American Ass'n for Lost Children v. Westmoreland County Board of Assessment Appeals

OPINION BY

Senior Judge FRIEDMAN.

American Association for Lost Children, Inc. (Association) appeals from the September 25, 2008, order of the Court of Common Pleas of Westmoreland County (trial court), which denied the Association’s appeal from the determination of the Westmoreland County Board of Assessment Appeals (Board) that the Association is not entitled to an exemption from Pennsylvania real estate taxes. We affirm.

In 1987, Mark R. Miller (Miller) founded the Association, a non-profit entity that searches for and recovers missing children. The Association focuses its efforts on criminal abductions associated with child custody disputes, working both in the United States and internationally to reunite abducted children with their custodial parent. The majority of the Association’s work is outside Pennsylvania. The Association does not charge for its services but relies on donations from the public. (Trial ct.’s Findings of Fact, Nos. 1-2, 4-6; R.R. at 51a-52a.)

On February 13, 2008, the Association appealed from the Board’s determination that it is not entitled to an exemption from real estate taxes for its headquarters in Latrobe, Pennsylvania (Property). The Association contends that because the Association is a purely public charity, and the Property is utilized solely for charitable purposes, the Property is exempt from real estate taxes pursuant to section 204(a)(3) of the General County Assessment Law (Assessment Law).¹ The trial court held a de novo hearing on the matter.

At the hearing, Miller testified regarding the Association’s mission, operations and funding. Miller explained that, when contacted regarding abducted children, the Association performs a “hands-on” investigation, doing whatever is required to track the abductor and children so that law enforcement officials can recover the children. Miller noted that because no United States law enforcement agency has jurisdiction to recover missing children from foreign countries, the Association acts as an “agent” to rescue children taken to foreign countries. Miller explained that, in light of these services, the Association meets the test set forth in Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985) (HUP)² as a purely public charity because: (1) the Association relieves the government of its burden to find missing children and their abductors, particularly outside the United States; (2) without the Association’s services, the government would have to expend money to investigate these matters and recover the abducted children; (3) the Association does not charge parents or the law enforcement officials any fees for its services; and (4) the Association helps parents to reunite with their children. (R.R. at 50a-57a, 63a, 66a-67a.)

On cross-examination, Miller agreed that: he had no specific evidence that the Association relieved the financial burden of any particular law enforcement agency; he is not a licensed private detective; the Association does not employ any licensed private detectives; and he has never worked in law enforcement or as a government investigator. (Trial ct.’s Findings of Fact, No. 4; R.R. at 59a-60a.)

In support of its claim, the Association also submitted various newspaper and magazine articles, as well as an August 21, 2008, letter from the Westmoreland County District Attorney, John W. Peck, and an affidavit by Westmoreland County Sheriff, Chris Scherer. Both the letter and the affidavit stated that the Association relieves the government of some of its burden; ³ however, both documents also indicated that the author had no first hand knowledge of the Association. (R.R. 78a, 98a.)

In rendering its decision, the trial court focused on what it viewed as the relevant prong of the test set forth by our supreme court in HUP: whether the Association relieves the government of some of its burden. The trial court observed that, not only is the government’s burden with regard to finding missing or abducted missing children not precisely defined, the law does not favor the delegation of governmental police duties to private entities. Commonwealth v. Emmers, 221 Pa. 298, 70 A. 762 (1908) (stating that it is manifestly improper for the government to delegate police functions to an individual or private corporation).

Moreover, while finding Miller’s testimony generally credible, the trial court was not persuaded by his testimony that the Association relieved the government of some of its burden. In this regard, the trial court found that the Association’s documentary evidence had no evidentiary weight, and that the Association failed to introduce any evidence showing that it relieves any financial burden on law enforcement agencies or that the Association’s members, officers and employees are qualified to investigate cases of missing or abducted children.

Finally, the trial court concluded that the Association did not have the capacity to relieve the government of some of its burden. The trial court explained that it was unclear whether the Association had any legal authority to investigate the whereabouts of missing children in the United States or in foreign countries where the Association does not employ a licensed private investigator and that it could not ratify ultra vires activity.⁴ For all of these reasons, the trial court held that the Association was not entitled to a real estate tax exemption.

On appeal,⁵ the Association challenges the trial court’s conclusion that the government has no clear duty to find any specific missing or abducted child. Citing the Missing Children’s Assistance Act (MCAA), 42 U.S.C. §§ 5771-5778, and the National Child Search Assistance Act of 1990 (Child Search Act), 42 U.S.C. §§ 5779-5780a,⁶ the Association maintains that the government has a burden to provide law enforcement officers to find missing or abducted children and that its activities relieve some of that burden. However, the trial court did not conclude that the government had no burden to find missing and abducted children; instead, the trial court questioned whether this burden could be, or should be, relieved by private citizens. (Trial ct. op. at 5.) Moreover, to the extent that the federal laws cited by the Association establish that the government has a burden to investigate the whereabouts of missing and abducted children, those laws are not evidence that the Association relieves some of that governmental burden.

To satisfy that burden, the Association relied upon Miller’s testimony and documentary evidence. However, the trial court, acting in its role as fact finder, was not persuaded by Miller’s testimony and gave no evidentiary weight to the documentary evidence. In tax assessment cases, the trial court is the fact finder; matters of credibility and evidentiary weight are solely within the trial court’s province, and we are bound by those determinations on appeal. Lyons v. City of Philadelphia Board of Revision of Taxes, 828 A.2d 485 (Pa.Cmwlth.2003). Additionally, we note that the Association did not challenge the trial court’s determination that the Association does not have the capacity to relieve the government of some of its law enforcement burden. Having failed to raise this issue on appeal, the Association has waived any challenge to this determination. Pa. R.A.P. 2116(a); Pa. R.A.P. 2119(a).

Because the Authority did not establish that it relieved the government of some of its burden to investigate the whereabouts of missing children, the trial court properly concluded that the Association is not entitled to a real estate tax exemption as a purely public charity. HUP.

Accordingly, we affirm.

ORDER

AND NOW, this 2nd day of July, 2009, the order of the Court of Common Pleas of Westmoreland County, dated September 25, 2008, is hereby affirmed.

1 . Act of May 22, 1933, P.L. 853, as amended, 72 P.S. § 5020-204(a)(3). This section provides, in relevant part, that real property owned by associations and institutions of charity founded, endowed and maintained by public or private charity are exempt from all county, city, borough, town, township, road, poor and school taxes. Id.

2 . Under HUP, a "purely public charity” must possess all of the following characteristics:

(a)Advances a charitable purpose;

(b) Donates or renders gratuitously a substantial portion of its services;

(c) Benefits a substantial and indefinite class of person who are legitimate subjects of charity;

(d) Relieves the government of some of its burden; and

(e) Operates entirely free from private profit motive.

HUP, 507 Pa. at 22, 487 A.2d at 1317. (Emphasis added.)

3 . Peck’s letter stated, “the work of the Association relieves the government of some of its burden by providing a service to the public that the government would otherwise be obliged to fund or to provide directly or indirectly.” (R.R. at 78a.) Scherer’s affidavit stated that the Association: works in collaboration with law enforcement agencies to rescue missing and abducted children; supplements the work of law enforcement agencies to make arrests of felons in child abduction cases; and ”[i]n certain situations^] relieves Law Enforcement Agencies of public burden and duty.” (R.R. at 99a.)

4 . The performance of detective services, such as the investigation of the whereabouts of missing persons, is governed by The Private Detective Act of 1953 (Detective Act), Act of August 21, 1953, P.L. 1273, as amended, 22 P.S. §§ 11-30, which requires that individuals performing such activities be licensed. Although section 15 of the Detective Act states that the act does not apply to duly incorporated charitable or philanthropic societies or associations which are organized and maintained for the public good and not for private profit, section 15 prohibits these exempt associations from performing, in any manner, detective services as described in section 2 of the Detective Act, 22 P.S. § 12, which include the investigation of the whereabouts of missing persons, for any other person or association whether for fee or as an accommodation without fee or remuneration. 22 P.S. § 25.

5 . In a tax assessment appeal, our scope of review is limited to determining whether the trial court abused its discretion or committed an error of law or whether its decision is supported by substantial evidence. Lyons v. City of Philadelphia Board of Revision of Taxes, 828 A.2d 485 (Pa.Cmwlth.2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). A property owner’s entitlement to a tax exemption is a mixed question of fact and law, and absent an abuse of discretion or a lack of supporting evidence, this court will not disturb the trial court's decision. Lyons.

6 . The purpose of the MCAA is to address the problems associated with the abduction of children by non-custodial parents and the resulting need to search for and return of those children, and it provides grant money to, inter alia, the National Center for Missing and Exploited Children, which, in turn, provides reporting resources, educational resources, and coordinates public and private programs that locate, recover, or reunite missing children with their families. 42 U.S.C. § 5773(b). The Child Search Act requires, inter alia, that federal, state and local law enforcement report each case of missing children under the age of 21 reported to the agency to the National Crime Information Center of the Department of Justice and must institute or assist with appropriate search and investigative procedures to find such child. 42 U.S.C. §§ 5779-5780.