Petition for Writ of Certiorari — Abele Associates v. Allegheny County Board of Property Assessment, Appeals & Review

Ww DE 136 su 251%

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ABELE ASSOCIATES, a Pennsylvania limited

Partnership

PETITIONER

THE BOARD OF PROPERTY ASSESSMENT, APPEALS

AND REVIEW

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THE COMMONWEALTH COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

ALPERN & ALPERN

David F. Alpern, Esq.*

402 Law & Finance Bldg.

Pittsburgh, PA 15219

(412) 471-1960

Counsel for Petitioner

*Counsel of Record

QUESTION (S) PRESENTED

Did the Special Masters constituting the

Board of Viewers who heard this case below

have such bias or prejudice against your

Petitioner; the same being founded on personal

knowledge of the Special Masters of disputed

evidentiary facts, so that your Petitioner was

denied due process pursuant to the 14th

Amendment of the Constitution of the United

States?

LIST OF PARTIES

Board of Property Assessment Appeals & Review

Allegheny County, Pennsylvania

South Fayette Township

South Fayette Township School District

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVISIONS

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Sines Gn See CARR. ae etl lw CS

REASONS FOR GRANTING THE WRIT. ...... iit

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INDEX TO APPENDICES - AT SEPARATE APPENDIX

APPENDIX A - Opinion of the Commonwealth Court

of Pennsylvania

APPENDIX B - Opinion of the Board of Viewers

(Report of the Special Masters)

APPENDIX C - Opinion of the Court of Common

Pleas of Allegheny County,

Pennsylvania

APPENDIX D - Commonwealth Court Order Denying

Reargument

APPENDIX E - Supreme Court of Pennsylvania

Order Denying Petition for

Allowance of Appeal

CASES PAGE NUMBER

In Re Murchision, 349 U.S. 133, 11

Johnson v. Mississippi, 403 U.S. 212,

TABLE OF AUTHORITIES CITED

fo &.Ct. 623, 99

L.Ed. 942 (1955)

91.3. Ge: - 3778, 29... Re.

2d 423 (1971)

Marshall v. Jerrico, Inc., 446 U.S.

238, 100 S.Ct. 1610, 64

L.Ed. 2d 182 (1980)

STATUTES AND RULES

ABA Code of Judicial

Conduct

Cannon 3E(1)

Cannon 3B(7)

OTHER

Richard E. Flamm, Judicial

Disqualification

Little Brown & Co., 1996

11

14

Ww W

ia

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of

certiorari issue to review the judgment below.

OPINIONS BELOW

The Opinion of the highest state Court to

review the merits appears at Appendix A to the

Petition and is unpublished.

The Opinion of the Board of Viewers

acting on behalf of the Board of Property

Assessment, Appeals and Review appears at

Appendix B and is unpublished.

The Opinion of The Court of Common Pleas

of Allegheny County, Pennsylvania affirming

the report of the Special Masters (Board of

Viewers) appears at Appendix cC and is

unpublished.

JURISDICTION

The date on which the highest state Court

decided this case was April 21, 1995, a copy

of that decision appears at Appendix A.

A timely petition for Reargument was

thereafter denied on the following date:

May 31, 1995. A copy of the Order denying

Reargument appears at Appendix D.

A timely Petition for Allowance of Appeal

to the Supreme Court of Pennsylvania was

thereafter denied on the following date: March

12, 1996, and a copy of the Order denying such

allowance appears at Appendix E.

An Extension of Time to file the Petition

for a Writ of Certiorari was granted to and

including July 25, 1996 on May 28, 1996 in

Application No. A-967.

The jurisdiction of this Court is invoked

under 28 U.S.C. §1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The 14th Amendment of the Constitution of

the United States provides, inter alia:

"no State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of The United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law;..."

American Bar Association Code of Judicial

Conduct; Cannon 3E(1) paragraph (1):

"a Judge should disqualify himself in a

proceeding in which his impartiality

might reasonably be questioned,

including, but not limited to instances

where:

(a) “he has a personal bias or prejudice

concerning a party, or personal knowledge

of disputed evidentiary facts concerning

the proceeding..."

Cannon 3B(7):

"...A judge shall not initiate, permit or

consider ex-parte communications,

...concerning a pending or impending

proceeding..."

STATEMENT OF THE CASE

The Opinion of the Special Masters, being

The Board of Viewers and set forth in Appendix

B contains statements that reveal the bias of

the Board of Viewers against your Petitioner.

That bias is founded on knowledge of disputed

evidentiary facts concerning the real property

involved from an extra judicial source (or

sources) indicating Ex-parte communications

and/or investigations contrary to Cannons

3E(1) and 3B(7) of the Code of Judicial

Conduct. Both the bias and the knowledge

denied your Petitioner's right to due process

pursuant to the 14th Amendment of the

Constitution of the United States.

Your Petitioner owns real estate in South

Fayette Township, Allegheny County,

Pennsylvania. The property is assessed for

real estate tax purposes to be taxed by the

County, the Township and the Township's School

District. This case began as an Appeal by

Your Petitioner from a real estate tax

assessment valuation by the Allegheny County

Board of Tax Assessment, Appeals and Review

which your Petitioner considered to be higher

than permitted by applicable law.

The real estate tax appeal was heard by a

Board of Viewers sitting without a jury and as

"Special Masters" which Board has the same

jurisdiction as the Court of Common Pleas of

Allegheny County (the Court of original

Jurisdiction in the Commonwealth of

Pennsylvania). The function of the Board was

to find an assessed value of the Property

(based on a percentage of market value) from

the testimony and evidence presented before

te

5

The statements in the opinion of the

Board of Viewers which indicate a bias against

your Petitioner and personal knowledge of

evidentiary facts in dispute are as follows:

On page 25 of the Masters' Report (see

Appendix B) under paragraph (d) location

factor, the Masters state:

"There is a rote expression in the expert

real estate appraisal vernacular that the

three most important factors in

determining market value are LOCATION,

LOCATION, LOCATION. We are agreed on the

importance of this factor, neither of

appellants' witnesses presented any

testimony to describe the subject

property's location, and many factors

which make it desirable for business

investment. Your Masters know the

From public Records, it is seen as a

small one square mile borough with a 1990

population of 5,443. It has been a

satellite town housing the labor force

and businesses surrounded by some major

industries since World War I and, very

important in World War II. (sic?) I-79

has brought growth to the surrounding

township...

Park." (emphasis supplied)

The second statement in the Opinion of

the Masters that indicates a bias and an ex-

parte communication occurs on page 30 of the

6

Report (Appendix B) where the Masters state:

"The subject land and modular

prefabricated buildings are in a business

park contiguous to a fast growing area...

The buildin if al

1 £ xr i n 1l

businesses." (emphasis supplied)

The third place in the Opinion where the

Masters indicate bias, extra judicial

knowledge and Ex-parte communications is in

the very last statement of the Report

(Appendix B p. 45):

"In concluding our recommendations, we

give consideration to the fact that Nell

made appropriate personal opinion factor,

percentage reduction adjustments

considering the larger size and

construction quality of his RIDC

comparable buildings. Through we sustain

Nell's market value recommendations, we

also must note that we made no upward

adjustment in market value for the

i i 1

Business Park to meet the owner's target

market, which in our opinion would not be

fully serviced by the RIDC location."

(emphasis supplied)

As stated in the Opinion of the Masters

the principat witnesses who testified at the

trial were the general partner of Your

Petitioner (the owner of the property) one,

William G. Corace, Abele's real _ estate

appraiser, E. Lewis Averbach and the real

estate appraiser of the South Fayette Township

School District, Robert B. Nell, Jr. In the

transcript of the hearing there is no

ee

7

testimony by any of the witnesses concerning

the location of the subject property (although

real estate appraisers do testify as to the

value of "comparable properties" and included

in the concept of a "comparable property" is

the opinion of the appraiser who must

determine when he selects a "comparable

property", that the location of the

"comparable property" is, in his personal

opinion reasonably equivalent to that of the

property being appraised).

In the first extract from the "Masters

Report" set forth above the Masters emphasize

the location of the property. They

Specifically state that they "know the site"

and find that the "subject property is a prime

location for a business investment Superior to

Nell's Business Park". There are no facts in

the Record that support any of these

men h oe

At no time did the Masters reveal to any

of the parties in this case that they had any

familiarity with the Abele Site, that they

knew the site, that they considered it a

"prime location" (whatever the Masters may

think that phrase means) or that "I-79 has

brought growth to the Surrounding township..."

The only way the Master would know this

information would be from ex parte

communications from persons unknown to the

parties appearing before them.

| The Masters' conclusion concerning the

subject property's "prime location"

| constitutes a direct statement ‘of bias. If

Abele's property has a prime location it must

have a very high value.

In reviewing the quoted language, for the

8

Masters to make the statements concerning

knowing the site and finding the property to

be a "prime location" immediate questions and

red flags are raised concerning what the

Masters' are stating. What is it that the

Masters' are saying when they state that they

know the _ site? Do they know it in a

geographical sense? Do they know it in an

economic sense? Just what knowledge do they

have that is separate or apart from the

knowledge that was communicated in the

testimony of the witnesses or the documentary

evidence submitted as evidence? What facts do

the Masters know that render the Abele

property a prime location "Superior" to Nell's

Business Park? (Mr. Nell in his appraisal

used comparable property from a Business Park

located approximately 15 miles from the

subject property). There is no evidence on

the Record that would or could drive the

Masters to reach such a judgment. These facts

could only come from some ex parte knowledge

or communication not divulged to the parties

litigating before the Masters.

The second quote from the Masters' Report

is more egregious than the first in

demonstrating a bias. The Masters state that

the subject land and building are located

"Contiguous to a fast growing area..." and

that the buildings are "targeted for a special

class of professional and small businesses."

There is no statement in the Record as to what

area the subject property is contiguous to nor

is there any statement that it is fast

growing. It is significant that there was no

opportunity to examine the Masters on whether

or not their statement concerning the fast

growing area would help or hinder, increase or

decrease, the value of the subject property.

9

With regard to the statement as to the

market for leasing the Space in the Abele

property when reviewing the Record in this

case this statement constitutes a mis-

statement of the only facts concerning the

useof the buildings.

Although not before this Court, in the

transcript of the testimony and evidence,

William G. Corace had introduced an Exhibit

which stated that the buildings on the subject

property constituted "flex-space" being a

combination of office and warehouse space with

a majority of non-office Space. There is no

mention that the buildings could be used for

professional offices whatsoever. Further, the

Statement in the Masters' report presumes

extra judicial knowledge concerning’ the

Taxpayer's assumed marketing program for the

property. Where did the Masters get this

Specialized knowledge? Is this knowledge in

any way accurate? Although not directly

Stated the quotation from the Masters' report

indicates a strong belief that the taxpayer

could just as easily be Operating a high yield

gold mine as a real estate development of

rental properties.

The last quote from the Masters' Report

indicates the most evident effect of the

Masters' bias. By stating that "...we made no

upward adjustment in market value for the

Superior location factor of Abele Business

Park to meet the owner's target market..."

the Masters are Stating that only through

restraining their bias (based on information

not on the Record) did they not find a value

not exceeding that already found by the

appraiser for the taxing body. Such restraint

is admirable but fails to demonstrate an

objective and impartial Judiciary.

10

The bias shown in the Masters' Report and

based on extra judicial knowledge should not

be permitted to stand.

nL alee be ta Ls we orn Scat

11

REASONS FOR GRANTING THE PETITION

On Certiorari the Supreme Court of the

United States considers cases where a State

Court has decided an important Federal

question in a way that conflicts with relevant

decisions of the Supreme Court of The United

States. In In Re Murchision, 349 U.S. 133, 75

S.Ct. 623, 99 bid: 942 (2955) this Court

stated:

"A fair trial and a fair tribunal is a

basic requirement of Due Process.

Fairness, of course, requires an absence

of actual bias in the trial of cases.

But our system of law has always

endeavored to prevent even the

probability of unfairness. To this end

no man can be a Judge in his own case and

no man is permitted to try cases where he

has an interest in the outcome. That

interest cannot be defined with

precision, circumstances and

relationships must be considered.

...(T]hus the Judge whom Due Process

requires to be impartial in weighing the

evidence before him, called on his own

personal knowledge and impression of what

had occurred in the grand jury room and

his judgment was based in part on this

impression, the accuracy of which could

not be trusted by adequate cross

examination." (Emphasis supplied).

A case with a more similar bias to that

in this case occurs in Johnson v. Mississippi,

403 0.8. 222; °31 -3.6e. 2776, 29 Le. 24 423

(1971). In Johnson, the trial Judge had a

12

bias against both civil rights litigants and

lawyers. The Judge found a lawyer in contempt

without a hearing. In a short opinion

reversing the judgment below and remanding the

case for a hearing on the counsel's alleged

contempt, this Court wrote:

"Trial before an unbiased Judge is

essential to due process."

The American Bar Association Code of

Judicial Conduct, if followed, should be

sufficient to prevent the kind of bias that

exists in this case. The Special Masters with

extra judicial and ex parte knowledge should

have disqualified themselves or, at least,

advised the parties that they had _ such

knowledge so that a timely Motion for Recusal

could have been filed and heard.

Unfortunately your Petitioner is now in a

position where it must attempt to right a

constitutional wrong after the wrong has been

visited on it, rather than take the preventive

action that should have taken place.

icial Di ifi ion by Richard

E. Flamm, Little Brown and Company, 1996 Mr.

Flamm writes at 334:

"Litigants are entitled to have their

case decided by a Judge who can approach

that case in an objective or impartial

manner; a Judge who possesses personal

knowledge of the evidentiary facts in

dispute may not be able to meet this

criterion. When a Judge or other

judicial officer has personal knowledge

of disputed evidentiary facts that has

been acquired through an extra judicial

source...state...authorities, as well as

13

the Code of the Judicial Conduct, prescribe

disqualification."

The two judicial cannons that are

involved in this case are 3E(1) and 3B(7).

Cannon 3E(1) is:

"(1) a Judge should disqualify himself in

a proceeding in which his impartiality

might be in question, including, but not

limited to instances where:

(a) He has a personal bias or prejudice

concerning a party, or personal knowledge of

disputed evidentiary facts concerning

proceeding;..."

As stated above the Special Masters had

personal knowledge of the location of the

subject property as well as a personal bias as

to the value of that location and the use to

which your Petitioner has, in the Masters'

minds, used the property.

Judicial Cannon 3B (7) is:

"...a Judge shall not initiate, permit or

consider ex parte communications,

-..concerning a pending or impending

proceeding..."

There is no way that the Masters in this

case could have obtained the knowledge

expressed in their opinion without ex parte

communications.

Flamm applies this Cannon at page 326,

regarding disqualification, as follows:

14

"As a general rule, however, to provide a legally

cognizable ground for disqualification, a Judge's

factual knowledge must be of evidentiary facts that

are actually in dispute, and acquired outside the

course of judicial proceedings that have been

conducted before him."

Such ex-parte knowledge is evident in

this case.

aes. ine ., 446 J.8.

238, 100 S.Ct. 1610, 64 L.Ed. 2d 182 (1980)

Justice Marshall wrote:

"Indeed, justice must Satisfy the

appearance of justice...and this

stringent rule may sometimes bar trial by

Judges who have no actual bias and who

would do their very best to weigh the

scales of justice equally between

contending parties."

In the case before this Court’ the

appearance is one of injustice not justice.

CONCLUSION

The petition for a writ of certiorari should

be granted.

Respectfully submitted,

ALPERN AND ALPERN

‘ i

Lod Ff.

Bach F. Alpe#n

DATE: 2H /946