IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole Fasnacht and : Courtney Fasnacht, his wife, : No. 356 C.D. 2016

: Submitted: October 21, 2016

Appellants :

:

v. :

: Board of Property Assessment : Appeals of Schuylkill County :

:

v. :

: Schuylkill County, South Manheim : Township, and Schuylkill Haven :

Area School District :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge 1

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge 2

OPINION

BY JUDGE WOJCIK FILED: March 9, 2017

Cole Fasnacht and Courtney Fasnacht, his wife

, ( together, Taxpayers )

appeal from the February 9, 2016 order of the Court of Common Pleas of Schuylkill

County (trial court) that denied and dismissed their tax assessmen t appeal. We

affirm.

Taxpayers purchased property (Property) at 348 Bernie Drive in

Schuylkill County , Tax Identification No. 28

- 2

- 28.1, on November 6, 2013 , for

1 This Opinion was assigned to the authoring Judge on December 16, 2016

.

2 This decision was reached before the conclusion of Senior Judge Friedman’s service with

this Court2

$175,000 . On June 5, 2015, the County Tax Assessment Office (County) not ified

Taxpayers of a change in the Property’s assessment f r om $33, 5 4 0 to $66,120

.

Taxpayers appealed the assessment change to the County Board of Assessment

Appe a ls, which denied their request to change the assessment. Thereafter, Taxpayers

appealed to the trial court , contending that the change of assessed value was an

impermissible spot re assessment. 3

At a hearing before the trial court on December 9, 2015, t he County

introduced its assessment card for the Property, which showed a fair market value of

$132

, 244 and an assessed value of $66,120. The County also introduced the

testimony of field appraiser Deb ra Detweiler

, a Certified Pennsylvania Evaluator

licensed to perform fie l d appraisals. Detweiler testified that she has been a field

appraiser for the County since 2003 and is assigned to thirteen or fourteen different

municipalities in the County . She explained that

, as a field appraiser

, she receives

building permits from various municipalities

, and she is responsible to check on

properties and ad

just assessments for those properties with new construction or

improvements. She added that the law does address the number of visits an assessor

must make each year but said that, as a general rule, County field a ppraisers go to

their designated areas twice a year ; they check on permits that have been issued and

drive the district s looking for other construction

. Reproduced Record (R.R.) at 4a

- 6a

,

11a , 22a , 37a

- 38a

.

3 Section 8843 of the Consolidated County Assessment Law , 53 Pa.C.S. §8843, prohibits the

county assessment office from engaging in the practice of spot reassessment. “Spot reassessment”

means the reasses sment of a property that is not conducted as part of countywide revised

reassessment and that creates, sustains, or increases disproportionality among properties’ assessed

values. Radecke v. York County Board of Assessment Appeals , 798 A.2d 265, 267 (Pa. Cmwlth.

2002).3

Detweiler testified that she rec e iv ed a building permi t for a patio

enclosure issued for the Property on November 23, 2010 . S he stated that she visited

the Prop er ty on January 5, 2011, and observed that constru c t io n had begun. She s aid

that she visited the Property several times after January 2011

, includin g occasions

after the date of Taxpayers’ purchase of the Property in November 2013. She stated

that while she monitored the progress of work on the patio enclosure, she also

observed construction that was not included on the permit. More specifically,

Detweiler testified that the changes she observed at the Property included an addition

to the rear of the home, increasing the living area of the second floor; a two

- story

attached garage with living area above that as well; and an above

- ground pool or hot

tub, which held no value for assessment purposes but was also something new

. She

also introduced photographs taken in August 1995 and September 2015 reflecting

those changes. Detweiler acknowledged that she did not document every visit to the

Property, but she said that her file notes reflect that the two

- car garage with living

area above was still under construction on May 9, 2014

. R.R. at 9a

- 1 6a , 24a

- 26a.

On April 20, 2015, Detweiler determined that the construction was

complete and issued a Change o f Assessment notice. She explained that it is the

practice of the County that a revised assessment based on an improvement is not done

until the construction is finished

. S he said that on her earlier visits

, she had observed

lumber stacked up outside and /or people working on the home, whereas on that date

she saw no activity and noticed that there were curtains in the living area above the

garage. Detweiler testified that, relying on her expertise and experience, she

concluded that the improvements on th e Property were completed. She stated that the

Property’s assessment was revised based on information obtained in the field and

entered into “ou r governed system downstairs ,” adding that the calculation of the new4

assessed value from $33,540 to $66,120 wa s not a new appraisal, but was

“predetermined in our system from the 1995 reassessment.” R.R. at 16a

- 19a

.

On cross

- examination, Detweiler acknowledged that she could not be

certain of the exact date that the work was finished. She testified that she n ever saw

cont r actors at the Property because the former owners were doing the construction

themselves beginning in January 2011. She also said that she was not aware that the

ownership of the Property had changed, and she was using a working file that sho wed

Vernon and Marianne Blankenhorn , and not Taxpayers, as the owners. She s tated

that on April 20, 2015, she noticed that the entire outside of the Property had been

cleaned up and there was no sign of ongoing construction.

Finally, Detweiler testifie d that , other than the 30

- month exemption for

interim assessments for new construction, Section 8813 of the Consolidated Coun ty

Assessment Law (Law), 53 Pa. C.S. §8813, the L aw does not specify time limits for

revising assessments based on construction. However, Detweiler repeated that the

County’s practice is to change an assessment when the County determines that

construction is completed and that in this case, she initiated t h e change as soon as she

made that determination

. R.R. at 33a, 38a.

Cole Fasnacht testified that the previous owners of the Property obtained

the building permit and performed the renovations and that he did not perform any

construction on the Property after his purchase i n November 2013 . Asked about the

mat erials Detweiler observed in 2014, Fasnacht said that he had no idea what she

saw, but that he was landscaping. He said that he also re

- stoned the driveway, but he

was told he did not need a permit for that . He stated that no other changes were made

to the Property subsequent to Taxpayers’ purchase

, including installation of the hot

tub . R.R. at 46a

- 54a.5

The trial court n ot ed that under Section 8817(a) of the Law , 53 Pa.C.S.

§8817(a), changes t o assessments resulting from improvements or new construction

shall not be construed to be illegal spot assessments. The trial court further observed

that there is no requirement for a property owner to inform the assessment office that

improvements to the property are complete

. The trial court determined that

Detweiler’s credible testimony established that : she was aware of ongoing

construction at the Property; she monitored the construction on numerous occasions;

and she i nitiated a change to the assessment at the time she reasonably determined,

based on her experience and expertise as a field appraiser, that construction w as

finally complete d

. 4 In light of these facts, t he trial court concluded that the

re assessment was n ot made at an arbitrary time in the future and was not an

impermissible spot reassessment . Accordingly, the trial court denied Taxpayers’

appeal.

On appeal to this Court

, 5 Taxpayers argue that the Property’s

re assessment due to improvements made before they purchased the Property

constitutes impermissible spot reassessment. We disagree.

Section 8817 of the Law, 53 Pa.C.S. §8817 (emphasis added), states:

(a) General rule.

- In addition to other authorization

provided in this chapter, the assessors may change the

assessed valuation on real property when a parcel of land is

subdivided into smaller parcels or when improvements are

4 As factfinder, the trial court has exclusive province over questions of witness credibility

and evidentiary weight. In Re: Penn Delco School District , 903 A.2d 600, 608 (Pa. Cmwlth . 2006).

Consequently, “this Court is prohibited from making contrary credibility determinations or

reweighing the evidence in order to reach an opposite result.” Id.

5 Our scope of review in a tax assessment appeal is limited to determining whethe r the trial

court abused its discretion or committed an error of law, or whether its decision is supported by

substantial evidence. Radecke

, 798 A.2d at 266.6

made to real property or existing improvements are

removed from real property or are destroyed. The recording

of a subdivision plan shall not constitute grounds for

assessment increases until lots are sold or improvements are

installed. The painting of a building or the normal regular

repairs to a buildi ng aggregating $2,500 or less in value

annually shall not be deemed cause for a change in

valuation.

(b) Construction.

- A change in the assessed valuation on

real property authorized by this section shall not be

construed as a spot reassessment under sect ion 8843

(relating to spot reassessment).

Taxpayers acknowledge that under S ection 8817 (a) of the Law,

assessors may change the asses sed valuation on real property when improvements are

made to real property and that Section 8817(b) of the Law spe cifi c all y provides that a

“ change in the assessed valuation on real property authorized by this section shall not

be construed as a spot reassessment . . . .” 53 Pa.C.S. §8817(b). Howeve r, Taxpayers

maintain that the L aw is well

- settled that “ the assessment of improvements must take

place when the improvements are made and not at some arbitrary time in the future

,

or a board of assessment will be guilty of spot assessment. ” Shenandoah Mobile Co.

v. Dauphin County Board of Assessment Appeals , 8 69 A.2d 562, 565 (Pa. Cmwlth.

2005) (emphasis added)

.

Taxpayers argue that the previous ow ners obtained a building permit in

2010, and that all of the improvements to the Property were made before Taxpayers

purchased the Prop er ty i n 2013

. Taxpayers argue that t he County did not reassess the

Property until June 2015, which was nineteen months after they pur chas ed the

P ro perty. Relying on Duke Energy Fayette II, LLC v. Fayette County Board of

Assessment Appeals , 116 A.3d 1176, 1179 (Pa. Cmwlth. 2015 ), Taxp ayers ar gu e that

the County unreasonably delayed imposition of the reassessment

, rendering it invalid

.7

In Duke Energy

, the property owner acquired 400 acres of property in

2001 and 2002 , and created a separate 60

- acre tract on which the owner proposed to

operate a gas

- fired electric

- generating station. The owner applied for and received a

real estate tax abatement that ran on the 60 acres from 2001 through 2011. In the fall

of 2003, th e property owner completed construction of the electric generating station.

Although the county was notified and mad e aware of the improvement , th e county

chose not to immediately reassess the property until the tax

- abatement status was set

to expire. A f

ter the tax abatement expired eight years later in 2011 , the county

reassessed the property. The county board of assessment appeals denied the property

owner’s appeal, as did the trial court.

On further appeal, th is C ourt concluded that although it may have been

reasonable for the county to reassess the property once the tax abatement expired, the

Law requires reassessment upon completion of improvements

. We observed that the

county did not mistakenly fail to assess the property but , instead, intention ally chose

to postpone the assessment until the tax abatement expired. Because the county did

not comply with the L aw and reassess the property at the time the improvements were

completed

, we held in Duke Energy that the county engaged in spot re assessmen t

. Id.

In contrast to those facts, the trial court credited D etweiler ’s testimony

that she checked on the construction at the Property on a number of occasions and, in

her opinion, the construction began in 201 1 and continued beyond her visit in May

2014. Importantly, the trial court made no finding as to when the construction was

actually completed. However, the trial court found that Detweiler reasonably

conclude d that the construction was finally complete d when she visited the pr operty

in April 2015. There is no indication t hat the County intentionally or negligently

delayed applying the value of the improvements to the Property’s re assessment.8

Indeed, Taxpayers ’ argument relies solely on the passage of time ; th e y

do not address Detweiler’s testimony; they do not argue that the L aw requires field

assessors to view properties more frequently or that the timing of the field appraiser’s

visits in this case was arbitrary. In contrast to the facts in Duke Energy , Taxpayers do

not contend that t he County intentionally or negligently delayed the reassessment.

We agree with the trial court ’s determination that the reassessment of the

Property was not made “ at some arbitrary time in the future ” and did not constitute

impermissible spot reassessment. In reaching this conclusion, we recognize that the

statutory scheme, insofar as it contains no specific requirements governing the timing

of appraisal visits or time lines for applying the value of improvemen ts to a property’s

reassessment, may result in potentially painful surprises to unwary purchasers of

property. Unfortunately, w hile we are not unsympathetic, it is not within the power

of this Court to fashion a remedy for such occurrences

.

Accordingl y, we affirm.

___________________________________ MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole Fasnacht and : Courtney Fasnacht, his wife, : No. 356 C.D. 2016

: Appellants :

:

v. :

: Board of Property Assessment : Appeals of Schuylkill County :

:

v. :

: Schuylkill County, South Manheim : Township, and Schuylkill Haven :

Area School District :

O R D E R

AND NOW, this 9 th day of March , 201 7

, t he order of the Court of

Common Pleas of Schuylkill County , dated February 9, 2016, is affirmed.

___________________________________ MICHAEL H. WOJCIK, JudgeRSF

- 1

-

IN THE COMMONWEA L TH COURT OF PENNSYLVANIA

Cole Fasnacht and : Courtney Fasnacht, his wife, : No. 356 C.D. 2016

: Submitted: October 21, 2016

Appellants :

:

v. :

: Board of Property Assessment : Appeals of Schuylkill County :

:

v. :

: Schuylkill County, South Manheim : Township, and Schuylkill Haven :

Area School District :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

DISSENTING OPINION

BY SENIOR JUDGE FRIEDMAN FILED: March 9, 2017

Because the Law req uires reassessment upon completion of

the improvements and the record is inadequate for this court to determine

when improvements to the Property were completed, I respectfully dissent

and would vacate the trial court ’ s order and remand for an additional hearing.

Debra Detweiler testified that she obtained and reviewed a 2010

permit issued to Vernon and Marianne Blankenhorn to enclose a patio on the

Property. (N.T., 12/9 / 15, at 5.) Detweiler agreed that building permits are

generally valid for one year. (Id. at 31.) Detweiler testified that she first visitedRSF

- 2

-

the Property on January 5, 2011, and the homeowners had just started

construction on the rear of the home, which they were doing themselves. (Id. at

9, 35.) Detweiler further testified that she determined that construction was

completed on April 20, 2015, because there was no lumber stacked outside

, 1 no

activity outside, and curtains hung in the living area above the garage. (Id. at 11

-

12.) Detweiler testified that she was not aware that the Property had changed

ownership and that construction on the house could have been completed during

one of her visits in 2013 or 2014. (Id. at 29

- 30, 33, 35, 39.) In fact, Detweiler

acknowledged that there was no way for her to know when construction was

completed. (Id. at 38

- 39.) She just made the determination that the construction

was completed upon her visit in 2015. (Id. at 39.)

Cole Fasnacht testified, without contradiction, that the previous

owners obtained a building permit and constructed a garage and addition to the

Property. (Id. at 47.) After purchasing the Property on November 6, 2013,

Fasnacht did not perform any construction on the Property, only making

cosmetic repairs and changes to the landscaping. ( Id

. ) Additionally, he testified

that before he purchased the Property curtains hung in the living area above the

garage. (Id. at 48.) Fasnacht stated that he was told by bank employees that

taxes on the Property would not increase once the Property was titled in his

name. (Id. at 52.)

1 Detweiler testified that she did not know if the lumber she saw on a previous occasion

was being used for the interior of the garage or for decking purposes. (N.T., 12/9/15

, at 33.)RSF

- 3

- N one of the testimony or evidence presented to the trial court

answers the question of when improvements to the Property were completed.

The m ajority recognizes this deficiency stating “ [i]mportantly

, the trial court

made no finding as to when the construction was actually completed

. ” (Maj.

Op. at 7 (emphasis added).) However, the Law requires reassessment upon

completion of the improvements and not at some arbitrary point in time. Duke

Energy Fayette II, LLC v. Fayette County Board of Assessment Appeals

, 116

A.3d 1176, 1179 (Pa. Cmwlth. 2015 )

. Thus, it must be determined when the

improvements were completed.

Moreover, although Detweiler introduced two photographs, one

taken in August 1995 and the other in September 2015, the photographs do

not depict the Property at the time the building permit was issued, during the

construction process, or at the time the construction was completed.

Specifically, the first picture was taken eight years before the building pe rmi t

was issued and the most recent picture was taken approximately five months

after Detweiler determined that the construction was completed.

Detweiler ’ s credited testimony is insufficient for purposes of

determining when the construction on the Property was completed. D etweiler

changed the assessment when she “ believed ” that the construction was

completed. (Trial Ct. Op. at 6.) However, Detweiler never definitively stated

when the construction was completed. She “ believed” that construction was

complete in 2015 because she did not see workers and saw curtains hanging on

the windows. (N.T., 12/9/15, at 11

- 12.) However, the only time Detweiler sawRSF

- 4

-

workers was during her initial 2 0 1 0 visit. (Id. at 30, 33.) Additionally,

Detweiler testified that “ [t]here very well could have been ” curtains on the

windows before April 2015; she could n ot r ecall. (Id. at 35.) Detweiler ’ s

stated “belief” is insufficient for purposes of determining when the construction

on the Property was completed.

Additionally, because the building permit was issued in 2010, and

building permits are generally valid for only one year, I submit that

reassessment five years later can constitute an “ arbitrary time in the future

. ”

(Maj. Op. at 8.)

For the foregoing reasons, I would vacate the trial court's order and

remand for a supplemental hearing to determine when the improvements to the

Property were completed.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge