IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Downingtown Area School District : CASES CONSOLIDATED

:

v. : No. 92 C.D. 2022

:

Chester County Board of Assessment :

Appeals :

:

Tax Parcel No.: 33-5-43.3 :

:

Appeal of: Marchwood Apartments :

Owners LLC :

Downingtown Area School District :

:

v. : No. 93 C.D. 2022

: Argued: March 7, 2023

Chester County Board of Assessment :

Appeals :

:

Tax Parcel No.: 33-5-43.2 :

:

Appeal of: Marchwood Apartments :

Owners LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION

BY SENIOR JUDGE LEAVITT FILED: October 6, 2023

Marchwood Apartments Owners LLC (Taxpayer) appeals an order of 

the Court of Common Pleas of Chester County (trial court), granting the tax 

assessment appeal filed by Downingtown Area School District (School District).

1

 In 

1 The cases were consolidated by the trial court. 
2

doing so, the trial court rejected Taxpayer’s constitutional challenges to the School 

District’s appeal of its assessment. Taxpayer argues that the trial court erred, 

asserting that the School District’s tax assessment appeal policy, both on its face and 

as applied, violates the Equal Protection Clause of the United States Constitution2

and the Uniformity Clause of the Pennsylvania Constitution.

3 Likewise, Section 

8855 of the Consolidated County Assessment Law, 53 Pa. C.S. §8855,4 violates the 

Equal Protection Clause and the Uniformity Clause because it does not require 

taxing authority assessment appeals to be countywide. Taxpayer contends that the 

School District’s unconstitutional assessment appeal has left the Marchwood

apartment complex overassessed when compared to other apartment complexes in 

Chester County, with which it must compete for tenants. For the reasons to follow, 

we reverse the trial court.

Background

Taxpayer owns the Marchwood apartment complex, which consists of 

two separate tax parcels located in Uwchlan Township, Chester County, 

2 U.S. CONST. amend. XIV. The Equal Protection Clause provides, in relevant part: “No State 

shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Id.

3 PA. CONST. art. VIII, §1. It states: “All taxes shall be uniform, upon the same class of subjects, 

within the territorial limits of the authority levying the tax, and shall be levied and collected under 

general laws.” Id.

4

It states:

A taxing district shall have the right to appeal any assessment within its jurisdiction 

in the same manner, subject to the same procedure and with like effect as if the 

appeal were taken by a taxable person with respect to the assessment, and, in 

addition, may take an appeal from any decision of the board or court of common 

pleas as though it had been a party to the proceedings before the board or court even 

though it was not a party in fact. A taxing district authority may intervene in any 

appeal by a taxable person under section 8854 (relating to appeals to court) as a 

matter of right.

53 Pa. C.S. §8855.
3

Pennsylvania. One parcel is 6.1 acres, and the other parcel is 37.5 acres. On the 2

parcels are 40 detached buildings with 504 residential apartment units, a leasing 

office/clubhouse, a maintenance shop, and a vacant building. 

In 2012, the School District established a policy to appeal any real 

property assessment that “may potentially result in total annual additional tax 

revenue of $10,000 or more[.]” Reproduced Record at 263a (R.R. __). As adopted, 

the policy did not limit the number of appeals the School District may file in a tax 

year.

In 2019, the School District hired Valbridge Property Associates 

(Valbridge) to “identify up to 15 properties” that were “likely to be under[]assessed 

by an amount sufficient to meet the district’s selection criteria.” R.R. 261a. It took 

Valbridge “approximately one week” to identify 15 underassessed properties that

met the policy’s $10,000 monetary threshold for an assessment appeal. Id. The 

School District appealed 15 property tax assessments identified by Valbridge and 

then added another, i.e., the Marchwood apartment complex. The Chester County 

Board of Assessment Appeals denied the School District’s appeal of the Marchwood 

apartment complex, and the School District appealed. 

The trial court conducted a de novo hearing on the School District’s 

appeal. Notably, the parties stipulated to the fair market value of the Marchwood 

apartment complex for tax years 2019, 2020, and 2021. As a consequence, the 

evidence concerned Taxpayer’s constitutional challenge to the School District’s 

assessment appeal policy and implementation thereof. 

Taxpayer presented the testimony of Reaves Lukens, an employee of 

Valbridge, as on cross-examination. Lukens explained that he was tasked with 

reviewing property assessments in the School District and choosing 15 assessments
4

to appeal, i.e., a “manageable” number, considering manpower and resources. Notes 

of Testimony, 11/17/2021, at 16 (N.T. __); R.R. 39a. Lukens began the assignment 

by downloading the current tax assessments of both commercial and residential 

properties. However, Lukens excluded residential properties less than 3,500 square 

feet in size. He did not look at “the very small houses” because they would not meet 

the School District’s monetary threshold of $10,000 even “if they had an assessment 

of zero.” N.T. 30; R.R. 53a. As for commercial properties, he separated them into 

categories (e.g., retail or industrial) and looked at their average assessments. 

Lukens testified that he “did not have a hard and fast rule with respect 

to the methodology [he] used” to identify properties. N.T. 31; R.R. 54a. He 

considered the potential net return in order “to maximize the return to the School 

District.” N.T. 26, 32; R.R. 49a, 55a. Once he identified 15 assessments, Lukens

stopped his review and gave his list to the School District.5 Lukens confirmed that 

many other property assessments met the School District’s monetary threshold.6 He 

5

Initially, the Marchwood apartment complex was not on the list. N.T. 26; R.R. 49a. 

6 At the hearing, Lukens testified as follows:

Q. Now, you would agree with me that there are many more than 15 properties 

that satisfy the $10,000 threshold set forth in the [] School District policy, correct?

[Lukens]. I would suspect that there are.

Q. And indeed do you recall testifying at your deposition that you believed it 

could be more than 100?

[Lukens]. It could be.

Q. And do you agree with that statement?

[Lukens]. It could be.

* * * *

Q. And isn’t it correct that among those properties that you considered that are 

in the district, that there were likely residences that would satisfy the $10,000 

threshold set forth in the [] School District policy?

[Lukens]. It’s possible.

Q. Well, you say it’s possible. Do you believe that it’s likely?
5

also acknowledged that there was a range in the amount of “pickup” in fair market 

value needed to meet the $10,000 threshold, depending on the municipality. For 

example, in Downingtown Borough, a pickup of $497,262 in the fair market value 

was needed to hit the $10,000 threshold, but a pickup of $617,831 was needed in 

Bradford Township. N.T. 34-35; R.R. 57a-58a.

Taxpayer presented its expert, Peter A. Angelides, Ph.D.,7 who testified 

about his analysis of the School District’s assessment appeals for the 2019 and 2020 

tax years. He testified that owner-occupied residential properties constituted 84.2%

of the properties in the School District. N.T. 77; R.R. 100a. He further noted that 

the School District’s $10,000 monetary threshold has “a larger exclusionary effect 

on single[-]family properties than it does on apartments, commercial or industrial 

properties.” N.T. 83; R.R. 106a. Nevertheless, Angelides believed “a decent or 

large number of single[-]family properties” were underassessed and could generate 

an additional $10,000 in annual tax revenue. N.T. 84-85; R.R. 107a-08a. He 

identified five residential properties that were “worthy of further investigation” to 

determine whether they would meet the policy’s threshold amount but were not 

appealed. N.T. 91; R.R. 114a.

On cross-examination, Angelides explained that he looked at recent 

sales prices to find properties that may meet the School District’s monetary 

threshold. He acknowledged that some of the five residential properties that he 

[Lukens]. I would assume there are some.

N.T. 25-26; R.R. 48a-49a.

7 Angelides is the President of Econsult, an urban economics environment public policy consulting 

firm located in Philadelphia, Pennsylania. N.T. 64; R.R. 87a. Angelides holds a master’s degree

in city planning and a Ph.D. in economics. He also holds a certification from the American 

Institute of Certified Planning, the proficiency in his profession. N.T. 65; R.R. 88a.
6

identified as potentially underassessed were subject to Act 319,8 which meant they

were enrolled in programs that lowered their taxes. The Clean and Green program9

“provides a lower tax rate appropriate for land devoted to farming and forest reserve 

purposes” by enabling landowners to apply for preferential assessments that base 

property taxes on use rather than fair market value. Feick v. Berks County Board of

Assessment Appeals, 720 A.2d 504, 505 (Pa. Cmwlth. 1998).

The trial court did not allow Taxpayer to present expert evidence that 

other apartment complexes in Chester County were assessed at a lower percentage 

of fair market value under the State Tax Equalization Board10 common level ratio. 

On average, other apartment complexes were assessed at 34.23% of their fair market 

value. By contrast, the Marchwood apartment complex was assessed at 49.3% or 

47% of its fair market value, depending on the year. The trial court also denied

Taxpayer the opportunity to introduce a stipulation regarding the range of 

assessment appeal policies adopted by school districts in the county.

The depositions of David Matyas, the School District’s Business 

Manager; David Kring, School Board Director; Alicia Krebs, the School District’s 

Accounting Supervisor; and Jane Bertone, President of the School Board, were

admitted into evidence. Therein, these School District personnel testified that they 

did not know how Lukens chose the 15 properties for appeal. Matyas Dep. at 16; 

R.R. 380a; see also Krebs Dep. at 18; R.R. 452a. The Marchwood apartment 

complex was added to the initial list of 15 appeals by decision of Valbridge and the 

8 Act 319 refers to the Pennsylvania Farmland and Forest Land Assessment Act of 1974, 

commonly known as the Clean and Green Law, Act of December 19, 1974, P.L. 973, as amended, 

72 P.S. §§5490.1-5490.13. 

9 Section 3 of the Clean and Green Law, 72 P.S. §5490.3. 

10 See Act of June 27, 1996, P.L. 403, as amended, added by the Act of April 18, 2013, P.L. 4, 71 

P.S. §§1709.1507-1709.1508. 
7

School District’s solicitor. Matyas Dep. at 18; R.R. 382a; see also Krebs Dep. at 28; 

R.R. 462a. The School District rejected one commercial property for a tax 

assessment appeal for the stated reason that the owner was represented by a “very

aggressive” attorney. N.T. 41-42; R.R. 64a-65a.11 Bertone recollected that the 

School District has appealed one residential property assessment, explaining she was 

“surprised the house could generate that much more revenue.” Bertone Dep. at 20; 

R.R. 490a.

Trial Court Decision

The trial court found that the School District’s policy did not instruct 

the School District “to consider the type or nature of a property” when deciding 

whether to appeal a property’s assessment and did not limit the number of appeals 

that can be taken in a given year. Trial Court Op. at 2. Since the implementation of 

its policy in 2012, the School District has filed an assessment appeal of one 

residential property, in addition to its commercial property assessment appeals.

The trial court characterized Section 8855 of the Consolidated County 

Assessment Law as granting a school district the right to appeal assessments, and it 

“does not restrict the methodology” it uses to choose properties to appeal, so long as 

the school district exercises its discretion within constitutional boundaries. Trial 

Court Op. at 5. The trial court rejected Taxpayer’s argument that there must be a 

countywide tax assessment appeal to avoid placing its apartment complex at a 

competitive disadvantage. In any case, school districts in the same county are free 

to adopt very different assessment appeal policies. 

11 Lukens’ list included a parcel owned by Lowes but incorrectly identified the owner as P-Patch. 

In conversation with the School District, Lukens recommended that they “skip the Lowes” parcel 

because its attorney “is very aggressive.” R.R. 269a. Lukens recommended that the School 

District proceed with appealing the assessment of the parcel that was actually owned by P-Patch. 

Id.
8

The trial court rejected Taxpayer’s as-applied constitutional challenge 

to the School District’s appeal of its assessment, concluding that allowing the 

Marchwood apartment complex to remain underassessed would be discriminatory. 

It reasoned that the ‘“intentional systematic undervaluation by state officials of other 

taxable property in the same class contravenes the constitutional right of one taxed 

upon the full value of his property.”’ Trial Court Op. at 6 (quoting Allegheny 

Pittsburgh Coal Company v. County Commissioners of Webster County, 488 U.S. 

336 (1989)). Further, the ‘“equal protection clause . . . protects the individual from 

state action which selects him out for discriminatory treatment by subjecting him to 

taxes not imposed on others of the same class’” Id. at 6 (quoting Hillsborough v. 

Cromwell, 326 U.S. 620 (1946)). The trial court concluded that the School District’s 

appeal policy corrects this “very wrong” because if the School District allowed 

Taxpayer’s underassessment to continue, the rights of other taxpayers would be 

violated. Id. at 7. Accordingly, the trial court held the School District’s tax 

assessment appeals policy complied with the Equal Protection Clause.

The trial court next rejected Taxpayer’s contention that the School 

District’s policy violated the Uniformity Clause, noting that “absolute equality and 

perfect uniformity in taxation are not required.” Trial Court Op. at 7. The $10,000 

threshold was facially neutral and did not, as Taxpayer argued, effectively eliminate 

appeals of residential properties, thereby creating unconstitutional property subclassifications. The trial court found Taxpayer’s evidence irrelevant to the extent it 

showed different treatment on the basis of property sub-classification because the 

School District had appealed at least one residential property. It further opined that

a monetary threshold is permitted under precedent, citing Valley Forge Towers 

Apartments N, LP v. Upper Merion Area School District, 163 A.3d 962 (Pa. 2017);
9

GM Berkshire Hills LLC v. Berks County Board of Assessment, 257 A.3d 822 (Pa. 

Cmwlth. 2021) (GM Berkshire Hills I), aff’d by evenly divided court, 290 A.3d 238 

(Pa. 2023) (GM Berkshire Hills II); and Punxsutawney Area School District v. 

Broadwing Timber, LLC (Pa. Cmwlth., No. 1209 C.D. 2018, filed October 29, 2019)

(unreported). 

Having rejected Taxpayer’s constitutional challenges, the trial court 

ordered that the assessment of the Marchwood apartment complex be increased to 

comport with its new fair market value, which value was established in the parties’ 

stipulation.

Appeal

On appeal,12 Taxpayer raises three issues. First, Taxpayer argues that 

the School District’s tax assessment appeal policy violated the Equal Protection 

Clause and the Uniformity Clause. Second, Taxpayer argues that Section 8855 of 

the Consolidated County Assessment Law13 is unconstitutional, facially or as 

applied, because it does not require taxing authority appeals to be uniform within the 

entire county, and it does not state a standard for the initiation of assessment appeals. 

Taxpayer contends that the appropriate solution to underassessed properties is for 

12 This Court reviews a trial court’s decision in a property tax assessment appeal to determine

whether the trial court abused its discretion, committed an error of law, or made findings of fact 

not supported by substantial evidence. GM Berkshire Hills I, 257 A.3d at 828 n.8.

13 It states:

A taxing district shall have the right to appeal any assessment within its jurisdiction 

in the same manner, subject to the same procedure and with like effect as if the 

appeal were taken by a taxable person with respect to the assessment, and, in 

addition, may take an appeal from any decision of the board or court of common 

pleas as though it had been a party to the proceedings before the board or court even 

though it was not a party in fact. A taxing district authority may intervene in any 

appeal by a taxable person under section 8854 (relating to appeals to court) as a 

matter of right.

53 Pa. C.S. §8855.
10

the legislature to mandate countywide reassessments.14 Third, Taxpayer argues that 

the Marchwood apartment complex must be assessed at the same common level ratio 

as other apartment complexes in the county in order to comply with the Uniformity 

Clause.

Analysis

We begin with a review of the law.

The Uniformity Clause of the Pennsylvania Constitution states as 

follows:

All taxes shall be uniform, upon the same class of subjects, 

within the territorial limits of the authority levying the tax, 

and shall be levied and collected under general laws. 

PA. CONST. art. VIII, §1. The Uniformity Clause ensures that “a taxpayer should 

pay no more or no less than his proportionate share of the cost of government.” In 

re Sullivan, 37 A.3d 1250, 1254-55 (Pa. Cmwlth. 2012) (quoting Deitch Company 

v. Board of Property Assessment, Appeals and Review of Allegheny County, 209 

A.2d 397, 401 (Pa. 1965)). The value of the Uniformity Clause has been 

summarized as follows:

While every tax is a burden, it is more cheerfully borne when the 

citizen feels that he is only required to bear his proportionate 

share of that burden measured by the value of his property to that 

of his neighbor. This is not an idle thought in the mind of the 

taxpayer, nor is it a mere speculative theory advocated by learned 

writers on the subject; but it is a fundamental principle written 

into the Constitutions and statutes of almost every state in this 

country.

Delaware, L. & W. Railway Company’s Tax Assessment, 73 A. 429, 430 (Pa. 1909).

14 Taxpayer asserts that Pennsylvania is one of seven states that do not require a “broad-based” 

periodic assessment. Taxpayer Brief at 35. Instead, Pennsylvania uses a base year system, which 

leads to the problem of underassessed properties.
11

Within a taxing district, all real property “is a single class.” Valley 

Forge, 163 A.3d at 975. For this reason, “the Uniformity Clause does not permit the 

government, including taxing authorities, to treat different property subclassifications in a disparate manner.” Id. In Clifton v. Allegheny County, 969 A.2d 

1197, 1212 (Pa. 2009), our Supreme Court established that real property is “[a]

classification” and that the Uniformity Clause requires “all real estate [be] treated as 

a single class entitled to uniform treatment.” 

The General County Assessment Law15 authorizes any taxing authority 

to appeal a real property assessment. Section 520 states as follows:

The corporate authorities of any county, city, borough, town, 

township, school district or poor district, which may feel 

aggrieved by any assessment of any property or other subject of 

taxation for its corporate purposes, shall have the right to appeal 

therefrom in the same manner, subject to the same procedure, 

and with like effect, as if such appeal were taken by a taxable 

with respect to his property.

72 P.S. §5020-520. It is axiomatic that when a taxing authority, such as a school 

district, exercises its discretion to appeal a real property assessment, it must do so 

within “constitutional boundaries.” Valley Forge, 163 A.3d at 980. Where a taxing 

authority appeals only “the assessments of one sub-classification of properties, 

where that sub-classification is drawn according to property type,” it acts outside 

applicable constitutional boundaries. Id. at 978. 

In Valley Forge, 163 A.3d 962, several taxpayers challenged the school 

district’s program of appealing commercial property tax assessments but not 

residential property assessments. The taxpayers sought to enjoin the school district’s 

tax assessment appeal policy as violative of the Uniformity Clause. The common 

15 Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §§5020-1-5020-602.
12

pleas court dismissed the complaint as not stating a claim, and this Court affirmed. 

The Supreme Court reversed, holding as follows: 

[A] taxing authority is not permitted to implement a program of 

only appealing the assessments of one sub-classification of 

properties, where that sub-classification is drawn according to 

property type – that is, its use as commercial, apartment complex, 

single-family residential, industrial, or the like. 

Id. at 978. The Supreme Court further explained that “systematic disparate 

enforcement of the tax laws based on property sub-classification, is constitutionally 

precluded[.]” Id. The Supreme Court cautioned, however, that its holding should 

not be construed as an absolute prohibition of a neutral selection criterion, such as a 

monetary threshold, so long as it was “implemented without regard to the type of 

property in question or the residency status of its owner.” Id. at 979. The Supreme 

Court held that because the taxpayers’ complaint alleged that only commercial 

property assessments were appealed, it stated a valid claim under the Uniformity 

Clause. 

Following Valley Forge, this Court decided GM Berkshire Hills I. 

There, the school district’s tax assessment appeals program used monthly reports 

generated by the State Tax Equalization Board to identify properties for appeal. 

These reports listed recent property sales in each county along with the sales prices 

and current assessed values. Beginning with recently sold properties, the school 

district applied the county’s applicable common level ratio16 of 68.5% to each recent 

sale price. If the difference between the recent sale price and the assessment was 

greater than $150,000, the school district pursued a tax assessment appeal. The 

16 Section 102 of The General County Assessment Law, defines the “common level ratio” as “the 

ratio of assessed value to current market value used generally in the county as last determined by 

the State Tax Equalization Board pursuant to the act of June 27, 1947 (P.L. 1046, No. 447), referred 

to as the State Tax Equalization Board Law.” 72 P.S. §5020-102.
13

$150,000 figure represented the threshold at which the revenue from a successful 

appeal would justify the cost of the legal and appraisal fees necessary for the school 

district to undertake the appeal.

GM Berkshire Hills LLC challenged the school district’s use of recently 

sold properties as a basis for selecting properties for tax appeal. It argued that 

challenging the assessment of properties under new ownership violates both the 

federal Equal Protection Clause and Pennsylvania’s Uniformity Clause. This Court 

rejected this claim. We concluded that using the recent sale of an assessed property 

did not create an improper classification, reasoning that such sales are used to 

establish market value in any assessment appeal. Further, the school district’s use 

of recent property sales did not differentiate on the basis of property type. As such, 

the school district’s method did not violate either the Equal Protection Clause or the 

Uniformity Clause. On further appeal, an equally divided Supreme Court affirmed 

this Court’s decision that the school district’s assessment appeal policy did not 

violate the Uniformity Clause. GM Berkshire Hills II, 290 A.3d at 240. 

Then, in Duffield House Associates, L.P. v. City of Philadelphia, 260 

A.3d 329 (Pa. Cmwlth. 2021), appeal denied, 279 A.3d 1185 (Pa. 2022), this Court 

affirmed an order of the Court of Common Pleas of Philadelphia County that 

enjoined the City of Philadelphia’s reassessment of 41,730 commercial properties. 

We held that the City’s decision to target certain sub-classifications of property for 

reassessment, while leaving other sub-classifications of property alone, violated the 

Uniformity Clause.

In Duffield, we distinguished Kennett Consolidated School District v. 

Chester County Board of Assessment Appeals, 228 A.3d 29 (Pa. Cmwlth. 2020), 

appeal granted, 240 A.3d 611, appeal dismissed as improvidently granted, 259 A.3d 
14

890 (Pa. 2021). In Kennett, a taxpayer challenged a school district’s tax assessment 

appeal of its property on the grounds that it violated the Uniformity Clause. In that 

case, the school district set a monetary threshold of a $1 million underassessment, 

which affected only commercial property assessments. We concluded that the 

appeal program was constitutional because it was not based on type of property but 

on the amount of the underassessment. The fact that the program’s implementation 

resulted in an assessment appeal of only commercial properties did not establish a 

per se violation of the Uniformity Clause.

With these principles in mind, we turn to Taxpayer’s first claim of error. 

Taxpayer argues that the School District’s monetary threshold is inherently

discriminatory and, thus, violates the Uniformity Clause. The $10,000 monetary 

threshold excludes most properties in the district, and since 2012, the School District 

has appealed the assessment of only a single residential property. Taxpayer argues 

that by arbitrarily limiting the number of tax assessment appeals to 15, even though 

there were many more properties that satisfied the monetary threshold, the School 

District has violated the Uniformity Clause. Finally, the School District’s decision 

not to appeal an underassessed commercial property that met the monetary threshold 

for the stated reason that its attorney was “very aggressive” created an intentional 

discrimination in favor of one taxpayer to the expense of others. Taxpayer Brief at 

26.

The School District responds that the law does not limit the selection 

process for implementing a neutral monetary threshold for assessment appeals, and 

it is not discrimination to appeal an incorrect assessment. In support, the School 

District cites Weissenberger v. Chester County Board of Assessment Appeals, 62 

A.3d 501(Pa. Cmwlth. 2013). There, a group of school districts “hired a consultant 
15

to evaluate a different class each year, one year looking at shopping centers, then 

apartment complexes, with other evaluations expected each year in the future.” Id.

at 507. This Court held that the school district’s piecemeal approach to assessment 

appeals did not “demonstrate deliberate, purposeful discrimination.” School District 

Brief at 17 (quoting Weissenberger, 62 A.3d at 508-09). The School District also 

cites East Stroudsburg Area School District v. Meadow Lake Plaza, LLC (Pa. 

Cmwlth., No. 371 C.D. 2018, filed October 17, 2019) (unreported), and East Area 

School District v. Dallan Acquisitions, LLC (Pa. Cmwlth., No. 529 C.D. 2018, filed 

October 17, 2019) (unreported) (holding that implementation of a neutral monetary 

threshold for assessment appeals by cost-benefit analysis did not offend the 

Uniformity Clause).

Our Supreme Court has held that under the Uniformity Clause, 

“similarly situated taxpayers should not be deliberately treated differently by taxing 

authorities.” Downingtown Area School District v. Chester County Board of 

Assessment Appeals, 913 A.2d 194, 201 (Pa. 2006). Thereafter, in Valley Forge, 

163 A.3d at 979, the Supreme Court suggested that a monetary formula for filing 

assessment appeals did not offend the Uniformity Clause, but that was not the 

holding. See GM Berkshire Hills II, 290 A.3d at 253 (Donohue, J., opinion in 

support of reversal) (clarifying that the comment in Valley Forge about the potential 

propriety of a monetary threshold was dicta). In short, the Pennsylvania Supreme 

Court has not decided that a purely monetary threshold is constitutional under the 

Uniformity Clause, as assumed by the trial court. Nevertheless, this Court has held 

that a school district assessment appeal policy that uses a monetary threshold 

together with recent property sales to choose its assessment appeals passes 

constitutional muster. See GM Berkshire Hills I, 257 A.3d 822.
16

Here, the School District policy uses a monetary threshold for 

identifying properties for tax assessment appeal, which may be constitutional. 

However, the School District has implemented its policy in an arbitrary fashion. 

First, it chose to appeal the assessments of 16 properties even though it knew that 

there were many more properties in the School District that satisfied the monetary 

threshold. Second, Lukens testified that he “did not have a hard and fast rule with 

respect to the methodology [he] used” to identify properties, and he could not 

elucidate these flexible “rules” that he used. N.T. 31; R.R. 54a. He could only state 

that he was “trying to maximize the return to the School District.” N.T. 26, 32; R.R. 

49a, 55a. Third, the Marchwood apartment complex was not on Lukens’ list of 

properties identified for an assessment appeal, and the School District offered no 

explanation for the later selection of the Marchwood apartment complex for an

assessment appeal. Fourth, the School District rejected a commercial property that 

met the monetary threshold for the sole reason that its counsel was aggressive. This 

selection criterion is discriminatory on its face and unacceptable as a matter of sound 

public policy.

The School District’s reliance on East Stroudsburg and East Area 

School District is misplaced. The implementation of the tax assessment appeal 

policy was not at issue in these cases but, rather, the stated terms of the policy. 

Additionally, Valley Forge disapproved a taxing authority appeal policy based on 

property classification such as the one adopted in Weissenberger, where the school 

district chose its assessment appeals by property classification, e.g., shopping centers

one year, then apartment complexes the next year. Rather, the Supreme Court has 

established that “a taxing authority is not permitted to implement a program of only 

appealing the assessments of one sub-classification of properties, where that sub-
17

classification is drawn according to property type—that is, its use as commercial, 

apartment complex, single-family residential, industrial, or the like.” Valley Forge, 

163 A.3d at 978.

The School District’s monetary formula based upon a $10,000 increase 

in tax revenue may be facially neutral and may be constitutional, as suggested in

Valley Forge, 163 A.3d 962. That remains to be determined. See Berkshire Hills II, 

290 A.3d at 253 (Donohue, J., opinion in support of reversal). However, the School 

District’s decision to undertake a piecemeal implementation of this policy, 

deliberately leaving many other underassessed properties alone, has created 

disparate treatment that is anathema to the Uniformity Clause. This random 

application of a monetary threshold created a lack of uniformity in violation of the 

Pennsylvania Constitution.

Conclusion

The purpose of any assessment appeal, whether by the taxpayer or the 

taxing authority, is to correct mistakes in the most recent countywide assessment. It 

is not intended to function as a substitute for the countywide assessment required by 

law. In GM Berkshire Hills I, 257 A.3d 822, this Court upheld an assessment policy 

that was triggered by a change in circumstance, i.e., a sale that showed the most 

recent countywide assessment amount for that particular property to be in error. 

Further, the policy was uniformly applied to all properties meeting the monetary 

threshold. Even so, our holding received divided support from our Supreme Court.

Taxing authority appeals yield more revenue for the taxing authority. 

However, the purpose of a countywide reassessment is to correct all mistakes, 

including those that fall upon overassessed properties. When the taxing authority 

attempts an ersatz and piecemeal correction of underassessments, it is the sole 
18

beneficiary. Under the Uniformity Clause, however, some of that correction should 

inure to the benefit of the overassessed taxpayer.17

Here, the School District’s stated policy was to appeal assessments that 

could potentially generate more than $10,000 in tax revenue. This will garner for 

the School District the entire benefit and leave overassessed property owners bearing 

an unfair share of the tax burden. Even so, the School District did not even attempt 

to capture each and every assessment that would meet the monetary threshold. Cf. 

Kennett, 228 A.3d 29. The monetary threshold may have been neutral, but the 

implementation, perhaps too limited in scope, created a systematic and disparate 

treatment of taxpayers, both the overassessed and the underassessed.

Accordingly, we reverse the decision of the trial court.

18

 

MARY HANNAH LEAVITT, President Judge Emerita

17 See School District of Philadelphia v. Board of Revision of Taxes, __ A.3d __ (Pa. Cmwlth., 

Nos. 195-224, 226-229, 252-266, 268-270, 272-288, 419 C.D. 2021, filed October 6, 2023). 

There, the school district adopted an assessment policy to appeal where the undertaking would 

yield an additional $7,500 in annual tax revenue. For tax year 2017, the school district selected 

138 properties to appeal out of 520,000 properties, and all were commercial.

We held that the school district’s idiosyncratic and subjective selection of underassessed 

properties was arbitrary and deliberately exempted from review numerous properties that could 

have yielded an additional $7,500 in annual tax revenue. We held that the “systematic disparate 

enforcement of the tax laws” created the violation of the Uniformity Clause. Id. at ___, slip op. at 

15 (citing Valley Forge, 163 A.3d at 978). 

18 Because we have determined that the School District’s implementation of its tax assessment 

appeals policy has violated the Uniformity Clause, we need not address Taxpayer’s remaining 

constitutional challenges.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Downingtown Area School District : CASES CONSOLIDATED

:

v. : No. 92 C.D. 2022

:

Chester County Board of Assessment :

Appeals :

:

Tax Parcel No.: 33-5-43.3 :

:

Appeal of: Marchwood Apartments :

Owners LLC :

Downingtown Area School District :

:

v. :

: No. 93 C.D. 2022

Chester County Board of Assessment :

Appeals :

:

Tax Parcel No.: 33-5-43.2 :

:

Appeal of: Marchwood Apartments :

Owners LLC :

O R D E R

AND NOW, this 6

th day of October, 2023, the January 14, 2022, order 

of the Court of Common Pleas of Chester County is REVERSED.

 

MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Downingtown Area School District : CASES CONSOLIDATED

 :

v. : No. 92 C.D. 2022

 : Argued: March 7, 2023

Chester County Board of Assessment :

Appeals :

 :

Tax Parcel No.: 33-5-43.3 :

 :

Appeal of: Marchwood Apartments :

Owners LLC :

:

Downingtown Area School District :

:

v. : No. 93 C.D. 2022

:

Chester County Board of Assessment :

Appeals :

:

Tax Parcel No.: 33-5-43.2 :

:

Appeal of: Marchwood Apartments :

Owners LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

DISSENTING OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: October 6, 2023

The Policy of the Downingtown Area School District (School District) for 

determining which property assessments to appeal was based on a specific monetary 

threshold and was implemented without regard for a real property’s classification, 

sub-classification, or ownership, and therefore, respectfully, I do not believe it was 
RCJ – 2

implemented arbitrarily or discriminatorily, as the majority finds. For this reason, I 

would hold that the Policy does not violate the Uniformity Clause of the 

Pennsylvania Constitution, PA. CONST. art. VIII, § 1,1 or the Equal Protection Clause 

of the United States Constitution, U.S. CONST. amend. XIV,

2 and is not inconsistent 

with the Pennsylvania Supreme Court’s holding in Valley Forge Towers Apartments 

N, LP v. Upper Merion Area School District, 163 A.3d 962 (Pa. 2017) (Valley 

Forge), and its progeny. Therefore, I must respectfully dissent. 

In Valley Forge, the Pennsylvania Supreme Court held that the school 

district’s preliminary objections should not have been sustained because the 

appellant’s complaint had “set[] forth a valid claim that the [s]chool [d]istrict’s 

appeal policy violate[d] the Uniformity Clause.” 163 A.3d at 980. Upon noting that 

a salient aspect of the parties’ dispute involved the manner in which this Court had 

understood the Supreme Court’s pronouncements regarding the comparative taxfairness requirements of the Uniformity Clause and the federal Equal Protection 

Clause, the Valley Forge Court summarized two precepts it had previously 

articulated and found relevant to its analysis therein as follows: 

First, all property in a taxing district is a single class, and, as a 

consequence, the Uniformity Clause does not permit the government, 

including taxing authorities, to treat different property subclassifications in a disparate manner. Second, this prohibition applies 

1 The Uniformity Clause of the Pennsylvania Constitution provides that “[a]ll taxes shall 

be uniform, upon the same class of subjects, within the territorial limits of the authority levying 

the tax, and shall be levied and collected under general laws.” PA. CONST. art. VIII, § 1. This 

Court has held that the Uniformity Clause ensures that “a taxpayer should pay no more or no less 

than [the taxpayer’s] proportionate share of the cost of government.” In re Sullivan, 37 A.3d 1250, 

1254-55 (Pa. Cmwlth. 2012) (quoting Deitch Co. v. Bd. of Prop. Assessment, Appeals & Rev. of 

Allegheny Cnty., 209 A.2d 397, 401 (Pa. 1965)). 

2 The Equal Protection Clause states, in pertinent part, that “No State shall . . . deny to any 

person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.
RCJ – 3

to any intentional or systematic enforcement of the tax laws, and is not 

limited solely to wrongful conduct. 

Id. at 975 (citations omitted). The Supreme Court held that these principles lead to

a conclusion “that a taxing authority is not permitted to implement a program of only

appealing the assessments of one sub-classification of properties, where that subclassification is drawn according to property type—that is, its use as commercial, 

apartment complex, single-family residential, industrial, or the like.” Id. at 978. 

The Supreme Court explained that it did not disagree with the result this Court 

reached in In re Springfield School District, 101 A.3d 835 (Pa. Cmwlth. 2014), 

wherein property owners had challenged a school district’s policy of utilizing a

monetary threshold to determine which properties to appeal and “did not allege a

scheme involving disparate treatment of property sub-classifications drawn 

according to property type or the status of its owner as a resident or non-resident of 

the taxing district.” Valley Forge, 163 A.3d at 975 n.13. The Supreme Court noted 

that, instead, the school district appealed only “properties for which a recent sales 

price was at least $500,000 greater than its implied market value, defined as the 

assessed value divided by the” county’s Common Level Ratio (CLR). Id. at 979

n.19. The Supreme Court stressed:

We pause at this juncture to clarify that nothing in this opinion should

be construed as suggesting that the use of a monetary threshold—

such as the one challenged in Springfield—or some other selection 

criteria would violate uniformity if it were implemented without 

regard to the type of property in question or the residency status of

its owner. Such methodologies are not presently before the Court.

Id. at 979 (footnote omitted) (emphasis added).

In addition, Section 8855 of the Consolidated County Assessment Law (Law)

provides in relevant part that “[a] taxing district shall have the right to appeal any 
RCJ – 4

assessment within its jurisdiction in the same manner, subject to the same procedure 

and with like effect as if the appeal were taken by a taxable person with respect to 

the assessment[.]” 53 Pa.C.S. § 8855. However, when a taxing authority exercises 

this discretionary power, it must do so within “constitutional boundaries.” Valley 

Forge, 163 A.3d at 980. Those constitutional boundaries are violated if a taxing 

authority has a policy to appeal only “the assessments of one sub-classification of 

properties, where that sub-classification is drawn according to property type[.]” Id. 

at 978.

Most recently this Court discussed Valley Forge and our previous decision in 

Kennett Consolidated School District v. Chester County Board of Assessment 

Appeals, 228 A.3d 29 (Pa. Cmwlth.) (Kennett), appeal granted, 240 A.3d 611 (Pa. 

2020), appeal dismissed as improvidently granted, 259 A.3d 890 (Pa. 2021), as

follows:

In Kennett, we considered a taxpayer’s challenge to a trial court’s denial 

of its motion to quash the school district’s assessment appeal of its 

property. 228 A.3d at 31. Relying on the Supreme Court’s analysis in

Valley Forge, the taxpayer argued that the school district violated the 

Uniformity Clause by: (1) appealing the assessments of only 

commercial properties; and (2) setting a monetary threshold targeting 

properties underassessed by $1 million. Id. at 34.

On appeal, this Court affirmed the trial court’s ruling, holding:

We conclude that [the school district’s] appeal practices

did not violate the Uniformity Clause. Under Valley 

Forge, [the school district’s] actions were constitutionally 

firm. The record reflects that [the school district]

intentionally disregarded the type of property and, thus, it 

cannot be said that [its] actions in appealing the 

assessments of commercial properties were intentional. 

Where, as here, a taxing authority intentionally disregards

the type of property when deciding what property 

assessments to appeal, its conduct is inherently not 
RCJ – 5

deliberate. Moreover, [the school district’s] actions did 

not systematically target commercial properties, but,

rather, only focused on properties that would be worth the 

cost and expense of an appeal. Valley Forge makes it 

abundantly clear that there is a balance to be struck 

between a school district’s ability to appeal an assessment 

and the Uniformity Clause. Thus, a school district’s policy 

that attempts to be fiscally responsible by only appealing 

assessments that would generate enough revenue to justify 

the cost of the appeal does not violate the Uniformity 

Clause.

Id. at 37 (emphasis added). We further clarified that “[t]he mere fact 

that all appealed properties were commercial does not per se create 

a violation of the Uniformity Clause. This is especially so in light of

[the school district’s] intentional disregard for the nature of the 

property.” Id. at 39 (emphasis added). Thus, Kennett reiterates the 

principle that selection of properties for assessment based solely on 

property type violates the Uniformity Clause, whereas selection 

based on financial reasons, without regard to property type, does

not.

Duffield House Assocs., L.P. v. City of Philadelphia, 260 A.3d 329, 343-44 (Pa. 

Cmwlth. 2021) (Duffield House) (italics in original, boldface type added).

A few weeks before our Duffield House decision, this Court decided GM 

Berkshire Hills LLC v. Berks County Board of Assessment, 257 A.3d 822 (Pa. 

Cmwlth. 2021) (GM Berkshire I), affirmed by an equally divided court, 290 A.3d 

238 (Pa. 2023) (GM Berkshire II).

3

 In GM Berkshire I, GM Berkshire challenged 

the school district’s use of recently sold properties as a basis for selecting properties 

for tax appeal and maintained that a consideration of only a subclass of properties

that were under new ownership violates both the federal Equal Protection Clause and 

Pennsylvania’s Uniformity Clause. This Court concluded that

3 Where our Supreme Court is equally divided, the effect of the split is affirmance of the 

intermediate appellate court decision. Borkey v. Township of Centre, 847 A.2d 807, 814 (Pa. 

Cmwlth. 2004).
RCJ – 6

the [d]istrict’s method of selecting properties for assessment appeals 

comports with the Commonwealth’s present jurisprudence on the 

subject of property assessment uniformity. Using recent sales prices as 

part of the selection of properties for appeals is a quantitative method 

of reasonably ascertaining a property owner’s fair share of the tax 

burden, because such figures represent the kind of evidence of market 

value that a school district must show when it appeals an assessment. 

See Aetna Life Ins. Co. v. Montgomery Cnty. Bd. of Assessment

Appeals, 111 A.3d 267, 283 (Pa. Cmwlth. 2015) (“evidence of private 

sales is admissible to determine fair market value”).

Further, as applied by the [d]istrict, this method employs a purely 

economic approach that is practical for the [d]istrict yet does not 

improperly differentiate based on property type, which is the type 

of approach our Supreme Court condoned in Valley Forge [] and 

which this Court subsequently accepted in Punxsutawney [Area 

School District v. Broadwing Timber, LLC (Pa. Cmwlth., No. 1209 

C.D. 2018, filed October 29, 2019),] and East Stroudsburg [Area 

School District v. Meadow Lake Plaza, LLC (Pa. Cmwlth., No. 371 

C.D. 2018, filed October 17, 2019)]. As such, we agree with the trial 

court that the [d]istrict’s method did not violate either the Equal 

Protection Clause of the [United States] Constitution or the Uniformity 

Clause of the Pennsylvania Constitution.

GM Berkshire I, 257 A.3d at 835 (emphasis added). We also explained that we had 

affirmed the trial court in Kennett based upon Valley Forge, Springfield Township,

and Punxsutawney,

4

[b]ecause the evidence established that the school district used a

purely monetary approach and had not intentionally selected 

property assessments to appeal based on property type (commercial 

vis-à-vis residential), we held [in Kennett] no constitutional violation 

occurred, reasoning that the school district’s “disregard of property type 

cannot logically equate to unlawful treatment based upon property

type.” [228 A.3d] at 39. We also rejected [commercial property 

owner’s] as-applied or disparate impact claim: “The mere fact that all

4

In Punxsutawney, this Court stated that even though the school district’s practice had not 

resulted in any appeals of residential properties, the monetary threshold employed was facially 

neutral and did not foreclose the possibility of that occurrence in the future. Id., slip op. at 9. 
RCJ – 7

appealed properties were commercial does not per se create a 

violation of the Uniformity Clause.” Id.

GM Berkshire I, 257 A.3d at 832. As previously stated, an equally divided 

Pennsylvania Supreme Court recently affirmed this Court’s decision in GM 

Berkshire I that the school district’s method of selecting properties for appeal did 

not violate the Uniformity Clause. See GM Berkshire II, 290 A.3d at 238.

Herein, the School District appealed the assessment of two separate tax 

parcels (Property) owned by Marchwood Apartments Owners LLC (Taxpayer), 

which consist of, respectively, 6.1 and 37.5 acres, to the Chester County (County) 

Board of Assessment Appeals (Board), which upheld the assessment. The School

District appealed that determination to the Court of Common Pleas of Chester 

County (common pleas), and, prior to the de novo hearing, the parties stipulated that 

the Fair Market Value (FMV) of the Property for the relevant years was: for the 6.1 

acre parcel, $11,035,500 as of January 1, 2020, and $11,445,000 as of January 1, 

2021, and January 1, 2022; and for the 37.5 acre parcel, $67,789,500 as of January 

1, 2020, and $70,305,000 as of January 1, 2021, and January 1, 2022.5 (Reproduced 

Record (R.R.) at 28a-30a.) The parties further stipulated that the CLR for the County 

set by the State Tax Equalization Board was 49.3% for 2020, 47% for 2021, and 

45% for 2022, although they did not stipulate that this was the ratio that should be 

applied to the FMV due to Taxpayer’s argument that a rate comparable to that of 

other apartment complexes, which were also claimed to be underassessed, rather 

than the CLR, should apply. (Id. at 29a-30a.) This left the issue of the School 

District’s authority to initiate the assessment appeals and if it did so constitutionally. 

5 The dates for these stipulations vary throughout the record, common pleas’ Order, and 

the parties’ briefs. These dates are derived from the transcript during the de novo hearing. 

(Reproduced Record at 28a-30a.) 
RCJ – 8

The School District presented its assessment record for the Property to establish its 

prima facie case. Taxpayer then presented evidence in an attempt to rebut the 

assessment record and to establish the Policy, and Section 8855 of the Law, violated 

the federal Equal Protection Clause and the Uniformity Clause.

The School District initiated the assessment appeals in this matter through the 

Policy, which states, relevantly:

1. The Chief Financial Officer shall annually review recent real 

estate transactions and/or work with a third[-]party firm to 

identify properties that may be under[]assessed.

2. The administration shall provide to the Board a list of tax parcels 

which have been identified for consideration for a district-initiated 

real estate tax assessment appeal for the current year. Subject to 

review and approval of the Board, only property that may 

potentially result in total annual additional tax revenue of 

$10,000 or more to be collected in the aggregate by the taxing 

districts within the . . . School District as a result of an appeal 

will be included on this list.

(R.R. at 263a (emphasis added).) Per the deposition testimony of School District 

employees and School District School Board Directors:6the $10,000 threshold 

related to the amount of revenue increase that would be needed to offset the costs of 

an appeal; properties were chosen to appeal based on sales and independent 

appraisals; and between 2012, when the Policy became effective, and 2019, when 

the present assessment appeal was filed, the School District had appealed the 

assessments of a variety of properties, including commercial properties, apartment 

complexes, and one residential property. (Id. at 413a-15a, 419a, 421a, 482a, 488a90a.) 

6 This testimony was derived from designated portions of these witnesses’ depositions that 

Taxpayer moved into the record. 
RCJ – 9

The School District’s Business Manager described the process of choosing 

what properties to present to the Board for recommendation, which included 

calculating the estimated costs of prosecuting the appeals and the potential increase 

in annual revenue if successful. (Id. at 377a-89a, 393a-97a.) Business Manager 

indicated the Property was added because “it came to the attention of Valbridge 

[Property Advisors (Valbridge)] and [the School District’s] solicitors that the 

[Property] met the threshold.” (Id. at 382a.) The School District’s Accounting 

Supervisor, who worked for the District for almost 20 years at the time of her 

deposition, explained the School District’s historic practice of utilizing recent sales

data to identify properties whose assessments it would appeal. (Id. at 446a-52a.) 

Accounting Supervisor indicated that the Property was not identified by Valbridge,

but was added to the list by Business Manager due to its recent sale at a value that 

would meet the Policy’s threshold, which Accounting Supervisor confirmed through 

her review of property sales records. (Id. at 456a, 458a, 461a-62a, 464a-65a.)

In 2019, the School District hired Valbridge to review properties within the 

School District. (Id. at 38a-39a.) Valbridge identified 15 properties believed to be 

underassessed and that would meet the Policy’s $10,000 threshold. Taxpayer called 

Reaves C. Lukens, III (Mr. Lukens), who works for Valbridge, to testify about the 

process of selecting properties for the School District to appeal. Mr. Lukens 

testified: he limited his review of residential properties to those having more than 

3,500 square feet because anything smaller would be unlikely to meet the Policy’s 

threshold; the choice of appealing 15 properties was based on the belief that this was 

a manageable number and a concern if a change in law occurred it would reduce the 

School District’s “exposure” or “risk”; and he suspected there may be more than 15 

properties that could be considered underassessed but he stopped when he reached 
RCJ – 10

15 properties. (Id. at 38a-42a, 44a-45a, 48a-49a, 53a-54a, 56a-57a, 61a-62a.) Mr. 

Lukens agreed it was “possible” “that there were likely residences that would satisfy 

the . . . threshold,” and that one commercial property was not considered because the 

attorney representing the property owner was “very aggressive” on a particular tax 

theory, which he considered credible in that case, that could result in the School 

District losing revenue if it filed an appeal and lost. (Id. at 48a-49a, 63a-67a.) 

Mr. Lukens agreed there was not a “hard and fast rule with respect to the 

methodology [he] used,” but disagreed with the description of his review of the data 

as being “rough justice.” (Id. at 54a.) Mr. Lukens described the process to identify 

properties to appeal, which involves downloading a list of commercial properties 

and residential properties over 3,500 square feet in the School District, breaking 

down the commercial properties into different types, identifying average 

assessments per square footage or per unit based on sales prices as to the different 

types of properties, determining whether any appear, preliminarily, to be sufficiently 

underassessed to warrant appeal, and, if so, reviewing the properties on an individual 

basis. (Id. at 49a-54a.) Mr. Lukens uses the County’s assessment records, Multiple 

Listing Service, ChescoViews, ChescoPon, CoStar, apartments.com, and general 

“Googling” to identify properties. (Id. at 52a-53a.) Mr. Lukens agreed an accurate 

description of the process was that Valbridge “would look at each property . . . [and] 

bring them [sic] up and kind of review each property on a case[-]by[-]case basis” to 

determine “the relative merits or concerns about the potential” to generate the 

additional $10,000 set forth in the Policy. (Id. at 54a-55a.) Mr. Lukens 

acknowledged the Property was not on his list, but was added by the School District. 

(Id. at 49a.)
RCJ – 11

Taxpayer also offered the expert testimony of Peter A. Angelides, Ph.D. (Dr. 

Angelides), who testified about his analysis relating to the School District’s 

assessment appeals for the 2020 tax year. Dr. Angelides explained due to the 

differing municipalities and tax rates, there were different amounts of increase in 

value that would be needed to meet the Policy’s threshold. (Id. at 101a-02a.) 

Although Dr. Angelides testified the $10,000 threshold has an exclusionary effect 

on single-family properties, he nevertheless found numerous residential singlefamily properties that were possibly underassessed at a level that warranted “further 

investigation” as to whether they would meet the Policy’s threshold amount, but 

were not appealed. (Id. at 106a-07a, 111a-13a, 119a.) On cross-examination, Dr. 

Angelides acknowledged, among other deficiencies, that the majority of the singlefamily properties he identified as being potentially underassessed were subject to 

“Act 319” or “Act 515”7 which meant that the properties were enrolled in programs 

that lowered their assessments, facts that Dr. Angelides did not take into account. 

(Id. at 127a-34a, 137a-39a; Supplemental Reproduced Record (S.R.R.) at 697a, 

701a.8)

Following the de novo hearing, common pleas found that the Policy was 

“simply stated,” did not instruct the School District to consider the type of property 

in deciding whether a property is underassessed and should be appealed, and did not 

7 Act 319 refers to the Pennsylvania Farmland and Forest Land Assessment Act of 1974, 

commonly known as the Clean and Green Law, Act of December 19, 1974, P.L. 973, as amended, 

72 P.S. §§ 5490.1-5490.13, which is a preferential tax assessment program that bases property 

taxes on use rather than fair market value. Act 515 refers to the Act of January 13, 1966, P.L. 

(1965) 1292, as amended, 16 P.S. §§ 11941-11948, and also provides preferential tax assessment 

treatment for enrolled properties. Both Act 319 and 515 encourage the preservation of lands for, 

inter alia, agricultural, forestry, and open space uses.

8 We observe that the Supplemental Reproduced Record uses “a” following the page 

number rather than “b” as required by Pennsylvania Rule of Appellate Procedure 2173, Pa.R.A.P. 

2173. 
RCJ – 12

limit the number of appeals that can be taken in a given tax year. (Common pleas 

Op. at 2.) Since the effective date of the Policy in 2012, the School District had filed 

an assessment appeal of one residential property, which was supported by 

Taxpayer’s own evidence. (Id. at 2-3.) Common pleas rejected Taxpayer’s 

arguments that the Policy and Section 8855 of the Law violated, both facially and as 

applied, the Uniformity Clause and the Equal Protection Clause. (Id. at 5-7.) It 

observed that, for the purposes of the Uniformity Clause, “absolute equality and 

perfect uniformity [are] not required,” all property in a taxing district is a single 

class, and a taxing authority cannot treat different property sub-classifications in a 

different manner. (Id.) 

Common pleas further explained that the $10,000 threshold, which was 

facially neutral and not dependent on classifications by property, did not, as 

Taxpayer argued, effectively eliminate appeals of residential properties, as at least 

one residential property had been appealed. (Id. at 7-8.) Common pleas held the 

use of a monetary threshold or cost-benefit analysis is permitted under precedent, 

including Valley Forge, GM Berkshire I, and Punxsutawney. (Id. at 8-10.) Common 

pleas concluded there could be no as-applied violation because the School District 

had, in fact, appealed a residential property’s assessment, and, even if only 

commercial properties had been appealed thus far, this would not mean the propertytype neutral Policy was unconstitutional. (Id. at 9 (citing Kennett, 228 A.3d 29).) 

Thus, common pleas held that Taxpayer had not met its burden of proving the 

unconstitutionality of the Policy itself or its application and that Section 8855 

authorized the appeal, and it accepted the stipulation of the parties regarding the 

Property’s FMV.
RCJ – 13

The majority reverses common pleas’ determination despite acknowledging

that the “[P]olicy uses a monetary threshold for identifying properties for tax 

assessment, which may be constitutional,” Downingtown Area School District v. 

Chester County Board of Assessment Appeals, __ A.3d __, __ (Pa. Cmwlth., Nos. 

92-93 C.D. 2022, filed October 6, 2023), slip op. at 16-17. Under the current state 

of the law, as discussed supra, including Valley Forge and GM Berkshire I, there is 

no dispute the Policy, which is based on a monetary threshold and is neutral with 

regard to property classification, sub-classification, and ownership, falls within the 

constitutional boundaries expected of taxing authorities in creating and using such 

policies. Bethlehem Area Sch. Dist. v. Bd. of Revenue Appeals of Northampton 

Cnty., 225 A.3d 212, 219 (Pa. Cmwlth. 2020).

The majority nevertheless concludes

[h]owever, [that] the School District has implemented its [P]olicy in an 

arbitrary fashion. First, it chose to appeal the assessments of 16 

properties even though it knew that there were many more properties in 

the School District that satisfied the monetary threshold. Second, [Mr.] 

Lukens testified that he “did not have a hard and fast rule with respect 

to the methodology [he] used” to identify properties, and he could not 

elucidate these flexible “rules” that he used. . . . R.R. 54[a]. He could 

only state that he was “trying to maximize the return to the School 

District.” . . . R.R. 49a, 55a. Third, [the Property] was not on [Mr.]

Lukens[’] list of properties whose assessments to appeal, and the 

School District offered no explanation for the later selection of the 

[Property] for an assessment appeal. Fourth, the School District 

rejected a commercial property that met the monetary standard for the 

sole reason that its counsel was aggressive. This selection criterion is 

discriminatory on its face and unacceptable as a matter of sound public 

policy.

Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 16. 

Respectfully, these conclusions are not supported by the record, which reflects 

that the School District’s choice to appeal 16 properties for 2019 was neither
RCJ – 14

arbitrary, discriminatory, nor a violation “of sound public policy.” Id. Rather, it is 

the majority’s conclusions that are inconsistent with the well-settled legal principles 

regarding the Uniformity Clause and the standard set forth by the Supreme Court in 

Valley Forge. 

First, it is unclear whether the School District “knew that there were many 

more properties in the School District that satisfied the monetary threshold.”

Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 16. While Mr. Lukens

testified he suspected there were other underassessed properties and it was 

“possible” there were single-family residences that “likely” were underassessed, he 

gave no indication that he advised the School District of these facts. (R.R. at 48a49a.)

Second, the majority’s proposition that seemingly all (or at least more than 

the 16) underassessed properties in the School District had to be appealed in a given 

tax year to avoid a violation of the Uniformity Clause is inconsistent with the wellsettled principle that “[t]axation [] is not a matter of exact science” and “absolute 

equality and perfect uniformity are not required to satisfy the constitutional 

uniformity requirement.” Clifton v. Allegheny County, 969 A.2d 1197, 1212 (Pa. 

2009) (citing Leonard v. Thornburgh, 489 A.2d 1349, 1352 (Pa. 1985)).9 “Indeed, 

some practical inequalities are anticipated, and rough uniformity with a limited 

9

See also City of Harrisburg v. Sch. Dist. of Harrisburg, 710 A.2d 49, 53 (Pa. 1998); 

Sablosky v. Messner, 92 A.2d 411, 416 (Pa. 1952) (“[T]axation is a practical matter” and the 

Uniformity Clause “requires merely substantial uniformity of taxation; absolute equality is 

impractical.”); Commonwealth v. S. Pa. Bus Co., 15 A.2d 375 (Pa. 1940) (“We have frequently 

pointed out that absolute equality is impracticable in taxation, and that the constitutional provision 

requires merely substantial uniformity.”); Wilson v. City of Philadelphia, 198 A. 893, 895 (Pa. 

1938) (“There is no such thing as perfect uniformity and equality in taxation. The best that can be 

done, and all that is required, is that it should approximate uniformity and equality as nearly as 

possible.”). 
RCJ – 15

amount of variation is permitted so long as the taxing scheme does not impose 

substantially unequal tax burdens.” Beattie v. Allegheny County, 907 A.2d 519, 530 

(Pa. 2006) (citing Leonard, 489 A.2d at 1352; Sablosky v. Messner, 92 A.2d 411, 

416 (Pa. 1952)) (emphasis added). One practical thing that must be considered is 

the number of appeals a taxing authority, like School District, and its representatives 

can reasonably handle in a given year. “Rough uniformity,” not “absolute equality 

and perfect uniformity” is what is mandated by the Pennsylvania Constitution, 

Clifton, 969 A.2d at 1210. Yet, perfection and absolute equality appears to be what 

the majority demands.

Third, the majority’s reliance on Mr. Lukens’ statement there was “no hard 

and fast rule,” Downingtown Area School District, __ A.3d at __, slip op. at 16, 

disregards the remainder of Mr. Lukens’ testimony. In that testimony, Mr. Lukens 

describes the process undertaken to find potential properties and perform a case-bycase assessment of properties, regardless of type, to determine if they would meet 

the threshold. (R.R. at 49a-54a.) Further, while the majority is correct that the 

Property was not on Mr. Lukens’ list, the record contradicts the majority’s statement 

that “School District offered no explanation for the later selection of the [Property] 

for an assessment appeal.” Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 

16. It is apparent from the deposition testimony of Accounting Supervisor that the 

Property was added to the list, with Business Manager’s approval, because it was

recently sold and a review of the sale reflected that a successful assessment appeal

would meet the Policy’s threshold. (R.R. at 456a, 458a, 461a-62a, 464a-65a.) The 

selection of the Property based on its status of being recently sold is consistent with 

both the Policy, which expressly authorizes the use of “recent real estate transactions 

. . . to identify properties that may be under[]assessed,” (id. at 260a), and, more 
RCJ – 16

importantly, GM Berkshire I, which specifically approved the use of recent real 

estate transactions as a constitutional means of choosing what properties’ 

assessments to appeal, 257 A.3d at 835. Thus, even if Mr. Lukens’ process was 

flawed, the means by which the School District chose to appeal the Property’s 

assessment was constitutionally sound. When Mr. Lukens’ entire testimony and the 

constitutionally sound explanation for why the Property was added to the list of 

assessments to appeal is considered, I cannot agree with the majority’s 

characterization of the School District’s actions as “a piecemeal implementation of 

this [P]olicy.” Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 17.

Fourth, the majority’s citation to evidence that an appeal of another 

commercial property was not filed due to counsel for that taxpayer being 

“aggressive” oversimplifies the School District’s decision. Downingtown Area Sch. 

Dist., __ A.3d at __, slip op. at 16. It was not merely that the taxpayer’s counsel was 

“aggressive,” id., but the fact that there was “a high risk of blowing up [in the School 

District’s] face on appeal because [the taxpayer] could argue [the property was] over 

assessed based on the dark store theory,” and it could cost the School District money 

if it lost. (R.R. at 63a-65a.) Indeed, Mr. Lukens described the taxpayer’s position 

as “credible.” (Id. at 66a.) It was decided that an appeal of this commercial property 

“was not meritorious because of the high risk,” meaning that if the School District

lost, it would “create a further under[ ]assessment of the property and that was not a 

risk worth taking.” (Id. at 65a.) It is not sound public policy or practical for a taxing 

authority to appeal a high risk property and risk defeating the very purpose of the 

appeal, increasing revenue. 

Moreover, the majority’s rationale is inconsistent with the standard set forth 

in Valley Forge and applied in other cases. Valley Forge requires that the “other 
RCJ – 17

selection criteria” used by a taxing authority, whether a monetary threshold or some 

other methodology, be implemented in a neutral manner without regard for 

property sub-classification. 163 A.3d at 979. In deeming the School District’s

“selection criterion [] discriminatory on its face” and a violation of the Uniformity 

Clause, Downingtown Area School District, __ A.3d at __, slip op. at 16, the majority 

interprets the term “implemented” without consideration of the entire context of the 

Supreme Court’s holding in Valley Forge, and effectively creates new criteria that 

must be met for a policy to be deemed constitutionally sound. Under the majority’s

criteria, in order for a taxing authority’s actions to be constitutional, it must establish

that it: has a neutral policy as to sub-classification of properties; used rigid 

methodology for identifying properties to appeal; attempted to find all properties 

that are underassessed; appealed all of those properties’ assessments without regard 

to the risks of such appeals and even if it could cost the taxing authority revenue;

and relied only on a third party’s identification of properties to appeal, if such party 

is hired, even if there are other neutral bases to that support the conclusion that a 

property is underassessed. This is not the standard of Valley Forge or our precedent, 

which recognizes that taxing authorities have discretion to choose what properties’ 

assessments to appeal, so long as that discretion is exercised “within constitutional 

boundaries.” Bethlehem Area Sch. Dist., 225 A.3d at 219 (citing Valley Forge).

The School District here did not treat property sub-classifications in a 

disparate manner as proscribed by Valley Forge, but acted in a fiscally responsible

manner by appealing tax assessments that would generate sufficient revenue to 

justify the cost of an appeal, appealing the number of assessments that could 

reasonably be handled in a given tax year, and avoiding appealing property 

assessments that could, ultimately, result in a loss of revenue. The practice here is 
RCJ – 18

permitted by Springfield Township and found to be constitutional under Valley 

Forge so long as the School District did not systematically target commercial 

properties or rely on other sub-classifications, which the evidence reflects it did not. 

When the standards set forth in Valley Forge and our precedent are applied to the 

record as a whole, both the record and law support common pleas’ determination 

that both the Policy and its implementation pass constitutional muster. 

The majority further concludes that 

the School District’s stated [P]olicy was to appeal assessments that 

would generate more than $10,000 in tax revenue. This will garner for 

the School District the entire benefit and leave over[ ]assessed property 

owners bearing an unfair share of the tax burden. Even so, the School 

District did not even attempt to capture each and every assessment that 

would meet the monetary threshold. The monetary threshold may have 

been neutral, but the implementation, perhaps too limited in scope, 

created a systematic and disparate treatment of taxpayers, both the 

over[ ]assessed and the under[ ]assessed.

Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 18. Respectfully, I believe 

the majority’s conclusions miss the mark. 

Of course, the School District, as would any taxing authority, sought to benefit 

itself when it appealed the Property’s assessment as being too low in order to

increase that assessment to raise revenue. That is the very purpose of that provision. 

The majority cites the unfair share of the tax burden placed on over assessed property 

owners, but those property owners have their own appeal rights under the Law 

through which they can challenge their properties’ assessments and seek a reduction.

Sections 8844, 8854 of the Law, 53 Pa.C.S. §§ 8844 (allowing for appeals to a 

county board of assessment appeals by property owners of valuations and 

assessments), 8854 (authorizing further appeals by both property owners and taxing 

authorities to county courts of common pleas and to the state’s appellate courts). To 
RCJ – 19

hold that a taxing authority’s appeal of a property’s tax assessment violates the 

Uniformity Clause and Equal Protection Clause because it does not also somehow

act to reduce the tax burden on over assessed property owners, who have their own 

appeal rights, effectively renders the relief afforded to taxing authorities illusory. 

And, as discussed supra, the Uniformity Clause does not require “absolute equality 

and perfect uniformity.” Clifton, 969 A.2d at 1212. Thus, contrary to the majority’s 

position, the School District was not required to “attempt to capture each and every 

assessment that would meet the monetary threshold,” Downingtown Area School

District, __ A.3d at __, slip op. at 18, as requiring it to do so would demand absolute 

and perfect equality. 

Finally, the majority’s statement relating to the alleged disparate treatment of 

underassessed properties could be viewed as meaning that the Uniformity Clause is 

violated because the Property is unfairly being treated differently than other

underassessed properties. Id. at __, slip op. at 2 (citing Taxpayer’s argument that 

the reassessment “has left the [Property] over assessed when compared to other 

apartment complexes in Chester County”), 18 (stating that the implementation of the 

Policy “created a systematic and disparate treatment of taxpayers, both the over

assessed and the under assessed”). Even if there was some disparate treatment, it is 

well-settled law that “a property owner is not entitled to have his assessment reduced 

to the lowest ratio of assessed value to market value to which he could point” where 

the property owner “has, in fact, not been assessed at more than the common level 

in the district.” Deitch Co. v. Bd. of Prop. Assessment, Appeals, & Rev. of Allegheny 

Cnty., 209 A.2d 397, 401 (Pa. 1965). Thus, the relief in such cases is the application 

of the CLR, not some lesser value, to the property at issue. Id.; Downingtown Area 

Sch. Dist. v. Chester Cnty. Bd. of Assessment Appeals (LTK Assocs., LP), 131 A.3d 
RCJ – 20

152, 157 (Pa. Cmwlth. 2015); Appeal of Sullivan, 37 A.3d 1250, 1256 (Pa. Cmwlth. 

2012); Smith v. Carbon Cnty. Bd. of Assessment Appeals, 10 A.3d 393, 402 (Pa. 

Cmwlth. 2010). Common pleas here applied the County’s CLR to the stipulated 

FMVs of the Property, which is consistent with our jurisprudence.

I do not disagree that “a countywide reassessment corrects all mistakes,”

Downingtown Area School District, __ A.3d at __, slip op. at 17, but until such time 

as the General Assembly requires those reassessments be performed at set intervals,

taxing authorities are authorized to appeal the assessments of properties they believe 

are bearing too little of the tax burden so long as they do so within the established

constitutional boundaries. Because I would conclude that the Policy and the School 

District’s implementation thereof stand on firm constitutional ground and believe 

that the majority sets the constitutional bar so high that it nullifies, for all practical 

purposes, the ability of taxing authorities to utilize Section 8855 of the Law, I must 

respectfully dissent.

__________________________________________

RENÉE COHN JUBELIRER, President Judge