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APPEAL M.W. KELLOGG COMPANY (A WHOLLY OWNED SUBSIDIARY WHEELABRATOR-FRYE (05/17/85)

decided: May 17, 1985.

IN RE: APPEAL OF THE M.W. KELLOGG COMPANY (A WHOLLY OWNED SUBSIDIARY OF WHEELABRATOR-FRYE, INC.) AS SUCCESSOR TO PULLMAN-STANDARD CAR MANUFACTURING COMPANY AND PULLMAN INCORPORATED FROM THE ACTION OF THE BOARD FOR THE ASSESSMENT AND REVISION OF TAXES ON PROPERTY SITUATE IN BUTLER TOWNSHIP WARD II AND THE CITY OF BUTLER WARD III, BUTLER COUNTY, PENNSYLVANIA. THE M.W. KELLOGG COMPANY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Butler County in the case of In Re: Appeal of M.W. Kellogg Company (A wholly owned subsidiary of Wheelabrator-Frye, Inc.) as successor to Pullman-Standard Car Manufacturing Company and Pullman Incorporated from the action of the Board for the Assessment and Revision of Taxes on property situate in Butler Township Ward II and the City of Butler Ward III, Butler County, Pennsylvania, MsD. No. 82-102, Book 43, Page 111.

COUNSEL

John R. Dingess, with him, Joseph A. Katarincic, Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.

Alexander H. Lindsay, Jr., with him, William C. Robinson, County Solicitor, Henninger & Robinson, for appellee.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr. did not participate in the decision in this case.

Author: Palladino

[ 89 Pa. Commw. Page 321]

The M.W. Kellogg Company (taxpayer) appeals from an order of the Court of Common Pleas of Butler County (trial court) which dismissed its appeal from a decision by the county's Board of Property Assessment. The Board fixed the fair market value of the taxpayer's property for 1983 at $6,388,010, and the assessed value at 75% of market value, or $4,791,016.

We must decide whether the trial court, in refusing to reduce the Board's assessment, erred by rejecting as incredible the expert testimony presented by the taxpayer on the property's fair market value.

The property in question is comprised of three separate parcels of land upon which are located the industrial facilities known as the Pullman Plant.

[ 89 Pa. Commw. Page 322]

At the de novo hearing before the trial court, the county introduced the assessment records for 1983 and then rested. The taxpayer then offered the testimony of Mr. Lebovitz, a real estate appraiser. Mr. Lebovitz testified that the fair market value of the property was, in his opinion, $2,450,000, which would result in an assessed value of $1,837,500. The taxpayer also offered the testimony of Mr. Neely, who concurred with Mr. Lebovitz's valuation. The county then introduced the testimony of Mr. DeRose, a county assessor, who explained the methods used in preparing the county's assessment. In essence, the county based its valuation on a county-wide assessment made in 1970, with yearly adjustments for depreciation and obsolescence.

The trial court, in its opinion, specifically rejected the testimony of Mr. Lebovitz and Mr. Neely because of the radical difference between their testimony on the valuation of the property before the Board and the trial court. Mr. Lebovitz testified before the Board that the fair market value of the property was $3,000,000, a figure $550,000 higher than his valuation testimony before the trial court.

The trial court, in viewing this discrepancy, stated, "This underscores the problem confronting the Court in accepting expert opinion as to real estate valuation. It is merely opinion and when such opinion varies to the extent proffered in this case, it is not credible." The trial court concluded that because the proof offered by the taxpayer was incredible, it did not overcome the prima facie validity of the county's assessment, and dismissed the appeal.

It is well established that the trial court is the fact finder in a tax assessment appeal, and all matters of credibility and evidentiary weight are within the province of ...


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