           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colonial School District              :
                                      :
             v.                       :              No. 530 C.D. 2019
                                      :              Submitted: March 24, 2020
Montgomery County Board of            :
Assessment Appeals, Metroplex West :
Associates, L.P., Plymouth Township :
and Montgomery County                 :
                                      :
Appeal of: Metroplex West Associates, :
L.P.                                  :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                              FILED: May 28, 2020

               Metroplex West Associates, L.P. (Taxpayer) appeals an order of the
Court of Common Pleas of Montgomery County (trial court) that denied Taxpayer’s
petition to dismiss Colonial School District’s appeal of Taxpayer’s assessment as
unconstitutional. Taxpayer’s petition asserted that the School District’s tax
assessment appeal policy violates the Uniformity Clause of the Pennsylvania
Constitution1 because it targets only commercial properties. School District argues
the trial court’s order was interlocutory and unappealable, and, thus, Taxpayer’s
appeal to this Court should be quashed.




1
 “All 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.
                                    Background
              Taxpayer owns a 58.5-acre parcel of land located in Plymouth
Township, Pennsylvania, which has been developed as a shopping mall. The mall’s
retailers include, inter alia, Best Buy, Giant Food Stores, Old Navy, and Bed Bath
and Beyond. Taxpayer pays a real estate tax of approximately $1,158,784 per
annum. Because of market conditions and competition from other malls, a number
of stores have closed or left Taxpayer’s mall. In July of 2013, the School District
filed a so-called “reverse assessment” appeal, asserting that Taxpayer’s property was
under-assessed. The Montgomery County Board of Assessment Appeals (Board)
conducted a hearing on the School District’s appeal. Because the School District
did not submit an expert valuation of Taxpayer’s property, the Board issued a notice
of no change to Taxpayer’s assessment. On October 17, 2013, the School District
appealed the Board’s decision to the trial court. The School District did limited
discovery but did not move the case to trial.
              While the School District’s appeal was pending, the Supreme Court
decided Valley Forge Towers Apartments N, LP v. Upper Merion Area School
District, 163 A.3d 962 (Pa. 2017). There, the Supreme Court held that

              a taxing authority is not permitted to implement a program of
              only appealing the assessments of one sub-classification of
              properties, where the 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.
              On December 21, 2018, Taxpayer filed a petition to dismiss the School
District’s tax assessment appeal asserting that the appeal violated the Uniformity
Clause because the School District had targeted only commercial real estate for

                                          2
assessment appeals and virtually ignored residential properties. Petition, ¶28, at 5;
Reproduced Record at 24a (R.R. __).2 Further, the School District had not adopted
a formal written policy setting forth its criteria for challenging existing tax
assessments.
                 On April 2, 2019, the trial court conducted a hearing on Taxpayer’s
petition to dismiss the School District’s appeal of Taxpayer’s assessment of
$43,690,940, which equated to a fair market value of $68,913,154. The School
District argued that the actual market value of the mall was much higher. In support,
the School District argued that in 2013, Taxpayer obtained a mortgage of $87 million
on the property. Notes of Testimony, 4/2/2019, at 8 (N.T. __); R.R. 238a. In
connection with that mortgage loan, the lender appraised the mall as having a fair
market value of $120 million. In 2015, the School District’s consultant appraised
the mall as having a fair market value of $123 million.
                 In support of its constitutional challenge to the School District’s appeal,
Taxpayer presented both documentary evidence and the testimony of David
Szablowski, the School District’s Business Administrator. Szablowski testified that
he was responsible for the School District’s finances and, inter alia, served as the
“point person” for tax assessment appeals. N.T. 11; R.R. 241a. Szablowski testified
that he receives monthly real estate transfer tax reports from Montgomery County,
which he reviews for undervalued properties. He then presents his findings to the
School District’s Superintendent, Solicitor and the School Board’s Finance
Committee.
                 Szablowski testified that in September 2018, the School Board adopted
a formal policy for real estate tax assessment appeals. Under this written policy, the


2
    Taxpayer also sought a stay of discovery pending disposition of the petition.
                                                  3
Business Administrator reviews recent real estate transactions. If a property’s sale
price indicates an under-assessment of more than $500,000, then the Business
Administrator and the Solicitor “research the transaction.” Taxpayer’s Hearing
Exhibit No. 1; R.R. 275a. The School Board makes the ultimate decision on whether
to file an assessment appeal.
             Szablowski conceded that all of the School District’s pending tax
assessment appeals for residential properties had been filed before 2013.         By
contrast, from 2012 to 2018, the School District filed 40 commercial property
appeals. For the 10 pending residential tax assessment appeals, the School District
had not obtained appraisals, so those appeals were dismissed by the Board. The
School District’s residential assessment appeals pending with the trial court are
“stagnant,” according to Taxpayer. Taxpayer Brief at 8.
             On cross-examination, Szablowski conceded that he was unaware of
any residential tax assessment appeals filed after 2013. He also testified that the
School District decided to appeal Taxpayer’s assessment because it “felt that the
retail property ... was severely undervalued as far as the fair market value[.]” N.T.
19; R.R. 249a. Szablowski denied that there was “any policy, written or unwritten,”
that the School District “would only file assessment appeals against only commercial
properties.” N.T. 20; R.R. 250a.
                                Trial Court Decision
             The trial court denied Taxpayer’s petition to dismiss the School
District’s assessment appeal, holding that the School District’s assessment appeal
policy did not violate the Uniformity Clause.       The trial court concluded that
Taxpayer did not prove that the School District’s policy targeted only commercial
property. Rather, the evidence showed that the School District had filed assessment


                                         4
appeals “during the time period in question” for residential properties. Trial Court’s
1925(a) Op. at 7. The trial court credited Szablowski’s testimony that “valid reasons,
such as more than $500,000 undervaluing of the property, rather than whether the
property was residential or commercial, would prompt an appeal.” Id. With regard
to Taxpayer’s property, the trial court stated:

              [A] mortgage of $87,500,000 was taken on the [Property] in 2013
              and at that time the lender appraised the property at
              $120,000,000.[] A 2015 appraisal obtained by [the School
              District] showed the value of the [Property] to be $123,000,000.
              These appraisals appear to challenge the current market value of
              $68,913,154 placed on the property by the Board of Assessment
              [A]ppeal[s], and provide a valid and proper basis for [the School
              District] to exercise its statutory right to appeal an assessment.

Id. (footnote omitted).
                                          Appeal
              On April 2, 2019, Taxpayer appealed the trial court’s denial of its
petition to dismiss. On appeal,3 Taxpayer raises one issue. It contends that the trial
court erred in holding that the School District’s tax assessment appeal did not violate
the Uniformity Clause.
              Subsequently, on May 20, 2019, this Court issued the following order:

              NOW, May 20, 2019, upon review of this matter, it
              appears that [Taxpayer] seeks review of the April 2, 2019
              order of the Court of Common Pleas of Montgomery
              County that denied its petition to dismiss tax appeal and
              stay discovery. It further appears that the April 2, 2019
              order is interlocutory and not immediately appealable as

3
  This Court’s review of a tax assessment appeal determines whether the trial court abused its
discretion, committed an error of law, or made findings of fact not supported by substantial
evidence of record. Maula v. Northampton County Division of Assessment, 149 A.3d 442, 444 n.2
(Pa. Cmwlth. 2016) (en banc).
                                              5
               of right. Accordingly, the parties shall address the
               appealability of the April 2, 2019 order in their principal
               briefs on the merits. See Pa. R.A.P. 311, 313, 341.

Before addressing the merits of the trial court’s decision to deny Taxpayer’s petition
to dismiss the School District’s assessment appeal, we address the question raised in
this Court’s order of May 20, 2019.
                       Pennsylvania Rules of Appellate Procedure
               Rule 341(a) of the Pennsylvania Rules of Appellate Procedure states
that “an appeal may be taken as of right from any final order of a government unit
or trial court.” PA. R.A.P. 341(a). A final order is one that “disposes of all claims
and all parties” or “is certified as a final order” by a trial court “pursuant to [Rule]
341(c).”4 PA. R.A.P. 341(b). “The purpose of limiting appellate review to final
orders is ‘to prevent piecemeal determinations and the consequent protraction of
litigation.’” In re First Baptist Church of Spring Mill, 22 A.3d 1091, 1095 (Pa.
Cmwlth. 2011) (quoting Hionis v. Concord Township, 973 A.2d 1030, 1034 (Pa.
Cmwlth. 2009)).
               On the other hand, the Rules of Appellate Procedure authorize an
appeal as of right from certain categories of interlocutory orders, such as the grant


4
 It states, in pertinent part, as follows:
        (c) Determination of finality.--When more than one claim for relief is presented in
        an action, whether as a claim, counterclaim, cross-claim, or third-party claim or
        when multiple parties are involved, the trial court or other government unit may
        enter a final order as to one or more but fewer than all of the claims and parties only
        upon an express determination that an immediate appeal would facilitate resolution
        of the entire case. Such an order becomes appealable when entered. In the absence
        of such a determination and entry of a final order, any order or other form of
        decision that adjudicates fewer than all the claims and parties shall not constitute a
        final order.
PA. R.A.P. 341(c).
                                                  6
of a preliminary injunction. PA. R.A.P. 311(a).5 In addition, the Rules authorize the
appeal of an interlocutory order by permission pursuant to Chapter 13 of the
Pennsylvania Rules of Appellate Procedure. PA. R.A.P. 312.

5
    This rule states, in pertinent part, as follows:
          (a) General rule.--An appeal may be taken as of right and without reference to
          Pa.R.A.P. 341(c) from:
                  (1) Affecting judgments.--An order refusing to open, vacate, or
                  strike off a judgment….
                  (2) Attachments, etc.--An order confirming, modifying,
                  dissolving, or refusing to confirm, modify or dissolve an attachment,
                  custodianship, receivership, or similar matter affecting the
                  possession or control of property, except for orders pursuant to 23
                  Pa.C.S. §§ 3323(f), 3505(a).
                  (3) Change of criminal venue or venire.--An order changing
                  venue or venire in a criminal proceeding.
                  (4) Injunctions.--An order that grants or denies, modifies or
                  refuses to modify, continues or refuses to continue, or dissolves or
                  refuses to dissolve an injunction unless the order was entered:
                      (i) Pursuant to 23 Pa.C.S. §§ 3323(f), 3505(a); or
                      (ii) After a trial but before entry of the final order.
                      Such order is immediately appealable, however, if
                      the order enjoins conduct previously permitted or
                      mandated or permits or mandates conduct not
                      previously mandated or permitted, and is effective
                      before entry of the final order.
              (5) Peremptory judgment in mandamus.--An order granting
              peremptory judgment in mandamus.
              (6) New trials.--An order in a civil action or proceeding awarding
              a new trial, or an order in a criminal proceeding awarding a new trial
              where the defendant claims that the proper disposition of the matter
              would be an absolute discharge or where the Commonwealth claims
              that the trial court committed an error of law.
              (7) Partition.--An order directing partition.
              (8) Other cases.--An order that is made final or appealable by
              statute or general rule, even though the order does not dispose of all
              claims and of all parties.
PA. R.A.P. 311(a).
                                                7
             Rule 312 states that “[a]n appeal from an interlocutory order may be
taken by permission pursuant to Chapter 13 (interlocutory appeals by permission).”
PA. R.A.P. 312. Chapter 13 establishes the procedure for perfecting interlocutory
appeals by permission. Specifically, it requires the interlocutory order to contain the
statement “prescribed by 42 Pa. C.S. §702(b).” PA. R.A.P. 1311(b). The order must
contain the statement that the “order involves a controlling question of law as to
which there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the
matter.” 42 Pa. C.S. §702(b). If the interlocutory order is amended to add this
statement, then a petition for permission to appeal must be filed with the
prothonotary of the appellate court within 30 days after entry of the order. PA. R.A.P.
1311(b).
             Finally, the Pennsylvania Rules of Appellate Procedure authorize “an
appeal as of right from a collateral order of an administrative agency or lower
court.” PA. R.A.P. 313(a) (emphasis added). A collateral order is: (1) separable
from and collateral to the main cause of action, (2) involves a right too important to
be denied review, and (3) presents a claim that will be lost if review is postponed
until final judgment in the case. PA. R.A.P. 313(b). The collateral order rule is to
be applied narrowly, inasmuch as it is an exception to the rule of finality. Gerold v.
Vehling, 89 A.3d 767, 770 (Pa. Cmwlth. 2014).
             Under the first prong, “an order is separable from the main cause of
action if ‘it can be resolved without analysis of the merits of the underlying dispute’
and if it is ‘entirely distinct from the underlying issue in the case.’” Shearer v. Hafer,
177 A.3d 850, 858 (Pa. 2018) (quoting Commonwealth v. Blystone, 119 A.3d 306,
312 (Pa. 2015)). If the order does not affect the merits of the underlying claim, it is


                                            8
separable. The denial of a motion to impose a sanction is separable from, and
collateral to, an underlying civil rights action. See Quarles v. Knapp (Pa. Cmwlth.,
No. 970 C.D. 2016, filed March 22, 2017) (unreported).6
              Under the second prong, the right at stake must be a “significant [one]
relative to the efficiency interests sought to be advanced by the final judgment rule.”
Geniviva v. Frisk, 725 A.2d 1209, 1213 (Pa. 1999). The order must “involve rights
deeply rooted in public policy going beyond the particular litigation at hand.” Id. at
1214. We have held an infringement upon a due process right may be too important
to defer until a final order is issued. Commonwealth ex rel. Kane v. Philip Morris,
Inc., 128 A.3d 334, 344 (Pa. Cmwlth. 2015).
              Under the third prong, the “matter must effectively be unreviewable on
appeal from final judgment.” Commonwealth v. Wells, 719 A.2d 729, 730 (Pa.
1998). “Essentially, the question is whether an erroneous trial court ruling ‘cannot
be undone.’” McKeesport Housing Authority v. Nicholson (Pa. Cmwlth., No. 1730
C.D. 2018, filed January 30, 2020) (unreported) (quoting Ben v. Schwartz, 729 A.2d
547, 552 (Pa. 1999)). For example, an interlocutory order granting an attorney’s
request to withdraw from representation meets the third prong because if the client
“retains new counsel and a final judgment is ultimately reached,” his claim about the
attorney’s withdrawal will be moot. Gerold, 89 A.3d at 771. Likewise, “the
substantial cost a party would incur in defending a claim may equate to an irreparable
loss of a right to avoid the burden entirely.” Philip Morris, 128 A.3d at 345 (quoting
Geniviva, 725 A.2d at 1213).



6
  An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
                                               9
             With these principles in mind, we turn to the question of whether this
Court can entertain the appeal of the trial court’s order that denied Taxpayer’s
petition to dismiss the School District’s reverse assessment appeal.
                        Appealability of Trial Court Order
             The trial court has not yet rendered a decision on the merits of the
School District’s tax assessment appeal, which may, or may not, revise the present
assessment value of Taxpayer’s property.        Because the trial court’s denial of
Taxpayer’s petition to dismiss did not put the parties “out of court,” the order is not
final but interlocutory. Neither party contends that the trial court’s order falls into
the category of interlocutory orders that are appealable as of right under Rule 311,
and Taxpayer did not request permission to appeal pursuant to Rules 312 or 341.
PA. R.A.P. 312, 341. The only question is whether the trial court’s order is
appealable as of right as a collateral order.

             A collateral order is an order separable from and collateral to the
             main cause of action where the right involved is too important to
             be denied review and the question presented is such that if review
             is postponed until final judgment in the case, the claim will be
             irreparably lost.

PA. R.A.P. 313(b). Each element in Rule 313(b) must be satisfied before the order
in question can be considered collateral. Gerold, 89 A.3d at 770.
             The trial court’s order meets the first prong of the collateral order rule
because it relates to Taxpayer’s constitutional issue, which is separable from the
merits of the School District’s appeal challenging Taxpayer’s real estate valuation
as too low. The order meets the second prong because it involves an important
question, i.e., the Uniformity Clause, which prohibits “the government, including
taxing authorities, [from] treat[ing] different property sub-classifications in a

                                           10
disparate manner.” Valley Forge Towers, 163 A.3d at 975. This leaves the third
prong, i.e., whether the interlocutory appeal is necessary lest Taxpayer irreparably
lose its right to pursue its constitutional claim. Taxpayer contends that, while it
could have initiated its own lawsuit against the School District, it would “incur
substantial and unnecessary costs in bringing such an action and defending the
preliminary objections which would undoubtedly be filed by the School District.”
Taxpayer Brief at 18. Taxpayer contends that this case is similar to Philip Morris,
128 A.3d at 354, where it was held that the “substantial cost” of the “defense will
effectively equate to an irreparable loss of a right to avoid the burden entirely.”
              In Philip Morris, the Commonwealth appealed the trial court’s denial
of its motion to compel single-state arbitration and grant of the tobacco
manufacturers’ motion to compel multistate arbitration. The tobacco manufacturers
contended that the Commonwealth’s appeal should be quashed because the order
was interlocutory and not immediately appealable. The Commonwealth conceded
that it would have an opportunity after multistate arbitration to reargue its single-
state position, but it would have to spend “hundreds of hours and millions of dollars”
to arbitrate before its claim for single-state arbitration could be decided years later.
Id. at 342.
              This Court explained that, “[o]rdinarily, the temporary, but ultimately
redressable, deprivation of a right does not constitute an irreparable loss.” Id. at 346.
However, without appellate review, the Commonwealth would be forced to pursue
complex and expensive arbitration through to its completion. Id. Moreover, should
the Commonwealth ultimately prevail on this issue in a later appeal, “the victory will
be hollow as it will have already arbitrated its diligence in a multistate proceeding.”




                                           11
Id. at 347. This Court concluded that the trial court’s interlocutory order satisfied
the third prong of the collateral order rule in PA. R.A.P. 313(b).
             Here, if this Court declines immediate review, Taxpayer will be forced
to proceed with the School District’s assessment appeal. It appealed in 2013, but the
appeal automatically includes all subsequent tax years, i.e., the years 2014 to 2019.
In re P-ville Associates, 87 A.3d 898, 901 (Pa. Cmwlth. 2014) (“[S]o long as an
assessment ‘appeal is pending’ before the board or trial court, subsequent
assessments are automatically appealed.”). This means that Taxpayer will have to
engage in litigation that covers multiple tax assessment years before reaching its
constitutional claim. Because Taxpayer will incur substantial cost if review of its
constitutional claim is postponed, we conclude that the trial court’s order has
satisfied the third prong of the definition of a collateral order.
             Accordingly, this Court concludes that it has jurisdiction over the trial
court’s order, which is a collateral order under PA. R.A.P. 313.
               Merits of Taxpayer’s Appeal of Trial Court’s Order
             Regarding the merits, Taxpayer argues that, “the School District
operated systematically in multiple ways that resulted in [an] unequal, arbitrary, and
discriminatory selection process.” Taxpayer Brief at 25.
             First, Taxpayer claims that the School District did not adopt a “reverse
assessment” appeal policy until September 2018, more than five years after the
School District appealed Taxpayer’s assessment. In Punxsutawney Area School
District v. Broadwing Timber, LLC (Pa. Cmwlth., No. 1209 C.D. 2018, filed October
29, 2019) (unreported), this Court held that a written policy is not required. We
stated:

             We do not read Valley Forge as requiring a formal or written
             policy or criteria. All Valley Forge requires is that the “other
                                           12
             selection criteria” used by the taxing authority, whether a
             monetary threshold or other methodology, be “implemented
             without regard to the type of property in question or the residency
             status of its owner.” 163 A.3d at 979. Thus, the lack of such
             formal or written policy does not warrant reversal.

Id., slip op. at 18. However, here the School District conceded that its 2018 policy
did not codify a prior, unwritten policy. Stated otherwise, it did not have a formal
policy until 2018.
             Second, Taxpayer contends that the School District’s policy of
appealing only properties under-assessed by $500,000 or more effectively
eliminated all residential properties. Taxpayer Brief at 25. The School District
responds that Taxpayer’s mall is significantly under-assessed, and in determining
whether to file a tax assessment appeal, it applies a cost benefit analysis without
regard to the type or use of the property. School District Brief at 15.
             In In re Springfield School District, 101 A.3d 835 (Pa. Cmwlth. 2014),
the taxpayer challenged the school district’s policy of selecting properties for
assessment appeals whose sale prices were at least $500,000 higher than the implied
market values. A $500,000 upward revision to an assessment would produce an
additional $9,000 to $11,000 in annual tax revenue, which warranted the cost of the
assessment appeal, in the view of the school district. The taxpayer claimed the
$500,000 threshold was “arbitrary, capricious and discriminatory” because it
excluded almost all residential properties from assessment appeals. Id. at 847.
             This Court held that the school district’s $500,000 threshold was based
on reasonable economic considerations that balanced the costs of filing assessment
appeals with the enhanced revenue to be realized. Its method was not “arbitrary,
capricious, or discriminatory,” and “[t]he fact that the $500,000 threshold would
mostly subject commercial properties to assessment appeals d[id] not warrant a

                                         13
different conclusion.” Id. at 849. In reaching its conclusion, this Court explained
that “[t]he Uniformity Clause ‘does not require equalization across all potential sub-
classifications of real property (for example, residential versus commercial).’” Id.
(quoting Downingtown Area School District v. Chester County Board of Assessment
Appeals, 913 A.2d 194, 201 n.9 (Pa. 2006)).
             Subsequently, in Valley Forge Towers, taxpayers, who owned
commercial property, challenged the school district’s policy of appealing their tax
assessments while ignoring under-assessed, single-family homes within the school
district. The taxpayers sought to enjoin the policy as violative of the Uniformity
Clause. The trial court dismissed the complaint as not stating a claim, and this Court
affirmed. The Supreme Court reversed, holding that the complaint stated a valid
claim under the Uniformity Clause because:

             [A] taxing authority is not permitted to implement a program of
             only appealing the assessments of one sub-classification of
             properties, where that sub-classification is drawn according to
             property type – that is, its use as commercial, apartment complex,
             single-family residential, industrial, or the like.

Valley Forge Towers, 163 A.3d at 978. The Supreme Court further explained that,
“systematic disparate enforcement of the tax laws based on property sub-
classification, even absent wrongful conduct, is constitutionally prohibited.” Id.
The Supreme Court cautioned, however, that its holding should not be construed as
disallowing a neutral selection criterion, such as “the one challenged in Springfield,”
so long as it “[was] implemented without regard to the type of property in question
or the residency status of its owner.” Id. at 979. With regard to Springfield, the
Supreme Court noted:



                                          14
             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 Towers, 163 A.3d at 975 n.13.
             Most recently, in Kennett Consolidated School District v. Chester
County Board of Assessment Appeals, __ A.3d __ (Pa. Cmwlth., No. 253 C.D. 2019,
filed February 28, 2020), this Court considered a taxpayer’s challenge to a trial
court’s denial of its motion to quash the school district’s assessment appeal of its
property. The taxpayer argued that the school district violated the Uniformity Clause
by: (1) appealing the assessments of only commercial properties, and (2) setting a
monetary threshold targeting properties under-assessed by $1 million.
             This Court affirmed the trial court, concluding that the school district’s
appeal policy did not violate the Uniformity Clause. The record showed that in
deciding which property assessment to appeal, the school district intentionally
disregarded the type of property.      The school district reviewed all classes of
properties including commercial and residential. Additionally, the school district’s
monetary threshold was based upon prudent fiscal grounds.
             Here, the trial court held that Taxpayer did not prove that the School
District’s policy violated the Uniformity Clause because: (1) the School District
“had taken numerous residential appeals during the time period in question”; (2) the
School District showed that the deciding factor in whether to take an appeal was
“economic reasons,” such as a property being undervalued by “more than
$500,000”; and (3) in 2013, Taxpayer took a mortgage of $87,500,000 on the

                                         15
Property based on an appraised value of $120,000,000, which was almost double the
market value placed on the property by the Board. Trial Court Op., 6/28/2019, at 7.
             The ten residential property tax assessment appeals identified by the
School District were all filed before 2012, and all concerned residences in exclusive
neighborhoods in the School District. The School District did not present evidence
showing that any residential tax assessment appeals were filed in or after 2013. The
fact that the 10 residential assessment appeals were pending at the time the School
District appealed Taxpayer’s assessment does not support the trial court’s finding
that the School District “had taken numerous residential appeals during the time
period in question.” Id. The trial court’s finding in this regard must be set aside as
not supported by substantial evidence.
             The School District’s stated basis for filing the assessment appeal was
a recorded mortgage that, on its face, indicated that Taxpayer’s mall had a higher
fair market value than shown in the assessment. However, Szablowski testified that
he did not know whether the Property had been refinanced at the time the School
District filed the tax assessment appeal. Further, the School District’s real estate
consultant at that time, Keystone Realty Advisors, did not offer any expert testimony
on the refinancing of the mall.
             The trial court found that the 2013 mortgage on the mall exceeded its
fair market value, relying upon a statement of counsel for the School District. Trial
Court’s 1925(a) Op. at 2. See also N.T. 8; R.R. 238a (“[t]he mortgage that was filed
… was $87 million[,]” which exceeded the fair market value of the property). This
Court has stated that, “[g]enerally, an attorney’s statement in an argument does not
constitute evidence.” School District of Philadelphia v. Board of Revision of Taxes,
217 A.3d 472, 485 (Pa. Cmwlth. 2019) (citing East Norriton Township v. Gill


                                         16
Quarries, Inc., 604 A.2d 763, 766 n.9 (Pa. Cmwlth. 1992) (“[S]elf-serving,
unsubstantiated and unsworn statements by counsel are not competent evidence.”)).
Additionally, as Taxpayer points out, its mall had not been recently purchased and
there were no changes in tenancy or improvements to the buildings. The record does
not support the trial court’s finding that the 2013 mortgage exceeded the fair market
value of Taxpayer’s property.
                                     Conclusion
             The trial court erred. In concluding that the School District’s decision
to appeal the valuation of Taxpayer’s mall conformed to the Uniformity Clause of
the Pennsylvania Constitution, the trial court relied on factual findings not supported
by substantial evidence. Accordingly, we vacate the trial court’s order and remand
this matter for further proceedings on Taxpayer’s motion to dismiss the School
District’s reverse tax appeal. In doing so, the trial court will disregard statements of
the School District’s attorney; correct its finding that the School District had “taken
numerous residential appeals during the time period in question,” Trial Court Op.,
6/28/2019, at 7; and limit its findings to what can be supported by substantial
evidence of record.
                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colonial School District              :
                                      :
             v.                       :   No. 530 C.D. 2019
                                      :
Montgomery County Board of            :
Assessment Appeals, Metroplex West :
Associates, L.P., Plymouth Township :
and Montgomery County                 :
                                      :
Appeal of: Metroplex West Associates, :
L.P.                                  :

                                   ORDER

            AND NOW, this 28th day of May, 2020, the order of the Court of
Common Pleas of Montgomery County dated April 2, 2019, in the above-captioned
matter is VACATED, and the matter is REMANDED for proceedings consistent
with the attached opinion.
            Jurisdiction relinquished.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
