Opinion
No. 643 C.D. 2012
01-03-2013
Morris Road Investors, LP, Appellant v. Montgomery County Board of Assessment Appeals, Tax Parcel No. 67-00-02512-00-4
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
Morris Road Investors, LP, (Morris Road) appeals an order of the Court of Common Pleas of Montgomery County which denied its request for a nunc pro tunc tax assessment appeal for tax year 2012. After review, we affirm.
Morris Road is the owner of an 87.84 acre tract of land in Worcester Township, Montgomery County. Improvements on the property include a 704,000 square foot building in which there are offices as well as a high-tech manufacturing area. On June 24, 2011, a Stipulation and Order of Settlement was filed with the court below, in which the parties agreed to settle the outstanding assessment appeals for tax years 2010 and 2011. In that stipulation, the parties agreed to reduce the tax assessment on the property from $19,710,000 to $16,269,000. The stipulation did not limit the authority of the Montgomery County Board of Assessment Appeals (Board) to revise the assessment of the property "as the result of a countywide reassessment, change in the subject property, or otherwise as provided by applicable law," nor did it limit taxpayer Morris Road's right to appeal "future years' assessments," including the tax year 2012. Stipulation And Order of Settlement; Reproduced Record (R.R.) at 22a. Thereafter, the Board mailed Morris Road an Assessment Notice on August 3, 2011, referencing the subject property and indicating that the "Old Assessment" was $19,710,000 and that the "New Assessment" was $16, 269,000, for county and local taxes effective January 1, 2011. R.R. at 8a. The notice contained standard language indicating that an appeal could be taken from this assessment "within forty days of the mailing date on this notice." Id.
Obviously, the parties and their counsel who negotiated this stipulation understood that the tax years 2010 and 2011 had been the subject of an assessment appeal, which they settled, and therefore that the stipulated new assessment amount was not subject to any further appeal, except as to future tax years. Further, at least the attorneys knew or should have known that any appeal relating to future years would have to be filed by the statutory deadline. Apparently, however, Morris Road obtained new counsel and failed to advise him of the prior appeal or the stipulation when it forwarded the August 3 Assessment notice to him. On September 9, 2011, Morris Road, through its new counsel, Donald Weiss, submitted an assessment appeal marked "Interim" to the Board from the August 3, 2011 assessment notice. The tax year under appeal was left blank on the form. No assessment appeal for tax year 2012 was filed by the statutory deadline of September 1, 2011. Thereafter, Morris Road appealed the Board's dismissal of the appeal by filing a petition for allowance of appeal nunc pro tunc to the trial court, seeking to convert its appeal from the August 3 assessment notice to an assessment appeal for tax year 2012.
Montgomery County is a Second Class A county and is subject to the Consolidated County Assessment Law, 53 Pa. C.S. §§ 8801-8868. Section 8844(c) of the Law, 53 Pa. C.S. §8844(c), provides in pertinent part that the deadline for filing an annual appeal [of an assessment] shall be "on or before September 1 . . . ."
Although not entirely clear from the record, it appears that the Board communicated through its counsel to Mr. Weiss that the appeal "was not going to be accepted because there had been the stipulation for tax year 2010 and 2011" and that the Board would not accept it as an appeal for tax year 2012. Hearing of March 13, 2012, Notes of Testimony at 6.
Morris Road argued that it was misled by the August 3, 2011 assessment notice because it contained language regarding a forty day appeal period, without any qualifying language to indicate that the notice memorialized the terms of the settlement stipulation which reduced the tax assessment on the property and that this notice was therefore not appealable. Morris Road argued that this notice, coming as it did in close proximity to the September 1 statutory deadline for annual assessment appeals, misled it into filing an untimely appeal for tax year 2012. After the Board filed its Answer with New Matter, and following a hearing, the trial court denied Morris Road's petition. This appeal followed.
Our scope of review in determining the propriety of a denial of an appeal nunc pro tunc is whether the trial court abused its discretion or committed an error of law. In Re Appeal of Tenet Health Systems, 880 A.2d 721 (Pa. Cmwlth. 2005).
Taxpayer Morris Road insists that it was misled by the Board's action in sending out the Notice of Assessment dated August 3, 2011, when that tax year had already been the subject of other litigation and when the statutory appeal deadline for tax year 2012 of September 1, 2012, was looming. Morris Road argues that this conduct by the Board, whether intentional or not, caused it to be misled into believing it had 40 days from August 3, 2011 to file an appeal of that assessment notice. Morris Road asserts that an appeal nunc pro tunc may be warranted where the Board, as herein, even "unintentionally misleads a party." Union Electric Corp. v. Bd. of Prop. Assessment Appeals & Review, 560 Pa. 481, 487, 746 A.2d 581, 584 (2000).
The Board argues that the trial court properly denied Morris Road's petition for permission to appeal nunc pro tunc because the appeal was filed after the September 1 statutory deadline and because Morris Road's asserted reason for missing the deadline, i.e., that its attorney was confused, does not constitute grounds for granting nunc pro tunc relief. We agree.
The time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Bass v. Commonwealth Bureau of Corrections, et al., 485 Pa. 256, 259, 401 A.2d 1133, 1135 (1979). Allowance of an appeal nunc pro tunc has been a recognized exception to the general rule prohibiting the extension of an appeal deadline. Union Electric. Our Supreme Court in Commonwealth v. Stock, 545 Pa. 13, 19, 679 A.2d 760, 764 (1996), noted that "the principle emerges that an appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances." An appeal nunc pro tunc is generally granted only where there is "fraud or some breakdown in the court's operations through a default of its officers." Bass, 485 Pa. at 259, 401 A.2d at 1135 (citation omitted). However, "a court may not extend that time period or allow an appeal nunc pro tunc absent a showing that extraordinary circumstances involving fraud or its equivalent, duress, or coercion caused the delay in filing an appeal." Hanoverian, Inc. v. Lehigh Count Bd. of Assessment, 701 A.2d 288, 289 (Pa. Cmwlth. 1997) (emphasis omitted). --------
Montgomery County is a Second Class A County subject to the Consolidated County Assessment Law at 53 Pa. C.S. §§ 8801-8868. Section 8844(c) of the Law provides that the deadline to file an annual appeal of an assessment shall be September 1 preceding the year on appeal. In other words, Taxpayer Morris Road needed to file its appeal of the assessment for tax year 2012 by September 1, 2011, the year preceding the year on appeal. As statutory deadlines are mandatory, failure to comply with the deadline divests this court of subject matter jurisdiction. Hanoverian, Inc. v. Lehigh County Board of Assessments, 701 A.2d 288 (Pa. Cmwlth. 1997).
Moreover, it is immaterial whether Morris Road's attorney, Mr. Weiss, was confused as to the meaning of the August 3 notice, because his client, Morris Road, certainly was aware of the change in assessment, having filed the assessment appeals for 2010 and 2011, participated in the settlement negotiations, and signed off on the stipulation which resolved the dispute and lowered the assessment from $19,710,000 to $16,269,000. "The negligence of an appellant, or an appellant's counsel, or an agent of appellant's counsel, has not been considered a sufficient excuse for the failure to file a timely appeal." Bass v. Commonwealth Bureau of Corrections, et al., 485 Pa. 256, 259, 401 A.2d 1133, 1135 (1979). Had Mr. Weiss either consulted with his client, Morris Road, or investigated the matter further, he would have discovered the reason for the assessment change notice and proceeded accordingly. Indeed, the public records for the property show that under the "Assessment History" section, the reason for the change in assessment notice dated August 3, 2011 is clearly listed as "Court Stipulation/Order." R.R. at 28a. Finally, the stipulation makes clear that it settles the assessment appeals for 2010 and 2011, but that the taxpayer, Morris Road, was not precluded from filing an appeal of an assessment for future tax years, including 2012. The fact remains that Morris Road failed to timely file an assessment appeal for tax year 2012, and it has failed to establish its entitlement to an appeal nunc pro tunc. Accordingly, having concluded that the trial court properly denied Morris Road's petition for allowance of appeal nunc pro tunc, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 3rd day of January, 2013, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge