# 841 Associates v. Board of Revision of Taxes of City & County of Philadelphia > Commonwealth Court of Pennsylvania · April 18, 1996 · 674 A.2d 1209 URL: https://www.frixlaw.com/law-library/cases/4952576 ## Case - **Full name:** 841 ASSOCIATES v. The BOARD OF REVISION OF TAXES OF CITY AND COUNTY OF PHILADELPHIA, City of Philadelphia, and the School District of Philadelphia - **Court:** Commonwealth Court of Pennsylvania - **Decided:** April 18, 1996 - **Citations:** 674 A.2d 1209; 1996 Pa. Commw. LEXIS 162 - **Precedential status:** Published - **Opinion:** Dissent by Narick - **Judges:** Flaherty, Narick, Pellegrini - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4952576 ## Opinion text NARICK, Senior Judge, dissenting. I respectfully dissent. The majority opinion completely misapplies case precedents and is in direct contravention to all established doctrine concerning the role of a trial court and the reviewing authority of an appellate court. This case involves the role of a trial court and its authority to determine a witness’s credibility and the weight of the evidence. What the majority does is to strip the trial court of its ability to determine issues of credibility, in direct violation of *1215 voluminous case law affording the trial court the sole power to decide these matters. As discussed by the majority, this case involves a tax appeal by 841 Associates (Appellant) concerning the fair market value of Appellant’s fourteen story Center City office tower located in Center City Philadelphia. At the de novo hearing on June 6, 1994, the Taxing Authority asserted that the fair market value of the property was valued at $43.2 million, but after the appeal was filed, it was reduced to $37 million. Appellant claimed that the fair market value was $25 million. Following a de novo hearing on June 6, 1994, the trial court determined that the fair market value of Appellant’s property for 1994 was $32.5 million. Thereafter, on April 11, 1995, the trial court issued an opinion explaining its aforementioned June 6, 1994 order. The trial court posited that it made a credibility determination involving Appellant’s expert witness, Theresa Hoberg (Ho-berg), and accepted only part of her testimony as being credible. In doing so, the trial court referenced Pennsylvania Standard Practice 2d, § 555:14 (1982) and stated: “It is well settled that the court is free to accept or reject, in whole or in part, the opinion of any expert.” 1 The majority ignores the significance of the trial court’s credibility determination concerning Hoberg. The trial court did not find Hoberg to be credible, only partially credible, thereby ruling that part of her testimony was unbelievable. This duty, credibility determination, remains entirely within the realm of the trial court and should not and cannot be addressed by an appellate court, as the majority has done. The majority relies upon Deitch Co. v. Board of Property Assessment, 417 Pa. 213 , 209 A.2d 397 (1965), which states in pertinent part: “Where the taxpayer’s testimony is relevant, credible and unrebutted, it must be given due weight and cannot' be ignored by the court. It must necessarily be accepted.” The majority’s application of this case and the aforementioned language, in order to support its reversal of the trial court’s credibility determination of Hoberg, is completely puzzling. Our Supreme Court in Deitch stated that a trial court must accept a taxpayer’s testimony where that testimony is relevant, credible and unrebutted. The trial court, however, in this case, was not required to accept the taxpayer’s testimony as the trial court did not find Hoberg’s witness to be entirely credible. Deitch supports the proposition that only in cases where testimony is found credible, is a trial court bound to accept it. The majority states at page six: “The trial court’s mandate to accept unrebutted expert testimony from the taxpayer is also supported by the Supreme Court’s decision in Appeal of Rieck Ice Cream Co., 417 Pa. 249 , 209 A.2d 383 (1965).” In Rieck, the Court stated that in the absence of rebuttable testimony, competent evidence from a credible witness cannot be disregarded. Our Supreme Court mandates a trial court to accept a witness’s testimony where that evidence is found to be credible. However, the trial court did not find Hoberg to be credible and this Court is mandated to accept the credibility determination of the trial court. The majority’s refusal to acknowledge the trial court’s determination concerning Hoberg’s credibility blatantly violates clear precedent from our Supreme Court. This Court has repeatedly ruled that the trial court, as a factfinder in a tax assessment case, is the sole arbiter of the evidence and as such is empowered to decide the weight to be accorded to all testimony presented. Appeal of Duquesne Club, 92 Pa.Cmwlth. 15 , 498 A.2d 459 (1985). See also Pittsburgh-Des Moines Steel Co., Inc. v. McLaughlin, 77 Pa.Cmwlth. 565 , 466 A.2d 1092 (1983). As all matters of credibility and evidentiary weight are within the province of the trial court, these determinations are therefore binding on this Court absent an error of law. Walnut-Twelve Assoc. v. Board of Revision of Taxes of City of Philadelphia, 131 Pa.Cmwlth. 404 , 570 A.2d 619 (1990). See also B.P. Oil Co., Inc. v. Delaware County Board of Assessment Appeals, 114 Pa.Cmwlth. 549 , 539 A.2d 473 (1988) and Lycoming County Appeal, 100 Pa.Cmwlth. 616 , 515 A.2d 335 (1986). It is not the func *1216 tion of this Court to re-weigh the evidence and to substitute its judgment for that of the trial court. In this case, the trial court made a credibility determination and decided to only partially believe the testimony presented by Appellant’s expert witness. In doing so, the trial court referenced the Appellant’s expert witness’s assertion that, based upon a different computation method, the value for Appellant’s property would be $32.7 million for the year 1994. 2 The majority opinion, and not the trial court, asserts that Appellant’s expert witness was credible in all respects, particularly since Appellant’s witness was the only witness to testify and that the Taxing Authority failed to present any rebuttal evidence. Unfortunately, the majority opinion, however, fails to note that in the transcript of the hearing the expert’s witness’ testimony consisted of approximately twenty-three pages, whereas the Taxing Authority’s solicitor’s extensive cross-examination of the expert’s witness consisted of sixteen pages. On cross-examination, the witness expressed uncertainty in various areas including the application of cost value, irrelevance of improvements, rental rates in projecting the value, the application of the Uniformed Standards of Professional Appraisal Practice, which does not dictate the fair market value, market conditions, relevance of assumptions and estimates in the future based on the witness’s assumptions, rentable area and the cost thereof. Typically, it is clear, as in all tax assessment cases that come before a trial court, that determining the fair market value is not an exact science, but rather requires the trial court to make a judgment call in rendering an opinion based on competent, relevant and credible evidence of what is the fair market value. The trial court in this case made a judgment call in which he determined, based on the various positions taken by the parties, and Hoberg’s testimony, that the fair market value was $32.5 million. The majority, on page eight, states: “But a trial court does not have the option of determining that the witness was credible and then picking and choosing among the numbers discussed during her testimony to set a valuation.” Not only does the majority fail to support this apparent rule of law with any statutory or precedential authority, the majority also has not thoroughly or adequately reviewed the record below or the trial court’s opinion. As previously discussed, the majority has somehow disregarded the fact that the trial court made a credibility determination finding Hoberg’s testimony not entirely credible. As a result, this Court should uphold the trial court’s credibility determination and affirm its decision assigning Appellant’s property a fair market value for 1994 of $32.5 million. Accordingly, I would affirm the trial court’s decision. . In pertinent part from the trial court’s April 11, 1995 opinion. . Appellant’s expert witness, Theresa Hoberg, testified in pertinent part: A. Our projection for the net operating income for 1994 before capital expenses was $4,346,000. Q. And if you capitalize that, if you divide that by the cap rate, what will you get? What value will be adduced by doing that — will result from that? A. It depends upon what capitalization rate you use. Q. Using your own cap rate. A. I would use a different capitalization rate on that. Q. Would you use 13%? A. 13% is a 10‘/i% capitalization rate plus a 2.78% tax factor. Q. What I want you to do is to capitalize the 4,346,000 net operating income that you arrived at under the discounted cash flow with the cap rate that you used in the report, which I take to be 13.28. What value do you then get? A. That indicates a number of $32,700,000. Notes of Testimony of June 6, 1994 hearing at 38-39. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4952576. Public record. Not legal advice.