          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nadine L. Freeman-Bennett,                       :
                      Appellant                  :
                                                 :
               v.                                :   No. 715 C.D. 2018
                                                 :   Argued: April 11, 2019
York County Board of Assessment                  :
Appeals                                          :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION BY JUDGE BROBSON                             FILED: May 17, 2019


               Nadine L. Freeman-Bennett (Appellant) appeals from an order of the
Court of Common Pleas of York County (common pleas), granting summary
judgment in favor of the York County Board of Assessment Appeals (Board) after
Appellant appealed the Board’s denial of real property tax exemption under
Section 8902 of the Military and Veterans Code (Act), 51 Pa. C.S. § 8902.1 For the
reasons set forth below, we will affirm the order of common pleas.
      1
          Section 8902(a) of the Act provides:
              Any resident of this Commonwealth shall be exempt from the payment of
      all real estate taxes levied upon any building, including the land upon which it
      stands, occupied by that person as a principal dwelling, if all of the following
      requirements are met:
                       (1) That person has been honorably discharged or released under
               honorable circumstances from the armed forces of the United States for
               service in any war or armed conflict in which this nation was engaged.
                      (2) As a result of such military service, that person is blind or
               paraplegic or has sustained the loss of two or more limbs, or has a
             Appellant, a disabled veteran of the United States Navy, owns the real
property at 965 Sequoia Street in Manchester Township, York County (property).
Appellant filed a tax assessment appeal with the Board, seeking a tax exemption for
the property pursuant to the Act. (Reproduced Record (R.R.) at 5a.) Section 8902(a)
of the Act requires that a disabled veteran’s real property be exempt from real estate
taxation once the veteran meets certain requirements. The Board mailed Appellant
an “Appeal Decision Notification,” stating that the property would remain assessed
at 100% of its market value, thereby implying that the Board did not grant the tax
exemption. (R.R. at 3a.) Appellant then appealed the Board’s decision to common
pleas, arguing that she had met all of the requirements necessary to entitle her to the
tax exemption. (Id. at 1a-2a.)
             During discovery, Appellant produced two letters from the
Pennsylvania Department of Military and Veterans Affairs (Department)—one
addressed to Appellant (dated November 11, 2014) and the other addressed to
Appellant’s Congressman (dated February 10, 2015).                  In the first letter, the
Department wrote on behalf of the Pennsylvania State Veterans’ Commission
(Commission) to advise Appellant that she did not meet the requirement for tax
exemption set forth in Section 8902(a)(1) of the Act, because her military service
did not occur during “any war or armed conflict.” (R.R. at 14a.) The Department
did not address in the letter whether Appellant had met any of the other requirements

             service-connected disability declared by the United States Veterans’
             Administration or its successors to be a total or 100% permanent disability.
                    (3) The dwelling is owned by that person solely, with his or her
             spouse or as an estate by the entireties.
                     4) The need for the exemption from the payment of real estate taxes
             has been determined by the State Veterans’ Commission in compliance with
             the requirements of this chapter.

                                              2
for the exemption.          Moreover, the Department described the letter as a
recommendation to the Board that Appellant did not qualify for the tax exemption.
(Id.) The Department, in its letter to Appellant’s Congressman, responded to an
inquiry from the Congressman regarding Appellant’s eligibility for the tax
exemption.       Through the letter, the Department explained its position on
Section 8902(a)(1). (R.R. at 15a-16a.) Like the earlier letter, the February 10 letter
did not address any of the requirements for the tax exemption other than that
contained in Section 8902(a)(1).2
               Following discovery, the Board moved for summary judgment, arguing
that no genuine issue of material fact exists with respect to Appellant’s failure to
satisfy Sections 8902(a)(1) and (4) of the Act.3 Specifically, the Board argued that
(1) the Commission’s conclusion that Appellant did not serve during “any war or
armed conflict” is final and binding on the Board, and (2) Appellant failed to present
any evidence that the Commission had made a determination of her financial need.
(R.R. at 10a-11a, 24a-27a.)
               Appellant then filed a brief in opposition to the Board’s motion for
summary judgment, together with an affidavit. She argued that her service as a
reservist occurred during a period of armed conflict and was legally equivalent to
active duty service, thus creating a factual dispute about whether her service satisfied
the requirement in Section 8902(a)(1) of the Act. Appellant also argued that she


       2
            The General Assembly established the Commission as part of the Department.
51 Pa. C.S. § 1702(a). Both letters are on Department letterhead. The Department indicated in
the first letter that it was writing on the Commission’s behalf. The Department did not make any
indication in the second letter as to whether it sent that letter on the Commission’s behalf.
       3
         The Board did not address below and does not now dispute whether Appellant satisfied
the requirements in Sections 8902(a)(2) (relating to extent of disability) and 8902(a)(3) (relating
to ownership of dwelling).

                                                3
satisfied the requirement in Section 8902(a)(4) of the Act because, under
Section 8904 of the Act, 51 Pa. C.S. § 8904, the Commission must presume that she
has a financial need for the exemption based on her averred income and the Board
offered no evidence to rebut that presumption of need.
             Following those arguments, common pleas granted the Board’s motion
for summary judgment. In its supporting opinion, common pleas first concluded
that a genuine issue of material fact exists with respect to whether Appellant satisfied
Section 8902(a)(1) of the Act, observing that the single authority interpreting that
portion of the Act, Vanderhoef v. Office of Susquehanna Board of Assessment,
960 A.2d 212 (Pa. Cmwlth. 2008), forecloses neither of the parties’ arguments as to
whether her service met the requirements for an exemption. Despite that issue of
fact, common pleas reasoned that summary judgment was proper because no genuine
dispute of fact exists with respect to Appellant’s failure to satisfy Section 8902(a)(4)
of the Act, relating to financial need. Common pleas based this latter conclusion on
this Court’s statement in Vanderhoef that “it is the duty of the Commission, not the
taxing authority, to determine the financial need for the tax exemption.”
See Vanderhoef, 960 A.2d at 215. Common pleas observed that the language of the
Act is clear—the need for the exemption must be determined by the Commission,
not by common pleas independently. Because Appellant had merely provided
evidence of a legal presumption, rather than evidence of an actual determination by
the Commission, common pleas concluded that Appellant had not shown a dispute
of fact with respect to the Section 8902(a)(4) issue. Common pleas granted summary
judgment solely because of Appellant’s failure to prove that the Commission had
made a need determination in her favor.




                                           4
               On appeal to this Court,4 Appellant raises only one issue—i.e., whether
common pleas erred in concluding that she failed to prove need for the exemption
as required by Section 8902(a)(4) of the Act. Under Section 8902(a)(4), the
applicant for the exemption must meet the following requirement:
                     (4) The need for the exemption from the payment of
               real estate taxes has been determined by the State
               Veterans’ Commission in compliance with the
               requirements of this chapter.

Sections 8903 and 8904 of the Act, 51 Pa. C.S. §§ 8903-04, are also relevant to our
analysis. Section 8903 of the Act provides, in relevant part:
                   When the conditions specified in [S]ection 8902
            (relating to exemption) are determined to exist by the
            board for the assessment and revision of taxes, or by a
            similar board for the assessment of taxes, and upon the
            receipt by that board of a certification of need for the tax
            exemption from the [C]ommission, the board shall grant
            the tax exemption prescribed by [S]ection 8902. . . .
Section 8904 of the Act provides, in relevant part:
            The [C]ommission shall:
                          (1) Fix uniform and equitable standards for
                   determining the need for exemption from the
                   payment of real estate taxes granted by this act. In
                   fixing such uniform and equitable standards, the
                   [C]ommission shall apply a rebuttable presumption
                   that an applicant with annual income of $75,000 or
                   less has a need for the exemption. Beginning on
                   January 1, 2009, and every two years thereafter, the
                   [C]ommission shall adjust the annual income level

       4
          “The scope of this Court’s review of a grant . . . of summary judgment is limited to
determining whether the trial court committed an error of law or an abuse of discretion.” Kaplan v.
Se. Pa. Transp. Auth., 688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997). “Summary judgment is properly
granted ‘whenever there is no genuine issue of material fact as to a necessary element of the cause
of action.’” Laich v. Bracey, 776 A.2d 1022, 1024 (Pa. Cmwlth. 2001) (quoting Pa. R.C.P. No.
1035.2(1)). Furthermore, we must review the record in the light most favorable to the non-moving
party. Id.

                                                5
                    qualifying for the rebuttable presumption of need by
                    an amount equal to the change in the Consumer
                    Price Index in the preceding two years. The
                    [C]ommission shall publish the adjusted annual
                    income level qualifying for the rebuttable
                    presumption of need as a notice in the Pennsylvania
                    Bulletin.
                           (2) After submission of proof of need by the
                    applicant for the exemption from payment of real
                    estate taxes, determine the need of the applicant.
                           ....
                           (4) Certify the name and address and the need
                    for exemption from payment of real estate taxes . . .
                    to the board for the assessment and revision of
                    taxes, or similar board for the assessment of
                    taxes. . . .

(Emphasis added.)
             Appellant argues that the presumption of need set forth in
Section 8904(1) of the Act is sufficient to establish Appellant’s financial need as
required by Section 8902(a)(4), because Appellant’s averred income qualifies her
for the presumption, and the Board has not presented any evidence to rebut that
presumption. In response, the Board insists that the Commission has made no actual
determination of Appellant’s financial need, as specifically required by the Act, and
that the presumption on which Appellant relies cannot replace such a determination.
The Board, therefore, claims that the presumption alone is not sufficient to
demonstrate compliance with Section 8902(a)(4) and that common pleas properly
granted summary judgment. For the following reasons, we agree.
             Section 8902(a)(4) of the Act requires that “[Appellant’s] need for the
exemption . . . has been determined by the . . . Commission in compliance with the
requirements of this chapter.” (Emphasis added.) Appellant would have us conclude
that the Commission’s determination can occur by the force of presumption, without

                                          6
the action or knowledge of the Commission in a particular case. Specifically,
Appellant argues that, because a need determination under Section 8902(a)(4) of the
Act must be made “in compliance with the requirements of this chapter,” a
presumption required by Section 8904(1) (which is part of the same chapter of the
Act) constitutes a “determin[ation] by the Commission” once an applicant shows
that her income entitles her to the presumption (as Appellant did in her affidavit).
That interpretation is inconsistent with this Court’s decision in Vanderhoef and with
the structure of the Act and associated regulations.
             In Vanderhoef, we addressed an attempt by a county assessment board
to restrict the scope of the tax exemption. The board had implemented a “one house,
one acre” policy and had granted the taxpayer the benefit of the exemption for only
one of his two-plus acres. We reversed that decision, concluding that once the
Commission makes a need determination, local boards are not permitted to reduce
the number of acres exempt from taxation. Of greatest relevance to the instant case,
we held:
                    Here, it is not entirely clear from the record if the
             Commission made the requisite determination of “need.”
             If the Commission, in fact, determined that Vanderhoef
             was in need of an exemption from the payment of real
             estate taxes then it was incumbent on the [board] to grant
             the exemption from the payment of real estate taxes,
             without exception. If the Commission had not yet
             determined Vanderhoef’s need because, for example,
             Vanderhoef never filed the requisite application, then the
             [b]oard erroneously usurped the role of the Commission
             [when it granted the exemption].

Vanderhoef, 960 A.2d at 215.        Appellant’s view of the need determination
requirement is inconsistent with our holding in Vanderhoef, because neither the
Board nor common pleas has the statutory authority to make its own determination


                                          7
of an applicant’s financial need. Appellant’s theory would see the Board “usurp[]
the role of the Commission” by (1) applying a presumption that the Commission
must apply, and (2) making a determination that the Act reserves to the Commission.
See id. Rather, as we explained, “[t]he determination of the financial need for the
exemption is made by the Commission upon application by the disabled veteran.” Id.
at 214 (emphasis in original).
             The structure of the Act confirms that there must be an actual
determination by the Commission before the Board may grant the exemption. After
establishing the four requirements in Section 8902(a) of the Act, the General
Assembly created specific procedures for determining need and granting the
exemption. First, the Commission is to make a determination of need. If the
Commission determines a need exists, whether by unrebutted presumption or
otherwise, Section 8904(4) of the Act requires the Commission to “[c]ertify the
name and address and the need for exemption” to the tax assessment board. Finally,
“[w]hen the conditions specified in [S]ection 8902 . . . are determined to exist by the
board . . . , and upon the receipt . . . of a certification of need for the tax exemption
from the Commission, the board shall grant the tax exemption.” 51 Pa. C.S. § 8903.
That is, the Commission determines need and certifies that determination to the
Board; the Board may only then grant the exemption.
             The Department’s regulations mirror this statutory framework and
further support our conclusion here. Applicants for the exemption must submit two
applications—the Department’s Form MA-VA 41 directly to the local taxing
authority and Form MA-VA 40 to the Commission. 43 Pa. Code § 5.24(b)-(c). This
bifurcated application process complements the structure of the Act by allowing the
Commission to make and communicate a need determination independent of the


                                           8
Board’s action on an application. The regulations also explain the factors the
Commission will consider in making a need determination and then explain that
local boards will grant the exception “when eligibility criteria have been verified and
the certification of need for tax exemption has been approved by the Commission.”
Id. § 5.24(d)-(e). Thus, it is clear from both the Act and its regulations that the
Commission is to make an independent need determination following application by
a veteran, and then the Board is to grant the exemption upon receipt of that
determination and confirmation that the applicant has satisfied the other criteria in
Section 8902(a) of the Act.
              In the instant case, it appears undisputed that the Commission has made
no determination at all with respect to Appellant’s need for the exemption. The only
record evidence of action by the Commission consists of the two letters the
Commission sent addressing whether Appellant’s military service met the
requirement in Section 8902(a)(1) of the Act. Those letters did not mention any
considerations of financial need or Section 8902(a)(4) of the Act. Neither letter
purports to represent formal action by the Commission. Appellant’s averment of her
income and reliance on the statutory presumption do not constitute an actual
determination of need by the Commission.5
              In summary, instead of demonstrating that the Commission had
actually made a determination of need, as the Act requires, Appellant invoked a legal
presumption that the Commission likely would have applied in her favor as part of
the process of making the necessary determination. The presumption cannot show

       5
         Appellant does not claim that a formal determination is now pending before the
Commission or otherwise forthcoming; she does not claim that the Board denied her request
prematurely, before receiving a determination; and she did not seek to compel the Commission to
make a determination or attempt to stay her appeal to common pleas while she obtained a
determination.

                                              9
what the Act requires: that a determination “has been [made]” by the Commission.
Common pleas, therefore, did not err in granting summary judgment given the
absence of a determination of need by the Commission, because Appellant did not
satisfy the requirement of Section 8902(a)(4) of the Act.
             Accordingly, we will affirm common pleas’ order.




                                         P. KEVIN BROBSON, Judge




                                         10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nadine L. Freeman-Bennett,          :
                      Appellant     :
                                    :
           v.                       :   No. 715 C.D. 2018
                                    :
York County Board of Assessment     :
Appeals                             :



                                  ORDER


           AND NOW, this 17th day of May, 2019, the order of the Court of
Common Pleas of York County is AFFIRMED.




                                    P. KEVIN BROBSON, Judge
