The opinion
*235 Dissenting Opinion by
Senior Judge Kalish:
I respectfully dissent.
The issue is whether the trial judge, in the trial de novo, based his determination of the fair market value of the property on competent and relevant evidence.
The record indicates that each party arrived at widely disparate opinions of the fair market value of appellants property. Each considered the market data and the reproduction cost less depreciation approaches and testified extensively on each. However, the expert for the property owner testified concerning difficulties in using the cost approach and said he relied on the market data approach in arriving at his lair market value of $450,000. The expert for the Board said he gave little weight to the reproduction cost and relied basically on the market data approach and arrived at a fair market value of $1,177,400.
The trial judge based his finding of fair market value exclusively on the reproduction cost less depreciation approach. This was an improper method of valuation and cannot be sustained. In his opinion, the trial judge said:
We believe the cost approach to be a more accurate method of valuation. . . . Using the cost approach we conclude that the market value was $1,163,840. This figure is reached by taking a reproduction cost new of $3,012,800 and subtracting a depreciation rate of seventy percent to arrive at $903,840. The value of land itself of $260,000 is added arriving at the final value of $1,163,840.
In the exercise of appellate review, we must determine whether the trial courts finding is based on a proper legal foundation in determining fair market value. The finding of value by the trial court must be supported by competent evidence. Traylor v. Allen *236 town, 378 Pa. 489 , 106 A.2d 577 (1954); Algon Realty Co. Tax Assessment Appeal, 329 Pa. 321 , 198 A. 49 (1938).
Section 7 of the Act (Act) of June 26, 1931, P.L. 1379, as amended, 72 PS. §5348, as applicable to this county in determining the valuation of real estate for tax assessment purposes provides:
(d) In arriving at actual value, the price at which any property may actually have been sold, . . . shall be considered but shall not be controlling. ... In arriving at the actual value, all three methods, namely, cost (reproduction or replacement, as applicable, less depreciation . ,. . ), comparable sales and income approaches, must be considered in conjunction with one another. (e) The Board shall apply the established predetermined ratio to the actual value of all real property to formulate the assessment roll.
In interpreting “actual value” our Supreme Court has said that it means nothing more or less than market value. Market value is defined in terms of the willing buyer—willing seller concept.
A reading of section 7 of the Act, 72 PS. §5348, shows clearly that it was the intent to continue this concept of “actual value.” For example, section 7 of the Act, 72 P.S. §5348, provides that in an appeal of an assessment, the Board shall make a determination of the current market value for the tax year in question, and that the common level shall be applied after determining the current market value; that the Board shall continue a list of the prices for which property would bona fidely sell; that the assessed value shall not exceed one hundred percent of actual value; and that in arriving at actual value the county may utilize the current market value or it may adopt a base year market value.
*237 Because reproduction cost is based on the present cost of the buildings less depreciation, our Supreme Court has repeatedly said that this approach has no probative value for any purpose in fixing fair market value of improved real estate for tax purposes. Baldwin-Lima-Hamilton Corp. Appeal, 412 Pa. 299 , 194 A.2d 434 (1963). Not even the legislature can give probative value to something which has no such quality. Rich Hill Coal Co. v. Bashore, 334 Pa. 449 , 7 A.2d 302 (1939).
The feet that the legislature provided in the Act that “the price at which any property may actually have been sold shall be considered but shall not be controlling,” section 7 of the Act, 72 P. S. §5348(d), did not change the concept of “actual value,” in the sense of the willing buyer—willing seller concept; nor did it create a new statutory method of assessment. Such a sale never was controlling. Rather, it was a fector which the expert could consider in arriving at his opinion of the feir market value.
An expert may testify concerning the sales of comparable properties as one of the fectors which was considered in arriving at an opinion of feir market value of the real estate. One of the reasons that a sale of the same or comparable properties is admissible as evidence, but not controlling, is that properties may be similar for comparison purposes without being identical, and the difference is a matter of weight for the feet finder. Moodie v. Westinghouse Electric Corp., 367 Pa. 493 , 80 A.2d 734 (1951).
There is no provision in the Act which specifically enables a party to independently introduce evidence of reproduction cost. The Act simply makes reproduction cost a fector which the expert may use to compare or check with his estimate of feir market value. It is an error to rely exclusively upon that fector in determining market value.
*238 The record indicates and the trial courts opinion shows that the trial judge discarded the market data approach in arriving at his opinion of fair market value, and relied exclusively on the cost approach. He did not consider the cost approach in conjunction with the market data approach, nor did he use the cost approach to check on his result. See Pittsburgh-Des Moines Steel v. McLaughlin, 77 Pa. Commonwealth Ct. 565 , 466 A.2d 1092 (1983).
Accordingly, I would reverse the trial court.