In Re: 507-84 Associates, LLC v. Pike County Board of Assessment Appeals ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
507-84 Associates, LLC, :
Appellant :
:
v. :
:
Pike County Board of Assessment : No. 663 C.D. 2017
Appeals : Submitted: April 10, 2018
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 23, 2018
507-84 Associates, LLC (Taxpayer) appeals from the Pike County
Common Pleas Court’s (trial court) April 27, 2017 order denying Taxpayer’s appeal.
The sole issue before this Court is whether the trial court erred in denying Taxpayer’s
assessment appeal. After review, the trial court’s order is vacated and the matter is
remanded.
Taxpayer is the owner of a parcel of land located at 1409 Route 507,
Greentown, Pike County, Pennsylvania designated as Property Identification Number
101.00-01-08.001 (Property). The Pike County Tax Assessor’s Office assessed the
Property with an Affirmed Assessed Value of $152,620.00 and an actual fair market
value of $610,453.00. On or about February 18, 2016, Taxpayer filed an appeal from
the Property’s tax assessment with the Pike County Board of Assessment Appeals
(Board). The Board held a hearing on October 11, 2016. Following the hearing, the
Board issued a Final Assessment Notice denying Taxpayer’s appeal. On November
15, 2016, Taxpayer appealed from the Board’s decision to the trial court. On April
27, 2017, the trial court denied the appeal and affirmed the assessed value of the
Property at $152,620.00 and the actual fair market value of the Property at
$610,453.00 (Order). The Order provided: “The [trial c]ourt notes the [a]ppraisal
provided by the [Board] had a more accurate appraisal of the [Property] and [the
Board’s appraiser’s] testimony was more credible.” Order at 1.
On May 25, 2017, Taxpayer appealed to this Court.1 On May 30, 2017,
the trial court issued an order requiring Taxpayer to file a Concise Statement of
Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) (Rule 1925(b) Statement). Taxpayer filed its Rule 1925(b)
Statement on June 19, 2017. On July 13, 2017, the trial court issued an opinion that
stated in its entirety: “AND NOW, this 13th day of July, 2017, after careful review of
the record and [Taxpayer’s 1925(b) Statement], th[e trial c]ourt continues to stand by
its decision in the above-captioned matter and respectfully requests the
Commonwealth Court affirm [its] Order of April 27, 2017.” Taxpayer Br. Ex. A.
We begin our analysis by delineating the procedural
framework within which the trial court performs its
function. The assessment of real estate taxes is governed by
[T]he General County Assessment Law,[2] . . . and by the
1
In reviewing a trial court’s decision in a tax assessment appeal, we
will reverse that decision only if the trial court committed an abuse of
discretion, an error of law, or where its decision is unsupported by the
evidence. When the issues on appeal are questions of law, the
standard of review is de novo and the scope of review is plenary.
Douglas Vill. Residents Grp. v. Berks Cty. Bd. of Assessment Appeals, 84 A.3d 407, 408 n.3 (Pa.
Cmwlth. 2014).
2
Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §§ 5020-1 – 5020-602. The General
County Assessment Law was repealed, insofar as it relates to second class A, third, fourth, fifth,
sixth, seventh and eighth class counties, by Section 6(1)(ii) of the Act of October 27, 2010, P.L.
895, known as the Consolidated County Assessment Law, 53 Pa. C.S. §§ 8801-8868, effective
January 1, 2011.
2
assessment law applicable to the particular class of county-
in the case of [Pike County, an eighth class3] county, the
Fourth to Eighth Class County Assessment Law.[4] . . . Both
statutes direct the assessor to rate and value all objects of
taxation ‘according to the actual value thereof . . . .’ 72 P.S.
§ 5020-402(a); 72 P.S. § 5453.602(a). A taxpayer who
wishes to challenge the valuation, or any other aspect of the
assessment, may appeal to the Board of Revision of Taxes,
see 72 P.S. §§ 5020-511, 5453.701, 5453.702, and, if such
appeal proves unsuccessful, to the [trial court], see 72 P.S.
§§ 5020-518.1, 5453.704.
Green v. Schuylkill Cty. Bd. of Assessment Appeals, 772 A.2d 419, 425 (Pa. 2001)
(footnote omitted). In Green, our Supreme Court expounded on the trial court
hearing in tax assessment appeals:
In an assessment appeal, the matter before the trial court is
heard de novo, and the order of proof is well settled. Deitch
Co. v. [Bd.] of Prop[.] Assessment, . . . 209 A.2d 397, 402
([Pa.] 1965).
The procedure requires that the taxing authority
first present its assessment record into evidence.
Such presentation makes out a prima facie case for
the validity of the assessment in the sense that it
fixes the time when the burden of coming forward
with evidence shifts to the taxpayer. If the taxpayer
fails to respond with credible, relevant evidence,
then the taxing body prevails. But once the
taxpayer produces sufficient proof to overcome
its initially allotted status, the prima facie
significance of the Board’s assessment figure has
served its procedural purpose, and its value as an
evidentiary devise is ended. Thereafter, such
record, of itself, loses the weight previously
accorded to it and may not then influence the [trial]
court’s determination of the assessment’s
correctness.
3
See PPL Holtwood, LLC v. Pike Cty. Bd. of Assessment, 846 A.2d 201 (Pa. Cmwlth. 2004).
4
Act of May 21, 1943, P.L. 571, as amended, 72 P.S. §§ 5453.101–5453.706. The Fourth
to Eighth Class County Assessment Law was repealed by the Consolidated County Assessment Law
effective January 1, 2011.
3
[T]he taxpayer still carries the burden of persuading
the court of the merits of his appeal, but that burden
is not increased by the presence of the assessment
record in evidence.
Of course, the taxing authority always has the
right to rebut the owner’s evidence and in such a
case the weight to be given to all the evidence is
always for the court to determine. The taxing
authority cannot, however, rely solely on its
assessment record in the face of countervailing
evidence unless it is willing to run the risk of having
the owner’s proof believed by the court.
Id. . . . , 209 A.2d at 402 (citations and footnote omitted).
Green, 772 A.2d at 425-26 (emphasis added).
At the trial court hearing in the instant case, the Board presented the
“Pike County Assessment Property Record card” (Assessment Card) into evidence,
Reproduced Record (R.R.) at 167a, showing an Affirmed Assessed Value of
$152,620.00 and an actual fair market value of $610,453.00. See Certified Record at
Board Ex. 1. Taxpayer presented appraiser Joseph C. Fisher (Fisher),5 who testified
that he appraised the Property at $240,000.00 as of April 11, 2016. See R.R. at 195a.
In rebuttal, the Board presented appraiser Gerald Eugene Romanik (Romanik),6 who
declared that the fair market valuation of the property was $465,000.00, see R.R. at
280a, as of January 12, 2017. See R.R. at 251a. The trial court found Romanik’s
appraisal “more accurate” and his testimony “more credible” than Fisher’s. Order at
1. However, rather than use Romanik’s assessed value, the trial court, without
explanation, ruled that the Property’s assessed value remains as listed on the
Assessment Card.
5
Taxpayer also presented the testimony of Taxpayer’s principal member Arthur Steven
Menko.
6
The Board also presented the testimony of Certified Assessment Appraiser Eugene E.
Porterfield.
4
‘[I]n making a determination in a tax assessment appeal, the
trial court must state the basis and reasons for its
decision.’ Westinghouse [Elec. Corp. v. Bd. of Prop.
Assessment, Appeals & Review of Allegheny Cty.], . . . 652
A.2d [1306,] 1312 [(Pa. 1995)]. This requirement is . . .
significant to . . . a case with competing experts, such as [in]
Westinghouse[.] Where the trial court ‘is presented with
conflicting testimony by equally credible experts,’ id. . . ., it
is appropriate for the court to conclude that the fair market
value of the subject property is ‘somewhere between the
values presented by the parties.’ Id.; see also . . . [id.] . . . at
1316 (Flaherty, C.J., concurring and dissenting) (observing
that ‘there is nothing arbitrary about setting the values near
the midpoints of the range’) . . . . Accordingly, the trial
court’s reasoning must be stated on the record so that
the reviewing court may determine if the trial court’s
departure from the expert[s’] valuation[s are]
warranted.
Green, 772 A.2d at 433 (emphasis added).
In the instant matter, the trial court’s only explanation was that it found
the Board’s expert and appraisal more credible than Taxpayer’s evidence. Such a
statement does not explain the basis for the trial court’s decision to rely on the
Assessment Card instead of Romanik’s assessed value. Nor does it furnish any
reason for making a determination not sought by either party, and which was
$145,000.00 greater than either party claimed. Further,
[t]he language chosen by the trial court . . . implies that its
evaluation of the expert[s’] testimony involved a credibility
determination. In this regard, it is important to
distinguish between credibility as a matter of personal
veracity and as a matter of the substantive
reasonableness of a witness’s testimony. While the trial
court’s determinations concerning the former are
unreviewable by an appellate court, the same is not true of
the latter. See McKnight [Shopping Ctr., Inc. v. Bd. of
Prop. Assessment, Appeals & Review of Allegheny Cty.],
. . . 209 A.2d [389,] 392 [(Pa. 1965)] (rejecting the trial
court’s conclusion that expert testimony was not credible,
where such conclusion rested on an incorrect factual
assumption); see also Traylor v. City of Allentown, . . . 106
5
A.2d 577, 579 ([Pa.] 1954) (observing that even though the
taxpayers’ witnesses ‘were credible in the sense that their
veracity was not impeached, the weight to be given their
testimony, which was oral and opinion, was nonetheless for
the [trial] court to evaluate’).
Green, 772 A.2d at 434 n.11 (emphasis added).
Here, because the trial court did not specify its reason(s) upon which it
concluded that the Property’s value was that listed on the Assessment Card, this
Court remands this case to the trial court with direction to adhere to the Pennsylvania
Supreme Court’s decision in Green.
For all of the above reasons, we vacate the trial court’s order and remand
the matter to the trial court.
___________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
507-84 Associates, LLC, :
Appellant :
:
v. :
:
Pike County Board of Assessment : No. 663 C.D. 2017
Appeals :
ORDER
AND NOW, this 23rd day of April, 2018, the Pike County Common
Pleas Court’s April 27, 2017 order is vacated, and the matter is remanded to the trial
court for a decision consistent with this opinion.
Jurisdiction relinquished.
___________________________
ANNE E. COVEY, Judge