6 Pa. Commw. 187 | Pa. Commw. Ct. | 1972
Opinion by
All of the parties to this assessment case, the taxpayer, the Board of Property Assessment, Appeals and Review of Allegheny County (the Board), and the local taxing bodies, appealed the order of the Court of Common Pleas of Allegheny County to the Supreme Court. The appeals have been transferred here.
Involved are two triennial assessments, one for the years 1959, 1960 and 1961, and the other for the years 1965, 1966 and 1967. The taxpayer, Miracle Mile Town and Country Shopping Center, Inc., is the owner of a premises containing a total of 34.519 acres of land located in the Borough of Monroeville, which is a part of the Gateway School District. Undoubtedly because it was acquired by separate transactions, taxpayer’s property was at all times relevant to this case assessed for local tax purposes by the County of Allegheny as two parcels; one containing 30.349 acres on which is located the buildings of a shopping center, and the other, an adjacent parcel of 4.17 acres, without buildings. The larger tract fronts on William Penn Highway, a four-lane major thoroughfare. The 4.17-acre tract is located at the rear of the shopping center buildings at a lower elevation, but has frontage on and access to a public highway known as Northern Boulevard. A service road provides access between the tracts.
The taxpayer appealed from the assessment of both tracts for the 1959 triennium and of the 30.349 tract only for the 1965 triennium. The 4.17-acre tract was assessed for both trienniums in the amount of $19,960. The 30.349-acre tract with buildings was assessed for the 1959 triennium at $2,445,860; and for the 1965 triennium at $2,956,95o.
The second series of cases resulting from the failure of Allegheny County taxing authorities to assess properties at actual value or otherwise establish a uniform ratio which would satisfy property owners, consists of: Massachusetts Mutual Life Insurance Co. Tax Asesssment Case, 426 Pa. 566, 235 A. 2d 790 (1967) ; Federal Cold Storage Co. Tax Assessment Case, 426 Pa. 573, 235 A. 2d 800 (1967) ; Crescent Realty and Investment Co. Tax Assessment Case, 426 Pa. 575, 235 A. 2d 799 (1967); Fifth and Wood Realty Corporation Tax Assessment Case, 426 Pa. 577, 235 A. 2d 798 (1967) ; Regional Industrial Development Corporation of Southwestern Pennsylvania Tax Assessment Case, 426 Pa. 578, 235 A. 2d 797 (1967) ; Stanley Co. of America, Inc. Tax Assessment Case, 426 Pa. 581, 235 A. 2d 800 (1967); F. W. Woolworth Co. Tax Assessment Case, 426 Pa. 583, 235 A. 2d 793 (1967); W. T. Grant Co. Tax Assessment Case, 426 Pa. 587, 235 A. 2d 796 (1967). In these the taxpayers produced the testimony of Dr. Raymond L. Richman, an economist, who had made a study of the sales of real estate in the county and had compared assessed values to sale prices in order to arrive a,t the ratio actually used. For the years 1958, 1959 and 1960 Dr. Richman examined all sales, for the year 1961 he used Census Bureau figures, and for the years 1962 and 1963 he used a sampling technique. The Allegheny County courts accepted and used Dr. Richman’s ratios thus established and its action in this regard was affirmed in the cases cited. In the F. W. Woolworth Co. Tax Assessment Case, supra, he testified that the ratio
By the time the record remanded by the Supreme Court was scheduled for trial in the court below, the taxpayer had appealed from the triennial assessment of its 30-acre tract for the years 1965, 1966 and 1967, and that appeal was consolidated for trial with the remanded appeals of the 1959 triennial assessments of both the 30- and 4-acre tracts. Pretrial conferences were held, participated in by the taxpayer and the Board of Property Assessment, Appeals and Review, the only respondent then of record. It was agreed that the ratio for the 1959 triennium to be applied to the court’s determination of actual value should be Dr. Richman’s 41.4 percent.
At the trial the taxpayer produced the testimony of two expert real estate appraisers who expressed their opinions as to the actual value of the 84.519 aeres, based chiefly upon the capitalization of the average net income of the shopping center for the three years immediately preceding each triennium. Although the taxpayer states in his history of the case that his experts took into consideration various factors in their valuations, one of the experts testified preliminarily to giving his opinion of value .. that the predominating and only approach as far as value, in my opinion, that is valid is the capitalization approach.” The other said “. . . the individual purchasing it is interested strictly in it primarily in the income stream but with looking up the quality of construction as far as reproduction costs
On the subject of the ratio to be applied to the 1959 value, counsel for the taxpayer submitted Hr. Bichman’s 1959 ratio of 41.4 percent because it had been agreed upon at pretrial conferences and was appropriate in virtue of the 1967 Supreme Court cases. Counsel for the Borough of Monroeville which, as noted, had intervened eight days before trial, although the case had been pending for more than four years since remand, objected on the ground that the Bichman report was not physically produced for examination by the Borough, that Hr. Bichman was not present for examination and cross-examination, that the findings of ratio in that report, although accepted by the court and affirmed by the Supreme Court in other cases, were not binding in this case, and that, although Hr. Bichman had testified his finding of ratio was 41.4 percent for 1959, none of the 1967 cases affirmed by the Supreme Court involved the
As we have noted, no party below produced evidence of the value either of the 30-acre tract with buildings, exclusive of the four-acre parcel, or of the four-acre parcel exclusive of the 30-acre tract. If the witnesses had so testified the task of the hearing judge and of this court would have been made easier. Technically, the hearing judge might well have dismissed the appeals at the conclusion of the taxpayer’s case, there being no evidence then before him (other than that of the assessments) of a value of either of the properties involved in the 1959 appeal or of the 30-acre tract involved in the 1965 appeal. The taxing bodies’ case proceeded along the same line. However, its expert, an obviously astute and well qualified appraiser, in describing his consideration of the income approach, referred to eight of the total of 34.519 acres as being “excess acreage” not used for shopping center purposes. Part of these eight acres were the four-acre separately assessed property. The balance was unused frontage on William Penn Highway. Although subjected to rigorous cross-examination, the witness repeatedly rejected the suggestion that the value of any part of the excess eight acres, including the appealed four-acre parcel, might be ascertained by dividing by eight the figure he had put on the total. He conceded, as a matter of mathematics, that if his valuation of these eight excess acres were so divided a per acre value in 1959 of $40,000 and in 1965 of $65,-000 would be produced.
We arrive, finally, at the several contentions of the parties on this appeal.
The taxpayer contends that the court included the 4.17 acres at rates of $40,000 and $65,000 per acre in its determination of market values and then deducted from the assessment based on this figure only the actual assessment of the 4.17 acres at a figure of $19,960. It argues that the court should have first deducted approximately $160,000 from the 1959 assessment and approximately $260,000 from the 1965 assessment, applied the 41.4 percent ratio and then deducted the $19,960 figure. We disagree. First, as we have indicated, there is no evidence that the 4.17 acres was itself worth $40,000 per acre in 1959 and $65,000 per acre in 1965.
The dimensions of our review in this kind of case are small. The findings of the court of common pleas must be given great force and may not be set aside by us unless clear error appears. Park Drive Manor, Inc. Tax Assessment Case, 380 Pa. 134, 110 A. 2d 392 (1955). The lower court’s findings of value have justification in the record. For the reasons we have hereinbefore set out, we believe that the taxpayer has misapprehended
At the hearing, the taxpayer offered to call a member of the Board as if under cross-examination. It complains of the court’s refusal of its offer. The subject is covered by Section 7 of the Act of May 23, 1887, P. L. 158, as amended, 28 P.S. §381, which compels such testimony of persons “whose interest is adverse” to the party calling them. Literally, a member of the assessment board has no interest adverse to a property owner because he has no personal interest in the outcome. Suckling v. Pennsylvania, Threshermen and Farmers’ Mutual Casualty Insurance Co., 426 Pa. 503, 233 A. 2d 279 (1967); Jordan v. Clearfield County, 107 Pa. Superior Ct. 441, 164 A. 98 (1933). Furthermore, the purpose of the offer, as we understand the colloquy, was to show that the Board did not have in its possession information concerning, and therefore did not consider, the earnings of the shopping center when assessing the property. The only purpose of such testimony would be to overcome the prima facie validity of the assessment. As this was accomplished by the taxpayer otherwise, the court’s ruling was not prejudicial. Even if error, it would be no ground for reversal. Suckling v. Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Co., supra; Rudella v. Lofland, 213 Pa. Superior Ct. 305, 247 A. 2d 792 (1968).
The Borough has briefed the question of the date from which interest upon any refund should be calculated. This was not at issue below and cannot be considered here. It is devoutly to be hoped that, since this litigation has already consumed an inordinate amount of time, attention and expense, the parties will reach agreement on this issue.
The order of the court below is affirmed; the costs shall be divided equally among all parties of record.
Adjustments of the basic assessments for additions to or removal of improvements were made in some of the succeeding years in each triennium. No issue has been made as to these.
Compare the Fourth to- Eighth Class Comity Assessment Law requiring the chief assessor to determine the actual value of properties and that properties be assessed at a pre-determined ratio of actual value fixed, by County Commissioners, Section 602 of the Act of May 21, 1943, P. L. 571, as amended, 72 P.S. §5453.602.
It was stipulated by all parties that the ratio for the 1965 triennium was 50 percent.
These per acre figures were injected into the case by the taxpayer’s counsel. The witness testified with supporting compa
Indeed, in rebuttal, one of the taxpayer’s experts testified that the four acres in question would have a value of about $10,000 per acre in 1959 and on cross-examination $12,000 or $18,000 per acre in 1965. Since these were the only separate valuation figures, other than the assessment of the 4.17 acres, the $10,000, $12,000 or $13,000 per acre figures would be the only figures on this record