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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 868

## Text

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
RS ee ay eat eee ee ee er a re

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).

Ww

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

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