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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robinson Township
:

:

v.

: Nos. 1155 C.D. 2004

: 1156 C.D. 2004
Board of Property Assessment
: 1157 C.D. 2004
Appeals and Review, Benjamin
: 1158 C.D. 2004
McCormick and Kathryn McCormick, :
his wife, Eleanor McCormick,
:
and the Estate of Elsie F. McCormick : Argued: February 1, 2005

:
Appeal of: Benjamin McCormick
:
and Kathryn McCormick, his wife, :
Eleanor McCormick, and the Estate of :
Elsie F. McCormick

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge

HONORABLE ROBERT SIMPSON, Judge
HONORABLE
MARY
HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON
FILED: March 18, 2005

Benjamin and Kathryn McCormick (collectively, Taxpayers) appeal
an order of the Court of Common Pleas of Allegheny County (trial court) that
increased the assessed values of three contiguous parcels of land (collectively,
Subject Properties). Taxpayers challenge evidentiary rulings. Concluding the trial
court ruled properly, we affirm.

Following a countywide reassessment in 2001, Robinson Township
(Township) appealed to the Board of Property Assessment, Appeals and Review
(Board) alleging the Subject Properties were underassessed. The Board concluded

the Subject Properties were properly assessed and did not increase their
assessment.

Shortly thereafter, the Township appealed to the trial court. The trial
court assigned the matter to the Allegheny County Board of Viewers to act as
Special Master. After the parties failed to reach an agreement at a conciliation
conference, the Special Master scheduled an evidentiary hearing. In anticipation of
the hearing, Jacob Nolte, the Township's real estate appraiser (Appraiser),
requested access to the Subject Properties, which Taxpayers denied.

At the evidentiary hearing, over objection, the Township presented the
testimony of Appraiser, as well as three restricted use appraisal reports,1 one for
each Subject Property, prepared by Appraiser. Appraiser opined the Subject
Properties were underassessed, and recommended an increase in their assessed
market values.

On cross-examination, Taxpayers attempted to present sales
information from Allegheny County's official website and topographical maps
maintained by Allegheny County. However, Appraiser testified he was unfamiliar

1 Standard 2 of the Uniform Standards of Professional Appraisal Practice (USPAP)
contemplates three types of written appraisal reports: (i) self-contained appraisal reports; (ii)
summary appraisal reports; and (iii) restricted use appraisal reports. A restricted use appraisal
report is the most limited of the three and is generated for the client's use only. The self-
contained report "describes" the process; the summary report "summarizes" it; the restricted use
appraisal "states" the appraisal process used and its results. For this reason, restricted use
appraisal reports are often brief and supplemented by relevant detail in an appraiser's work file.
Respondent's Br. at 9.
2

with and did not use this information in forming his opinions. The Special Master
sustained the Township's objection and instructed Taxpayers to introduce the
evidence in their own case-in-chief. Ignoring the Special Master's advice,
Taxpayers chose not to present any evidence. Instead, they rested on their cross-
examination of Appraiser.

After the hearing, a Notice of Report of Special Master and Order was
entered for each of the Subject Properties. In the reports, the Special Master
adopted Appraiser's opinions and recommended an increase in each Property's fair
market value to conform to Appraiser's opinion.

Taxpayers filed objections challenging several evidentiary rulings
made during the hearing. On review, the trial court determined the Special Master
correctly ruled on the admission and exclusion of evidence, and dismissed
Taxpayers' objections. As a result, the trial court adopted the Special Master's
reports. Taxpayers filed a motion for reconsideration, which the trial court denied.
This appeal followed.

Initially, we note, the decision whether to admit or exclude evidence
is within the sound discretion of the trial court. Our review is limited to
determining whether the trial court clearly abused its discretion or committed an
error of law. Peden v. Gambone Bros. Dev. Co., 798 A.2d 305 (Pa. Cmwlth.
2002). In order for an evidentiary ruling to constitute reversible error, the ruling
must not only be erroneous, but also prejudicial to the complaining party. Id.
3

Taxpayers first argue the trial court abused its discretion in overruling
their objection to the admission of Appraiser's expert testimony. Taxpayers
contend Appraiser's testimony is inadmissible under Frye v. United States, 293 F.
1013 (D.C. Cir. 1923). We disagree.

Frye sets forth the test for admissibility when a party wishes to
introduce novel scientific evidence obtained from the conclusions of an expert
witness. Commonwealth v. Delbridge, ___ Pa. ___, 859 A.2d 1254 (2004). Under
the Frye test, a party wishing to introduce such evidence must demonstrate the
relevant scientific community reached general acceptance of the principles and
methodology employed by the expert before the witness may testify regarding his
conclusions. Trach v. Fellin, 817 A.2d 1102 (Pa. Super. 2003).

Here, however, Frye is inapplicable because Appraiser's testimony
regarding the fair market value of the Subject Properties is not novel scientific
evidence. See Reading Radio, Inc. v. Fink, 833 A.2d 199 (Pa. Super. 2003).
Valuation is mathematical, and in that sense, scientific, but the methodology used
by Appraiser here, i.e., the comparison sales approach, is not novel. Id. As a
result, Taxpayers' reliance on Frye is misplaced.

Where, as here, a witness is not presenting novel scientific evidence,
there is a different test for qualifying an expert witness. The test is "whether the
witness has any reasonable pretension to specialized knowledge on the subject
under investigation. If he does, he may testify and the weight to be given is for the
4

trier of fact to determine." Miller v. Brass Rail Tavern, 541 Pa. 474, 481, 664 A.2d
525, 528 (1995).

Applying this test here, Appraiser testified he is a certified general
appraiser in Pennsylvania with 30 years experience as an associate broker at Nolte
Real Estate, and a senior appraiser at Landmark Appraisal Services. Appraiser
clearly qualifies as an expert witness and was properly permitted to testify at the
hearing. As such, we discern no error in the trial court's decision to receive
Appraiser's expert testimony.

Next, Taxpayers contend the trial court erred in overruling their
objection to the admission of the restricted use appraisal reports because the
Uniform Standards of Professional Appraisal Practice (USPAP) prohibits the
admission of such reports in assessment appeal hearings.

Taxpayers' argument is wholly without merit. Contrary to Taxpayers'
assertion, the USPAP does not promulgate the legal standards for admissibility of
evidence in tax assessment appeals. Rather, it sets forth the standards of
professional conduct for real estate appraisers. As such, the USPAP's guidelines
concerning the use of restricted use appraisal reports are irrelevant.

Further, Appraiser's live testimony at the hearing is a sufficient basis
to support the trial court's decision. Under these circumstances it is not surprising
that Taxpayers fail to claim the admission of the reports was prejudicial. Thus,
even if we concluded the reports were erroneously admitted, this error would be
5

harmless. Dep't of Gen. Servs. v. United States Mineral Prods. Co., 809 A.2d
1000 (Pa. Cmwlth. 2002) (erroneous evidentiary rulings which do not affect the
verdict are harmless).

Finally, Taxpayers argue the trial court erred in overruling their
objection to the exclusion of sales information contained on Allegheny County's
official website and certified topographical maps maintained by Allegheny County
during their cross-examination of Appraiser. Again, we disagree.

The scope of cross-examination includes the right to examine the
witness on any facts tending to refute inferences or deductions arising from the
testimony of a witness on direct examination, thereby affecting his credibility.
Chicchi v. Southeastern Pennsylvania Transp. Auth., 727 A.2d 604 (Pa. Cmwlth.
1999). The scope and limits of cross-examination are within the trial court's sound
discretion, and the exercise of that discretion will not be reversed in the absence of
a clear abuse of discretion or error of law. Id. In addition, the trial court has
discretion to exclude relevant evidence if the evidence's probative value is
outweighed by the danger of unfair prejudice, confusion of the issues or undue
delay. Pa. R.E. 403.

Matters not in evidence, however, cannot be used as the basis for
cross-examination, United States Mineral Prods. Co, and a trial court will not be
reversed for limiting such cross-examination when the obvious purpose of the
questioning is to develop the party's own case. Kearns by Kearns v. DeHass, 546
A.2d 1226 (Pa. Super. 1988). To permit a party to present new matter constituting
6

his own case under the guise of cross-examination is disorderly and often unfair to
the opposing party. In re Rogan's Estate, 404 Pa. 205, 171 A.2d 177 (1961). As
such, a ruling limiting cross-examination should only be reversed when it
precludes the cross-examiner from affirmatively presenting such evidence during
his own case-in-chief. Kearns.

Here, Taxpayers were not precluded from cross-examining Appraiser
concerning his opinion of the fair market value of the Subject Properties. Rather,
Taxpayers were prevented from covertly introducing sales data and topographical
maps into evidence under the guise of cross-examination. In addition, the Special
Master's ruling did not prohibit Taxpayers from introducing the evidence in their
case-in-chief. To the contrary, the Special Master repeatedly instructed Taxpayers
to introduce the evidence. Notes of Testimony (N.T.) at 75, 77, 82, 83, 85, 88, 89.
Nevertheless, Taxpayers chose not to present any evidence during their case-in-
chief. Under these circumstances, the trial court properly overruled Taxpayers'
objection. Kearns. See also Pa. R.E. 403.

Accordingly, we affirm.

ROBERT
SIMPSON,
Judge

President Judge Colins dissent.

7