public Welfare could not enforce the regulation, but was instead a question as to whether, having
created or at least significantly contributed to the need to request additional time to act, it was an
abuse of discretion to deny that time to the petitioner-hospital. Id. at 980. Unlike Johnson and
Kaminsi, Eye & Ear Hospital contained unique and compelling facts, and facts which required
this Court to examine the effect confusion created by governmental action had on a petitioner’s
ability to act diligently.
9
Section 13 states, in relevant part:
The proper assessors shall, between the triennial assessments, revise any
assessment or valuation according to right and equity by correcting errors and by
adding thereto any property, improvements or subjects of taxation which may
have been omitted or any new property, improvements or subjects of taxation
which may have come into being since the last triennial assessment. Any
property, improvements or subjects of taxation which may have been omitted
shall be assessed and made subject to taxation for the period during which said
property, improvements or subjects of taxation shall have been omitted but in no
event to exceed the period of five calendar years preceding the year in which the
property, improvements or subjects of taxation omitted is first added to the
assessment roll. Any such assessments as are made pursuant to the provisions of
this paragraph shall be subject to appeal in the same manner as other assessments
made pursuant to this act. Taxes levied on any such assessment shall not be made
15
and a taxpayer has been required to pay more than was required, a refund shall be
made to the taxpayer for the period of the error or for six years, whichever is less.10
Neither Section 13 nor Section 13.a of the Second Class County Assessment Law
is applicable to the situation here. No. 88 was not accidentally omitted and
Taxpayer does not seek a refund of taxes paid due to clerical error. As a result,
there is no bar to prohibit Taxpayer from contesting in his nunc pro tunc appeal the
assessed value of No. 88 beginning with his purchase of the Property.
In sum, the record demonstrates repeated administrative breakdowns
that constitute the extraordinary circumstances a nunc pro tunc appeal was
intended to remedy, Taxpayer demonstrated due diligence in pursuit of his request
to appeal nunc pro tunc, and the Second Class County Assessment Law does not
subject to the payment of any interest and penalties otherwise provided by law,
except as the same are computed from the date of assessment made pursuant to
this section. No bona fide purchaser of any property or subject of taxation without
knowledge that the property or subject of taxation was omitted from assessment
for purposes of taxation shall be subject to any taxation based upon the additional
assessment made pursuant to this section.
72 P.S. § 5452.13.
10
Section 13.a, added by Act of December 12, 1988, P.L. 1437 states in full:
Whenever, through mathematical or clerical error, an assessment is made more
than it should have been and taxes are paid on such incorrect assessment, the
Board of Property Assessment, Appeals and Review, upon discovery of such error
and correction of the assessment, shall so inform the appropriate taxing district or
districts, which shall make a refund to the taxpayer or taxpayers for the period of
the error or six years, whichever is less, from the date of application for refund or
discovery of such error by the board. For the purposes of this section, in counties
of the second class, “mathematical or clerical error” shall mean the difference
between the assessment as certified for a given tax year by the Board of Property
Assessment, Appeals and Review and the assessment upon which taxes are billed
and paid. Reassessment, revision of assessment or certification of assessment with
or without application by the owner as a decision of judgment based upon the
method of assessment by the board shall not constitute an error under this section.
72 P.S. § 5452.13a.
16
prohibit Taxpayer from challenging the assessments in his appeal dating back to
his purchase of No. 88. Accordingly, the order of the Trial Court is reversed and
this matter is remanded to the Trial Court with direction to remand to the Board to
permit Taxpayer to pursue a nunc pro tunc appeal.
__________________________________
JAMES GARDNER COLINS, Senior Judge
Judge McCullough did not participate in the decision of this case.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William H. Croft, :
Appellant :
:
v. : No. 116 C.D. 2015
:
Board of Property Assessment, Appeals :
and Review, Borough of Ben Avon :
Heights, Avonworth School District, :
Allegheny County :
ORDER
AND NOW, this 8th day of March, 2016, the order of the Court of
Common Pleas of Allegheny County in the above-captioned matter is REVERSED
and this matter is REMANDED to the Court of Common Pleas of Allegheny
County with direction to REMAND to the Allegheny County Board of Property
Assessment, Appeals and Review to permit William H. Croft (Taxpayer) to appeal
nunc pro tunc the real estate tax assessments for Block and Lot No. 214-C-88
beginning with Taxpayer’s purchase of 11 Oxford Road, Pittsburgh, PA, in Ben
Avon Heights Borough, Allegheny County in 1999 up to the 2013 real estate tax
assessment.
Jurisdiction relinquished.
__________________________________
JAMES GARDNER COLINS, Senior Judge