Opinion
No. 680 F.R. 2009
11-21-2012
Peter DePaul, Petitioner v. Commonwealth of Pennsylvania, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Peter DePaul petitions for review of the October 20, 2009 order of the Board of Finance and Revenue dismissing his request for a refund of $100,000 he paid to the Commonwealth, pursuant to a Consent Agreement, for lack of jurisdiction. For the reasons that follow, we affirm.
In December 2005, Philadelphia Entertainment and Development Partners (PEDP) applied to the Pennsylvania Gaming Control Board (Gaming Board) for a Category 2 slot machine license in Philadelphia. At the same time DePaul, who held a 9.54% indirect ownership interest in PEDP, applied for a gaming license as a "Key Employee Qualifier" of PEDP. During the first four months of 2006, while his license application was pending, DePaul made 21 political contributions totaling $31,745 to various candidates for public office. (Joint Stip., ¶¶ 5-7.)
Because no record is certified to this Court by the Board of Finance and Revenue, we rely on the parties' Stipulation of Facts to summarize the facts and procedural history. Pa. R.A.P. 1571(f).
The Gaming Board approved PEDP's and DePaul's license applications on or about April 21, 2006. DePaul v. Pennsylvania Gaming Control Board, 600 Pa. 573, 578, 969 A.2d 536, 539 (2009).
In relevant part, section 1513 of the Pennsylvania Race Horse Development and Gaming Act (Gaming Act), 4 Pa.C.S. §1513, states as follows:
As amended on November 1, 2006, the term "key employee" was replaced with the term "principal."
An applicant for a slot machine license, manufacturer license or supplier license, licensed racing entity, licensed manufacturer, licensed supplier or licensed gaming entity ... or any officer, director or key employee of such applicant ... shall be prohibited from contributing any money or in-kind contribution to a candidate for nomination or election to any public office in this Commonwealth....4 Pa. C.S. §1513.
* * * * *
In no event shall the fine imposed under this section be in an amount less than $50,000 for each violation. In addition to any fine or sanction that may be imposed by the board, any person who makes a contribution in violation of this section commits a misdemeanor of the third degree.
DePaul mistakenly believed that the restrictions on political contributions set forth in section 1513 only applied to applicants in the event they were granted a license. Further, he was unaware that section 1513's ban on political contributions applied to individuals who held any ownership interest in license applicants. (Joint Stip., ¶¶ 8-9.)
In May 2006, upon learning that section 1513 applied to applicants for key employee qualifier licenses, DePaul contacted the candidates and obtained a return of his political contributions. He also contacted the Gaming Board and reported the making and rescinding of the contributions. Ultimately, PEDP, DePaul, and the Gaming Board's Bureau of Investigations and Enforcement entered into a Consent Agreement that was ratified by the Gaming Board on December 4, 2006. (Joint Stip., ¶¶10-14.) As paraphrased below, the relevant provisions of the Consent Agreement include the following terms:
The Consent Agreement is for settlement purposes only and does not constitute an admission by PEDP or DePaul that the Gaming Act or any other law has been violated. (¶1.)
The Consent Agreement may be altered or modified by agreement of the parties in writing as approved by the Board, or set aside by the Board if any term is violated by PEDP or DePaul or if changing circumstances so warrant it. (¶3.)
The Consent Agreement shall become final and effective upon signing by the parties and approval by the Board. (¶4.)
DePaul shall pay $100,000 to the Commonwealth within 5 business days of the Board's acceptance of the Consent Agreement. (¶7.)
PEDP shall pay $100,000 to the Commonwealth. (¶8.)
PEDP shall amend its internal safeguards and policies intended to prevent any violation of §1513. (¶9.)(Petitioner's brief, Appendix B.) Thus, in relevant part, the Consent Agreement provided that DePaul would pay $100,000 to the Commonwealth and the Gaming Board's Bureau of Investigations and Enforcement would consider any regulatory enforcement issues related to DePaul's alleged violations of section 1513 to be resolved. DePaul's payment of $100,000 was deposited into the Commonwealth's General Fund on December 13, 2006. (Joint Stip., ¶¶15-17.)
PEDP shall cause each entity/individual subject to its internal safeguards and policies to file an annual certification with the Board indicating whether they have complied with the internal safeguards and procedures during the past year. (¶11.)
Upon approval by the Board, any regulatory enforcement issue relating to contributions alleged herein to be a violation of §1513 shall be resolved as to the applicants executing this consent decree. (¶13.)
On November 28, 2007, DePaul filed a petition with the Pennsylvania Supreme Court challenging the constitutionality of section 1513. On April 30, 2009, the court enjoined enforcement of section 1513, holding that its absolute ban on political contributions clearly violates Article I, section 7 of the Pennsylvania Constitution and, therefore, is invalid. DePaul v. Commonwealth (DePaul I), 600 Pa. 573, 969 A.2d 536 (2009). (Joint Stip., ¶¶18-19.)
Section 1904 of the Gaming Act provides that the Pennsylvania Supreme Court has "exclusive jurisdiction to hear any challenge to or render a declaratory judgment concerning the constitutionality of [the Gaming Act]." 4 Pa. C.S. §1904; Pennsylvania State Troopers Association v. Pennsylvania Gaming Control Board, 591 Pa. 561, 567, 920 A.2d 173, 176 n.8 (2007).
On May 15, 2009, DePaul requested a refund from the Gaming Board of the $100,000 he paid pursuant to the Consent Agreement. The Gaming Board responded that it had no authority to refund monies deposited into the General Fund. In a June 4, 2009 letter to DePaul's counsel, Acting Chief Counsel of the Gaming Board explained:
The record does not reflect that DePaul asked the Board to modify or set aside the Agreement, as authorized by ¶3.
The monies remitted by Mr. DePaul in December 2006 were payable to the Commonwealth of Pennsylvania and were deposited into the General Fund pursuant to the express terms of 4 Pa.C.S. §1208(2). Accordingly, the [Gaming Board] has no authority/jurisdiction to grant [Mr. DePaul's] request since the [Gaming Board] has no ability to authorize the refunding of monies from the General Fund. Should there be other avenues within State law to seek payment of the monies, and it is otherwise appropriate, that may be an avenue for your client to explore.(Joint Stip., Ex. G.)
DePaul next sought a refund from the state Treasury Department, which, by letter dated June 10, 2009, also denied his request:
For the following reasons, Treasury is unable to comply with your request at this time. Pursuant to Article III, Section 24 of the Pennsylvania Constitution, the Treasurer is prohibited from paying money out of the treasury "except on appropriations made by law and on warrant issued by proper officers." In this case, your client made payment to the Commonwealth based upon a consent agreement entered into by your client with the Pennsylvania Gaming Control Board. Treasury has not received any requisition, warrant or order, directing a
refund of the money in question. Without such requisition, Treasury has no authority upon which to issue the payment you seek. Additionally, you have provided no documentation or indication that the Gaming Board had rescinded, vacated, or amended the Consent Agreement, or that the Consent Agreement has been expressly vacated or overturned by the Court.(Joint Stip., ¶¶20-23.)
DePaul then filed a petition for a refund with the Board of Finance and Revenue (Board). (Joint Stip., ¶¶24-27.) DePaul argued that there is no provision in the Gaming Act for the refund of fines or penalties and that a refund was not available through the Board of Appeals because the fine or penalty at issue was not assessed by the Department on a taxpayer. He asserted that the Board had jurisdiction over his request pursuant to section 503(a) of the Fiscal Code, which provides in relevant part as follows:
Act of April 9, 1929, P.L. 343, as amended, 72 P.S. §503(a).
The Board of Finance and Revenue shall have the power, and its duty shall be,
(a) ... to hear and determine any petition for the refund of taxes, ... penalties, fines, ... or other moneys paid to the Commonwealth and to which the Commonwealth is not rightfully or equitably entitled and, upon the allowance of any such petition, to refund such taxes, ..., penalties, fines, ... or other moneys, out of the fund into which [they] were originally paid, or to credit the account of the person ... entitled to the refund. So much of the proceeds of the various taxes ... penalties, fines ... or other moneys as shall be necessary for the payment of refunds out of the General or Special Funds shall be authorized by the Governor. ... All such petitions for refund must be filed with the board within two years of the payment of which refund is requested, or within two years of the
settlement in the case of taxes or bonus, whichever period last expired....72 P.S. §503(a) (emphasis added).
In its October 20, 2009 decision, the Board concluded as follows: DePaul's payment was made pursuant to a Consent Agreement, which in turn was memorialized by the Gaming Board's order; the Consent Agreement did not allow for appeals, and the Gaming Board's order was not an appealable order; therefore, DePaul's petition is a collateral attack on an un-appealable order. The Board also observed that section 503 of the Fiscal Code sets forth a two-year statute of limitations, providing that petitions for refund must be filed within two years of the payment or settlement of a case, so that DePaul's request for refund of the December 2006 payment is untimely. Accordingly, the Board dismissed DePaul's refund request for lack of jurisdiction.
On appeal to this Court, DePaul asserts that he is entitled to a refund of the $100,000 payment because the Consent Agreement under which the payment was made settled his violation of a statutory provision that subsequently was declared unconstitutional. DePaul argues that when a statute is declared unconstitutional it is void ab initio, and, as a result, it confers no rights and imposes no duties. Glen-Gery Corp. v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006) (procedural defect renders ordinance void ab initio and limitations period inapplicable). DePaul contends that, because of the Supreme Court's 2009 decision, the statute under which the Gaming Board imposed the fine had no legal force and, therefore, he is entitled to a refund, plus interest.
In appeals from decisions of the Board, our scope of review is broad, because this Court functions as a trial court even though such cases are brought within our appellate jurisdiction. Solar Turbines Inc. v. Commonwealth, 816 A.2d 362 (Pa. Cmwlth. 2003). A stipulation of facts is binding and conclusive upon the Court, but the Court draws its own legal conclusions from those facts. America Online, Inc. v. Commonwealth, 942 A.2d 236 (Pa. Cmwlth. 2008).
The Commonwealth asserts that DePaul's argument rests on the incorrect premise that he paid a $100,000 "fine" for violating section 1513 of the Gaming Act. According to the Commonwealth, DePaul never paid a fine but instead made a payment pursuant to a Consent Agreement. The Consent Agreement reflects that the Gaming Board did not find that DePaul violated the Gaming Act and did not impose any fine or penalty. Likewise, DePaul did not ever admit that he violated the Gaming Act. The Commonwealth further asserts that, even if the payment made by DePaul were a fine or penalty, the terms of the Consent Agreement were part of a valid contract freely entered into by DePaul and the Gaming Board. The Commonwealth points out that DePaul does not argue, and nothing in the record suggests, that the Consent Agreement is invalid. The Commonwealth argues that under these circumstances, the Consent Agreement that was entered into two years before section 1513 of the Gaming Act was declared unconstitutional is still a valid contract between the parties.
The Commonwealth further notes that there is a strong public policy supporting the enforcement of settlement agreements such as the Consent Agreement in this case. Dravosburg Housing Association v. Borough of Dravosburg, 454 A.2d 1158 (Pa. Cmwlth. 1983). As we observed in Dravosburg:
There is strong support in Pennsylvania law for the [] contention that in the absence of fraud, accident or mistake, a court has neither the power nor the authority to vary or modify the terms of a consent decree. Pennsylvania Human Relations Commission v. A.K. Graybill, Jr., Inc., 482 Pa. 143, 393 A.2d 420 (1978) .... In [Commonwealth v. Rozman, 309 A.2d 197 (Pa. Cmwlth. 1973)], this Court held that a consent decree is an
agreement binding upon the parties thereto who cannot be allowed to repudiate that to which they agreed for purposes of their own and for their own benefit. In [Commonwealth v. U.S. Steel Corp., 325 A.2d 324 (Pa. Cmwlth. 1974)], we held that no matter how distasteful a consent decree may later turn out to be to the parties, it remains binding upon them and cannot be changed by a court unless amendments thereto are submitted by the parties subject to the decree.Dravosburg, 454 A.2d at 1162. See also Step Plan Services, Inc. v. Koresko, 12 A.3d 401 (Pa. Super. 2010); Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943 (Pa. Super. 2004). Thus, under Pennsylvania law, a settlement agreement will not be set aside except upon a clear showing of fraud, duress, or mutual mistake, id., and the Commonwealth asserts that the Supreme Court's subsequent invalidation of section 1513 does not satisfy that criteria.
The Commonwealth characterizes DePaul's refund request as a collateral attack on the Consent Agreement, citing Davis v. Government Employees Insurance Co., 775 A.2d 871, 875 (Pa. Super. 2001) ("Appellants cannot alter the law of their case by collaterally attacking a binding agreement with subsequent case law"), and Borg-Warner Corporation v. Board of Finance and Revenue, 424 Pa. 343, 227 A.2d 153 (1967) (taxes were not paid under a statute later held to be unconstitutional or under an erroneous statutory interpretation but, rather, were paid as a result of stipulations entered into by the parties in settlement of litigation.) The Commonwealth further asserts that there is no violation of due process because DePaul could have litigated the question of whether section 1513 was constitutional or could have paid the money under protest or otherwise preserved his right to litigate this issue as part of the Consent Agreement. The Commonwealth maintains that by failing to do so, DePaul waived his right to a refund of money paid under the Consent Agreement. In this regard, the Commonwealth adds that even if DePaul felt he needed to enter into the Consent Agreement for the sake of the business enterprise, such concern does not render his choice involuntary.
We note that the terms of the Consent Agreement specifically state that neither PEDP nor DePaul admits to any violation of the Gaming Law and that the agreement "resolved" any enforcement issue relating to contributions "alleged herein to be a violation" of section 1513. Although the agreement clearly is intended to address DePaul's apparent violation of section 1513, the plain language of the Consent Agreement supports the Commonwealth's contention that the $100,000 paid by DePaul was not a fine or a penalty. Accordingly, DePaul's argument that the subsequent Supreme Court decision requires a refund of a fine he paid under an unconstitutional statute is unavailing.
We also note that section 1513(c) mandates a minimum "fine" of $50,000 for each violation. The record reflects that the DePaul made 21 political contributions to various candidates for public office, (Joint Stip., ¶7), for which the minimum "fine" would have been $1,050,000.
Alternatively, DePaul asserts that, as a general rule, a decision announcing a new rule is applied retroactively, citing, inter alia, Blackwell v. State Ethics Commission, 527 Pa. 172, 181, 589 A.2d 1094, 1099 (1991) ("We conclude that our decision in Blackwell II declaring Section 4(4) of the Sunshine Act unconstitutional is to be applied retroactively to the parties before the court and to all cases pending at the time of that decision in which the issue of the constitutionality of Section 4(4) ... was timely raised and preserved.") DePaul maintains that because the Supreme Court did not declare its ruling to be prospective only, he is entitled to the benefits of that decision.
However, as reflected in the Supreme Court's decision, DePaul did not file his declaratory judgment action with that court as an appeal from, or challenge to the validity of, the Consent Agreement. In other words, DePaul did not have such a case pending or such an issue preserved at the time of that proceeding. Instead,
[d]ue to DePaul's continued desire to make political contributions and attend political events such as dinners, receptions and candidate meetings, all of which require a purchased ticket to attend, he filed a verified petition seeking a declaration that Section 1513 is unconstitutional under the Pennsylvania Constitution because it violates his inherent rights of political expression and association, and requesting an order enjoining enforcement of Section 1513.DePaul I, 600 Pa. at 579, 969 A.2d at 540. Thus, the analysis in Blackwell is inapplicable.
However, the facts and history of the present case are similar to those before the court in Borg-Warner. In that case, the court held that parties who had entered into stipulations for judgment, thereby terminating their appeals and abandoning their contentions that a tax determination was illegal and improper, were not entitled to refunds when a similar tax assessment was declared unlawful, because the taxes were paid as the result of stipulations entered into between the taxpayers and the Commonwealth in settlement and compromise of litigation then in progress, and the later decision did not allow one party to withdraw from or disregard the prior agreement.
In Davis, the appellants settled an insurance claim for the statutory minimum amount based on the family member limitation provision in their father's insurance contract, and they signed a release to that effect. About four months later, the Superior Court declared a similar insurance policy invalid as against public policy. Thereafter, the appellants filed a complaint essentially challenging the legality of their release in light of the Superior Court's decision. The appellants argued that the effect of the subsequent decision declaring the insurance provision invalid was to increase the coverage available under their insurance contract. More specifically, the appellants asserted that the court's decision constituted a "condition precedent" that invalidated the settlement and release. The court rejected that argument and next rejected the argument that the decision should be applied retroactively to invalidate the release.
The court in Davis explained that under Pennsylvania law, court decisions announcing a new rule affect only the case in which the new rule is announced and cases that are pending when that new rule is announced. Moreover, of the pending cases, only cases that have preserved the issue decided in the new case will benefit from the new rule. "Accordingly, a decision in one case will not affect preceding cases fully disposed of at the time the new rule is announced." Davis, 755 A.2d at 876. The court further observed that "it is axiomatic that releases are construed in accordance with traditional principles of contract law," and therefore, "a release not procured by fraud, duress, or mutual mistake is binding between the parties." Id. Importantly, the court held that at the time of execution of the release, the insurance provision upon which payment was made was valid, and therefore, there was not any mistake of fact, mistake of law or misrepresentation or fraud constituting a basis upon which to invalidate the release.
Similarly, in the present case, at the time DePaul executed the Consent Agreement, section 1513 of the Gaming Act was valid and, pursuant to the analysis in Davis, the subsequent change in the law does not invalidate any provision of the Consent Agreement. This Court has no power to modify the contract of the parties, and the Consent Agreement is binding between the parties absent any fraud, duress, or mutual mistake. We thus hold that while our Supreme Court's decision in DePaul I declared the statute to be void ab initio, it does not apply retroactively to invalidate the Consent Agreement.
See also Sabatine v. Commonwealth, 497 Pa. 453, 442 A.2d 210 (1981) (holding that parties to a conveyance of real estate were not entitled to a refund of taxes paid thereon solely because the deed was subsequently declared null and void ab initio by agreement of the parties, because a consent decree is not a legal determination of matters in controversy; rather, it is a contract binding on the parties, and a court has neither the power nor the authority to modify its contents, absent fraud, accident or mistake).
Finally, we address DePaul's argument that because section 1513 is void ab initio, no statute of limitations can apply to any effort seeking recourse from its provisions. DePaul maintains that the Board's application of the two-year statute of limitation deprives him of a property right without due process, because his ability to seek a refund expired five months before he had an opportunity to make a claim. In this regard, DePaul maintains that the two-year statute of limitations did not begin to run until the Supreme Court declared section 1513 unconstitutional.
The Commonwealth responds that even if DePaul's claim could be characterized as a request for refund of a fine or a penalty so as to fall within the Board's jurisdiction, DePaul would still be barred by the two-year statute of limitations in section 503(a) of the Fiscal Code. The Commonwealth notes that the payment was made in December 2006 and DePaul made no attempt to obtain a refund within the next two years. The Commonwealth also observes that DePaul's alleged right to a refund accrued in December 2006 and he could have raised his claims at that time, as evidenced by the actions of other litigants who regularly preserve constitutional objections to the payment of taxes and other fees with the Board prior to final determinations by the courts. We agree that DePaul's claim is time-barred.
In Box Office Pictures, Inc. v. Board of Finance and Revenue, 402 Pa. 511, 166 A.2d 656 (1961), the appellants were distributors of motion pictures and sought return of monies they paid under the "Motion Picture Censorship Act" after that statute was declared unconstitutional by the court. The appellants argued that the statute was void ab initio and filed an action under section 503(a)(4) of the Fiscal Code, 72 P.S. §503(a)(4), which at the time set forth a five-year statute of limitations for petitions for refund of taxes or other money paid under a statute subsequently held to be unconstitutional. The Supreme Court first quoted with approval the trial court's conclusion that, absent allegations that certain fees were paid under protest or under duress, the familiar doctrine that "monies paid voluntarily under mistake of law cannot be recovered" applies. Box Office Pictures, 402 Pa. at 516, 166 A.2d at 660. The court agreed that the Board lacked jurisdiction over the petition because it was not filed within five years of the payment.
The Act of May 15, 1915, P.L. 534, as amended by the Act of May 8, 1929, P.L. 1655, 4 P.S. §§41-58, was commonly known as the Motion Picture Censorship Act.
At the time Box Office Pictures was decided, section 503(a)(4) contained an exception to the two year limitation period for petitioning for refund "[w]hen any tax or other money has been paid to the Commonwealth, under a provision of an act of Assembly subsequently held by final judgment of a court of competent jurisdiction to be unconstitutional, or under an interpretation of such provision subsequently held by such court to be erroneous. In such case, the petition to the board may be filed either prior or subsequent to such final judgment but must be filed within five years of the payment of which a refund is requested or within five years of the settlement of such taxes, bonus or other moneys due the Commonwealth, whichever last expires." This exception was repealed by the Act of July 1, 1985, P.L. 78, No. 29, §15, "with respect to taxes, and other moneys due, paid, settled, assessed, determined or appraised on or after January 1, 1985." --------
The court acknowledged the general rule that a statute adjudged to be unconstitutional is as if it had never been. However, the court added that "any broad statement of absolute retroactive invalidity must be taken with qualifications." Id. at 517, 166 A.2d at 660. Specifically, the court stated that "[q]uestions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination." Id. at 518, 166 A.2d at 661. The court then observed that the fees at issue had been paid without protest as a quid pro quo for inspection services, a real and substantial benefit. Citing that benefit and the appellant's acquiescence over many years, the court concluded that retroactive invalidity was not appropriately applied in that case.
Subsequently, in Universal Film Exchanges, Inc. v. Board of Finance and Revenue, 409 Pa. 180, 185 A.2d 543 (1962), the court relied on its prior decision in Box Office Pictures in addressing the appellants' contention that application of the statutory five-year limitation of section 503(a) to bar the recovery of license fees paid "under the duress and compulsion" of the unconstitutional Motion Picture Censorship Act violated the 14th Amendment of the United States Constitution. The court first observed that, "since a State need not allow recovery of taxes or other moneys voluntarily but erroneously paid, it can impose reasonable restrictions on any recovery it does allow." Universal Film Exchanges, 409 Pa. at 186, 185 A.2d at 545 (emphasis in original). The court then acknowledged that where taxes or other moneys were paid under duress and compulsion, a denial of recovery would violate the 14th Amendment.
The appellants in Universal Film Exchanges asserted that a statutory limitation period should be applied because the terms of the Motion Picture Censorship Act, which essentially made payment of license fees an absolute prerequisite to the distribution of films in this Commonwealth, amounted to duress and compulsion. Rejecting the appellants' argument, the court first observed that, even if statutory provisions amount to duress, the available opportunity to bring suit for the recovery of money paid under such a statute constitutes a legal remedy that redresses the wrong. The court further observed that the appellants could have paid the fees under protest and brought a timely suit in assumpsit; they could have appealed the decisions of the Board of Censors to the Court of Common Pleas; or they could have filed petitions for refunds within five years of payment, pursuant to section 503 of the Fiscal Code, and therein raise the question of their right to recovery as well as the constitutionality of the Motion Picture Censorship Act. "Many remedies were available to appellants, but they took advantage of none." Universal Film Exchanges, 409 Pa. at 190, 185 A.2d at 547.
Quoting Box Office Pictures, the court observed that the fees in question "were paid without protest as a quid pro quo for the inspections services rendered by the Censorship Board," and ultimately resulted in a real and substantial benefit. Universal Film Exchanges, 409 Pa. at 191, 185 A.2d at 548. Taking further notice that the cost of the payments was "undoubtedly" passed on to the theater-going public, as well as the appellants' many years of acquiescence, the court held that the license fees were not paid under duress and that "the five year statutory period for the recovery of moneys voluntarily but mistakenly paid to the Commonwealth, as required by a licensing Act which was subsequently declared to be unconstitutional, was reasonable and violated none of appellants' constitutional rights." Id. at 193, 185 A.2d at 549.
Here, although DePaul and PEDP undoubtedly were under pressure to resolve DePaul's apparent, if not admitted, violations of the Gaming Act, neither asserted any challenge to the validity of section 1513 until almost a year after executing the Consent Agreement and making a significant payment thereunder, and neither suggested that the payments were made under protest or duress. Although DePaul asserts that he could not have raised the constitutional challenge in another forum, he does not explain why he did not preserve a protest when he executed the Consent Agreement and made payment.
Relying on Borg-Warner and Box Office Pictures, we conclude that absent any allegation that the Consent Agreement was entered into under duress, and absent any evidence of fraud or mistake of fact, the subsequent change in law does not invalidate the Consent Agreement. We further conclude that public policy concerns weigh in favor of upholding agreements that were based on valid law at the time they were entered. Therefore, we hold that DePaul's failure to file his petition within two years of the payment deprived the Board of jurisdiction over his request pursuant to section 503(a) of the Fiscal Code.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 21st day of November, 2012, the order of the Board of Finance and Revenue, dated October 20, 2009, is hereby affirmed. This order shall become final unless exceptions are filed within thirty days pursuant to Pa. R.A.P. 1571(i).
/s/_________
PATRICIA A. McCULLOUGH, Judge