           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bethlehem Area School District,                  :
                 Appellant                       :
                                                 :
               v.                                :
                                                 :
The Board of Revenue Appeals                     :
of Northampton County and                        :   Nos. 298 & 357 C.D. 2019
Lehigh Crossing Associates, LP                   :   Argued: December 10, 2019



BEFORE:        HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION
BY JUDGE FIZZANO CANNON                              FILED: January 16, 2020


               Bethlehem Area School District (District) appeals from the orders of
the Court of Common Pleas of Northampton County (trial court) dated February 14,
2019, that granted the motion for summary judgment filed by Lehigh Crossing
Associates, LP (Taxpayer) and dismissed the District’s tax assessment appeals.1 The
trial court concluded that the evidence of record showed that “no triable issue of fact
exists” and the assessment appeals were “borne out of a systematic and intentional
practice of selectively targeting commercial properties” in violation of the




       1
          Though named as a party to this matter, the Board of Revenue Appeals of Northampton
County (Board) was precluded from filing a brief and participating in oral argument because it
failed to file a brief pursuant to an earlier order of this Court dated August 14, 2019. Cmwlth. Ct.
Order dated 9/10/19. Likewise, the Board did not participate before the trial court though it was
listed as a party.
Uniformity Clause of the Pennsylvania Constitution.2 Upon review, we conclude
that the trial court erred as a matter of law, and therefore, we reverse the trial court
and remand this matter for further proceedings consistent with this opinion.
               This matter commenced on July 27, 2012 when the District appealed
the tax assessments of two properties, Tax Parcel N7 2 1D-1 0204 and Tax Parcel
N7 2 1D-1 0212 (collectively, Property), owned by the Taxpayer, seeking an
increase in the assessments for the tax year commencing January 1, 2013. 3
Reproduced Record (R.R.) at 3a, 11a, & 18a. The Property is located within the
boundaries of the District, includes “a multi-unit apartment complex, and operates
as one single economic unit.” See Trial Court Orders and Opinions dated 2/14/19
n.1; R.R. at 3a & 11a. In 2012, the combined assessed value of the Property was
$2,268,300, which correlates to a 2013 tax year implied market value of $6,048,800.
R.R. at 18a. After hearings on the matter, the Board of Revenue Appeals of
Northampton County (Board) dismissed the appeal and stated that “[t]here will be
no change in the assessment.” R.R. at 8a & 16a.

       2
         The Uniformity Clause provides that “[a]ll taxes shall be uniform, upon the same class of
subjects, within the territorial limits of the authority levying the tax, and shall be levied and
collected under general laws.” Pa. Const. art. VIII, § 1.
       3
        The District filed its appeals pursuant to Section 8855 of the Consolidated County
Assessment Law, which provides as follows:

               A taxing district shall have the right to appeal any assessment within
               its jurisdiction in the same manner, subject to the same procedure
               and with like effect as if the appeal were taken by a taxable person
               with respect to the assessment, and, in addition, may take an appeal
               from any decision of the board or court of common pleas as though
               it had been a party to the proceedings before the board or court even
               though it was not a party in fact. A taxing district authority may
               intervene in any appeal by a taxable person under section 8854
               (relating to appeal to court) as a matter of right.

53 Pa.C.S. § 8855.
                                                 2
             On December 7, 2012, the District appealed the Board’s decision to the
trial court. R.R. at 1a-16a. Before the trial court, the District argued that the Property
assessment is “substantially lower than assessments of comparable properties in the
taxing district” and is based on an “erroneous determination of the fair market value
particularly as it concerns [the Taxpayer’s] [P]roperty,” in violation of constitutional
and statutory law. Id. at 3a-4a & 11a-12a. The Taxpayer responded with motions
to quash the appeals arguing that the District selectively appealed a “class of
properties, commercial properties, to the exclusion of lower assessed residential
properties” in violation of the Uniformity Clause of the Pennsylvania Constitution
and as provided in Valley Forge Towers Apartments N, LP v. Upper Merion Area
School District, 163 A.3d 962, 978 (Pa. 2017). See Taxpayer’s Motion to Quash
Bethlehem Area School District’s Tax Assessment Appeal (Motion to Quash) ¶¶ 3-
4.
             The District answered the motion to quash and denied that it targeted
commercial properties for appeal, explaining that the Supreme Court in Valley Forge
refrained from holding that the use of a monetary threshold or “some other selection
criteria would violate uniformity if it were [sic] implemented without regard to the
type of property in question or the residency status of its owner.” See Answer to
Taxpayer’s Motion to Quash ¶ 3. The District, relying on Valley Forge, alleged that
it retained an outside consultant to review “all properties in the [D]istrict and identify
those that met the District’s [monetary] threshold and are [under assessed] by an
amount sufficient to justify the cost of litigation.” Id. ¶ 7 (emphasis in original).
The District alleged that “[b]ased on recommendation of counsel, it was believed
that the average tax assessment appeal taken through trial would cost $10,000.
Therefore, the direction given to counsel was to identify properties where there was


                                            3
a reasonable expectation of generating at least $10,000 in potential tax increase”
($10,000 threshold). See Memorandum of Law in Opposition to Taxpayer’s Motion
to Quash at 5. By order dated November 20, 2017, the trial court denied the
Taxpayer’s motion to quash. Trial Court’s Order dated 11/20/17 n.1 & R.R. at 42a-
43a. The trial court noted in its order that

             [a]t this stage in the litigation, without the benefit of
             discovery, we cannot conclude that the monetary threshold
             set by [the District] was merely a proxy for the sub-
             classification of commercial properties. Our ruling is
             without prejudice to [the Board and the Taxpayer] such
             that [the Board and the Taxpayer] may move for summary
             judgment after the parties have completed discovery.
Id. The parties completed discovery, and, thereafter, the Taxpayer filed a motion for
summary judgment with the trial court, which the District contested. In their filings
with the trial court, the parties relied on the following facts.
             On February 27, 2012, the District, through the Bethlehem Area School
Board (School Board), voted to retain a consulting firm, Keystone Realty Advisors,
LLC (Keystone), to assist with identifying properties for the District to consider
bringing assessment appeals. R.R. at 23a-33a. The minutes of the February 27,
2012 School Board meeting provided as follows:


             During the past few weeks, the administration discussed
             with the [School] Board the concept of the District taking
             a proactive approach to real estate assessments whereby
             the District can identify under assessed properties to be
             evaluated for their fair market value rather than simply
             allowing the taxpayer to file reduction appeals. Several
             school districts are currently doing exactly this in
             identifying [under assessed] properties, which meet a
             predetermined threshold to conduct a reverse appeal
             presented by the school district rather than the property

                                            4
            owner. This process serves to identify and correct
            valuation inequities among comparable properties and
            addresses the proper share of taxation between
            commercial and residential owners. When commercial
            parcels are undervalued because of corporate expertise and
            resources in filing assessment reduction appeals, the
            residential property owner ultimately subsidizes that
            reduction in revenue.
R.R. at 25a (emphasis added). A copy of the agreement between the District and
Keystone was attached to the February 27, 2012 meeting minutes. Id. at 27a-32a.
The agreement provides that Keystone would receive a contingency fee of 30% of
any increased tax revenue that the School District generates through a Keystone
assisted assessment appeal. Id. at 29a. The agreement further states that

            [Keystone] agrees to provide an ongoing review of the
            property tax assessment of real estate parcels located in the
            client’s geographic area comprising a variety of property
            types to be determined at the direction of [the District]
            with the intent of identifying properties which may
            warrant review by [the District] and its attorney for
            consideration of a [District] initiated tax appeal (“reverse
            appeal”).
Id. at 27a (emphasis added). Based on the agreement, Keystone identifies the
properties in the District to consider for assessment appeals and reviews them with
the District’s solicitor. Id. at 129a. The solicitor then meets with the District’s
Administration, namely the Chief Financial Officer (CFO) and Superintendent,
which recommends approval to appeal the assessments to the School Board. Id. The
School Board approves the Administration’s recommendation. Id. After Keystone
was retained, Keystone identified 27 commercial properties for appeal, and on July
23, 2012, the School Board approved assessment appeals on all 27 commercial
properties. Id. at 39a. The next day, an article was published on the Lehigh Valley


                                         5
Live website summarizing the July 23, 2012 School Board meeting and indicated
that the School Board hired Keystone “to identify commercial and industrial
properties that are [under assessed] so the [D]istrict can file an appeal to raise their
taxable value.” Id. at 40a (emphasis added). A few days later, the District initiated
assessment appeals for the 2013 year, just ahead of the August 1, 2012 filing
deadline, including the appeals of the Property at issue. Id. at 75a.
             Based on the aforementioned facts, the Taxpayer argued to the trial
court that summary judgment was appropriate because the facts show that the
District targeted only commercial properties for assessment appeals. R.R. at 74a-
77a. The Taxpayer relied on the February 27, 2012 School Board meeting minutes
stating that “[t]his process serves to identify and correct valuation inequities among
comparable properties and addresses the proper share of taxation between
commercial and residential owners.” Id. at 25a & 74a-75a. Further, the Taxpayer
asserted that the District did not file any appeals on residential properties in 2012
nor in any year thereafter. Id. at 63a-65a & 77a. Though the District argues that it
was not targeting commercial properties but relying on a $10,000 threshold, the
Taxpayer explained that the agreement with Keystone did not contain any language
referencing a $10,000 threshold and there was nothing in writing evidencing such a
policy. Id. at 57a, 63a & 76a-77a. Therefore, the Taxpayer argued:

                   The . . . District produced nothing in discovery to
             demonstrate that the policy claimed by counsel had been
             followed with respect to residential properties.
                   Furthermore, nothing was produced demonstrating
             how and why certain properties were chosen for appeal.
             No documents were produced setting forth Keystone’s
             analysis of the properties chosen to be appealed, nor any
             documents setting forth the list of recommendations from
             Keystone. Nor was there any documentation as to how the

                                           6
              residential properties were reviewed to determine if the
              $10,000 policy would apply to them. . . . All the . . . District
              has confirmed is that (1) Keystone recommended appeals
              on commercial properties, (2) appeals were filed on each
              commercial property by the . . . District, (3) no appeals
              were filed on residential properties, and (4) [t]he . . .
              District has failed to produce any evidence or
              documentation to support the . . . District’s claim that
              residential properties were ever considered for appeal.
Id. at 77a.
              The District responded that the motion for summary judgment should
be denied because the record supports its assertion that it utilized the $10,000
threshold without regard to property type. R.R. at 91a. In support, the District relied
on an affidavit executed by the District’s CFO, Stacy M. Gober, who represented
that the District developed the $10,000 threshold in consultation with its solicitor so
as to account for the potential costs of litigating the appeals. Id. at 130a & 216a.
The CFO expressly stated that the $10,000 threshold was “not developed based on a
[sic] sub-classifications of properties based on property type,” and the threshold is
implemented without regard to property type. Id. The CFO further stated that “no
appeals on residential properties have been filed to date because no residential
properties have met the District’s [$10,000] [t]hreshold.” Id.
              The District also cited the deposition testimony of the Superintendent
who testified that since the inception of the appeals program, the District has not
imposed any limitations on Keystone as to its process of identifying under-assessed
properties. R.R. at 137a, 140a & 216a-17a. The Superintendent indicated that the
District relies upon the expertise of its consultants to carry out the identification
process within the parameters of the $10,000 threshold. Id. Although the $10,000
threshold has not been reduced to a formal written policy, the Superintendent
indicated that the $10,000 threshold was discussed prior to executing the agreement
                                             7
with Keystone and since the implementation of the appeals policy. Id. at 137a &
228a. The Superintendent confirmed that residential property owners have never
been advised that they were excluded from a District-initiated appeal and that it is
not feasible for the District to appeal every single under-assessed property in the
District. Id. at 135a & 141a. The District argued that, despite the Taxpayer’s
representation that the District selectively appealed only commercial properties in
2012:
               all that is clear from the record is that the District filed
               appeals only on commercial properties. This is a fact not
               in dispute and does not implicate a violation of the
               Uniformity Clause. The record further suggests that these
               appeals were not “selective” but rather all property types
               were considered and that appeals were not filed on
               residential properties because no residential properties met
               the District’s threshold.
Id. at 224a.
               After considering the parties’ arguments, the trial court granted the
Taxpayer’s motion for summary judgment and dismissed the District’s appeal. See
Trial Court Orders and Opinions dated 2/14/19. In dismissing the appeal, the trial
court relied on Valley Forge and concluded that the Taxpayer “demonstrated that no
triable issue of fact exists as to whether the instant tax assessment appeal was borne
out of a systematic and intentional practice of selectively targeting commercial
properties for [District]-initiated appeals, in violation of the Uniformity Clause of
the Pennsylvania Constitution.” Id. at 9. In so concluding, the trial court explained
that the February 27, 2012 minutes from the School Board meeting included a
recommendation to “identify and correct valuation inequities among
comparable properties and address the proper share of taxation between
commercial and residential owners.” Id. at 6 (emphasis in original). Further, since


                                            8
the inception of the appeals program, not a “single residential property has been
selected for tax assessment appeal, because none have satisfied the $10,000
[t]hreshold.” Id. Additionally, minutes from the July 23, 2012 School Board
meeting indicate that 27 properties had been approved for tax appeal, all income-
producing, non-residential properties. Id. Based on these facts, the trial court
reasoned:

              While it is true that the mere fact that only commercial
              properties were appealed since 2012 does not necessarily
              indicate a Uniformity Clause violation, here, there is
              enough additional evidence to support the conclusion that
              it was not a mere coincidence. The evidence adduced in
              discovery clearly evinces that from the inception of the
              agreement with Keystone, the . . . District (a) distinguished
              between commercial and residential property owners and
              juxtaposed one class of tax payers [sic] against another,
              and (b) actively sought to impose an increased tax burden
              on one class in order to rectify perceived “valuation
              inequities among comparable properties.”
Id. at 7 (emphasis added). The District brought this appeal.4
              Before this Court, the District contends that the trial court erred when
it granted summary judgment and dismissed the appeal because it failed to adhere to
the standard of review in summary judgment proceedings, “which is not to determine
facts, but only to determine if genuine issues of material fact exist.” District’s Brief
at 11. The District asserts that the trial court erred because it failed to “take all facts
of record and reasonable inferences therefrom in the light most favorable to the non-
moving party [that is, the District].” Id. The District contends that the trial court
“made credibility determinations and completely disregarded the deposition


       4
        By order dated May 20, 2019, this Court consolidated the cases sua sponte. Cmwlth. Ct.
Order dated 5/20/19.
                                              9
testimony of [the Superintendent],” as well as the CFO’s sworn affidavit. Id. The
District asserts that the trial court, instead, accepted “as controlling an
unauthenticated, out of context document submittal [sic] from a School Board
meeting. This summary, when taken out of context, is ambiguous and unclear at
best and cannot form the basis for the [trial court’s] finding that no triable issue of
fact exists.” Id. The Taxpayer counters that the facts of record supported the trial
court’s determination. Taxpayer’s Brief at 8. Specifically, the Taxpayer argues:

             assessment appeals were filed by the District in 2012 on
             27 properties, all of which were commercial properties.
             No appeals were filed on residential properties, and in fact
             no such appeals have been filed at any time since 2012.
             Furthermore, the District failed to produce any evidence
             whatsoever which would show that residential properties
             were considered for an appeal or how such a review
             transpired. The District merely asserts without any
             support that there was a monetary threshold of $10,000 of
             additional school district real estate tax. At no time has
             the District demonstrated that the alleged monetary
             threshold was followed by Keystone in analyzing or
             recommending appeals.
Id.   The Taxpayer asserts that the “evidence presented led to only one clear
conclusion, that the District’s reverse assessment appeals were in violation of the
Uniformity Clause of the Pennsylvania Constitution.” Id.
             An appellate court may reverse a grant of summary judgment if there
has been an error of law or an abuse of discretion. Nicolaou v. Martin, 195 A.3d
880, 892 (Pa. 2018). Summary judgment is proper only where there is no genuine
issue concerning any material fact and the moving party is entitled to judgment as a
matter of law. See Bailets v. Pa. Tpk. Comm’n, 123 A.3d 300, 304 (Pa. 2015); see
also Pa.R.C.P. No. 1035.2(2) (providing that summary judgment is proper if after


                                          10
the completion of discovery, the “adverse party who [sic] will bear the burden of
proof at trial has failed to produce evidence of facts essential to the cause of action
or defense which in a jury trial would require the issues to be submitted to a jury”).
If the claim is whether there are genuine issues of material fact, this is a question of
law, and “our standard of review is de novo and our scope of review is plenary.”
Nicolaou, 195 A.3d at 892. In considering a motion for summary judgment, the
record must be viewed in the light most favorable to the non-moving party, and all
doubts as to whether a genuine issue of material fact exists are resolved against the
moving party. Nicolaou, 195 A.3d at 891; Bailets, 123 A.3d at 304.
             To ascertain a violation of uniformity, the burden is on the taxpayer to
produce evidence to show that the government engaged in conduct constitutionally
prohibited because it is well-settled law that acts of a governmental entity are
presumed constitutional. See Fisher Controls Co. v. Commonwealth, 381 A.2d
1253, 1256-57 (Pa. 1977); see also Petition of Tax Claim Bureau, 77 A.2d 403, 406
(Pa. 1951). Section 8855 of the Consolidated County Assessment Law grants a
taxing district “the right to appeal any assessment within its jurisdiction in the same
manner, subject to the same procedure and with like effect as if the appeal were taken
by a taxable person with respect to the assessment.” 53 Pa.C.S. § 8855. Section
8855 does not prohibit a taxing district, or a taxpayer, from appealing an assessment
and there are not restrictions as to the methodology employed by a school district,
or taxpayer, to determine whether to appeal. In re Springfield Sch. Dist., 101 A.3d
835, 847 (Pa. Cmwlth. 2014). But, a taxing district must exercise its discretionary
power to bring assessment appeals within constitutional boundaries. Valley Forge,
163 A.3d at 980. Because all property in a taxing district is a single class, a taxing
district may violate the constitutional boundaries of the Uniformity Clause if it has


                                          11
a policy to appeal only assessments of one sub-classification of properties, where
that sub-classification is drawn according to property type. Id. at 978.
             In Springfield, this Court explained that a school district’s use of a
statutory appeal mechanism available uniformly to all interested parties does not
amount to deliberate, purposeful discrimination. Springfield, 101 A.3d at 848 (citing
Vees v. Carbon Cty. Bd. of Assessment Appeals, 867 A.2d 742 (Pa. Cmwlth. 2005)).
This Court explained that a school district could decide to appeal assessments on
certain properties if it anticipates a sufficient increased revenue that would result to
justify the costs of appeals and “[j]udicious use of resources to legally increase
revenue is a legitimate governmental purpose.” Id. (citing Weissenberger v. Chester
Cty. Bd. of Assessment Appeals, 62 A.3d 501, 506 (Pa. Cmwlth.), appeal denied, 76
A.3d 540 (Pa. 2013)). A school district, therefore, could adopt a methodology to
narrow “the class of properties evaluated for appeal based upon considerations such
as financial and economic thresholds or by classifications of property[,]” and these
methodologies do not, as a matter of law, demonstrate deliberate, purposeful
discrimination in violation of the Uniformity Clause.             Id. at 848 (citing
Weissenberger, 62 A.3d at 509). Relying on this reasoning, this Court in Springfield
held that the methodology adopted by the school district to select properties for
assessment appeals based on a monetary threshold of $500,000 is “not arbitrary,
capricious or discriminatory” and “[t]he fact that the $500,000 threshold would
mostly subject commercial properties to assessment appeals does not warrant a
different conclusion.” Springfield, 101 A.3d at 849.
             Subsequently, in Valley Forge, the Supreme Court considered whether
a school district’s policy of targeting commercial properties for appeal, while
refusing to appeal assessments on residences for political reasons, violates the


                                          12
Uniformity Clause. Valley Forge, 163 A.3d at 966. In considering whether the
taxpayers alleged sufficient facts in their complaint to support a claim, the Supreme
Court held

                a taxing authority is not permitted to implement a program
                of only appealing the assessment of one sub-classification
                of properties, where that sub-classification is drawn
                according to property type – that is, its use as a
                commercial,       apartment       complex,   single-family
                residential, industrial or the like.
Id. at 978. The Supreme Court, in so holding, explained that real property is the
classification, and therefore, “all real estate in a taxing district is constitutionally
entitled to uniform treatment.” Valley Forge, 163 A.3d at 977 (citing Clifton v.
Allegheny County, 969 A.2d 1197, 1212 (Pa. 2009)). The Supreme Court further
explained that “‘all property must be taxed uniformly, with the same ratio of assessed
value to actual value applied throughout the taxing jurisdiction.’” Id. (quoting
Clifton, 969 A.2d at 1224). Though the Supreme Court disagreed with this Court’s
statement in Springfield that a school district could evaluate properties for appeal
based on classifications without running afoul of uniformity, 5 the Supreme Court
expressly cautioned:

       5
           The Supreme Court in Valley Forge further noted:

                 Our disapproval of Springfield’s interpretation of this Court’s
                 precedent should not be equated to disagreement with the result
                 reached. In Springfield, the property owners challenged a school
                 district’s policy of using a monetary threshold to decide which
                 properties to appeal. . . . They did not allege a scheme involving
                 disparate treatment of property sub-classifications drawn according
                 to property type or the status of its owner as a resident or non-
                 resident of the taxing district.

Valley Forge, 163 A.3d at 975, n.13 (citation omitted).
       Following Valley Forge, this Court in recent unpublished decisions has indicated that all
Valley Forge requires is that the “other selection criteria” used by a taxing authority, whether a
                                                13
               [N]othing in this opinion should be construed as
               suggesting that the use of a monetary threshold—such as
               the one challenged in Springfield—or some other selection
               criteria would violate uniformity if it were [sic]
               implemented without regard to the type of property in
               question or the residency status of its owner.
Valley Forge, 163 A.3d at 979 (emphasis added) (note omitted). We observe that
the Supreme Court in Valley Forge had to accept all the facts alleged by the
taxpayers in their complaint in a light most favorable to the taxpayers given the
procedural posture of the case. Id. at 965.
               But here, unlike the procedural posture of Valley Forge, the trial court
was required to view the record in the light most favorable to the District. See
Pa.R.C.P. No. 1035.2(2). Viewing the record in a light most favorable to the District,
the District submitted evidence that, if found credible, demonstrates that it
implemented the $10,000 threshold without regard to the type of property in
question. In her affidavit, the CFO indicated that the $10,000 threshold was
developed “to account for the potential costs of litigation.” R.R. at 130a. The CFO
expressly stated that the $10,000 threshold was “implemented without regard to
property type” and that no residential properties had been appealed because they


monetary threshold or other methodology, be “implemented without regard to the type of property
in question or the residency status of its owner.” See Punxsutawney Area Sch. Dist. v. Broadwing
Timber, LLC (Pa. Cmwlth., No. 1209 C.D. 2018, filed Oct. 29, 2019), slip op. at 18 (holding that
the school district does not have to have a formal written policy regarding its monetary threshold);
see also East Stroudsburg Area Sch. Dist. v. Meadow Lake Plaza, LLC (Pa. Cmwlth., No. 371
C.D. 2018, filed Oct. 17, 2019), slip op. at 10-11 (explaining that the Supreme Court in Valley
Forge “took pains” to observe that “nothing in [the Valley Forge] opinion should be construed as
suggesting that the use of a monetary threshold—such as the one challenged in Springfield—or
some other selection criteria would violate uniformity if it were [sic] implemented without regard
to the type of property in question or the residency status of its owner”). See 210 Pa. Code §
69.414(a) (explaining that an unreported opinion of this Court may be cited and relied upon when
relevant for its persuasive value but not as binding precedent).
                                                14
have not met the $10,000 threshold. Id. (emphasis added). The agreement provided
that Keystone would review properties “located in the [District’s] geographic area
comprising a variety of property types.” R.R. at 27a (emphasis added). The
Superintendent testified that the District relies upon Keystone to identify properties
that meet the $10,000 threshold and that it is not feasible to appeal every single
under-assessed property in the District. R.R. at 135a & 141a. The Superintendent
further testified that residential property owners have never been advised that they
were excluded from a District-initiated appeal. Id. Reviewing this evidence in a
light most favorable to the District, the trial court or a jury could ultimately conclude
that the $10,000 threshold is implemented without regard to property sub-
classification as permitted by Springfield and Valley Forge.
             The trial court here, however, reached a contrary conclusion. In so
concluding, the trial court stated that the evidence


             adduced in discovery clearly evinces that from the
             inception of the agreement with Keystone, the . . . District
             (a) distinguished between commercial and residential
             property owners and juxtaposed one class of tax payers
             [sic] against another, and (b) actively sought to impose an
             increased tax burden on one class in order to rectify
             perceived “valuation inequities among comparable
             properties.”
Trial Court Orders and Opinions at 7. But, to reach this conclusion, the trial court
had to disregard the evidence presented by the District and find as credible the
evidence presented by the Taxpayer. Upon review of the trial court’s opinions, it
appears that the trial court relied on the February 27, 2012 School Board meeting
minutes. Id. at 7. But, as asserted by the District, “the statements contained in this



                                           15
document are ambiguous and their meaning is open to interpretation such that
reasonable minds can differ.” District’s Brief at 24. The District explains:

               The statements reflect, at most, a paraphrasing of the state
               of affairs in the District at the time the District retained
               Keystone to pursue District-initiated assessment appeals
               in 2012. The meaning and intent behind these statements
               are subject to interpretation that only a finder of fact,
               considering the credibility of the declarant, is permitted to
               make and only outside the context of a motion for
               summary judgment. It is even unclear from the record
               who prepared the statement, what the intended purpose of
               the document is, or what the context was in which the
               statement was provided.
Id. at 24-25. In further support of its assertion, the District relied upon other
evidence in the record that allows for a different interpretation of the School Board
meeting minutes. Id. at 25-27.
               The District cites the Superintendent’s testimony where he stated that
he did not make any statements at the February 27, 2012 School Board meeting as
to whether commercial properties would be targeted for appeals. District’s Brief at
26 & R.R. at 135a. Further, the District asserts that the Superintendent explained
that, when giving his report at the July 23, 2012 School Board meeting,6 he focused
on commercial property owners because

      6
          The July 23, 2012 minutes indicate that the Superintendent reported as follows:

               Everyone agrees that the property tax is the most dominant source
               of funds for schools and contains many inequities. Most commonly
               it is heard the value of someone’s home doesn’t necessarily match
               their income or their ability to pay their property tax particularly for
               retired citizens. Property tax inequities are reduced when properties
               of residential and commercial properties are properly assessed. Due
               to long periods without countywide reassessments, inequities grow.
               Additionally, large, often commercial property owners with legal
               and financial resources to file assessment appeals are successful in
                                                 16
              [w]e certainly have residential property owner-initiated
              appeals. The dollar value that we lose in revenue is less
              than commercial. However, I did also mention that there
              are well-resourced property owners, referencing that there
              are residential property owners that [are] also of means
              that file reassessments.
District’s Brief at 26-27 & R.R. at 139a & 159a. When asked at his deposition what
he meant by “significant properties,” the Superintendent responded, “That is
referring to the $10,000 threshold that if . . . there’s a potential for your tax bill to go
up – increase by [$]10,000 . . . then there’s some substantial value there.” District’s
Brief at 27 & R.R. at 139a & 159a. Accepting this evidence in a light most favorable
to the District, the District asserts these statements show that it “did not draw any
distinctions between commercial and residential property owners in the
establishment and/or implementation of the District-initiated appeals program.”
District’s Brief at 26.




              reducing their property taxes, and a combination of the lack of
              countywide reassessments, along with certain well resourced
              property owners gaining lower property taxes enhances inequities.
              In the end, the [D]istrict faces reduced property tax revenue as a
              result of the appeals and all the property owners pick up the burden
              when some properties are not accurately assessed. I am encouraging
              the Board’s approval of this agenda item tonight. Citizens in the
              [D]istrict feel confident that all property owners should pay their fair
              share. The [School] Board in February approved a process to
              identify significant properties that are believed to be [under-
              assessed], and they are not paying their fair share. The agenda item
              tonight authorizes the [D]istrict solicitor to initiate the municipal
              appeal often referred to as reverse appeals process. The properties
              affected are listed on the agenda. We believe the resolution of the
              appeals could result in $1,500,000 to $2,000,000 of additional
              property tax revenue . . . .

R.R. at 35a & 159a.
                                                17
              We agree with the District that the statements in the meeting minutes
and as evidenced by the Superintendent’s testimony are subject to varying
interpretations and therefore, reasonable minds could differ as to their meaning. See
Basile v. H & R Block, Inc., 761 A.2d 1115, 1118 (Pa. 2000) (providing that “[w]hen
the facts are so clear that reasonable minds cannot differ, a trial court may properly
enter summary judgment”); see also Wheeler v. Johns-Manville Corp., 493 A.2d
120, 123 (Pa. Super. 1985) (explaining that on a summary judgment motion the
court’s function is not to try disputed issues of fact but simply to determine whether
any genuine issues of material fact exist). Because reasonable minds could differ
regarding whether the District established and implemented an appeals policy
designed to target commercial properties, the trial court should have concluded that
genuine issues of material fact exist. LEM 2Q, LLC v. Guar. Nat’l Title Co., 144
A.3d 174, 178 (Pa. Super. 2016) (explaining that if the record contains evidence that
“would allow a fact-finder to render a verdict in favor of the non-moving party, then
summary judgment should be denied”). The trial court, therefore, erred as a matter
of law when it granted the motion for summary judgment and dismissed this matter.7
              For these reasons, we reverse the trial court’s orders dismissing this
matter and remand to the trial court for further proceedings consistent with this
opinion.


                                           __________________________________
                                           CHRISTINE FIZZANO CANNON, Judge




       7
         Due to our disposition, we need not reach the District’s argument that the trial court
additionally erred in its application of the burden of proof in a uniformity challenge.
                                              18
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bethlehem Area School District,            :
                 Appellant                 :
                                           :
            v.                             :
                                           :
The Board of Revenue Appeals               :
of Northampton County and                  :   Nos. 298 & 357 C.D. 2019
Lehigh Crossing Associates, LP             :


                                    ORDER


            AND NOW, this 16th day of January, 2020, the February 14, 2019
orders of the Court of Common Pleas of Northampton County (trial court) granting
Lehigh Crossing Associates, LP’s motion for summary judgment and dismissing the
Bethlehem Area School District’s appeals are REVERSED.             This matter is
REMANDED to the trial court for proceedings consistent with this opinion.
            Jurisdiction relinquished.




                                         __________________________________
                                         CHRISTINE FIZZANO CANNON, Judge
