Appeals from the Orders of the Court of Common Pleas of Cambria County in case of Central Transportation, Inc. v. Board of Assessment Appeals of Cambria County, Pennsylvania, No. 1976-2636 and County of Cambria v. Central Transportation, Inc., No. 1976-2989.
Richard T. Williams, Sr., with him William Shettig, for appellant.
John W. Taylor and Richard Green, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and MacPhail. Judges DiSalle and Craig did not participate. Opinion by Judge Crumlish, Jr. Concurring and Dissenting Opinion by President Judge Bowman. Judges Mencer and MacPhail join in this concurring and dissenting opinion.
Central Transportation, Inc. (Central) appeals a decision of the Court of Common Pleas of Cambria County which affirmed an interim school tax assessment on Central property and permitted reformation of a lease agreement with the County of Cambria (Cambria) involving the same property.
In 1974 Central agreed to remodel a building which it owned for use by Cambria for a skilled nursing care facility. A lease was prepared by Cambria and executed on March 4, 1975. The lease contained a tax escalation clause which provided that Cambria would be responsible for any real estate tax increase after the "base year," which was defined as being the first tax year in which the building was assessed as substantially
complete. Renovation of the building was ongoing throughout the spring, summer and fall of 1975 with Cambria taking possession of the building on October 21, 1975.
On December 10, 1975, the school district requested an interim school tax assessment on the newly renovated structure. The chief assessor of Cambria County reassessed the property, concluding that the property value escalated from $89,690.00 to $409,340.00.
Central, alleging procedural irregularities, appealed this interim assessment to the Cambria County Board of Assessment Appeals which affirmed. An appeal to the Court of Common Pleas ensued. At this juncture Cambria, as Lessee, filed a suit praying for reformation of the March 4, 1975 lease agreement with Central to include parking which, it contended, was mistakenly omitted from the written agreement.
Both matters were consolidated for hearing and on September 30, 1977, the Honorable George W. Griffith, S.P. filed his opinion and decree which affirmed the assessment and reformed the lease to include parking subject to agreement on proper consideration. Exceptions were filed by Central and the Common Pleas Court, sitting en banc, dismissed them. By order of President Judge Bowman, the cases are consolidated for our review.
Did the Equity Court err in reforming the lease to include parking where the lease agreement made no provisions for parking; indicated that consideration was to be paid in accordance with the property described in the lease; and contained a clause which stated that the written lease contained the entire agreement.*fn1
Central contends the Court did err and argues the record reveals nothing more than an agreement to negotiate parking in futuro, and relies on testimony by its President that the parking question was to be resolved at a future date.
In order to establish mistake in the lease agreement the testimony must be clear, precise and indubitable, and of such weight and directness as to carry conviction to the mind. Seaboard Radio Broadcasting Corp. v. Yassky, 176 Pa. Superior Ct. 453, 107 A.2d 618 (1954). The record indicates that parking facilities were discussed between Central representatives and Cambria commissioners at a number of pre-lease commission hearings. The Commissioners testified that at the time the lease was entered into they believed parking was to be included in the lease and were not aware that it was not so included until months after its execution. Plans were displayed by Central's architect prior to the lease agreement which indicated that parking would be available for this skilled nursing care facility. The testimony of record warranted reformation of the lease to include parking, subject to settlement of proper rental, for it clearly revealed the parties intended parking to be included in the lease agreement and mistakenly failed to include it.
Central next reasserts its position that the assessor failed to comply with the applicable assessment law in making the interim school assessment. We agree with the court below that the assessor's action pursuant to Section 677.1*fn2 was ...