         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


M. Manor Holding, LP and                 :
Mountain Manor Development               :
Company, LP,                             :
                Appellants               :
                                         :
            v.                           :
                                         :
Monroe County Tax Claim Bureau           :
and the Monroe County Board of           :   No. 1477 C.D. 2017
Assessment Appeals                       :   Argued: June 4, 2018



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: August 15, 2018


            M. Manor Holding, LP (Manor) and Mountain Manor Development
Company, LP appeal from the September 1, 2017 order of the Court of Common
Pleas of Monroe County (trial court) denying their request to remove properties from
the scheduled upset tax sale to enable the companies to take action to correct
property tax assessments and obtain an adjustment on the real estate tax claims. The
trial court concluded that it could not provide the companies with relief because
Manor did not challenge the assessments with the Monroe County Board of
Assessment Appeals (Board) or the tax claims with the Monroe County Tax Claim
Bureau (Bureau), and therefore, the companies failed to exhaust statutory remedies.
We affirm.
               On April 28, 2015, Manor took title to 27 parcels of real property
(Properties) located in Smithfield Township, Monroe County, Pennsylvania.1
Reproduced Record (R.R.) at 15a-23a. After purchase of the Properties, Manor
failed to pay property taxes for the 2015, 2016 and 2017 tax years. Id. at 121a. Due
to the nonpayment of taxes, the Bureau scheduled the Properties for the September
13, 2017 upset tax sale.2 On August 17, 2017, Manor filed an “Expedited Petition
to Remove Properties from the September 13, 2017 Upset Sale and Set Proper
Assessment” (Petition) requesting that the trial court remove the Properties from the
tax sale to enable Manor to “proceed with the appropriate action to correct the
Board’s assessments of the Properties” and to adjust the “real estate tax monies due
for the Properties.”3 Petition ¶ 17. On September 1, 2017, the trial court held a
hearing on the matter.


       1
           As reflected in the caption, Mountain Manor Development Company, LP is also an
appellant in this matter. Mountain Manor Development Company, LP owns title to one parcel
located in Smithfield Township, Monroe County, Pennsylvania. Reproduced Record (R.R.) at
31a-34a. This parcel was exposed to the September 13, 2017 upset tax sale but did not sell for
failure to receive an adequate bid. Id. at 264a. Though still a named party to this matter, after
filing this appeal, Manor represented to this Court that “the main party in interest as an Appellant
to this matter is . . . Manor.” Manor Affidavit, filed 5/24/2018, ¶ 4. At the hearing before the trial
court, the evidence presented related only to the Properties owned by Manor. Therefore, to the
extent the parties raise any issues relating to the parcel owned by Mountain Manor Development
Company, LP, we deem the issues waived.
       2
         Although not clear in the record, it appears that the tax sale resulted from Manor’s failure
to pay 2015 taxes for the Properties. See Section 308(a) of the Real Estate Tax Sale Law, Act of
July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.308(a) (noting that delinquent taxpayer has a
one-year grace period to pay off tax bill from when the taxing bureau provides notice to taxpayer
of entry of tax claim before property is advertised and listed for sale).
       3
          Despite the title of Manor’s Petition before the trial court, Manor did not request that the
trial court change the Properties’ assessments, but only that the Properties be removed from the
                                                  2
               At the hearing, the undisputed evidence showed that in September 2011
the use of the Properties changed from a golf course to a “pasture” but that the 2016
assessment records listed them as a “green” and an “active golf course.” R.R. at 76a,
80a-81a. Further, in 2016 and 2017, Manor removed several buildings from the
Properties, although the Board had no records of their demolition.4 Id. at 91a, 96a-
98a, 101a-02a, 134a, 136a & 149a. Manor received the 2015, 2016 and 2017 tax
bills for the Properties and did not appeal the 2015 or 2016 assessments. Id. at 117a
& 118a. Manor filed assessment appeals challenging the 2017 assessment on two
parcels of the Properties (these appeals are not before us in the case sub judice). Id.
at 118a & 136a-37a.
               At the end of the hearing, the trial court denied the Petition. In so ruling,
the trial court concluded, in pertinent part, that Manor failed to exhaust its statutory
remedies, and consequently, the court could not address Manor’s request to change
the assessments and remove the Properties from the tax sale. After the trial court’s
decision, Manor paid the taxes and the Properties were removed from the tax sale.
Id. at 264a.
               On appeal,5 Manor requests a reversal of the trial court’s decision,
arguing that the trial court erred in its interpretation of the law pertaining to the


tax sale so that Manor could take the necessary steps to challenge the assessments on the
Properties.
       4
         Some of the buildings had been removed by prior owners in addition to the approximately
nine buildings that Manor removed in 2016 and 2017. R.R. at 96a, 102a & 109a.
       5
         This Court’s review on appeal from the decision of a trial court in a tax assessment appeal
is limited to determining whether the trial court abused its discretion, whether it committed an
error of law, or whether its decision is supported by substantial evidence. RAS Dev. Corp. v.
Fayette Cty. Bd. of Assessment Appeals, 704 A.2d 1130, 1133 (Pa. Cmwlth. 1997) (citing
Westinghouse v. Bd. of Assessment, 652 A.2d 1306 (Pa. 1995)).

                                                 3
Board’s duties regarding assessments. Manor’s Brief at 23 & 27. Manor also argues
that notice of the sale was not properly posted on the Properties. Id. at 29-33. The
Bureau and the Board contend that this case is moot because Manor paid the taxes
on the Properties, thereby removing them from the sale and preventing them from
being listed for sale again. Board’s and Bureau’s Brief at 22. The Bureau and the
Board further contend that, even if this case is not moot, the trial court correctly
concluded that Manor failed to exhaust its statutory remedies by failing to appeal the
assessments and the tax claims before the Board and the Bureau, respectively. Id. at
17.
               Initially, we address the Bureau’s and the Board’s mootness argument.
Manor argues that this case is not moot, as it suffered harm by overpaying taxes
because the Properties were incorrectly assessed, and it now seeks an adjustment in
its assessments and corresponding taxes. Manor Affidavit, filed 5/24/2018, ¶¶ 13,
15 & 16. Manor paid the taxes to avoid losing its Properties and now claims it
suffered damages, which this Court can remedy, and which are in a “different form”
from the relief it requested at the inception of this case. Id. ¶¶ 13 & 15. At the
outset, Manor only requested that the Properties be removed from the tax sale for
lack of notice and so it could take appropriate steps to have the Properties
reassessed.6 Petition ¶ 17.
               As a general rule, an actual case or controversy must exist at all stages
of the judicial process or a case will be dismissed as moot. In re Gross, 382 A.2d
116, 119 (Pa. 1978). The cases that present an issue of mootness involve litigants

       6
         Manor asserted that the Bureau did not properly serve Manor with notices of the tax sale
as required by Section 602 of the RETSL, 72 P.S. § 5860.602, because Manor only received 23 of
the 27 notices for the 27 parcels. The trial court rejected this argument, stating that Manor “had
actual notice of the sale, overcoming this deficiency in the notice requirement.” Trial Court
Opinion, 12/6/2017, at 6. On appeal, Manor does not challenge this conclusion.
                                                4
that had standing to sue at the outset of the litigation but, after the lawsuit has gotten
underway, changes in the facts or in the law occur that may deprive the litigant of
the necessary stake in the outcome. Id. If a change in facts or law renders it
impossible for the court to grant relief, then the question is moot. Id. at 120.
             Before the trial court, Manor asserted that the Properties had not been
properly posted for the upset tax sale, per Section 602 of the Real Estate Tax Sale
Law (RETSL), 72 P.S. § 5860.602. In support of this assertion, Manor presented
the testimony of its partner, who testified that he did not see any postings when
visiting the Properties. R.R. at 106a. The Bureau presented testimony regarding the
process for posting the Properties and executed affidavits of posting, which the trial
court admitted into evidence. Id. at 128a, 131a-32a & 196a-249a. Relying on the
affidavits, the trial court concluded that the Bureau met its burden of proving posting
of the Properties. Trial Court Opinion, 12/6/2017, at 6-7. On appeal, Manor claims
that the trial court erred by refusing to accept the testimony that supported its
assertion that the Properties were not posted. Manor’s Brief at 32-33. Manor’s
argument regarding the posting of the Properties for sale is moot, as Manor paid the
taxes and the Properties were not exposed to the sale that Manor sought to avoid.
R.R. at 264a.
             Additionally, Manor’s request that the Properties be removed from the
tax sale due to a failure to properly assess the Properties is technically moot because
the Properties were removed from the sale upon Manor’s payment of the delinquent
taxes. However, in cases where an appeal is technically moot, a court may proceed
to address the merits of a claim “where the conduct complained of is capable of
repetition yet likely to evade review, where the case involves issues important to the
public interest or where a party will suffer some detriment without the court’s


                                            5
decision.” Sierra Club v. Pa. Pub. Util. Comm’n, 702 A.2d 1131, 1134 (Pa. Cmwlth.
1997) (en banc), aff’d, 731 A.2d 133 (Pa. 1999). Manor’s assertion that the Board
failed to abide by its duties relating to property assessments, and by failing to adjust
the Properties’ assessments when the property use changed, is conduct that is likely
to be repeated and could evade judicial review. As is the case here, a party may need
to pay delinquent taxes to avoid an upset tax sale prior to having sufficient time to
have its claim fully litigated. Consequently, Manor’s claim regarding the assessment
procedures falls within an exception to the mootness doctrine, and we will consider
this claim.
               In support of its request for relief to this Court, Manor contends that the
trial court erred because it did not properly interpret Sections 8817 and 8841 of the
Consolidated County Assessment Law (CCAL), 53 Pa. C.S. §§ 8817 and 8841,
which Manor claims imposes a duty on the Board to annually update its records to
ensure “sufficient and proper appraisals.”7 Manor’s Brief at 23 & 27. Manor claims
that had the Board performed its statutory duty, its records would have shown the
changes in the Properties’ use resulting in a substantial reduction in the amount of
taxes owed by Manor. Id. at 20.
               The Board asserts that the trial court appropriately denied Manor’s
Petition because Manor did not file assessment appeals with the Board for the years
2015 and 2016 and did not file exceptions to the tax claims with the Bureau, thereby,

       7
          Section 8817 provides, in relevant part, that “the assessors may change the assessed
valuation on real property when a parcel of land is subdivided into smaller parcels or when
improvements are made to real property or existing improvements are removed from real property
or are destroyed.” 53 Pa. C.S. § 8817. The assessed value is defined as “[t]he assessment placed
on real property by a county assessment office upon which all real estate taxes shall be calculated.”
53 Pa. C.S. § 8802. Section 8841 requires the preparation of the assessment roll by the county
assessment office annually on or before July 1. 53 Pa. C.S. § 8841. It also provides for the form
of the assessment roll, interim revisions to the assessment roll and for public inspections of the
assessment rolls. Id.
                                                 6
failing to exhaust its statutory remedies. Board’s and Bureau’s Brief at 10 & 17.
The Board also contends that the CCAL does not impose a duty to annually update
the assessment records and that imposing such a duty would “equate to a mandatory
annual county-wide reassessment” and run contrary to the intent of the law, which
“relies upon the property owner and not the assessment office to ensure correct
assessment of their property.” Id. at 10. To the extent the CCAL authorizes the
Board to change its assessment records based on the county assessor’s interim
changes to the assessed valuations, the Board argues that the law does not place an
“affirmative duty” on the Board or assessor to “annually inspect each property in the
county to determine whether improvements were removed and revise the assessment
roll accordingly.” Id. at 10, 12-13.
             Here, the trial court concluded that it could not provide Manor with
relief because Manor failed to exhaust its statutory remedies. We agree. The trial
court explained:

              M. Manor had a remedy at law to address its concerns
              about its tax-delinquent property. It could have filed an
              assessment appeal and exceptions to the return of its
              unpaid taxes. It did neither. A court of equity will not
              invoke its jurisdiction where there is an adequate remedy
              at law and statutory remedies, if adequate, must be
              exhausted before equitable jurisdiction may be resorted
              to.
Trial Court Opinion, 12/6/17, at 5.
             The Statutory Construction Act of 1972 provides that “[i]n all cases
where a remedy is provided or a duty is enjoined or anything is directed to be done
by any statute, the directions of the statute shall be strictly pursued . . . .” 1 Pa. C.S.
§ 1504. The Supreme Court of Pennsylvania has noted that “[i]t is well-settled that
a party may not seek judicial resolution of a dispute until he or she has exhausted

                                            7
available administrative remedies.” City of Phila. v. Lerner, 151 A.3d 1020, 1024
(Pa. 2016) (citing Canonsburg Gen. Hosp. v. Dep’t of Health, 422 A.2d 141, 144
(Pa. 1980)). In light of this rule, our Supreme Court explained that “‘[a] taxpayer
who does not exhaust the remedy provided before an administrative board to secure
the correct assessment of tax [ ] cannot thereafter be heard by a judicial tribunal to
assert its invalidity.’” Id. at 1025 (citing Commonwealth, to Use of Unemployment
Comp. Fund v. Lentz, 44 A.2d 291, 293 (Pa. 1945) (quoting Gorham Mfg. Co. v.
State Tax Comm’n of N.Y., 266 U.S. 265, 269-70 (1924))).
               This Court has also recognized that a taxpayer must exhaust the
remedies provided by statute to challenge a tax assessment and to obtain a tax refund
from a political subdivision. Jordan v. Fayette Cty. Bd. of Assessment Appeals, 782
A.2d 642 (Pa. Cmwlth. 2001).


               The doctrine of exhaustion of administrative remedies as
               a restraint upon the exercise of a court’s equitable powers
               not only reflects a recognition of the general assembly’s
               directive of strict compliance with statutorily-prescribed
               remedies, it also acknowledges that an unjustified failure
               to follow the administrative scheme undercuts the
               foundation upon which the administrative process was
               founded.

Id. at 646 (quoting Shenango Valley Osteopathic Hosp. v. Dep’t of Health, 451 A.3d
434 (Pa. 1982)).
               The legislature provided adequate8 procedures to challenge assessments
in the CCAL. To challenge the Properties’ assessments, Manor had to file a timely
appeal with the Board. Section 8844(c)(1) of the CCAL provides for the “annual

      8
          Manor does not challenge the adequacy of any applicable statutory remedies.

                                               8
appeal deadline” and requires any person “desiring to make an appeal” to “on or
before September 1 . . . file with the board an appeal, in writing.” 53 Pa. C.S. §
8844(c)(1). This statutory remedy is “exclusive and mandatory.” In re Rausch
Creek Land, L.P., 59 A.3d 1, 6 (Pa. Cmwlth. 2012). Manor did not avail itself of
this remedy.
                The trial court also noted that Section 314(a) of the RETSL provides
an adequate statutory remedy for those that seek to assert the invalidity of the tax
owed.9 However, Manor’s Petition did not claim that the tax due was not correct
based upon the actual assessments, but merely sought to remove the Properties from
the tax sale due to the Board’s alleged failure to properly assess the Properties.
Section 314(a) provides that:

               Any claim for taxes may, prior to the time it becomes
               absolute, be set aside or reduced in amount by the bureau
               with which it is filed if the claim is found invalid in whole,
               or in part, by reason of the fact that the taxes for which the
               claim was entered were paid in whole, or in part, to a
               proper officer or agent of the taxing district, or is found
               invalid, in whole or in part, for any other reason not
               involving a question which could have been raised by an
               appeal provided for by law.

72 P.S. § 5860.314(a) (emphasis added).


       9
         Section 314(a) of the RETSL provides that the tax bureau may set aside or reduce any
claim for taxes prior to the time the claim becomes absolute. 72 P.S. § 5860.314(a). To set aside
or reduce the tax claim, exceptions to the claim must be filed with the bureau “before the day fixed
for the claim to become absolute.” 72 P.S. § 5860.314(b). Claims become absolute if the
delinquent taxpayer has not paid the amount of the tax claim or filed exceptions by January 1 after
the notice of return and tax claim has been served on the owner(s). 72 P.S. §§ 5860.311 &
5860.308 (explaining that the tax bureau “shall” give only one notice of the “return of said taxes
and the entry of such claim” by no later than July 31 of each year); In re Upset Sale Tax Claims
Bureau of Montgomery Cty., 205 A.2d 104, 106 (Pa. Super. 1965).

                                                 9
            Here, not only did Manor fail to take exception to the tax claims before
they became absolute, any question raised concerning the validity of the tax owed in
this case is based upon the assessments of the Properties and “could have been
raised” in an appropriate tax assessment appeal. Such claims, therefore, would be
inappropriately asserted under the RETSL. See supra p. 9; Rausch Creek, 59 A.3d
at 6 (holding that taxpayer could not pursue its disguised assessment appeals with
the Bureau because taxpayer failed to file its grievances with the County Board of
Assessment Appeals). Therefore, we need not consider Manor’s failure to exhaust
its statutory remedies under the RETSL.
            As Manor did not file an assessment appeal with the Board challenging
the Properties’ assessments for the 2015 and 2016 tax years, Manor did not properly
exhaust the statutory remedy available to it. Therefore, the trial court correctly
concluded that it could not address Manor’s issue regarding the Board’s duties with
respect to the Properties’ assessments for those years. Accordingly, we affirm.




                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                          10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


M. Manor Holding, LP and             :
Mountain Manor Development           :
Company, LP,                         :
                Appellants           :
                                     :
           v.                        :
                                     :
Monroe County Tax Claim Bureau       :
and the Monroe County Board of       :   No. 1477 C.D. 2017
Assessment Appeals                   :


                                 ORDER


           AND NOW, this 15th day of August, 2018, the order of the Court of
Common Pleas of Monroe County, dated September 1, 2017, is AFFIRMED.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
