           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nathan Lerner,                                 :
                             Appellant         :
                                               :
                     v.                        :   No. 1943 C.D. 2014
                                               :   SUBMITTED: October 16, 2015
Philadelphia Tax Review Board                  :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                   FILED: January 8, 2016


              Appellant, Nathan Lerner, proceeding pro se, appeals from the order
of the Court of Common Pleas of Philadelphia County, granting the City of
Philadelphia’s motion pursuant to Pennsylvania Rule of Civil Procedure 233.1, Pa.
R.C.P. No. 233.1,1 to dismiss his appeal from the decision of the Philadelphia Tax

    1
      Rule of Civil Procedure 233.1 provides, in relevant part:
              (a) Upon the commencement of any action filed by a pro se
              plaintiff in the court of common pleas, a defendant may file a
              motion to dismiss the action on the basis that
                 (1) the pro se plaintiff is alleging the same or related claims
                 which the pro se plaintiff raised in a prior action against the
                 same or related defendants, and
                 (2) these claims have already been resolved pursuant to a
                 written settlement agreement or a court proceeding.
                 *`*`*`*
(Footnote continued on next page…)
Review Board (the Board), which rejected as duplicative his petition for appeal
from a tax assessment. We affirm.
             On September 25, 2009, the City filed a collection action in common
pleas against Lerner, seeking to collect unpaid Business Income and Receipts Tax
(BIRT) assessments for the years 2000-2006 and Net Profits Tax (NPT)
assessments for the years 2000-2006. On June 26, 2013, after a bench trial,
common pleas entered judgment in favor of the City in the amount of $280,772.67
for taxes, interest, and penalties, and $33,600 in fines. Lerner appealed to this
court, which affirmed.2 City of Phila. v. Lerner (Pa. Cmwlth. No. 1347 C.D. 2013,
filed Dec. 11, 2014).
             On November 12, 2010, while the collection action was pending in
common pleas, Lerner filed a petition for appeal with the Board requesting review
of the BIRT and NPT assessments for the years 2000-2006. After a hearing, the
Board denied the appeal determining it lacked jurisdiction because the taxes at
issue were the subject of the collection action. Lerner appealed to common pleas,

_____________________________
(continued…)
                (c) Upon granting the motion and dismissing the action, the court
                may bar the pro se plaintiff from pursuing additional pro se
                litigation against the same or related defendants raising the same or
                related claims without leave of court.
     2
        Lerner appealed to the Pennsylvania Supreme Court, which granted allocatur on the
question:
                Whether the Commonwealth Court properly decided that it was
                constrained by its own decision in Krug v. City of Philadelphia,
                620 A.2d 46 (Pa. Cmwlth. 1993), to sustain a judgment for a tax
                assessment where the Common Pleas Court found that there was
                no rational basis for the amount allegedly owed by the petitioner
                and the Commonwealth Court stated that the City’s tactics may
                well lack authority in law.
City of Phila. v. Lerner (Pa. 26 EAP 2015, filed June 25, 2015).



                                           2
which directed him to obtain a copy of the hearing transcript from the Board
proceedings. In September 2012, after learning that Lerner had so far failed to
obtain the transcript, common pleas entered an order mandating that he purchase a
copy of transcript within 20 days. Thereafter, because Lerner had failed to obtain a
copy of the transcript, the City moved to quash his appeal for failure to prosecute.
Common pleas granted the motion and quashed the appeal on January 28, 2013.
Lerner appealed to the Commonwealth Court, which affirmed.
             On July 23, 2012, while the appeal from the first petition was pending
before common pleas, Lerner attempted to file a second petition for appeal with the
Board regarding the BIRT and NPT assessments that were the subject of his first
petition. The Board rejected the second petition for appeal. Lerner did not file an
appeal in common pleas.
             On August 26, 2013, Lerner filed a third petition for appeal with the
Board seeking review of the assessment of the NPT for the tax years 2002-2005.
The Board rejected the third petition for appeal and Lerner appealed to common
pleas. Before common pleas, the City moved pursuant to Rule 233.1 to dismiss
Lerner’s appeal. Common pleas granted the City’s motion and dismissed the
appeal from the third petition for appeal.
             On September 23, 2013, Lerner filed a fourth petition for appeal with
the Board seeking review of the NPT assessment for the tax years 2002-2005. The
Board rejected the fourth petition for appeal on the basis that it had already
reviewed and adjudicated the assessments. Lerner again filed an appeal with
common pleas.
             The City again filed a motion pursuant to Rule 233.1 to dismiss
Lerner’s appeal from the Board’s rejection of his fourth petition for appeal. The



                                             3
City asserted that the assessment of tax liabilities for 2002-2005 had been resolved
by common pleas during Lerner’s appeals from his first and third petitions for
appeal. Lerner opposed the motion arguing that the tax assessment was invalid
because he had not received an original notice of assessment, the Board misapplied
res judicata as a basis for rejecting his fourth petition for appeal because the
Board’s decision on his first petition for appeal applied only to the tax year 2000,
the certified record of the Board’s proceedings was incomplete, and subsequent tax
bills constituted new evidence that provided an exception to res judicata.
Common pleas granted the City’s motion to dismiss, (1) ordering that Lerner’s
appeal was dismissed with prejudice, (2) barring him from instituting additional
litigation against the Board, the City, or any related defendants arising from the
same or related claims without leave of court, and (3) barring him from filing any
additional petitions with the Board arising from the same or related claims without
leave of court.
             Lerner filed a notice of appeal with the Commonwealth Court. On
January 5, 2015, common pleas filed an opinion pursuant Pennsylvania Rule of
Appellate Procedure 1925(a), Pa. R.A.P. 1925(a).       Common pleas found that
Lerner had filed four successive petitions for appeal against the City before the
Board challenging the NPT assessments for the tax years 2002-2005, all of which
had been adjudicated to a conclusion. Common pleas concluded that these
circumstances satisfied the prerequisites of Rule 233.1 and, accordingly, dismissal
of his appeal was proper.
             Lerner argues that common pleas should have allowed him to
establish a record that the Board, rather than common pleas, had jurisdiction to
determine whether the tax bill sent to him by the City in August 2013 had been



                                         4
preceded by a requisite tax assessment notice and whether this tax billing was
defective and legally invalid. Lerner also asserts that the Board exceeded its
ministerial authority, misapplied res judicata, and wrongfully prevented him from
making a record in support of his petition for appeal. Finally, he maintains that
common pleas erred in dismissing his appeal and barring him from exhausting his
administrative remedies and making a record before the Board of the new issues
raised by the delinquent tax bill he received in October 2013.
             After careful review of the record, the briefs of the parties and the
relevant law, this Court finds that the relevant issues in this matter are accurately
and sufficiently addressed in the opinion of the Honorable Nina Wright Padilla,
Judge of the Court of Common Pleas of Philadelphia County, filed January 5,
2015, in Lerner v. Tax Review Board, Civil Division, November Term 2013, No.
0005. Accordingly, this Court affirms common pleas’ order on the basis of that
opinion.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                         5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nathan Lerner,                        :
                       Appellant      :
                                      :
                 v.                   :     No. 1943 C.D. 2014
                                      :
Philadelphia Tax Review Board         :


                                   ORDER


           AND NOW, this 8th day of January, 2016, the order of the Court of
Common Pleas of Philadelphia County is hereby AFFIRMED.




                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Judge
