IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Costa and Karen Costa,             :
and Elmtowne Gardens, LLC                 :
                                          :
             v.                           :   No. 826 C.D. 2016
                                          :   Argued: December 15, 2016
City of Allentown                         :
                                          :
Appeal of: Thomas Costa, Karen            :
Costa and Elmtowne Gardens, LLC           :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE BROBSON                              FILED: January 12, 2017

             Appellants Thomas Costa and Karen Costa (Costas) and Elmtowne
Gardens, LLC (Elmtowne) (collectively, Appellants) appeal from an order of the
Court of Common Pleas of Lehigh County (trial court), dated May 2, 2016,
denying their post-trial motions following a nonjury trial. Upon conclusion of the
trial, the trial court entered an order dated, December 22, 2015, finding in favor of
Appellee City of Allentown (City) and against Appellants in all respects. For the
reasons set forth below, we affirm.
             In 1999, the City passed Article 1759 of the City’s Property
Rehabilitation and Maintenance Code entitled “Licensing Residential Rental
Units” (Ordinance). (Reproduced Record (R.R.) at 112a.) The Ordinance’s stated
purpose is
             to protect and promote the public health, safety and
             welfare of its citizens, to establish rights and obligations
             of owners and occupants relating to residential rental
             units in the City and to encourage owners and occupants
             to maintain and improve the quality of rental housing
             within the community. As a means to these ends, this
             [O]rdinance provides for a systematic inspection
             program, registration and licensing of residential rental
             units, and penalties.
(Id.) In connection with its adoption of the Ordinance, the City made certain
findings:
             1. There is a growing concern in the community with the
             general decline in the physical condition of residential
             rental units;
             2. City records indicate there is greater incidence of
             problems with the maintenance and upkeep of residential
             properties which are not owner occupied as compared to
             those that are owner occupied;
             3. City records indicate there are a greater number of
             disturbances at residential rental units than all other
             properties combined; and
             4. City records indicate that violations of the various
             codes are generally less severe at owner-occupied units
             as compared to residential rental units.

(Id.) The Ordinance requires each residential rental unit located within the City to
have a residential rental registration or a residential rental license before it can be
lawfully rented or occupied. (Id. at 113a-14a.) A residential rental registration
must be obtained annually until such time that the residential rental unit is
inspected and a residential rental license is issued. (Id. at 113a, 115a-16a.) A
residential rental license is issued after the residential rental unit is inspected and
found to be in compliance with all City codes. (Id. at 113a, 116a.) The residential
rental license will thereafter remain in effect until the next regularly scheduled
systematic inspection occurs, which inspection will occur no more frequently than
once every five years, unless there is a complaint of violation or probable cause to
believe that a violation of City codes has occurred. (Id. at 116a.) The residential


                                          2
rental license may be revoked if the property owner does not correct code
violations discovered in connection with complaint inspections. (Id. at 116a-17a.)
The City charges a $75 annual license fee per residential rental unit for all
residential rental registrations and residential rental licenses. (Id. at 119a.)
             The Ordinance further requires every property owner to maintain the
residential rental units in compliance with all applicable codes, laws, regulations,
and local ordinances, to keep the residential rental units in a good and safe
condition, and to act to eliminate disruptive conduct in all residential rental units.
(Id. at 113a.) Occupants and their guests are required to conduct themselves in a
manner that does not disturb the peaceful enjoyment of the premises or nearby
properties. (Id. at 114a.) Occupants may not cause damage to the residential rental
units or engage in disruptive conduct. (Id. at 115a.) Police officers and other
public officers are required to investigate alleged incidents of disruptive conduct
and complete a report if they determine that disruptive conduct has occurred.
(Id. at 115a.) The Ordinance sets forth the manner by which property owners and
occupants may appeal the contents of a disruptive conduct report. (Id. at 115a,
118a-19a.) In the event that there are three disruptive conduct reports for any one
residential rental unit within a twelve month period, the property owner is required
to commence eviction proceedings against the occupants. (Id.) These provisions
are commonly referred to as the City’s “Rental Program.”
             At the time that the Ordinance was passed in 1999, there were
approximately 16,000 residential rental units located in the City, and the annual
license fee ranged from $11 to $21 per unit.        (Id. at 315a, 488a.) By 2014, the
number of residential rental units had increased to approximately 24,000, and the




                                            3
annual license fee was $75.1 (Id. at 315a, 488a-89a.) The residential rental units
consist of garden apartments, high-end apartments, low-end apartments,
conversions, single-family properties turned into multiple units, loft apartments,
mixed-use properties with commercial uses on the first floor and apartments on the
second floor, single-family properties, rooming units, and efficiency units.
(Supplemental Reproduced Record (Supp. R.R.) at 45b.)                   The quality of the
residential rental units varies throughout the City.            (Id. at 27b-28b.)       Some
residential rental units, such as older, conversion properties, are more complicated
and take longer to inspect than newer, “cookie-cutter” units originally built as
apartments. (Trial Tr. Vol. I at 31-32, 59-60.) The frequency of inspections
performed on residential rental units varies depending on the location of the
property, with some properties being inspected much less frequent than every five
years. (Id. at 209-11.) For example, residential rental units located in the City’s
downtown area are subject to more complaints and, therefore, receive more
frequent inspections than residential rental units located in other areas of the City.
(Id. at 209-10.)
              Appellants own and manage residential rental properties in the City.
The Costas own six residential rental properties, consisting of forty-two units.
Elmtowne owns one residential rental property, consisting of thirty-five units.
Appellants complied with the Ordinance and paid the $75 annual license fee for
each of their units since 2010. On December 22, 2011, Appellants initiated an
action against the City, alleging that the $75 annual license fee charged by the City


       1
          The City increased the annual license fee to $75 per residential rental unit in 2010.
(R.R. at 315a.)



                                              4
since 2010 constitutes an unlawful special tax that subsidizes general functions of
the City, such as police services, code enforcement, and boarding up vacant
properties and that the private industry can provide the same services performed by
the City under the Rental Program for a fraction of the City’s cost.2 Appellants’
amended complaint, filed on February 7, 2012, sought: (1) declaratory relief in the
form of a declaration that the $75 annual license fee is an unlawful special tax;
(2) an injunction enjoining the City from enforcing the Ordinance and/or collecting
the $75 annual license fee; and (3) a refund of the $75 annual license fee paid by
Appellants for each of their residential rental units since 2010.
              The trial court held a nonjury trial on July 30 and 31, and
August 1, 4, and 5, 2014. At that time, Appellants presented the testimony of
Robert L. Boland (Boland), a certified public accountant. Appellants’ counsel
provided Boland with three Pennsylvania cases, including University Park
Cinemas, Inc. v. Borough of Windber, 59 Pa. D. & C.2d 726 (C.P. Somerset 1972),
and directed Boland to rely on those cases. (Trial Tr. Vol. IV at 31-32, 76-79.)
Relying on those cases, Boland testified that the only costs attributable to the
Rental Program for purposes of justifying the $75 annual license fee are those
direct costs related to the registration and licensure of residential rental units that
would disappear if the Rental Program was terminated. (Id. at 31-33, 76-79.)
Boland’s calculation of the costs attributable to the Rental Program, therefore,
included only: (1) a percentage of the wages/salaries of the employees working in


       2
         This action was initially commenced against the City by Thomas Costa and Elmtowne.
In response to preliminary objections, Appellants filed an amended complaint adding Karen
Costa as a named plaintiff.



                                            5
the City’s rental housing division that perform Rental Program functions;
(2) personnel costs related to the Rental Program as identified on the City’s
2012 budget; and (3) a percentage of certain direct costs identified by David Paulus
(Paulus), Director of the City’s Bureau of Building Safety and Standards, such as
vehicle maintenance, vehicle insurance, fuel, cell phones, and computer costs.
(R.R. at 420a-31a.)
             In performing his analysis, Boland did not include any costs relating
to presale inspections, cleaning out and boarding up vacant properties, complaint
inspections, emergency sewer responses, policing functions, and demolitions,
because such costs had their own separate revenue source or were general
functions that the City performed for all properties, not just rental properties.
(Id. at 414a-16a, 433a-36a.) Boland also did not include any costs relating to
non-specific, general fund expenses that support the City as a whole or a
percentage of the wages/salaries of non-Rental Program personnel, such as the
Mayor, information technology, council president, police officers, and zoning
officers. (Id. at 447a-50a.) Despite his exclusion of these costs, Boland admitted
that if there were disproportionate demands on the City’s resources as a result of
residential rental units, such costs should be included as costs of the Rental
Program if they could be calculated. (Id. at 450a-53a.) Boland also admitted that
if City employees were involved in the billing and collecting of registration and
license fees, the costs associated with such activity should be included as costs of
the Rental Program. (Trial Tr. Vol. IV at 96.) Boland provided inconsistent
testimony as to whether all of the costs associated with the disruptive conduct
reporting function were included in his calculation of the Rental Program’s costs.
(Id. at 26-27, 57, 92-94, 113, 124.)


                                         6
             Appellants also presented the testimony of Kevin Pezzano (Pezzano)
and Anthony Tartaglia (Tartaglia) as experts in code enforcement and rental
inspection programs. Pezzano testified that the private industry would charge
between $25 and $60 per residential rental unit to perform the habitability-type
inspection contemplated by the Ordinance, which equates to $205,000 to inspect
and re-inspect 4,000 residential rental units. (Id. at 350a, 352a.) While he did not
initially consider the cost associated with the disruptive conduct reporting function,
Pezzano estimated that the private industry would charge an additional $10 per
residential rental unit to perform that function.     (Trial Tr. Vol. II at 64-65.)
Tartaglia, who operates a third-party inspection company, testified that his
company would charge the City between $45 and $50 per residential rental unit to
inspect 4,000 residential rental units per year, or approximately $240,000 per year,
with an additional $35 fee for re-inspections. (R.R. at 382a-83a, 387a.) Tartaglia
estimated that his company would charge an additional $18,000 to perform the
disruptive conduct reporting function, which would include sending out notice
letters and meeting with property owners. (Id. at 383a-85a.) Tartaglia explained,
however, that if a residential rental unit was non-compliant and a citation was
issued, the City would be billed separately for any additional work. (Id. at 385a.)
             In defense of Appellants’ claims, the City presented the testimony of
Dr. Trevor M. Knox (Knox), a certified public accountant. In calculating the costs
associated with the Rental Program, Knox utilized a full cost approach that
considered all costs associated with the Rental Program’s activities and any
involvement with residential rental units, as well as some overhead costs.
(Supp. R.R. at 70b-81b.) Knox explained that he treated the Rental Program as a
comprehensive program regulating all activities related to residential rental units.


                                          7
(Id. at 70b.) His calculation of the Rental Program’s costs included such things as:
(1) those Rental Program costs identified on the City’s 2012 budget, with some
adjustments for personnel expenses and current litigation expenses; (2) certain
non-personnel costs identified by Paulus in a 2012 expenditure detail, with some
adjustments based on Knox’s independent verification/calculation of such costs;
(3) personnel costs for those City employees who were performing Rental Program
activities, but which were not included in the City’s 2012 Rental Program budget;
(4) general overhead costs that could be re-allocated to the Rental Program; and
(5) the costs associated with the disproportionate number of police calls to
residential rental units. (Id. at 70b-81b.) Based on his calculation of the Rental
Program’s costs and the revenues generated by the $75 annual license fee per
residential rental unit, Knox concluded that the costs of the Rental Program are
approximately 15% below the maximum revenue generated by the license fee.
(Id. at 82b.)
                On December 22, 2015, the trial court issued an opinion and order
finding in favor of the City and against Appellants. The trial court found that
Appellants
                failed to meet their burden of showing [that] the City was
                not permitted to enact its comprehensive regulatory
                regime, [that] the annual $75 per [residential rental] unit
                fee is excessive in relation to the expenses of the
                regulatory program, or that the private sector can provide
                the same regulatory program cheaper than does the City.
(Trial Ct. Op. at 2.) In so finding, the trial court, inter alia, rejected Boland’s
testimony in favor of Knox’s testimony, concluded that for all practical purposes
the costs of the Rental Program equaled the revenues generated by the $75 annual
license fee per residential rental unit, and found Pezzano’s and Tartaglia’s


                                            8
testimony to be not credible. Appellants filed a motion for post-trial relief, which
the trial court denied on May 2, 2016. This appeal followed.
               On appeal,3 Appellants argue: (1) the trial court erred in determining
that the $75 annual license fee could be diverted to subsidize budgetary overhead
and the costs of general, unrelated governmental services; (2) the trial court erred
by not declaring the $75 annual license fee an unlawful special tax collected for
general tax revenue purposes; and (3) the trial court erred by not declaring the
$75 annual license fee unlawful because the private industry is able to perform the
services provided by the City under the Rental Program for only 13.7% of the total
annual license fees collected by the City.4
               We first address Appellants’ argument that the trial court erred when
it determined that the $75 annual license fee could be diverted to subsidize
budgetary overhead and the costs of general, unrelated governmental services.
More specifically, Appellants argue that the amount of the City’s license fee must
be limited to the actual and probable costs incurred to administer the Rental
Program. Appellants argue further that the trial court erred by adopting the full
cost approach utilized by Knox, the City’s expert, to substantiate the license fee,


       3
          Our standard of review is limited to determining whether the trial court abused its
discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a matter of
law. Commonwealth v. Tobin, 828 A.2d 415, 418 n.1 (Pa. Cmwlth.), appeal denied,
841 A.2d 533 (Pa. 2003).
       4
          In support of their arguments, Appellants cite, inter alia, Kappe v. West Chester
Borough (Pa. Cmwlth., No. 1905 C.D. 2003, filed May 11, 2004), an unreported panel decision
of this Court. Because Kappe is an unreported decision of this Court issued prior to
January 15, 2008, Appellants’ citation to and reliance on Kappe is improper as it is prohibited by
Section 414(a) of this Court’s Internal Operating Procedures. Nonetheless, our decision here is
not in conflict with the Court’s decision in Kappe.



                                                9
which approach, according to Appellants, erroneously included the following:
(1) $166,556 of the City’s annual general administrative overhead; (2) $482,285 of
the City’s annual general police services without isolating the cost of police calls
related to disruptive conduct complaints; (3) $223,000 of the wages/salaries for
administrative and operational personnel who perform general City services
unrelated to the Rental Program; and (4) the cost of code enforcement functions
that are unrelated to and predate the Rental Program, such as boarding up vacant
properties, complaint inspections, responding to emergency sewer issues, and
assisting in social services when living conditions of the property may be at issue.
Appellants contend, to the contrary, that the actual and probable costs of the Rental
Program are only those “special services” provided in connection with the Rental
Program, which they limit to the direct costs associated with the registration of the
residential rental unit, the initial and systematic inspection of the residential rental
unit, and the disruptive conduct reporting process, because those are the only costs
that were newly created by the Ordinance and would disappear if the Rental
Program was discontinued. In response, the City argues that the trial court’s
adoption of Knox’s full cost approach was “consistent with the legal standards
applicable to analyzing a license fee relating to a comprehensive regulatory
program[,]” and “the trial court properly determined that [Appellants] did not meet
their heavy burden of proof . . . because they failed to properly account for all costs
attributable to the [Rental P]rogram.”5 (City’s Br. at 24.)


       5
          The City also argues that Appellants have attempted to reargue the facts of the case,
because Appellants continue to use their version of the facts rather than those facts adopted by
the trial court. The City contends that this is improper and should be disregarded, because
Appellants have presented a purely legal argument to this Court for review and have not
(Footnote continued on next page…)

                                              10
              The Pennsylvania Supreme Court, in Mastrangelo v. Buckley,
250 A.2d 447 (Pa. 1969), defined a license fee as follows:
              A license fee is a sum assessed for the granting of a
              privilege. In most instances, where a license is granted
              the City invariably incurs expense such as the cost of
              registration and inspection; it is only proper that one who
              seeks and receives a license should bear this expense. To
              defray the cost of a license a fee is charged to the
              licensee; however, this fee must be commensurate with
              the expense incurred by the City in connection with the
              issuance and supervision of the license or privilege.

Mastrangelo, 250 A.2d at 464 (footnote omitted). “A license fee is distinguishable
from a tax[,] which is a revenue producing measure characterized by the
production of a high proportion of income relative to the costs of collection and
supervision.” Thompson v. City of Altoona Code Appeals Bd., 934 A.2d 130, 133
(Pa. Cmwlth. 2007). A municipality cannot impose a tax upon a business under
the guise of exercising its police power, and, therefore, a license fee will be struck
down if its amount is “grossly disproportionate to the sum required to pay the cost
of the due regulation of the business.” Flynn v. Horst, 51 A.2d 54, 60 (Pa. 1947).
“The party challenging a license fee has the burden of proving that the fee is
unreasonable.” Thompson, 934 A.2d at 133. “All doubt must be resolved in favor
of the reasonableness of the fee, since the municipality must be given reasonable
latitude in anticipating the expense of enforcing the ordinance.” Id.




(continued…)

challenged the trial court’s factual findings. While we acknowledge the City’s position, we need
not address this argument as it is not germane to our analysis of the issues on appeal.



                                              11
             We agree with the trial court that Appellants did not meet their burden
of proof in this case. In order to meet their burden and establish that the City’s
$75 annual license fee was unreasonable, Appellants first had to present evidence
regarding the costs incurred by the City in connection with the issuance of the
license and the supervision of the Rental Program. In an attempt to meet their
burden, Appellants presented the expert testimony of Boland, who opined that the
costs attributable to the Rental Program include only those direct costs related to
the registration and licensure of residential rental units that would disappear if the
Rental Program was terminated—i.e., the registration and licensure of the
residential rental unit, the initial and systematic inspection of the residential rental
units, and the disruptive conduct reporting process. Appellants’ reliance on cases
such as Warner Brothers Theatres, Inc. v. Borough of Pottstown, 63 A.2d 101
(Pa. Super. 1949), and University Park Cinemas, to support their narrow position
that the costs attributable to the Rental Program should be limited to “special
services” is misplaced. This is not a “special services” case, and a pure direct cost
analysis, as adopted by Boland, is inadequate to calculate the expenses incurred by
the City if there are also indirect costs related to the Rental Program. See, e.g.,
Thompson, 934 A.2d at 135 (“While the [d]epartment’s budget increased by only
$90,000 the first year, it is clear that the [d]epartment had devoted or redirected to
the [rental inspection p]rogram additional resources which had been included in
its pre-[rental inspection p]rogram budget and which were not represented within
the $90,000 increase. In justifying its license fee, the City was entitled to include
all costs attributable to the [rental inspection p]rogram, not just those costs that
resulted in an increase in the [d]epartment’s budget.” (emphasis added)).




                                          12
            While we do not necessarily agree that all of the costs presented by
Knox are attributable to the Rental Program, the trial court properly rejected
Appellants’ limited, direct cost scheme and concluded that there were also indirect
costs attributable to the Rental Program that Boland did not take into consideration
in his analysis. Indirect costs that are properly attributable to a governmental
program for the purposes of determining whether a license fee is grossly
disproportionate are those costs related to an increased burden on existing
governmental services. In other words, if the burden imposed on a budget line
item increases when a new program is added, such additional burden is properly
attributable to the new program regardless of whether the budget line item is
increased. In essence, the governmental unit is permitted to reallocate or redirect
existing costs to a newly established program if additional burdens are placed on
such governmental unit’s existing services. Applying these principles to the facts
of the present case, the indirect costs properly attributable to the Rental Program
and not considered by Boland include: (1) police services performed as part of the
Rental Program’s disruptive conduct reporting function; and (2) wages/salaries and
other personnel expenses for existing City employees who perform general
services and/or work for programs/departments other than the Rental Program, but
who also perform functions for the Rental Program.         On the other hand, the
indirect costs that are not properly attributable to the Rental Program, but
considered by Knox in his expert opinion, include: (1) general administrative
overhead that supports the City as a whole and is not attributable to any one
specific program, including the Rental Program; and (2) code enforcement
functions unrelated to the Rental Program—i.e., boarding up vacant properties,
responding to emergency sewer issues, and assisting social service agencies with


                                        13
conditions at residential rental properties. In this case, Appellants presented an
“all-or-nothing” approach that only included the Rental Program’s direct costs. As
a result, the trial court properly concluded that Appellants failed to meet their
burden of proof.
              The trial court could have concluded its analysis there and did not
need to make a determination regarding the Rental Program’s costs or whether
such costs were grossly disproportionate to the revenues generated by the
$75 annual license fee. The trial court did not err, however, by accepting Knox’s
expert opinion.    The trial court was presented with two expert opinions and
rejected one expert opinion over the other. Even though Knox’s expert opinion
included costs that are not properly attributable to the Rental Program, we cannot
find error in the trial court’s decision simply because the City may have failed to
present evidence sufficient to prove Appellants’ case—i.e., a proper calculation of
the total expenses incurred by the City in connection with the Rental Program. The
trial court properly concluded that Appellants failed to meet their burden of proof
by not considering the Rental Program’s indirect costs. The burden of proof never
shifted to the City to prove those indirect costs—i.e., it was Appellants’ burden to
calculate what portion of the general police services should be allocated to the
disruptive conduct reporting function, not the City’s burden. The City merely
needed to show that there were at least some significant indirect costs of the Rental
Program that were not quantified and considered by Boland, which it did. Once
the City did so, a conclusion that Appellants failed to meet their burden of proof
was proper.
              We are by no means saying that the City’s $75 annual license fee is
reasonable. Rather, we are saying that it was Appellants’ burden to establish that


                                         14
the $75 annual license fee was grossly disproportionate, which Appellants failed to
do.   Appellants presented a very narrow approach that did not take into
consideration any of the Rental Program’s indirect costs, and once the City
identified an unquantified and significant indirect cost that was properly
attributable to the Rental Program and the trial court accepted such indirect cost, it
was not an error for the trial court to conclude that Appellants failed to meet their
burden of proof.    For these reasons, we cannot conclude that the trial court
committed an error of law.
             Next, we address Appellants’ argument that the trial court erred by not
declaring the $75 annual license fee an unlawful special tax collected for general
tax revenue purposes. More specifically, Appellants argue that the $75 annual
license fee is an unlawful special tax because the revenues generated by it exceed
the actual and probable costs of the Rental Program by 200%.              In essence,
Appellants argue that the total revenues generated by the $75 annual license fee are
grossly disproportionate to the actual and probable expenses incurred by the City
in connection with the Rental Program. In response, the City argues that the trial
court properly concluded that the $75 annual license fee was not an unlawful
special tax. The City argues further that the trial court properly rejected Boland’s
testimony because it was based on “an erroneous understanding of the legal
standards governing the cost analysis applicable to license fees” and did not
include any indirect costs despite his concession that such costs should be
accounted for if they could be quantified. (City’s Br. at 49.) As set forth more
fully above, the trial court properly concluded that Appellants did not meet their
initial burden of proof with respect to establishing the total costs of the Rental
Program. As a result, we cannot conclude that the trial court erred by not declaring


                                         15
the $75 annual license fee an unlawful special tax collected for general tax revenue
purposes.
             Finally, we address Appellants’ argument that the trial court erred by
not declaring the $75 annual license fee unlawful because the private industry is
able to perform the services provided by the City under the Rental Program for
only 13.7% of the total annual license fees collected by the City.                More
specifically, Appellants argue that they “presented credible, unopposed evidence
from two code enforcement experts, Pezzano and Tartaglia[,] on the probable costs
of the private industry to perform” the services provided by the Rental Program,
including registration, inspection, and investigation of disruptive conduct
complaints and that “these two, very well qualified experts testified that the private
industry would perform the current Rental Program function . . . for a fraction of
the [total license fees] collected” by the City. (Appellants’ Br. at 57.) Appellants
argue further that the trial court erred in rejecting this expert testimony on the basis
that such experts did not include the costs associated with code enforcement
functions, such as boarding up vacant properties, complaint inspections,
responding to emergency sewer issues, and assisting in social services because
such costs are not attributable to the Rental Program. In response, the City argues
that Appellants’ arguments must fail because “private industry charges are not a
‘litmus test’ for the validity of a license fee, particularly where the license fee
relates to a general regulatory scheme, rather than the provision of a discrete
service.” (City’s Br. at 53.) The City argues further that Appellants’ arguments
also fail because the trial court rejected Pezzano’s and Tartaglia’s testimony “as
lacking in credibility, relevance and persuasiveness.” (City’s Br. at 53.)




                                          16
            In a nonjury trial, the trial court is the finder of fact and the sole judge
of credibility. In re Funds in the Possession of Conemaugh Twp. Supervisors,
753 A.2d 788, 790 (Pa. 2000).          The trial court “is free to reject even
uncontradicted testimony it finds lacking in credibility.”         D’Emilio v. Bd. of
Supervisors, Twp. of Bensalem, 628 A.2d 1230, 1233 (Pa. Cmwlth. 1993)
(emphasis added). The trial court’s credibility determinations will not be disturbed
on appeal. Spera v. Dep’t of Transp., Bureau of Driver Licensing, 817 A.2d 1236,
1240 (Pa. Cmwlth.), appeal denied, 841 A.2d 534 (Pa. 2003). Here, the trial court
found that Pezzano’s testimony was not credible because his expertise was with
fires and fire investigations, not rental housing inspections. The trial court also
found that Pezzano had no familiarity with the City and that “[h]is experiences in
Plymouth and Towamencin Townships have little in common with conditions in
[the City] in terms of the size of the [C]ity or its bureaucracy, demographics,
housing    stock,   residential     development[,]     or    the    complexity      and
comprehensiveness of its Rental Program.” (Trial Ct. Op. at 29.) Likewise, the
trial court determined that Tartaglia’s “experience is not comparable to [the City]
or the findings which form the basis of the Ordinance.” (Trial Ct. Op. at 33.) We
will not disturb these credibility determinations on appeal. As a result, we cannot
conclude that the trial court erred as a matter of law because Appellants failed to
present any credible evidence establishing that the private sector could perform the
services provided by the City under the Rental Program for a lower cost.
            For all of the above stated reasons, we affirm the trial court’s order.




                                  P. KEVIN BROBSON, Judge

                                         17
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Costa and Karen Costa,         :
and Elmtowne Gardens, LLC             :
                                      :
            v.                        :   No. 826 C.D. 2016
                                      :
City of Allentown                     :
                                      :
Appeal of: Thomas Costa, Karen        :
Costa and Elmtowne Gardens, LLC       :



                                  ORDER


            AND NOW, this 12th day of January, 2017, the order of the Court of
Common Pleas of Lehigh County is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge