137 A.3d 637
Pa. Commw. Ct.2016Background
- In April 2012 Landowners purchased property formerly numbered 916–924 Green Street and obtained separate building permits (Oct. 1, 2012) for five subdivided parcels; permits advised that exemption applications for residential rehab must be filed by December 31 of the year of permit issuance.
- A revised permit was issued for 918 Green Street on July 30, 2013; Landowners filed five abatement applications on December 23, 2013, which the Assessment Office denied as untimely.
- Landowners appealed to the Board seeking nunc pro tunc approval; the Board affirmed the denial. The trial court also affirmed, holding the December 31, 2012 deadline applied and that nunc pro tunc relief was not warranted.
- On appeal to the Commonwealth Court, the Court first determined only Xun F. Lin (916 Green) was a proper appellant because other owners had not timely appealed to the trial court.
- Lin argued (1) a revised permit reset the filing deadline, (2) Section 19-1303(2) contains no deadline (unlike §19-1303(3)), (3) the Assessment Office improperly imposed deadlines in violation of the Home Charter, and (4) the permit notice was confusing, warranting nunc pro tunc relief.
- The Court rejected these arguments: the Local Economic Revitalization Tax Assistance Act and Section 19-1303(2) require application ‘‘at the time [one] secures the building permit,’’ a revised permit does not restart the filing deadline, and Lin missed both the 60-day and December 31 deadlines so confusion did not justify nunc pro tunc relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper parties on appeal | All five Landowners are parties because Board proceedings covered all properties | Only Xun F. Lin timely appealed to trial court, so only he may pursue this appeal | Only Lin is a proper appellant; other owners waived appeal rights |
| Does a revised building permit reset the abatement filing deadline? | Revised July 2013 permit for 918 Green resets deadline to Dec. 31, 2013 (and applies to related permits) | Statute and ordinance require filing when securing the permit; revisions do not restart deadline | Revised permit does not extend or restart the filing deadline; argument waived and meritless |
| Does absence of deadline in §19-1303(2) mean no filing deadline for residential abatements? | Silence means no deadline; applicants can file anytime | State Act (LERTA §6(a)) and ordinance require filing when permit is secured | §6(a) requires submission at permit issuance; silence in §19-1303(2) does not eliminate the statutory deadline |
| Was nunc pro tunc relief warranted due to confusing permit notice or improper rulemaking? | Permit language was confusing; Assessment Office improperly imposed deadlines without Charter rulemaking | Landowners failed to raise challenge below and missed all applicable deadlines; no record evidence of improper rulemaking | No nunc pro tunc relief; confusion immaterial because applicant missed both possible deadlines; Charter/regulatory claim not preserved and unsupported by record |
Key Cases Cited
- Commonwealth v. Stock, 679 A.2d 760 (Pa. 1996) (nunc pro tunc appeal standard)
- Lincoln Philadelphia Realty Associates I v. Board of Revision of Taxes, 758 A.2d 1178 (Pa. 2000) (failure to file timely appeal deprives courts of jurisdiction)
- Bedford Downs Management Corp. v. State Harness Racing Comm’n, 926 A.2d 908 (Pa. 2007) (issues first raised in reconsideration not preserved)
- Dwyer v. Dep’t of Transp., Bureau of Driver Licensing, 849 A.2d 1274 (Pa. Cmwlth. 2004) (confusing notice may support nunc pro tunc relief in appropriate cases)
- Erie Indemnity Co. v. Coal Operators Casualty Co., 272 A.2d 465 (Pa. 1971) (briefs are not evidence; courts may not rely on facts not in the record)