         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richland Properties, Inc.,            :
                  Appellant           :
                                      :
            v.                        : No. 854 C.D. 2017
                                      : Argued: May 8, 2018
North Allegheny School District,      :
McCandless Township, and              :
The County of Allegheny               :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ELLEN CEISLER, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                  FILED: July 17, 2018


            Richland Properties, Inc. (Richland) appeals from the Court of
Common Pleas of Allegheny County’s (trial court) order denying Richland’s right
to file, nunc pro tunc, a property tax assessment appeal for the 2016 tax year
challenging the assessment for a property it purchased under the mistaken belief
that it was tax exempt. For the following reasons, we affirm.


            On October 11, 2016, Richland closed on the purchase of a property
located at 9700 McKnight Road, Wexford, Pennsylvania, 15090, and designated as
Block and Lot No. 945-E-21 (hereinafter, Property), for $550,000.      Richland
purchased the Property at a public auction from Rave Pittsburgh North, L.L.C.
(Seller) who operated movie theaters on the Property.


             The Property that Richland purchased was part of a lot that Seller had
divided into two parcels. Approximately a year earlier on September 28, 2015,
Seller sold one of the parcels to the Port Authority of Allegheny County (Port
Authority) for use as a park and ride lot. Because the Port Authority is exempt
from real estate taxes, the Office of Property Assessment of Allegheny County
assessed the Port Authority’s parcel as tax exempt for the 2016 tax year.


             However, apparently because it was part of the original lot, the
Property was also classified as “exempt from realty tax” to be paid based on its
$4,000,000 assessed value. (Reproduced Record (R.R.) at 24a.) The County of
Allegheny (County) then informed Seller that the entire parcel was exempt from
property tax and that Seller was entitled to a refund for the taxes already paid. On
August 9, 2016, Seller received a $16,353.63 refund check from the County.


             When Richland attempted to close on the Property, the title company
required that $25,000 be held in escrow until it could procure:

             Proof that the Allegheny County [A]ssessment Office has
             corrected the property assessment to show that the
             property owned by Seller and known as Block 945-E Lot
             21 as a [sic] taxable and that the 2016 County Tax for the
             property has been paid in full.




                                         2
(R.R. at 29a.) Nothing in the record indicates whether the Property’s classification
was changed from exempt to taxable or if the taxes had been paid in full. On
October 11, 2016, Richland closed on the Property and a special warranty deed
was recorded.


               On December 5, 2016, Richland filed a Request for a Late Filed
Appeal for the Property with the Board of Property Assessment, Appeals and
Review of Allegheny County (Board) seeking to challenge the status of the
Property as subject to real estate taxes. It claimed that the taxing bodies only
became aware that the Property had erroneously been classified as exempt when
Richland filed its request to “late file” its appeal. The Board denied the request
because it could not “identify an administrative breakdown that justified a nunc
pro tunc appeal in this matter.” (R.R. at 34a.) In its denial letter, the Board
acknowledged that the Office of Property Assessment of Allegheny County
erroneously classified the Property as “exempt,” but the error occurred well after
the March 31, 2016 deadline for appeal of the 2016 tax year.1 The Board noted

       1
         We surmise that the Board was attempting to state that the Property was changed from
taxable to exempt sometime after March 31, 2016, but there is nothing in the record as to
precisely when this change occurred. We admit we are nonplussed because, pursuant to the
common law tax assessment day rule, a property’s taxability is determined on January 1 of each
year, and if property is taxable on the date of assessment, then taxes must be paid for the entire
year, even if the property becomes tax exempt during that year. Appeal of Title Services, Inc.,
252 A.2d 585, 587 (Pa. 1969). Likewise, if property is exempt for day one of the assessment, it
remains exempt the entire year. Id.

       Notwithstanding the tax assessment day rule, it appears that the Board changed the
Property’s classification from taxable to exempt sometime during the 2016 tax year. However,
where the Board makes a mathematical or clerical error, it may change the assessment or move a
property from exempt to taxable and vice versa. See Callas v. Armstrong County Board of
Assessment, 453 A.2d 25 (Pa. Cmwlth. 1982). In this case, it is undisputed that the Property was
(Footnote continued on next page…)

                                                3
that to the extent Richland relied upon the incorrect classification, that reliance was
not reasonable given the patent commercial nature of the subject property.


               Richland appealed to the trial court. In Paragraph 12 of that appeal, it
contended that “[t]he current assessment of $4,000,000 is vastly in excess of the
market value of said property and would have been changed if a timely appeal had
been filed.”     (R.R. at 11a.)       Following oral argument, the trial court denied
Richland’s request for a nunc pro tunc assessment appeal for the 2016 tax year for
the same reason the Board denied the request. This appeal followed.2


               Addressing the issue on the record before us, Richland contends that
the County’s negligence in misclassifying the Property as exempt amounts to
fraud, which would constitute an award of nunc pro tunc relief so that Richland




(continued…)

misclassified as “exempt” due to a clerical error. To correct its clerical error, the Board would
have to issue a new corrected assessment from which the taxpayer could appeal. At oral
argument, the Board stated that sometime in 2016, the Property was changed from exempt back
to taxable, but the Board apparently never notified Richland or anyone else of this change. It
also stated that it managed to issue a stop payment for the $16,353.63 refund check from the
County, and the matter could be settled because the County’s taxes had been paid. Based on that
representation, we issued an order that gave the parties until June 8, 2018, to resolve the matter.
On June 12, 2018, we received a joint status report, notifying the Court that the parties were
unable to reach an agreement.

       2
         Our scope of review is limited to determining whether the trial court committed an error
of law or abused its discretion. Kaminsky v. Montgomery County Board of Assessment, 657 A.2d
1028 (Pa. Cmwlth. 1995).




                                                4
may file its appeal well past the March 31, 2016 deadline.3 It is true that for appeal
purposes, negligence on the part of administrative officials may be deemed to be
the equivalent of fraud. Hanoverian, Inc. v. Lehigh County Board of Assessment,
701 A.2d 288, 289 (Pa. Cmwlth. 1997). However, that negligence must have been
the reason for the delay in filing the appeal in a timely manner. See Branch v.
Workmen’s Compensation Appeal Board, 393 A.2d 55 (Pa. Cmwlth. 1978)
(holding that while the administrative negligence prevented a claimant from
receiving notice of the hearings, it did not prevent her from learning of the
referee’s decisions against her and making a timely appeal therefrom).                         In
situations where the courts have granted nunc pro tunc relief based upon
administrative negligence that has deprived a party of the right to file an appeal,
the circumstances have been such that the would-be appellant reasonably relied on
the government’s error. See Union Electric Corporation v. Board of Property
Assessment, Appeals & Review of Allegheny County, 746 A.2d 581 (Pa. 2000).


               In this case, because Seller owned the Property at all times during the
appeal period, Richland’s claim for nunc pro tunc relief to file its appeal is
dependent on whether Seller was in any way misled from filing an appeal by the
March 31, 2016 deadline. Based upon the record, such as it is, Seller could not
have relied on the misclassification as exempt, or, for that matter, the $4,000,000

       3
          The Allegheny County Administrative Code § 5-210.09(C) sets the deadline for an
interested party to timely file a property assessment appeal with the Board as March 31st of the
year at issue. “When a statute fixes the time within which an appeal may be taken, a court may
not extend that time period or allow an appeal nunc pro tunc absent a showing that extraordinary
circumstances involving fraud or its equivalent, duress, or coercion caused the delay in filing an
appeal.” Hanoverian, Inc. v. Lehigh County Board of Assessment, 701 A.2d 288, 289 (Pa.
Cmwlth. 1997) (citations omitted) (emphasis in original).



                                                5
assessment as the reason for not filing an appeal because Seller paid the tax based
on the $4,000,000 assessment. Seller only became aware that the Property was
listed as exempt when the County refunded the taxes it already paid. Therefore, it
is not feasible that Seller could have reasonably relied upon the misclassification
when it failed to appeal prior to the March 31, 2016 deadline.


             Because Seller did not rely upon the County’s misclassification of the
Property as tax exempt in failing to take a timely appeal, there is no basis to grant
Richland’s appeal nunc pro tunc. Accordingly, for the foregoing reasons, we
affirm.



                                       _________________________________
                                       DAN PELLEGRINI, Senior Judge




                                         6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richland Properties, Inc.,           :
                  Appellant          :
                                     :
            v.                       : No. 854 C.D. 2017
                                     :
North Allegheny School District,     :
McCandless Township, and             :
The County of Allegheny              :




                                   ORDER


            AND NOW, this 17th day of July, 2018, the Court of Common Pleas
of Allegheny County’s order dated March 24, 2017, is affirmed.



                                     _________________________________
                                     DAN PELLEGRINI, Senior Judge
