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The School District of Philadelphia v. Board of Revision of Taxes

Commonwealth Court of Pennsylvania

August 22, 2019

The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Federal Realty Management a/k/a Andorra Shopping Center The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Philadelphia Pharmacy DST a/k/a CVS The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Philadelphia Market Street a/k/a Marriott Downtown The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and FC Bell Associates LP a/k/a The Lofts at 1835 Arch The School District of Philadelphia Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and XHR Philadelphia 17 LLC a/k/a Kimpton Hotel Palomar The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and WWW Premier Holdings LLC a/k/a Winchester Walk The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Two Logan Square Associates The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Two Liberty Place LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and T C Pepper Building G P LLC a/k/a The Pepper Building The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and SWP Real Estate LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and SPSP Corporation The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and SLT Phila LLC St. Regis Phila a/k/a Westin Hotel The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Sir Philadelphia LLC a/k/a PNC Bank Operations Center The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and PRU 1901 Market LLC a/k/a 1901-1917 Market Street The School District of Philadelphia Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Red Lion MZL LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Market Square Plaza I LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Maguire/Thomas PTNS Phila Plaza Phase II The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and HUB Properties Trust now owned by Commonwealth of PA - SEPTA The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Hill House Apartment Association a/k/a The Watermark The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and G2 S2 ASSPC LP a/k/a 1605 Sansom The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Philadelphia Hospitality Arden Group a/k/a Ritz Carlton The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Executive House Investors The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Phila Liberty PLA E LP a/k/a Liberty One The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Executive House Investors The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and PECO Energy Company The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Park Towne Place Assoc. The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Panco CC Rittenhouse Row Rittenhouse Row Investors a/k/a American Patriots Bldg The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and CRP-Grep Rushwood a/k/a Rushwood Apartments now owned by RSW Premier Holdings LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and OLS Office Partners LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Offices at Two Liberty PL The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and MREF 401 LP a/k/a 401 Market Street The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Jar Chocolate Works LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Courts-UCAL LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Henry on the Park JV LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Commerce Square Partners The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 2400 Market VII LP a/k/a Marketplace Design Center The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 1616-26 Walnut Street The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 1500 Locust Limited The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Aimco Chestnut Hall Ltd Partnership a/k/a Chestnut Hall Apartments The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Charter Court Holdings LL a/k/a Charter Court Apartments The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Cedar Quartermaster III L The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Cedar Quartermaster II LL The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Cedar Quartermaster LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 2400 Market VII LP a/k/a Marketplace Design Center The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 23rd Street Garage VII LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 618 Market LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Brandywine Operating Partners LP a/k/a Bell Atlantic Tower The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Cedar-South Philadelphia The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 1760 Market Partners LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Brandywine Operating Part The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and BA Parkway Associates II a/k/a Embassy Suites The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Aquinas 2021 Chestnut STR a/k/a 2021 Chestnut now owned by Aquinas Realty Investors The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 777 South Broad Street AS The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 1500 Net Works Associates a/k/a Net Works Building The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and ARD Grant a/k/a The Court at Grant The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and ARD Grant LP a/k/a The Court at Grant The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Philadelphia-Harbison LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Public Storage Properties XVIII The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Treeco/Manor Limited Part The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 3201 Layton Realty Corp The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 4401 Walnut Holdings LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Stratford Hamilton LP a/k/a Hamilton Court Apartments The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Post Rittenhouse Hill LP a/k/a Rittenhouse Hill Apartments The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Boulevard North Associate a/k/a Whitman Square The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Boulevard North Associate LP a/k/a Whitman Square The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Delaware East Assoc. LP a/k/a Columbus Commons The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Delaware East Assoc. a/k/a Columbus Commons The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and PR Northeast Limited Partnership a/k/a Northeast Tower Center The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Center City Chestnut LLC a/k/a Nineteen Thirty Chestnut The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Center City Walnut LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and PR Walnut Associates LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Delaware East Associates a/k/a Columbus Commons The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and PR Chestnut Associates LP The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Safeguard Frankford LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Safeguard Pa II, LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and 1513 Walnut, LLC The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and CLF Red Lion Road Philadelphia The School District of Philadelphia, Appellant
v.
Board of Revision of Taxes, The City of Philadelphia and Prime 62nd St., LLC

          Argued: March 12, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         The School District of Philadelphia (School District) appeals a number of orders of the Court of Common Pleas of Philadelphia County (trial court) that quashed the School District's appeals of 138 commercial real property assessments in the City of Philadelphia. The School District argues that the trial court erred in holding that the School District's decision to appeal only commercial property assessments violated the Uniformity Clause in the Pennsylvania Constitution, Pa. Const. art. VIII, §1, as construed in Valley Forge Towers Apartments N, LP v. Upper Merion Area School District, 163 A.3d 962 (Pa. 2017). Specifically, the School District argues that the trial court lacked an evidentiary record, which it needed to reach the legal conclusion that the School District's tax appeals were discriminatory in violation of the Uniformity Clause. We vacate and remand the matters for further proceedings.

         Background

         On August 9, 2016, the School District issued a request for proposals for professional assistance to prosecute tax assessment appeals "where it is reasonably likely that an appeal of [the] assessed value will yield a minimum of an additional $7, 500 of School District tax annually[.]" Request for Proposals 502 at 6; Reproduced Record at 6a (R.R. ___). The School District chose Keystone Realty Advisors, LLC to identify tax assessment appeals that could meet the targeted yield and Fellerman & Ciarimboli Law, P.C., to represent the School District in the appeals.

         In October 2016, the School District appealed the assessments on 138 commercial properties to the Philadelphia Board of Revision of Taxes (Board).[1] The School District did not appear or participate at the Board hearings, explaining that it did not have the information necessary for an expert appraisal of the fair market value of the properties. The Board upheld the assessments "on the papers." The School District then appealed the Board's decisions to the trial court.[2]

         While the appeals were pending, some of the property owners (Taxpayers) sought a stay of the proceedings pending the Supreme Court's decision in Valley Forge Towers, which had raised the question of whether the Uniformity Clause permitted a taxing authority to appeal the assessments only of commercial properties. The trial court denied the stay.

         On July 6, 2017, the Supreme Court issued its ruling in Valley Forge Towers and held as follows:

[A] taxing authority is not permitted to implement a program of only appealing the assessments of one sub-classification of properties, where that sub-classification is drawn according to property type - that is, its use as commercial, apartment complex, single-family residential, industrial, or the like.

Valley Forge Towers, 163 A.3d at 978 (emphasis added). Taxpayers filed motions to quash the School District's assessment appeals stating, inter alia, that the School District had violated the Uniformity Clause by selecting only commercial properties for assessment appeals. The School District responded that it used a monetary threshold to determine which appeals to file, and this policy conformed to the requirements of the Uniformity Clause, as construed in Valley Forge Towers.

         Following oral argument, the trial court ruled from the bench and quashed the School District's assessment appeals. The trial court stated as follows:

What I do have to find is that 140 cases, I can take judicial notice that there are way more commercial properties in the City of Philadelphia and there are way more residential properties, and that this was clearly a decision that was made to pick these 140 cases and to me that's clearly what Valley Forge said I'm right.
… It's the decision to appeal. For other reasons that I don't need to state on the record I find that the motion to quash should be granted and in all cases the motion to quash is granted.

Hearing Transcript, 9/8/2017, at 67 (H.T., 9/8/2017, ___); R.R. 869a. The School District filed the instant appeals.[3]

          Appeal

         On appeal, [4] the School District raises several issues.[5] First, it argues that the trial court erred in taking judicial notice of the facts needed to reach its legal conclusion that the School District's assessment appeals violated the Uniformity Clause. Second, it argues that the trial court erred in using statements of counsel made during oral argument to make findings of fact. Third, it argues that the trial court erred in its application of Valley Forge Towers because the School District based its policy on appeals on the amount of increased tax revenue, not property type.

         Taxpayers respond that the School District appealed the assessments of only commercial properties and acknowledged that it did not evaluate any residential properties for assessment appeals. This was all the "evidence" needed to establish a violation of the Uniformity Clause. Additionally, Taxpayers contend that the trial court took notice only of indisputable facts and matters of public record with respect to the School District's assessment appeal policy.

         We address the School District's issues ad seriatim.

         Judicial Notice

         In its first issue, the School District argues that the trial court erred in taking judicial notice of two facts. The first was that the number of commercial properties selected by the School District was fewer than the total number of commercial properties in the City. The second was that there existed other noncommercial properties that could have met the School District's targeted tax increase of $7, 500 per annum. The School District contends that these are disputed facts and information not generally known and, thus, could not be established by judicial notice.

         We begin with a review of judicial notice. Pennsylvania Rule of Evidence 201(b) permits a trial court to "judicially notice a fact that is not subject to reasonable dispute[.]" Pa. R.E. 201(b). See also HYK Construction Company, Inc. v. Smithfield Township, 8 A.3d 1009, 1017 (Pa. Cmwlth. 2010) (disputed facts "not within the domain of judicial notice"). In relevant part, Rule 201 states as follows:

         Judicial Notice of Adjudicative Facts

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot ...

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