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GEORGE T. KENNEY ET AL. v. KEEBLER COMPANY (08/21/80)

decided: August 21, 1980.

GEORGE T. KENNEY ET AL., APPELLANTS
v.
KEEBLER COMPANY, APPELLEE; KEEBLER COMPANY, APPELLANT V. GEORGE T. KENNEY ET AL., APPELLEES



Appeals from the Order of the Court of Common Pleas of Philadelphia County in cases of Keebler Company v. George T. Kenney et al., No. 1156 March Term, 1976; No. 861 March Term, 1977 and No. 2860 February Term, 1978.

COUNSEL

Judith N. Dean, Deputy City Solicitor, with her Marjorie H. Stern, Assistant City Solicitor, Alan J. Davis, City Solicitor, and T. Michael Mather, Chairman of Litigation Department, for George T. Kenney et al.

Henry T. Reath, with him Sheri B. Friedman, and Alexis J. Anderson, Duane, Morris & Heckscher, for Keebler Company.

David A. Scholl, for Katie Leavell et al.

Christoper F. Stouffer, Hamilton, Darmopray and Malloy, for Amicus Curiae, Center City Residents' Association.

President Judge Crumlish and Judges Wilkinson, Jr., Rogers, Blatt, Craig, MacPhail and Williams, Jr. Judge Mencer did not participate. Opinion by Judge Wilkinson, Jr. Judge MacPhail concurs in the result only. Dissenting Opinion by Judge Williams, Jr. President Judge Crumlish joins.

Author: Wilkinson

[ 53 Pa. Commw. Page 509]

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' method*fn1 of determining the proper ratio of assessed value to market value and accepted the calculation method of the Board with

[ 53 Pa. Commw. Page 510]

    some modification.*fn2 The court modified the Board's exclusion of certain transactions in which the ratio of assessment to sales price was quite low*fn3 by including approximately 50% of these sales. Based on the evidence before it the Court found particular ratios for each tax year in question.*fn4 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.

[ 53 Pa. Commw. Page 511]

All taxes on real property in Pennsylvania must be uniform within a taxing district. Pa. Const. art. VIII, ยง 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 Page 511} 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 ...


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