          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Downingtown Area School District       :
                                       :
             v.                        : No. 1461 C.D. 2016
                                       : No. 1462 C.D. 2016
Chester County Board                   :
of Assessment Appeals                  :
                                       :
Appeal of: Marchwood Associates        : ARGUED: May 1, 2017



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                           FILED: July 7, 2017


             Marchwood Associates (Marchwood) appeals from four orders of the
Court of Common Pleas of Chester County (trial court). Two of the orders, dated
June 1, 2016, set fair market values (FMV) for property owned by Marchwood
located at 128 Surrey Way and 608 Cadwalader in Uwchlan Township
(collectively, Property) for the tax years 2013 through 2016. Two other orders,
dated August 9, 2016, granted the Downingtown Area School District’s (School
District) motions to strike Marchwood’s post-trial motions and the responses
thereto. We quash Marchwood’s appeal from the June 1, 2016 orders and affirm
the trial court’s orders of August 9, 2016.
             In June 2012, the School District retained a property tax consulting
service firm, Keystone Realty Advisors, LLC (Keystone), to review the market
values and assessments of properties in the School District. Keystone was hired to
identify potentially under-assessed properties on which the School District could
file tax assessment appeals. Keystone provided the School District with a report
that identified 23 non-residential properties in the School District that appeared to
be under-assessed.


             On July 30, 2012, the School District filed 23 assessment appeals to
the Chester County Board of Assessment Appeals (Assessment Board), including
assessment appeals of the Property. The Property consists of two adjacent parcels
that are improved with a 504-unit apartment complex, totaling 43.6 acres. The
Property was assessed pursuant to a county-wide assessment in 1996-97 at
$19,385,200. On October 17, 2012, the Assessment Board issued two decisions
indicating no change in the assessment. The School District appealed to the trial
court.


             On February 4, 2013, Marchwood sought to intervene and asserted
new matter, alleging that under the equal protection clause of the United States
Constitution and the uniformity clause of the Pennsylvania Constitution, the
School District’s assessment appeal was an unconstitutional spot assessment, and
discriminated against Marchwood as a commercial property owner. The School
District did not file an answer to the new matter. Marchwood filed a petition to
require the School District to answer. On March 13, 2013, the trial court issued a
rule on Marchwood’s petition, directing that “[t]he petition shall be decided under


                                         2
Pa. R.C.P. No. 206.7.” On August 29, 2013, Marchwood filed a motion under
Chester County Local Rule 5003(c)(6) for leave to conduct additional discovery.
The trial court granted the motion instructing Marchwood to conduct the discovery
in accordance with the Pennsylvania Rules of Civil Procedure (Rules). The trial
court noted that “[a]lthough not made specifically applicable to real estate tax
assessment appeals, the [Rules] provide a logical framework to conduct discovery
and, moreover, [are] well known to practitioners.” (Trial Court Order, 10/31/13, at
2 n.1.)


             Thereafter, the parties and the trial court used the Rules as a guide for
pleadings, discovery and scheduling. Marchwood moved for a letter rogatory to
obtain testimony from the School District’s assessment appeal consultant. The
School District opposed the motion, relying upon Pa. R.C.P. No. 4003.5(a)(3).
The trial court granted Marchwood’s motion. The School District filed a motion to
quash and for protective orders under Pa. R.C.P. Nos. 234.4 and 4012. The trial
court denied these motions. On June 23, 2014, the trial court entered a scheduling
order setting various deadlines consistent with the Rules.


             On August 15, 2014, Marchwood filed an uncontested motion to
modify the scheduling order, seeking to extend certain deadlines. The trial court
granted the motion. On September 19, 2014, Marchwood filed an additional
uncontested motion to modify the scheduling order, again seeking to extend case
deadlines, including for dispositive motions. The scheduling order was amended a
third time, as stipulated to by the Assessment Board and the parties. At no time
did the School District argue that utilization of the Rules was improper.


                                          3
               On July 29, 2015, Marchwood moved for summary judgment, arguing
that the School District’s tax assessment appeal policy violated Pennsylvania’s
uniformity clause. The School District moved to strike Marchwood’s summary
judgment motion, asserting that motions for summary judgment are not permitted
in tax assessment appeals where the Rules do not apply.


               On May 31, 2016, the trial court held a hearing.                     Prior to the
proceedings, the trial court denied Marchwood’s motion for summary judgment as
moot by the commencement of the trial. The trial court did not rule upon the
School District’s motion to strike the summary judgment motion.                          At trial,
Marchwood presented evidence regarding the FMV of the Property and in support
of its assertion that the School District’s tax assessment policy and practices
violated the uniformity and equal protection clauses.1                  Marchwood presented
expert testimony that the FMV of the Property for 2013 was $50,000,000; and was
$59,000,000 for 2016. No testimony was elicited for the tax years 2014 and 2015.
The School District presented testimony that the FMV should be $54,700,000 for
2013; $52,270,000 for 2014; $55,940,000 for 2015; and $59,130,000 for 2016.
Thus, both experts testified that the Property was under-assessed.

               1
                  Marchwood submitted a stipulation between the parties to establish the facts
regarding the uniformity challenge. The parties stipulated that prior to August 8, 2012, the
School District had an unwritten policy to only appeal tax assessments that may result in an
additional yearly tax revenue of $10,000 or more; on August 8, 2012, the School District passed
a written policy to that effect; on July 11, 2012, the School District voted to authorize the appeal
of the 25 properties, none of which were single-family homes, townhouses, or condominiums; on
July 17, 2013, the School District authorized the appeal of four more similarly-typed properties;
the School District hired Keystone; and Keystone received no direction from the School District
to limit property type.


                                                 4
             The trial court issued two decisions on June 1, 2016. Applying the
common level ratio (a multiplier used to convert FMV into a scale used for
assessed value) to the School District’s FMVs, the trial court determined the
assessed values to be $32,273,000 for 2013; $31,466,540 for 2014; $32,277,380
for 2015; and $32,758,020 for 2016. However, the trial court’s decisions did not
address Marchwood’s uniformity or equal protection arguments.


             On June 10, 2016, Marchwood filed post-trial motions pursuant to Pa.
R.C.P. Nos. 227.1 and 227.2, arguing that it had proven that the School District’s
assessment appeal policy violated the uniformity clause. On July 1, 2016, 31 days
after the trial court’s decisions were issued, the School District filed motions to
strike Marchwood’s post-trial motions, contending that they were procedurally
improper because the Rules do not apply in tax assessment appeals and post-trial
motions are only permitted in such appeals when specifically permitted by local
rule or when a trial court invites a party to file them and here, the local rules do not
permit the filing of post-trial motions and the trial court did not invite the filing of
post-trial motions.    By orders dated August 9, 2016, the trial court granted the
School District’s motions.


             On August 26, 2016, Marchwood appealed the trial court’s orders of
June 1, and August 9, 2016, to this Court. The trial court directed Marchwood to
file a concise statement of errors complained of on appeal. Marchwood did so,
raising five issues regarding violations of the uniformity and equal protection
clauses, along with its contention that the trial court erred by repeatedly entering


                                           5
orders pursuant to the Rules and then holding that the Rules were inapplicable to
assessment appeals.


             The trial court determined that Marchwood failed to file its appeals
from the June 1, 2016 orders on or prior to July 1, 2016. The trial court stated that
its June 1, 2016 orders were final.           Thus, the trial court determined that
Marchwood’s appeals from the June 1, 2016 orders were untimely and no issues
were preserved for appeal to this Court. The trial court further determined that it
did not err in its orders of August 9, 2016, striking Marchwood’s post-trial
motions. The trial court stated that it did not invite the filing of post-trial motions
or rule on the merits of those motions.


             Our review in a tax assessment appeal is limited to a determination of
whether the trial court abused its discretion, committed an error of law, or rendered
a decision unsupported by substantial evidence.               Westinghouse Electric
Corporation v. Board of Property Assessment, Appeals and Review of Allegheny
County, 652 A.2d 1306, 1309 (Pa. 1995). Questions of law are subject to de novo
review and this Court’s scope of review is plenary. In Re: Appeal of P-Ville
Associates, 87 A.3d 898, 901 n.5 (Pa. Cmwlth. 2014).


             Initially, Marchwood argues that the trial court erred in determining
that its appeals to this Court from the trial court’s June 1, 2016 orders, is untimely.
Specifically, Marchwood states that although the trial court did not explicitly invite
the filing of post-trial motions, it did so implicitly by using the Rules during the




                                          6
pendency of the litigation.2 Marchwood contends that the trial court’s actions over
a period of years effectively invited Marchwood to file the post-trial motions. The
trial court applied the Rules repeatedly throughout the litigation in pretrial motions,
discovery, and dispositive motions, and should not have changed course at the end
of the case in a manner that greatly prejudiced Marchwood’s right to have its
appeals decided on the merits. Marchwood asserts that because the first judge in
this matter made the Rules applicable, the second judge should have made it clear
that he no longer wished to apply the Rules to this matter and, because he did not,
Marchwood could only assume that the Rules continued to apply.


               Pursuant to In re Appeal of the Borough of Churchill, 575 A.2d 550,
554 (Pa. 1990), the Rules are inapplicable to statutory appeals; however, “each trial
court has been vested with the full authority of the court to make rules of practice
for the proper disposition of cases before them.” Permitting or refusing to accept
exceptions or post-trial relief is within the trial court’s discretion. Id.3


               “[I]n statutory appeals, where both the [Rules] and local rules are
silent as to the right to file post-trial motions, none may be filed unless the court
explicitly directs otherwise.” Shapiro v. Center Township, Butler County, 632

               2
                We note that two different judges handled this case. The first judge presided
over the pleading stage, discovery, motions practice, and case management orders. The second
judge took over the case on March 26, 2015, prior to Marchwood filing its motion for summary
judgment, which the School District objected to because the Rules don’t apply. The trial court
found the motion moot at the start of the trial.

               3
                In Churchill, the trial court invited the parties to file exceptions, accepted them,
disposed of them, and then issued its final order. Id. at 555. Our Supreme Court therefore
determined that this Courts’ sua sponte dismissal of the appeal as untimely was in error. Id.


                                                 7
A.2d 994, 999 (Pa. Cmwlth. 1993) (referencing Eachus v. Chester County Tax
Claim Bureau, 612 A.2d 586, 587 (Pa. Cmwlth. 1992) (determining that the trial
court “may invite post-trial motions or exceptions if done so explicitly and
clearly”)). Thus, a party must not assume that the trial court implicitly invited
post-trial motions in a statutory appeal, but must be directed explicitly to file post-
trial motions. See Churchill; Shapiro; and Eachus.


              Here, the trial court did not explicitly invite post-trial motions, nor did
it schedule argument on them. Thus, the trial court did not err in granting the
School District’s motion to strike Marchwood’s post-trial motions and, thereafter,
in determining that any appeal of the June 1, 2016 orders was untimely and thus,
no issues were preserved for appeal to this Court.


              Next, Marchwood argues that if its appeal of the June 1, 2016 orders
was untimely, we should allow Marchwood’s appeal to proceed nunc pro tunc
because the trial court consistently applied the Rules throughout the litigation,
accepted Marchwood’s filing of the post-trial motions, and did not strike the
motions until three weeks after they were filed.4 Thus, Marchwood was unfairly
prejudiced. Marchwood states that, much like in Churchill, the School District
used its motion to strike, which was filed one day after Marchwood could have
timely appealed, as a weapon to impale an innocent member of the bar and prevent
Marchwood from obtaining appellate review. Marchwood asserts that this is a
breakdown in the trial court’s operations in that the trial court inconsistently

              4
                Nunc pro tunc appeals may be directed to either the trial court or the appellate
court. Pa. Appellate Practice, § 105:13 (2016-17 Ed). Therefore, we may entertain this issue.


                                               8
applied the Rules Further, because its filing of the post-trial motions was non-
negligent, it would be inequitable and unfairly prejudicial not to exercise this
Court’s equitable power to hear Marchwood’s appeal nunc pro tunc.


            An appeal nunc pro tunc is an exception to the general rule
prohibiting the extension of an appeal deadline. Union Electric Corp. v. Board of
Property Assessment, 746 A.2d 581, 584 (Pa. 2000). This Court can grant an
appeal nunc pro tunc upon a showing of extraordinary circumstances involving
“fraud or a breakdown in the court’s operations through a default of its officers.”
Id.


            This Court has determined the type of conduct that constitutes a
breakdown in the court’s operations. See Connor v. Westmoreland County Board
of Assessment Appeal, 598 A.2d 610 (Pa. Cmwlth. 1991) (finding that the Board
was negligent where it mailed a tax assessment notice to the wrong address and the
taxpayer did not receive the notice and was therefore denied the opportunity to
appeal); Western Pennsylvania Water Company v. Board of Property Assessment,
Appeals and Review, 555 A.2d 1357 (Pa. Cmwlth. 1989) (granting appeal nunc pro
tunc where the Board failed to strike tax liens that were ruled null and void by the
court); Moore v. Pennsylvania, Board of Probation and Parole, 503 A.2d 1099
(Pa. Cmwlth. 1986) (finding that the misdirection of a recommitment decision
amounted to negligence because inmate did not receive the Board's decision);
Flynn v. Unemployment Compensation Board of Review, 159 A.2d 579, 581 (Pa.
Super. 1960) (granting appeal nunc pro tunc where an innocent party was misled
by an official). Thus, a breakdown in the court’s operations occurs when an


                                         9
administrative board or body acts negligently or improperly, or when its actions
mislead an innocent party. Id.


             Here, Marchwood failed to show extraordinary circumstances
involving fraud or a breakdown in the court’s operations through an officer’s
negligent or improper acts. Further, Marchwood’s attorney is not an innocent
party who was misled. Rather, he merely made an inaccurate assumption. Thus,
Marchwood has failed to prove that nunc pro tunc relief is warranted.


             Accordingly, we must quash Marchwood’s appeal from the trial
court’s June 1, 2016 orders, and affirm the trial court’s orders of August 9, 2016.




                                       __________________________________
                                       JULIA K. HEARTHWAY, Judge




                                         10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Downingtown Area School District     :
                                     :
            v.                       : No. 1461 C.D. 2016
                                     : No. 1462 C.D. 2016
Chester County Board                 :
of Assessment Appeals                :
                                     :
Appeal of: Marchwood Associates      :


                                   ORDER


            AND NOW, this 7th day of July, 2017, we hereby quash Marchwood
Associates appeal of the June 1, 2016 orders, and affirm the August 9, 2016 orders
of the Chester County Court of Common Pleas in the above-captioned matter.



                                     __________________________________
                                     JULIA K. HEARTHWAY, Judge
