IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Alan J. Kivitz, Vicki Sommer, :

Gary Raymond and Donna Raymond, :

t/d/b/a Vidoro Properties, :

Appellants : No. 1715 C.D. 2017

: Argued: October 16, 2018 

v. :

:

Board of Assessment Appeals of :

Blair County :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: November 9, 2018

In this tax assessment appeal with unusual procedures, Alan J. Kivitz, 

Vicki Sommer Kivitz, Gary Raymond and Donna Raymond, t/d/b/a Vidoro 

Properties (collectively, Taxpayers) seek review of an October 2017 order of the 

Court of Common Pleas of Blair County (trial court) regarding their real estate tax 

assessment appeal of four parcels located in a highway shopping area in Blair

County (County). The trial court determined the assessed market values of the 

properties. Taxpayers only appeal with respect to the parcel known as the Summit 

Property, and specifically with respect to the square footage of a building located 

on it. Asserting the County failed to present sufficient evidence supporting its

mid-appeal reassessment of the building, which occurred during the trial court 

proceeding, Taxpayers seek a remand for a determination of the fair market value 

of that parcel based on the square footage of the building as calculated by their 

expert. Upon review, we vacate and remand.
2

I. Background

Taxpayers own Vidoro Properties, a business which owns four 

contiguous parcels of land with mixed commercial use improvements including a 

large building (Summit Property) housing a health and fitness center. The 

building, located in a highway shopping area, also includes an office leased to 

HealthSouth. The other parcels include an indoor pool and two one-acre parking 

lots. The parcels are located in Allegheny Township (Township) in the 

Hollidaysburg Area School District (School District).

In 2016, the County’s Assessment Office undertook a county-wide 

reassessment, its first since 1958. For the 2017 tax year, the County assessed the 

market values of the four parcels as follows: (1) Summit Property (Tax Parcel #2-

14.1.22) - $5,377,900; (2) Swimming Pool Property (Tax Parcel #2-14.1.21) -

$1,676,200; (3) Summit Parking Area- 1.00 Acre (Tax Parcel #2-14.1.12) -

$131,700; and (4) Summit Parking Area- 1.05 Acre (Tax Parcel #2-14.1.15) -

$110,600.

Taxpayers appealed to the Board and challenged all four assessments. 

In October 2016, the Board issued a “no change” disposition on each assessment. 

Reproduced Record (R.R.) at 7a.

Taxpayers appealed to the trial court. They alleged the County’s 

assessments were improper and invalid because they were based on an erroneous

interpretation of fair market value. Taxpayers further alleged the assessments 
3

lacked uniformity, were discriminatory and substantially higher than assessments 

of comparable properties in the taxing district.

In support of their position, Taxpayers obtained an appraisal from 

John K. Cowan (Taxpayers’ Appraiser), a certified general appraiser. He 

appraised the Summit Property. Taxpayers’ Appraiser was the only expert witness 

appearing in this appeal.

At the April 2017 de novo hearing, Taxpayers’ Appraiser testified that 

he valued the Summit Property at $2,500,000. Tr. Ct. Hr’g, Notes of Testimony 

(N.T.), 4/21/17, at 48; R.R. at 66a. Although Taxpayers used the property for a 

health and fitness club, Appraiser testified its highest and best use would be 

something other than a health club. Id. Taxpayers’ Appraiser did not believe the 

cost approach would be appropriate for valuation. N.T. at 48-49; R.R. at 66a-67a. 

Taxpayers’ Appraiser further testified that the income approach would 

not make sense because although the property leases space to several businesses, 

overall the Summit Property loses approximately $20,000 per year. N.T. at 25-26;

R.R. at 43a-44a. Logically, an investor would not buy a building that loses 

$20,000 per year. In short, the Summit Property is not sellable as an income 

property. N.T. at 26, 49; R.R. at 44a, 67a.

Therefore, Taxpayers’ Appraiser relied on the comparable sales 

approach (value per square foot, determined by comparable sales, multiplied by the 

useable square feet). See N.T. at 50; R.R. at 68a. Appraiser measured the building 
4

on the Summit Property and determined it to be 57,590 square feet in size, which 

was significantly less than the square footage the County used in its assessment. 

N.T. at 51; R.R. at 69a. A major reason for the discrepancy was the condition of 

the second floor, which was not a full floor; rather, it was a mezzanine. N.T. at 56; 

R.R. at 74a. Taxpayers’ Appraiser did not include the area for the mezzanine 

“because of the nature of the mezzanine.” Id. He explained, “A lot of it – it 

overlooks these basketball courts and the racquetball courts and I did not plug the 

mezzanine in as square footage. It’s observation deck and hallways.” Id. This 

“low utility” testimony was in conjunction with Appraiser’s unrebutted testimony 

that the highest and best use for the building would be for something other than a 

health club. See N.T. at 48; R.R. at 66a. Also, this testimony is the sole 

description of the mezzanine in the record. Whether, and to what extent, the 

square footage of the mezzanine should be used in calculating fair market value 

based on the comparative sales approach is important to the resolution of the case.

As to comparative sales, the first comparison involved a fitness center 

that sold for $67.24 per square foot. N.T. at 51; R.R. at 69a. The second 

comparison involved an abandoned National Guard armory that sold for $53.13 per 

square foot. N.T. at 51-52; R.R. at 69a-70a. The third sales comparison involved a 

former auto dealership that sold for $47.24 per square foot. N.T. at 52; R.R. at 

70a.

Making certain adjustments, Taxpayers’ Appraiser arrived at a figure 

of $41 to $45 per square foot. Id. Accordingly, he valued the Summit Property 
5

building at $43 per square foot, multiplied by 57,590 square feet, which yielded a 

total market value of approximately $2,500,000. N.T. at 52-53; R.R. at 70a-71a. 

With respect to the square footage in the building, the County based 

its initial assessment on a measurement of 88,000 square feet. At the April 2017 

hearing, counsel for the County explained that the assessor could not enter the 

building for assessment purposes and mistakenly believed the building had a full 

second floor. See N.T. at 79-80; R.R. at 97a-98a. The County indicated it 

encountered similar “mezzanine issues” on prior occasions and that the County’s 

chief assessor committed to sending someone out to do a re-measurement of the 

building. N.T. at 80; R.R. at 97a-98a.

 

On May 23, 2017, the trial court entered an order noting a hearing 

scheduled for May 31, 2017. Tr. Ct. Order, 5/23/17; R.R. at 14a-15a. The court 

directed all counsel to submit any legal memoranda prior to the May 31 hearing. 

Id. The order further specified (with emphasis by underline added):

Any of the parties shall also submit any new 

measurement of the buildings within the (Summit) 

complex. There was a major disparity between each 

party’s measurement and this was reviewed by the 

County of Blair. The Court would DIRECT that the 

County of Blair, based on any finding of square footage, 

also formulate a new assessment based on that finding. 

Id. In a letter to the trial court dated May 25, 2017, counsel for the County stated

(with emphasis added):

As you will recall, at the tax assessment appeal 

trial for the Summit [P]roperty, there was a discrepancy 

between the square footage of the building as reported by 
6

the Assessment Office and by [Taxpayers’ Appraiser]. In 

response to that discrepancy, the County’s chief assessor 

re-measured the building. The square footage of this 

structure, as measured by the chief assessor on April 28, 

2017, is 63,150SF. However, for the reassessment, the 

square footage was incorrectly designated as 88,000SF. 

Consequently, the assessment for this parcel incorrectly 

included a value for 24,850SF, which is being corrected 

by the chief assessor. This adjustment results in a change 

of assessment that reduces the assessed fair market value 

from $5,377,900 to $3,260,600. 

County’s Revised Assessment Letter, 5/25/17; R.R. at 229a.

In their May 2017 memorandum of law, Taxpayers asserted they 

overcame the prima facie validity of the assessment because the County remeasured the square footage of the building on the Summit Property and 

admittedly reduced the parcel’s fair market value by more than $2,000,000. See

Appellants’ Mem., 5/31/17, at 5; R.R. at 192a. Taxpayers further asserted the 

County failed to present any evidence in support of its new assessment. Id. 

Consequently, Taxpayers argued their Appraiser’s testimony and valuations are the 

only evidence in the record and do not support the trial court’s final determination 

of the fair market value of the Summit Property. Id.

Thereafter, the trial court apparently rescheduled the May 31 hearing 

to August 28, 2017. See Certified Record, Item #13 (Scheduling Notice to parties’ 

counsel from Deputy Court Administrator Mary Wilt, dated June 9, 2017). There 

is no record of a further hearing being held or of a party objecting to admission of 

the letter from counsel for the County regarding the re-measured reassessment.
7

Ultimately, in its October 2017 decision, the trial court accepted as 

credible the County’s change in assessment of the Summit Property from 

$5,377,900 to $3,260,600 based on a correction of square footage from 88,000 

square feet to 63,150 square feet. Tr. Ct., Slip Op., 10/19/17, at 16; R.R. at 209a.

 

Regarding the square footage to be used in determining fair market 

value, the trial court’s explanation was as follows:

The Court finds that the County’s correction concerning 

the square footage from 88,000 to 63,150 square feet 

convincing. [Taxpayers’] appraisal did not specify the 

amount of square footage that was leased on the subject 

property, and [Taxpayers] continue to maintain the 

square footage of 57,000 ([N.T. at 50; R.R. at 68a]). The 

Court finds that the proper square footage to be 63,150 in 

that the Court believes the measurement done by the 

County to be the more accurate process.

Id.

In rejecting Taxpayers’ Appraiser’s sales comparison approach, the 

trial court found that Taxpayers’ Appraiser’s comparisons were not convincing 

because the properties used were not appropriate for comparison. Tr. Ct., Slip Op., 

at 17; R.R. at 210a. The trial court concluded (with emphasis added): “In turn, this 

demonstrates that [Taxpayers] have failed to meet their burden in rebutting the 

presumption that the property assessment in question is valid.” Id.
8

For these reasons, the trial court determined the fair market value of 

the Summit Property to be $3,260,600. Taxpayers appeal.1

II. Discussion

A. Argument

Taxpayers contend the trial court erred in determining they did not 

overcome the presumption of validity of the County’s assessment where it changed 

it during trial without presenting any evidence in support of the change. They 

assert the County assessed the Summit Property at $5,377,900 based on 88,000 

square feet of space in the building, but lowered it during the trial to $3,260,600 

based on a revised measurement of 63,150 square feet.

Taxpayers argue that the appraisal of fair market value is based on fair 

market value per-square-foot multiplied by the actual square footage. Therefore, 

they allege both the fair market value per-square-foot and the actual square footage 

are at issue in the trial court’s de novo proceeding. Taxpayers acknowledge it is 

possible that Appraiser did not convince the trial court that his appraised value persquare-foot was credible and thus Taxpayers failed to meet their rebuttal burden. 

However, Taxpayers assert, the same argument cannot be made for a determination 

of the actual square footage. To that end, Taxpayers’ Appraiser testified he 

measured the square footage precisely at 57,590.

 

1 Our review of tax assessment appeals is limited to determining whether the trial court 

committed an error of law, abused its discretion or violated constitutional rights. Jackson v. Bd. 

of Assessment of Cumberland Cty., 950 A.2d 1081 (Pa. Cmwlth. 2008).
9

Taxpayers further assert the taxing authorities did not impeach 

Appraiser’s testimony as to square footage. As such, the only evidence the trial 

court heard on the dimensional component of the assessment came from Appraiser. 

However, the trial court found the re-measurement of 63,150 square feet to be the 

more accurate measurement based solely on the letter from the County regarding 

its assessor’s re-measurement. See Tr. Ct., Slip Op., at 16; R.R. at 209a. 

Taxpayers assert the taxing authorities presented no evidence from which the trial 

court could determine how the County calculated the reduction in the Summit 

Property’s assessment. Therefore, Taxpayers contend, the County’s re-measured 

reassessment cannot be sustained based merely on a presumption of validity.

Taxpayers further assert the trial court credited their Appraiser’s 

testimony regarding square footage to the extent it warranted a review of the issue. 

That review resulted in the County’s confirmation of at least a partial mistake 

which lowered its assessment of the Summit Property by more than two million 

dollars. Thus, Taxpayers argue the County’s confirmation of its mistake must 

result in the trial court’s discarding of any reliability in the assessment. Stated 

differently, the trial court cannot rely on the presumed validity of the County’s reassessed value because Taxpayers’ Appraiser established the County’s 

miscalculation of square footage.

Therefore, Taxpayers argue the County’s revised assessment cannot 

be considered a new assessment entitled to a presumption of validity that they must 

overcome. If a taxing authority could defeat an evidentiary challenge to its 
10

assessment during a trial by merely presenting a new assessment, it could defeat 

any meritorious taxpayer challenge without presenting any evidence.

Summarizing, Taxpayers assert the parties do not dispute the 

inaccuracy of the initial assessment of the Summit Property, which was reduced by 

more than two million dollars. Nevertheless, the trial court found the revised 

assessment to be valid by presumption absent any evidence supporting it. As a 

result, Taxpayers maintain the trial court erred in holding that the County’s remeasured reassessment, which, by itself, constitutes evidence of the unreliability of 

the original assessment, was entitled to a presumption of validity that Taxpayers 

did not overcome.

In response, the County contends it successfully established a prima 

facie case, and Taxpayers failed to meet their burden of rebutting the presumption 

that the assessment was valid. In particular, the County asserts the trial court 

rejected Taxpayers’ Appraiser’s testimony regarding the fair market value of the 

Summit Property as not credible. The trial court rejected not only Taxpayers’

Appraiser’s income and sales comparison evidence, but also his square footage 

calculation for the Summit Property building. In particular, the trial court found 

Taxpayers’ Appraiser’s sales comparison comprised of non-comparable properties, 

riddled with inconsistencies and based on improperly supplied data. As such, the 

County contends the trial court properly determined that Taxpayers failed to rebut

the presumption that the final assessment of the Summit Property at $3,260,600 

was valid. See Tr. Ct., Slip Op., at 17; R.R. at 210a.
11

Further, the County argues its re-measurement of the building on the 

Summit Property, to which the parties agreed, did not, by itself, invalidate its 

assessment and there is nothing in the record showing any admission as to the 

invalidity of its original assessment. At the hearing, the County’s counsel stated 

that square footage discrepancies are not uncommon, and the County’s Assessment 

Office will send someone out to re-measure the property and correct it. N.T. at 54; 

R.R. at 72a. Further, the trial court and parties agreed to keep the record open for a 

re-measurement of the square footage. N.T. at 54-55; R.R. at 72a-73a. The 

County’s chief assessor re-measured the premises and arrived at a figure of 63,150 

square feet upon determining that the building did not have a complete second 

floor. County’s Revised Assessment Letter; R.R. at 229a. The trial court accepted 

the County’s re-measurement, which included the partial second floor or 

mezzanine, as the more accurate process. Tr. Ct., Slip Op., at 16; R.R. at 209a. To 

the contrary, Taxpayers’ Appraiser did not include this area in his square footage 

calculation. N.T. at 56; R.R. at 74a.

In short, the County emphasizes that the trial court found its 

reassessment of the Summit Property more credible and convincing than 

Taxpayers’ Appraiser’s unacceptable appraisal of that parcel. Consequently, the 

County maintains, the trial court did not rebut the validity of its assessment 

regardless of the re-measurement of the square footage, which the trial court 

accepted.

Moreover, even assuming the County’s re-measurement of the square 

footage, by itself, rebutted the initial validity of the assessment, the County argues 
12

the trial court could still find the reassessment, reduced by the square footage remeasurement, adequate to determine the fair market value of the Summit Property. 

See Green v. Schuylkill Cty. Bd. of Assessment Appeals, 730 A.2d 1017 (Pa. 

Cmwlth. 1999) (trial court may determine weight to be given evidence and accept 

only part of an expert’s testimony). Thus, the County asserts the trial court 

properly accepted the County’s reduced assessment based on the re-measurement 

of the partial second floor or mezzanine area.

B. Analysis

This appeal involves a 2016 countywide reassessment. At the 

hearing, the parties recognized that generally, the chief assessor must testify as to 

the current certified assessed value in order for the presumption of validity to 

apply. See N.T. at 5; R.R. at 23a; BET Lehigh Real Estate, LLC, v. Schuylkill 

Cty. Bd. of Assessment Appeals, 67 A.3d 845 (Pa. Cmwlth. 2013). Here, 

however, the parties stipulated to the original assessments, which were read into 

the record. N.T. at 6; R.R. at 24a.

Further, after reviewing the Taxpayers’ evidence, the trial court 

rejected Taxpayers’ Appraiser’s valuation. Tr. Ct., Slip Op., at 16-17; R.R. at 

209a-210a. In particular, the court rejected Appraiser’s sales comparison on the 

ground that the properties were not comparable in either quality or type. Id. 

Nonetheless, the trial court permitted the parties to re-measure the 

square footage of the building on the Summit Property. See N.T. at 54-55; R.R. at 

72a-73a. Taxpayers did not object to leaving the record open for the court to 
13

receive findings on the re-measurement. Id. However, Taxpayers argued that if 

the parties disagreed to the re-measurement, the trial court must make the decision. 

N.T. at 55; R.R. at 73a. 

The trial court treated the County’s re-measurement as a new 

assessment and determined the proper square footage to be 63,150. Tr. Ct., Slip 

Op., at 16; R.R. at 209a. To that end, the trial court stated in its opinion: “[T]his 

demonstrates [Taxpayers] have failed to meet their burden in rebutting the 

presumption that the property assessment in question is valid.” Id. at 17; R.R. at 

210a (emphasis added).

In cases where an appeal is pending before a trial court and it has 

jurisdiction to grant a final order disposing of the matter, subsequent tax 

assessments are automatically appealed, have a separate status, and continue to 

exist notwithstanding the dismissal of the original assessment appeal. 525 

Lancaster Ave Apts, LP v. Berks County Bd. of Assessment Appeals, 111 A.3d 

1231 (Pa. Cmwlth 2015); see Section 8854(a)(5) of the Consolidated County 

Assessment Law.2 “[T]he automatic appeal provision of Section 8854(a)(5) is 

 

2 Section 8854(a)(5) of the Consolidated County Assessment Law, 53 Pa. C.S. 

§8854(a)(5), provides:

 (5) If a taxpayer or taxing district has filed an appeal from an assessment, so 

long as the appeal is pending before the board or before a court on appeal from 

the determination of the board, as provided by statute, the appeal will also be 

taken as an appeal by the appellant on the subject property for any valuation for 

any assessment subsequent to the filing of an appeal with the board and prior to 

the determination of the appeal by the board or the court. This provision shall be 

applicable to all pending appeals as well as future appeals. 
14

intended to eliminate duplicative, precautionary tax appeals and not to act as a trap 

by which taxpayers can be deprived of their opportunity to be heard.” 525 

Lancaster Ave Apts, 111 A.3d at 1236-37 (quoting Appeal of P-Ville Assocs., 87 

A.3d 898, 903 (Pa. Cmwlth 2014)). 

Because the trial court ordered re-measurement of the building, the 

presumption of validity of the original assessment of the property was rebutted. To 

the extent the original assessment retained a separate status and continued 

existence, and to the extent that no party offered any evidence to support the 

original assessment, Taxpayers’ appeal should have been sustained as to the

original assessment of the Summit Property. Nevertheless, consistent with the 

automatic appeal provision, the trial court had the ability to address the remeasured reassessment.

Regarding the re-measured reassessment, the trial court was asked to 

decide how much square footage from the mezzanine level should be used to 

calculate fair market value of the Summit Property building under the comparative 

sales approach. The County maintains the re-measured area of 63,150 square feet 

should be used, but Taxpayers assert that their Appraiser’s measurement of 57,590 

square feet is the only value supported by the evidence in the record.

In the absence of objection to the procedures by which the remeasured reassessment was added to the trial court record, there is no reason why 

that value should not be accorded presumed validity. However, it is unclear on 

what basis the trial court ultimately chose the County’s re-measured area.
15

First, the trial court found the County’s re-measurement “to be the 

more accurate process,” Tr. Ct., Slip Op. at 16; R.R. at 209a, after apparently 

comparing the two processes. But, the trial court did not reference certain 

testimony of Taxpayers’ Appraiser regarding the building’s highest and best use, 

and why given that use he purposefully did not include the low utility mezzanine 

area in his square footage calculations. See N.T. at 56; R.R. at 74a. Also, there is 

no information in the record about the County’s process for re-measurement, so 

comparison of the processes is problematic. Certainly, there is not enough 

information in the record for this Court to evaluate whether the trial court’s 

determination of more accurate process is supported by substantial evidence. 

Second, the trial court also stated that Taxpayers failed to meet their 

burden in rebutting the presumption that the re-measured reassessment was valid. 

But this presumes the trial court found Taxpayers’ Appraiser’s prior testimony 

about the highest and best use and the appropriate square footage not credible or 

not relevant. See Deitch Co. v. Bd. of Property Assessment, Appeals and Review 

of Allegheny Cty., 209 A.2d 397, 402 (Pa. 1965) (“If the taxpayer fails to respond 

with credible, relevant evidence, then the taxing body prevails.”). The trial court, 

however, did not express such determinations about those parts of the Appraiser’s

testimony. To the contrary, the trial court significantly relied on the square footage 

testimony of Taxpayers’ Appraiser when it required a re-measurement. Under 

these circumstances, we believe more explanation is needed. In particular, further 

explanation is needed as to how Taxpayers’ Appraiser’s highest and best use 

testimony, and related low utility testimony regarding the mezzanine area, was 
16

addressed by the County’s re-measurement, and why that testimony was 

insufficient to rebut the County’s re-measured square footage.

Accordingly, we remand to the trial court to further explain its ruling 

on this issue. On remand, we leave to the thoughtful consideration of the trial 

court whether or not to accept additional evidence.

III. Conclusion

For the above reasons, the order of the trial court is vacated in regards 

to the original assessment of the Summit Property, and the order of the trial court is 

also vacated to the extent it determined the re-assessed market value of the Summit 

Property to be $3,260,600. This matter is remanded for further proceedings 

consistent with this opinion.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Alan J. Kivitz, Vicki Sommer, :

Gary Raymond and Donna Raymond, :

t/d/b/a Vidoro Properties, :

Appellants : No. 1715 C.D. 2017

: 

v. :

:

Board of Assessment Appeals of :

Blair County :

O R D E R

AND NOW, this 9

th day of November, 2018, the order of the Court of 

Common Pleas of Blair County is VACATED, and this matter is REMANDED

for further proceedings consistent with the foregoing opinion. Jurisdiction is 

relinquished.

 

ROBERT SIMPSON, Judge