KENNEY v. Keebler Co.

419 A.2d 210, 53 Pa. Commw. 507, 1980 Pa. Commw. LEXIS 1700

• Court: Commonwealth Court of Pennsylvania
• Decided: August 21, 1980
• Docket: Appeals, 1730 and 1821 C.D. 1979
• Status: Published

Opinions

Opinion by

Judge Wilkinson, Jr,.,

The instant case involves the objections of a variety of real estate owners in the City of Philadelphia (taxpayers) to the assessments of the Board of Revision of Taxes (Board) for the years 1975 through 1978. The Court of Common Pleas of Philadelphia County (Court) separated the issue of the ratio of assessed value to fair market value, common to each case, and decided this as one issue. The fair market value of each property, of course, had to be individually determined. The fair market values are not in issue here.

By decision and order of November 10, 1978 the court rejected the taxpayers’ method¹ of determining the proper ratio of assessed value to market value and accepted the calculation method of the Board with some modification.² The court modified the Board’s exclusion of certain transactions in which the radio of assessment to sales price was quite low³ by including approximately 50% of these sales. Based on the evidence before it the Court found particular ratios for each tax year in question.⁴ Finally, the court recognized a pervasive lack of uniformity and directed the Board to reassess for the future every property in the taxing district.

Taxpayers excepted to the court’s adoption of the Board’s method of calculation of ratio and to the exclusion of 50% of low ratio transactions in the calculation. The Board excepted to the court’s inclusion of 50% of low ratio transactions in the calculation and to the order to reassess. By decision and order of July 18, 1979 the court dismissed all exceptions. It is that order which is now before us.

All taxes on real property in Pennsylvania must he uniform within a taxing district. Pa. Const. art. VIII, § 1. Summit House Real Property Assessment Appeals, 22 Pa. Commonwealth Ct. 462, 349 A.2d 505 (1975). The ratio of assessed value to market value used by a taxing authority must be applied equally and uniformly to all real estate in the jurisdiction. McKnight Shopping Center, Inc. v. Board of Property Assessment, 417 Pa. 234, 209 A.2d 389 (1965).

The taxpayer’s method of assessing uniformity of tax calculation is the one commonly utilized in Pennsylvania and specifically approved by the Pennsylvania Supreme Court. Deitch Co. v. Board of Property Assessment, 417 Pa. 213, 209 A.2d 397 (1965). See also Massachusetts Mutual Life Insurance Co. Tax Assessment Case, 426 Pa. 566, 570-71, 235 A.2d 790, 792 (1967), approving the Superior Court’s conclusion that “the lower court had erred in proceeding under a theory which differed from Deitch.”

The Board’s procedure deviated substantially from the common and accepted methodology of Deitch. A search of Pennsylvania cases does not provide any precedent for this novel approach to tax ratio calculation nor does the Board provide us with any such Pennsylvania law.⁵

Judge Kalish of the Common Pleas Court of Philadelphia held four days of hearings. The record consists of 933 pages, 733 of which are the testimony of three experts, two for the taxpayers and one for the Board. Judge Kalish wrote two exhaustive opinions, the original opinion being 12 pages and the opinion dismissing exceptions 21 pages. Even after this able and thorough analysis of the testimony we are troubled by the complexity of the calculations used in the so-called “stratification” methodology adopted:

The Board’s expert, Dr. Raymond Rickman, calculated his ratios by first breaking his sample into six land nses. Next, lie computed the unweighted ratios for properties in each land use category. Then he estimated the total fair market value of every parcel in each land use type. Finally, he calculated the city wide weighted ratio by summing the total estimated fair market value for every parcel in the City and divided by the total assessed value. (Emphasis in original.)

The policy of allocating taxes on an equitable and comprehensible basis is old and strong:

While every tax is a burden, it is more cheerfully borne when the citizen feels that he is only required to bear his proportionate share of that burden measured by the value of his property to that of his neighbor. This is not an idle thought in the mind of the taxpayer, nor is it a mere speculative theory advocated by learned writers on the subject, but it is a fundamental principle written into the constitutions and statutes of almost every state in this country.

Delaware, Lackawanna & Western Railroad Co.’s Tax Assessment (No. 1), 224 Pa. 240, 243, 73 A. 429, 430 (1909). In our opinion, the method of calculation adopted by the trial court and now before us will not be understood by the average taxpayer.

Even more fundamental is the question of whether the division of property into selected land use categories for purposes of ratio calculation comports with the constitutional mandate of uniformity and the dictate of Deitch that all property be treated as a single class. Real estate, for taxation purposes, may not be validly divided into classes. Madway v. Board for the Assessment and Revision of Taxes, 427 Pa. 138, 233 A.2d 273 (1967); Valley Forge Golf Club, Inc. Tax Appeal, 3 Pa. Commonwealth Ct. 644, 285 A.2d 213 (1971).

We cannot accept the intricate ratio procedure adopted below. It is a system too involved to be understood and accepted by other than the most sophisticated property owners.

On the question of the methodology of ratio calculation and the inclusion of 50% of low ratio transactions in the calculations we accept the court’s decision. We specifically reject the contention of the Board that the court may not adopt and modify its expert’s opinion. Westinghouse Electric Corp. v. Board of Assessment Appeals, 30 Pa. Commonwealth Ct. 264, 373 A.2d 766 (1977).

With regard to the portion of the court’s order invoking the injunctive relief of reassessments, the Board contends that the court has gone beyond the issues before it and beyond its subject matter jurisdiction. Act of June 27, 1939, P.L. 1199, as amended, 72 P.S. §5341.1 et seq., provides the remedy available to aggrieved taxpayers. Any person seeking equity’s jurisdiction must prove not only a constitutional question involved but also that the legal remedy is inadequate. King v. Commonwealth, 41 Pa. Commonwealth Ct. 329, 398 A.2d 1117 (1979); Appeal of Cedarbrook Realty, Inc., 39 Pa. Commonwealth Ct. 150, 395 A.2d 613 (1978). Further, the statutory remedy is preferred as a more efficacious manner of litigation of assessment questions. See Rochester & Pittsburgh Coal Co. v. Board of Assessment Appeals, 438 Pa. 506, 266 A.2d 78 (1970). See also Hudson v. Union County, Pa. Commonwealth Ct., 413 A.2d 1148 (1980).

The facts of the instant case fail to rise to the level necessary to invoke equity. The court below itself concludes that the case does not specifically present a question on the validity of the statute. Further, we do not believe it has been shown that the statutorily provided remedies are inadequate. Because we find the equity jurisdiction exercised by the tria], court improper we need not discuss the assertions of the Board that the equitable relief granted was not made out in the pleadings nor included in the original terms of the consolidated hearing, that there was no notice to the Board that the court would consider equitable remedies in this statutory appeal, that the order compels future acts contrary to general mandamus principles and that the order adversely affects the public interests.

Accordingly, we will enter the following

Order

And Now, August 21, 1980, the order of the Philadelphia Court of Common Pleas dated July 18, 1979 and indexed to No. 1156 March Term 1976, No. 861 March Term 1977, and No. 286B February Term 1978, is reversed. The case is remanded to the Court of common pleas to determine the appropriate ratios consistent with the above opinion.

Judge MacPhail concurs in the result only.

1 Taxpayers would determine the actual ratio between assessed value and fair market value by dividing the sum of all recorded fair market value sales in the taxing district into the sum of the assessments for the same property.

2 The Board determined the actual ratio between assessed value and fair market value by breaking the properties into six land use categories, computing an unweighted ratio for each category, estimating the total fair market value of each category, calculating a city wide weighted ratio by summing the total estimated fair market value for all property in the taxing district, and dividing this figure by the total assessed value. The six land use categories used were residential, apartment building/hotels, stores with dwellings, commercial, industrial and vacant.

3 Transaction with less than 20% ratios. Both the Board and taxpayers eliminated all sales with ratios exceeding 100%.

4 The tax ratios as found by the court for the years indicated are as follows: 1975 — 47.44%; 1976-^6.98%; 1977 — 44.66% and 1978 — 44.1%.

5 A calculation methodology akin to that advocated by the Board is used in Xew York, not without substantial judicial criticism. 860 Executive Towers v. Board of Assessors of County of Nassau, 84 Misc. 2d 525, 377 N.Y.S.2d 863, 874 (Sup. Ct. 1975), aff’d 53 App. Div. 2d 463, 385 N.Y.S.2d 604 (App. Div. 1976), aff’d sub. nom., Pierre Pellation Apartments, Inc. v. Board of Assessors of County of Nassau, 43 N.Y.2d 769, 372 N.E.2d 801, 401 N.Y.S.2d 1013 (1977).