          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lawrence Lee and Victoria             :
Evstafieva,                           :
                 Appellants           :
                                      :
              v.                      : No. 1041 C.D. 2016
                                      : ARGUED: March 6, 2017
Luzerne County Tax Claim Bureau       :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                         FILED: March 28, 2017


              Lawrence Lee and Victoria Evstafieva (Appellants) appeal from the
June 1, 2016 order of the Court of Common Pleas of Luzerne County (trial court),
which denied Appellants’ “Petition to Set Aside Tax Sale and Reassess Property”
(Petition).


              At a 2005 judicial sale, Appellants purchased property on
Westminster Road in Plains Township (Property) for $4,500.00. Prior to purchase,
the Property was owned by Westminster Memorial Gardens, Incorporated
(Westminster) and was utilized and registered as a cemetery.      However, the
cemetery registration had lapsed around 1990, the Property was abandoned, and
the Property’s taxes were not paid.
                 After purchase, Appellants realized that burials were still taking place
on the Property because Westminster had pre-sold burial plots. Thus, the cemetery
was still active. Appellants have not sold any burial plots, and did not intend to
continue the Property as a cemetery.


                 In 2012, Appellants, after realizing that burial grounds are exempt
from taxation, stopped paying property taxes. The Property was then scheduled for
an upset tax sale in September 2012 for delinquent taxes. On August 29, 2012,
Appellants filed the Petition. Appellants alleged that pursuant to section 204(a)(2)
of The General County Assessment Law (Law),1 72 P.S. § 5020-204(a)(2), the
Property should be exempt from all taxes as a burial ground. Further, pursuant to
section 1 of the Act of May 10, 1923, P.L. 198, as amended, 9 P.S. § 15, the
Property, as a neglected burial ground, should have been placed in the care of the
Township and not sold at the 2005 judicial sale. Thus, Appellants requested: (1)
the Property be exempt from tax; (2) a refund of taxes paid from the time of
purchase to present; and (3) reversal of the 2005 judicial sale and refund of the
price paid and all costs associated with the sale. The September upset tax sale was
stayed pending the outcome of the Petition. No further action was taken until
2016.


                 On April 15, 2016, the trial court held a hearing. The Luzerne County
Tax Claim Bureau (Bureau) argued that: (1) Appellants did not apply for tax
exempt status; (2) the suit exceeded the statute of limitations for a judicial tax sale;


        1
            Act of May 22, 1933, P.L. 853, as amended.


                                                2
and (3) Appellants have no grounds to challenge Westminster’s tax status or the
2005 tax sale because the taxes were levied against Westminster, not Appellants.


               On June 1, 2016, the trial court denied Appellants’ Petition.
Appellants appealed to this Court.2


               Before this Court, Appellants argue that the trial court erred and
abused its discretion in denying the Petition.3 We disagree.


               The statute of limitations for “[a]n action or proceeding to set aside a
judicial sale of property” is six months. 42 Pa. C.S. § 5522(b)(5).4 Appellants
filed their Petition in 2012, seven years after purchasing the Property at the 2005




       2
          Our review of the trial court’s denial of a petition to set aside a tax sale and reassess
property is whether the trial court abused its discretion, rendered a decision without supporting
evidence, or erred as a matter of law. In Re: York County Tax Claim Bureau, 3 A.3d 765, 767
n.3 (Pa. Cmwlth. 2010).

       3
           At argument before this Court, Appellants stated that the Bureau failed to timely raise
its statute of limitations defense. We note that Appellants failed to raise this argument before the
trial court and in its brief and statement of issues to this Court; this issue is thus waived.
However, we note that Pa. R.C.P. No. 1030 provides that “all affirmative defenses
including…statute of limitations…shall be pleaded in a responsive pleading under the heading
‘New Matter’ and that the Bureau, in its Answer and New Matter, under the heading ‘New
Matter,’ stated that ‘Petitioner’s claims are barred by the statute of limitations.’” (R.R. at 23a.)

       4
        We note that even if this were an upset tax sale, the statute of limitations would still bar
Appellants’ Petition. Pursuant to 42 Pa. C.S. § 5527, an action to set aside an upset tax sale must
commence within six years of the sale. See Pfeifer v. Westmoreland County Tax Claim Bureau,
127 A.3d 848, 851 (Pa. Cmwlth. 2015).



                                                 3
judicial tax sale. Thus, Appellants’ challenge of the 2005 judicial tax sale is barred
by the statute of limitation.5


               Finally, to the extent that Appellants are requesting that tax exempt
status be applied to the Property from the time of their purchase to present, the
record is void of any evidence showing that Appellants applied for tax exempt
status, or contested the Property’s tax assessment.                 A property owner must
affirmatively request tax exempt status. City of Pittsburgh v. Board of Property
Assessment Appeals and Review of the County of Allegheny, 412 A.2d 655, 658
(Pa. Cmwlth. 1980). “When exemptions have not been timely sought through
statutory appeals, the courts have no jurisdiction to reach back over a period of
years . . . to resurrect that question.” In re Petition of Mausoleum Construction
Company, 423 A.2d 809, 812 (Pa. Cmwlth. 1980). “The taxable status of property
is determined at the time of the assessment, and changes during the course of a
year that may bring a property into an exempt classification will only become
effective for the following year.” In re Appeal of Borough of Riegelsville from the
Bucks County Board of Assessment and Revision of Taxes, 979 A.2d 399, 403 (Pa.
Cmwlth. 2009). Thus, this Court cannot grant Appellants’ request for retroactive




       5
          Due to this determination, we need not address Appellants’ request for a refund of the
bid price and all costs associated with the 2005 judicial tax sale. We further note that Appellants
would be barred from such refund by the doctrine of laches. See Section 205 of the Real Estate
Tax Sale Law, Act of July 7, 1947, P.L. 1368, art. II, as amended, 72 P.S. § 5860.205. We also
note that Appellants lack standing to pursue a challenge of taxes levied against Westminster. See
Plank v. Monroe County Tax Claim Bureau, 735 A.2d 178, 181-82 (Pa. Cmwlth. 1999) (finding
that purchasers lacked standing because they were not owners or lien creditors at the time of the
sale).


                                                4
tax exempt status, nor can it grant Appellants’ tax exempt status currently or in the
future without Appellants properly requesting such tax relief.


             Accordingly, we must affirm the trial court.



                                       __________________________________
                                       JULIA K. HEARTHWAY, Judge


Judge Cosgrove did not participate in the decision of this case.




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lawrence Lee and Victoria           :
Evstafieva,                         :
                 Appellants         :
                                    :
            v.                      : No. 1041 C.D. 2016
                                    :
Luzerne County Tax Claim Bureau     :


                                  ORDER


            AND NOW, this 28th day of March, 2017, the order of the Luzerne
County Court of Common Pleas in the above-captioned matter is affirmed.




                                    __________________________________
                                    JULIA K. HEARTHWAY, Judge
