IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Prospect Crozer LLC :

from the Decision of the Board of :

Assessment Appeals of Delaware :

County, PA : Nos. 1596 – 1599 C.D. 2019

: Nos. 1600 – 1629 C.D. 2019

Appeal of: Prospect Crozer LLC : Argued: March 10, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge 

HONORABLE STACY WALLACE, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION

BY SENIOR JUDGE LEAVITT FILED: September 28, 2022

Prospect Crozer LLC (Taxpayer) appeals 34 orders of the Court of 

Common Pleas of Delaware County (trial court) that, collectively, assessed 

Taxpayer’s real property at $74 million for tax years 2017, 2018, and 2019.1 On 

appeal, Taxpayer argues that the 34 orders are null and void because the judge issued 

them after he had forfeited his judicial office by assuming a position with the 

Philadelphia Board of Revision of Taxes (Philadelphia Tax Board). Taxpayer also 

challenges the orders on their merits because, inter alia, the trial court did not state 

a reason for accepting the valuation of the taxing authority’s expert over that of 

Taxpayer’s expert, which was necessary because the trial court accepted the 

testimony of both experts. For the reasons that follow, we vacate the trial court’s 

orders and remand the matter.

Background

Taxpayer owns 57.7 acres of land located in Upland Borough, 

Delaware County, Pennsylvania. Part of this property has been developed with a 6-

1 On May 12, 2020, the Court granted Taxpayer’s application to consolidate all 34 appeals.
2

story hospital known as Crozer Chester Medical Center (Medical Center). The other 

part of the property has been developed with several buildings and is known as 

Crozer Theological Seminary (Seminary). For real estate tax purposes, the Medical 

Center and Seminary properties are assessed as 34 separate parcels. Taxpayer 

purchased this real property as part of its acquisition of the Crozer-Keystone Health 

System on July 1, 2016.

For tax years 2017 through 2019, the Delaware County Assessment 

Office assessed the Medical Center and Seminary properties at a combined value of 

$80,166,493. Taxpayer appealed the assessment as excessive, and the Delaware 

County Board of Assessment Appeals denied the appeal. Taxpayer then appealed 

to the trial court, and the Chester Upland School District (School District)

intervened. 

At the de novo hearing before the trial court, Taxpayer and the School 

Districtstipulated that with the admission of the assessments of the Delaware County 

Assessment Office, the School District established a prima facie case.2 Reproduced 

Record at 1149a-83a (R.R. __). Taxpayer then submitted expert testimony and 

documentary evidence to challenge the Delaware County assessments, and the 

School District responded with its own expert and documentary evidence. 

2

In tax assessment appeal proceedings, the taxing authority presents its assessment records into 

evidence to establish the assessment’s presumed validity. Songer v. Cameron County Board of 

Assessment Appeal, 173 A.3d 1253, 1256 (Pa. Cmwlth. 2017). The burden then shifts to the 

taxpayer to present “sufficient competent, credible and relevant evidence” of the property’s fair 

market value to overcome the assessment’s presumed validity. Id. at 1257. If the taxpayer meets 

this burden, the tax assessment record loses its presumed validity. Green v. Schuylkill County 

Board of Assessment Appeals, 772 A.2d 419, 425-26 (Pa. 2001) (citing Deitch Company v. Board 

of Property Assessment, 209 A.2d 397, 402 (Pa. 1965)). If the taxing authority presents rebuttal 

evidence, the trial court determines the weight to be afforded the conflicting evidence. Green, 772 

A.2d at 426.
3

Taxpayer’s vice president for development, Frank Saidara, testified that 

in January 2016, Taxpayer entered into an agreement to purchase the CrozerKeystone Health System, and the transaction closed on July 1, 2016. The transaction 

involved numerous real properties owned by Crozer-Keystone Health System. 

Saidara explained that Taxpayer and Integra Realty Resources – DFW, LLC (Integra 

Realty) did their “best to come up with a qualified guess” to apportion purchase 

prices among the properties acquired in order to calculate the real estate transfer 

taxes. Notes of Testimony (N.T.), 1/14/2019, at 51; R.R. 97a. With respect to the 

34 properties here, they estimated a total purchase price of $78 million, which 

Saidara testified was “high.” Id. 

Taxpayer’s real estate appraiser, Ryan Hlubb, prepared an expert report 

of the fair market value of the Medical Center and Seminary properties, which was 

submitted into evidence. The Seminary property of 36.2 acres is separated from the 

Medical Center property of 21.5 acres by Medical Center Boulevard. Hlubb 

separately valued the Medical Center and Seminary properties because they are not

used together.

3

At the hearing, Hlubb first testified about his valuation of the Seminary 

property. Hlubb used the sales comparison approach to establish its fair market 

value.

4

 This approach assumes that an informed purchaser will pay no more for a 

3

In fact, Taxpayer listed the Seminary property for sale and recently entered an option purchase 

agreement for $5.35 million.

4 Fair market value, “while not easily ascertained, is fixed by the opinions of competent witnesses 

as to what the property is worth on the market at a fair sale.” Grand Prix Harrisburg, LLC v. 

Dauphin County Board of Assessment Appeals, 51 A.3d 275, 277 (Pa. Cmwlth. 2012) (quoting 

Buhl Foundation v. Board of Property Assessment, Appeals and Review of Allegheny County, 180 

A.2d 900, 902 (Pa. 1962)).
4

property than the cost of acquiring an existing property with the same utility.5 Hlubb

studied the Seminary property by collecting property tax records, site plans, and 

interviewing the property owner. He noted that one of the buildings on the Seminary

property, Old Main, had been designated a historic building and cannot be 

demolished. The other buildings had an economic life of five years, which meant 

that they should be razed or put to another use. 

Hlubb identified four comparable vacant land sales in Southeastern 

Pennsylvania, where the price per acre ranged from $150,000 to $240,000. After 

adjusting for topography and location, Hlubb concluded that the Seminary property 

had a value of $165,000 per acre, or $5,971,515, from which he subtracted the cost 

of razing, i.e., $867,833.6 Hlubb opined that the Seminary property had a fair market 

value of $5.1 million for the 2017 and 2018 tax years. Based on updated market 

data, Hlubb determined that the Seminary property had a value of $5.35 million for 

tax year 2019. 

Next, Hlubb testified about the fair market value of the Medical Center, 

which is a 21.5-acre property with a 300-bed acute care hospital and parking 

facilities to accommodate 1,500 cars. The Medical Center is a “special purpose 

property,” meaning it has “a unique physical design, special construction materials, 

5 Hlubb did not develop a cost approach because some buildings on the Seminary property dated

back to the 1840s. He also did not develop the income capitalization approach because there was

no market activity to suggest that the Seminary property could be leased. N.T., 1/14/2019, at 193; 

R.R. 204a.

6 To calculate the Seminary property’s value, Hlubb multiplied $165,000 by the number of acres 

of usable land, 36.19 acres, and arrived at $5,971,515. Hlubb Land Valuation Report at 46; R.R. 

1507a. From there, he subtracted razing costs, which are the estimated costs for building 

demolition and site grading. Using $7.50 per square foot as an appropriate unit of cost and 

multiplying that number by 115,711 square feet for the buildings on the property, Hlubb’s 

estimated razing costs were $867,833. Subtracting $867,833 from $5,971,515 resulted in the value 

of $5,103,683, which Hlubb rounded to $5.1 million.
5

or [a] layout that particularly adapts its utility to the use for which it was built.” N.T., 

2/4/2019, at 174; R.R. 324a. The Medical Center’s location in a medical campus 

zoning district also limits the number of potential buyers.

7

 

To calculate the fair market value of the Medical Center property, 

Hlubb used both a sales comparison and a cost approach. He developed the income 

capitalization approach but only to test the validity of the other valuation approaches.

For the sales comparison approach, Hlubb identified four sales in the 

region that were similar to the Medical Center: Memorial Hospital, Suburban 

Community Hospital, Roxborough Memorial Hospital, and MedStar Southern 

Maryland Hospital. After making the necessary adjustments to the sales, Hlubb 

determined that the fair market value of the Medical Center property under the sales 

comparison approach was $37.5 million for tax years 2017 and 2018 and $39.2 

million for tax year 2019.8

Hlubb also used the cost approach, which is “based on the concept that 

an informed investor would not willingly pay more for the subject property than 

would be necessary to develop an alternative providing economically equivalent 

benefits.” In re PP&L, Inc., 838 A.2d 1, 11 (Pa. Cmwlth. 2003). Hlubb testified 

that there are two cost methodologies. The reproduction cost method estimates the

cost to construct an exact duplicate using the same materials, construction standards, 

design, layout and quality. The replacement cost method estimates the cost to 

construct a building of equal utility using modern materials and current design

standards. Hlubb used the replacement cost method. 

7 The zoning district also allows, by special exception, group daycare homes, daycare centers, 

parking structures and billboards. 

8 Hlubb explained that the property’s fair market value had increased between 2018 and 2019 

because of the improved market conditions. N.T., 2/5/2019, at 107; R.R. 446a. For 2018, he set 

the price per square foot at $55, and for 2019, at $57.50. N.T., 2/5/2019, at 106; R.R. 445a.
6

Hlubb determined a total replacement cost of $328,592,804 for 2017 

and 2018 and $345,419,938 for 2019, to which he added a land value of $4.3 million 

for each tax year. For 2017 and 2018, he estimated depreciation at $296,061,870, 

and for 2019 at $309,113,292. Hlubb arrived at a cost valuation of $36.8 million for 

2017 and 2018 and $39.6 million for 2019.

Reconciling his sales comparison and cost valuations, Hlubb opined 

that the fair market value of the Medical Center was $37.5 million for tax years 2017 

and 2018 and $39.5 million for tax year 2019. Hlubb opined that the combined fair 

market value of the Medical Center and Seminary properties was $42.6 million for 

tax years 2017 and 2018 and $44.5 million for tax year 2019.

In response, the School District introduced the report of its expert real 

estate appraiser, John J. Coyle, III, and offered his testimony. Coyle stated that the 

highest and best use for the 57.7-acre property was as a hospital. He did not separate 

the Medical Center from the Seminary in his valuation. Coyle also used the sales 

comparison and cost approaches in his valuation.

9

 

For the sales comparison approach, Coyle selected three hospital 

facilities with parking garages. The three properties were part of the Community 

Health System in Reading, Pennsylvania, which had been sold to Tower Health. 

Each building ranged from 354,887 square feet to 362,703 square feet and had sale 

prices ranging from $91.54 per square foot of building area, including the land, to 

$172.39 per square foot of building area, including the land. 

After taking into consideration the differences between those sales and 

the subject property, Coyle opined that the entire 57.7-acre property should sell at

9 Coyle did not use the income approach, explaining that the income approach examines the 

economic benefits of property ownership in comparison to the risks of ownership and arrives at a 

conclusion. For a hospital business, market data was needed, but it was not available.
7

$105 per square foot of building area, including the land. Multiplying the 703,081

square feet of gross building area of the 57.7-acre property by $105 produced a 

market value of $73,823,505, which he rounded to $73.8 million. 

For the cost approach, Coyle used a reproduction cost method. Coyle 

testified that the International Association of Assessing Officers defines 

“reproduction cost new” as “the cost of constructing new property reasonably 

identical with the given property except for the absence of physical depreciation 

using the same materials[,] construction standards, design, and quality of 

workmanship computed on the basis of prevailing prices and on the assumption of 

normal competency and normal conditions.” N.T., 3/20/2019, at 56-57; R.R. 1012a13a. Coyle explained that reproduction cost does not have to price an exact duplicate

building, only one reasonably identical. 

To develop the fair market value of the land, Coyle looked at three sales

of vacant land. The first involved land in Richland Township, Bucks County, that 

was purchased by a hospital. The second involved a sale of land along Interstate 80

in Monroe County. The third involved land in Middletown Township, Bucks 

County, that was purchased by a hospital. Coyle explained that he made an upward 

adjustment for market conditions and a small downward adjustment for physical 

features. With these adjustments, the unit sale price ranged from $172,000 to 

$180,262 per acre. He estimated the market value of the subject land to be $175,000 

per acre, which he multiplied by 57.7 acres. This produced a total land value of 

$10,109,750, which he rounded to $10.1 million.

To estimate the reproduction cost of the Medical Center, Coyle used 

Taxpayer’s building plans to develop a separate price for the foundation, the 

substructure, the superstructure, the exterior closure for the roofing, and the interior 
8

construction and systems. He separated the mechanical systems into plumbing, 

heating, ventilating, fire protection and electrical. He then did a separate breakout 

for the cancer center, the mechanical services building, the front parking garage, and 

the rear parking garage. Instead of breaking the Seminary buildings into components 

for evaluation as he did for the Medical Center buildings, Coyle used the same unit 

cost for each building. Coyle estimated a reproduction cost of $260,891,800 for all 

the buildings, for both the Seminary and Medical Center properties.

10

To estimate depreciation, Coyle used two methods: the observed 

condition breakdown and the aged-life technique. The first method produced a 

depreciated reproduction cost of $64,367,600. The age-life technique produced a 

depreciated reproduction cost of $65,222,900. Adding a land value of $10.1 million 

produced valuations of $74,467,000 and $75,322,900. Reconciling those two 

numbers, Coyle opined that the real property had a fair market value of $75 million 

under the reproduction cost approach.

 Reconciling his sales comparison estimate of $73.8 million with his

reproduction cost estimate of $75 million, Coyle opined that the fair market value of 

the 57.7-acre property was $74 million for tax years 2017 and 2018 and $73 million 

for the tax year beginning January 1, 2019.

On cross-examination, Coyle explained that there is a commonsense 

approach to estimating reproduction costs and a textbook definition. He disagreed 

that the reproduction cost approach requires an “exact replica of everything [that is] 

at that property[.]” N.T., 3/18/2019, at 18; R.R. 957a. Coyle offered, for example,

that in doing a reproduction cost, he would not use the cost of a new cucumber 

10 Coyle testified that the Seminary buildings should be razed because of their age.
9

marigold tree but, rather, the cost of some reasonable vegetation in its place. N.T., 

3/18/2019, at 19; R.R. 958a.

Coyle acknowledged that he did not use a standard reproduction cost 

approach. Rather, he “blend[ed] the reproduction and replacement cost methods 

with the intent to reflect [the] cost of reproduction[.]” N.T., 3/18/2019, at 26; R.R. 

965a. To do an exact duplicate for a hospital complex, he would have needed about 

25,000 drawings. Instead, he used the basic information he was given and his own 

observations of the property. Coyle clarified that he did not do a replacement cost 

analysis. He explained that “a replacement cost analysis redesigns the facility and 

eliminates excess construction costs.” N.T., 3/18/2019, at 31; R.R. 970a. For 

example, the size of a building could be changed or different materials used in a 

replacement cost analysis. 

On October 11, 2019, in a five-page adjudication, the trial court 

concluded that the fair market value of the Medical Center and Seminary property 

was $74 million for tax years 2017, 2018 and 2019. The trial court found that both 

experts agreed that a proper appraisal of the fair market value of the properties used 

a reconciliation of a sales comparison and cost approach. The trial court made the 

following findings:

8. The court heard testimony from Mr. Coyle whose 

reconciliation of the sale comparison approach and the cost new 

approach which resulted in his conclusion that the total fair 

market value of the subject properties was $74 million for tax 

years 2017, 2018, and 2019.

9. The court also accepted the testimony of Mr. Hlubb, on 

behalf of Prospect, who testified that the value under [the] cost

approach (which combined total depreciation as a reduction 

against total replacement cost (new) of the buildings and then 

added the land value) resulted in a fair market value of $36.8 
10

million for tax years 2017 and 2018 and a fair market value of 

$39.6 million for tax year 2019.

10. There did not appear to be any significant externalities 

which suggested a change in fair market value during the subject 

tax years.

11. The court concluded that the value of $74 million is a valid 

and accurate assessment of the fair market value of the 

properties.

Trial Court Adjudication at 3-4, Findings of Fact Nos. 8-11; R.R. 3056a-57a. 

Taxpayer appealed.

Appeal

Before this Court,

11 Taxpayer raises four issues. First, Taxpayer has 

filed an Application to Vacate Orders on Appeal Because of Structural Error.12 This 

application asserts that the presiding judge, the Honorable John L. Braxton, forfeited 

his judicial office by taking a position with the Philadelphia Tax Board and, thus, 

lacked authority to issue the 34 orders on appeal here. Second, Taxpayer argues that 

the trial court did not make adequate findings of fact or explain how it determined 

the fair market value of Taxpayer’s property after accepting the testimony of both

experts. Third, Taxpayer argues that the trial court erred by accepting the 

methodology of the School District’s expert, which used a reproduction cost analysis

that is flawed and has no support in the real estate appraisal profession. Fourth, 

11 Our review in tax assessment matters determines whether the trial court abused its discretion, 

committed an error of law, or reached a decision not supported by substantial evidence. Douglass 

Village Residents Group v. Berks County Board of Assessment Appeals, 84 A.3d 407, 408 n.3 (Pa. 

Cmwlth. 2014). Our standard of review for questions of law is de novo, and our scope of review 

is plenary. Id.

12 Taxpayer filed its application to vacate on March 6, 2020, and the Court referred the application 

to the merits panel.
11

Taxpayer argues that the trial court erred by allowing the report of Integra Realty to 

be used to cross-examine Taxpayer’s witnesses.

Article V, Section 17(a) of the Pennsylvania Constitution prohibits a 

judge from holding “an office or position of profit in the government of the United 

States, the Commonwealth or any municipal corporation or political subdivision 

thereof[.]” PA. CONST. art. V, §17(a). In its application to vacate, Taxpayer asserted 

that Senior Judge Braxton held a “position of profit” with the Philadelphia Tax 

Board at the same time he served as a judge on the instant tax appeals, which 

rendered his 34 orders null and void. The School District responded that Taxpayer’s 

application to vacate was untimely filed and, further, that the Pennsylvania Supreme 

Court approved Senior Judge Braxton’s completion of this judicial assignment after 

his appointment to the Philadelphia Tax Board

Taxpayer supported its application to vacate with affidavits and public 

record searches that it attached thereto. Following argument before the merits panel, 

the Court concluded that a record was needed on Taxpayer’s assertion of 

incompatible service and the School District’s response thereto. Accordingly, the 

Court entered an order remanding this matter to the trial court with directions to 

develop an evidentiary record on the following factual questions:

(1) The date on which Senior Judge Braxton assumed his position 

on the Philadelphia Board of Revision of Taxes and began 

receiving compensation therefor; 

(2) Whether Senior Judge Braxton’s continued work on the 

above-captioned assessment appeals of Prospect Crozer, LLC 

while simultaneously serving on the Philadelphia Board of 

Revision of Taxes was approved in writing or in some other way 

by the Pennsylvania Supreme Court; and 

(3) The date on which Prospect Crozer, LLC learned that when 

Senior Judge Braxton issued the orders in the above-captioned 
12

appeals, he had already assumed his position with the 

Philadelphia Board of Revision of Taxes. 

Court Order, 3/17/2022.

Remand Hearing

On April 20, 2022, the trial court conducted a hearing.13 The record 

consists of a stipulation of the parties; Taxpayer’s public record searches and 

affidavits; and the testimony of Senior Judge Braxton.

Taxpayer’s affidavits related to how it learned of Senior Judge 

Braxton’s dual service. Leslie Gerstein, an attorney at the firm of Klehr, Harrison, 

Harvey, Branzburg, LLP, attested that she observed Senior Judge Braxton 

participating in hearings of the Philadelphia Tax Board in late Fall of 2019. Luke 

McLoughlin, an attorney at the firm Duane Morris, LLP, attested that on or about 

December 18, 2019, he attended a hearing at the Philadelphia Tax Board where he

observed a nameplate for Senior Judge Braxton. In February 2020, McLoughlin

learned from the City of Philadelphia Law Department that Senior Judge Braxton 

was elected to the Philadelphia Tax Board on May 16, 2019. McLoughlin then 

submitted a Right-to-Know Law14 request for information on the date of Senior 

Judge Braxton’s first paycheck for his service on the Philadelphia Tax Board; 

13 The remand hearing related to applications to vacate filed by Taxpayer in the following 

consolidated appeals: In re: Appeal of Prospect Crozer LLC from the Decision of the Board of 

Assessment Appeals of Delaware County, PA (Pa. Cmwlth., Nos. 1596-1629 C.D. 2019, filed 

September 28, 2022); In Re: Appeal of Prospect Crozer LLC Tax Assessment Appeals (Pa. 

Cmwlth., Nos. 1630-1633 C.D. 2019, filed September 28, 2022); In Re: Appeal of Prospect Crozer 

LLC from the Decision of the Board of Assessment Appeals of Delaware County, PA (Pa. Cmwlth., 

Nos. 1727-1728 C.D. 2019, filed September 28, 2022); and Chester-Upland School District v. 

Chester City Board of Revision of Taxes and Appeals (Pa. Cmwlth., Nos. 386-387 C.D. 2020, filed 

September 28, 2022). Participating in the remand hearing were multiple taxing authorities: Chester 

Upland School District, Springfield School District, Springfield Township, and the City of 

Chester. The County of Delaware also appeared at the hearing.

14 Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
13

McLoughlin received that information on June 5, 2020. Alan Kessler, also an 

attorney with Duane Morris, LLP, attested that in January 2020, he tasked the firm’s 

librarian with determining when Senior Judge Braxton began serving on the 

Philadelphia Tax Board, but the librarian was unsuccessful. Kessler also attested 

that in January 2020, he learned from Gerstein that she had seen Senior Judge 

Braxton participating in a hearing before the Philadelphia Tax Board in the Fall of 

2019.

Taxpayer also submitted a record certification from Geoff Moulton, the 

Court Administrator of Pennsylvania, dated March 20, 2020. That certification

stated as follows:

After an examination by the Administrative Office of 

Pennsylvania Courts (“AOPC”) of its records pertaining to the 

time period from 2017 through 2020, as well as an examination 

of the records of the Prothonotary of the Supreme Court of 

Pennsylvania, I hereby certify there is no record of entry of an 

order, decision, or other determination of the Supreme Court of 

Pennsylvania, the Chief Justice, or any other justice, or AOPC 

approving simultaneous service, by the Honorable John L.

Braxton on the Philadelphia Board of Revision of Taxes and as 

a senior judge within Pennsylvania’s Unified Judicial System. 

Any such record or entry would be in my custody as Court 

Administrator of Pennsylvania.

N.T., 4/20/2022, at 29, Exhibit C-7.

The School District offered the testimony of Senior Judge Braxton. He 

testified that in or around June 2017, he was assigned the instant tax matter and all

related tax appeals. He stated that he was elected to the Philadelphia Tax Board on 

May 16, 2019. 
14

On June 24, 2019, while he was presiding over another one of 

Taxpayer’s related tax appeals,15 Senior Judge Braxton informed the parties that he 

was retiring from judicial service because he “had been elected by the Board of 

Judges of Philadelphia County” to the Philadelphia Tax Board. N.T., 4/20/2022, at 

63. Senior Judge Braxton testified that he did not know “the actual date” that he 

began sitting on the Philadelphia Tax Board, explaining that he had to go through 

orientation before hearing cases. Id. Senior Judge Braxton agreed that he received 

his first compensation for his position with the Philadelphia Tax Board on June 16, 

2019. Acknowledging that he did not discuss his compensation with the parties on 

June 24, 2019, Senior Judge Braxton explained that by telling the parties of his 

appointment, he was telling them that he was “being paid.” Id. at 84. 

Senior Judge Braxton testified that he advised Joe Mittleman, Director 

of Judicial District Operations for the AOPC, that he had been appointed to the 

Philadelphia Tax Board and talked about “whether or not [he] should finish things 

or just walk away.” N.T., 4/20/2022, at 65, 68. Senior Judge Braxton retired from 

judicial service on January 24, 2020. 

On May 4, 2022, the trial court issued a report on the factual questions 

set forth in this Court’s March 17, 2022, order.

Regarding the date on which Senior Judge Braxton assumed his 

position on the Philadelphia Tax Board and began receiving compensation therefor, 

the trial court summarized the evidence as follows. Both the testimony of Senior 

Judge Braxton and the Declaration of the Director of Human Resources for the City 

of Philadelphia established the date of Senior Judge Braxton’s appointment to the 

15 See Chester-Upland School District v. Chester City Board of Revision of Taxes and Appeals (Pa. 

Cmwlth., Nos. 386-387 C.D. 2020, filed September 28, 2022).
15

Philadelphia Tax Board as May 19, 2019. The parties stipulated that Senior Judge 

Braxton received his first paycheck from the Philadelphia Tax Board on June 16, 

2019. The trial court credited Senior Judge Braxton’s testimony that he began 

hearing cases as a member of the Philadelphia Tax Board sometime in the Fall of 

2019 but did not remember the exact date because he had to undergo orientation

before hearing cases.

Regarding the question of whether Senior Judge Braxton’s work on 

Taxpayer’s assessment appeals, while simultaneously serving on the Philadelphia 

Tax Board, had been approved by the Pennsylvania Supreme Court, the trial court 

summarized the evidence as follows. A March 2020 record certification from Geoff 

Moulton, the Court Administrator of Pennsylvania, stated that “there is no record or 

entry of an order, decision, or other determination of the Supreme Court of 

Pennsylvania, the Chief Justice or any other Justice, or AOPC approving 

simultaneous service, by [Senior Judge Braxton], on the [Philadelphia Tax Board]

and as a senior judge within Pennsylvania’s Unified Judicial System.” Trial Court 

Op., 5/4/2022, at 4, Finding of Fact No. 7.b. Senior Judge Braxton submitted his 

resignation as a senior judge in late 2019 and officially ended his judicial service on 

January 24, 2020. The trial court credited Senior Judge Braxton’s testimony that he 

informed Mittleman of his election to the Philadelphia Tax Board; the complex 

nature of his judicial assignments; that he could finish up those cases or walk away;

and that Mittleman told him to finish his judicial assignments. Senior Judge 

Braxton’s communications with the AOPC were oral not written.

Regarding the date that Taxpayer learned that Senior Judge Braxton 

adjudicated its assessment appeals after assuming his position on the Philadelphia 

Tax Board, the trial court summarized the evidence as follows. On June 24, 2019, 
16

Senior Judge Braxton informed counsel for the parties that he was “going to be 

sitting in Philadelphia as a member of the Board of Revision of Taxes[.]” Id. at 6, 

Finding of Fact No. 8.c. Senior Judge Braxton advised the parties that “as soon as I 

leave here, I’m going to do that other post. And that’s why I can’t linger here. I 

have to get this matter done. And the AOPC, the Supreme Court wants me to just 

finish this and then I will go on to my next assignment . . . . I’m going to be sitting 

in Philadelphia as a member of the Board of Revision of Taxes over there.” Id. at 6, 

Finding of Fact No. 8.d. The affidavits from Gerstein, McLoughlin, and Kessler, as 

well as the email exchange between McLoughlin and the Philadelphia City Law 

Department, demonstrated that Senior Judge Braxton began hearing cases for the 

Philadelphia Tax Board in the Fall of 2019. Id. at 6, Finding of Fact No. 8.b.

The trial court credited Senior Judge Braxton’s testimony that he timely 

notified representatives of the AOPC of his appointment to the Philadelphia Tax 

Board and received approval to complete his outstanding judicial assignments. Trial 

Court Op., 5/4/2022, at 7, Finding of Fact No. 10.

On or about May 4, 2022, Taxpayer submitted supplemental findings 

of fact to the trial court to address new evidence. Specifically, it sought to admit 

into evidence an email exchange with the AOPC (Exhibit C-19) and a copy of an

affidavit from Mittleman (Exhibit C-20), which refuted Senior Judge Braxton’s 

characterization of their conversations.

16

 Taxpayer explained that neither was

available at the time of the April 20, 2022, evidentiary hearing. In response, the 

School District moved to strike and preclude Taxpayer’s submissions.

16 As part of his duties as Director of Judicial District Operations, Mittleman facilitated the 

assignment of senior judges to local districts. Mittleman Affidavit, ¶¶1-2. 
17

By order dated May 4, 2022, the trial court granted the School District’s

motion as to Exhibit C-19. It did so for the stated reason the record was closed at 

the end of the hearing on April 20, 2022, and Taxpayer had not requested to keep 

the record open for an affidavit from Mittleman. Trial Court Order, 5/4/2022, at 2.

On May 5, 2022, Taxpayer sought reconsideration, explaining that the

Mittleman affidavit only became available on May 4, 2022. Further, the trial court’s 

order striking Exhibit C-19 did not refer to Exhibit C-20. 

On May 18, 2022, the trial court denied reconsideration. It clarified its 

order of May 4, 2022, and struck both Exhibits C-19 and C-20, for the stated reason 

that the record closed on April 20, 2022. Accordingly, the trial court refused to 

supplement the record with after-discovered evidence. 

Following the transmittal of the trial court’s order to this Court, the 

parties filed supplemental briefs.

Analysis

I. Senior Judge Braxton’s Incompatible Service on the Philadelphia Tax 

Board

Taxpayer asserts that Senior Judge Braxton was precluded from serving 

simultaneously as a senior judge and a member of the Philadelphia Tax Board. 

Article V, Section 17(a) of the Pennsylvania Constitution prohibits a judge from 

holding another “position of profit” with any Federal, State or municipal body. 

Taxpayer contends that as of June 16, 2019, when Senior Judge Braxton began 

receiving compensation for his position on the Philadelphia Tax Board, he forfeited 

his authority to serve as a judge in Taxpayer’s tax appeals. His issuance of the 34 

orders on October 11, 2019, constituted a structural error, which requires those

orders to be vacated and the tax appeals remanded for a decision by another judge. 
18

The School District responds that Taxpayer waived this challenge to 

the 34 orders because it knew of this alleged structural error on June 24, 2019, when 

Senior Judge Braxton informed the parties of his appointment to the Philadelphia 

Tax Board. However, Taxpayer waited until March of 2020 to file its application to 

vacate. Taxpayer’s failure to seek Senior Judge Braxton’s disqualification at the 

earliest opportunity precludes it from raising the issue at the appellate stage of the 

proceeding. Alternatively, the School District argues that Senior Judge Braxton was 

directed to complete his judicial per diem assignment notwithstanding his 

appointment to the Philadelphia Tax Board. 

A structural error is “a constitutional violation affecting the ‘framework 

within which the trial proceeds, rather than simply an error in the trial process 

itself[.]’” Commonwealth v. Baroni, 827 A.2d 419, 420 (Pa. 2003) (citing Arizona 

v. Fulminante, 499 U.S. 279, 310 (1991)). Structural errors “infect the entire trial 

process.” Interest of J.M.G., 229 A.3d 571, 587 (Pa. 2020) (Todd, J., concurring) 

(quoting Brecht v. Abrahamson, 507 U.S. 619, 630 (1993)). Structural errors are 

unlike “‘trial error,’ because trial errors may ‘be quantitatively assessed in the 

context of other evidence presented in order to determine whether [they were] 

harmless beyond a reasonable doubt.’” Interest of J.M.G., 229 A.3d at 586-87 

(Todd, J., concurring) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 148 

(2006)).17 Courts address structural errors primarily in criminal cases, but structural 

errors may also taint a civil case. Interest of J.M.G., 229 A.3d at 587 n.2 (Todd, J., 

concurring) (citing Bruckshaw v. Frankford Hospital of City of Philadelphia, 58 

A.3d 102, 113-14 and n.6 (Pa. 2012) (court officer’s removal of presumptively 

17 For trial errors, a reviewing court “‘can make an intelligent judgment’ about whether the error 

might have affected the fact-finder.” Interest of J.M.G., 229 A.3d at 587 (Todd, J., concurring) 

(quoting Satterwhite v. Texas, 486 U.S. 249, 258 (1988)). 
19

competent juror without notice to the court or the parties was error for which 

prejudice was presumed, “suggestive” of structural error)).

The Pennsylvania Constitution prohibits a federal office holder from 

holding state office, and it authorizes the General Assembly to identify other 

incompatible offices. Article VI, Section 2 states:

No member of Congress from this State, nor any person holding 

or exercising any office or appointment of trust or profit under 

the United States, shall at the same time hold or exercise any 

office in this State to which a salary, fees or perquisites shall be 

attached. The General Assembly may by law declare what 

offices are incompatible.

PA. CONST. art. VI, §2. Pursuant to Article VI, Section 2, the General Assembly has 

declared, for example, that one cannot simultaneously hold the office of magisterial 

district judge and the office of prothonotary or clerk of court. Section 4 of the Act 

of May 15, 1874, P.L. 186, 65 P.S. §4. See also Commonwealth ex rel. Fox v. Swing, 

186 A.2d 24, 25 (Pa. 1962).

Regarding judges, the Pennsylvania Constitution was amended in 1968 

to specify positions incompatible with a judicial office. Article V, Section 17 of the 

Pennsylvania Constitution states, in relevant part, as follows:

(a) Justices and judges shall devote full time to their judicial 

duties, and shall not engage in the practice of law, hold office 

in a political party or political organization, or hold an office 

or position of profit in the government of the United States, 

the Commonwealth or any municipal corporation or political 

subdivision thereof, except in the armed service of the United 

States or the Commonwealth.

(b) Justices and judges shall not engage in any activity prohibited 

by law and shall not violate any canon of legal or judicial 

ethics prescribed by the Supreme Court. Justices of the peace

shall be governed by rules or canons which shall be 

prescribed by the Supreme Court.
20

PA. CONST. art. V, §17(a)-(b) (emphasis added). Article V, Section 17 illustrates “a 

special constitutional intention to maintain the purity of the bench” by singling “out 

the judiciary for pointed instructions on judicial comportment.” PENNSYLVANIA 

CONSTITUTIONAL CONVENTION 1967-68, REFERENCE MANUAL NO. 5, Part IV, §3, at 

148 (1968). Our Supreme Court has explained that Article V, Section 17(a) prohibits 

a Pennsylvania judge from simultaneously serving as a federal court judge. Simmons 

v. Tucker, 281 A.2d 902, 904 (Pa. 1971). It is not a matter of discretion for the 

Pennsylvania judge.

In Simmons, the Honorable Barron P. McCune, a judge of the Court of 

Common Pleas of Washington County, was nominated to the position of United 

States District Judge for the Western District of Pennsylvania. His appointment was 

confirmed by the United States Senate on December 16, 1970, and his commission 

was issued on December 18, 1970. On December 28, 1970, Judge McCune resigned 

from state judicial service, effective January 4, 1971. A question was raised about

the date the vacancy occurred for purposes of electing his replacement. A would-be 

candidate claimed that the vacancy occurred on December 18, 1970, when Judge 

McCune received his commission as a federal judge. The Pennsylvania Supreme 

Court disagreed. Noting that one does not hold office as a federal judge until the 

oath of office is administered, the Supreme Court concluded that there was no 

incompatibility because Judge McCune resigned 18 days before his federal office 

began on January 22, 1971. Nevertheless, the Supreme Court agreed that under 

Article V, Section 17(a), “the offices of Common Pleas judge and federal district 

judge are incompatible.” Simmons, 281 A.2d at 904.

An “office of profit” is one that pays compensation to the office holder. 

The office of “recorder for the Mayor’s Court” was held to be an “office of profit” 
21

that a judge could not hold. Commonwealth v. Conyngham, 65 Pa. 76, 83-84 (1870). 

The Philadelphia Tax Board is a municipal corporation or political subdivision of 

the Commonwealth, and a member of the Philadelphia Tax Board receives an annual 

salary of $70,000. THE PHILADELPHIA CODE §20-304(7) (2020). A member of the 

Philadelphia Tax Board holds a “position of profit.” PA. CONST. art. V, §17(a). In 

sum, the offices of a “common pleas judge” and member of the Philadelphia Tax 

Board are “incompatible.” Simmons, 281 A.2d at 904; Conyngham, 65 Pa. at 84. 

Further, the “applicable rule, which is generally held in all American 

jurisdictions, holds that where a single person holds two incompatible offices, the 

acceptance of the second ipso facto vacates the first.” Fauci v. Lee, 38 Misc. 2d 564, 

567 (N.Y. Sup. Ct. 1963); see also Commonwealth ex rel. Crow v. Smith, 23 A.2d 

440, 442 n.3 (Pa. 1942) (stating that an official holding two incompatible offices is 

required to abandon one of them); DeTurk v. Commonwealth, 129 Pa. 151, 160 

(1889) (noting common law rule that where incompatible offices are derived from 

common source, acceptance of the second automatically vacates the first); Opinion 

of the Justices, 647 A.2d 1104, 1105 (Del. 1994); Stubbs v. Lee, 64 Me. 195, 198 

(1874); Scott v. Strobach, 49 Ala. 477, 485 (1873).

It was structural error for Senior Judge Braxton to issue the 

adjudications on Taxpayer’s appeals while he also served on the Philadelphia Tax 

Board. This structural error cannot be waived implicitly or explicitly, or by 

agreement of the parties. It is not unlike the well-established principle that parties 

cannot agree to confer subject matter jurisdiction on a tribunal where it does not 

exist. Greenberger v. Pennsylvania Insurance Department, 39 A.3d 625, 629 n.5 

(Pa. Cmwlth. 2012). A judge that violates Article V, Section 17(a) of the 

Pennsylvania Constitution forfeits his judicial office. 
22

Litigants have a right to have decisions made by a judge validly holding 

his office. A trial conducted by a judge that lacks capacity is tainted by structural 

error which cannot be waived. See generally Commonwealth v. Martin, 5 A.3d 177, 

218-19 (Pa. 2010) (Saylor, J., concurring);

18 In re Adoption of K.M.G., 240 A.3d 

1218, 1235 (Pa. 2020) (failure to appoint an attorney to represent child’s legal 

interests constituted a structural error that was non-waivable). 

That a judge’s incompatible service may also implicate the Code of 

Judicial Conduct does not mean this Court cannot consider how a judge’s 

incompatible service affects the constitutionality of a trial. As our Supreme Court 

has explained, courts have a “solemn obligation to protect, safeguard and uphold 

[constitutional] rights.” Commonwealth v. Koehler, 229 A.3d 915, 936 (Pa. 2020). 

This Court is required to examine the limits imposed by any constitutional provision, 

and if there is a violation, grant appropriate relief. 

The School District argues that Article V, Section 17(a) applies only to 

commissioned judges and justices, not to senior judges. It notes that Article V, 

Section 17(a) requires judges to work “full time,” but senior judges work part-time. 

18 Justice Saylor observed that there is a split of authority among jurisdictions about whether a 

structural error can be waived. Compare Mains v. Commonwealth, 739 N.E.2d 1125, 1128 n.3 

(Mass. 2000) (“Our cases have held that even structural error is subject to the doctrine of waiver.”), 

with State v. Aragon, 210 P.3d 1259, 1262 (Ariz. 2009) (declining to apply waiver principles to 

structural error). Justice Saylor explained that 

[o]n the one hand, structural error, by definition, impacts the basic integrity of the 

trial, which must be assured to maintain public confidence in the criminal justice 

system. On the other hand, there is the possibility, if all structural errors are treated 

as non-waivable, for the defense to omit an objection to assure a reversal on appeal 

in the absence of an acquittal.

Martin, 5 A.3d at 218 (Saylor, J., concurring) (quoting Reid v. State, 690 S.E.2d 177, 181 (Ga. 

2010) (reflecting the position that structural error is waivable)). In his concurrence, Justice Saylor 

favored a fact-based assessment of the particular structural error to decide whether the error was 

waivable.
23

Further, magistrate judges are permitted to have a law practice and other 

employment.19 To support its assertion that senior judges are exempt from the 

prohibition on dual service, the School District directs the Court to In re Cain, 590 

A.2d 291 (Pa. 1991). 

In In re Cain, a senior judge was convicted of a violation of the Hobbs 

Act, 18 U.S.C. §1951. The Judicial Inquiry and Review Board filed a petition to 

remove the senior judge because his conviction rendered him ineligible to serve. 

The question was whether the mandate that a convicted judge be removed applied 

to senior judges. Former Article V, Section 18(l) of the Pennsylvania Constitution

stated:

A justice, judge or justice of the peace convicted of misbehavior 

in office by a court, disbarred as a member of the bar of the 

Supreme Court or removed under this section eighteen shall 

forfeit automatically his judicial office and thereafter be 

ineligible for judicial office.

Former PA. CONST. art. V, §18(l) (emphasis added). The Supreme Court explained 

that “judicial office” referred to the duties of a “justice, judge or justice of the peace,” 

which are performed by senior judges. In re Cain, 590 A.2d at 292. Accordingly, 

the senior judge’s conviction automatically rendered him ineligible for judicial 

office.

The School District contends that had “justice” and “judge” included 

senior judges within the ambit of former Section 18(l), then the Supreme Court 

19 In In re Murphy, 10 A.3d 932, 938 (Ct. Jud. Disc. 2010), the Court of Judicial Discipline of

Pennsylvania explained that in Article V, Section 17(b) of the Pennsylvania Constitution, “justices 

and judges” are treated separately from “justices of the peace.” PA. CONST. art. V, §17(b)

(“Justices and judges shall not engage in any activity prohibited by law and shall not violate any 

canon of legal or judicial ethics prescribed by the Supreme Court. Justices of the peace shall be 

governed by rules or canons which shall be prescribed by the Supreme Court.”).
24

would not have had to consider whether the term “judicial office” included the work 

of a senior judge, as it did in In re Cain. It notes that Article V, Section 17(a) does 

not expressly refer to “senior judges,” and it does not use the phrase “judicial office.”

When construing the Constitution, “[o]ur ultimate touchstone is the 

actual language of the Constitution itself.” Jubelirer v. Rendell, 953 A.2d 514, 528 

(Pa. 2008) (citing Stilp v. Commonwealth, 905 A.2d 918, 939 (Pa. 2006)). Further, 

“because the Constitution is an integrated whole, effect must be given to all of its 

provisions whenever possible.” Jubelirer, 953 A.2d at 528 (citing Cavanaugh v. 

Davis, 440 A.2d 1380, 1382 (Pa. 1982)). Article V, Section 17(a) applies to “judicial 

duties,” and senior judges assume judicial duties. In re Cain established that it is the 

work performed, not the appellation that is determinative. Following that logic, we

conclude that Article V, Section 17(a) applies to senior judges. Further, had the 

proscription against incompatible service not applied to senior judges, that

exemption would have been provided in Section 17(b), as it was for magistrate 

judges. Because senior judges perform “judicial duties,” they are subject to 

Article V, Section 17(a).

The School District argues that the AOPC authorized Senior Judge 

Braxton to complete his outstanding judicial assignments while simultaneously 

serving on the Philadelphia Tax Board. Taxpayer responds that Senior Judge 

Braxton’s testimony about Mittleman’s out-of-court statements were hearsay. 

Indeed, Taxpayer’s hearsay objection was sustained by the trial court, which 

instructed Senior Judge Braxton “not to testify as to what any third party told him.” 

N.T., 4/20/2022, at 67. Contrary to its own ruling, the trial court then used those

hearsay statements to find that Mittleman “authorized” Senior Judge Braxton “to 

complete his conflict cases[ and] the present matters[.]” Trial Court Op., 5/4/2022, 
25

at 5, Findings of Fact No. 7.i. The School District responds that Mittleman’s 

statements to Senior Judge Braxton were properly considered because they 

constituted verbal acts, i.e., the AOPC orally authorized his continued judicial 

service after assuming his position with the Philadelphia Tax Board by a verbal act.

“[A] ‘verbal act’ is a statement which creates legal rights, duties or 

responsibilities offered for their legal significance alone.” Municipality of Bethel 

Park v. Workmen’s Compensation Appeal Board (Hillman), 636 A.2d 1254, 1256 

n.2 (Pa. Cmwlth. 1994). The statements are not offered to establish the truth of the 

matter asserted but, rather, for some other relevant purpose.20 

We reject the School District’s argument for several reasons. First, the

question was whether the Supreme Court, or one of its justices, had directed Senior 

Judge Braxton to serve as a senior judge notwithstanding the inception of his service

on the Philadelphia Tax Board. Second, the School District did not establish that 

Mittleman, an employee of the AOPC, had authority to approve service on the 

Philadelphia Tax Board by a senior judge. Without that foundation, Mittleman’s so20 Treatise authority describes “verbal acts” as follows:

Oral or written expressions of offer and acceptance, or the exchange of promises 

that create a contract are examples. The dispositive provisions of a will are verbal 

acts, although statements of fact in a will may be hearsay. Statements made by the 

parties to a conspiracy in forming that conspiracy are verbal acts. Statements made 

in an attempt to corrupt a juror or intimidate a witness are verbal acts. A statement 

giving notice is a verbal act, and in a case in which it is relevant whether a party 

had received notice, evidence of the statement containing the notice is not hearsay. 

Instructions may be verbal acts.

The term “verbal act” also applies to statements that accompany conduct and 

explain the intent of that conduct. 

Leonard Packel & Anne Bowen Poulin, Nonhearsay – Statements Offered as Verbal Acts, 1 

WEST’S PA. PRAC., EVIDENCE §801-2 (4th ed. 2021) (footnote omitted).
26

called verbal acts are irrelevant. In any case, the AOPC cannot waive the 

Pennsylvania Constitution. 

The School District next argues that the Supreme Court’s Rules of 

Judicial Administration regulate senior judges, and those rules do not bar a senior 

judge from extra-judicial employment. Taxpayer responds that the Rules of Judicial 

Administration cannot trump the Constitution. See PA. CONST. art. V, §10(c) 

(authorizing Supreme Court to prescribe general rules of practice, procedure and 

administration that are consistent with the Constitution). We agree. The Rules of 

Judicial Administration must be read in conjunction with the express constitutional

prohibition against judges “hold[ing] an office or position of profit in the 

government of the United States, the Commonwealth or any municipal corporation 

or political subdivision thereof[.]” PA. CONST. art. V, §17(a).21 

Finally, the School District argues that Taxpayer has waived its 

constitutional challenge to the tax proceeding because it did not move to disqualify 

Senior Judge Braxton until after it received an unfavorable result on its tax appeals. 

Reilly v. Southeastern Pennsylvania Transportation Authority, 489 A.2d 1291, 1300

(Pa. 1985). The School District argues that the recusal of a jurist must be sought

“when the party knows of the facts that form the basis for the motion to recuse,” 

Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017), and facts that “should have been 

21 Taxpayer also argues that Senior Judge Braxton’s position with the Philadelphia Tax Board was 

incompatible with his temporary assignment to the trial court to adjudicate tax assessment appeals 

and cites to Canon 3.1 of the Pennsylvania Code of Judicial Conduct, CODE OF JUDICIAL CONDUCT 

CANON 3.1 (requiring judges to regulate their extrajudicial activities to minimize risk of conflict 

with their judicial activities). The Code of Judicial Conduct, however, is not “intended to be the 

basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in 

proceedings before a court.” CODE OF JUDICIAL CONDUCT, Preamble (7). Should a judge violate 

the standards of conduct, that is a matter for the Pennsylvania Supreme Court to address pursuant 

to Article V, Section 10(a) of the Pennsylvania Constitution, PA. CONST. art. V, §10(a) (relating to 

exercise of general supervisory and administrative authority over all courts).
27

known” are to be considered in determining timeliness. Goodheart v. Casey, 565 

A.2d 757, 764 (Pa. 1989). Where the disqualification is requested after judgment is 

entered, then it must be shown that the facts could not have been presented earlier 

“in the exercise of due diligence.” Reilly, 489 A.2d at 1301. 

Here, Taxpayer acknowledges that it learned of Senior Judge Braxton’s

appointment to the Philadelphia Tax Board on June 24, 2019, when Senior Judge 

Braxton stated:

The good Judges of the City of Philadelphia have elected me to 

another post to which I’m going to leave – as soon as I leave 

here, I’m going to do that other post. And that’s why I can’t 

linger here. I have to get this matter done. And the AOPC, the 

Supreme Court wants me to finish this and then I will go on to 

my next assignment, which will be something that probably Mr. 

Kessler is well familiar with. I’m going to be sitting in 

Philadelphia as a member of the Board of Revision of Taxes over 

there. 

Taxpayer Application to Vacate Orders, Exhibit H; N.T., 6/24/2019, at 219 

(emphasis added). Taxpayer reasons that there is a difference between an 

appointment to an incompatible position and service thereon, as the Supreme Court 

explained in Simmons, 281 A.2d. 902. We agree. Senior Judge Braxton did not state

that his duties for the Philadelphia Tax Board would overlap with his duties as a 

member of the judiciary. To the contrary, his statement implied that he would 

complete his judicial duties before he began his service on the Philadelphia Tax 

Board.

The affidavits showed that Taxpayer learned through counsel that 

Senior Judge Braxton’s nameplate appeared in the Philadelphia Tax Board’s hearing 

room on December 18, 2019. In late January 2020, Taxpayer’s counsel learned that 

Senior Judge Braxton was observed hearing cases on the Philadelphia Tax Board in 
28

the Fall of 2019. In February of 2020, Taxpayer’s counsel learned that Senior Judge 

Braxton had been elected to the Philadelphia Tax Board on or about May 16, 2019,

but could not confirm when Senior Judge Braxton began his service or started to 

receive compensation. On June 5, 2020, in response to a Right-to-Know request, 

Taxpayer’s counsel learned that Senior Judge Braxton began receiving 

compensation for his service on the Philadelphia Tax Board as of June 16, 2019. 

In Lomas, 170 A.3d at 390, the developer’s recusal motion, filed one

month after the relevant facts had been disclosed, was rejected as untimely filed. 

Here, Taxpayer did not begin to learn of simultaneous service until December 2019,

and did not receive firm confirmation of Senior Judge Braxton’s compensation for 

service with the Philadelphia Tax Board until June 5, 2020.

Taxpayer exercised due diligence. It learned in December of 2019 that 

Senior Judge Braxton may have started his position at the Philadelphia Tax Board 

before completing his judicial assignments on Taxpayer’s tax appeals. Taxpayer 

then took prompt and reasonable steps to ascertain the facts before filing an 

application to vacate in March of 2020. Given this history, we reject the School 

District’s contention that Taxpayer’s application to vacate was untimely filed. The

facts had to be determined before appropriate relief could be sought.

More to the point, Reilly and Lomas govern motions to disqualify, but 

Taxpayer did not file a motion to disqualify Senior Judge Braxton. Rather, it filed 

an application to vacate the 34 orders that are the subject of this appeal on the basis 

that the entire proceeding was unconstitutional. The presiding judge forfeited his 

judicial office by June 16, 2019, when he assumed a “position of profit” with the 

Philadelphia Tax Board. The 34 orders that are the subject of this appeal were issued 

on October 19, 2019, and, thus, are null and void. 
29

We reject the School District’s waiver argument. Taxpayer filed an 

application to vacate 34 orders on grounds that they were null and void; it did not 

file a motion to recuse.

22 In any case, Taxpayer acted with due diligence to 

investigate if and when Senior Judge Braxton began to work for the Philadelphia 

Tax Board and thereby forfeited his judicial office. 

Senior Judge Braxton forfeited his judicial office no later than June 16, 

2019, when he began to receive compensation in his “position of profit” on the 

Philadelphia Tax Board. PA. CONST. art. V, §17(a). The 34 orders he issued in this 

case are nullities because they were issued after he forfeited his judicial office. 

Accordingly, we grant Taxpayer’s application and vacate the trial court’s orders.

II. Assessment Adjudications

Taxpayer argues that the trial court erred by omitting an explanation of

the reasons for its decision. In tax assessment appeals, the trial court weighs the 

testimony and valuations provided by the experts and arrives at a valuation based on 

the credibility assigned to their opinions. Here, the trial court deemed both experts 

credible but relied entirely on Coyle’s valuation without explanation. Taxpayer 

contends that the trial court’s adjudications are inadequate as a matter of law. 

The School District responds that Taxpayer simply challenges the 

weight assigned to each expert’s opinion by the trial court. The School District 

acknowledges that the trial court was required to give reasons for its decision. See 

Westinghouse Electric Corporation v. Board of Property Assessment, Appeals and 

Review of Allegheny County, 652 A.2d 1306, 1312 (Pa. 1995) (stating that “[i]n

22 In Lomas, the developer’s recusal motion, filed one month after the relevant facts had been 

disclosed, was rejected as untimely filed. Here, the facts were not finally confirmed until June 5, 

2020, after the application to vacate was filed on the basis of information received from public and 

private sources.
30

making a determination in a tax assessment appeal, the trial court must state the basis 

and reasons for its decision”). However, the School District argues that the trial 

court’s adoption of Coyle’s opinion of fair market value constitutes the explanation. 

In a tax assessment appeal, the trial court hears the matter de novo and 

is the finder of fact. Grand Prix Harrisburg, 51 A.3d at 280. As such, the trial court 

has exclusive province over all matters of credibility and evidentiary weight. 

Additionally, the trial court has the discretion to choose which valuation method to 

use to value a particular property. Id. The trial court’s findings will not be disturbed 

if they are supported by substantial evidence in the record. Herzog v. McKean 

County Board of Assessment Appeals, 14 A.3d 193, 200 (Pa. Cmwlth. 2011). 

Nevertheless, “the trial court must state the basis and reasons for its decision.” 

Green, 772 A.2d at 433 (quoting Westinghouse Electric Corporation, 652 A.2d at 

1312). Additionally, if an appraiser uses an invalid methodology, his opinion is not 

competent and cannot support a valuation. Grand Prix Harrisburg, 51 A.3d at 280.

Here, the trial court found that both experts agreed that the proper way 

to value the Medical Center and Seminary properties was by a replacement cost 

method. It stated that “[w]hile [the experts] differed in some details, both experts 

agreed that a proper appraisal of the fair market value of the properties entailed an 

evaluation through a cost of replacement analysis.” Trial Court Adjudication, 

10/11/2019, Finding of Fact No. 7; R.R. 3056a. This is inaccurate. Coyle used 

reproduction cost, not replacement cost, to value the Medical Center and Seminary 

properties. Further, Taxpayer challenges Coyle’s reproduction cost approach as sui 

generis and without support in the appraisal profession.

The trial court accepted Coyle’s testimony that the fair market value of 

Taxpayer’s real property was $74 million for the 2017 and 2018 tax years, and $73 
31

million for the 2019 tax year. The trial court also accepted Hlubb’s testimony that 

this property’s “fair market value was $36.8 million for tax years 2017 and 2018 and 

. . . $39.6 million for tax year 2019.” Trial Court Adjudication, 10/11/2019, Finding 

of Fact No. 9; R.R. 3056a. In actuality, Hlubb opined that the fair market value was 

$42.6 million for 2017 and 2018 and $44.5 million for tax year 2019. Inaccuracies 

aside, the trial court did not explain how Hlubb’s testimony could be accepted but 

not used, or why it chose to use $74 million for all three tax years. Likewise, the 

trial court mis-stated Coyle’s opinion for 2019; it was $73 million, not $74 million.

To set his fair market value of the Medical Center and Seminary 

properties, Coyle blended elements of reproduction cost and replacement cost

methodology. Hlubb used replacement cost in his cost evaluation, which is 

authorized by the Appraisal Institute. By contrast, Coyle cited the International 

Association of Assessing Officers, but Coyle is not an assessor. The disciplines of 

assessor and appraiser are different. The trial court did not consider, and resolve, 

the differences in the cost approaches used by each expert, including the different 

methods used to depreciate the cost valuations.

The School District contends that because the trial court did not depart 

from Coyle’s opinion of value, no additional explanation is required. In support, it 

cites Westinghouse Electric Corporation, 652 A.2d 1306. In that assessment appeal, 

the trial court found all the expert testimony competent. In the end, however, the 

trial court made its own finding of fair market value, essentially “split[ting] the 

difference” between the two experts’ opinions of value. Id. at 1311. The Supreme

Court affirmed, explaining that where a trial court is presented with conflicting 

testimony of equally credible experts, it may choose a fair market value between the 

two values. Id. at 1312. Westinghouse Electric Corporation is inapposite. Here, 
32

the trial court did not reject both experts’ valuations of the property; rather, the trial 

court accepted both. 

Further, the School District overlooks this Court’s precedent that, 

although a trial court may deem one expert more credible than the other, it must 

explain that decision. See Grand Prix Harrisburg, 51 A.3d at 282. In Grand Prix 

Harrisburg, the taxpayer challenged the 2009 real estate assessment of its property, 

which was a hotel. The taxpayer’s expert prepared an appraisal report of the 

property’s fair market value using the sales comparison approach and the income 

approach. By combining the two approaches, the taxpayer’s expert settled on a fair 

market value of $9 million for the property. The taxing authorities’ expert 

determined that the property had a value of $13,150,000 using the income approach 

and a value of $12,322,000 using the sales comparison approach. The trial court 

held that the property’s fair market value was $13,150,000, crediting the taxing 

authorities’ expert that a buyer would rely on the income of a property when 

purchasing a hotel. 

On appeal, the taxpayer challenged the trial court’s stated reasons for 

its determination. The critical difference between the two experts was the 

capitalization rate that each chose to produce an income valuation, which difference

the court did not address. Likewise, the trial court did not address the difference in 

the experts’ sales comparison approach valuations or the admission by the taxing 

authorities’ expert that the income approach value was too high. Concluding that 

the trial court needed to address these issues, we vacated the order and remanded the 

matter. 

Here, the trial court accepted the testimony of both experts, even though 

each expert used different methods and sources to develop their expert valuations. 
33

The trial court did not address Coyle’s blending of the reproduction cost and 

replacement cost methodologies or Taxpayer’s challenge thereto. 

The trial court did not explain the basis of its fair market value of $74 

million or how it resolved the conflict between the expert opinions and 

methodologies. This will be required in the adjudication issued upon remand. 

Effective judicial review of an assessment requires a clear statement of “the basis 

and reasons for [the court’s] decision.” Westinghouse Electric Corporation, 652 

A.2d at 1312. Accordingly, the trial court, by a newly assigned judge, must provide 

an explanation for whatever valuation it sets for the 57.7-acre property that is the 

subject of this tax assessment appeal.

23

Conclusion

Senior Judge Braxton vacated his position as senior judge by operation 

of law on June 16, 2019, when he began to receive compensation for his 

incompatible service on the Philadelphia Tax Board, which was a “position of profit 

in the government of the United States, the Commonwealth or any municipal 

corporation or political subdivision thereof.” PA. CONST. art. V, §17(a). The 34 

orders issued on Taxpayer’s tax appeals are null and void. We grant Taxpayer’s 

application to vacate the trial court’s orders. This requires a remand of these matters 

for a decision by a newly assigned jurist that will state “the basis and reasons for [the 

court’s] decision.” Westinghouse Electric Corporation, 652 A.2d at 1312. The trial 

23 We do not address Taxpayer’s challenge to the use of the Integra Realty report. It may or may 

not be relevant to the new valuation on remand.
34

court, on remand, may supplement the record if deemed appropriate but may not 

supplant the existing record.

_____________________________________________

MARY HANNAH LEAVITT, President Judge Emerita

Judge Fizzano Cannon did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Prospect Crozer LLC :

from the Decision of the Board of :

Assessment Appeals of Delaware :

County, PA : Nos. 1596 – 1599 C.D. 2019

: Nos. 1600 – 1629 C.D. 2019

Appeal of: Prospect Crozer LLC : 

ORDER

AND NOW this 28th day of September, 2022, Prospect Crozer LLC’s 

Application to Vacate Orders on Appeal Because of Structural Error is GRANTED, 

and the orders of the Court of Common Pleas of Delaware County, dated October 

11, 2019, are VACATED. This case is REMANDED for a new decision in 

accordance with the foregoing opinion.

Jurisdiction relinquished. 

_____________________________________________

MARY HANNAH LEAVITT, President Judge Emerita