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FIRST PENNSYLVANIA SAVINGS ASSOCIATION v. FOUR SEASONS RACQUET CLUB (05/15/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 15, 1981.

FIRST PENNSYLVANIA SAVINGS ASSOCIATION, FORMERLY KNOWN AS TROY SAVINGS AND LOAN ASSOCIATION, APPELLANT,
v.
FOUR SEASONS RACQUET CLUB, INC., WILLIAM F. CHOLTKO, JANICE M. OLSZEWSKI, JAMES A. HUET AND CAROL T. HUET, HIS WIFE

No. 329 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Division at No. x1121 of 1979.

COUNSEL

Florie Goldhammer, Pittsburgh, for appellant.

Edgar J. Cooke, Bellevue, for appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 287 Pa. Super. Page 181]

This is a deficiency judgment action. On petition to fix fair market value, the lower court, sitting without a jury, fixed the value of the property at $300,000. On exceptions, the court en banc fixed the value at $375,000. We have concluded that we are unable to accept the court's explanation of the change and that the case must therefore be remanded for reconsideration.

[ 287 Pa. Super. Page 182]

On July 2, 1979, appellant bought the property at sheriff's sale for $1,938.18. Interest and other charges were $5,472.74, and taxes were $2,143.78. On October 12, appellant filed a petition to fix fair market value, claiming the value to be $210,000. In their answer to the petition, appellees claimed the value to be $450,000. On October 26, the lower court held a hearing, without a jury, and on November 2, fixed the value at $300,000. Appellees filed exceptions, which were argued to the court en banc on February 29, 1980. On March 14, 1980, the court sustained the exceptions and fixed the value at $375,000. Appellant argues that we should vacate the court en banc's determination of value and reinstate the trial judge's determination.

At the conclusion of the testimony the trial judge made the following statement:

The Court is going to fix the fair market value for the property, land and buildings, and this is based upon in addition to the testimony of all the witnesses, in particular Mr. Reilly's [sic; Rielly]*fn1 testimony concerning the depressed real estate market which I'm sure he didn't need to testify to (everybody's aware of it) and [sic; at?] three hundred thousand dollars, and I'll file an order and you gentlemen will receive copies of it. That's all.

(N.T. 36)

This finding did not have the effect of preventing the trial judge from changing his mind. A judge who as trial judge makes a finding of fact may later as a member of a court en banc join in making a contrary finding, so long as the contrary finding is supported by sufficient evidence. McClements v. McClements, 411 Pa. 257, 191 A.2d 814 (1963); Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). Here, the trial judge was a member of, and wrote the opinion for, the court en banc. The question

[ 287 Pa. Super. Page 183]

    we must decide, therefore, is whether the finding by the court en banc that the fair market value of the property was $375,000 instead of $300,000 is supported by sufficient evidence.

In approaching this question, we are mindful that on an appeal from an order fixing fair market value, our scope of review is limited. Union Nat. Bk. of Ptgh. v. Crump, 349 Pa. 339, 37 A.2d 733 (1944); Davis v. Shenandoah Boro, 273 Pa. 501, 117 A. 207 (1922); Jones v. Weir, 217 Pa. 321, 66 A. 550 (1907). We do not weigh the evidence, or resolve any conflicts in it, or pass upon the credibility of the witnesses. So long as the findings of the lower court are supported by competent evidence, we will not disturb them. Irwin Borough Annexation Case, 165 Pa. Super. 119, 67 A.2d 757 (1949); Union Ntl. Bank of Ptgh. v. Crump, supra.

In his opinion for the court en banc, the trial judge explained the court's finding that the fair market value of the property was $375,000 instead of $300,000 as follows:

The defendants [appellees] make specific objection*fn2 to the Court's taking judicial notice of the depressed market value of the property, since there was no testimony that the market for the sale of the subject real estate was depressed at the time of the Sheriff's Sale in July of 1979. The Court agrees with the defendants that its knowledge of the real estate market was insufficient to make such a finding.

The defendants also point out that the plaintiff's [appellant's] real estate expert, William Rielly in his testimony limited the use of the building to a restaurant and failed to take into consideration 760 square feet of space on the second floor of the building on said real estate when he set the fair market value at $250,000.

Slip op. at 2-3.

[ 287 Pa. Super. Page 184]

As we have considered this explanation, we have encountered several difficulties.

First: The statement that the trial judge "[took] judicial notice of the depressed market values of the property, since there was no testimony that the market . . . was depressed at the time of the Sheriff's Sale . . ." is not supported by the record. It is true that at the conclusion of the testimony, the trial judge said that Rielly "didn't need to" testify to the depressed market because "everybody's aware of it," N.T. 36 but, as the judge also said, in fact there had been "testimony . . . concerning the depressed real estate market," id.*fn3 It would appear, therefore, that the trial judge did not take judicial notice that the market was depressed.

Second: The statement that Rielly "limited the use of the building to a restaurant" is also not supported by the record. Thus, Rielly testified:

It's a special purpose building and it was altered from a theatre building or, in my opinion, you'd have to alter it. It wouldn't be economically sound to operate for that use, and you'd have to revert it to a commercial use, and I tried to weigh the property from this aspect.

THE COURT: Only as a restaurant, or some other . . .

A: Well, either as a restaurant, Your Honor, or for a commercial storeroom, either clothing or multipurpose cleaner stop type and barbershop, multi-stop.

(N.T. 4-5)

Finally: The only other reason given for the court en banc's decision to increase fair market value was that Rielly "failed to take into consideration 760 square feet of space on the second floor of the building on said real estate when he set the fair market value at $250,000." (Slip op. p. 3) Once again, however, our review of the record indicates that

[ 287 Pa. Super. Page 185]

Rielly did indeed consider the second floor of the building in setting the property's value. (N.T. 3)

Given these several difficulties, we are unable to accept the court en banc's explanation of its finding that the fair market value of the property was $375,000 instead of $300,000, as the trial judge had found. We are nevertheless unwilling simply to reinstate the trial judge's finding. Although we cannot determine from its opinion why the court en banc was dissatisfied with the trial judge's finding, it is apparent that for some reason it was dissatisfied. For us to reinstate the trial judge's finding would, we fear, represent too broad an exercise of our scope of review. Therefore, we shall remand to the lower court so that it may reconsider the case and decide whether the trial judge's finding should be changed, and if so, by how much. The court should then enter a new order, accompanied by an opinion fully explaining the basis for the change.*fn4 Bedillion v. W. A. Wilson Stave Co., Inc., 271 Pa. Super. 292, 300, 413 A.2d 411, 413 (1979). Any further appeal in this case must be from that new order.*fn5

Reversed and remanded.


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