           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Petition of the Tax Claim        :
Bureau of Westmoreland County, PA, :
to Sell Free and Clear the Property of: :
New Creations Family Worship            :
Center                                  :
                                        :
Appeal of: New Creations Family         : No. 316 C.D. 2015
Worship Center                          : Argued: November 15, 2016


BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                              FILED: December 6, 2016


             New Creations Family Worship Center (New Creations) appeals from
the order of the Court of Common Pleas of Westmoreland County (trial court)
denying its petition for judicial determination of tax exempt status for tax years 2009
through 2011 for lack of subject matter jurisdiction. We affirm.


                                          I.
             The property located at 325 Oakland Avenue, Greensburg, Pennsylvania
(Property) was conveyed by deed dated June 10, 2008, from United Pentecostal
Church of Greensburg (United Pentecostal), now known as New Life Tabernacle of
Greensburg, to New Creations. Both United Pentecostal and New Creations are non-
profit corporations. At the time of the transfer, United Pentecostal was exempt from
paying property taxes. The deed was recorded on August 14, 2008, and listed the
residence of the grantee as 1103 Wingate Drive, Pittsburgh, Pennsylvania, which at
that time was the home address of New Creations’ pastor, Derrick Johnson (Pastor).
Also recorded at the time was a realty transfer tax statement of value (statement of
value) with the grantee listed as the Church of Gbg. New Generations Community
and a street address of 323 Oakland Avenue, Greensburg, Pennsylvania.                    The
exemption data section of the statement of value listed the amount of exemption
claimed as 100% and the claimed exemption was listed as “except per § 91.193(17)
between churches.”1 (Reproduced Record (R.R.) at 11a.)


                In June 2011, New Creations filed an exemption application with the
Westmoreland County Tax Assessment Office (TAO). This was the first exemption
application filed for the Property since the sale in June 2008. Following a hearing on
September 28, 2011, the Board of Assessment Appeals (Board) granted the real estate
tax exemption pursuant to Section 204(a)(1) of the General County Assessment Law2
which provides an exemption of real estate taxes for “[a]ll churches, meeting-houses,
or other actual places of regularly stated religious worship, with the ground thereto
annexed necessary for the occupancy and enjoyment of the same. . . .” Accordingly,


       1
         The mortgage dated June 10, 2008, and recorded on August 14, 2008, stated that it was
from New Creations Family Worship Center, a non-profit corporation with its principal office
located at 323 Oakland Avenue, Greensburg, Pennsylvania, to New Life Tabernacle of Greensburg,
Pennsylvania, a non-profit corporation with its principal office located at P.O. Box 156, New
Stanton, Pennsylvania, in the amount of $155,400.00.

       2
           Act of May 22, 1933, P.L. 853, as amended, 72 P.S. § 5020-204(a)(1).




                                                  2
the Board held that the Property was “exempt from real property taxation . . .
commencing with the tax year 2012.” (R.R. at 225a.) New Creations admittedly
failed to file an appeal from that decision, including any appeal as to the lack of a
retroactive tax exemption for years 2009 through 2011.


                                            II.
             It is undisputed that New Creations did not pay taxes on the Property for
the years 2009 through 2011. On April 12, 2013, the Westmoreland County Tax
Claim Bureau (Bureau) filed a petition for judicial sale alleging that the taxes owed
on the Property for tax years 2009 through 2011 amounted to $31,618.14. The
Bureau also alleged that the Property was owned by New Creations, with a last
known mailing address of 1103 Wingate Drive, Pittsburgh.              The Property was
exposed to public sale at the annual upset sale, but a bid sufficient to pay the upset
price was not received. Therefore, the Property was not sold and the Bureau filed a
petition in the trial court for judicial sale of the Property. The trial court then entered
an order granting a rule to show cause why the Property should not be sold free and
clear at a judicial sale. On August 30, 2013, New Creations filed a petition for stay of
the judicial sale and leave to answer the rule to show cause, nunc pro tunc. The trial
court granted a stay of the judicial sale until a determination was made regarding the
claimed exemption for tax years 2009 through 2011. Thereafter, New Creations filed
a petition for judicial determination of tax exempt status of the church for tax years
2009-2011 (Petition).


             At a hearing on New Creations’ Petition, Pastor testified that from 2008
until 2011, he did not receive any notices or applications from the TAO to obtain tax



                                            3
exempt status nor did he receive any tax bills at his home. Pastor stated that he never
received notice of the tax attachment until he was contacted by a fellow pastor in
2011 who indicated that the Property was listed for tax sale in the local newspaper.
At that point, another individual from New Creations filed an application for tax
exemption. Pastor testified that prior to this filing he did not know the requirements
or procedures necessary to apply to the TAO to “regain” tax exempt status for the
Property.


            Denyel O’Brien, Assessment Systems Coordinator for the TAO, testified
that once a deed transfer occurs and is processed by the TAO, any exemptions on the
property are automatically removed, regardless of whether the transferring parties are
exempt. A notice is then automatically generated and sent to the record owner of the
property indicating that the property was transferred from exempt to taxable.
O’Brien testified that the deed transfer of the Property was processed on November
12, 2008, and that five days later a notice was sent to 1103 Wingate Drive indicating
that the Property was no longer tax exempt.


            In a decision and order dated January 28, 2015, the trial court denied
New Creations’ Petition for lack of subject matter jurisdiction.        Regardless of
whether New Creations received notices or applications from the TAO that the status
of the Property had changed from exempt to taxable, it is undisputed that New
Creations did receive notice of the Board’s decision concluding that the Property was
exempt from taxation commencing with tax year 2012. It is also undisputed that New
Creations failed to file an appeal to the trial court from this decision of the Board.
Specifically, New Creations never appealed the Board’s failure to grant it retroactive



                                          4
tax exempt status for tax years 2009-2011. Citing to Catholic Institute of Pittsburgh
v. Board of Property Assessment Appeals and Review, 423 A.2d 1114 (Pa. Cmwlth.
1980), City of Pittsburgh v. Board of Property Assessment Appeals and Review, 412
A.2d 655 (Pa. Cmwlth. 1980), and In re Petition of Mausoleum Construction
Company, 423 A.2d 809 (Pa. Cmwlth. 1980), the trial court held that it lacked
jurisdiction because New Creations failed to timely appeal the Board’s decision. This
appeal followed.3


                                               III.
              Essentially, New Creations argues that the trial court erred in
determining that it lacked subject matter jurisdiction over the Petition due to New
Creations’ failure to file a timely appeal of the Board’s decision. However, this
argument is without merit and the issue is well-established, as noted by the trial court.


              In City of Pittsburgh, the County of Allegheny purchased two square
blocks of land in downtown Pittsburgh in April 1970. The property was placed in the
taxable category in 1971 but the County did not challenge this categorization or file a
request for exemption until 1975 when the property was set for sale due to
nonpayment of taxes. The board granted the exemption and exonerated all taxes
previously assessed against the property.             The trial court reversed, finding the
property was properly subject to taxation. This Court held that because the County’s
request for exemption was not filed until 1975, it was timely only as to taxes for 1976

       3
         Our scope of review is limited to determining whether the trial court abused its discretion
or committed an error of law. In re Appeal of Borough of Riegelsville from the Bucks County Board
of Assessment and Revision of Taxes, 979 A.2d 399, 402 (Pa. Cmwlth. 2009).




                                                 5
and thereafter.   We noted that “[t]he law is clear that exempt status must be
affirmatively requested by the property owner, and is equally clear that the board is
without power to grant exemption from assessments not timely appealed.” 412 A.2d
at 658 (citation omitted).


             Similarly, in Petition of Mausoleum Construction Company, in March
1976, the taxpayer filed a petition to strike tax liens on its property for the years 1946
through 1973. The trial court concluded that the property was entitled to exemption
and ordered the liens stricken. We reversed, reasoning as follows:

             According to City of Philadelphia v. Dougherty, [] 34 A.2d
             [918, 920 (Pa. Super. 1943)], ‘(i)f no appeal is taken from
             the assessment of taxes within the time allowed by law it
             becomes binding and conclusive . . . neither the common
             pleas nor an appellate court can afford any relief.’ This
             holding constitutes a limitation of subject matter
             jurisdiction. ‘(T)he timeliness of an appeal goes to the
             jurisdiction of the body appealed to and its competency to
             act.’ Coshey v. Beal, [] 366 A.2d 1295, 1297 ([Pa.
             Cmwlth.] 1976). See also Department of Transportation,
             Bureau of Traffic Safety v. Bower, [] 410 A.2d 91, 92 ([Pa.
             Cmwlth.] 1980).

             . . . [W]hen exemptions have not been timely sought
             through statutory appeals, the courts have no jurisdiction to
             reach back over a period of years, as here, to resurrect the
             question. That consequence is salutary because the revenue
             base of taxing bodies should not be left open indefinitely to
             a retrospective exemption claim made in a lien proceeding
             filed, as here, decades later than some of the tax years
             involved.


423 A.2d at 811-12.



                                            6
               Finally, the case of Catholic Institute of Pittsburgh has facts almost
identical to those presented here. There, the taxpayer owned the property since 1975
but did not file an application for exemption until June 1977. The board granted the
exemption for 1978 but refused it for tax years 1976 and 1977, and the taxpayer did
not appeal. Rather, in 1978, the taxpayer brought an action in the trial court in equity
to stay the sale of the property and enjoin collection of the taxes for years 1976 and
1977. This Court reversed the trial court’s grant of taxpayer’s motions, stating that
“property owners can be granted exemptions from taxation only on and from the
timely filing of an affirmative application for exemption.” 423 A.2d at 1114 (citing
City of Pittsburgh).


               It is undisputed that New Creations did not file an application for tax
exemption for the Property until June 2011. It is also undisputed that New Creations
failed to appeal from the Board’s decision granting the exemption for tax year 2012
and thereafter. This failure to timely appeal the Board’s decision is fatal to New
Creations’ claim. New Creations cannot raise the issue of an exemption for prior tax
years via this equity action. Moreover, New Creations has failed to provide any
explanation as to why its Petition regarding tax years 2009 through 2011 should be
considered nunc pro tunc, beyond the unavailing claim that Pastor was ignorant of the
required procedures. For these reasons, we discern no error in the trial court’s
determination that it lacked subject matter jurisdiction over the Petition.4

       4
          New Creations also argues in its brief to this Court that there was a de facto exemption
beginning on the first day it used the Property for worship services; that the trial court retains
jurisdiction over the tax exemption issue because it still has authority over the judicial sale of the
Property; that the TAO failed to provide New Creations with adequate notice that the Property’s
status had been changed from exempt to taxable; and raises uniformity and equal protection issues.
Because of the manner in which we resolve this matter, we do not reach these issues. Moreover, we
(Footnote continued on next page…)

                                                  7
              Accordingly, the order of the trial court is affirmed.



                                                   ____________________________
                                                   DAN PELLEGRINI, Senior Judge




(continued…)

note that the majority of these issues have been waived as they were not raised in New Creations’
Petition.



                                               8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Petition of the Tax Claim        :
Bureau of Westmoreland County, PA, :
to Sell Free and Clear the Property of: :
New Creations Family Worship            :
Center                                  :
                                        :
Appeal of: New Creations Family         :
Worship Center                          : No. 316 C.D. 2015




                                   ORDER


             AND NOW, this 6th day of December, 2016, the order of the Court of
Common Pleas of Westmoreland County in the above-captioned matter is hereby
affirmed.



                                            ____________________________
                                            DAN PELLEGRINI, Senior Judge
