In re Appeal of Federated Department Stores, Inc.

467 A.2d 908, 78 Pa. Commw. 346, 1983 Pa. Commw. LEXIS 2116

• Court: Commonwealth Court of Pennsylvania
• Decided: November 15, 1983
• Docket: Appeal, No. 2789 C.D. 1982
• Status: Published

Opinions

Opinion by

Judge Craig,

Petitioner Federated Department Stores, Inc., appeals from an order of tbe common pleas court quashing its appeal from a tax assessment made by respondent, tbe Board of Property Assessment, Appeals and Review of Allegheny County.

The questions for review are: (1) whether an appeal from the assessment board must be filed within sixty days as provided by the statute governing assessments in second class counties, 72 P.S. §§5452.1-5452.20,^{1 2}or within thirty days as provided by the Judicial Code appeal time limitation, 42 Pa. C. S. §5571 f and (2) whether the reassessment notice sent by the board adequately notified Federated of its mailing date, which begins the running of the appeal period.

The facts, which are not in dispute, are as follows: Allegheny County initially assessed property owned by Federated at $905,000 for T981. Upon appeal, the board reduced that figure to $700,000, and informed Federated of the change by notice dated December 11, 1981. . On February 9, 1982, Federated appealed to the common pleas court. Administrative Judge Papadakos issued an opinion and order³ quashing Federated’s appeal because its filing date was beyond the thirty-day appeal period prescribed by 42 Pa. C. S. §5571 (b).- This appeal followed.

As conceded by Federated, we have already settled the first question. In Chartiers Valley School District Appeal, 68 Pa. Commonwealth Ct. 592, 450 A.2d 230 (1982), aff’d, Pa. , 462 A.2d 673 (1983), and Borough of West Homestead v. Mesta Machine Co., 68 Pa. Commonwealth Ct. 595, 449 A.2d 876 (1982) , aff’d per curiam, Pa. , 465 A.2d 641 (1983) , we specifically held that the thirty-day appeal period set forth in section 5571(b) of the Judicial Code, and not the sixty-day period set forth in section 12 of the Second Class County Assessment Law, governs the period within which to appeal decisions of the board of property assessments. These cases are controlling on the first issue presented by this appeal, and therefore, the common pleas court was correct in concluding that the thirty-day period prescribed by §5571 (b) of the Judicial Code is the applicable time period.

Federated also contends that, even with the thirty-day appeal period, the form it received from the board entitled “Disposition of Appeal from Real Estate Assessment” did not provide adequate notice of the mailing date, which starts the running of the appeal period.⁴ Two dates appear on the form. At the bottom left-hand corner is a box captioned “Appeal Board Action” with the appeal number and “B. M. DATE 12-1-8.1” also indicated. Briefs of counsel indicate that this date refers to the day the board actually met to take action on the appeal. The form is also dated at the top ¡with the following notation: “Date December 11,1981.”

The board argues that the mere presence of two different dates on the form provides sufficient notice to anyone appealing his assessment that the latter date refers to the day the notice was actually mailed. We find this argument unpersuasive.

In an analogous case, the Pennsylvania Supreme Court ruled that, where, as here, an appeal period is commenced by the mailing of a notice of action taken by a government unit, that unit has the duty to advise the appellant of the date of mailing. Schmidt v. Commonwealth, 495 Pa. 238, 241, 433 A.2d 456, 458 (1981). The pivotal issue here is whether the board fulfilled its duty to advise by dating the notice at the top of the form as indicated above.

In Hanna v. Zoning Board of Adjustment of Pittsburgh, 62 Pa. Commonwealth Ct. 620, 437 A.2d 115 (1981), this court held that the zoning hoard’s duty to notify of the actual date of mailing is not satisfied even where the notice is accompanied by a dated transmittal letter. The court quoted the following language from Schmidt: “Knowledge of a decision’s mailing date is essential to the taxpayer, and the effort required of the Department to indicate the relevant date on the decision or transmittal letter is negligible.” Schmidt at 242, 433 A.2d at 458 (emphasis in original).

A disembodied date on the notice, as in this case, without any indication that it is the mailing date, is no more informative than a date appearing on a transmittal letter.⁵ We believe that our decision on the second issue presented by this appeal is therefore controlled by Hanna, and hold that the dated form did not provide sufficient notice of the actual mailing date.

Accordingly, we must reverse the order below quashing the appeal for untimely filing, and remand for further proceedings.

Order

Now, November 15, 1983, the order of the Court of Common Pleas of Allegheny County dated November 1,1982, is reversed and remanded for further proceedings consistent with this opinion.

Jurisdiction relinquished.

2 Section 5571(b) provides:

(b) Other courts. — Except as otherwise provided in subsections (a) and (c), an, appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is talsen, in the ease of an interlocutory or final order.

3 Because the court would have no subject matter jurisdiction if the appeal were filed untimely, the trial judge correctly raised this issue sua sponte. Department of Transportation, Bureau of Traffic Safety v. Weaver, 51 Pa. Commonwealth Ct. 70, 414 A.2d 144 (1980).

4 Having determined that the thirty-day appeal period provided by 42 Pa. C. S. §5571 (b) is applicable, we must calculate that period under the companion section, 42 Pa. C. S. §5572, which provides, in part:

5572. Time of entry of order

The date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the order for the purposes of this subchapter.

5 As Federated points put in its brief, the board has recently changed its form so -that the word “Date” is now preceded by the word “Mailing” in boldface type.