author: CURRAN, Member,

text:
    Office of Disciplinary Counsel v. Davis

      Disciplinary Board Docket no. 17 D.B. 2004.
    April 28, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

CURRAN, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On February 5, 2004, Office of Disciplinary Counsel filed a petition for discipline against Delancey W. Davis, respondent. The petition charged respondent with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising out of his unauthorized practice of law while on inactive status in violation of an order of the Supreme Court of Pennsylvania. Respondent did not file an answer to petition for discipline. As a result, pursuant to Pa.R.D.E. 208(b), the allegations of the petition for discipline are deemed admitted.

A disciplinary hearing was held on July 14, 2004, before Hearing Committee 2.11 comprised of Chair Matthew R. Sorrentino, Esquire, and Members Robert J. Donatoni, Esquire, and Miles A. Jellinek, Esquire. Respondent appeared pro se.

The Hearing Committee filed a report on January 12, 2005, finding that respondent violated the rules as charged in the petition for discipline, and recommending that he be suspended for one year and one day.

This matter was adjudicated by the Disciplinary Board at the meeting of March 16,2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg, PA 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Delancey W. Davis, was born in 1939 and was admitted to practice law in the Commonwealth in 1983. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior history of discipline.

(4) Respondent was placed on inactive status by order of the Supreme Court dated November 27,1991. The effective date of this order was December 27, 1991.

(5) By letter dated December 6,1991, Elaine M. Bixler, assistant secretary of the Disciplinary Board, advised respondent that he had been placed on inactive status for failure to comply with Pa.R.D.E. 219, and he was required to comply with the Pennsylvania Rules of Disciplinary Enforcement and Disciplinary Board Rules.

(6) Ms. Bixler’s correspondence included enclosures of the order of the Supreme Court dated November 27, 1991, as well as standard guidance for attorneys placed on inactive status and various forms pertaining to notice of inactive status.

(7) Ms. Bixler’s December 6,1991 correspondence and enclosures were sent by certified mail, return receipt requested, to respondent’s last registered address of Satterlee, Stephens et al., 230 Park Avenue, New York, NY 10169.

(8) Respondent received Ms. Bixler’s correspondence and enclosures about December 11,1991.

(9) Respondent never filed with the Disciplinary Board a verified statement showing his compliance with the Disciplinary Board Rules.

(10) Respondent has been on inactive status from December 27, 1991, to the present.

(11) On October 26,2001, District Justice Stanley Scott, in Magisterial District 15-2-07, Lionville, Pennsylvania, entered a judgment for James Taylor against The Inn at Historic Yellow Springs.

(12) On November 26,2001, respondent, in his capacity as attorney for The Inn, filed or, caused to be filed, a notice of appeal and praecipe to enter rule to file complaint in the matter of Taylor v. The Inn.

(13) Shortly after November 26, 2001, Attorney Joseph Chupein telephoned respondent, at which time he informed respondent he was the attorney for James Taylor.

(14) Respondent identified himself as attorney for defendant, The Inn.

(15) Respondent and Attorney Chupein discussed the nature of the relative claims of the parties.

(16) On August 13, 2002, respondent and Attorney Chupein engaged in a settlement discussion.

(17) Between August 13,2002 and September 13,2002, respondent, in his capacity as attorney for The Inn, engaged in several conversations with Attorney Chupein regarding the matter.

(18) On September 13, 2002, Attorney Chupein transmitted the pre-arbitration memorandum of the Taylors to respondent.

(19) On September 20,2002, the arbitration hearing was conducted in the Taylor matter at which time respondent identified himself as attorney for The Inn, participated as an attorney by making statements to the arbitration panel, cross-examined the Taylor witnesses, and made closing argument to the arbitration panel.

(20) Shortly after October 23, 2002, respondent informed Attorney Chupein in a telephone conversation that respondent would not be representing The Inn at trial, but he would continue to discuss the potential for settlement.

(21) On October 28, 2002, respondent faxed a handwritten document to Attorney Chupein outlining various costs incurred by The Inn in connection with the event giving rise to the dispute.

(22) On November 15,2002, respondent left a message for Attorney Chupein indicating that The Inn had rejected the settlement offer.

(23) Throughout respondent’s entire representation of his client in the Taylor matter, he had not been reinstated to active status.

(24) With regard to the Taylor matter, respondent never notified or caused to be notified, by registered or certified mail, return receipt requested or in any manner whatsoever: (1) his client involved in the litigation; (2) the attorney for the adverse party; or (3) the court, of his transfer to inactive status and his consequent inability to act as an attorney.

(25) On October 25,2002, Attorney John B. Frock filed a complaint in Magisterial District 15-2-07, District Justice Stanley Scott, in the matter of Louis I. Mandich Jr. v. The Inn at Historic Yellow Springs.

(26) In early November 2002, respondent telephoned Attorney Frock and advised him that he was the attorney for The Inn. Respondent further advised that The Inn would be entering a defense and denied liability on the part of the defendants.

(27) On January 16, 2003, a hearing was held before Judge Scott.

(28) At the hearing, respondent introduced himself to Attorney Frock as counsel for the defendant and, upon request of Judge Scott, identified himself as counsel for defendant.

(29) At the January 16, 2003 hearing, Attorney Frock advised the court that he believed respondent was not entitled to practice law in Pennsylvania.

(30) Attorney Frock provided both respondent and Judge Scott with a copy of certification from Suzanne Price, attorney registrar of the Disciplinary Board, which certified that respondent was not registered as an active member of the Pennsylvania bar and was not entitled to practice before any Pennsylvania court or District Justice.

(31) After being provided with the certification, respondent represented to Judge Scott that:

(a) Respondent was permitted to practice law;

(b) He had a Pennsylvania attorney identification number, but he could not produce it at that moment;

(c) He had served in the attorney general’s office or the district attorney’s office for years in New York and Washington;

(d) He had moved to Pennsylvania in 1991; and

(e) There had been a mistake and he would take steps to correct the error.

(32) Thereafter, Judge Scott informed respondent he could not represent the defendant and directed respondent to straighten out the matter. He further granted defendants a continuance so they could either obtain other counsel or be assured that respondent’s status to practice law was resolved.

(33) On February 20, 2003, a hearing was conducted before Judge Scott in the Mandich matter, at which time the defendants appeared pro se and respondent did not appear.

(34) Throughout respondent’s entire representation of his client in the Mandich matter, respondent had not been reinstated to active status.

(35) With regard to the Mandich matter, respondent never notified or caused to be notified, by registered or certified mail, or in any manner whatsoever: (a) his client involved in the litigation; (2) the attorney for the adverse party; or (3) the court, of his transfer to inactive status and his consequent inability to act as a lawyer.

(36) On April 24, 2002, Keith A. Raquet served on respondent a complaint in civil action in the matter of Keith A. Raquet v. The Inn at Historic Yellow Springs.

(37) Respondent accepted service of the document and indicated his relationship as attorney for defendant.

(38) On May 20,2002, a hearing was conducted in the Raquet case before Judge Stanley Scott of Magisterial District 15-2-07.

(39) At the May 20, 2002 hearing, respondent entered his appearance and represented himself to the court as attorney for defendant; he cross-examined witnesses; and made legal argument to Judge Scott.

(40) On June 10, 2002, respondent filed, or caused to be filed, a notice of appeal in the Raquet matter.

(41) Between November 20,2002 and January 16,2003, respondent and Mr. Raquet engaged in nine telephone conversations and two face-to-face meetings in which respondent held himself out as attorney for the defendants in an attempt to resolve the outstanding discovery issues.

(42) On January 24, 2003, an arbitration hearing was scheduled to be held in the Raquet matter in the Court of Common Pleas of Chester County.

(43) At the January 24,2003 hearing:

(a) Respondent identified himself as attorney for the defendants;

(b) Mr. Raquet objected to respondent’s representation on the basis that he had not entered his appearance;

(c) Respondent acknowledged that he had not entered his appearance but offered to formally do so after the proceeding;

(d) Respondent contended that his presence before the arbitration panel was a form of entry of appearance which should be sufficient;

(e) Mr. Raquet provided the panel with a copy of a certification dated January 24, 2003, from Suzanne Price, attorney registrar, indicating that respondent was transferred to inactive status.

(f) Respondent acknowledged his inactive status and indicated that it was only a fee issue that he was currently in the process of resolving with the Disciplinary Board;

(g) Respondent requested permission to proceed with the case;

(h) After conference, the arbitration panel informed both parties that respondent would not be allowed to represent the defendant; and

(i) The defendant refused to proceed with the arbitration.

(44) Throughout respondent’s entire representation of his client in the Raquet matter, respondent had not been reinstated to active status.

(45) With regard to the Raquet matter, respondent never notified or caused to be notified, by registered or certified mail, or in any manner whatsoever: (1) his client involved in the litigation; (2) the attorney for the adverse party; or (3) the court, of his transfer to inactive status and his consequent inability to act as an attorney.

(46) At the disciplinary hearing, respondent acknowledged that when he appeared in the Taylor, Mandich and Raquet matters, he was representing his client as an attorney.

(47) From 1982 to 1987, respondent was a Pennsylvania Deputy Attorney General, and during that time he remitted his attorney registration fee and received his Pennsylvania license to practice each year.

(48) Since being placed on inactive status in 1991, respondent has not paid his annual fee, nor has he been in contact at all with the Disciplinary Board relating to paying his annual fee.

(49) Respondent had in his possession, at the time of the disciplinary hearing, a Pennsylvania license to practice law that expired July 1, 1987.

(50) In addition to representing The Inn while he was on inactive status, respondent participated as an attorney in his mother’s and mother-in-law’s estate matters and negotiated with the IRS in the appellate division.

(51) Respondent could not provide an explanation as to why he believed he was entitled to practice law despite not having paid his annual fee in over 13 years, and despite not having a current license card.

(52) Respondent believed he was not doing anything that he considered legally involved.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.16(a)(1) — A lawyer shall not represent a client, or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in a violation of the Rules of Professional Conduct or other law.

(2) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(4) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(5) Pa.R.D.E. 217(d) — A formerly admitted attorney transferred to inactive status shall not accept any new retainer or engage as an attorney for another in any new case or legal matter of any nature.

(6) Pa.R.D.E. 217(j) — A formerly admitted attorney is precluded from engaging in law-related activities except in accordance with the detailed requirements of this rule, and a formerly admitted attorney is prohibited from representing himself or herself as a lawyer or person of similar status.

IV. DISCUSSION

Respondent has been on inactive status and not authorized to practice law in Pennsylvania since December 27, 1991. Notwithstanding this fact, respondent represented, as an attorney, The Inn at Historic Yellow Springs in three separate matters.

Respondent received notice of his transfer to inactive status and inability to practice law on December 11,1991. Moreover, respondent has not paid his annual fee nor had any contact with the Disciplinary Board since 1991. Respondent provided no explanation regarding his justification for practicing law in Pennsylvania, other than to state that he did not believe he was doing anything he considered to be legally involved.

The record is unequivocally clear that respondent was engaging in legal matters as an attorney when he represented his client in three different suits. He identified himself as the attorney for his client. He appeared at arbitrations and in court on behalf of his client, filed documents and engaged in settlement discussions. Respondent cross-examined witnesses and made closing arguments. Respondent clearly knew he was acting as an attorney and to claim otherwise is disingenuous.

In January 2003, respondent was specifically confronted by District Justice Stanley Scott and Attorney John Frock with allegations of his inability to practice law. At that time, respondent stated to the district justice that he was permitted to practice law and had a Pennsylvania attorney identification number, but could not produce it at that moment. Respondent claimed the issue of his status was the result of a mistake and he would correct it. District Justice Scott did not permit respondent to represent his client and continued the hearing. Less than two weeks later respondent appeared at an arbitration hearing at the Chester County Courthouse and identified himself as the attorney for The Inn at Historic Yellow Springs. Again, when confronted about his status as an attorney, respondent claimed that it was simply a fee issue and he was currently resolving it. He requested permission to proceed with the case, which was denied by the arbitration panel. Respondent’s false statements to Judge Scott and to the arbitration panel were designed to create the impression that respondent’s inactive status was a technicality that could easily be remedied.

The board and the court have previously considered cases of practicing law while on inactive status. Depending on the presence of aggravating and mitigating factors and the degree of willfulness exhibited, suspensions ranging from three months to two years have been imposed in recent cases. Several recent cases have resulted in suspensions of one year and one day. In Office of Disciplinary Counsel v. Brown, 64 D.B. 2003, 954 Disciplinary Docket no. 3 (Pa. Oct. 15, 2004), Mr. Brown was employed as a part-time public defender in Erie County. While on inactive status, he defended at least 97 criminal defendants from January 2001 to February 2002. In Office of Disciplinary Counsel v. Forman, 70 D.B. 2001, 799 Disciplinary Docket no. 3 (Pa. Jan. 31, 2003), Mr. Forman continued to practice law for 12 years while on inactive status. In the matter of Office of Disciplinary Counsel v. Harrigan, 123 D.B. 2000, 782 Disciplinary Docket no. 3 (Pa. Nov. 25, 2002), Mr. Harrigan was placed on inactive status for failure to comply with his continuing legal education. While on inactive status, the attorney used letterhead and held himself out as a practicing attorney. He had a long history of transfers to inactive status for failure to fulfill his administrative responsibilities regarding his law license, and had a history of two informal admonitions, one of which was for practicing law while on inactive status.

The only mitigation produced by respondent was his lack of prior discipline since his bar admission in 1983. Respondent offered no character witnesses and no plausible explanation for his misconduct.

Accordingly, the board is persuaded that the totality of the facts of record and the sanctions imposed in prior similar matters support a period of suspension of one year and one day for respondent.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Delancey W. Davis, be suspended from the practice of the law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Members Sheerer, Wright and Suh dissented and would recommend a three-year suspension.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 16,2005 adjudication.

ORDER

And now, July 22, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated April 28,2005, it is hereby ordered that Delancey W. Davis be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: YOUNGE, J,

license: Public Domain

text:
    Campbell v. Temple University

      Neil I. Mittin, for plaintiffs.

      Roland J. Atkins, for defendant Temple.

      Linda S. Battistini, for defendant City of Philadelphia.
    November 10, 2005
   YOUNGE, J,

I. PROCEDURE

Plaintiffs, Juanita Davidson Campbell and William Campbell, appeal this court’s denial of their motion to enforce the settlement agreement. Defendant, Temple University, appeals from this court’s granting of plaintiff’s motion for post-trial relief awarding a new trial limited to the issue of damages. Defendant also appeals this court’s denial of its motion for post-trial relief seeking a new trial on the issues of liability and damages.

The trial errors averred by plaintiff, William Campbell, will be incorporated into the discussion of the claims raised by plaintiff, Juanita Davidson Campbell, in that his cause of action rests in loss of consortium. The City of Philadelphia raises no claims on appeal because the jury found that it was not negligent. N.T., 11/18/04, 26. Prior to trial, the Honorable Sandra M. Moss signed an order releasing the Commonwealth of Pennsylvania Department of Transportation from this case by stipulation of the parties. Order (11/9/04).

II. FACTS

Plaintiff, Juanita Davidson Campbell, brought this action against the defendant, Temple University, for injuries suffered when she slipped and fell while crossing from the east side of North Broad Street to the west side.

The plaintiff received an invitation directly from the defendant to attend a graduation ceremony that was being held on September 6, 2001, in Mitten Hall located on defendant’s campus. N.T., 11/15/04, 63-64. September 6,2001 was a clear, sunny day, and the plaintiff drove her automobile to the ceremony and parked on the west side of Broad Street in front of McGonigle Hall. She walked north on Broad Street to the intersection of Broad and Berks Mall and crossed Broad Street from west to east to get to Mitten Hall, which is located on the opposite side of Broad Street. Id., 64. At the conclusion of the ceremony, the plaintiffleft Mitten Hall and began to return to her car by walking in the opposite direction along the same route she previously used to get to Mitten Hall. When she reached the west side of Broad Street, the plaintiff alleged that she tripped over a dropped curb, that is, a curb that is sunken below the level of the sidewalk. Id., 66-67. This curb had dropped between an inch and an inch and three quarters below sidewalk. Id., 82.

The plaintiff’s most noteworthy injuries were a fracture to the right elbow and a fracture to the left wrist. The left wrist was fractured to the extent that the bone protruded upward but not through the skin. Both fractures required surgery and a T-buttress plate made out of titanium steel with five screws was placed in the plaintiff’s left wrist. Id., 67-68. The plaintiff lost time from work due to these injuries and needed a personal assistant for several weeks after the accident to take care of her daily needs. Id., 73. The plaintiff also received other injuries such as bruises to her face and forehead and minor cuts and scrapes. Id, 68. The plaintiff incurred $24,281.28 in medical expenses as a result of her fall. N.T., 11/18/04, 121. This dollar amount of medical expenses figured prominently in this court’s rulings on plaintiff’s motion for a new trial on damages.

At the time of trial, the plaintiff was still suffering from what she argued were permanent residual problems, such as lack of movement in her fingers and swelling in her hand. N.T., 11/15/04, 71. She was unable to close her left hand and make a fist. Id., 74. The defendant’s medical expert, Dennis McHugh M.D., admitted that the injury to plaintiff’s wrist was serious and necessitated a second surgery to remove the plate in her wrist. Id., 71.

In defense of this action, the defendant argued that it did not cause the plaintiff’s injuries. Id., 84. It argued that the plaintiff had not tripped over the dropped curb, but fell elsewhere in the street. N.T., 11/17/04,88. It also argued that it was unaware of the dropped curb and that another entity might have caused the curb to drop suddenly by conducting construction activities in the area. N.T., 11/17/04, 90. The defendant also raised the issue of the plaintiff’s comparative negligence. It pointed out that the plaintiff would not have fallen if she had watched where she was walking. Id., 85. It also pointed out that the curb within the confines of the crosswalk was in perfect condition, and that if the plaintiff had remained within the crosswalk, she would not have tripped on the dropped curb. Id., 91. The defendant also attempted to have the jury instructed that the City of Philadelphia was responsible for the plaintiff’s injuries because it was primarily responsible for the maintenance and repair of the curb. Def.’s proposed points for charge nos. 26 and 27.

This court oversaw extensive settlement discussions between the parties prior to and during trial. The defendant made a $75,000 offer to settle the lawsuit prior to trial, but this offer was rejected. The defendant maintained the $75,000 offer at other points throughout the negotiations. Id., 16. On the second day of jury deliberations, the plaintiff accepted the defendant’s offer to settle the case; however, the defendant responded that the offer had lapsed as of the start of trial and was no longer available to be accepted. Id., 5. In contrast to the defendant’s argument, it was the understanding of this court and all of the attorneys involved in the litigation, with the exception of counsel for the defendant, that the defendant’s offer remained on the table as of the first day of jury deliberations and that it was never withdrawn. Id., 5-6. This court declined to rule on whether it could enforce the settlement agreement until a later date and allowed the jury to render its verdict. Id., 6.

The jury found that the defendant was negligent and that such negligence was the factual cause of the plaintiff’s injuries. The jury also found that the plaintiff’s comparative negligence accounted for 50 percent of the accident. They initially awarded the plaintiff $ 12,140.64 for medical expenses and $12,140.64 for pain and suffering. The fact that this award equaled exactly one-half of the plaintiff’s medical expenses suggested that the jury might have reduced this award in accordance with its finding of comparative negligence. To protect the integrity of the jury verdict, this court instructed the jury to reconsider its ruling to ensure that it had not erroneously, and in violation of this court’s prior instruction, reduced the award in accordance with its finding of comparative negligence. Upon reconsideration, the jury returned to the courtroom, having increased each of the aforementioned categories by 100 percent, such that when this court molded the verdict in accordance with the amount of comparative negligence found, the final award equaled exactly the plaintiff’s requested amount for medical expenses.

Following trial, plaintiff filed a motion for post-trial relief wherein she sought a new trial on the issue of damages or in alternate additur. The plaintiff also filed a motion to enforce the settlement agreement that it alleged had been accepted prior to the jury rendering its verdict. The defendant opposed both of these motions and filed a motion for post-trial relief wherein it listed 28 alleged trial errors and sought a new trial on the issue of liability and damages. The defendant then submitted a memorandum of law in support of its motion for post-trial relief following production of the notes of testimony. This memorandum discusses most of the alleged trial errors raised in the motion for post-trial relief, but it contains headings and reorganizes the issues into coherent arguments. The memorandum also abandoned the pursuit of several issues that were listed in the motion for post-trial relief, but were truly lacking in merit.

Two hearings and a conference were held in an attempt to resolve the motions that were filed post-trial. The first hearing was held before this court on December 22, 2004. Due to the complex issues involved with enforcing the settlement agreement, Judge Sandra Mazer Moss then held a conference on January 6, 2005. A final hearing was held before this court on March 18, 2005. At the March hearing, this court granted the plaintiff’s motion for a new trial on the issue of damages; all other motions were denied. This court’s ruling on all three post-trial motions has now been called into question by the pending appeal.

III. DISCUSSION

This court will discuss its reason for granting the plaintiff’s motion for post-trial relief on the issue of damages in heading A of this section. The plaintiff’s motion to enforce the settlement agreement will then be dealt with in heading B. For the sake of ease, this court will respond to the issues raised in defendant’s memorandum of law in support of its motion for post-trial relief before discussing the issues raised in its motion for post-trial relief that were abandoned in its memorandum. Defendant raises the following issues in its memorandum of law in support of its motion for post-trial relief:

(1) “The court committed an error of law in refusing plaintiff’s proposed points for charge with respect to plaintiff’s status as a trespasser, pursuant to her deliberate decision to j ay walk, and the resultantly reduced standard of care.” Def. memo p. 5 (3/17/05).

(2) “The court committed an error of law in refusing plaintiff’s proposed points for charge as regards the duty to maintain traffic control devices, such as the curb at issue.” Id., 8.

(3) “The court committed an error of law refusing plaintiff’s proposed points for charge with respect to plaintiff’s duty to keep a proper look-out for her safety, and open and obvious danger as precluding Temple’s duty of care.” Id., 10.

A. Plaintiff’s Motion for Post-Trial Relief Wherein She Requested a New Trial on the Issue ofDamages or in Alternate an Order for Additur

This court awarded the plaintiff a new trial on the issue of damages because the jury’s decision to award the amount of the stipulated medical expenses while effectively failing to award damages for pain and suffering was inconsistent.

Our Supreme Court has held, “that a jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a preexisting condition or injury was the sole cause of the alleged pain and suffering.” Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001).

The Davis case arose from an automobile accident wherein liability was not at issue. The jury awarded the plaintiff damages for his medical expenses and personal property loss, but did not award damages for pain and suffering. Id. at 390, 773 A.2d at 766. The Supreme Court ruled that the trial court properly exercised its discretion when it denied the plaintiff’s motion for a new trial because there was a reasonable basis for the jury to believe that the plaintiff did not suffer pain or that his alleged injuries were the result of a preexisting condition. Id. In that case, the plaintiff had been involved in prior automobile accidents and the plaintiff admitted:

“[H]e did not miss any work as a result of the accident; he waited 20 days after the accident before visiting [with the] doctor; he quit treatment after only 20 visits with the doctor; and, he has not received any medical treatment for the injuries he claims to have suffered as a result of the accident since July of 1995. Davis’ doctor also admitted that he could not say for certain if the spinal injury was related to the accident or whether it was caused by some other event.” Id. at 397, 773 A.2d at 770.

In the case sub judice, no reasonable juror could have believed that the plaintiff did not suffer an injury that produced compensable pain, and the failure to award compensation for pain and suffering warranted a new trial on damages.

The Supreme Court also dealt with the issue of whether a trial court abused its discretion in awarding a new trial when a jury failed to award damages for pain and suffer ing in Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). In that case, all of the medical experts agreed that the plaintiff had suffered a neck sprain and shoulder blade injury. In addition, plaintiff’s medical expert clearly attributed plaintiff’s medical injuries to the accident with the defendant. Id. at 527, 653 A.2d at 640. The court reasoned that the juty verdict defied common sense and logic because it flew in the face of uncontested evidence proving that the plaintiff had suffered obvious objective injuries that produced compensable pain. Id. at 524, 653 A.2d at 639. In upholding the trial court’s grant of a new trial, the Supreme Court distinguished the fact pattern in Neison from the often cited Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). It stated, “These injuries suffered from a violent automobile accident are more than transient rubs of life as was the needle puncture in Boggavarapu.” Id. at 524, 653 A.2d at 639.

In the case at hand, the injuries suffered by the plaintiff were not insignificant transient rubs of life. The plaintiff fractured her right elbow and left wrist and surgery was required to repair these fractures. N.T., 11/15/04, 73. The plaintiff suffered from obvious objective injuries of the type that would produce compensable pain. Therefore, the jury defied common sense and logic when it effectively awarded the plaintiff nothing more then the exact amount of her medical expenses. Clearly, the verdict sheet technically provides for compensation for pain and suffering, but in reality the plaintiff received only the value of her medical expenses. Interestingly enough, defendant argued in its motion for post-trial relief that this court erred in separating pain and suffering from medical expenses on the verdict sheet. Def. mot. for post tr. relief ¶3.

The record clearly illustrates that the jury intentionally awarded the plaintiff the value of her stipulated medical expenses. Initially, the jury awarded the plaintiff $12,140.64 for medical expenses and $12,140.64 for pain and suffering. It appeared that the jury had misunderstood this court’s instructions and reduced the award in accordance with its finding of comparative negligence. To remedy the situation, this court reinstructed the jury on the application of the Comparative Negligence Act and asked them to continue deliberations. Moments later, the jury returned to the courtroom and awarded the plaintiff $24,281.28 for medical expenses and $24,281.28 for pain and suffering. The fact that the jury had conducted these mathematical calculations proves that the jury intended to award the exact amount of medicals. Counsel for the defendant, Roland Atkins, Esquire, even admitted on the record “I think what the jury did is, they took medicals and wanted to award the plaintiff the full amount of her medicals and apportioned it between pain and suffering and the medical.” N.T., 11/18/04, 34.

B. Plaintiff’s Motion To Enforce the Settlement Agreement

This court declined to review the merits of plaintiff’s motion to enforce the settlement agreement because it awarded the plaintiff a new trial on the issue of damages. By awarding a new trial limited to damages, the plaintiff was placed in the same position she was in prior to receipt of the jury verdict, and the defendant was encouraged to place its settlement offer back on the table.

In order to resolve plaintiff’s motion to enforce the settlement agreement, this court may have been required to recuse itself since in support thereof, plaintiff apparently relies almost totally upon interpretation of off-the-record settlement discussions held with defense counsel in the presence of this court. These discussions were not confidential or impermissibly ex-parte; however, their content was clearly intended to remain off the record. Resolution of the said motion would have required a fact-finder to determine, based upon testimony possibly even of the court, whether pursuant to language utilized in discussions, the defendant allowed the plaintiff to reasonably believe such previous offer remained open. This court’s decision to award a new trial on the issue of damages now renders this issue moot.

C. Defendant’s Memorandum in Support of Its Motion for Post-Trial Relief

Defendant requested a new trial on issues of liability and damages and in its memorandum identified three areas wherein this court allegedly committed reversible errors at trial. This court will address the defendant’s claims in sections numbered 1 through 3 below. In section 4, this court will then turn to a discussion of the issues raised in the motion for post-trial relief that were not pursued in the memorandum.

In each of these three areas, the defendant claimed that a new trial was warranted because this court failed to instruct the jury in accordance with its proposed jury instructions. The standard of review used by appellate courts when reviewing a trial court’s jury instructions is as follows:

“In examining jury instructions, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law controlling the outcome of the case. Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 (1995). Error in the jury charge is sufficient ground for a new trial if the charge, taken as a whole, is inadequate, unclear, or has the tendency to mislead or confuse rather than to clarify a material issue. Id. A charge will be found adequate unless ‘the issues are not made clear to the jmy or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.’ Id. (citing Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949)).” Von der Heide v. PennDOT, 553 Pa. 120, 123, 718 A.2d 286, 288 (1998).

1. This Court Did Not Commit an Error of Law in Refusing the Defendant’s Proposed Points for Charge With Respect to the Plaintiff’s Reduced Standard of Care Due to the Plaintiff’s Status As a Trespasser

Defendant argued that this court committed a reversible error by determining as a matter of law that the plaintiff’s status at the time of the accident was that of an invitee rather then a trespasser. Defendant further argued that this court committed a reversible error in not instructing the jury that the defendant’s only duty to a trespasser was to refrain from willful or reckless conduct. These issues are raised in paragraphs 2, 9, 23, 24, and 25 of the defendant’s motion for post-trial relief wherein it argues that this court erred when it failed to instruct the jury in accordance with proposed points for charge 33, 34, and 35.

Generally, the determination of an individual’s status as an invitee, licensee, or trespasser is one of fact for the jury. Slobodzian v. Beighley, 401 Pa. 520, 164 A.2d 923 (1960); Rivera v. Philadelphia Theological Seminary, 326 Pa. Super. 509, 474 A.2d 605 (1984). However, the court may remove from the jury the issue of a person’s status at the time of an accident when the facts and law are clear. Palange v. City of Philadelphia, Law Dep’t, 433 Pa. Super. 373, 640 A.2d 1305 (1994). It is possible for an invitee or licensee to become a trespasser by exceeding the scope of his or her privilege to be on a premise. However, a person does not exceed his or her status as a business visitor and lose his or her privilege when that person is in a place where it is usually and customary for a business visitor to be. Barron v. Hydrotated Anthracite Fuel Co., 159 Pa. Super. 35, 46 A.2d 506 (1946).

The defendant argued that at the time of the accident, the plaintiff exceeded the scope of her invitation and became a trespasser by jaywalking in violation of 75 Pa.C.S. §3543(c). The chief piece of evidence that the defendant used to support this argument is the plaintiff’s testimony that based on the location where she fell, it appeared that she had veered just outside the confines of the crosswalk. The defendant argued that due to 75 Pa.C.S. §3543(c), the plaintiff’s invitation was restricted to the confines of the crosswalk and that when she broke the law and left the confines of the crosswalk she became a trespasser. The defendant further made the strained argument that the plaintiff’s alleged violation of 75 Pa.C.S. §3543(c) meant that she was unlawfully on the premise and fit within the definition of a trespasser. N.T., 11/16/04, 94-97.

Defendant’s argument defies logic and reason. No reasonable jury could have found that the plaintiff became a trespasser merely by stepping over a line painted on a street that outlines a crosswalk. No evidence suggested that the plaintiff veered from the crosswalk to any great extent. Her testimony established that she might have been a few feet outside the confines of the crosswalk when she fell. Based on Barron, the plaintiff could not have become a trespasser because it is usual and customary for people to cross a street in the general vicinity of a crosswalk but a few feet outside of the lines painted on the street.

2. This Court Properly Ruled That a Curb Is Not a Traffic Control Device and Refused To Instruct the Jury As Such

In paragraphs 8,20,21, and 22 of its motion for post-trial relief, the defendant argued that this court erred when it failed to instruct the jury in accordance with proposed points for charge 26,27, and 31. With these charges, the defendant requested that this court instruct the jury that as a matter of law that a curb is a traffic control device and that the co-defendant, the City of Philadelphia, was responsible for the repair of the dropped curb in question.

The need to define a curb as a traffic control device was crucial to the defendant’s case because the co-defendant, the City of Philadelphia, is immune from tort liability with the exception of eight areas as set forth in 42 Pa.C.S. §8542. Two of the eight areas where the City of Philadelphia is subject to suit are for its maintenance of sidewalks and traffic control devices. However, the city is secondarily liable for its maintenance of sidewalks while it is primarily liable for the maintenance of traffic control devices. The City of Philadelphia argued that the dropped curb in question was not a traffic control device but was instead a sidewalk for which it was secondarily liable.

Defendant’s proposed points for charge are flawed because they presuppose that the City is responsible for the maintenance and repair of curbs. Absent a deed or special agreement, the primary responsibility for the repair and maintenance of a curb rests with the owner of the property abutting that curb. Sound policy principles support the application of this general rule to the present case. There are thousands of miles of curb within the boundaries of the City of Philadelphia that the municipality would be required to monitor for the slightest tripping hazard if it were primarily responsible for the maintenance of curbs. Defendant presented no legal or factual argument at the time of trial to defeat the applicability of the general rule holding them responsible for the dropped curb abutting its property.

Defendant did argue that a curb is a traffic control device; however, this argument is not supported by the law. Defendant argued that a curb is a traffic control device because it keeps vehicular traffic on the roadway, alerts pedestrian traffic to stay in the sidewalk area, protects pedestrians from errant vehicles, keeps vehicles from jumping and entering the sidewalk, defines the location of the parking lane, and provides a benchmark between the roadway and the sidewalk. Def. memo, of law 9-10, 3/21/05. A similar argument was rejected in Slough v. City of Philadelphia, 686 A.2d 62, 65 (Pa. Commw. 1996), aff’d, 553 Pa. 673, 720 A.2d 485 (1998), where the court held that a median strip was not a traffic control device. The court in that case acknowledged that a median strip channels, separates, and directs lanes of traffic; however, it held that these facts were insufficient to define a median strip as a traffic control device. Id. at 65.

3. This Court Properly Instructed the Jury on the Duty That an Owner of Land Owes to Invitees and the Effect of Pennsylvania’s Comparative Negligence Statute on That Duty

In paragraphs 13 -19 of the defendant’s motion for post-trial relief, the defendant argues that this court erred when it failed to charge the jury in accordance with its proposed points for charge 6, 10, 12-14, 16, and 17. Def. mem. law in support of mot. for post tr. relief exhibit 1 (3/17/05). These proposed points for charge sought to have the jury instructed that the law does not impose liability if it is reasonable for the possessor to believe that the dangerous condition is open and obvious. These charges also sought to have the juiy instructed that the plaintiff had a duty to watch where she was going. Def. memo, of law p. 10 (3/17/05).

The additional instructions requested by the defendant were unnecessary. This court adequately instructed the jury on the duty that the defendant owed the plaintiff in this case when it charged the jury in accordance with Pa. SSJI §702A. The language in Pa. SSJI §702A and language in the instructions given by this court can be found in substantially the same form in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983); Skalos v. Higgins, 303 Pa. Super. 107, 449 A.2d 601 (1982). This instruction adequately explained the duty that the defendant owed the plaintiff in this case. This court also allowed the jury to consider plaintiff’s obligation to watch where she was walking. This court allowed the defendant to cross-examine the plaintiff on the issue of her ability to see the dropped curb and her attentiveness while walking. N.T., 11/15/04,149-50. This court instructed the jury on Pennsylvania’s Comparative Negligence Act. N.T., 12/18/04,116. The jury was provided adequate testimonial evidence and legal instruction on plaintiff’s obligation to watch where she was walking.

4. The Miscellaneous Issues Raised in the Defendant’s Motion for Post-Trial Relief That Were Not Pursued in Its Memorandum of Law Are Without Merit

The defendant argues that this court erred when it precluded it from presenting the concept that a third party was responsible for the dropped curb in question. Def. motion for post-trial relief ¶¶1, 5, 7, and 12. At trial, defendant attempted to argue that the Philadelphia Water Department, Philadelphia Gas Works or some other governmental entity may have caused the dropped curb by conducting construction activities or driving a truck over the curb. To support this argument, the defendant pointed to the fact that a manhole and utility pole were located near the dropped curb. However, this court precluded the issue of third-party liability from being interjected into the case because there was no evidence to show that a third party actually caused the dropped curb. The defendant did not specifically join these governmental agencies and did not develop evidence against them during discovery. N.T, 11/17/04, 89-90.

Defendant’s argument that this court presented a defective verdict sheet to the jury is without merit. Def. mot. for post tr. relief ¶¶3-4. It argues that the verdict sheet named only Temple University and failed to name the City of Philadelphia. However, the verdict sheet did in fact name the City of Philadelphia and ask the jury to apportion negligence against the city. N.T., 11/17/04,129. The defendant also found fault with the fact that the verdict sheet asked the jury to make a separate award for pain/suffering and medical expense instead of a lump sum award for all damages. No objection appears on the record at the point where the parties discussed the structure of the verdict sheet. During trial, N.T., 11/16/04, 111-12.

The defendant argued that this court erred when it did not allow it to refer to the plaintiff as a jaywalker during closing argument. Id., ¶11. Referring to the plaintiff as a jaywalker was inflammatory and unnecessary. This court fully allowed the defendant to present the plaintiff’s contributory negligence to the jury, and did nothing to impede the defendant’s ability to present the fact that the plaintiff was in fact outside of the crosswalk when she fell.

The defendant argues that this court erred when it allowed the plaintiff to question Michael Gentile on the issue of its responsibility for the curb in question. Id., ¶26. However, no objection to this question was lodged at the time. N.T., 11/16/04, 66.

The defendant claims that over its objection, the plaintiff was permitted to ask leading questions of Officer Michael McShane. However, a review of the record does not reveal that this issue was preserved for appellate review by an objection placed on the record at the time that Officer Michael McShane testified, nor does defendant identify such an objection. Id., 78-91.

      . In Boggavarapu, the Supreme Court held that a jury may properly conclude that the pain of a dog bite followed by a tetanus shot is a transient rub of life for which the jury could find that the plaintiff suffered no compensable pain and award damages limited to the cost of the emergency room treatment.

      . Pennsylvania Suggested Standard Jury Instruction §7.01C states: “A trespasser is a person who enters or remains on land in the possession of another without a right or privilege to do so.” Restatement of the Law, Second, Torts, §329 states, “A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise:”

      . 42 Pa.C.S. §8542(b)(7) reads:
      “Sidewalks. — A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice of or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other person, the local agency shall be secondarily liable only and such other persons shall be primarily liable.”
      42 Pa.C.S. §8542(b)(4) reads:
      “Trees, traffic controls and street lighting. — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.”

      . Philadelphia Code 11-505(1) provides:
      “(1) The sidewalks of all the public streets, and the roadways and sidewalks of all private streets, shall be graded, curbed, paved and kept in repair at the expense of the owners of the land fronting thereon, except as otherwise provided in the section.”
      Philadelphia Code 11-505(6) provides:
      “All sidewalks, curbs, and driveways across sidewalks shall be laid or set in accordance with specifications and regulations of the Department of Streets and the provisions of this chapter... (c) The owner of the adjacent property shall keep the curb in repair ....”
      The Commonwealth Court has also stated that the responsibility for the maintenance and repair of land rests with the abutting property owner. It wrote:
      “Public bodies normally assume responsibility for the property within the curb lines, i.e., the gutters and the roadway or cartway. On the other hand, the abutting property owner retains responsibility for the conditions outside the curb lines, i.e., the sidewalk, the tree planting strip, and the curb itself. Fisher v. City of Philadelphia, 112 Pa. Super. 226, 170 A. 875 (1934). Absent some deed or dedication requirement, by definition, for there to be a curb, there must be an abutting property owner with maintenance responsibilities.” Hubbard v. PennDOT, 660 A.2d 201, 204 (Pa. Commw. 1995).

      . Pennsylvania Suggested Standard Jury Instruction §702A reads:
      “An [owner] [occupier] of land is required to use reasonable care in the maintenance and use of the land, and to protect invitees from foreseeable harm. An [owner] [occupier] of land is also required to inspect the premises and to discover dangerous conditions. An [owner] [occupier] of land is liable for harm caused to invitees by a condition on the land if: (1) the [owner] [occupier] knows or by using reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm, and (2) the [owner] [occupier] should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it, and (3) the [owner] [occupier] fails to use reasonable care to protect the invitees against the danger.
      “An [owner] [occupier] of land is liable to invitees for any harm that the [owner] [occupier] should have anticipated, regardless of whether the danger is known or obvious.”
      The instruction read by this court reads:
      “An owner of land is liable for harm caused to his or her invitees by a condition on the land if he or she ... one, knows or by their exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm; and two, should expect that his or her or their invitees will not discover or realize the danger or fail to protect themselves against it; and three, fails to exercise reasonable care to protect them against the danger, an owner of land is liable to his or her or their invitees for any harm he or she should have anticipated regardless of whether the danger is known or obvious.”


author: MINORA, J,

text:
    F&L Realty v. Lackawanna County Board of Assessment & Revision of Taxes

      C.P. of Lackawanna County,
    no. 03 CV 586.

      Joseph T. Wright Jr. and Raymond P. Pepe, for appellants.

      Alfred K. Hettinger, Laurel Hettinger Fedak and Donald P. Dolan II, for appellees.

      Matthew P. Barrett, for respondent.
    November 16, 2005
   MINORA, J,

STATEMENT OF THE CASE

This action arises out of an appeal from the Lackawanna County Board of Assessment and Revision of Taxes. The appeal is from an assessment of property for the purpose of real estate taxation. The appellants seek redress and reduction of the assessment for tax years 2001-2002, 2002-2003 and thereafter. The Mid Valley School District, a separate party to this action, filed its own appeal wherein the Borough of Throop joined. The appeals of the taxpayers, school district and Borough of Throop have been consolidated under the above listed docket number 03 Civil 586 by order of this court dated June 7, 2004.

The appellants are F&L Realty Inc. and Keystone Company, which are taxpayers and property owners of 20 parcels of land located in the Boroughs of Throop and Dunmore in Lackawanna County, Pennsylvania. These properties comprise the Keystone Sanitary Landfill and are the basis for the Tax Assessment Appeals filed by the Taxpayers, F&L Realty Inc. and Keystone Company. These same lands are also the basis for the appeals originally filed to 03 Civil 459 by the Mid Valley School District, later joined by the Borough of Throop. Significantly, the Borough of Dunmore and the Dunmore School District have not chosen to appeal.

The Keystone Sanitary Landfill Inc. is affiliated with the appellant taxpayers and operates a municipal waste facility upon the subject properties. The Department of Environmental Protection (DEP) has issued permits for solid waste management and granted approval for the operation of the landfill on the premises. On or about July 1, 2001, the Lackawanna County Tax Assessment Office assessed the value of the properties on the tax rolls for tax years beginning January 1, 2002, as $602,628.

On July 24, 2001, the Mid Valley School District, which is coterminous with the Borough of Throop, filed an assessment appeal in regard to 19 parcels of land owned by the appellants and used as part of the Keystone Landfill. The Lackawanna County Board of Assessment and Revision of Taxes held a hearing on the school district’s appeal on April 3, 2002. Subsequently, the board retained an independent appraiser, Vincent M. Dowling, MAI, SRPA of Dowling & Associates, to offer additional evidence verifying the value of the subject properties. The board conducted a hearing November 12, 2002, regarding the appraisal report of Vincent M. Dowling in which it concluded all the testimony and summary of findings. The County Assessment Office mailed the Final Assessment Notice on January 7,2004, which comprised the following assessment information:

“2001-2002 tax year total assessed value for parcels in Throop Borough and Mid Valley School District and Dunmore Borough and School District equaled $4,077,502 and the total market value for 2001-2002 tax year equaled $19,500,000.
“2002-2003 tax year total assessed value for parcels in Throop Borough and Mid Valley School District and Dunmore Borough and School District equaled $3,800,003 and the total market value for the 2002-2003 tax year equaled $18,000,000.”

The Mid Valley School District filed its appeal from the board’s final determination to this court. By document dated February 6, 2003, the school district was joined by the Borough of Throop. The taxpayers, F&L Realty Inc. and Keystone Company, independently filed an appeal from the board’s decision. The taxpayers dispute the board’s determination in that it has over-assessed the subject property and improperly included the value of the permits to operate a landfill in its valuation. Taxpayer alleges this value-in-use to be an improper and illegal form of real estate valuation for tax purposes.

Description of Subject Property

The property upon which the Keystone Landfill is situated covers a total of 858.22 acres. Approximately 1.89 acres is encumbered by slope easements held by the Pennsylvania Department of Transportation. The landfill is divided between two boroughs. Approximately 419.07 acres lies within the Borough of Throop coterminous with the Mid-Valley School District, and the remaining 439.15 acres lies within the Borough of Dunmore, coterminous with the Dunmore School District. Of the acreage situate in the Borough of Dunmore, nearly 105 acres are subject to closure requirements imposed by the Pennsylvania Department of Environmental Protection (while approximately 34 acres have been condemned by PennDOT). The landfill is further divided into five distinct disposal sites/areas. Of the five disposal sites, only one has full disposal capacity while two of the remaining four site capacities have been fully exhausted and are closed. One site is under construction and the only remaining site is undeveloped. The property that is used for the landfill includes an office, scale house, truck wash facility, tire shredder, maintenance headquarters, a guardhouse, quarry scale house and radiation monitoring facilities. Additionally, upon the property that is the subject of the assessment appeal and located within the Borough of Throop are the gas transfer station, portions of the comprehensive stormwater management system, the leachate treatment facility and a powerhouse.

DISCUSSION

De Novo Review

It is the duty of the trial court to review a tax assessment appeal de novo, without a jury, and to take into account all competent and credible evidence presented while determining the fair market value of the subject property. Westinghouse Electric Corp. v. Board of Property Assessment, Appeals and Review of Allegheny County, 539 Pa. 453, 463, 652 A.2d 1306, 1311 (1995). De novo review of a matter demands complete “consideration of the case anew as if it was not heard before and no decision had been previously rendered.” Manor v. Department of Public Welfare, 796 A.2d 1020, 1029 (Pa. Commw. 2002). Citing Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983). The court may not give deference to the findings made by a previous tribunal in regard to evidence or arguments received in a de novo proceeding. Manor v. Department of Public Welfare, 796 A.2d 1020, 1029 (Pa. Commw. 2002). Furthermore, proceedings that are before the trial court on appeal from the Board of Assessment are de novo except if the record below is complete and complies with local agency law. School District of the City of Erie v. Hamot Medical Center, 144 Pa. Commw. 668, 602 A.2d 407 (1992). Under the current circumstances of our case, an incomplete record exists from the tribunal below, therefore a de novo review or remand is necessary. 2 Pa.C.S. §754. In addition, “a trial court has the duty of receiving the record of proceedings below, if introduced into evidence, together with any other evidence that is properly received, and then make its own findings of fact [and] conclusions of law...Pennsylvania State Police, Bureau of Liquor Enforcement v. Kelly’s Bar Inc., 536 Pa. 310, 314, 639 A.2d 440, 442(1994).

Presently, the record before this court from below is incomplete. Consequently, before this court would be able to consider the substantive issues presented by the parties’ motions specifically; the taxpayers’ judgment on the pleadings, the school district’s motion to strike the filing of the amended real estate tax assessment appeal, the motion to strike the motion for judgment on the pleadings, the motion to roll back depletion of subject property instituted without authority by the Assessment Office and the motion to consider Keystone’s property as an integrated economic unit, a record needed to be developed then and still does now. Towards this end, the court then granted leave of court by order dated December 10, 2004, to the above parties to submit an agreed upon record of the proceedings before the Lackawanna County Board of Assessment and Revision of Taxes. This effort, which seemingly should have simplified the proceedings, has been an abject failure. Because of this failure, the court has now determined that a new hearing is necessary; therefore, all objections to the underlying record configuration have been rendered moot and are hereby denied. Tellingly, most of these mooted objections dealt with the Board of Assessment allegedly improperly considering value-in-use testimony in its valuation. We shall deal with this issue later.

The pivotal concern before this court is the tax assessment appeal, and since we still lack a complete agreed upon record from the proceedings below, a hearing de novo or a remand is required. Further, there has again arisen the same spirited dispute over the type of expert evidence that should have been considered below and should be allowed before this court. The Supreme Court of Pennsylvania states that procedurally, the taxing authority must first present the assessment record into evidence to make out a prima facie case establishing the legitimacy of the assessment. The Deitch Company v. Board of Property Assessment, Appeals and Review of Allegheny County, 417 Pa. 213, 221, 209 A.2d 397, 402 (1965); see also, Green v. Schuylkill County Board of Assessment Appeals, 565 Pa. 185, 772 A.2d 419 (2001). At that time, the burden shifts to the taxpayer to offer both credible and relevant evidence. The Deitch Company, supra at 221, 209 A.2d 397, 402. Once sufficient proof is presented by the taxpayer, it will defeat the prima facie significance of the board’s assessment value, terminating its use as an evidentiary device and causing the assessment to lose any weight that it was previously given. Id. Yet, the taxpayer still remains obligated to persuade the court on the merits of the appeal. Id. at 222, 209 A.2d at 402. It is ultimately the duty of the trial court to independently make its own determination as to the fair market value of the subject parcel on the basis of competent, credible and relevant evidence presented by the parties in a tax assessment appeal. Green v. Schuylkill County Board of Assessment Appeals, 565 Pa. 185, 772 A.2d 419, 426 (2001). Therein lies the latest dispute. What type of expert evidence regarding valuation should be considered by the court as competent, credible and relevant?

Once all the evidence is submitted to the court, it must evaluate all the competent, credible and relevant evidence presented by the parties to determine fair market value. In this evaluation, the court must consider the statute regarding the Third Class Counties and the General County Assessment Law which is set forth at 72 P.S. §5350(a) et seq. Accordingly, in an assessment appeal, the court shall determine the market value as of the date the appeal was filed and the market value for subsequent years if applicable. The court must also determine the common level ratio that was applicable when the appeal was first made to the board and the ratio applicable in consideration of each subsequent assessment year. See 72 P.S. §5350(a)(l) and (2). This determination by the court is not possible if insufficient evidence has been produced by the parties. Procedurally, once an assessment appeal has been filed to the court of common pleas, a de novo hearing or a remand is required to set the record for review or to complete the record from below which must be submitted to the court. This court has failed in its efforts to secure the complete record of proceedings before the Lackawanna County Board of Assessment and Revision of Taxes, including all reports and evidence. Further, it has failed in having the parties arrive at an agreed upon record from the proceedings below. Consequently, no hearing has yet been held nor has a complete record from below been established before this court. Nor does it appear, at this point, that such a record can ever be secured or agreed upon. Therefore, this court concludes that a remand hearing will be required as the record from below is fragmented and reconstruction of the record cannot be agreed upon by the parties.

The De Novo Evidence Dispute

Although it is clear that the Rules of Civil Procedure do not govern statutory appeals such as this tax assessment appeal case, In re Appeal of the Borough of Churchill, 525 Pa. 80, 83, 575 A.2d 550, 551 (1990), taxpayer/appellant had filed a motion for judgment on the pleadings regarding the legal requirements for the preparation of appraisal reports. The review of this motion by the court will materially advance this cause of action and therefore, pursuant to the court’s discretion as authorized in Sherman v. Yoder, 59 Pa. Commw. 430, 430 A.2d 347 (1981), we elect to dispose of this motion on its merits. It is essential to our de novo hearing as well as to a remand that the fact-finding tribunal be given the benefit of the necessary competent, credible and relevant evidence. This motion will help define that evidence. Since the Rules of Civil Procedure do not apply to statutory appeals, Churchill, supra, perhaps some other form for submission should have been made seeking exclusively a specific type of expert testimony or prohibiting the alleged incorrect type of expert testimony. Arguably, such evidentiary motions are best used in a jury context. In any event, we deem it necessary to elevate substance over form and deal with the merits of this motion regardless of its title. The court is willing to look beyond the technical designation to see the filing for what the parties and the court understood it to be. In re Appeal of the Borough of Churchill, 525 Pa. 80, 90, 575 A.2d 550, 555 (1990). In dealing with this motion, we believe we will advance the case significantly by defining, up front, what competent, credible and relevant evidence may be legally received by the board on remand and by this court in a de novo proceeding.

Currently in Pennsylvania, there are three accepted methods of valuation which must be considered in conjunction with one another. These include: (1) the cost (reproduction or replacement) approach; (2) the comparable sales approach; and (3) the income approach. 72 P.S. §5349(d). The actual value is the market value or fair market value which has been defined by the courts as “the price which a purchaser willing but not obliged to buy, would pay an owner willing but not obliged to sell, taking into consideration all issues to which a property is adapted and might in reason be applied.” F&M Shaffer Brewing Company v. Lehigh County Board of Appeals, 530 Pa. 451, 457, 610 A.2d 1, 3 (1992). “The actual fair market value, while not easily ascertained, is fixed by the opinion of competent witnesses as to what the property is worth on the market at a fair sale.” Id. On these matters, there is virtual agreement among the parties. Where the parties’ disagreement blossoms is based upon what factors can legally be considered by expert witness in arriving at the “actual value thereof’ per 72 P.S. §5020-402.

The Value-in-Use Controversy

There exists a significant body of case law from 1992 to 2005 dealing with the issue of how actual value testimony should be received by a factual tribunal, be it the board or this court de novo. In defining this evidence for the board and for future court review, this court believes that it can materially advance the cause of action within a legally correct evidentiary framework.

As was stated in F&M Schaeffer Brewing Company c/o Stroh Brewing Company, Appellant v. Lehigh County Board of Appeals and Lehigh County, Appellees, 530 Pa. 451, 456-57, 610 A.2d 1, 3 (1990):

“Real estate is required to be assessed according to the ‘actual value thereof.’ 72 RS. §5020-402. The legislature has mandated that, in determining actual value three approaches to valuation be used, namely (1) cost (reproduction or replacement, as applicable, less depreciation and all forms of obsolescence), (2) comparable sales and (3) income approaches, and all three must be considered in conjunction with one another. 72 RS. §§5020-402,5348(d). The term ‘actual value’ is defined as market value or fair market value, which in turn are defined as ‘the price which a purchaser willing but not obliged to buy, would pay an owner, willing but not obliged to sell, taking into consideration all uses to which a property is adapted and might in reason be applied.’ ”

The F&M Schaeffer case goes on to contrast the actual value, as defined above, as opposed to value-in-use, which it deems an improper valuation. Id. at 457, 610 A.2d at 3. Our Supreme Court stated, “In contrast, use value or value-in-use represents the value to a specific user and hence does not represent fair market value.” (emphasis added)

It is axiomatic that actual value or fair market value can be an elusive concept that is not easily ascertained. Hence, there is a need for opinions by competent expert witnesses as to what the property should be worth on the market at a fair sale.

These same competent expert witnesses can distinguish between market value or value in a bargained for exchange and use value. The Appraisal of Real Estate, American Institute of Real Estate Appraisers (9th edition Chicago 1987) states that, strictly speaking, value-in-use does not fit the criteria discussed in the definition of market value involving a willing buyer and a willing seller. They further state that value in use should not be considered equivalent to, or a substitution for, market value. Industrial Real Estate, Society of Industrial Realtors, 14th edition Washington, D.C. 1984. (emphasis added) F&M Schaeffer, supra, 530 Pa. at 457, 610 A.2d at 3-4.

The court in F&M Schaeffer goes on to note that, because value-in-use is based on the use of property and the value of that use to the current user, it may result in a higher value than value in the market place. They therefore determined such value-in-use evidence to be irrelevant in tax assessment cases. This is such because by statute only the fair market value or value in exchange is relevant in tax assessment cases as noted above.

The 1992 Pennsylvania Supreme Court continued its guidance to both litigants and fact-finders in F&M Schaeffer, supra, 530 Pa. at 459, 610 A.2d at 4, when the court stated, “The mere fact that the legislature mandated consideration of all three approaches to valuation does not mean that value-in-use is now relevant in tax assessment cases. The cost valuation approach must be employed in such a manner that a property’s use and resulting value in use are not considered.” (emphasis added)

To further clarify, the court went on to say that treating real property as “special purpose” property is an “unacceptable consideration” in property tax cases as it amounts to a guise for value-in-use. Id. at 461, 610 A.2d at 6.

There are certain taxation situations and eminent domain situations where a broader consideration of machinery, fixture and equipment is appropriate. However, one must recall that it is real estate taxation at issue herein, and consideration of fixtures, machinery and equipment go inherently to the present use by the owner, and this can constitute improper value-in-use. Jones and Laughlin Tax Assessment Case, 405 Pa. 421, 175 A.2d 856 (1961). Thus, in the context of real property tax assessment law, not only are machineiy and equipment to be excluded from the value of the real estate, but they are not even to be considered in determining fair market value of industrial property for tax assessment purposes. F&M Schaeffer, supra, 530 Pa. at 462, 610 A.2d at 6. Once again, this rule would not apply in an eminent domain context as other statutory guidelines prevail.

In F&M Shaeffer, supra, they addressed the facility as a brewery in accordance with its use but contrary to statute. 72 P.S. §5020-201(a) specifically states that machinery and equipment, “shall not be considered or included as a part of the real estate...(emphasis added)

The mandatory “shall not” gives clear and unambiguous evidence of legislative intent and public policy. The policy is to promote a favorable business climate in our Commonwealth by promoting tax relief for industries in Pennsylvania. F&M Schaeffer, supra, 530 Pa. at 463, 610 A.2d at 6; op. cit. Jones & Laughlin, 405 Pa. at 429, 175 A.2d at 860.

The Supreme Court in reasoning stated that, “to give the exclusion proper effect, the assessed value of industrial real estate must not, in any way, reflect consideration of the value of the machinery and equipment.” F&M Schaeffer, supra, 530 Pa. at 463, 610 A.2d at 7. Resultantly, the trial court was reversed in the case for considering equipment unique to brewing beer.

To assert a contrary position, Mid Valley and Throop would have us consider the case of In re Appeal of V.V.P. Partnership v. Board of Assessment of Delaware County, 167 Pa. Commw. 282, 647 A.2d 990 (1994). This case involved a tax assessment for a tennis, racquetball and squash facility which existed on a lot limited by both topography and two bordering highly traveled highways. To further complicate matters, the real estate was zoned RB Residential and the tennis courts here existed as a previously existing, non-conforming use. Finally, the property fails to conform with current setback requirements and therefore is non-conforming in that manner as well.

Under these unique facts and circumstances, the court accepted an expert’s fair market value using the income approach and the sales comparison approach.

The case defines both approaches at In re Appeal of V.V.P. Partnership, supra, 167 Pa. Commw. at 285 n.1 and n.2, 647 A.2d at 911 n.1 and n.2. Essentially, the income approach capitalizes the property’s annual net income (gross income less actual annual expenditures). The sales comparison approach compares the subject property to other similar properties that have been sold, giving consideration to certain variables.

The trial court found that, in this case, the income approach was a more accurate reflection of fair market value. The appeal challenged this income approach as a value-in-use measure of value that was contrary to F&M Schaeffer, supra.

The court distinguished V.V.P. Partnership, supra from other cases on its facts. They indicated that the income approach is the most appropriate method for appraising a property typically purchased as an investment, such as a tennis club, because such a property derives its value to a potential purchaser by its ability to produce income. The expert used all the statutory approaches but concluded that he gave the most weight to the income in this case because it valued the real property to any owner since this type of property would only be procured for its ability to produce income.

In his testimony, the witness explained that business income is generally not an accepted measure of value. In this case, there were sound reasons for using it. The property was limited topographically by highways, by setbacks, by zoning, all of which severely limited it as an investment property. Further, the expert believed that as a sports facility, it was being managed at its “maximum possible efficiency.” Id., 167 Pa. Commw. at 287-88, 647 A.2d at 993.

Under these unique facts and circumstances, none of which apply herein, V.V.P. Partnership, supra, is not persuasive, not probative, and readily distinguishable on its facts.

Subsequent appellate court precedent bears this distinction out. V.V.P. has essentially been treated as a unique aberration restricted to its particular facts. In the case of Westinghouse v. Board of Property Assessment Appeals and Review of Allegheny County, 539 Pa, 453, 461, 652 A.2d 1306, 1310 (1995), our Supreme Court stated that, “Westinghouse’s lead expert testified that he used the market approach, comparable sales approach and the income approach in arriving at his opinion of fair market value.... The taxing authorities’ expert testified that he used the income approach, market approach and costs approach in arriving at fair market value.”

Quite obviously, when arriving at fair market value, exclusive reliance upon the income approach or giving overall weight to the income approach did not prevail as in V.V.P. Partnership, supra, and using same as a precedent is unique and not readily analogous to other cases.

In another appellate case from the Commonwealth Court, the court confronted a specialized-use property much like the brewery in F&M Schaeffer. In Allegheny Energy Supply Company v. County of Greene, 788 A.2d 1085 (Pa. Commw. 2001), the court was confronted with the issue of valuing a power plant that generated electrical power for ultimate distribution to customers. In this case, the trial court considered the cost, comparable sales and income methods of determining the actual value of the real estate and improvements. The court decided that the cost method would be the soundest in this case. Tellingly, the trial court also looked at the highest and best use being that of a power plant.

On appeal to the Commonwealth Court, a number of issues were presented, many of which were fact specific to these power plant premises however, issues arose herein that are relevant to the case before us.

Much as is the case herein, the school district in Allegheny Energy argued that when the trial court concluded that the highest and best use was as a power plant, and then disregarded highest and best use for valuation as general industrial use land, the trial court erred. The school district argued that cost approach requires that vacant land to be valued at its highest and best use. The Commonwealth Court disagreed and stated so at two different places in their opinion. In Allegheny Energy, supra, 788 A.2d at 1091, the Commonwealth Court rejected the school district’s position stating,

“Contrary to the school district’s contentions, the cost approach does not require that the valuation of either the vacant land or the improvements be stated in terms of its highest and best use. A property’s use and its resulting value-in-use cannot be considered in assessing the fair market value of property for tax assessment purposes in Pennsylvania.” (emphasis added)

Later on in the same opinion, id., 788 A.2d at 1092, the court restates this rule by writing, “We repeat, the value of the property for a specific use and the value of that use to the current owner are not relevant in determining fair market value.” (emphasis added)

Even when the income approach was accepted in V.V.P. Partnership, supra, it was accepted because using that approach to that unique piece of realty best valued the property “to any owner.” When you improperly adopt value-in-use methodologies, you no longer value realty for any owner but to a specific use and a specific type of owner and therein lies the statutory error.

A case similar to Allegheny Energy, supra, arose out of our neighboring County of Luzerne. In the case of In re PP&L Inc. v. Luzerne County Board of Assessment Appeals, 838 A.2d 1 (Pa. Commw. 2003), the Commonwealth Court reviewed Luzerne County’s decision regarding the assessment of the Salem Township nuclear power plant. In that case, the learned Judge Michael Conahan rej ected the income approach, and this was determined to be correct, not an error. Further, Commonwealth Court determined that the trial court properly applied the cost approach to the valuation of the property and finally, that exclusion of machinery and equipment from the definition of taxable utility realty was proper.

There were sound rationales for the trial court’s findings in this case. Regarding the trial court rejecting the income approach, the basis for that decision in PP&L, supra, also has applications in our case. The trial court in PP&L, supra, 838 A.2d at 9, under section A entitled “Income Approach,” was cited by the Commonwealth Court. “The trial court determined that the income approach was not controlling because there is no reasonable way to separate the portion of the income stream attributable solely to the taxable realty from the income stream attributable to the business enterprise located on the tax parcels.”

This concern, this inability to distinguish, caused the trial court to reject the income approach. Upon review, the Commonwealth Court determined that this was a valid concern and that the court rejecting the income approach was correct. Further, the Commonwealth Court referenced V.V.P. Partnership, supra, and determined that such an income approach, as used therein, is the most appropriate approach for appraising property typically purchased for investment, because such property is valued by its purchase for its ability to produce income. PP&L, supra, 838 A.2d at 9. In other words, there was an inability to separate the income from the business itself, from the income stream solely attributable to the taxable realty.

The court went on to conclude that “the trial court appropriately recognized the economic realty of business income and the problem of distinguishing it from income generated by the property itself.” PP&L, supra, 838 A.2d at 10.

Ultimately, it was determined that the trial court quite properly relied upon the cost approach to valuations because the other approaches were unreliable indications of market value.

Continuing the cost approach, the proper formula was outlined by the Commonwealth Court. The formula consists of, “(1) the estimated value of the land which is assumed to be vacant and available for its highest and best use, added to (2) the estimated reproduction cost of the facility less depreciation ... The value of the property for a specific use and the value of that use to the current owner are not relevant in determining fair market value.” PP&L, supra, 838 A.2d at 11. (emphasis added)

This logic follows F&M Schaeffer, supra, and Allegheny Energy, supra, which stand for the proposition that “it is not error to select an approach to valuation which focuses on the tax parcels themselves as distinguished from the enterprise operating on the parcels, from the ‘value-in-use’ of the parcels and from machinery, equipment and other intangible assets associated with the parcels.” PP&L, supra, 838 A.2d at 10-11. (emphasis added)

Further, guidance tell us that the value of improvements should be reduced to reflect both functional obsolescence and economic obsolescence. Functional obsolescence reflects loss of value caused by over-capacity and inadequacy. Economic obsolescence reflects loss in value due to lack of economic demand. Both the concepts are discussed and accepted as PP&L, supra, at 11 n.12, n.13 and at 12 as well.

While this case also had specific utility statutes that dealt with and excluded machinery and equipment, guidance was also given in this area as well. Fixtures, items of machinery and equipment that may be affixed to the realty, do not necessarily dictate their inclusion as real estate. In PP&L, supra, the trial court used a multi-disciplinary four-part approach to determine how taxable machinery and equipment should be viewed. The learned Judge Michael Conahan combined engineering, accounting, legal and commonsense elements. The ultimate outcome from the four-part process was the court’s determination of property commonly understood to be machinery and equipment.

The intervenors sought to add the value of expensive contested items affixed to the land to the equation, thereby increasing the assessment. These were items of great economic significance such as the reactor re-circulating system, residential heat removal system, reactor building, closed cooling water system, turbine condensers, etc. They argued that these improvements were affixed to the real estate and under the law of fixtures they must be included as improvements to real estate and excluded as machinery and equipment. The Commonwealth Court agreed with the trial court’s process succinctly and told the intervenors “we disagree.”

While basing their conclusions on utility-based statutes, Commonwealth Court’s reasoning is purposeful and gives great guidance. “Utility realty includes land and items affixed to the land. In addition, utility realty excludes machinery and equipment. The definition of utility realty utilizes both concepts and neither one trumps the other.” PP&L, supra, 838 A.2d at 14.

In affirming the trial court’s methodology and process, the Commonwealth Court found that the trial court’s analysis was consistent with the law insofar as it considered both whether an item was affixed to the land and whether an item was machinery and equipment.

A most recent pronouncement of the Commonwealth Court provides us with perhaps the most eloquent view of the thinking of our appeals courts. In the case of Hershey Entertainment and Resorts Company v. Dauphin County Board of Assessment Appeals, 874 A.2d 702 (Pa. Commw. 2005), hereinafter referred to as HERCO, which was decided on May 18, 2005, the Commonwealth Court was confronted with a taxpayer, Hershey, seeking to sustain atrial court’s findings and the board appealing the trial court’s findings.

The Commonwealth Court reviewed the Board of Assessment’s use of the income approach to valuation and concluded that the income approach amounted to an impermissible value-in-use methodology. The board was criticized for considering revenue generated by the productivity of the business from admissions, concession and souvenirs. Using the board’s approach, the Commonwealth Court cautioned the value of real estate would have fluctuated year to year based upon attendance and concession and souvenir sales. Quite obviously, this is unacceptable when assessing real estate valuations.

The trial court that reversed the board was similarly critical of the board’s value-in-use approach. In HERCO, supra, 874 A.2d at 705, the trial court was quoted and supported on the illegality of value-in-use methodology. The trial court stated,

“ ‘Use value’ or ‘value-in-use’ is a concept derived from the particular property and the value of that use to its current user, which may fluctuate based upon both management and administration of the property and other external conditions. . . . the use of the specific income of a specific user of a property is a value-in-use concept which is simply not permissible as a reflection of fair market value in any tax assessment case regardless of which of the three approaches is used. The board’s expert’s testimony starts with, and is based upon, the number of turns of the turnstile as patrons enter the amusement park... a starting point no different from that which was rejected in F&M Schaeffer Brewing Company where the appraiser began his analysis by determining the number of barrels of beer produced . .. .”

The trial court was sustained for both overruling the Dauphin County Board of Assessment for this value-in-use error and its rejection of the income approach witness at trial level. The line of reasoning has become consistent, be it beer barrels, turnstiles and concessions, or kilowatts of electricity in Allegheny Energy, supra, and PP&L, supra. As was correctly noted by the trial judge in PP&L, supra, where it is difficult to differentiate income from the realty and that from machinery and equipment, one of the other methods of valuation may be more probative. Perhaps the same may be said of tons of trash or cubic yards of landfill space representing value-in-use for our present parcel.

In HERCO, supra, the appeals court cited the trial court favorably for its observations of income-based valuation. Income-based valuation was cited as usually preferable in cases involving rental properties such as apartments, office space and shopping centers. You calculate available square footage, which has a potential for producing rental income by the act of renting it. HERCO, supra, 874 A.2d at 705-706.

Section 402 of the GCAL provides that valuation be in accordance with “actual value thereof,” and in arriving at this figure, there are the three methods of cost, comparable sales and income approaches that must all be used and considered in conjunction with one another. 72 P.S. §5020-402. Despite this, the trial court maintains the discretion to consider all the testimony and then determine which testimony to be competent, credible and relevant. Once again, we are now reminded that value-in-use is irrelevant in HERCO, supra.

Further, whatever valuation method is used it must not value the property in a manner significant only to the current owner,, or one owner, but it must value the property in a manner significant to any owner, any willing buyer and any willing seller. HERCO, supra, 874 A.2d at 707.

Clearly, using revenue generated by the business enterprises located on the property and not from the rental of the property itself is improper, HERCO, supra, 874 A.2d at 708, as this represents a value-in-use. If one employs the cost valuation approach, it must be used in such a fashion that the property’s use and resulting value-in-use are not considered. HERCO, supra, 874 A.2d at 708. Ultimately, the key distinction in all these cases seems to be the value of the parcels or the real property itself, and not the revenue generated by any business entity that may exist upon that parcel or realty. PP&L, supra, 838 A.2d at 10-11; HERCO, supra, 874 A.2d at 709.

CONCLUSION

With this most recent of pronouncement in HERCO, supra, and as a result of our detailed analysis of the past precedent herein, this court concludes that taxpayer’s motion for judgment for preparation of appraisal reports is granted. Further, this case is remanded to the Lackawanna County Board of Assessment and Revision of Taxes with explicit instructions to make a complete record suitable for trial court and appellate court review. It is further instructed that all experts from any party whatsoever are specifically precluded from presenting irrelevant value-in-use testimony using any legal methodology income, cost approach or comparable sales. Finally, this prohibition from using value-in-use would also apply to “special purposes” property evidence which is also irrelevant as essentially value-in-use concepts in disguise per F&M Schaeffer, supra, and HERCO, supra, 874 A.2d at 710.

An appropriate order follows.

ORDER

And now, to wit, November 16, 2005:

(1) The taxpayer’s motion for judgment on the pleadings regarding the legal requirements for the preparation of appraisal reports is hereby granted.

(2) Further, this case is remanded to the Lackawanna County Board of Assessment and Revision of Taxes with explicit direction and mandate to make a complete record capable of trial court and appellate court review, and further, that all experts from any party whatsoever are specifically precluded from presenting irrelevant value-in-use testimony using any legal methodology, be it income, cost approach or comparable sales. It is so ordered.

(3) Finally, this prohibition of irrelevant value-in-use testimony also extends to “special purpose” property evidence which is also irrelevant as essentially value-in-use concepts in disguise per F&M Schaeffer, supra, and HERCO, supra, 874 A.2d at 710.

It is so ordered.

      . County Tax assessment numbers: 12503020021, 12504020001, 1360-1030003, 13602010002, 1360202000201, 13604030001, 13703010002, 1360302000200, 13603020004, 1360401000100, 14701010001, 14701010002, 14701010003, 14701010005, 1470101000501, 14702010001, 14702010002, 14702010004, 14702010005 and 15708030028 (the properties).

      . All parcels listed in footnote 1 excluding parcel number 13601030003.

      . See taxpayers’ brief in support of motion for judgment on the pleadings pages 7-8.