           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Pierce and Millicent Pierce, his wife        :
                                                  :
                     v.                           : No. 239 C.D. 2018
                                                  : ARGUED: October 16, 2018
Greene County Board of Assessment                 :
Appeals, Greene County, Cumberland                :
Township and Carmichaels Area School              :
District                                          :
                                                  :
Appeal of: Greene County Board of                 :
Assessment Appeals                                :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                       FILED: November 9, 2018


              The Greene County Board of Assessment Appeals (Board) appeals
from an order of the Court of Common Pleas of Greene County (trial court) granting
the assessment appeal of John and Millicent Pierce (Taxpayers) and finding the
assessed value of their property at 179 Kurans Road, Carmichaels, Pennsylvania (tax
parcel No. 05-05-135) to be $406,130 for tax year 2017 and $403,630 for 2018.1 We
affirm.
              The background of this matter is as follows. For tax year 2017, the
Board assessed the property at $493,750 (land-$27,260 and building-$466,490)

    1
      Neither Cumberland Township nor the Carmichaels Area School District has participated in
this matter.
based on a March 2016 consent order setting the 2016 assessed value at $493,750
“upon agreement of the parties.” (October 16, 2017, Hearing, County Exhibit 1;
Reproduced Record “R.R.” at 83.)2 The assessed value was the result of taking the
agreed-upon fair market value (FMV) of $625,000 and multiplying it by the common
level ratio (CLR) of .79, which was in effect at the time the Taxpayers filed their
June 2015 appeal. (Id., Notes of Testimony “N.T.” at 24-25; R.R. at 53-54.) In their
August 2016 appeal to the Board, the Taxpayers argued that because the CLR for
the 2017 tax year had decreased from .79 to .678, the latter should be applied. The
Board disagreed and the Taxpayers’ November 2016 appeal to the trial court
followed.
               At the October 2017 hearing before the trial court, counsel for the
Taxpayers stated at the outset that the 2018 tax year was also at issue.3 Only the
Chief Assessor for the County testified. On direct examination, she referenced the
March 2016 consent order, County Exhibit 1, in support of a FMV of $625,000,
thereby arriving at an assessed value of $493,750 for the 2017 tax year. (Id. at 18-
19; R.R. at 47-48.) On cross-examination, she conceded that as the result of a Clean

    2
       Although this exhibit appears in the reproduced record as an attachment to another document,
the Board, unfortunately, did not include all of the exhibits in the reproduced record. However,
all of the exhibits appear in the original record.
     3
       Section 8854(a)(5) of the Consolidated County Assessment Law provides:
                       If a taxpayer or taxing district has filed an appeal from an
               assessment, so long as the appeal is pending before the board or
               before a court on appeal from the determination of the board, as
               provided by statute, the appeal will also be taken as an appeal by the
               appellant on the subject property for any valuation for any
               assessment subsequent to the filing of an appeal with the board and
               prior to the determination of the appeal by the board or the court.
               This provision shall be applicable to all pending appeals as well as
               future appeals.
53 Pa. C.S. § 8854(a)(5).


                                                 2
and Green discount,4 the County had issued an October 2016 change of assessed
value notice for 2017, thereby reducing the assessed value of the property to
$476,130 (land-$9640 and building-$466,490).5 (Id. at 22-23; R.R. at 51-52.) She
did not reference assessment records for the 2018 tax year.
              Ultimately, the trial court found the Chief Assessor’s testimony to be
credible and accepted her concession that the FMV of the property at the time of the
October 2017 hearing had been agreed to as $625,000, although she testified that she
had originally determined a different FMV and the $625,000 was a compromise.
Importantly, the trial court relied upon the fact that both parties’ counsel agreed to
$625,000 as the FMV at the time of the August 2016 appeal and the October 2017
hearing. In fact, the trial court stated numerous times on the record that the parties
stipulated that the FMV of $625,000 had not changed since the 2015 agreement
culminating in the consent order,6 and counsel for the Board did not object to or
disagree with those comments by the court, nor with the court’s conclusion that the
only issue before it was application of the respective CLRs for the tax years at issue.
Counsel for the Board’s sole argument was that the Taxpayers had to show a change
in FMV in order to be entitled to the benefit of a change in the CLR from one year
to the next. Necessarily, that argument had to be predicated on a FMV that had not
changed.

    4
      The Clean and Green Program is a preferential tax assessment program authorized by the
Pennsylvania Farmland and Forest Land Assessment Act of 1974, commonly known as the Clean
and Green Act, Act of December 19, 1974, P.L. 973, as amended, 72 P.S. §§ 5590.1-5490.13. “In
order to encourage conservation the Clean and Green Program often ‘provides a lower tax rate
appropriate for land devoted to farming and forest reserve purposes’ by enabling landowners to
apply for preferential assessments.” Feick v. Berks Cty. Bd. of Assessment Appeals, 720 A.2d 504,
505 (Pa. Cmwlth. 1998).
    5
      (October 16, 2017, Hearing, Taxpayers’ Exhibit 1.)
    6
      (Id., N.T. at 17-18, 25-26, 28, and 36-39; R.R. at 46-47, 54-55, 57, and 65-69.) Although
the reproduced record does not include a page sixty-six, the transcript page numbering is
consecutive and the entire transcript appears to be included in the reproduced record.

                                               3
               For the 2017 tax year, the trial court reasoned that because the Board
did not dispute the Taxpayers’ claim that the CLR applicable to the original appeal
was .678, the initial assessed value of the property was $423,750. In addition,
because the Board did not dispute application of the Clean and Green discount, the
court found the final assessment for the 2017 tax year to be $406,130.
               For tax year 2018, the trial court stated that it was using $625,000 as
the FMV based on the Chief Assessor’s testimony. Accordingly, the court applied
the undisputed CLR of .674 and found the initial assessment to be $421,250. In
addition, applying the undisputed Clean and Green discount, the court found the final
assessment for 2018 to be $403,630. (February 2, 2018, Opinion at 3; R.R. at 76.)
The Board’s appeal followed.7
               On appeal, the Board raised the following issues: (1) whether the trial
court erred in determining that the Taxpayers established the FMV of the subject
property for 2017 and 2018; (2) whether the trial court erred in accepting a stipulated
settlement from a previous year’s litigation as sufficient evidence to establish the
FMV in a subsequent year’s appeal; and (3) whether the Taxpayers had the burden
of establishing that the assessed value had changed before entitlement to a new CLR.
We first recite the pertinent law, procedure, and the respective burdens.
               Section 8844(c)(1) of the Consolidated County Assessment Law (Law)
provides, in relevant part, that “[a]ny person aggrieved by any assessment, whether
or not the value thereof shall have been changed since the preceding annual
assessment . . . may appeal to the board [of assessment appeals] for relief.” 53 Pa.

    7
      Our review, based on the issues before us, is limited to determining whether the trial court
committed an error of law, or found facts not supported by substantial evidence. Green v.
Schuylkill Cty. Bd. of Assessment Appeals, 772 A.2d 419 (Pa. 2001). As to legal issues, we exercise
plenary review. Valley Forge Towers Apts. N., LP v. Upper Merion Area Sch. Dist. & Keystone
Realty Advisors, LLC, 163 A.3d 962, 969 (Pa. 2017).


                                                4
C.S. § 8844(c)(1) (emphasis added). “Following an appeal to the board, any
appellant, property owner or affected taxing district may appeal the board’s decision
to the court of common pleas in the county in which the property is located . . . .”
53 Pa. C.S. § 8854(a)(1). Pursuant to that de novo procedure,8 “the board shall have
the power and duty to present a prima facie case in support of its assessment . . . .”
53 Pa. C.S. § 8854(a)(6). “A prima facie case is part of the burden shifting that takes
place in a tax assessment appeal and requires assessment records to be introduced
into evidence.” Songer v. Cameron Cty. Bd. of Assessment Appeal, 173 A.3d 1253,
1256 (Pa. Cmwlth. 2017), appeal denied, 186 A.3d 944 (Pa. 2018). Once the board
introduces evidence of its assessment record without objection, it establishes the
prima facie validity of the assessed value of the property. Id. The burden then shifts
to the taxpayer “to produce sufficient competent, credible and relevant evidence to
overcome the assessment’s prima facie validity.” Id. at 1257.
               Subsequently, the trial court as the factfinder is charged with
determining FMV.9 Id. In so doing, the Law provides that it shall make the
following determinations:

                      (i) The market value as of the date the appeal was
               filed before the board. In the event subsequent years have
               been made a part of the appeal, the court shall determine
               the market value for each year.
                      (ii) The [CLR] which was applicable in the original
               appeal to the board. In the event subsequent years have
               been made a part of the appeal, the court shall determine
               the applicable [CLR] for each year published by the State

    8
       In re Koppel Steel Corp. v. Bd. of Assessment Appeals of Beaver Cty., 849 A.2d 303, 307
(Pa. Cmwlth. 2004).
     9
       The trial court has the discretion to determine the weight of the evidence and credibility of
the witnesses. Blanda v. Somerset Cty. Bd. of Assessment Appeals, 131 A.3d 560, 564 n.9 (Pa.
Cmwlth. 2016).


                                                 5
               Tax Equalization Board on or before July 1 of the year
               prior to the tax year being appealed.

53 Pa. C.S. § 8854(a)(2)(i) and (ii). Once the trial court determines the FMV,
Section 8854(a)(3) of the Law requires it to apply a CLR10 to arrive at the assessed
value of the subject property. Harley-Davidson Motor Co. v. Springettsbury Twp.,
124 A.3d 270, 287 (Pa. 2015). “[D]espite any inherent weaknesses, [the CLR] is an
accepted calculation of the common level existing in the district and the standard
against which the taxpayer’s assessment ratio should be measured for uniformity
purposes.” Smith v. Carbon Cty. Bd. of Assessment Appeals, 10 A.3d 393, 406 (Pa.
Cmwlth. 2010).
               As an initial matter, even though the Board offered the Chief Assessor’s
testimony to establish prima facie evidence of the assessment for tax year 2017, the
latest assessment record for 2017, as well as the record for 2016, were introduced
into evidence by the Taxpayers.11 In any case, on appeal the Board argues that
“inherent in the statute is the requirement that expert evidence must be presented to
establish [FMV] as of the date that the matter was heard before the . . . Board.”
(Board’s Brief at 8.) The Board did not make this argument at the time of the
hearing. Indeed, after one of the trial court’s many statements that there was an
agreement on value, the Taxpayers’ counsel stated that he therefore did not need to
present an expert witness on the issue of FMV, to which counsel for the Board voiced
no disagreement. Nonetheless, any argument that the Taxpayers cannot establish
FMV via stipulation during the Board’s case is without merit. The parties stipulated

    10
        If the CLR is within 15% of the predetermined ratio, the predetermined ratio is applied
rather than the CLR. It is undisputed that this is not the case here.
     11
        The term “assessment” is defined as “assessed value.” 53 Pa. C.S. § 8802. An “assessed
value” is defined as “[t]he assessment placed on real property by a county assessment office upon
which all real estate taxes shall be calculated.” Id. Interestingly, no one introduced the assessment
for 2018, although that tax year was also at issue, so arguably the Board did not establish a prima
facie case as to that year. As no such issue has been raised, we do not address it.

                                                 6
as to the FMV as to the date of the appeal and subsequent hearing before the trial
court. Accordingly, the trial court was bound to apply the applicable CLRs to the
stipulated value pursuant to Section 8854(a)(3) of the Law.
              In addition, the Board maintains that the Taxpayers had to establish that
the FMV changed in 2017 in order to receive the applicable CLR for that year.
However, Section 8844(c)(1) expressly provides that regardless of whether the value
has changed since the preceding annual assessment, any aggrieved person may
appeal to the board for relief. 53 Pa. C.S. § 8844(c)(1). Given the fact that those
engaged in the statutory appeal process must proceed in strict accordance with the
governing legislation,12 the trial court did not err in mechanically applying the 2017
and 2018 CLRs pursuant to 53 Pa. C.S. § 8854. Nothing in the Law suggests that a
change in FMV must occur before the current year’s CLR is applied. As the trial
court observed at the hearing, “if the [CLR] changes . . . the assessment number
changes based on the same [FMV]” because assessed value is FMV times CLR.
(N.T. at 7; R.R. at 36.) In this regard, it is worth noting that the reason the CLR is
used is to provide uniformity, to the extent possible, in the percentage of value at
which property owners are taxed. To assure that a property owner is paying his fair
share of taxes, no more and no less, he should pay in accordance with the current
percentages, not some arbitrary prior figure.
              Further, the Board argues that the trial court erred in rendering a
determination as to the 2018 tax year without evidence from the Taxpayers. This
argument also is without merit. As noted above, the Board failed to introduce its
own assessment records for the 2018 tax year, so it did not make out its prima facie
case as the first step in the burden shifting process. The trial court’s construction of


    12
      Chartiers Valley Sch. Dist. v. Bd. of Prop. Assessment, Appeals and Review, 622 A.2d 420,
428 n.16 (Pa. Cmwlth. 1993).

                                              7
the Chief Assessor’s testimony and the parties’ stipulation were to the effect that the
$625,000 FMV extended to October 2017. Given the fact that the parties stipulated
that a FMV of $625,000 was still valid as of October 2017, and that was the only
evidence relating to the 2018 tax year, the trial court did not err in using it as the
basis for its calculations for the 2018 tax year.
                  Finally, the Board asserts that if a taxpayer is not required to show first
that the FMV has changed and an appeal is granted without such a showing, then
there would be no tax uniformity because two classes of taxpayers whose properties’
values remain the same, and are therefore similarly situated, would be created: the
taxpayer who filed an appeal to get a new CLR and the one who did not. A review
of the Board’s appeal documents reflects that it failed to preserve a uniformity
issue.13 Moreover, there is no merit to its position. Whether property values have
changed or not, the property owner who takes an appeal will always have an
opportunity to enforce rights that his neighbor who sleeps on those rights cannot.
Any lack of uniformity created by the neighbor’s inaction is no basis to deny benefits
to which the diligent taxpayer is lawfully entitled.
                  Accordingly, we affirm.


                                              _____________________________________
                                              BONNIE BRIGANCE LEADBETTER,
                                              Senior Judge




      13
           See March 22, 2018, Concise Statement of Errors Complained of on Appeal at 1; R.R. at
78.

                                                 8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Pierce and Millicent Pierce, his wife   :
                                             :
                   v.                        : No. 239 C.D. 2018
                                             :
Greene County Board of Assessment            :
Appeals, Greene County, Cumberland           :
Township and Carmichaels Area School         :
District                                     :
                                             :
Appeal of: Greene County Board of            :
Assessment Appeals                           :



                                    ORDER


            AND NOW, this 9th day of November, 2018, the order of the Court of
Common Pleas of Greene County is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
