T. Costa and K. Costa, and Elmtowne Gardens, LLC v. City of Allentown

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Costa and Karen Costa, :

and Elmtowne Gardens, LLC :

:

v. : No. 826 C.D. 2016

: Argued: December 15, 2016

City of Allentown :

:

Appeal of: Thomas Costa, Karen :

Costa and Elmtowne Gardens, LLC :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON FILED: January 12, 2017

Appellants Thomas Costa and Karen Costa (Costas) and Elmtowne

Gardens, LLC (Elmtowne) (collectively, Appellants) appeal from an order of the

Court of Common Pleas of Lehigh County (trial court), dated May 2, 2016,

denying their post-trial motions following a nonjury trial. Upon conclusion of the

trial, the trial court entered an order dated, December 22, 2015, finding in favor of

Appellee City of Allentown (City) and against Appellants in all respects. For the

reasons set forth below, we affirm.

In 1999, the City passed Article 1759 of the City’s Property

Rehabilitation and Maintenance Code entitled “Licensing Residential Rental

Units” (Ordinance). (Reproduced Record (R.R.) at 112a.) The Ordinance’s stated

purpose is

to protect and promote the public health, safety and

welfare of its citizens, to establish rights and obligations

of owners and occupants relating to residential rental

units in the City and to encourage owners and occupants

to maintain and improve the quality of rental housing

within the community. As a means to these ends, this

[O]rdinance provides for a systematic inspection

program, registration and licensing of residential rental

units, and penalties.

(Id.) In connection with its adoption of the Ordinance, the City made certain

findings:

1. There is a growing concern in the community with the

general decline in the physical condition of residential

rental units;

2. City records indicate there is greater incidence of

problems with the maintenance and upkeep of residential

properties which are not owner occupied as compared to

those that are owner occupied;

3. City records indicate there are a greater number of

disturbances at residential rental units than all other

properties combined; and

4. City records indicate that violations of the various

codes are generally less severe at owner-occupied units

as compared to residential rental units.

(Id.) The Ordinance requires each residential rental unit located within the City to

have a residential rental registration or a residential rental license before it can be

lawfully rented or occupied. (Id. at 113a-14a.) A residential rental registration

must be obtained annually until such time that the residential rental unit is

inspected and a residential rental license is issued. (Id. at 113a, 115a-16a.) A

residential rental license is issued after the residential rental unit is inspected and

found to be in compliance with all City codes. (Id. at 113a, 116a.) The residential

rental license will thereafter remain in effect until the next regularly scheduled

systematic inspection occurs, which inspection will occur no more frequently than

once every five years, unless there is a complaint of violation or probable cause to

believe that a violation of City codes has occurred. (Id. at 116a.) The residential

2

rental license may be revoked if the property owner does not correct code

violations discovered in connection with complaint inspections. (Id. at 116a-17a.)

The City charges a $75 annual license fee per residential rental unit for all

residential rental registrations and residential rental licenses. (Id. at 119a.)

The Ordinance further requires every property owner to maintain the

residential rental units in compliance with all applicable codes, laws, regulations,

and local ordinances, to keep the residential rental units in a good and safe

condition, and to act to eliminate disruptive conduct in all residential rental units.

(Id. at 113a.) Occupants and their guests are required to conduct themselves in a

manner that does not disturb the peaceful enjoyment of the premises or nearby

properties. (Id. at 114a.) Occupants may not cause damage to the residential rental

units or engage in disruptive conduct. (Id. at 115a.) Police officers and other

public officers are required to investigate alleged incidents of disruptive conduct

and complete a report if they determine that disruptive conduct has occurred.

(Id. at 115a.) The Ordinance sets forth the manner by which property owners and

occupants may appeal the contents of a disruptive conduct report. (Id. at 115a,

118a-19a.) In the event that there are three disruptive conduct reports for any one

residential rental unit within a twelve month period, the property owner is required

to commence eviction proceedings against the occupants. (Id.) These provisions

are commonly referred to as the City’s “Rental Program.”

At the time that the Ordinance was passed in 1999, there were

approximately 16,000 residential rental units located in the City, and the annual

license fee ranged from $11 to $21 per unit. (Id. at 315a, 488a.) By 2014, the

number of residential rental units had increased to approximately 24,000, and the

3

annual license fee was $75.1 (Id. at 315a, 488a-89a.) The residential rental units

consist of garden apartments, high-end apartments, low-end apartments,

conversions, single-family properties turned into multiple units, loft apartments,

mixed-use properties with commercial uses on the first floor and apartments on the

second floor, single-family properties, rooming units, and efficiency units.

(Supplemental Reproduced Record (Supp. R.R.) at 45b.) The quality of the

residential rental units varies throughout the City. (Id. at 27b-28b.) Some

residential rental units, such as older, conversion properties, are more complicated

and take longer to inspect than newer, “cookie-cutter” units originally built as

apartments. (Trial Tr. Vol. I at 31-32, 59-60.) The frequency of inspections

performed on residential rental units varies depending on the location of the

property, with some properties being inspected much less frequent than every five

years. (Id. at 209-11.) For example, residential rental units located in the City’s

downtown area are subject to more complaints and, therefore, receive more

frequent inspections than residential rental units located in other areas of the City.

(Id. at 209-10.)

Appellants own and manage residential rental properties in the City.

The Costas own six residential rental properties, consisting of forty-two units.

Elmtowne owns one residential rental property, consisting of thirty-five units.

Appellants complied with the Ordinance and paid the $75 annual license fee for

each of their units since 2010. On December 22, 2011, Appellants initiated an

action against the City, alleging that the $75 annual license fee charged by the City

1

The City increased the annual license fee to $75 per residential rental unit in 2010.

(R.R. at 315a.)

4

since 2010 constitutes an unlawful special tax that subsidizes general functions of

the City, such as police services, code enforcement, and boarding up vacant

properties and that the private industry can provide the same services performed by

the City under the Rental Program for a fraction of the City’s cost.2 Appellants’

amended complaint, filed on February 7, 2012, sought: (1) declaratory relief in the

form of a declaration that the $75 annual license fee is an unlawful special tax;

(2) an injunction enjoining the City from enforcing the Ordinance and/or collecting

the $75 annual license fee; and (3) a refund of the $75 annual license fee paid by

Appellants for each of their residential rental units since 2010.

The trial court held a nonjury trial on July 30 and 31, and

August 1, 4, and 5, 2014. At that time, Appellants presented the testimony of

Robert L. Boland (Boland), a certified public accountant. Appellants’ counsel

provided Boland with three Pennsylvania cases, including University Park

Cinemas, Inc. v. Borough of Windber, 59 Pa. D. & C.2d 726 (C.P. Somerset 1972),

and directed Boland to rely on those cases. (Trial Tr. Vol. IV at 31-32, 76-79.)

Relying on those cases, Boland testified that the only costs attributable to the

Rental Program for purposes of justifying the $75 annual license fee are those

direct costs related to the registration and licensure of residential rental units that

would disappear if the Rental Program was terminated. (Id. at 31-33, 76-79.)

Boland’s calculation of the costs attributable to the Rental Program, therefore,

included only: (1) a percentage of the wages/salaries of the employees working in

2

This action was initially commenced against the City by Thomas Costa and Elmtowne.

In response to preliminary objections, Appellants filed an amended complaint adding Karen

Costa as a named plaintiff.

5

the City’s rental housing division that perform Rental Program functions;

(2) personnel costs related to the Rental Program as identified on the City’s

2012 budget; and (3) a percentage of certain direct costs identified by David Paulus

(Paulus), Director of the City’s Bureau of Building Safety and Standards, such as

vehicle maintenance, vehicle insurance, fuel, cell phones, and computer costs.

(R.R. at 420a-31a.)

In performing his analysis, Boland did not include any costs relating

to presale inspections, cleaning out and boarding up vacant properties, complaint

inspections, emergency sewer responses, policing functions, and demolitions,

because such costs had their own separate revenue source or were general

functions that the City performed for all properties, not just rental properties.

(Id. at 414a-16a, 433a-36a.) Boland also did not include any costs relating to

non-specific, general fund expenses that support the City as a whole or a

percentage of the wages/salaries of non-Rental Program personnel, such as the

Mayor, information technology, council president, police officers, and zoning

officers. (Id. at 447a-50a.) Despite his exclusion of these costs, Boland admitted

that if there were disproportionate demands on the City’s resources as a result of

residential rental units, such costs should be included as costs of the Rental

Program if they could be calculated. (Id. at 450a-53a.) Boland also admitted that

if City employees were involved in the billing and collecting of registration and

license fees, the costs associated with such activity should be included as costs of

the Rental Program. (Trial Tr. Vol. IV at 96.) Boland provided inconsistent

testimony as to whether all of the costs associated with the disruptive conduct

reporting function were included in his calculation of the Rental Program’s costs.

(Id. at 26-27, 57, 92-94, 113, 124.)

6

Appellants also presented the testimony of Kevin Pezzano (Pezzano)

and Anthony Tartaglia (Tartaglia) as experts in code enforcement and rental

inspection programs. Pezzano testified that the private industry would charge

between $25 and $60 per residential rental unit to perform the habitability-type

inspection contemplated by the Ordinance, which equates to $205,000 to inspect

and re-inspect 4,000 residential rental units. (Id. at 350a, 352a.) While he did not

initially consider the cost associated with the disruptive conduct reporting function,

Pezzano estimated that the private industry would charge an additional $10 per

residential rental unit to perform that function. (Trial Tr. Vol. II at 64-65.)

Tartaglia, who operates a third-party inspection company, testified that his

company would charge the City between $45 and $50 per residential rental unit to

inspect 4,000 residential rental units per year, or approximately $240,000 per year,

with an additional $35 fee for re-inspections. (R.R. at 382a-83a, 387a.) Tartaglia

estimated that his company would charge an additional $18,000 to perform the

disruptive conduct reporting function, which would include sending out notice

letters and meeting with property owners. (Id. at 383a-85a.) Tartaglia explained,

however, that if a residential rental unit was non-compliant and a citation was

issued, the City would be billed separately for any additional work. (Id. at 385a.)

In defense of Appellants’ claims, the City presented the testimony of

Dr. Trevor M. Knox (Knox), a certified public accountant. In calculating the costs

associated with the Rental Program, Knox utilized a full cost approach that

considered all costs associated with the Rental Program’s activities and any

involvement with residential rental units, as well as some overhead costs.

(Supp. R.R. at 70b-81b.) Knox explained that he treated the Rental Program as a

comprehensive program regulating all activities related to residential rental units.

7

(Id. at 70b.) His calculation of the Rental Program’s costs included such things as:

(1) those Rental Program costs identified on the City’s 2012 budget, with some

adjustments for personnel expenses and current litigation expenses; (2) certain

non-personnel costs identified by Paulus in a 2012 expenditure detail, with some

adjustments based on Knox’s independent verification/calculation of such costs;

(3) personnel costs for those City employees who were performing Rental Program

activities, but which were not included in the City’s 2012 Rental Program budget;

(4) general overhead costs that could be re-allocated to the Rental Program; and

(5) the costs associated with the disproportionate number of police calls to

residential rental units. (Id. at 70b-81b.) Based on his calculation of the Rental

Program’s costs and the revenues generated by the $75 annual license fee per

residential rental unit, Knox concluded that the costs of the Rental Program are

approximately 15% below the maximum revenue generated by the license fee.

(Id. at 82b.)

On December 22, 2015, the trial court issued an opinion and order

finding in favor of the City and against Appellants. The trial court found that

Appellants

failed to meet their burden of showing [that] the City was

not permitted to enact its comprehensive regulatory

regime, [that] the annual $75 per [residential rental] unit

fee is excessive in relation to the expenses of the

regulatory program, or that the private sector can provide

the same regulatory program cheaper than does the City.

(Trial Ct. Op. at 2.) In so finding, the trial court, inter alia, rejected Boland’s

testimony in favor of Knox’s testimony, concluded that for all practical purposes

the costs of the Rental Program equaled the revenues generated by the $75 annual

license fee per residential rental unit, and found Pezzano’s and Tartaglia’s

8

testimony to be not credible. Appellants filed a motion for post-trial relief, which

the trial court denied on May 2, 2016. This appeal followed.

On appeal,3 Appellants argue: (1) the trial court erred in determining

that the $75 annual license fee could be diverted to subsidize budgetary overhead

and the costs of general, unrelated governmental services; (2) the trial court erred

by not declaring the $75 annual license fee an unlawful special tax collected for

general tax revenue purposes; and (3) the trial court erred by not declaring the

$75 annual license fee unlawful because the private industry is able to perform the

services provided by the City under the Rental Program for only 13.7% of the total

annual license fees collected by the City.4

We first address Appellants’ argument that the trial court erred when

it determined that the $75 annual license fee could be diverted to subsidize

budgetary overhead and the costs of general, unrelated governmental services.

More specifically, Appellants argue that the amount of the City’s license fee must

be limited to the actual and probable costs incurred to administer the Rental

Program. Appellants argue further that the trial court erred by adopting the full

cost approach utilized by Knox, the City’s expert, to substantiate the license fee,

3

Our standard of review is limited to determining whether the trial court abused its

discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a matter of

law. Commonwealth v. Tobin, 828 A.2d 415, 418 n.1 (Pa. Cmwlth.), appeal denied,

841 A.2d 533 (Pa. 2003).

4

In support of their arguments, Appellants cite, inter alia, Kappe v. West Chester

Borough (Pa. Cmwlth., No. 1905 C.D. 2003, filed May 11, 2004), an unreported panel decision

of this Court. Because Kappe is an unreported decision of this Court issued prior to

January 15, 2008, Appellants’ citation to and reliance on Kappe is improper as it is prohibited by

Section 414(a) of this Court’s Internal Operating Procedures. Nonetheless, our decision here is

not in conflict with the Court’s decision in Kappe.

9

which approach, according to Appellants, erroneously included the following:

(1) $166,556 of the City’s annual general administrative overhead; (2) $482,285 of

the City’s annual general police services without isolating the cost of police calls

related to disruptive conduct complaints; (3) $223,000 of the wages/salaries for

administrative and operational personnel who perform general City services

unrelated to the Rental Program; and (4) the cost of code enforcement functions

that are unrelated to and predate the Rental Program, such as boarding up vacant

properties, complaint inspections, responding to emergency sewer issues, and

assisting in social services when living conditions of the property may be at issue.

Appellants contend, to the contrary, that the actual and probable costs of the Rental

Program are only those “special services” provided in connection with the Rental

Program, which they limit to the direct costs associated with the registration of the

residential rental unit, the initial and systematic inspection of the residential rental

unit, and the disruptive conduct reporting process, because those are the only costs

that were newly created by the Ordinance and would disappear if the Rental

Program was discontinued. In response, the City argues that the trial court’s

adoption of Knox’s full cost approach was “consistent with the legal standards

applicable to analyzing a license fee relating to a comprehensive regulatory

program[,]” and “the trial court properly determined that [Appellants] did not meet

their heavy burden of proof . . . because they failed to properly account for all costs

attributable to the [Rental P]rogram.”5 (City’s Br. at 24.)

5

The City also argues that Appellants have attempted to reargue the facts of the case,

because Appellants continue to use their version of the facts rather than those facts adopted by

the trial court. The City contends that this is improper and should be disregarded, because

Appellants have presented a purely legal argument to this Court for review and have not

(Footnote continued on next page…)

10

The Pennsylvania Supreme Court, in Mastrangelo v. Buckley,

250 A.2d 447 (Pa. 1969), defined a license fee as follows:

A license fee is a sum assessed for the granting of a

privilege. In most instances, where a license is granted

the City invariably incurs expense such as the cost of

registration and inspection; it is only proper that one who

seeks and receives a license should bear this expense. To

defray the cost of a license a fee is charged to the

licensee; however, this fee must be commensurate with

the expense incurred by the City in connection with the

issuance and supervision of the license or privilege.

Mastrangelo, 250 A.2d at 464 (footnote omitted). “A license fee is distinguishable

from a tax[,] which is a revenue producing measure characterized by the

production of a high proportion of income relative to the costs of collection and

supervision.” Thompson v. City of Altoona Code Appeals Bd., 934 A.2d 130, 133

(Pa. Cmwlth. 2007). A municipality cannot impose a tax upon a business under

the guise of exercising its police power, and, therefore, a license fee will be struck

down if its amount is “grossly disproportionate to the sum required to pay the cost

of the due regulation of the business.” Flynn v. Horst, 51 A.2d 54, 60 (Pa. 1947).

“The party challenging a license fee has the burden of proving that the fee is

unreasonable.” Thompson, 934 A.2d at 133. “All doubt must be resolved in favor

of the reasonableness of the fee, since the municipality must be given reasonable

latitude in anticipating the expense of enforcing the ordinance.” Id.

(continued…)

challenged the trial court’s factual findings. While we acknowledge the City’s position, we need

not address this argument as it is not germane to our analysis of the issues on appeal.

11

We agree with the trial court that Appellants did not meet their burden

of proof in this case. In order to meet their burden and establish that the City’s

$75 annual license fee was unreasonable, Appellants first had to present evidence

regarding the costs incurred by the City in connection with the issuance of the

license and the supervision of the Rental Program. In an attempt to meet their

burden, Appellants presented the expert testimony of Boland, who opined that the

costs attributable to the Rental Program include only those direct costs related to

the registration and licensure of residential rental units that would disappear if the

Rental Program was terminated—i.e., the registration and licensure of the

residential rental unit, the initial and systematic inspection of the residential rental

units, and the disruptive conduct reporting process. Appellants’ reliance on cases

such as Warner Brothers Theatres, Inc. v. Borough of Pottstown, 63 A.2d 101

(Pa. Super. 1949), and University Park Cinemas, to support their narrow position

that the costs attributable to the Rental Program should be limited to “special

services” is misplaced. This is not a “special services” case, and a pure direct cost

analysis, as adopted by Boland, is inadequate to calculate the expenses incurred by

the City if there are also indirect costs related to the Rental Program. See, e.g.,

Thompson, 934 A.2d at 135 (“While the [d]epartment’s budget increased by only

$90,000 the first year, it is clear that the [d]epartment had devoted or redirected to

the [rental inspection p]rogram additional resources which had been included in

its pre-[rental inspection p]rogram budget and which were not represented within

the $90,000 increase. In justifying its license fee, the City was entitled to include

all costs attributable to the [rental inspection p]rogram, not just those costs that

resulted in an increase in the [d]epartment’s budget.” (emphasis added)).

12

While we do not necessarily agree that all of the costs presented by

Knox are attributable to the Rental Program, the trial court properly rejected

Appellants’ limited, direct cost scheme and concluded that there were also indirect

costs attributable to the Rental Program that Boland did not take into consideration

in his analysis. Indirect costs that are properly attributable to a governmental

program for the purposes of determining whether a license fee is grossly

disproportionate are those costs related to an increased burden on existing

governmental services. In other words, if the burden imposed on a budget line

item increases when a new program is added, such additional burden is properly

attributable to the new program regardless of whether the budget line item is

increased. In essence, the governmental unit is permitted to reallocate or redirect

existing costs to a newly established program if additional burdens are placed on

such governmental unit’s existing services. Applying these principles to the facts

of the present case, the indirect costs properly attributable to the Rental Program

and not considered by Boland include: (1) police services performed as part of the

Rental Program’s disruptive conduct reporting function; and (2) wages/salaries and

other personnel expenses for existing City employees who perform general

services and/or work for programs/departments other than the Rental Program, but

who also perform functions for the Rental Program. On the other hand, the

indirect costs that are not properly attributable to the Rental Program, but

considered by Knox in his expert opinion, include: (1) general administrative

overhead that supports the City as a whole and is not attributable to any one

specific program, including the Rental Program; and (2) code enforcement

functions unrelated to the Rental Program—i.e., boarding up vacant properties,

responding to emergency sewer issues, and assisting social service agencies with

13

conditions at residential rental properties. In this case, Appellants presented an

“all-or-nothing” approach that only included the Rental Program’s direct costs. As

a result, the trial court properly concluded that Appellants failed to meet their

burden of proof.

The trial court could have concluded its analysis there and did not

need to make a determination regarding the Rental Program’s costs or whether

such costs were grossly disproportionate to the revenues generated by the

$75 annual license fee. The trial court did not err, however, by accepting Knox’s

expert opinion. The trial court was presented with two expert opinions and

rejected one expert opinion over the other. Even though Knox’s expert opinion

included costs that are not properly attributable to the Rental Program, we cannot

find error in the trial court’s decision simply because the City may have failed to

present evidence sufficient to prove Appellants’ case—i.e., a proper calculation of

the total expenses incurred by the City in connection with the Rental Program. The

trial court properly concluded that Appellants failed to meet their burden of proof

by not considering the Rental Program’s indirect costs. The burden of proof never

shifted to the City to prove those indirect costs—i.e., it was Appellants’ burden to

calculate what portion of the general police services should be allocated to the

disruptive conduct reporting function, not the City’s burden. The City merely

needed to show that there were at least some significant indirect costs of the Rental

Program that were not quantified and considered by Boland, which it did. Once

the City did so, a conclusion that Appellants failed to meet their burden of proof

was proper.

We are by no means saying that the City’s $75 annual license fee is

reasonable. Rather, we are saying that it was Appellants’ burden to establish that

14

the $75 annual license fee was grossly disproportionate, which Appellants failed to

do. Appellants presented a very narrow approach that did not take into

consideration any of the Rental Program’s indirect costs, and once the City

identified an unquantified and significant indirect cost that was properly

attributable to the Rental Program and the trial court accepted such indirect cost, it

was not an error for the trial court to conclude that Appellants failed to meet their

burden of proof. For these reasons, we cannot conclude that the trial court

committed an error of law.

Next, we address Appellants’ argument that the trial court erred by not

declaring the $75 annual license fee an unlawful special tax collected for general

tax revenue purposes. More specifically, Appellants argue that the $75 annual

license fee is an unlawful special tax because the revenues generated by it exceed

the actual and probable costs of the Rental Program by 200%. In essence,

Appellants argue that the total revenues generated by the $75 annual license fee are

grossly disproportionate to the actual and probable expenses incurred by the City

in connection with the Rental Program. In response, the City argues that the trial

court properly concluded that the $75 annual license fee was not an unlawful

special tax. The City argues further that the trial court properly rejected Boland’s

testimony because it was based on “an erroneous understanding of the legal

standards governing the cost analysis applicable to license fees” and did not

include any indirect costs despite his concession that such costs should be

accounted for if they could be quantified. (City’s Br. at 49.) As set forth more

fully above, the trial court properly concluded that Appellants did not meet their

initial burden of proof with respect to establishing the total costs of the Rental

Program. As a result, we cannot conclude that the trial court erred by not declaring

15

the $75 annual license fee an unlawful special tax collected for general tax revenue

purposes.

Finally, we address Appellants’ argument that the trial court erred by

not declaring the $75 annual license fee unlawful because the private industry is

able to perform the services provided by the City under the Rental Program for

only 13.7% of the total annual license fees collected by the City. More

specifically, Appellants argue that they “presented credible, unopposed evidence

from two code enforcement experts, Pezzano and Tartaglia[,] on the probable costs

of the private industry to perform” the services provided by the Rental Program,

including registration, inspection, and investigation of disruptive conduct

complaints and that “these two, very well qualified experts testified that the private

industry would perform the current Rental Program function . . . for a fraction of

the [total license fees] collected” by the City. (Appellants’ Br. at 57.) Appellants

argue further that the trial court erred in rejecting this expert testimony on the basis

that such experts did not include the costs associated with code enforcement

functions, such as boarding up vacant properties, complaint inspections,

responding to emergency sewer issues, and assisting in social services because

such costs are not attributable to the Rental Program. In response, the City argues

that Appellants’ arguments must fail because “private industry charges are not a

‘litmus test’ for the validity of a license fee, particularly where the license fee

relates to a general regulatory scheme, rather than the provision of a discrete

service.” (City’s Br. at 53.) The City argues further that Appellants’ arguments

also fail because the trial court rejected Pezzano’s and Tartaglia’s testimony “as

lacking in credibility, relevance and persuasiveness.” (City’s Br. at 53.)

16

In a nonjury trial, the trial court is the finder of fact and the sole judge

of credibility. In re Funds in the Possession of Conemaugh Twp. Supervisors,

753 A.2d 788, 790 (Pa. 2000). The trial court “is free to reject even

uncontradicted testimony it finds lacking in credibility.” D’Emilio v. Bd. of

Supervisors, Twp. of Bensalem, 628 A.2d 1230, 1233 (Pa. Cmwlth. 1993)

(emphasis added). The trial court’s credibility determinations will not be disturbed

on appeal. Spera v. Dep’t of Transp., Bureau of Driver Licensing, 817 A.2d 1236,

1240 (Pa. Cmwlth.), appeal denied, 841 A.2d 534 (Pa. 2003). Here, the trial court

found that Pezzano’s testimony was not credible because his expertise was with

fires and fire investigations, not rental housing inspections. The trial court also

found that Pezzano had no familiarity with the City and that “[h]is experiences in

Plymouth and Towamencin Townships have little in common with conditions in

[the City] in terms of the size of the [C]ity or its bureaucracy, demographics,

housing stock, residential development[,] or the complexity and

comprehensiveness of its Rental Program.” (Trial Ct. Op. at 29.) Likewise, the

trial court determined that Tartaglia’s “experience is not comparable to [the City]

or the findings which form the basis of the Ordinance.” (Trial Ct. Op. at 33.) We

will not disturb these credibility determinations on appeal. As a result, we cannot

conclude that the trial court erred as a matter of law because Appellants failed to

present any credible evidence establishing that the private sector could perform the

services provided by the City under the Rental Program for a lower cost.

For all of the above stated reasons, we affirm the trial court’s order.

P. KEVIN BROBSON, Judge

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Costa and Karen Costa, :

and Elmtowne Gardens, LLC :

:

v. : No. 826 C.D. 2016

:

City of Allentown :

:

Appeal of: Thomas Costa, Karen :

Costa and Elmtowne Gardens, LLC :

ORDER

AND NOW, this 12th day of January, 2017, the order of the Court of

Common Pleas of Lehigh County is hereby AFFIRMED.

P. KEVIN BROBSON, Judge