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HomeMy WebLinkAbout01-05659r M CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (Cl To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEATH COURT OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: CHAPEL POINTE HOME OF CARLISLE PA t/a CHAPEL POINT v. BOARD OF ASSESSMENT APPEALS, CARLISLE SCHOOL DISTRICT, BOROUGH OF CARLISLE and CUMBERLAND COUNTY 01-5659 CIVIL TERM 595 CD 2002 The documents comprising the record have been numbered from No. 1 to 206 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4/10/02 . Date ~_ C 's R. Long, 'rot onotary J e K. Spading, Dpty. Signature & Title r .. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND in the Commonwealth of Pennsylvania 595 CD 2002 to No, 01-5659 CIVIL Term, 19 is contained the following: COPY OF COMPLETE DOCKET ENTRY CHAPEL POINTE HOME OF CARLISLE, PA t/a CHAPEL POINT v. BOARD OF ASSESSMENT APPEALS, CARLISLE SCHOOL DISTRICT, BOROUGH OF CARLISLE and CUMBERLAND COUNTY SEE ATTACHED CERTIFIED DOCKET ENTRIES. Commonwealth of Pennsylvania County of Cumberland ss: I Curtis R. Long ,Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Chapel Pointe Home of Carlisle PA t/a Chapel Point Plaintiff, and Bd of Assessment Appeals, Carlisle School Dist, Boro of Carlisle et'al_ Defendants , as the same remains of record before the said Court at No. 01-5659 of Civil Term, A. D. 19-. In TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 10th day of A ril ~ A. D.,a~_. G ~ 0 (~,}~ ->~_~ of ono ary I George E. Hoffer "Y President Judge of the Ninth Judicial Distri t, com osedd of the County of Cumberland, do certify that ~urt~s R. Long by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of CUMBERLAND in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts ofjudicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the pr fC er f Pre, dent Judge Commonwealth of Pennsylvania County of Cumberland ss: I Curtis R. Long Prothonotar of the Tiot~J~T of Common Pleas in and for the said County, do certify that the Honorable Geor~e E. o er, P.J. by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts ofjudicature as elsewhere. IN TESTIMONY WHEREOF, 1 have hereunto set myy hand and affixed the seal of said Court this 10th ~a„ ..r A ril A. D. ~~02 ~~~_ !(~, Prothonora ry a PACE NO. 1 - 15 16 17-20 21 22 23 - 41 42 - 45 46 - 47 48 - 205 48 - 205 206 PYS510 Cumberland County Prothonotary's Office Page Civil Case Inquiry 2001-05659 CHAPEL POINTE HOME OF CARLISLE (vs) BOARD OF ASSESSMENT APPEALS Reference No..: Filed........: Case Tye:....: APPEAL - ASSESSMENT Time.........: Judgmen .00 Execution Date Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. ------------ Case Comments -------°----- Higher Crt l.: Higher Crt 2.: 9/28/2001 9:32 0/00/0000 0/00/0000 595 CD 2002 ********************************************************************************I General Index Attorney Info CHAPEL POINTE HOME OF CARLISLE APPELLANT HANFORD STEVEN T PA 770 SOUTH HANOVER STREET CARLISLE PA 17013 CHAPEL POINT APPELLANT HANFORD STEVEN T 770 SOUTH HANOVER STREET CARLISLE PA 17013 BOARD OF ASSESSMENT APPEALS APPELLEE CARLISLE AREA SCHOOL DISTRICT APPELLEE BOROUGH OF CARLISLE APPELLEE CUMBERLAND COUNTY APPELLEE ******************************************************************************** * Date Entries **************************************************************•k***************** FIRST ENTRY 9/28/2001 10/05/2001 APPEAL FROM DECISION OF ORDER OF THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS AND PETITION FOR EXEMPTION FROM REAL ESTATE TAXES ORD~RCUMBERLAND COUNTY COf7RTHOUSEACARELISLE PA AT 8E450~U12/6/Ol ON 2002 - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 10/5/Ol ------------------------------------------------------------------- 10/30/2001 MOTION TO QUASH APPEAL - JAMES D FLOWER JR ESQ - SOLICITOR FOR CARLISLE AREA SCHOOL DISTRICT ------------------------------------------------------------------- 10/31/2001 ORDER OF COURT DATED 10/31/01 - THE MOTION OF RESPONDENTS TO QUASH THE WITHIN APPEAL IS DENIE - BY THE COURT - EDGAR B BAYLEY J COPIES MAILED 10/31/01 12/06/2001 ORDER OF COURT - DATED 12/6/01 - TRIAL HAVING BEEN COMPLETED ADN THE RECORD CLOSED IT IS O RED THAT COUNSEL FORWARD A BRIEF TO CHAMBERS NOT TER THAT 12 17JO1 ORAL ARGUMENT SHAhL BE CONDUCTED 12/6/00 PM 12~8/O1 - BY T E COURT EDGAR B BAYLEY J COPIES MAILED 1/31/2002 OPINION AND ORDER - DATED 1/31/02 - IN RE PETITION FOR EXEMPTION FROM REAL ESTATE TAXES - TH P TITION OF ALLIANCE HOME OF CARLISLE PA T/A CHAPEL POINTE FOR AN EXEMPTION FROM REAL ESTATE FOR ITS NINETY-THREE APARTMENTS AT 770 SOUTH HANOVER ST CARLISLE CUMBERLAND COUNTY IS DENIED - BY EDGAR B BAYLEY J -- COPIES MAILED 1/31/02 -------------------------------------------------------------------- 2/25/2002 THISCMA~TERPONAI/30/COOMMOB ESTEVENOTRHANFORDTESQ FORRAPPELRLANTIN, ------------------------------------------------------------------- 3/11/2002 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 595 CD 2002 ------------------------------------------------------------------- 3/14/2002 TRANSCRIPT LODGED ------------------------------------------------------- -- 3/21/2002 TRANSCRIPT FILED - BY THE COURT EDGAR B BAYLEY J EXHIBITS - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq~ Bal Py*[nts/Add End Bal ******************************** ******** ****** ******************************* APPEAL MISC 35.00 35.00 .00 OCT 4!} CAPOZZI & ASSOCIATES, P.C. By: Steven T. Hanford, Esquire Attorney I.D. No. 47105 2933 North Front Street Harrisburg, PA 17110 (717)233-4101 Attorney for Petitioner, Alliance Home of Carlisle, PA, t/a Chapel Pointe BEFORE THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHAPEL POINTE HOME OF CARLISLE, PA, t/a CHAPEL POINT, Petitioner vs. BOARD OF ASSESSMENT APPEALS, CARLISLE AREA SCHOOL DISTRICT, BOROUGH OF CARLISLE and CUMBERLAND COUNTY ORDER AND NOW, to wit, this day of NO. CIVIL TERM ,200 ,upon consideration of the Appeal and Petition for Exemption from Real Estate Taxes in the above- captioned matter, and the Respondents' response thereto, and after notice and a hearhig, it is hereby ORDERED, that the Court determines that the Petitioner, Alliance Home of Carlisle, t/a Chapel Pointe, is a "purely public charity", as that term is defined in the Constitution of the Commonwealth of Pennsylvania. FiJRTHER ORDERED, that the property of Petitioner located at 770 South Hanover Street, Carlisle Borough, Cumberland County, Pennsylvania, Tax Pazcel No. 04-22-0483-132, is hereby declazed to be exempt from real estate taxes for the tax year 2002 and thereafter, and the Page 1 of 2 I ~y Cumberland County Boazd of Assessments is hereby directed to record such exemption in its assessment records. BY THE COURT: J. Page 2 of 2 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, ~ ~ ~ ~ y,~ ~ ~ ~ , Appellant l~ v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C.D. 2002 Argued: March 31, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE L. CORN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION BY JUDGE PELLEGRINI FILED: June 15, 2004 Alliance Home of Carlisle, Pem~sylvania, t/a Chapel Pointe (Chapel Pointe) appeals from an order of the Court of Coirunon Pleas of Cumberland County (trial court) denying its request to extend its charitable real estate tax exemption to the parcel of property on which its independent living section is located. Chapel Pon7te is anon-profit corporation that was formed in 1944 to provide a home and sustenance for aged and infirm people in Carlisle, Pennsylvania. It cuizently operates as a licensed continuing care retirement convnunity. Located on its property is a 59-bed skilled nursing home, which has been exempted from real estate taxation as a hospital and a 53-bed assisted living compound, which has been exempted as well. Also located on the property and at issue in t1~is case are 93 apartments that fimetion as the independent living component of the Chapel Pointe retirement community. In 1997, the trial court affirmed a decision by the Cumberland County Board of Assessment (Board) denying an extension of the tax exemptions for the skilled nursing home and assisted living areas to the contiguous parcel on which the independent living units are located, finding that Chapel Pointe was not a purely public charity and was not entitled to an exemption from real estate taxes on the aparhl7ent units. Chapel Pointe did not appeal this decision. In 2001, after the enactment of the 117stitutions of Purely Public Charity Act' (more commonly referred to as "Act 55"), Chapel Pointe again petitioned the Board requesting a determination that it was entitled to a presumption under Act 55 that it was an institution of purely public charity, and the parcel consisting of the independent living apartments be exempt from real estate taxes as a purely public charity. It argued that it met both the constitutional and statutory tests for exemption by providing, among other things, uncompensated goods and services to t11e residents which were in excess of five percent of the cost of providing such goods and services as required. The Board denied the request after concluding that it was res judicata based on the 1997 decision and precluded re-litigation. Chapel Pointe then appealed to the trial court which permitted a hearing on the matter. At the hearing, Chapel Pointe presented the testimony of H. David Padden (Padden), a certified public accouritant, who provided the following Act of November 26, 1997, P.L. 508, 10 P.S. §§371.-385. 2 information regarding Chapel Pointe's 93Z independent living apartments: he stated that the minimum age requirement for a resident in an apartment was 62, and that all the apartments were privately paid for by the residents without any gavemment subsidies. He explained that a perspective resident had to provide Chapel Pointe with a detailed financial statement, and Chapel Pointe did not admit any resident who could not pay the entrance fee up front and whose fmancial information did not reflect that they could pay the monthly rental fees. One apartment unit was used as a model. The total amount for the entrance fees for the 92 apartments for residents was $5,721.,000. As of the date of the hearing, four apartments were vacant. The entrance fee was amortized to income over a period of time. Padden continued to state that Chapel Pointe placed each apartment on a 40-year depreciation schedule, and the average stay for a resident was three to four years. However, residents could stay in their apartments as long as they were safe and then they could be moved to either the assisted living compotuld or to the nursing home within Chapel Pointe. He stated that the average stay of a resident was four to five years. He further stated that Chapel Pointe amortized all entrance fees over the life expectancy of the resident. He explained that Chapel Pointe amortized the entrance fee at 20% each year prorated monthly fox five years; therefore, if a resident left the aparhnent within five years, a prorated amount of the entrance fee would be refiuided. Nonetheless, all income earned on an entrance fee was retained by Chapel Pointe, and after five years, no portion of the entrance fee ~ The 93 apaa-tment routs consist of the Colonial Apartments (11 units); Taizett Apartments (three, 4-unit townhouses); Heritage & Harmony Suites (two, 12-unit apartment buildings); Cornerstone Manor (23 units); and Bedford Terrace (23 units). 3 was refundable. Padden also stated that a uniform monfllly rental fee was charged for each apartment. Regarding uncompensated services, Padden stated that 55% of the apartment residents received some type of uncompensated services such as assistance with the timely taking of medications, participation in some social activities, and advice regarding family or financial problems which amounted to them receiving uncompensated services greater than 10% of the cost of care. Regarding Chapel Pointe's fmancial statement, Padden stated that Chapel Pointe allocated its administrative costs on the basis of total operating costs, with 68% of administrative costs allocated to xhe nursing home, 22% to the assisted living compound, and 9% for the independent living apartments, Although Padden testified that for years 1998, 1999 and 2000, Chapel Pointe realized an operating loss and had relied upon contributions and bequests to make up for that loss, on cross-examination, he admitted that ill aiYiving at the figures that determined the losses, he included depreciation -for each year and did not include other contributions and non-operating revenues and gains. Jolu1 Hendrickson (Hendrickson), the Executive Director of Chapel Pointe, testified that entrance fees ranged from $37,000 for an efficiency apartment to $73,000 for atwo-bedroom apartment, and that Chapel Pointe earned 20% from each entrance fee that was charged. He could not recall ever waiving the entrance fee. Currently, the rent was $599 for one resident and an additional $130 for an additional occupant. Hendrickson indicated that there were a few residents who had trouble meeting their monthly payment and were receiving some financial assistance from Chapel Pointe. Residents whose income had become insufficient to pay the rent were required to immediately apply for financial assistance from their family, 4 church or public welfare agencies. He noted that if the monthly rental fee was not timely paid, Chapel Pointe could ternlinate the residency, although it had never done so. Residents were required to annually prepare and submit a current financial statement to Chapel Pointe and the failure to do so constitutes grounds for tern~ination/eviction. Hendrickson stated that it was Chapel Pointe's policy for any surplus in revenues that were generated from fees charged or from charitable donations given to remain with Chapel Pointe. To defend the requirement of the enhance fee and a resident's disclosure of his or her assets, Hendrickson explained their importance: There is a limit to the amount of benevolent care that we can provide. We're not a large facility with a huge endowment that can provide benevolent care without using monies coming in from operations. So we want to look at and be sure that we're going to be able to provide the benevolent care that we've already committed to, and so we have to be sure that there are people who are coming in are private pay. -The other reason is that we want to be sure that we have something to compare a disclosure to now should they apply for a different level of living down the road and there is a significant difference in the amount of assets that are there. Again, we do not want to give. charity to just anyone. We want to give charity to or financial assistance to people that truly qualify for financial assistance. (Emphasis added.) (Reproduced Record at 157-158.) Richard Lehmann, Chapel Pointe's director of Financial Services, testified that there were only three residents that were currently receivnlg direct financial assistance from Chapel Pointe. He explained that that meant that those residents could not cover the rental fee and, although they were billed the full amount, Chapel Pointe wrote off $100 or $150 a month as a benevolent allowance. 5 Testifying on behalf of the Board and Cumberland County (County) were William Reath (Reath), a real estate assessor with the County and Randy Waggoner (Waggoner), an assessment consultant for Wolfe and Shearer Realtors. Reath testified that the cun-ent assessed value of the 93 aparnnents was $2,593,350 for 100% of the market value in the year 2000. Waggoner testified that he previously worked for 18 years iii the Cumberland County Assessment Office, I3 of those years as its Chief Assessor. He stated that he visited the independent living apartments and then conducted a rental survey of rental apartments in the area to compare rental prices. He found that the low-end of the scale for one-bedroom apartments was $325 per month and $425 per month for two-bedrooms while the average was $350 per month and $450 per month for one-bedroom and two- bedroom apartments, respectively. The trial court initially denied Chapel Pointe's contention that it was entitled to a rebuttable presumption tu2der Act 55 that it was a purely public charity because that was a preliminary question which first had to be answered within the meaning of Article 8, Section 2(a)(v) of the Pemzsylvania Constiturion. It then denied Chapel Pointe's petition for an exemption from the real estate tax as a purely public charity because it did not prove that it donated or rendered gratuitously a substantial portion of its services to the residents of its apartments, noting that residents had to meet financial requirements before admission; Chapel Pointe received $5,721,000 for 92 units plus additional entrance fees for subsequent occupants; it retained the entire entrance fee after five years and prorated the fee if the resident died or left before that time; and it charged a monthly rental which was substantially higher than the norm for a rental in the Carlisle area. The trial court noted: 6 ., x~sv.,.a.~»Poaraw~*~um~x't. _~x _,.-3,,,, ;w.~..:w,~a®~.~ze!ua~3zn~cs. ..... +ka~a . rr.+j This system gives older people, at a considerable cost, a safe comfortable place to live, it provides ancillary services for a charge, and residents get priority for transition into the assisted living compound and{or nursing home if the unfortunate need arises. The system provides a substantial amount of money for Chapel Pointe, and a steady source of future occupants of its assisted living compound and nursing home. (Trial court's January 31, 2002 opinion at 17.j This appeal by Chapel Pointe followed. Chapel Pointe contends that the trial court erred in refusing its request for a tax exemption because it looked at the parcel of land on which the independent living apartments are located separately from the other living facilities, i.e., the assisted living and skilled nursing facilities, when considering whether Chapel Pointe was a purely public charity under Article 8, Section 2 of the Pennsylvania Constitution and Act 55 instead of treating Chapel Pointe as one institution in making its evaluation.3 ~ Chapel Pointe initially argues that the trial court erred in concluding that it was not entitled to the rebuttable presmmption that it was au institution of purely public chanty because it previously was found to be an institution of purely public charity regarding its other facilities. It directs our attention to Section 5(b) of Act 55 which provides: Burden of proof. If an institution of purely public charity asserts a presumption render subsection (a), a political subdivision challenging that institution before a govermment agency or court shall bear the burden, by a preponderance of the evidence, of proving that the institution of purely public charity does not comply with the requirements of section 5. 10 Pa. C.S. §376(b). Chape] Pointe argues that nothing in the Constitution nistructs the courts on the process to determine whether an institution is one of purely public charity, and the rebuttable presumption in Act 55 should apply because it is not being relied upon to ultimately (Footnote continued on next page...) 7 Article 8, Section 2 of the Pennsylvania Constitution provides that, °[t]he General Assembly may exempt from taxation...Institutions of purely public charity, but in the case of any real property tax exemptions only that portion of real property of such institution which is actually and regularly used for the purposes of the institution." (Emphasis added.) In Hospital Utilization Project v. Commonwealth of Pennsylvania (HUP), 507 Pa. 1, 487 A2d 1306 (1985), our Supreme Court determined that an entity qualified as a purely public charity under the Constitution if it met the following test: I . Advances a charitable purpose; 2. Donates or renders gratuitously a substantial portion of its services; 3. Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; q. Relieves the govennnent of some of its burden; and 5. Operates entirely free from profit motive. (continued...) determine whether it qualifies for a tax exemption, but only to establish the process tlu-ough which the taxing authority must proceed to impose taxes on real property to determine that the real property is taxable. That issue ignores that what this issue involves is not whether Chapel Pointe, an institution of purely public charity, which for the purposes of this case is conceded, but whether the independent living apartments are being used for charitable purposes. In any event, we need not address this issue because the facts are not in dispute, and this issue merely inquires whether those facts, as established, meet the legal standards for a purely public chanty, making the presumption in-elevant. 8 Rather than adopting a more stringent test, Section 5 of Act 55, 10 P.S. §375, adopted this test. This Court has followed that Constitutional mandate and the standards set forth in HUP in two cases that are quite similar factually to the case sub judice and has in both instances upheld the denial of a tax exemption for a facility on property that also maintains additional facilities that do qualify for a tax exemption based on the entity's classification as a purely public charity. 1n Appeal of Lutheran Social Services, 539 A.2d 895 (Pa. Cmwlth. 1988), Lutheran Social Services appealed from the' denial of a real estate tax exemption for its 96-unit apartment building and 81 cottage units it operated as part of a retirement connnunity for the elderly which also contained a nursing facility. The Board of Assessment reclassified the apartment building and cottages from tax exempt to taxable but did not change the stahts of the nursing facility from tax exempt. On appeal, we detemuned that the apartments were tax exempt because while the applicants paid a processing fee, they did not pay an admission fee and the fees did not cover the operating expenses of the apartments. Many of the residents were exonerated from paying increases in their monthly fees. The apartments operated at a deficit. As to the cottages, applicants paid an entrance fee ranging fiom $38,500 to $46,000 depending on the type of trait; no resident was ever admitted without paying the entrance fee; if the resident died, any balance became the property of Lutheran Social Services; and residents paid a monthly maintenance fee plus their own utilities. We stated: The cottage operation at Luther Acres presents an entirely different situation. Even if the fact that the cottages provide housing for the elderly were held to satisfy the first Hospital Utilization Project criterion of advancing a charitable purpose, the cottage operation runs afoul of the 9 second criterion, that of donating or rendering gratuitously a substantial portion of its services. The simple fact that the cottage operation consistently realizes a substantial profit demonstrates that no services are being rendered free to cottage residents. LSS's claim that it subsidizes cottage residents by not charging them $20 per month in taxes and by exonerating some fiom increases in the monthly maintenance fee is tmteuable... The cottage operation sells something -housing for the elderly - at a profit, and LSS then uses that profit for the purposes above held to be charitable in nature. However, the situation would be no different if LSS conducted some other business on the premises, manufacturing or retailing for example, at a profit, and then donated that profit to its charitable activities. Such fiord-raising would be laudable but not, in the legal sense, charitable. Id. at 901-902. Relying upon Lutheran Socinl Services, we came to the same conclusion in Appeal of Bet72len Home, 557 A.2d 828 (Pa. Cmwlth. 1989). In that case, Bethlen Home operated a facility that included a nursing home which provided internlediate and advanced nursing care as well as seven retirement cottages that consisted of two separate living traits. The County of Westmoreland assessed the retirement cottages and the land on which they were erected for real estate taxes and Bethlen Home appealed. The appeal was denied and the trial court held that the retirement cottages were tax exempt. On appeal, we reversed based on the following facts: the residents had to be 65 years or older to reside in a cottage; they had to submit evidence of their financial ability to sustain independent living; they had to pay an entrance fee ranging from $25,000 to $45,500; no applicant ever took occupancy without paying the fee; aid occupants paid a monthly service fee of $25 plus all of their utilities. We noted that although occupants were able to receive free nursing care in the nursnzg home at some time in die future, that fact was irrelevant 10 to the determination of whether the cottage operation was of a purely public charity. Further, even though Bethlen repaired its cottages free of charge and provided lawn mowing and snow removal at no cost to the occupants, we concluded that those few services were insufficient to meet the second criterion of HUP. While it was conceded that Chapel Pointe's assisted living and the skilled nursing facilities are used for a charitable purpose and the land on which they are located have been given a tax exemption, we are not required to exempt from taxation the independent living aparrinents or any other facilities on the same property, whether they be charitable or not, merely because they are located on the same property. Were we to find otherwise, any use could be placed on property that already has received a tax exemption for real estate based on a charitable exemption. Of course, if Chapel Pointe's purpose tips away from being charitable because of an acctmlulation ofnon-charitable activities or if a claim is made that it competes in its activities with "for profits," see Section 8(a) of Act 55, 10 P.S. §378, then its entire exemption can be challenged. Chapel Pointe then argues that it even if we look at the parcel and use separate and apart from that which has already been exempted, the independent living apartments meet the definition of a purely public charity.4 The only prong of the standard at issue in this case is whether Chapel Pointe donates or renders a Whether an institution is one of purely public charity is a mixed question of fact and law, and we are bound by the trial court's decision as long as there is no abuse of discretion and there is supporting evidence. Concern-Professional Services for Children and Youth v. Board of Assessment Appeals of Berlcs Cowit~~, 560 A.2d 932 (Pa. Cmwlth.), petition for allowance of appeal de~aied, 524 Pa. 612, 569 A.a2d 1370 (1989). 4. ..._ ,._..- gratuitously a substantial portion of its services relative to the independent living apartments. Chapel Pointe contends that it has met this requirement under Section 5(d)(1)(iii) of Act 55, 10 P.S. §376(d)(1)(iii), which provides that u1 order to prove that an institution renders gratuitously a substantial portion of its services, it may show that it provides wholly gratLtitous goods or services to at least `% of those receiving similar goods or services from the institution. The trial court in this case found otherwise, detern~ining that there was no evidence that Chapel Pointe was donating a substantial portion of its, services to the residents living in the independent living apartments and, therefore, did not meet the definition of a purely public charity.s We agree. As the trial court stated: Chapel Pointe has not proven by credible evidence, under any standard, that it donates or renders gratuitously a substantial portion of its services to the residents of its apartments. No assistance is provided to any residents for the payment of their entrance fees. Very minimal assistance is provided to a few residents by adjusting their n7onthly rental fees. Some financially insignificant ancillary program benefits are provided for those residents who choose to participate. The apartment operation helps fund Chapel Pointe's nursing home and assisted living compound. Chapel Pointe's convoluted effort to utilize the criteria in its unified financial statement to convenience us, based on a cost per day per resident analysis, that (1) the aparhnents operate as a loss, and (2) it renders gratuitously a substantial portion of services for the apartment resi~dsnts, is not credible. Under Article 8, Section 2(a)(v) of the Pennsylvania Constitution, it is "only that portion of s Although not before us, it also seems there is an issue as to whether Chapel Pointe's independent living apartments benefit a substantial and indefinite class of persons who are legitimate subjects of charity when they are required to pay a substantial entrance fee and monthly rental fee. 12 ~A %Y`?4M~?rt,PIl~WWSf~'.~A_ biNP$IRYF i... G'r0.>:Y= •.r::'^~. •-' ~:+-n=#iPti~b4"AS5CiMGMR!HWFIIff~iEW3~~§-'~] real property of [an] institution which is actually and regularly used" for "purely public charity," that is exempt from real property taxes. Thus, unlike the nursing home and the assisted living compound, the apartments and the land they are on do not qualify for a statutory real estate tax exemption. Because there is substantial evidence in the record to support the trial court's determination, we will not disturb that determination on appeal. Accordingly, the order of the trial court is affirmed. ~~.~ ~ _ DAN PELLEGRINI, J DGE 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. No. 595 C.D. 2002 Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County ORDER AND NOW, this 15`x' day of June, 2004, the order of the Court of Common Pleas of Cumberland County, dated January 31, 2002, is affirmed. /~' ~~ rv.'c,~ DAN PELLEGRINI, JU GE Certified from tt~e Record JUM 1 5 2004 and tJrder Exit IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C.D. 2002 Argued: March 31, 2004 BE11 ORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge DISSENTING OPINION BY JUDGE SIMPSON FILED: June 15, 2004 I respectfully dissent because I believe the thoughtful trial judge incorrectly applied the constitutional tests for charitable tax exemption. "An entity seeking a statutory exemption for taxation rnust first establish that it is a `purely public charity' under Article VIII, Section 2 of the. Pennsylvania Constitution before the question of whether that entity meets the qualifications of a statutory exemption can be reached." Cmt y. O p ti •ons, Imc. v. Bd. of Prop. Assessment, 571 Pa. 672, 676, 813 A.2d 680, 683 (2002). ~., In Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985), our Supreme Court set forth afive-part test for determining whether an entity qualifies as a "purely public charity" under the Pennsylvania Constitution: [A]n entity qualifies as a purely public charity if it possesses the following characteristics. (a) Advances a charitable purpose; (b) Donates or renders gratuitously a substantial portion of its services; (c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (d) Relieves the government of some of its burden; and (e) Operates entirely free from profit motive. 507 Pa. at 22, 487 A.2d at 1317 (HUP test). "For the [entity] to obtain the claimed exemption from taxation, it must affirmatively show that the entire institution, (1) is one of `purely public charity'; (2) was founded by public or private charity; (3) is maintained by public or private charity." Appeal of Lutheran Social Services, 539 A.2d 895, 897 (Pa. Cmwlth. 1988)(emphasis added), uq oting Appeal of Woods Schools, 406 Pa. 579, 584, 178 A.2d 600, 602 (1962). In addition to a determination as to the charitable status of the entire institution, there is also a constitutional test relating to the use of the parcel u1 question. Article VIII, Section 2(a)(v) of the Pennsylvania Constitution permits exemption from taxation of "only that portion of real property of such institution which is actually and regularly used for the purposes of the institution." RES-2- Here, the trial court confused the two constitutional inquiries. Because some of Chapel Pointe's real property already enjoys charitable tax exemption, the trial court was not asked to determine, and did not determine, whether the entire institution met the constitutional "purely public charity" test. Rather, it held the independent living unit part of the institution did not satisfy the test. Also, it did not determine whether the parcel in question "is actually and regularly used for the purposes of the institution." Instead, its parcel-specific inquiry focused on the charitable status. Lutheran Social Services, a case discussed by the trial court, is instrucrive. Lutheran Social Services owned property on which was located a retirement community consisting of a nursing care facility, an apartment building and cottage units. The institution appealed the taxable reclassification of the apartment building and cottage parcels. This Court acknowledged that analysis of the entire institution was required. Thereafter, noting financial inconsistencies and operational distinctions between the apartments and cottages, the Court concluded that the apartment and cottage uses were in fact separate. Based. on this conclusion, we analyzed each use separately. Ultimately, the Court held that the cottage operation did not donate or render gratuitously a substantial portion of its services.' lIn addition, the generation of profit from the cottage operation subjected the parcel to taxation under Section 204 of the General County Assessment Law, Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §5020-204(b). RES-3- Our Supreme Court followed a similar process in Appeal of Woods Schools, in which an institution sought to extend charitable tax exemption for property surrounding a research center to its contiguous school property. The Court acknowledged the "entire institution" analysis. 406 Pa. at 582, 178 A.2d at 602. However, the Court agreed with the lower courts that the school was in fact a separate and distinct entity from the research center. Id. at 584, 178 A.2d at 603. On that basis, the Court reviewed the facts pertaining only to the school, ultimately concluding the school did not donate a substantial portion of its services. As in Appeal of Woods Schools and Lutheran Social Services, the trial court here was required to apply the constitutional criteria to the entire institution unless the record supports an analysis of separate components.2 Significantly, this approach is consistent with the approach for charitable tax exemption under the Institutions of Purely Public Charity Act,' known as Act 55. Chartier Valley Sch. Dist. v. Bd. of Assessment Appeals, 794 A.2d 981 (Pa. Cmwlth. 2002)(by statutory definition, basic unit of evaluation is corporation, association or trust, or other similar entity, not parts of entity). Consistent with the forgoing analysis, and with the intent of harmonizing the constitutional and statutory analyses, I would. reverse and remand, z In fairness to the trial court, this Court departed from the "entire institution" analysis without explanation on occasion, especially where attention was not drawn to the entire institution because the appeal concerned only one of several parcels. See ~, Appeal of Bethlen Home, 557 A.2d 828 (Pa. Cmwlth. 1989); Passavant Health Center v. Bd. of Assessment, 502 A.2d 753 (Pa. Cmwlth. 1985). s Act of November 26, 1997, P.L. 508, 10 P.S. §§371-85. RES-4- wme ~ _ P .. .-.~nmm.i n..r~~~ ... gkfis3r@~±vanH9++M~+~rrr., r. r_ ..-~,_. .. .w~ >.,-,o~.m3 .w~.iavrrvx~ ~v~+rsi.at n~^~ with direction to apply an "entire institution" analysis to the constitutional questions, and with invitation to consider statutory tests thereafter. Judge RES-S- IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C.D. 2002 Argued: March 31, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge DISSENTING OPINION BY JUDGE LEAVITT FILED: ,?une 15, zoo4 Respectfully, I dissent. The majority, as did the trial court, disregards the Institutions of Purely Public Chanty Act, Act of November 26, 1997, P.L. 508, 10 P.S. §§371-385 (Act 55). Indeed; in deciding the tax exemption application of Alliance Home of Carlisle, Pennsylvania, t/a Chapel Pointe (Chapel Pointe) the majority declares Act 55 to be "irrelevant."~ Our charge, however, is to give effect to statutes of the General Assembly. Act 55 does not create a tax exemption. Exemptions are established in the appropriate taxing statute. Here, the exemption sought by Chapel Pointe was 1 See n.3 of majority opinion. established in Section 204(a)(3) of the General County Assessment Law (Assessment Law), Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §5020- 204(a)(3), which exempts "institutions ... of charity" from the payment of real property tax.Z Under Act 55, the substantive standards for determining whether Chapel Pointe may claim an exemption under Section 204(a)(3) are the standards of HUP.3 See Section 5 of Act 55, 10 P.S. §375. However, Act 55 covers new ground insofar as it establishes, for the first time, uniform procedures by which these deternunations are to be made at the local level. One of those procedures, applicable here, is the rebuttable presumption. Section 6(a) of Act 55 states as follows: (a) Presumption determination.-- An institution of purely public charity~41 possessing a valid exemption from the tax imposed by Article II of the act of March 4, 1971 (P.L. 6, No. 2}, known as the Tax Reform Code of 1971, shall be entitled to assert a rebuttable presumption regarding that institution's compliance with the criteria set forth in section 5 as follows: (1) An institution of purely public charity that has annual program service revenue less than $10,000,000 shall be entitled to assert the z This exemption includes "the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity ...." Section 204(a)(3) of the Assessment Law, 72'P. S. §5020-204(a)(3). s See Hospital Utilization Project v. Cornmonwealth, 507 Pa. 1, 487 A.2d 1306 (1985) (HUP). In HUP, the Supreme Court, construing Article VIII, Section 2 of the Pennsylvania Constitution, established a 5-point test for determining when a taxpayer is a "purely private charity" entitled to an exemption. Act 55 codifies the HUP test. It states its purpose to implementation of the "traditional legislative and judicial applications of the constitutional term `institutions of purely public charity."' Section 2(b) of Act 55, 10 P.S. §372(b). See also Selfspot, Inc. v. Butler County Family YMCA, 818 A.2d 587, 593 (Pa. Cmwlth. 2003), acknowledging that Act 55 codifies the HUP test. ~i a An "institution of purely public charity" is defined in Section 3 of Act 55 to be an institution that "meets the criteria under section 5." 101~.S. §373. _2 {{v~{}~jp.4xRyP¢a .-n,w.?.n wfl1~a-ia.3.sa4AF'~~flfetEai. ~.n,. a=.r-, a., •.. ;,,~.,~:~:a~xsnrvrass.~fiim!e~P£~R'aeaur~!q~a,€€~~} presumption if the institution possesses a valid exemption under section 204(10) of the Tax Reform Code of 1971. 10 P.S. §376(a)(1) (emphasis added). Chapel Pointe's annual revenue is less than $10,000,000, and it holds an exemption under Section 204(10) of the Tax Reform Code of 1971. However, the trial court held that Chapel Pointe, claiming an exemption for its independent living units had to prove, first, that these units, as a separate institution, satisfied the HUPS standards before the procedures in Act 55 could come into play. This circular exercise is affirmed by the majority. In disallowing Chapel Pointe the Act 55 presumption, the trial court relied upon Community Options, Inc. v. Board of Property Assessment, 571 Pa. 672, 813 A.2d 680 (2002). In that case, the appellant asserted that Act 55 must be applied to all tax exemption cases arising after 1998,6 to which the Supreme Court responded: However, we need not reach this argument because we have rejected the Commonwealth Court's reasoning in Community Service Foundation and the conclusion that Appellant is not a "purely public charity" under the Hospital Utilization Project test.... s The trial court held that before Chapel Pointe could invoke the rebuttable presumption, it first had to prove that its apartments were themselves a "purely private charit}~' within the meaning of Article VIII, Section 2 of the Pennsylvania Constitution. Stated otherwise, the trial court simply disregarded Act 55. s At issue was a tax exemption for three years: 1996 to 1998. The trial court applied Act 55 to the application for 1998, which was the first year Act 55 became effective. It applied HUP to tax years 1996 and 1997, denying an exemption for those years. This Court reversed. The appellant appealed with respect to all three years. On appeal, the Supreme Court found that the trial court erred with respect to its application of the HUP test and that the taxpayer qualified for the exemption in all three years. MHL-3 Id. at 683, 813 A.2d at 687. In short, Community Options does not support the trial court's conclusion that the holding in HUP trumps Act 55.E To the contrary, the Supreme Court did not reach the question of the scope of Act 55. Where, as here, the General Assembly has codified a judicial interpretation of the constitution, it is appropriate to follow the terms of that statute. See In re Sale No. 10, 801 A.2d 1280, 1287-1288 (Pa. Cmwlth. 2002) (noting that the enactment of Section 607(a) of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.607, codified our Supreme Court's decision in Tracy v. Chester County Tax Claim Bureau, 507 Pa. 288, 489 A.2d 1334 (1985)). Indeed, our Supreme Court has held that legislative codifications of real estate tax exemption case law are "binding and conclusive until [shown] clearly and beyond all question to be in violation of the Constitution." Young Men's Christian Association of Germantown v. City of Philadelphia, 323 Pa. 401, 407, 187 A. 204, 207 (1936). Nevertheless, where the Pennsylvania Constitution is silent on the procedure by which a constitutional right is to be determined, the General Assembly's authority is supreme.$ See Glancey v. State Employes' Retirement Board, 530 Pa. 481, 502 n.20, 610 A.2d 15, 26 n.20 (1992) (stating that where the constitution is silent, the mechanics of pension forfeiture must be dictated by interpretation of the Pension Forfeiture Act); Collins v. Commonwealth, 262 Pa. ~ To the contrary, Act 55 implements the substance of the HUP holding. $ It goes without saying that the judiciary has ultimate responsibility and authority to interpret the Pennsylvania Constitution. Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 118 (Pa. Cmwlth. 1998). MHL-4 ~.v. c~ea. rte. N.~m~,m:r:Emar>tE,°P~.s fim ^,`~.,;,.,q s' -r- ,.,_~~ r rmgn~F mirv~ kaamm+'3vtvn~§~s 572, 575, 106 A. 229, 230 (1919) (stating that "[i]f the Constitution is silent on the subject, the legislative authority, being uncontrolled, is supreme").9 Act 55 is such legislative action.. It established uniform procedures, including the use of presumptions, to be followed in making the determination of whether or not a tax exemption shall be granted. To cling to HUP as if Act 55 had not been enacted presumes that Act 55 is unconstitutional. However, we must presume it is constitutional. Wilson Partners, L.P. v. Board of Finance & Revenue, 558 Pa. 462, 471, 737 A.2d 1215, 1220 (1999). The majority also fails to consider the regulatory environment in which Chapel Pointe operates. A continuing care community makes a promise not unlike that of an insurance company, which, in exchange for a premium :payment, provides protection against future; unlffiown loss. When a resident enters a continuing care community, the resident receives a life estate in the community, enforceable by contract. This life estate includes future nursing home care, should the need develop, even if the resident lacks the funds to pay for such care at that point. So long as the resident remains in an independent living unit, Chapel Pointe must make services available to the resident such as on-site nursing, meals and housekeeping. If these facilities and services are not used by the resident of the independent living unit, Chapel Pointe still bears the expense of making them available. To compare an independent living unit in a continuing care community to a commercial apartment is the proverbial "apple to orange" comparison. 9 This Court has expressly recognized that Article VIII, Section 2 is not self-executing and that legislative standards for implementing the tax exemptions are appropriate to the extent they are constitutional. Robert Morris College v. Board of Property Assessment, Appeals ~ Review, Allegheny County, 291 A.2d 567, 571 (Pa. Cmwlth. 1972). MHL - 5 Indeed, to focus on services rendered to residents of independent living units, while they occupy those units, is to miss the purpose of a continuing care community. Persons enter such a community for the purpose of lifetime protections, which the community is contractually obligated to provide. This point was overlooked in Appeal of Lutheran Social Services, East Region, 539 A.2d 895 (Pa. Cmwlth. 1988) and Bethlen Home of Hungarian Reformed Federation of America, 557 A.2d 828 (Pa. Cmwlth. 1989). Accordingly, I do not agree that the outcome here should be determined by Lutheran Social Services or Bethlen. In Lutheran Social Services, this Court held that a retirement community consisting of a nursing care facility, a 96-unit apartment building and 81 cottage units functioned as three separate operations and then evaluated each operation under the HUP test. We concluded that the apartments qualified for the tax exemption but the cottages did not because the residents in the cottages did not receive a substantial portion of their services free of charge. In Bethlen, relying on Lutheran Social Services and Passavant Health Center v. Board of Assessment & Revision of Taxes of Butler County, 502 A.2d 753 (Pa. Cmwlth. 1985), this Court again denied a tax exemption for that portion of a retirement community consisting of cottages. First, the facts in Lutheran Social Services and Bethlen appear distinguishable. Unlike Chapel Pointe, Bethlen is not a licensed continuing care community subject to the rigors of regulation.10 Second, the regulatory scheme io Chapel Pointe holds a license issued by the Pennsylvania Insurance Departrnent pursuant to the Continuing Care Provider Registration and Disclosure Act, Act of June 18, 1984, P.L. 391, 40 P.S. §§3201-3225. Legislative findings therein note that continuing care corrununities have become an important and needed alternative for the long-term residential, social and health maintenance for the Commonwealth's senior citizens. Under this act, Chapel Pointe is regulated (Footnote continued on next page .. . MHL - 6 applicable to a continuing care facility was not given any consideration in either Lutheran Social Services or Bethlen. Third, treating cottages as a separate institution is inconsistent with our holding in Chartiers Valley School L>istrict v. Board of Property Assessment, Appeals, Review & Registry of Allegheny County, 794 A.2d 981 (Pa. Cmwlth. 2002), wherein, relying on Act 55, we held that the corporation, not a division or operational unit of the corporation, is the focus of the determination of whether an institution is one of purely public charity. More to the point, Lutheran Social Services and Bethlen are not consistent with our Supreme Court's holding in Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 552 Pa. 212, 714 A.2d 397 (1998) that courts must look to the institution as a whole to deternune its status as a purely public charity. Indeed, this Court explained this examination as follows: The presence of two potentially profit-making activities, a garden shop and restaurant, does not change the essential nature of Longwood as a whole, as an institution that opera;'es free from private profit motive. Regardless of whether it shows a profit, the garden shop primarily advances and. supports the - institution's educational purposes through its sale of books and films on horticulture-related topics; in addition, the shop carries items such as film and rain gear for the convenience of visitors to the gardens. Profits from the garden shop are applied against the institution's general operating expenses. (continued ... ) to ensure its financial solvency and that its residency agreements meet certain standards. Further, it is required to offer independent living units, assisted living units and full nursing home care to residents. MHL - 7 Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 692 A.2d 1136, 1143 (Pa. Cmwlth. 1997) (emphasis added) (footnote omitted).t~ Accordingly, it is error to treat the independent living units at Chapel Pointe as a separate institution, even if they should be found to operate at a profit. To conclude, I believe this matter should be remanded to the trial court for a new hearing that conforms to the procedures required by the General Assembly in Act 55. The trial court should, first, determine whether Chapel Pointe is an institution of purely public charity, giving it benefit of the rebuttable presumption set forth in Section 6(a)(1) of Act 55, 10 P.S. §376(a)(1). Consistent with Unionville-Chadds Ford, the trial court should consider the totality of the circumstances in deciding whether the independent living units transform the essential nature of Chapel Pointe from an institution that operates free of the profit motive to something else.'Z However, should the trial court determine Chapel Pointe to be an institution of purely public charity, its task would not be complete. u The Supreme Court affirmed, focusing on the question of whether the beneficiaries of a purely public chanty must be the poor, the infirm or the needy. The Court held that "the fundamental character of a purely public chanty [is] to benefit the general public." Unionville-Chadds Ford School District, 552 at 220, 714 A.2d at 401. In sum, in the Unionville-Chadds Ford School District cases, the appellate courts of Pennsylvania examined the institution as a whole to determine its status as a purely public charity. The bookstore and restaurants, not themselves charitable, advanced the institution's purpose and, therefore, did not undermine the claim of Longwood Gardens to a tax exemption. iz In support of application, Chapel Pointe submitted a report showing that, in the aggregate, 17.94% of Chapel Pointe's costs of providing goods and services to its residents were uncompensated. In the nursing home, 15.78% of the total costs were uncompensated; in assisted living, 23.05%; and in independent living, 18.66%. The report also concluded that a large number of residents were subsidized. It showed that 70.63% of residents paid less 'than 100% of the costs of their goods and services; 51.95% of residents paid less than 90% of those costs. On average, 63.72% of the residents paid less than the costs of the goods and services provided to them by Chapel Pointe. MHL - 8 m ~.~.-~,~~~ ~~~~ ~~a~.,.~ ~. ~ _ ~, ,,,.z ,~,~,,m.,~ ~ _,m~. ,.~-~~,~_,rr. This is because under Act 55, a `parcel or part of the parcel [used] for purposes other than the charitable purpose of that institution" can be subjected to real estate taxes. Section 5(h)(1) of Act 55, 10 P.S. §375(h)(1) (emphasis added). If the independent living units do not advance the charitable purpose13 of Chapel Pointe, then the parcel on which they sit should be taxed. If those independent living units do advance the charitable purpose of Chapel Pointe, then that parcel should be exempt along with the rest of the institution. For these reasons, I dissent. I would reverse the trial court and remand for another hearing on whether Chapel Pointe is a purely public charity and whether its independent living units advance Chapel Pointe's charitable efforts on behalf of the elderly, considering the totality of circumstances. .~ MARY HANNAH LEAVITT, Judge is This Court and our Supreme Court have given a liberal construction to "public purposes" to include all uses within the powers granted to the body. Delaware County Solid Waste Authority v. Becks County Board of Assessment Appeals, 534 Pa. 81, 87-88, 626 A.2d 528, 531-532 (1993); Dauphin County General Authority v. Dauphin County Board of Assessments, 768 A.2d 895 (Pa. Cmwlth. 2000). Logically, this same liberal construction should be applied to a private institution claiming to be an institution of purely public chanty. MHL-9 S~ c~ t ~ .+y 'il =_ c_. `-° 'a n5 _ -c~ i ~~ t-~~ --. ~',': _.~~Z ~ t~ __ [>7 -., ~ ~~ '~~~ - E _ ~Y9~svmwrnsv~=~m~wz~ex~*naavx. .a~r%:a~=r~~~~ .'~ .,r.n-~ -.. _~~.,~ .n.w~.. o:. °es+nr.~..'r .-n„-e~~;z.z>~=~ y. Supreme Court of Pennsylvania Irene M. Bizzoso Middle District Deputy Pxothonorary November 30, 2004 8lilxley Bailey Chief (7exk Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 P.o. Box ~za Haxxisbuxe. PA 17108 717-787-6181 wwsv.aopcorg RE: Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Petitioner v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County, Respondents Commonwealth Docket Number - 595 CD 2002 Trial CourUAgency Dkt. Number: 01-5659 No. 609 MAL 2004 Appeal Docket No.: 08 MAP 2004 Date Petition for Allowance of Appeal Filed_Ju1~14,_2004 Disposition• Petition for Allowance of Appeal -Limited Granted Date: November 30, 2004 ReargumentlReconsideration Disposition: Reargu ment/Reconsideration Disposition Date: /eez IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT ALLIANCE HOME OF CARLISLE, PA, T/A: No. 609 MAL 2004 CHAPEL POINTE, Petition for Allowance of Appeal from the Petitioner, Opinion and Order of the Commonwealth Court v. BOARD OF ASSESSMENT APPEALS, CARLISLE AREA SCHOOL DISTRICT, BOROUGH OF CARLISLE, AND CUMBERLAND COUNTY, Respondents. ORDER PER CURIAM AND NOW, this 30"'day of November 2004, the Petition for Allowance of Appeal is GRANTED, limited to the following questions of law: 1. Whether, as a preliminary matter, petitioner was required, under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution, to demonstrate that'the parcel in question independently served, in and of itself, a charitable purpose in order for petitioner to be considered for real estate tax exemption? 2. If the answer to question 1 is "no,"whether the Commonwealth Court errced in holding that the statutory presumption of real estate tax exemption, which arises in favor of a qualifying entity under 10 P.S. § 376, was irrelevant in this case, and hence not applicable to petitioner, as a whole, because the parcel in question was clearly not charitable based on the undisputed facts? ,.~ 01-51~q ~ [J-57-2005] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ. ALLIANCE HOME OF CARLISLE, PA, T/A : No. 208 MAP 2004 CHAPEL POINTE, Appeal from the Order of the Appellant :Commonwealth Court entered on June 15, 2004, at No. 595 C.D. 2002, affirming the Order of the Court of Common Pleas of v. :Cumberland County, Civil Division, entered on January 31, 2002, at No. 01- 5659. BOARD OF ASSESSMENT APPEALS, CARLISLE AREA SCHOOL DISTRICT, :852 A.2d 428 (Pa. Cmwlth. 2004) BOROUGH OF CARLISLE, AND CUMBERLAND COUNTY, Appellees :ARGUED: May 17, 2005 OPINION MR. JUSTICE CASTILLE' DECIDED: April 17, 2007 This appeal involves the interplay of the "institution of purely public charity" real estate tax exemption permitted by Article VIII, Section 2(a)(v) of the Pennsylvania Constitution2 and the Institutions of Purely Public Charity Act, Act of November 26, 1997, This matter was reassigned to this author. 2 Article VIII, Section 2(a)(v) provides as follows: (a) The General Assembly may by law exempt from taxation: (continued... ) ~. a P.L. 508, 10 P.S. § 371 et seq. ("Act 55"). Appellant, Chapel Pointe, owns and operates a licensed continuing care retirement community ("CCRC") that includes a skilled nursing facility, an assisted living facility, and an independent living apartment facility. Appellant had previously been determined to be an institution of purely public charity and both its skilled nursing facility and its assisted living facility had been deemed exempt from real estate taxation. The dispute in the case sub judice arises from the propriety of the determination of the tribunals below that appellant's independent living facility, which they viewed in isolation from the rest of the corporate community, did not qualify as an institution of purely public charity and, therefore, the parcel of property occupied by the independent living facility was not tax exempt. For the reasons that follow, we reverse. Appellant is anon-profit corporation that was formed in 1944 to provide care for the elderly and infirm. Appellant's CCRC includes a 59-bed skilled nursing home, a 53-bed assisted living compound, and 93 apartments that function as an independent living community. In 1997, appellant requested a tax exemption for the parcel consisting of the independent living community. The Cumberland County Board of Assessment ("Board") denied the request, and appellant did not appeal. In 2001, following the enactment of Act 55, appellant again petitioned the Board for a real estate tax exemption for its independent living community. Appellant argued that its institution, as an entire entity, satisfied both the constitutional and statutory requirements for tax exemption by providing residents with, inter alia, uncompensated goods and services in excess of five percent of the cost of such (...continued) (v) Institutions of purely public charity, but in the case of any real property tax exemptions only that portion of real property of such institution which is actually and regularly used for the purposes of the institution. PA. CONST. art. VIII, § 2(a)(v). [J-57-2005] - 2 z M goods and services. The Board denied the request concluding that the issue was controlled by the res judicata effect of its 1997 decision. Appellant appealed to the Court of Common Pleas of Cumberland County. The December 6, 2001 hearing de novo revealed that the minimum age requirement for admission to the independent living apartments is 62. Prospective residents are required to provide appellant with detailed financial statements, and appellant does not admit anyone who cannot pay the entrance fee initially, or whose financial information suggests an inability to pay the ensuing monthly fees. The entrance fee ranged from $37,000 for an efficiency apartment to $73,000 for some two-bedroom apartments. Once accepted, apartment residents are given priority should a need arise to move either to the assisted living compound or to the skilled nursing facility. Appellant's Executive Director, John Hendrickson, explained the entrance fee as follows: There is a limit to the amount of benevolent care that we can provide. We're not a large facility with a huge endowment that can provide benevolent care without using monies coming in from operations. So we want to look at and be sure that we're going to be able to provide the benevolent care that we've already committed to, and so we have to be sure that there are people who are coming in [who] are private pay. The other reason is that we want to be sure that we have something to compare a disclosure to now should they apply for a different level of living down the road and there is a significant difference in the amount of assets that are there. Again, we do not want to give charity to just anyone. We want to give charity to or financial assistance to people that truly qualify for financial assistance. R.R. 157-158. Appellant reserved one apartment unit as a model. The total amount of entrance fees generated by the remaining 92 apartments was $5,721,000. Appellant placed each apartment on a 40-year depreciation schedule with the average stay for a resident being 3 to 4 years. Residents are permitted to stay in their apartments for as long as they are safe, as determined by appellant. Appellant amortizes entrance fees over the life expectancy of the resident and there is a recalculation each year so that, for accounting purposes, a [J-57-2005] - 3 resident never outlives his or her life expectancy. Appellant amortizes the entrance fee at 20% each year prorated monthly for 5 years. Thus, if a resident leaves his apartment within 5 years, a prorated amount of the entrance fee is refunded; but after 5 years, no portion of the fee is refunded. All income earned on entrance fees is retained by appellant. The uniform monthly fee charged for each apartment, which is required in addition to the one-time entrance fee, is designed to cover costs. Thus, monthly fees are increased as needed. As of the hearing date, the monthly fee was $599 for one person and an additional $130 for each additional occupant. Appellant provides financial assistance to residents who have difficulty meeting their monthly obligation, albeit with the understanding that appellant could seek reimbursement. Residents struggling financially are also required to apply for financial assistance from their families, churches, and public welfare agencies. Residents are further required to prepare and submit an annual financial statement and a statement of physical and mental health. Failure to make such disclosures constitutes grounds for residential termination. However, no resident had ever been asked to leave an apartment because of financial problems. Also, some residents facing financial problems had not had their monthly fee raised by appellant, and several residents received some financial assistance from appellant toward their monthly fees. Fifty-five percent of the apartment residents had received uncompensated services from appellant, such as assistance with taking medications, participation in social activities, and advice regarding family or financial problems. These uncompensated services constitute more than 10% of the aggregate cost of care. Appellant also provides maintenance for all common areas and for each apartment, and pays all residents' utility and real estate tax bills. Appellant's 2000 financial statement indicated that it allocated its administrative costs based on total operating costs, with approximately 68% of administrative costs allocated to the nursing home, 22% to the assisted living compound, and 9% to the [J-57-2005] - 4 M independent living apartments. Appellant produced testimony that, for the years 1998, 1999 and 2000, it realized an operating loss and had relied upon contributions and bequests to offset that loss. The Board and Cumberland County introduced evidence that the assessed value of the 93 apartments in the year 2000 was $2,593,350. A survey of rental prices in the area revealed that the average rental was $350 per month and $450 per month for 1-bedroom and 2-bedroom apartments, respectively. Following the hearing de novo, the trial court affirmed the Board's decision. The trial court first found that appellant was not entitled to a rebuttable presumption that it was an institution of purely public charity under Section 376 of Act 55.3 The court opined that the question of appellant's status as a purely public charity first had to be answered within the meaning of Article VIII, Section 2(a)(v) of the Pennsylvania Constitution. The court then discussed at length this Court's leading precedent concerning the constitutional test for a 3 Section 376 provides, in pertinent part, as follows: (a) Presumption determination.--An institution of purely public charity possessing a valid exemption from the tax imposed by Article II of the act of March 4, 1971 (P.L. 6, No. 2), [ ]known as the Tax Reform Code of 1971, shall be entitled to assert a rebuttable presumption regarding that institution's compliance with the criteria set forth in section 5 [i.e., criteria which determine whether an institution is a "purely public charity"] as follows: (1) An institution of purely public charity that has annual program service revenue less than $10,000,000 shall be entitled to assert the presumption if the institution possesses a valid exemption under section 204(10) of the Tax Reform Code of 1971. *** (b) Burden of proof.--If an institution of purely public charity asserts a presumption under subsection (a), a political subdivision challenging that institution before a government agency or court shall bear the burden, by a preponderance of the evidence, of proving that the institution of purely public charity does not comply with the requirements of section 5. 10 P.S. § 376(a)(1) & (b). [J-57-2005] - 5 t purely public charity, i.e., Hospital Utilization Project v. Commonwealth of Pennsylvania, 487 A.2d 1306 (Pa. 1985) ("HUP"), and two subsequent Commonwealth Court cases involving similar types of facilities, where exemption was denied for independent living components of retirement communities, i.e., Appeal of Lutheran Social Services, 539 A.2d 895 (Pa. Cmwlth. 1988), and Appeal of Bethlen Home, 557 A.2d 828 (Pa. Cmwlth. 1989). The trial court did not then return to the question it initially posed, i.e., whether appellant, as a corporate entity, qualified as an institution of purely public charity, but instead focused on the independent living apartments in isolation from the rest of the institution. The court concluded that appellant had "not proven by credible evidence, under any standard" that it donated or rendered gratuitously a substantial portion of its services to the apartment residents. The court noted that appellant provided no assistance respecting its entrance fee, charged a monthly rental fee which was substantially higher than the norm for rental in the Carlisle area, and provided minimal assistance to but a few residents by adjusting their monthly fees. The court also noted financially insignificant ancillary program benefits, which were provided for residents who chose to participate. In the trial court's view: This system gives older people, at a considerable costs [sic], a safe comfortable place to live, it provides ancillary services for a charge, and residents get priority for transition into the assisted living compound and/or nursing home if the unfortunate need arises. The system provides a substantial amount of money for [appellant,] and a steady source of future occupants of its assisted living compound and nursing home. Trial court slip op. at 17. The trial court concluded that the apartment operation helped fund appellant's nursing home and assisted living compound but that the parcel upon which the apartments stood, "unlike the nursing home and the assisted living compound," did not qualify for the charitable real estate tax exemption. On further appeal, the Commonwealth Court, sitting en banc, affirmed in a 5-2 published opinion. Alliance Home of Carlisle v. Bd. of Assessment Appeals, 852 A.2d 428 (Pa. Cmwlth. 2004). The majority preliminarily addressed appellant's argument that the trial [J-57-2005] - 6 court had erred in rejecting its claim that it was entitled to a rebuttable presumption under Section 376 of Act 55 that it was an institution of purely public charity because it previously was found to be such an institution regarding its other facilities and with respect to other taxes. The majority concluded that it did not need to decide this question because appellant's status as an institution of purely public charity was conceded, while the disputed issue was "whether the independent living apartments are being used for charitable purposes." 852 A.2d at 432 n. 3. That question, in the majority's view, required only a determination of whether the undisputed facts "meet the legal standards for a purely public charity, making the presumption irrelevant." Id. The majority then turned to appellant's argument that the trial court had erred in denying it a tax exemption by looking separately at the parcel of land on which the independent living apartments are located, rather than treating appellant as a single institution in evaluating its claim of entitlement to tax exemption for the entire parcel. The majority noted that, under this Court's decision in HUP, an entity qualifies as an institution of purely public charity for constitutional purposes if it: 1. Advances a charitable purpose; 2. Donates or renders gratuitously a substantial portion of its services; 3. Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; 4. Relieves the government of some of its burden; and 5. Operates entirely free from profit motive. 487 A.2d at 1317. The majority then construed Section 5 of Act 55, 10 P.S. § 375 (entitled "Criteria for institutions of purely public charity"), as having adopted the HUP test rather than a "more stringent test" for determining if an institution qualified as a purely public charity. See 10 P.S. § 375 (b - f).4 The majority emphasized that the Commonwealth a Subsections (b) through (f) do indeed address the five factors set forth in HUP (albeit in a different order); however, the statute goes into greater detail as to each factor. Thus, for (continued...) [J-57-2005] - 7 Court has followed the constitutional mandate and the HUP standard as demonstrated by the same two factually similar cases relied upon by the trial court, i.e., Appeal of Lutheran Social Services and Appeal of Bethlen Home. In Appeal of Lutheran Social Services, taxpayer Lutheran Social Services appealed the denial of a real estate tax exemption fora 96-unit apartment building and 81 cottage units it operated as part of a retirement community, which also contained a nursing facility. The local Board of Assessment reclassified the apartment building and cottages from tax exempt to taxable but did not change the status of the nursing facility from tax exempt. On appeal, the Commonwealth Court determined that the apartments were tax exempt as well because apartment applicants did not pay an admission fee and the fees they did pay did not cover the operating expenses of the apartments. Moreover, many residents were forgiven from paying increases in monthly fees and the apartments operated at a deficit. As for the cottages, however, the court noted that applicants were required to pay an entrance fee ranging from $38,500 to $46,000, depending on the type of unit, and no resident was ever admitted without paying the entrance fee. The entrance fees were placed in a reserve account, from which a one percent per month deduction per unit was made as a bookkeeping matter. If a cottage resident died, any balance of his entrance fee became the property of Lutheran Social Services. Finally, residents paid a monthly maintenance fee plus utilities. The court found that, because the cottage complex realized a substantial profit, it did not donate or render gratuitously a substantial portion of its services, and therefore, the cottage portion of the real property was not a purely public charity entitled to the real estate tax exemption. (...continued) example, subsection (b), concerning the requirement of advancing a charitable purpose, lists six approved charitable purposes. [J-57-2005] - 8 In Appeal of Bethlen Home, taxpayer operated a facility that included a nursing home, which provided intermediate and advanced nursing care, as well as seven retirement cottages each consisting of two separate living units. The county assessed the retirement cottages and the land on which they were erected for real estate taxes and Bethlen Home appealed. The local Board denied the appeal, but on further review, the trial court held that the cottages were tax exempt. The Commonwealth Court reversed, holding that the cottage operation was not a purely public charity because: residents were required to be 65 years or older to reside in a cottage; they had to submit evidence of their financial ability to sustain independent living; they had to pay an entrance fee ranging from $25,000 to $45,500; no applicant ever took occupancy without paying the fee; and residents paid a monthly service fee of $25 plus their utilities. The fact that cottage residents received free nursing care in the nursing home was deemed irrelevant to the determination of whether the cottage operation qualified as a purely public charity. In light of these cases, the en banc majority below noted that, although appellant's assisted living and skilled nursing facilities were used for a charitable purpose, and the land on which they are located had been deemed tax exempt, these facts did not ineluctably render tax exempt the independent living apartments or any other facility located on appellant's property. To hold otherwise, the majority stressed, would mean that "any use" could be placed on property of an entity that already had received a charitable tax exemption without negating that exemption. The majority then turned to the question it deemed controlling: whether the independent living apartments and the land they occupy on their own met the definition of a purely public charity. The only prong of the HUP/Act 55 test at issue respecting the apartments, the majority noted, was whether appellant donated or rendered gratuitously a substantial portion of its services. The majority answered that question in the negative, citing the trial court's analysis, which we have summarized earlier in this Opinion. Alliance Home, 852 A.2d at 434-35. [J-57-2005] - 9 0 Judges Simpson and Leavitt filed separate dissenting opinions. In Judge Simpson's view, the trial court confused two distinct constitutional inquiries: i.e., (1) whether an entity is an institution of purely public charity for tax exemption purposes, and (2) whether a particular parcel of property, owned by an institution of purely public charity, qualifies for tax exemption. As Judge Simpson explained: Because some of Chapel Pointe's real property already enjoys charitable tax exemption, the trial court was not asked to determine, and did not determine, whether the entire institution met the constitutional "purely public charity' test. Rather, it held the independent living unit part of the institution did not satisfy the test. Also, it did not determine whether the parcel in question "is actually and regularly used for the purposes of the institution." Instead, its parcel- specific inquiry focused on the charitable status. 852 A.2d at 436 (Simpson, J., dissenting). Judge Simpson stressed that the trial court was required to apply the constitutional criteria to the entire institution unless the independent living facility was in fact a separate and distinct institution. Judge Simpson would have reversed and remanded to the trial court to conduct an "entire institution analysis." Id. at 435-37. Judge Leavitt's dissent first noted that she believed the majority erred in deeming Act 55 to be irrelevant. In Judge Leavitt's view, Act 55 "cover[ed] new ground" insofar as it established uniform procedures to determine whether a given property should be deemed tax exempt.5 Id. at 438 (Leavitt, J., dissenting). Because the Constitution is silent respecting the procedure by which charitable exemptions are to be determined, Judge Leavitt opined, the General Assembly's authority to address such matters via legislation is "supreme." Id. at 439. Act 55 represents just such "legislative action," Judge Leavitt 5 Judge Leavitt noted that Act 55 did not create the exemption at issue; the General County Assessment Law is the statutory source for the exemption. 852 A.2d at 437, citing 72 P.S. § 5020-204(a)(3). [J-57-2005] - 10 r continued, it is presumptively constitutional, and to "cling to HUP as if Act 55 had not been enacted [wrongly] presumes that Act 55 is unconstitutional." Id. Judge Leavitt then noted that, in the case sub judice, appellant satisfied the elements entitling it to the Act 55 rebuttable presumption that it is an institution of purely public charity, yet both the trial court and the Commonwealth Court majority denied it the benefit of the presumption, and then required appellant to prove that its independent living facility, considered as if it comprised a separate institution, satisfied the HUP standard. Id. at 437-39. Judge Leavitt also opined that the majority ignored the "regulatory environment" in which licensed CCRCs operate. Judge Leavitt noted that appellantwas licensed underthe Continuing Care Provider Registration and Disclosure Act ("CCPRDA"), 40 P.S. § 3201 et seq., and that, pursuant to that Act, appellant: "is regulated to ensure its financial solvency and that its residency agreements meet certain standards. Further, it is required to offer independent living units, assisted living units and full nursing home care to residents." 852 A.2d at 440 n. 10.6 CCRCs make a promise of protection against future, unknown difficulties. When a resident enters a CCRC, Judge Leavitt explained, he "receives a life estate in the community, enforceable by contract," which encompasses future nursing home care (should the need develop) and services such as on-site nursing, meals and housekeeping. Id. at 439. Even if a resident does not make use of the services, the CCRC "still bears the expense of making them available." Id. In Judge Leavitt's view, it was error to treat appellant's independent living facility as a separate institution, even if the facility operated at a profit: "to focus on services rendered to residents of independent living units, while they occupy those units, is to miss the purpose of a continuing care community. 6 See 40 P.S. § 3204 (requiring certificate of authority to engage in business of providing continuing care); id. § 3207 (requiring disclosure statements to prospective resident); id. § 3209-3213, 3216 (financial requirements and restrictions); id. § 3214 (dictating what must be included in resident's continuing care agreements). [J-57-2005] - 11 D Persons enter such a community for the purpose of lifetime protections, which the community is contractually obligated to provide." Id. Judge Leavitt noted that this point concerning the nature of CCRCs, and the regulatory scheme applicable to them, was "overlooked" by both Appeal of Lutheran Social Services and Agpeal of Bethlen Home, a circumstance that rendered those cases non-controlling. Id. at 439-40. Judge Leavitt also suggested that the Appeal of Lutheran Social Services and Appeal of Bethlen Home decisions were distinguishable because, interalia, (1) treating the independent living cottages at issue in those cases as separate institutions is inconsistent with Chartiers Valley School District v. Board of Property Assessment, Appeals, Review and Registry, 794 A.2d 981 (Pa. Cmwlth. 2002), which held, under Act 55, that the corporation, and not a division or operational unit of the corporation, is the focus of the determination of whether an institution is one of purely public charity, and (2) the cases were inconsistent with Unionville-Chadds Ford School District v. Chester County Board of Assessment Agpeals, 692 A.2d 1136 (Pa. Cmwlth. 1997), aff'd, 714 A.2d 397 (Pa. 1998), which stressed looking to the institution as a whole in determining purely public charity status. Thus, in Judge Leavitt's view, it was error to treat appellant's independent living facility as a separate institution. In conclusion, Judge Leavitt would have remanded for a new hearing conforming to the Act 55 procedures -- i.e., the trial court should first determine whether appellant is an institution of purely public charity, in the process giving it the benefit of the Section 376(a)(1) rebuttable presumption; and the court would then have to determine whetherthe "parcel or part of the parcel [at issue is used] for purposes other than the charitable purpose of that institution." See 10 P.S. § 375(h)(1). If the independent living units do not advance the charitable purpose, the parcel is taxable; if the units do advance the charitable purpose, however, the parcel should be deemed tax exempt. Alliance Home, 852 A.2d at 440-41. [J-57-2005] - 12 F Appellant filed a petition for allowance of appeal, which this Court granted, limited to two interrelated questions: (1) whether appellant was required under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution to demonstrate that the parcel in question independently served a charitable purpose in order for the tax exemption to apply; and (2) if the answer to the first question is negative, whether the Commonwealth Court erred in holding that the statutory presumption in 10 P.S. § 376 is irrelevant. Because the issues involve the proper interpretation of constitutional and statutory provisions, they pose questions of law. As such, this Court's scope of review is plenary and our standard of review is de novo. Stile v. Commonwealth, 905 A.2d 918, 930 (Pa. 2006). To provide context for the parties' arguments, an understanding of the relevant constitutional taxing structure is helpful. Taxes, including real estate taxes, generate the revenue necessary to provide for governmental services. The permissive language in Article VIII, Section 2(a)(v) of the Pennsylvania Constitution authorizes, but does not require, the General Assembly to exempt certain property of certain charitable organizations from real estate taxes. See also City of Philadelphia v. Barber, 28 A. 644, 644-45 (Pa. 1894) ("The constitution exempts nothing; it merely permits the legislature to exempt, within the lines laid down for its guidance") (construing Constitution of 1874); Appeal of Donohugh, 86 Pa. 306, 309 (1878) (same). Article VIII, Section 2(a)(v) thus allows for alegislatively-approved exception to the general rule that all real estate in Pennsylvania is to be taxed uniformly upon the same class of subjects. The general rule of tax uniformity is embodied in Article VIII, Section I of the Constitution: "All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." Like many other constitutional provisions first adopted in the Constitution of 1874, the Uniformity Clause sought to address and eradicate specific legislative practices of the then-recent past. As this Court noted in White v. Smith, 42 A. 125, 125 (Pa. 1899): "Previous to the constitution [J-57-2005] - 13 and Act of 1874, the legislature, by special act, relieved from taxation just what property it saw fit, whether the property was charitable, religious, or even devoted solely to purposes of corporate or private gain. The legislative habit had grown into a great abuse. Then came the new constitution, which at once put a stop to the abuse of power by the legislature." Accord Fox's Appeal, 4 A. 149, 153 (Pa. 1886) (Uniformity Clause "was intended to and does sweep away forever the power of the legislature to impose unequal burdens upon the people under the form of taxation. The evils which led up to its incorporation into the organic law are well known. The burden of maintaining the state had been, in repeated instances, lifted from the shoulders of favored classes, and thrown upon the remainder of the community. This was done by means of favoritism and class legislation. [The Uniformity Clause] was intended to cut up this system by the roots ...."). The proper interplay between taxpayers' shared and uniform obligations, and the constitutional recognition that it may be appropriate, in the judgment of the General Assembly, to exempt certain charitable organizations that provide a level of public, quasi- governmental service, has been described by this Court as follows: Taxes are not penalties, but are contributions which all inhabitants are expected to make (and may be compelled to make) for the support of the manifold activities of government. Every inhabitant and every parcel of property receives governmental protection. Such protection costs money. When any inhabitant fails to contribute his share of the costs of this protection, some other inhabitant must contribute more than his fair share of that cost. There are substantial reasons why an institution wholly devoted to public charity should be exempt from taxation, since one of the duties of the government is to provide food and shelter for the poor. Any institution which by its charitable activities relieves the government of part of this burden is conferring a pecuniary benefit upon the body politic, and in receiving exemption from taxation it is merely being given a "quid pro quo" for its services in providing something which otherwise the govemment would have to provide. [J-57-2005] - 14 Young Men's Christian Assn of Germantown v. City of Philadelphia, 187 A. 204, 210 (Pa. 1936), disproved of on other grounds, West Allegheny Hosp. v. Bd. of Prop. Assessment, Appeals and Review, 455 A.2d 1170 (Pa. 1982). The General Assembly acted soon after the adoption of the Constitution of 1874 to enact enabling legislation exempting "institutions of learning, benevolence or charity" from taxation.' That legislation, however, did not make direct reference to the constitutional term "institutions of purely public charity" nor did it undertake to define that term, which was not itself separately defined in the constitutional text. The current statutory authorization for charitable exemption is contained in the General County Assessment Law, Act of May 22, 1933, P.L. 853, 72 P.S. § 5020-1 et seq. As subsequently amended, this statute renders "exempt from all county, city, borough, town, township, road, poor and school tax" various institutions and property, including, "[a]II ... institutions of teaming, benevolence, orcharity, including fire and rescue stations, with the grounds thereto annexed and necessary for the In the Constitution of 1874, the Uniformity Clause and the charitable exemption were contained within the same section, i.e., Article IX, Section 1, which provided: "All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws; but the General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity." Id. The 1874 Act provided, in pertinent part, that "'all churches, meeting-houses, or other regular places of stated worship, with the grounds thereto annexed, necessary for the occupancy and enjoyment of the same; ... all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed, and necessary for the occupancy and enjoyment of the same, founded, endowed, and maintained by public or private charity; ... are hereby exempted from all and every county, city, borough, road, school and poor tax ...." Act of May 14, 1874, P.L. 158. See White v. Smith, 42 A. at 126 (quoting Act of May 14, 1874, P.L. 158). See generally Loren D. Prescott, Pennsylvania Charities, Tax Exemption, and the Institutions of Purely Public Charity Act, 72 TEMP. L. REV. 951, 954-56 nn. 19-25 and accompanying text (2000). [J-57-2005] - 15 occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity" provided, however, "[t]hat the entire revenue derived by the same be applied to the support and to increase the efficiency and facilities thereof, the repair and the necessary increase of grounds and buildings thereof, and for no other purpose" .... Id. § 5020-204(a)(3). Like the original Act of 1874, the Assessment Law neither employed the constitutional term "institution of purely public charity" nor did it undertake to define that term. Thus, over the years, and under both legislative enactments giving effect to the permitted constitutional exemption, the judicial branch has faced the task of giving meaning to the constitutional restriction on a case-by-case basis, and thereby determining which institutions should enjoy charitable exemptions. See, e.g_, White v. Smith, 42 A. at 126 ("This at once imposed upon the courts a most difficult and often perplexing duty of interpretation from the facts in the cases as they arose. No hard and fast rule adapted to the varying facts of the different cases could at once be confidently laid down."). Ultimately, in HUP, a case involving a claim for charitable exemption from sales and use tax, this Court reviewed and condensed our century-long experience with the constitutional phrase, setting forth afive-part test for determining whether an entity qualifies as an "institution of purely public charity" under the Pennsylvania Constitution. Twelve years after HUP was decided, in 1997 the General Assembly enacted Act 55, the Institutions of Purely Public Charity Act, and thereby weighed in on questions affecting determinations of charitable exemption which had, to that point, been left to the realm of the judiciary. Act 55 begins with the following statement of findings and declaration of legislative intent: § 372. Legislative intent (a) Findings.--The General Assembly finds and declares as follows: [J-57-2005] - 16 ~ (1) It is in the best interest of this Commonwealth and its citizens that the recognition oftax-exempt status be accomplished in an orderly, uniform and economical manner. (2) For more than 100 years, it has been the policy of this Commonwealth to foster the organization and operation of institutions of purely public charity by exempting them from taxation. (3) Because institutions of purely public charity contribute to the common good or lessen the burden of government, the historic policy of exempting these institutions from taxation should be continued. (4) Lack of specific legislative standards defining the term "institutions of purely public charity" has led to increasing confusion and confrontation among traditionally tax-exempt institutions and political subdivisions to the detriment of the public. (5) There is increasing concern that the eligibility standards for charitable tax exemptions are being applied inconsistently, which may violate the uniformity provision of the Constitution of Pennsylvania. (6) Recognizing the interest of the taxpayers in a fair and equitable system of property tax assessment and the attendant statutory requirements for the political subdivision responsible for maintaining real property assessment rolls to administer the system of property assessment, this act shall not in any way limit the responsibilities, prerogatives or abilities of political subdivisions with respect to the determination of or challenges to the taxable status of a parcel of property based on the use of the parcel or part of the parcel of property. (7) Institutions of purely public charity benefit substantially from local government services. These institutions have significant value to the Commonwealth and its citizens, and the need exists for revenues to maintain local government services provided for the benefit of all citizens, including institutions of purely public charity. It is the intent of this act to encourage financially secure institutions of purely public charity to enter into voluntary agreements or maintain existing or continuing agreements for the purpose of defraying some of the cost of various local government services. Payments made under such agreements shall be deemed to be incompliance with any fiduciary obligation pertaining to such institutions of purely public charity, its officers or directors. [J-57-2005] - 17 l (b) Intent.--It is the intent of the General Assembly to eliminate inconsistent application of eligibility standards for charitable tax exemptions, reduce confusion and confrontation among traditionally tax-exempt institutions and political subdivisions and ensure that charitable and public funds are not unnecessarily diverted from the public good to litigate eligibility for tax- exempt status by providing standards to be applied uniformly in all proceedings throughout this Commonwealth for determining eligibility for exemption from State and local taxation which are consistent with traditional legislative and judicial applications of the constitutional term "institutions of purely public charity." 10 P.S. § 372 (footnote omitted). Section 5 of the Act, 10 P.S. § 375, then sets forth "[c]riteria for institutions of public charity." Although the five general criteria in this Section track the five criteria set forth in the HUP test, the statute continues further to dictate what is sufficient or insufficient to meet each individual criterion. Id. § 375(b)-(f). Section 5 mandates that an institution which meets the five criteria "shall be considered to be founded, endowed and maintained by public or private charity." Id. § 375(a). This provision was apparently designed to align the HUP test for an institution of purely public charity with the language of the County Assessment Law, which speaks in terms of institutions "founded, endowed and maintained by public or private charity." 72 P.S. § 5020-204(a)(3). Finally, in a provision entitled "parcel review," Section 5 reserves to the political subdivision responsible for real property assessment the "responsibility orprerogative" to "make a determination whether a parcel of property or a portion of a parcel of property is being used to advance the charitable purpose of an institution of purely public charity or to assess the parcel or part of the parcel of property as taxable based on the use of the parcel or part of the parcel for purposes other than the charitable purpose of that institution." 10 P.S. § 375(h)(1). Subsection (h) also reserves to the taxing authority the power to "fil[e] challenges or mak[e] determinations as to whether a particular parcel of property is being used to advance the charitable purpose of an institution of purely public charity." Id. Section 6 of the Act, entitled "[p]resumption process," then sets forth the rebuttable presumption available to a qualifying [J-57-2005] - 18 institution of purely public charity, and places the burden on the taxing authority to prove, by a preponderance, "that the institution of purely public charity does not comply with the requirements of section 5 [i.e., the requirements necessary in order to be deemed an institution of purely public charity]." Id. § 376(a), (b). With this background in mind, we turn to the parties' arguments. Appellant contends that the clear language of Article VIII, Section 2(a)(v) requires only that an institution as a whole -- and not independent portions of that institution -- satisfies the definition of an institution of purely public charity. Thus, the parcel in question need not independently appear to serve, in and of itself, a charitable purpose in order for it to qualify for the tax exemption. Rather, the proper substantive inquiry here is limited to whether appellant's independent living facility is actually and regularly used for the purposes of appellant's institution as a whole, i.e., the purpose for which appellant is organized and operated. Therefore, appellant claims, it had no obligation to demonstrate that the parcel at issue alone qualified as an institution of purely public charity, and the lower courts wrongly assigned it such a burden. Appellant further argues that the circumstances that led the HUP Court to require a preliminary evaluation of whether a taxpayer qualified as an institution of purely public charity are not present where, as here, the question is the real estate tax exemption eligibility for a parcel of land owned by an entity which concededly is an institution of purely public charity. Appellant also emphasizes that, where a purely public charity's property is at issue, the parcel clause of Act 55 expressly requires the taxing authority to determine only whether the particular parcel is "being used to advance the charitable purpose of an institution of purely public charity' or instead is used "for purposes other than the charitable purpose of that institution." 10 P.S. § 375(h)(1). In appellant's view, this test is consistent with the constitutional test for individual parcels, which speaks of "that portion of real [J-57-2005] - 19 e r property of such institution which is actually and regularly used for purposes of the institution." Applying Act 55, appellant reiterates that it had already been recognized as an institution of purely public charity for other tax purposes and, in any event, it satisfies the criteria in 10 P.S. § 375(b)-(f). Appellant then contends that the disputed parcel advances its charitable purpose, which is established in its Articles of Incorporation as follows: [T]o provide a home and sustenance for aged and infirm members of The Christian and Missionary Alliance, and for such other persons as may be determined by the members of the Board of Directors ... and the transaction of such other business as may be incident to the purpose for which said corporation is to be formed as above set forth so far as the same may not be prohibited to a nonprofit corporation. Record, tab #2, p. 1. Appellant notes that the trial court found that its independent living facility helps to fund its skilled nursing and assisted living facilities, charitable facilities which that court agreed qualified for tax exemption. Also, it was undisputed that appellant operated at an overall loss and provided uncompensated goods and services to its residents that totaled 17.94% of its total cost of providing goods and services to all residents, which meets the statutory requirement that, "[t]he institution must donate or render gratuitously a substantial portion of its services." 10 P.S. § 375(d)(1). Appellant further notes that, as a CCRC, it pursues an integrated mission, and that its independent living facility is completely integrated with, and is not "clearly distinct from," that mission. Appellant maintains that the proceeds from its independent living units and other sources help it to provide for the needs of its elderly residents, without any evidence of an overall profit-making design. Appellant argues that it provides a single, integrated continuum of care for the elderly with an overarching charitable purpose, as defined by its Articles of Incorporation. [J-57-2005] - 20 Finally, appellant notes that its community is not unique or obscure: there are more than 140 integrated CCRC facilities in Pennsylvania and the need for such facilities likely will increase as the post- World War II "Baby Boom" generation ages into retirement. Were institutions like appellant's not to provide such services, a greater obligation to provide homes, care, and sustenance for Pennsylvania's more aged and infirmed citizens would fall upon the government, and thus, the taxpayers. Appellant concludes that, because there was no showing below that its independent living facility serves any purpose other than appellant's overall charitable purpose, it was entitled to the charitable exemption. In response, appellees echo the analysis of the en banc majority below. Appellees contend that appellant was required to demonstrate, as a preliminary matter, that the parcel in question, on its own, serves a purely public charitable purpose in order to qualify for exemption. Appellees posit that the restriction on the real property tax exemption represented by the "only that portion" clause of Article VIII, Section 2(a)(v) requires the institution to demonstrate that charitable activity occurs on the specific parcel of land for which the exemption is sought. Appellees construe the constitutional restriction as intended to provide that any property devoted to a charitable use would be exempt, while any parcel not in itself used for charitable purposes would not be, irrespective of how closely the parcel might be connected to, or be deemed in furtherance of, the entity's overall charitable operation. Appellees thus contend that the initial inquiry in this case properly focuses solely on the independent living complex, and whether that facility possesses a wholly eleemosynary characteristic. In appellees' view, the fact that appellant is an institution of purely public charity with respect to other facilities, and the fact that it may appropriately be deemed a single charitable tax entity for purposes of sales and use taxation, does not change the fact that, for purposes of the real estate tax, the inquiry is whether the parcel at issue is devoted to a charitable use. Appellees stress that the [J-57-2005] - 21 "purpose" which triggers the charitable exemption must be to render charity, and not to operate a CCRC which happens to include a charitable component. Turning to Act 55, appellees argue that the statute does not purport to preempt application of the HUP test to determine, as a preliminary matter, whether the claimed exemption falls within Article VIII, Section 2. Appellees further contend that the language of 10 P.S. § 376(a) provides fora "presumption regarding that institution's compliance with the statutory criteria set forth in Section 5 [10 P.S. § 375]" --and not for a presumption that the institution satisfied the minimum constitutional requirements of Article VIII, Section 2(a)(v). When it comes to the constitutional question, appellees assert, the burden is as before and rests upon the taxpayer. Furthermore, appellees note that the presumption prescribed in Act 55 relates only to the taxpayer's status as an institution of purely public charity, and does not alter the constitutional analysis. Appellees also assert that the Act specifically recognizes the taxing authority's power to deny exemption for that portion of the institution's property not actually used for charitable purposes. See 10 P.S. § 375(h)(1). Finally, appellees maintain that the burden of proof question indeed proves irrelevant in the case sub judice. The trial court's finding that appellant does not donate or render gratuitously a substantial portion of its services to the residents of the independent living apartments was sufficient, in appellees' view, to rebut any presumption that the parcel in question was entitled to exemption. This Court also has the benefit of helpful briefing from amici curiae, on both sides of the dispute. In an amicus brief in support of appellant, the Pennsylvania Association of Nonprofit Homes for the Aging ("PANPHA") argues that the General Assembly has authority to define terms left undefined by the Constitution and that Act 55 exercises that authority, adopting a definition of the term institution of purely public charity. PANPHA notes that the definitions section of Act 55 (Section 3) defines an "institution" as "[a] domestic or foreign nonprofit corporation, association or trust or similar entity," and that the [J-57-2005] - 22 r term "institution of purely public charity" is then defined as "[a]n institution which meets the criteria under section 5." 10 P.S. § 373. PANPHA submits that these definitions make clear that the components or divisions of a single, corporate institution are not to be viewed separately for purposes of determining whether the entity as a whole is an institution of purely public charity. PANPHA contends that the exemption inquiry is limited to the question of whether a specific parcel advances the charitable purpose of the qualifying institution. PANPHA maintains that appellant here supplies a continuum of care throughout the remaining lifetime of its residents in a single, community-like setting, and it therefore should be viewed as a single entity for purposes of determining its eligibility for tax exemption. PANPHA further contends that, because appellant's independent living component is part of a licensed CCRC, by definition it is used in furtherance of the institution's charitable purpose and is therefore entitled to exemption. PANPHA also cites the CCPRDA, 40 P.S. § 3201 et seq., in support of its single entity argument. PANPHA notes that, among other things, the CCPRDA requires continuing care providers to submit a Disclosure Statement containing the certified financial statements of the providerfor the operation of the facility, but does not require a providerto submit financial statements regarding the individual components of the facility. See id. § 3207(a)(9)and (10). PANPHA further notes that the CCPRDA regulates the agreements between a provider and its residents and requires the specification of the services to be provided such as food, shelter, nursing care, medications, burial and incidentals. Id. § 3214(a)(2). PANPHA stresses that the CCPRDA defines each continuing care provider as a single entity providing a continuum of care to its residents. Moreover, since the definition of the term facility under the CCPRDA includes places (plural) where care is provided, PANPHA contends that the CCPRDA contemplates a campus type of location providing housing and various levels of care services. PANPHA argues that appellant's independent [J-57-2005] - 23 living units are part of a licensed CCRC, and the units therefore are operated in furtherance of appellant's charitable purpose; accordingly, the parcel is tax exempt. Finally, with respect to the "parcel review" authorized by Section 5(h) of Act 55, PANPHA also notes that the General County Assessment Law exempts institutions of purely public charity as well as "the grounds thereto annexed and necessary for the occupancy and enjoyment" from taxation. 72 P.S. § 5020-204(a)(3). PANPHA then cites case law for the proposition that the exemption is justified if the property contributes in a reasonable manner to the institution's function as a purely public charity. PANPHA does not dispute that the statute allows the taxing authority to conduct aparcel-by-parcel review of the property of an institution of purely public charity, but it argues that this review is limited to determining whether each parcel is used to advance the charitable purpose of the institution. In this case, PANPHA argues, the parcel does advance that purpose. The Pennsylvania League of Cities and Municipalities (the "League") has filed an amicus brief in support of appellee Borough of Carlisle. The League argues that the Pennsylvania Constitution requires uniformity in taxation and exemptions do not promote uniformity. The League maintains that the lower courts correctly determined that Article VIII, Section 2(a)(v) requires that the portion of real property for which a taxpayer seeks exemption must meet the threshold constitutional test and the taxpayer's corporate status as an institution of purely public charity is not determinative in deciding whether a particular tract of real estate is exempt. The League asserts that, if the usage of the tract does not possess some eleemosynary characteristic, exemption would violate the Constitution. Because appellant does not donate or render gratuitously a substantial portion of its services relating to the independent living facility, the League contends, the lower courts correctly held that this particular parcel is not entitled to charitable exemption. The League also takes issue with appellant's argument that the continuum of care concept is a proper charitable purpose for real estate tax exemption. The League argues that, in addressing [J-57-2005] - 24 r the needs of an aging population, there must be a balance between the long-term care needs of certain individuals and the needs of local government to fund services for a growing, actively participating, and older community of residents.$ In a Reply Brief, appellant maintains that it -- meaning the institution as a corporate whole --provides continuing care for older citizens at affordable rates that support the costs of providing continuing care for the entire community, and any surplus from any one phase of the continuum of care offsets the expenses of the others. Appellant explains that no part of its continuing care is for commercial purposes or for any purpose other than the charitable purpose for which appellant is organized and recognized as an institution of purely public charity. The fees charged for the assisted living and skilled nursing facilities do not cover the services provided for such continuing care, and surpluses from the independent living apartments help to fund such shortages. Appellant further maintains that the prospect of such continuing and progressive care allows the residents, including those in the independent living units, to live more independently, thereby reducing the need 8 The Pennsylvania School Boards Association ("Association") has also filed an amicus brief in support of appellees. In addition to echoing the arguments of appellees and the League, and providing some discussion of the historical and constitutional background, the Association questions the constitutionality of the Act 55 presumption. The Association submits that the statutory procedure and presumption that Act 55 places upon taxing authorities is "constitutionally infirm," since Article VIII, Section 2(a)(v) makes clearthat only those portions of the institution's property actually used for charitable purposes are exempt. In its Reply Brief, appellant rebuts the argument. This Court's grant of allocatur did not include a constitutional challenge to the statute, and it is settled that an amicus "'cannot raise issues that have not been preserved by the parties."' Stilg v. Commonwealth, 905 A.2d 918, 928 n.14 (Pa. 2006) (quoting Commonwealth v. Cotto, 753 A.2d 217, 224 n. 6 (Pa. 2000)). See also Pa.R.A.P. 531 (a) (interested party may file amicus curiae brief concerning those questions pending before appellate court); 4 Ann. JUR. 2d Amicus § 7 (2005} ("[A]n amicus must accept the case before the court with the issues made by the parties. Accordingly, an amicus curiae ordinarily cannot inject new issues into a case which have not been presented by the parties.") (footnotes omitted). Accordingly, we will not address this argument. [J-57-2005] - 25 s for government service, including government-supported home and community-based programs. Appellant urges that its organizational structure pools the resources of all residents receiving each level of care combined with the charitable resources of appellant in order to assure that all residents have the full continuum of care available as needed, at rates kept reasonable by the combination of charitable giving and resident-provided funds. Appellant reiterates its view that the parcel clause of the Pennsylvania Constitution requires only that the parcel at issue is actually and regularly used by appellant, an admitted institution of purely public charity, for the purposes of the institution, and such is the case here. Although this Court's grant of review posed the question of the relevance of the statutory rebuttable presumption in Act 55 as subsidiary to the question of parcel review, upon consideration of the points made in briefing, we deem it more appropriate to pass upon the presumption first. In Community Options v. Board of Property Assessment, 813 A.2d 680, 683 (Pa. 2002), this Court stated that: "An entity seeking a statutory exemption for [sic] taxation must first establish that it is a `purely public charity' under Article VIII, Section 2 of the Pennsylvania Constitution before the question of whetherthat entity meets the qualifications of a statutory exemption can be reached." The constitutional test is the five-part standard set out in HUP. In the case sub judice, however, it is undisputed that appellant qualifies as an institution of purely public charity under HUP. We proceed, then, to the operation of Act 55, including the rebuttable presumption set forth in Section 376. In theory at least, there may be disputes concerning whether the taxpayer is an institution of purely public charity where the HUP test and the standard set forth in the Section 375(b)-(f) criteria would lead to different results. The General Assembly, of course, was not obliged to go as far as the Constitution permitted with respect to tax exemption; thus, not being required to exempt charities at all from any taxes, the legislative body could elect to provide for charitable exemptions on a basis that was more limited than is [J-57-2005] - 26 constitutionally authorized. On the other hand, however, the constitutional command restrains the scope of exemption that may be legislatively authorized. Thus, the General Assembly cannot authorize an exemption that would go beyond what is permitted by the constitutional text and, if an exemption were deemed to exceed what is authorized, the courts would be duty-bound to strike it down. It is not difficult to imagine why the General Assembly would adopt the presumption in Section 376. The provision ensures than an institution that has been determined to be a purely public charity for certain tax purposes (e.g., sales and use tax) likewise will be presumed to be one for purposes of real estate taxes. Since a single constitutional term -- "institution of purely public charity" -- applies with respect to all such exemptions, the presumption promotes uniformity, consistency, and predictability. The declaration and findings of legislative intent attending Act 55, while not binding upon this Court, make clear that the General Assembly was concerned with a perceived inconsistent application of eligibility standards for charitable tax exemptions. Act 55 found that the inconsistencies had led to "confusion and confrontation" among traditionally tax-exempt institutions and political subdivisions to the detriment of the public, a detriment which included the "unnecessar[y] diver[sion]" of "charitable and public funds ...from the public good to litigate eligibility for tax-exempt status." 10 P.S. § 372(b). If the Act 55 presumption and test would lead to a holding that a taxpayer qualified as "an institution of purely public charity," where the HUP test would not, fundamental and foundational questions could arise concerning whether: (1) the HUP test, which was adopted in the absence of legislation addressing the constitutional term, occupied the constitutional field concerning the exemption, or instead left room for the General Assembly to address the matter; (2) the legislative scheme as adopted comported with the constitutional command and displaced the HUP test; and/or (3) if HUP were deemed authoritative and comprehensive, whetherthe legislative findings and [J-57-2005] - 27 scheme set forth in Act 55 gave reason to reconsider the contours of the test thus distilled from judicial experience with individual cases.s ,o The theoretical complexities that might arise where the HUP test and the Act 55 test would lead to different conclusions concerning a taxpayer's qualification as an institution of purely public charity are not presented in the case sub judice. The parties agree that appellant is as an institution of purely public charity; their substantive dispute involves the proper approach to parcel review. That being said, because there is no constitutional challenge to Act 55 by the parties at hand, appellant certainly was entitled to the statutory presumption that it is an institution of purely public charity and that the burden was upon the taxing authorities to prove otherwise, if those authorities were of a mind to dispute that status. However, there in fact is no dispute over appellant's institutional status. Therefore, any error in failing to recognize the import of the statutory presumption is of no moment. We now address the more difficult question of parcel review. Both the trial court and the Commonwealth Court majority determined, in essence, that a parcel of land that is owned by an institution of purely public charity is eligible for exemption only if the parcel, in and of itself, independently satisfies the HUP/Act 55 test for determining which entities are purely public charities. This analysis cannot be squared with the constitutional language or s Of course, this Court is not obliged to defer to the legislative judgment concerning the proper interpretation of constitutional terms. See Stilp v. Commonwealth, 905 A.2d 918, 948 (Pa. 2006) ("the ultimate power and authority to interpret the Pennsylvania Constitution rests with the Judiciary, and in particular with this Court. See Pa. Corvsr. art. V, § 2."). 10 It is worth noting that, in Community Options, 813 A.2d 680, the parties agreed that the taxpayer met the qualifications for statutory exemption, but disputed whether the taxpayer qualified as an institution of purely public charity under the HUP test. The lower courts divided on the HUP question and thus had to confront some of the complexities described in text. This Court's holding on further review -- that the taxpayer qualified under HUP -- avoided the conflict. [J-57-2005] - 28 r the parcel review language in Act 55, which tracks the constitutional standard. Article VIII, Section 2(a)(v) invites and, indeed, requires parcel review. That provision makes clearthat the General Assembly may exempt institutions of purely public charity from taxes, but in the case of real property taxes, the institution's exemption only extends to "that portion of real property of such institution which is actually and regularly used for the purposes of the institution." The constitutional test respecting parcel review, then, is not the HUPi Act 55 test, which is designed to identify qualifying institutions, but a test focusing on the actual and regular use that the qualifying institution makes of its property and the relationship of that use to the institution's purposes. Section 375(h) of Act 55, entitled "parcel review," reads as follows: (h) Parcel review.-- (1) Nothing in this act shall affect, impair or hinder the responsibilities or prerogatives of the political subdivision responsible for maintaining real property assessment rolls to make a determination whether a parcel of property or a portion of a parcel of property is being used to advance the charitable purpose of an institution of purely public charity or to assess the parcel or part of the parcel of property as taxable based on the use of the parcel or part of the parcel for purposes other than the charitable purpose of that institution. (2) Nothing in this act shall prohibit a political subdivision from filing challenges or making determinations as to whether a particular parcel of property is being used to advance the charitable purpose of an institution of purely public charity. 10 P.S. § 375. Although the language employed in the statute is not identical to the constitutional text -- i.e., where the constitutional text speaks of "used for the purposes of the institution," the statute speaks of "being used to advance the charitable purpose" -- it would appear that any definitional difference is minor and, if anything, would serve to narrow the exemption, which the General Assembly is free to do. [J-57-2005] - 29 r v Two other points respecting Act 55 and concomitant parcel review are notable. First, the Act defines, where Article VIII, Section 2(a)(v) does not, the term "institution," as follows: "[a] domestic or foreign nonprofit corporation, association or trust or similar entity." 10 P.S. § 373. The definition is significant, as the dissenting opinions in the Commonwealth Court recognized, because it makes clear that, in conducting statutory parcel review, the individual parcels owned by a single qualifying institution of purely public charity are not to be evaluated as if the parcels represented separate institutions or corporate entities subject to the full-blown HUP /Act 55 test. See Chartiers Valley Sch. Dist., 794 A.2d at 984 ("Act 55 defines the basic unit of evaluation as a corporation, association or trust or other similar entity. The basic unit of evaluation may not be aggregated. ... Similarly, the basic unit may not be divided. Our evaluation focuses on a corporation, not on multiple corporations and not on parts of a corporation.") (citation omitted). This "entire institution analysis" (to employ Judge Simpson's apt phrase in dissent below) appears, on its face at least, to comport with the constitutional command, which likewise speaks in terms of a single entity, whose property may be subject to parcel review ("that portion of real property of such institution"),11 Second, Act 55 does not purport to set forth a presumption or assign a burden of proof with respect to parcel review. Thus, the statute does not suggest that an institution of purely public charity is entitled, by virtue of that status alone, to a presumption that all parcels, or contiguous parcels, of real estate it owns qualify for the charitable exemption.12 " Of course, if the facts suggested that more than one entity was involved, a separate analysis of each institution would be proper. 12 Appellant argues at multiple points in its brief that the "presumption process" and Section 375(h) operate to "shift the burden" from a qualifying institution of purely public charity to the taxing authority to prove that the disputed parcel does not qualify for exemption. Brief for Appellant, 16, 40, 50. Appellant's amicus goes so far as to suggest that an entity that qualifies as an institution of purely public charity under Act 55 "is entitled to assert a (continued...) [J-57-2005] - 30 .- Nor does the statute purport to place the burden on the taxing authority to prove that a parcel is not exempt; to the contrary, the Act reserves to the taxing authority the power of both "filing challenges" and "making determinations" concerning parcel review. Accordingly, as with other claims of exemption, the property of the taxpayer in an instance such as this is presumed to be taxable and the affirmative burden, in the first instance, rests upon the taxpayer to prove entitlement to exemption. Southeastern Pa. Transp. Auth. v. Bd. of Revision of Taxes, 833 A.2d 710, 713 (Pa. 2003); HUP, 487 A.2d at 1312 ("Any organization seeking exemption from taxation has the affirmative burden to prove it is entitled to the exemption") (citing, inter alia, 72 P.S. § 7236). The dispositive question then -- which the lower tribunals erred in failing to appreciate -- is whether the parcel or portion of land comprising appellant's independent living facility "is actually and regularly used for the purposes of the institution" or "to advance the charitable purpose of the institution." The facts respecting the use that is made of the property are not in dispute; thus, the question is resolvable as a matter of law. Considering the unique nature of the institution at issue (i.e., a CCRC operated as a charitable institution), we have no doubt that the independent living facility is indeed actually and regularly used forthe purposes of the institution. In considering the question, we note the wisdom in an observation from this Court over a century ago, concerning the distinct question of whether a school qualified as a purely public charity: [A]n institution that is in its nature and purposes a purely public charity does not lose its character as such under the tax laws, if it receives a revenue from (...continued) rebuttable presumption of entitlement to tax exemption." Brief for PANPHA, 26. This argument is belied by the plain language of the provision, as discussed above. The statutory presumption and burden shifting in the portions of the Act invoked by appellant are limited to the determination of an institution's status as a purely public charity, and do not encompass parcel review. [J-57-2005] - 31 R r • the recipients of its bounty sufficient to keep it in operation. It must not go beyond self-support. When a charity embarks in business for profit, it is liable to taxation like any other business establishment; but long as the trustees of the school manage it as a charity, giving the benefit of what might otherwise be profit to the reduction of tuition fees, or the increase of the number of free scholars, in furtherance of the "education of youth," the purpose of their trust, their school house is entitled to exemption. It represents the gift of private persons and of the state. Episcopal Academy v. Philadelphia, 25 A. 55, 57 (Pa. 1892) (emphasis supplied). Appellant's express corporate and charitable purpose is, as appellant notes, to provide a home and care for the aged and infirm. Appellant's status as a CCRC has been recognized and licensed and, as such, it is subject to the restrictions and regulations placed upon such communities by the CCPRDA. Although the independent living facility, if it were viewed in isolation or as a separate institution, might not on its own qualify as a purely public charity, its role in the comprehensive care scheme provided by appellant is consistent with, is tied to, and advances appellant's charitable purpose. The independent living facility is not a public restaurant, movie theater, golf course or some other unrelated business entity existing solely as a revenue stream to finance a different and charitable endeavor. Instead, as Judge Leavitt emphasized in dissent below, the independent living units offer entry into a community which promises to provide for the future needs of the elderly and infirm, needs that may change over time to include assisted living and skilled nursing care. In the CCPRDA, the General Assembly recognized that such "continuing- care communities have become an important and necessary alternative for the long-term residential, social and health maintenance needs for many of the Commonwealth's elderly citizens." 40 P.S. § 3202. Appellant's CCRC offers a measure of protection to its residents against the uncertainties and challenges that attend the process of aging. One of the great fears facing citizens as they age is how to care for themselves, if age or circumstance threatens their [J-57-2005] - 32 F t physical, mental, and financial independence. In return forthe capital investment required to enter the facility and the maintenance fees thereafter, residents of the independent living facility receive both a measure of current service and, more importantly, a promise of priority consideration for placement in appellant's assisted living and skilled nursing facilities, if the need should arise. That need for greater and possibly subsidized care could arise in a day, a year, or never. But the promise of such security is significant; it offers, as Judge Leavitt cogently observed, some measure of "lifetime protection." Although it may not be controlling on its own, the fact that appellant is a charitable institution operating as a CCRC is certainly significant in assessing whether the independent living facility advances the charitable purpose of the institution. CCRCs are licensed and regulated as an integrated whole, in a fashion which ensures both stability and access to varying degrees of care. In appellant's case, whatever surplus one part of its integrated community may generate is used to offset other expenses within the community. Here, as in the Episcopal Academy case, it appears that appellant "manage[s] it[self] as a charity, giving the benefit of what might otherwise be profit to the reduction of [other costs associated with the endeavor] ... in furtherance of [providing a home and sustenance for the aged and infirm], the purpose of their trust." Because it is apparent that the assisted living facility is used for the charitable purpose of appellant's institution, it qualifies for real estate tax exemption.13'a 13 We reiterate that our holding is commanded bythe unique nature of this particulartype of charitable institution. We do not suggest that a purely public charity could successfully claim exemption for any separate money-generating facility and property, so long as it proved that the proceeds were diverted to its charitable facilities. We recognize the force in the observation of the en banc majority below that such an approach could encompass almost "any use" of the property. ~a We recognize that the decision below was consistent with prior decisions from the Commonwealth Court such as Appeal of Lutheran Social Services and Appeal of Bethlen Home. However, Judge Leavitt's points in distinction are well taken, including that those (continued...) [J-57-2005] - 33 • r This Court is well aware of the burdens placed on local government to support services and functions that benefit all residents and taxpayers, including charitable organizations. We also recognize, as we did seventy years ago, that "[w]hen any inhabitant fails to contribute his share of the costs of this protection, some other inhabitant must contribute more than his fair share of that cost." Young Men's Christian Assn, 187 A. at 210. On the other hand, however, we recognize the important public role served by institutions of purely public charity, that their very mission serves to relieve government of some of its burden, and that the type of institution at issue here certainly performs that laudable goal. The Constitution authorizes exemption of such institutions from taxation, (...continued) cases do not appear to have involved an argument by the taxpayer institutions that they were required to be evaluated as a single entity, for purposes of parcel review, nor does it appear that the courts in those cases were presented with an argument stressing the nature of charities operating as CCRCs. In any event, decisions of the Commonwealth Court, of course, do not bind this Court, and to the extent those decisions are inconsistent with our analysis and holding today, they are disapproved. We are aware of the Commonwealth Court's recent decision in Lock Haven University Foundation v. Clinton County Bd. of Assessment Appeals, --- A.2d ---, 2007 WL 685463 (Pa. Cmwlth. 2007). The Lock Haven panel examined whether certain real property of the Lock Haven University Foundation ("Foundation"), an institution of purely public charity organized essentially to approve and coordinate all fundraising activities carried out on behalf of the University, was entitled to the real estate tax exemption for a student housing complex located adjacent to the University. In holding that the Foundation was entitled to the exemption, the panel found that the lower tribunals erred in examining the student housing complex in isolation from the Foundation as a whole. The panel explained that the proper legal analysis requires a determination of whether the Foundation as a whole meets the constitutional criteria for an institution of purely public charity, and second, a determination of whether the whole institution satisfies the criteria in Section 375(b)-(f) of Act 55. The panel also sought to distinguish the Commonwealth Court decision in Alliance Home, while recognizing that the further appeal in that case was pending here. We offer no view on the ultimate propriety of the Lock Haven decision noting only that, of course, the decision in this case controls to the extent that the Lock Haven decision could be said to be inconsistent with it. [J-57-2005] - 34 A M and the General Assembly has long elected to provide for exemption, thus determining as a matter of policy to provide a subsidy to those charitable organizations who themselves assume some of the burden of government. The question of when and where best to draw that line is one that reasonable people might debate. Much of the argument in the briefs of the taxing authority's amici is devoted to such questions of policy. However, that argument is better made to the General Assembly. For the foregoing reasons, we reverse. Former Justices Nigro and Newman did not participate in the decision of this case. Mr. Chief Justice Cappy and Messrs. Justice Saylor, Eakin and Baer join the opinion. JUDGMENT ENTERED: April 17, 007 v~--- No ' K. Blynn, ief Clerk [J-57-2005] - 35 M.D. Appeal Dkt. 2 0 8 2004 IN THE S~1PRE~E,000RT OF PENNSYLVANIA ,~,..1. MIDDLES'1`~fRICT ALLIANCE HOME OF CARLI~LE, CHAPEL POINTE, Petitioner, v. PA, T/A: No. 609 MAL 2004 Petition for Allowance of Appeal from the Opinion and Order of the Commonwealth Court BOARD OF ASSESSMENT AFPPEALS, CARLISLE AREA SCHOOL DISTRICT, BOROUGH OF CARLISLE, AND CUMBERLAND COUNTY, Respondents ORDER PER CURIAM AND NOW, this 30~' day of November 2004, the Petition for Allowance of Appeal is GRANTED, limited to the following questions of law: 1. Whether, as a preliminary matter, petitioner was required, under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution, to demonstrate that the parcel in question independently served, in and of itself, a charitable purpose in order for petitioner to be considered for real estate tax exemption? 2. If the answer to question 1 is "no," whether the Commonwealth Court erred in holding that the statutory presumption of real estate tax exemption, which arises in favor of a qualifying entity under 10 P.S. § 376, was irrelevant in this case, and hence not applicable to petitioner, as a whole, because the parcel in question was clearly not charitable based on the undisputed facts? TRUE & CORRECT COPY AnESt NOV 3 0 2004 SHI Y AILEY CHIEF CLERK ~~ C ? - ~, r~ --; -" -~ - _. ..a , ,-a ~ - . ; ~~, _.._ ~ a . ~ ~ ..- iii 1 S . i ... e: - !~ ~ a`% ~+ i fi - N[~:-30-2004 14 41 PROTHONOTARY MIDDLE DIST. 717 787 1549 Pt0" 04 bane M. Dizzoso Deputy Prochonocary Shirley Bailey Chicf Qcrk QRIGINAL RECORD REQUEST TO: Supreme Court of Pennsylvania 14tiddie District Charles R_ Hostutler Deputy Prothonotary/Chief Clerk RECORD REQUESTED: November 30, 2004 FROM: Office of the Prothonotary P.O. Box 624 Harrishnr¢, PA 17108 717-787-6181 ~rraope.erg RE: Alliance Hvme of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County, Appellees No.: 208 MAP 2004 No.: 595 CD 2002 Trial Court Docket Number: 01-5659 Please forward the Original Record to the Supreme Court at the address shown above as soon as possible. EEZ ~~- O ,.-'-n V ~ `pit---~ G~ tv~ r N i~r Received me Nov~30~ 2~28PM 8:09 A.M. Cor>+onwealth Docket Sheet Docket Number: 595 CD 2002 Page 1 of 9 December 1, 2004 Commonwealth Court of Penns~ania Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County Initiating Document: Notice of Appeal Case Status: Decided/Active June 15, 2004 Awaiting Remittal Case Processing Status: Journal Number: 35-04-03 27-06-03 45-04-04 Case Category: Civil CaseType: Tax Assessment Appeal Consolidated Docket Nos.: Related Docket Nos.: COUNSEL INFORMATION Appellant Pro Se: IFP Status: Attorney: Bar No.: Address: Alliance Home of Carlisle, Pa Hanford, Steven T. 47105 2933 North Front Street Harrisburg, PA 17110-1250 Phone No.: (717)233-4101 Receive Mail: Yes Appellee Board of Assessment Appeals Pro Se: IFP Status: Attorney: Saidis, Robert C. Bar No.: 21458 Address: 26 W High Street Carlisle, PA 17013-2922 Phone No.: (717)243-6222 Receive Mail: Yes Appoint Counsel Status: Law Firm: Capozzi & Associates, P.C. Fax No.: (717)233-4103 Appoint Counsel Status: Ce1~fiAd fr01r1 th9 RA001'd Law Firm: Saidis, Shuff, Flower & Lindsay Fax No.: (717)243-6486 DEC - 1 2004 ,- a ~ ~~~~~_, 12/1!2004 5001 8:09 A.M. Cor>ionwealth Docket Sheet Commonwealth Court of Penns~ania Docket Number: 595 CD 2002 Page 2 of 9 December 1, 2004 Appellee Board of Assessment Appeals Pro Se: Appoint Counsel Status: IFP Status: Attorney: Flower, James D. Bar No.: 27742 Law Firm: Address: Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Phone No.: (717)243-6222 Fax No.: Receive Mail: Yes Appellee Carlisle Area School District Pro Se: Appoint Counsel Status: IFP Status: Attorney: Flower, Thomas E. Bar No.: 83993 Law Firm: Address: 26 W. High Street Carlisle„ PA 17013 Phone No.: (717)243-6222 Fax No.: Receive Mail: Yes Amicus Curiae County Commissioners Associ ation of Pennsylvania Pro Se: Appoint Counsel Status: IFP Status: Attorney: Kodak, Robert Dunne Bar No.: 18041 Law Firm: Knupp, Kodak & Imblum, P.C. Address: PO Box 11848 Harrisburg, PA 17108 Phone No.: (717)238-7151 Fax No.: (717)238-7158 Receive Mail: Yes TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: January 31, 2002 Judicial District: 9 Date Documents Received: March 5, 2002 Date Notice of Appeal Filed: Order Type:Order Dated Judge: Bayley, Edgar B. Judge Lower Court Docket No.: 01-5659 12/1/2004 5001 8:09 A.M. Cor~onwealth Docket Sheet Commonwealth Court of Penns~ania Docket Number: 595 CD 2002 Page 3 of 9 December 1, 2004 ORIGINAL RECORD CONTENTS Original Record Item Filed Date ContentlDescription Trial Court record April 15, 2002 1 stack Date of Remand of Record: BRIEFING SCHEDULE ;Appellee Brief Board of Assessment Appeals .Due: March 3, 2003 Filed: March 18, 2004 12/1/2004 5001 8:09 A.M. Com*onwealth Docket Sheet Docket Number: 595 CD 2002 Page 4 of 9 December 1, 2004 Commonwealth Court of Penn~ania DOCKET ENTRIES Filed Date Docket Entrv/Document Name Exit Date Party Type Filed By February 25, 2002 Notice of Appeal Filed Appellant Alliance Home of Carlisle, Pa March 6, 2002 Notice of Docketing Appeal Exited Commonwealth Court Filing Office March 18, 2002 Docketing Statement Filed by Steven T. Hanford, Esq. Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe April 15, 2002 Trial Court Record Received Lower Court or Agency April 23, 2002 Send Back for Correction Withdrawal of Appearance need to be done by motion. Commonwealth Court Filing Office April 29, 2002 Application for Extension of Time to File Brief and Reproduced Record First Request Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe April 30, 2002 Order Granting Application for 5/1/2002 Extension of Time to File Brief and Reproduced Record due within 30 days of decision of 122-127 WAL 2001 Ross, Eunice Upon the unopposed Application for Relief filed by Appellant seeking and Extension of Time to file Appellant's Brief and Reproduced Record in the matter within thirty (30) days fo the entry of the decision by the Supreme Court of Pennsylvania in Community Options, Inlc v. Board of Property Assessment, Nos. 122-127 WAL 2001, which matters involve appeals from this Court on issues related to those involved in this matter, finding good cause for the relief requested, the Application for Relief is GRANTED. Appellant's Brief and Reproduced Record are due within thrity (30) days from the date on which the decision and order of the Supreme Court of Pennsylvania is entered in Community Options, Inc. v. Board of Property Assessment, Nos. 122-127 WAL 2001. 12/1 /2004 5001 8:09 A.M. Cor~onwealth Docket Sheet Commonwealth Court of Penns~ania Docket Number: 595 CD 2002 Page5of9 December 1, 2004 J ary 15, 2003 Designation of Contents of Reproduced Record Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe January 30, 2003 Reproduced Record Filed Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe January 30, 2003 Appellant's Brief Filed Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe February 6, 2003 Tentative Argument April 2003 Hostutler, Charles R. February 13, 2003 Argument Scheduled 2/13/2003 Tues., 4/1/03 at 9:30 a.m., Ct Rm #2, 5th FI, SOB, Hbg (35) Hostutler, Charles R. March 3, 2003 Appellee's Brief Filed Appellee Borough of Carlisle Appellee Board of Assessment Appeals Appellee Carlisle Area School District Appellee Cumberland County March 20, 2003 Appellant's Reply Brief Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe March 21, 2003 Tentative Argument June 2003 Hostutler, Charles R. 12/1/2004 5001 8:09 A.M. Coll*onwealth Docket Sheet Docket Number: 595 CD 2002 Page 6 of 9 December 1, 2004 March 21, 2003 Argument Continued This matter is sua sponte continued to the June Argument Session at which time it should be listed Commonwealth Court of Penn~ania 3/24/2003 .r~~,~.~., t Colins, James Gardner before the Court En Banc in Phila. April 14, 2003 Argument Scheduled Wednesday, 6/4/03 @ 9:30a.m. in Crtrm 1, 9th FI., Widner Bldg., Phila. #27 Hostutler, Charles R. February 4, 2004 Argument Scheduled 2/5/2004 The Chief Clerk is directed to list ~- this matter for argument before the Court en banc on 6/9/04 in Colins, James Gardner Philadelphia, Pa. February 6, 2004 Order Filed 2/6/2004 ~/ This Court's order of 2/4/04 is o vacated & the Chief Clerk is directed to list this matter for Colins, James Gardner argument before the Court sitting En Banc on 3/31/04. February 10, 2004 Argument Scheduled 2/10/2004 Wed., 3/31/04 @9:30 a.m., En Banc in Ct. Rm. 1, Irivis Office Bldg., Hbg. (No. 45) Hostutler, Charles R. Fe ary 11, 2004 Application for Relief Application to file supplemental brief & supplemental reply brief. Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe 12/1/2004 5001 8:09 A.M. Con~onwealth Docket Sheet Docket Number: 595 CD 2002 Page 7 of 9 December 1, 2004 February 23, 2004 Order Granting Application to File 2/24/2004 Supplemental Brief f O Appellants due Feb 27, 2004 Appellees due 21 days after service of Appellant's Supplemental brief Colins, James Gardner February 27, 2004 Appellant's Supplemental Brief Filed Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe March 1, 2004 Application for Relief Motion to file Amicus Curiae brief / supporting Appellees. March 2, 2004 Order Granting Application for 3/2/2004 Relief The uncontested application of ~j ~ CCAP for leave to file supplemental amicus curiae brief supporting Colins, James Gardner appellees is GRANTED. March 17, 2004 Amicus Curiae Brief Amicus Curi County Commissioners Association of Pennsylvania March 18, 2004 Appellee's Supplemental Brief Filed Appellee Borough of Carlisle Appellee Board of Assessment Appeals Appellee Carlisle Area School District Appellee Cumberland County Commonwealth Court of Penns~ania Amicus Curi County Commissioners Association of Pennsylvania March 23, 2004 Appellant's Reply Brief Supplemental Reply brief Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe 1211 /2004 5001 8:09 A.M. Cor~onwealth Docket Sheet Docket Number: 595 CD 2002 Page 8 of 9 December 1, 2004 Commonwealth Court of Penn~-ania J 15, 2004 AfFrmed 6/15/2004 Opinion (28 pgs) Pellegrini, Dan Simpson, J files a Dissenting Opinion. Leavitt, J files a Dissenting Opinion. July 14, 2004 Petition for Allowance of Appeal to PA Supreme Court Filed 609 MAL 2004 Appellant Alliance Home of Carlisle, Pa Appellant Chapel Pointe November 30, 2004 l ~~ Order Granting Petition for Allowance of Appeal to PA Supreme Court 208 MAP 2004 Record forwarded to Middle District on 12/1/04. Supreme Court SESSION INFORMATION Journal Number: 45-04-04 Consideration Type: En Banc Argument Date Listed/Submitted: 3/31/04 DISPOSITION INFORMATION Related Journal Number: 45-04-04 Judgment Date: 6/15/2004 Disposition Category: Decided Disposition Author: Pellegrini, Dan Disposition: Affirmed Disposition Date: 6/15/2004 Dispositional Comments: Simpson, J files a Dissenting Opinion. Leavitt, J files a Dissenting Opinion. Dispositional Filing: Dissenting Opinion Author: Simpson, Robert E. Filed Date: 6/15/2004 Judge: Vote: Dispositional Filing: Dissenting Opinion Author: Leavitt, M. Hannah Filed Date: 6/15/2004 Judge: Vote: Dispositional Filing: Opinion Filed Date: 6/15/2004 Author: Pellegrini, Dan Judge: Vote: 12/1 /2004 5001 8:09 A.M. Cort•onwealth Docket Sheet Docket Number: 595 CD 2002 Page 9 of 9 December 1, 2004 Commonwealth Court of Pennssania REARG U M E NT/RECONSIDERATION/REMITTAL Reargument/Reconsideration Filed Date: Reargument Disposition: Record Remitted: Date: 12/1/2004 5001 ~~ ~ ~,tir~c,~i ti~~~-t[~~r.a,~r_L,. '~ ~. fltt~r-i~~Law ~`-~ .,~.., 33 North Front Street • Harrisburg, PA 17110 • Telephone (717) 233-4101 • Fax"(717)- 233-4103. • www.capozziassociates.com -~x', ALLIANCE HOME OF CARLISLE, PA, : IN THE COURT OF CON[~IG_ti PLEAS OF t/a CHAPEL POINTE, :CUMBERLAND COti N TY, P F N ti SYLV ~, V lA Appellant, . :~ - 01-5659 CIVIL TERM - '~^~ _.,., ~-;' - BOARD OF ASSESSMENT APPEALS, ^` CARLISLE AREA SCHOOL DISTRICT,: _ `~ BOROUGH OF CARLISLE and _ ..: CUMBERLAND COUNTY, - . ' -' -~ - ~ s' _'; Appellees. ~ r~., NOTICE OF APPEAL TO COMMONWEALTH COURT Notice is hereby given that Alliance Home of Carlisle, PA, t/a Chapel ?einte, Appellant above named, hereby appeals to the Commonwealth Court of Pennsylv:nua from. the Order entered.in this matter on the 315` day of January, 2002. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Steven T. Han ord, Ee Attorney ID No. 4710 CAPOZZI & ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110-1250 Telephone: [717] 233-4101 Attorneys for Appeilallt DATE: February 25, 2002 TFt~l~ SPY FI~s~M PIEC~Rfl ~~ ~"tiry ~w~-er~f, i he(i a tlnt~ mY hand ~~ t~~ ~ old aI ~rU~tlr~, Pa. ~~ ~v ' ti 1 /ry • IN THE COMMONWEALTH COURT OF PENNSYLVANIA ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant, v. BOARD OF ASSESSMENT APPEALS, et al. Appellees. Application for Relief Extension of Time to File Brief No. 595 C.D. 2002 AND NOW COMES Appellant, Chapel Pointe, by its counsel, pursuant to Pa. R.A.P. 123, to request an Extension of Time to file briefs in this matter, and in support hereof states: 1. Appellant's Brief and Reproduced Record are currently due on May 27, 2002. 2. Currently pending for decision, after oral argument in March, 2002, before the Supreme Court of Pennsylvania is Community Options, Inc. v. Board of Property Assessment, Nos. 122-127 WAL 2001, appeals from the decision of this Honorable Court, 764 A.2d 645 (Pa. Cmwlth. 2000), which involve issues that may be determinative of those presented in this matter 0 • concerning the proper application of Act 55 and Pa. Constitution, Article 8, Sections 2 and 5, to the determination of petitions for tax exemptions. 3. Deferring briefing in this matter for the decision by the Supreme Court of Pennsylvania in Community Options Inc. v. Board of Property Assessment is in the interest of judicial economy and the efficient administration of justice. 4. Appellees have no objection to the relief sought in this application for relief. WHEREFORE, Appellant requests that the due date for Appellant's Brief and Reproduced Record in this matter be extended to be thirty (30) days from the entry of the decision by the Supreme Court of Pennsylvania in Community Options, Inc. v. Board of Property Assessment. A proposed form of Order is attached. Respectfully submitted, CAPOZZI & ASSOCIATES, P.C. Steven T. Hanford, ire Attorney Registration No. 47105 2933 North Front Street Harrisburg, PA 17110-1250 Telephone: [717] 233-4101 [Attorneys for Chapel Pointe] DATE: Z`~, 2.o°i ~• • IN THE COMMONWEALTH COURT OF PENNSYLVANIA ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant, vi. BOARD OF ASSESSMENT APPEALS, et al. Appellees. CERTIFICATE OF SERVICE No. 595 C.D. 2002 I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: Service by first class mail addressed as follows: Robert C. Saidis, Esquire [717-243-6222] James D. Flower, Jr., Esquire SAIDIS, SHUFF, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 [Attorneys for Appellees] Steven T. Hanford, squire CAPOZZI & ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110-1250 Telephone: [717] 233-4101 [Attorneys for Appellant] Date: ~ ~o'i ,~- *. w ,r ~~~ LL, , "`_ ~ - x l'*) _ 4~'n N ae `~ ci c> • ~~~, • IN THE COMMONWEALTH COURT OF PENNSYLVANIA ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant, BOARD OF ASSESSMENT APPEALS, et al. Appellees. ORDER v. : No. 595 C.D. 2002 AND NOW, upon the Unopposed Application for Relief filed by Appellant seeking an Extension of Time to file Appellant's Brief and Reproduced Record in this matter within thirty (30) days of the entry of the' decision by the Supreme Court of Pennsylvania in Community Options Inc. v. Board of Property Assessment, Nos. 122-127 WAL 2001, which matters involve appeals from this Court on issues related to those involved in this matter, finding good cause for the relief requested, the Application for Relief is GRANTED. Appellant's Brief and Reproduced Record are due within thirty (30} days from the date on which the decision and order of the Supreme Court of Pennsylvania is entered in Community Options Inc. v. Board of Property Assessment, Nos. 122-127 WAL 2001. FOR THE COURT: -_ ~. ~~.-~> A~~-r 1 ~d: z J~r~. ~~~ J • • IN THE COMMONWEALTH COURT OF PENNSYLVANIA ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant vs. No. 595 C.D. 2002 BOARD OF ASSESSMENT APPEALS, CARLISLE AREA SCHOOL DISTRICT, BOROUGH OF CARLISLE and CUMBERLAND COUNTY, Appellees DESIGNATION OF REPRODUCED RECORD AND NOW COMES Appellant, Alliance Home of Carlisle, PA, t/a Chapel Pointe, pursuant to Pa. R.A.P. §2154(a), and designates the contents of the Reproduced Record and briefly states the issues pursued in this matter as follows: 1. Contents From The Reproduced Record: (a) Appeal of Alliance Home of Carlisle, PA, t/a Chapee Pointe from the Decision Order of the Cumberland County Board of Assessment Appeals and Petition for Exemption from Real Estate Taxes with all exhibits; (b) Motion to Quash Appeals; (c) Order of Court, January 31, 2002; (d} Opinion of the Honorable Edgar B. Bayley, Jr., January 31, 2002; (e) Transcript of Proceedings held before the Honorable Edgar B. Bayley, on December 6, 2001; (f) December 6, 2001 Hearing Exhibits as follows: (1) From Petitioner's Exhibit 1: (a) IRS Form 990 - 1997; (Tab 6) (b) Deed dated April 4, 1444, recorded 4/4/44, DB T 12, p. 566, (Tab 12); 0 r • (c) Deed dated December 19, 1944, recorded DB W12, p. 466 (Tab 13); (d) Deed dated December 21, 1994, recorded DB 116, page 648, (Tab 14); (e) Application for Residency: Apartment effected 08/07/00 (Tab 15; (f) Application for Residency: Apartment effected 03/07/00, (Tab 16); (g) Application for Residency: Assisted Living effected 08/07/00, (Tab 17); (h) Application for Residency - Assisted Living effective 03/07/00, (Tab 18); (i) Application for Residency: Nursing effective 08/07/00 (Tab 19); (j) General Admission Application (Tab 20); (k) Apartment Resident Agreement (Tab 21); (1) Assisted Living Resident Agreement (Tab 22); (m) Nursing Admissions Agreement, (Tab 23); (n) Admissions Policies and Procedures (Tab 24); (o) Current Advertising Materials (Tab 25); (p) Enrollment Census with Religious Affiliation (Tab 26); (q) David Padden, CPA Curriculum vitae, (Tab 27); (r) PG&A Expert Report, (Tab 28); (s) CCRC Disclosure Statement, (Tab 29); (2). Respondent's Exhibit 1, Document of Fees for Apartments; and (3) Respondent's Exhibit 2, Independent Living Financial Analysis Tax Year 2000. 2. Brief Statement Of Issues Pursued (a) Whether the trial court erred in denying appellant's petition for real estate tax exemption where appellant demonstrated compliance with the standards 2 • • enunciated in Hospital Utilization Project V. Commonwealth Of Pennsylvania, 507 PA. 1, 487 A.2D 1306 (1985)("HUP'~? (b.) Whether the trial court erred in failing to apply any of the standards for establishing an entity as an "Institution Of Purely Public Charity" Under The Institutions Of Purely Public Charity Act, 10 P.S. §§ 371 et seq., commonly known as "Act 55?" (c.) Whether the trial court erred in holding that it was not required to apply Act 55 standards to appellant's petition for real estate tax exemption until after it had made an independent determination of appellant's eligibility for tax exemption under the Pennsylvania constitution, relying on language in this court's decision in Community Options. Inc. V. Board Of Property Assessment, Appeals And Review, 764 A.2d 645 (Pa.Commw. 2000)? (d.) Whether the trial court erred in failing to determine that appellant was entitled to a rebuttable presumption of compliance with Act 55, and thus a rebuttable presumption that it was an institution of purely public charity, pursuant to 10 P.S. § 376(b)? (e.) Whether the trial court erred in failing to apply the holding in ST. MARGARET SENECA PLACE V. BOARD OF PROPERTYASSESSMENT APPEALSAND REVIEW, COUNTYOFALLEGHENY, 536 Pa. 478, 640 A.2d 380 (1994), that a facility is to be considered as a whole in determining whether the facility is entitled to a real estate tax exemption, even if a component of the facility is found to generate a surplus? (£) Whether the facts relied upon by the trial court are supported by substantial evidence on the record? (g.) Whether Appellee taxing authorities have waived or are otherwise precluded as a matter of law from contesting the constitutionality of Act 55? Respectfully Submitted, Capozzi & Associates, P.C. r- y Steven T. Hanford, Esquire Attorney ID#47105 2933 North Front Street Harrisburg, PA 17110 Attorney for Appellant • CERTIFICATION OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing DESIGNATION OF REPRODUCED RECORD was served by first-class United States Mail, postage prepaid, as follows: Robert C. Saidis, Esquire James D. Flower, Jr., Esquire SAIDIS, SNUFF, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 Attorneys for Appellees Date: January 15, 2003 ~~ ~ . STEVEN T. HANFO • 4 • • IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C.D. 2002 nnn~u AND NOW, this 21 S` day of March 2003, the above-captioned matter is sua sponte continued to the June Argument Session at which time it should be listed before the Court En Banc in Philadelphia, Pennsylvania. JAM GARDNER COLINS, President Judge wed from the Record MAR 2 4 2003 artcl Order Exit 0 • IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County NO. 595 C.D. 2002 ORDER • AND NOW, this 4th day of February, 2004, the Chief Clerk is directed to list the above-captioned matter for argument before the Court sitting en Banc on Wednesday, June 9, 2004, in Philadelphia, Pennsylvania. ~. JAM GARDNER COLINS, President Judge ,~ ,~ ,~ „~ . ,~•,,,,, „ r .,. w+,~ ~.~,Wi ...~~.~ • • IN THE COMMONWEALTH COURT OF PENNSYLVa1vIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C. D. 2002 ORDER AND NOW, this 6`~ day of February 2004, this Court's order of February 4, 2004 is vacated and the Chief Clerk is directed to list this matter for argument before the Court sitting En Banc on March 31, 2004. Certlfied from the Record FEB - 6 1~~'4 ~a actor ~rc 0 EZr~- ,.: J A'RD-NER COLII~TS~P'~~esident Judge r • • ~~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA No. 595 C.D. 2002 ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant vs. BOARD OF ASSESSMENT APPEALS, CARLISLE AREA SCHOOL DISTRICT, BOROUGH OF CARLISLE and CUMBERLAND COUNTY, Appellees APPLICATION, PURSUANT TO PA. R.A.P. 2501, FOR PERMISSION TO FILE SUPPLEMENTAL BRIEFS AND SUPPLEMENTAL REPLY BRIEF Submitted by: Louis J. Capozzi, Jr., Esquire Attorney I.D. No. 46559 CAPOZZI & ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110-1250 (717) 233-4101 [Attorneys for Appellants] I r' • • AND NOW COMES Appellant, Alliance Home of Carlisle, Pa., t/a Chapel Pointe, by its attorneys, pursuant to Pa. R.A.P. Rule 2501 (relating to post-submission communications) and Rule 123 (relating to applications for relief) , by application to this Honorable Court for permission to file Supplemental Briefs and a Supplemental Reply Brief in this matter; and, in support hereof, states: This matters was argued before the Court En Banc on June 4, 2003, in Philadelphia. 2. By Order of February 6, 2004, this Honorable Court scheduled this matter for another argument before the Court En Banc on March 31, 2004, in Harrisburg. 3. No decision has been entered by this Honorable Court in this matter to date. 4. Pursuant to 210 Pa. Code § 67.29 (relating to this Honorable Court's internal operating procedures for effect of disagreements), a matter will be listed for reargument before the Court En Banc under the circumstances defined by that rule. 5. Pa. R.A.P. Rule 2140 (relating to Brief following grant of reargument) permits supplemental briefs to be filed where an Order has been entered allowing reargument, included at subsection (c), an initial supplemental brief by one party, then a responding supplemental brief by the other party, and finally a reply brief by the first party, with the initial supplemental brief being due within 21 days of the Order allowing reargument. ~' • • 6. Since this matter was argued before the Court En Banc in June 2003 there have been further developments in case law related to the issues in this matter, including decisions of the courts of other States and decisions of this Honorable Court and the Supreme Court of Pennsylvania. 7. The scheduling of later additional argument before the Court En Banc is uncommon and suggests that this Honorable Court and the interests of justice in this matter will be assisted by permitting the parties to file supplemental briefs as if Pa. R.A.P. 2140 applied in this case. 8. Appellant's counsel was advised by the Filing Office for this Honorable Court that an application pursuant to Pa. R.A.P. 2501 would be required in order for the filing of supplemental briefs to be authorized in this matter. 9. Supplemental briefs and a supplemental reply brief can be filed, applying the time limits described in Pa. R.A.P. 2501, prior to March 31, 2004. WHEREFORE, Appellants request this Honorable Court to permit the parties in this matter to file supplements brief and a supplement reply brief, as if Pa. R.A.P. 2501 applied. A proposed form of Order is attached hereto. Respectfully submitted, 1 Louis J. Capozzi, Jr., Esquire Attorney I.D. No. 46559 CAPOZZI & ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PA 17110-1250 Telephone: [717] 233-4101 DATE: February 11, 2004 [Attorneys for Chapel Pointe) • • IN THE COMMONWEALTH COURT OF PENNSYLVANIA No. 595 C.D. 2002 ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant vs. BOARD OF ASSESSMENT APPEALS, CARLISLE AREA SCHOOL DISTRICT, BOROUGH OF CARLISLE and CUMBERLAND COUNTY, Appellees ORDER AND NOW, this day of February, 2004, upon Appellant's Application for Permission to file Supplemental Briefs, the Application is hereby GRANTED. Appellant shall file its Supplemental Brief titled "Appellant's Supplemental Brief' on or before February 27, 2004. Appellees may file a responsive Supplemental Brief titled "Appellees' Supplemental Brief' within twenty-one (21) days after service of Appellant's Supplemental Brief; and, Appellant may file a Supplemental Reply Brief titled "Appellants' Supplemental Reply Brief' within ten (10) days after service of Appellees' Supplemental Brief. All Supplemental Briefs and the Supplemental Reply Brief are subject to the same page limits as in Pa. R.A.P. 2140(d); and, shall be filed prior to March 31, 2004. No extensions of time shall be granted for filing. BY THE COURT: • • CERTIFICATION OF SERVICE I hereby certify that I am this day serving the foregoing Application, upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.A.P. 121: Robert C. Saidis, Esquire James D. Flower, Jr., Esquire SAIDIS, SHUFF, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 [Attorneys for Appellees] .. ;.. _ _. .. _- Date: 2/ 11 /2004 ~~~`~ - ----- -- _ - oui~ J. C ozzi, Jr., uire tto ey LD.~Iu: A OZZI & ASSOCIATE .C. 29 3 North Front Street Harrisburg, PA 17110-1250 (717) 233-4101 [Attorneys for Appellant, Chapel Pointe] • C7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C. D. 2002 nun~n AND NOW, this 23rd day of February 2004, appellants' application pursuant to Pa. R.A.P. 2501 for permission to file supplemental briefs and supplemental reply brief is GRANTED. Appellant shall file its supplemental brief on or before February 27, 2004. Appellees may file a responsive Supplemental Brief within twenty-one (21) days after service of Appellant's Supplemental Brief; and, Appellant may file a Supplemental Reply Brief within five (5) days after service of Appellee's Supplemental Brief. All supplemental briefs and supplemental reply briefs are subject to the page limits set forth in Pa. R.A.P. 2140(d); all supplemental briefs and supplemental reply briefs shall be filed prior to March 26, 2004. JAMES G NER COLINS, Presdedt Judge Certil'Ied from the Record FEB 2 4 2004 and Order Exit ~ o • • • IN THE COMMONWEALTH COURT OF PENNSYLVANIA ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant v. NO. 595 CD 2002 C7 ORIGINAL . BOARD OF ASSESSMENT APPEALS, o ~ ~; ° ~'r q CARLISLE AREA SCHOOL DISTRICT ~ ~ ~~`~ BOROUGH OF CARLISLE and ~° z~=r CUMBERLAND COUNTY, ~ ~ n o Appellees -~ ~ _ ~ MOTION OF THE COUNTY COMMISSIONERS ASSOCIATION OF PENNSY w L~A ?om I~~ ~ ("CLAP") TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLEES ~'' The County Commissioners Associates of Pennsylvania ("CCAP") is an organization created by statute, specifically sections 440 and 441 ofPennsylvania'sGounty Code, to represent the interests of Pennsylvania's 67 counties and the governing executives of Pennsylvania's counties. 2. In that capacity, CCAP has participated many times as amicus and also as a party, in cases that are important to the efficient and cost effective administration of county government in Pennsylvania. 3. CCAP believes that the captioned case is such a case; it involves this Court's interpretation of Act 55 and, ultimately, whether portions of vast real estate holdings of the Appellant are subject to real estate tax by the Cumberland County parties, the Appellees. 4. The case was originally argued before a panel of this Court in June, 2003 and is now set for reargument en banc on March 31, 2004. CCAP desires the privilege to file a brief amicus curiae in support of the Appellees, not only because of the large amount of tax revenues potentially at stake in the captioned case, but because of the ramifications that the decision in the captioned case would have with respect to the rig .. - ti • • • administration and taxation powers of county government throughout Pennsylvania. 6. CCAP is seeking permission from the Court to participate as amicus because the deadline for submission of the Appellees' brief has already passed. 7. The undersigned has sought the concurrence of counsel for both parties in the captioned case; counsel have not been available for comment when the undersigned has attempted to contact them on multiple occasions. WHEREFORE, CCAP requests this Honorable Court to enter an Order granting it the privilege of filing a brief amicus curaie in support of the Appellees, and to provide any other relief the Court deems appropriate. ~~,~ ~ a~ ~ Date ~ KNUPP, KODAK & IMBLUM, P. C. Ro rt L. u Attorney for CCAP 407 North Front Street P. O. Box 11848 Harrisburg, PA 17108-1848 (717) 238-7151 Supreme Court I.D. 18041 ,~. • • IN THE COMMONWEALTH COURT OF PENNSYLVANIA ALLIANCE HOME OF CARLISLE, PA, t/a CHAPEL POINTE, Appellant v. NO. 595 CD 2002 BOARD OF ASSESSMENT APPEALS, CARLISLE AREA SCHOOL DISTRICT, BOROUGH OF CARLISLE and CUMBERLAND COUNTY, Appellees PROOF OF SERVICE PURSUANT TO PA.RA.P. 122 I, Robert L. Krupp, Attorney for CCAP in the captioned action, hereby certify that I have served a true and correct copy of the attached document on the date below, upon the following persons, via first-class mail, postage pre-paid: Steven T. Hanford, Esquire Capozzi & Associates, PC Attorneys for Appellant 2933 North Front Street Harrisburg, PA 17110 James D. Flower, Jr., Esquire Thomas E. Flower, Esquire Saidis, Shuff, Lower & Lindsay Attorneys for Appellees 26 West High Street Carlisle, PA 17013 ~ C-~~ Date KNUPP, KODAK & IMBLUM, P.C. Ro rt L. Krupp Attorney for CLAP 407 North Front Street P. O. Box 11848 Harrisburg, PA 17108-1848 (717) 238-7151 Supreme Court I.D. 18041 • • IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C. D. 2002 ORDER AND NOW, this 2"d day of March 2004, the uncontested application of the County Commissioners Association of Pennsylvania (CCAP) for leave to file supplemental amicus curiae brief in support of Appellees is GRANTED. ~ ~~ JAME GARDNER COLINS, dent Judge Certified from the Rem MAR - 2 2004 ~ p~ Exit 2 • IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v. No. 595 C.D. 2002 Argued: March 31, 2004 Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION BY JUDGE PELLEGRINI .FILED: June 15, 2004 • Alliance Home of Carlisle, Pennsylvania, t/a Chapel Pointe (Chapel Pointe) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) denying its request to extend its charitable real estate tax exemption to the parcel of property on which its independent living section is located. Chapel Pointe is anon-profit corporation that was formed in 1944 to provide a home and sustenance for aged and infirm people in Carlisle, Pennsylvania. It currently operates as a licensed continuing care retirement community. Located on its property is a 59-bed skilled nursing home, which has been exempted from real estate taxation as a hospital and a 53-bed assisted living compound, which has been rj exempted as well. Also located on the property and at issue in this case are 93 apartments that function as the independent living component of the Chapel Pointe retirement conununity. In 1997, the trial court affirmed a decision by the Cumberland County Board of Assessment (Board) denying an extension of the tax exemptions for the skilled nursing home and assisted living areas to the contiguous parcel on which the independent living units are located, finding that Chapel Pointe was not a purely public charity and was not entitled to an exemption from real estate taxes on the apartment units. Chapel Pointe did not appeal this decision. In 2001, after the enactment of the Institutions of Purely Public Charity Act' (more commonly referred to as "Act 55"), Chapel Pointe again petitioned the Board requesting a determination that it was entitled to a presumption under Act 55 that it was an institution of purely public charity, and the parcel consisting of the independent living apartments be exempt from real estate taxes as a purely public charity. It argued that it met both the constitutional and statutory tests for exemption by providing, among other things, uncompensated goods and services to the residents which were in excess of five percent of the cost of providing such goods and services as required. The Board denied the request after concluding that it was ~°es judicata based on the 1997 decision and precluded re-litigation. Chapel Pointe then appealed to the trial court which permitted a hearing on the matter. At the hearing, Chapel Pointe presented the testimony of H. David Padden (Padden), a certified public accountant, who provided the following ' Act of November 26, 1997, P.L. 508, 10 P.S. §§371-385. 2 information regarding Chapel Pointe's 932 independent living apartments: he stated that the minimum age requirement for a resident in an apartment was 62, and that all the apartments were privately paid for by the residents without any government subsidies. He explained that a perspective resident had to provide Chapel Pointe with a detailed financial statement, and Chapel Pointe did not admit any resident who could not pay the entrance fee up front and whose financial information did not reflect that they could pay the monthly rental fees. One apartment unit was used as a model. The total amount for the entrance fees for the 92 apartments for residents was $5,721,000. As of the date of the hearing, four apartments were vacant. The entrance fee was amortized to income over a period of time. Padden continued to state that Chapel Pointe placed each apartment on a 40-year depreciation schedule, and the average stay for a resident was three to four years. However, residents could stay in their apartments as long as they were safe and then they could be moved to either the assisted living compound or to the nursing home within Chapel Pointe. He stated that the average stay of a resident was four to five years. He further stated that Chapel Pointe amortized all entrance fees over the life expectancy of the resident. He explained that Chapel Pointe amortized the entrance fee at 20% each year prorated monthly for five years; therefore, if a resident left the apartment within five years, a prorated amount of the entrance fee would be refunded. Nonetheless, all income earned on an entrance fee was retained by Chapel Pointe, and after five years, no portion of the entrance fee ~ The 93 apartment units consist of the Colonial Apartments (1l Lu~its); Jarrett Apartments (three, 4-unit townhouses); Heritage & Harmony Suites (two, 12-unit apartment buildings); Cornerstone Manor (23 units); and Bedford Tezzace (23 units). 3 was refundable. Padden also stated that a uniform monthly rental fee was charged. for each apartment. Regarding uncompensated services, Padden stated that 55% of the apartment residents received some type of uncompensated services such. as assistance with the timely taking of medications, participation in some social activities, and advice regarding family or financial problems which amounted to them receiving uncompensated services greater than 10% of the cost of care. Regarding Chapel Pointe's financial statement, Padden stated that Chapel Pointe allocated its administrative costs on the basis of total operating costs, with 68% of administrative costs allocated to the nursing home, 22% to the assisted living compound, and 9% for the independent living apartments. Although Padden testified that for years 1998, 1999 and 2000, Chapel Pointe realized an operating loss and had relied upon contributions and bequests to make up for that loss, on cross-examination, he admitted that in arriving at the figures that determined the losses, he included depreciation for each year and did not include other contributions and non-operating revenues and gains. Joln1 Hendrickson (Hendrickson), the Executive Director of Chapel Pointe, testified that entrance fees ranged from $37,000 for an efficiency apartment to $73,000 for atwo-bedroom apartment, and that Chapel Pointe earned 20% from each entrance fee that was charged. He could not recall ever waiving the entrance fee. Currently, the rent was $599 for one resident and an additional $130 for an additional occupant. Hendrickson indicated that there were a few residents who had trouble meeting their monthly payment and were receiving some financial assistance from Chapel Pointe. Residents whose income had become insufficient to pay the rent were required to immediately apply for financial assistance from their family, 4 • • church or public welfare agencies. He noted that if the monthly rental fee was not timely paid, Chapel Pointe could terminate the residency, although it had never done so. Residents were required to annually prepare and submit a current financial statement to Chapel Pointe and the failure to do so constitutes grounds for ternlination/eviction. Hendrickson stated that it was Chapel Pointe's policy for any surplus in revenues that were generated from fees charged or from charitable donations given to remain with Chapel Pointe. To defend the requirement of the entrance fee and a resident's disclosure of his or her assets, Hendrickson explained their importance: There is a limit to the amount of benevolent care that we can provide. We're not a large facility with a huge endowment that can provide benevolent care without using monies coming in from operations. So we want to look at and be sure that we're going to be able to provide the benevolent care that we've already committed to, and so we have to be sure that there are people who are coming in are private pay. The other reason is that we want to be sure that we have something to compare a disclosure to now should they apply for a different level of living down the road and there is a significant difference in the amount of assets that are there. Again, we do not want to give charity to just anyone. We want to give charity to or financial assistance to people that truly qualify for financial assistance. (Emphasis added.) (Reproduced Record at 157-158.) Richard Lehmann, Chapel Pointe's director of Financial Services, testified that there were only three residents that were currently receiving direct financial assistance from Chapel Pointe. He explained that that meant that those residents could not cover the rental fee and, although they were billed the full amount, Chapel Pointe wrote off $100 or $150 a month as a benevolent allowance. 5 Testifying on behalf of the Board and Cumberland County (County) were William Reath (Reath), a real estate assessor with the County and Randy Waggoner (Waggoner), an assessment consultant for Wolfe and Shearer Realtors. Reath testified that the current assessed value of the 93 apartments was $2,593,350 for 100% of the market value in the year 2000. Waggoner testified that he previously worked for 18 years in the Cumberland County Assessment Office, 13 of those years as its Chief Assessor. He stated that he visited the independent living apartments and then conducted a rental survey of rental apartments in the area to compare rental prices. He found that the low-end of the scale for one-bedroom apartments was $325 per month and $425 per month for two-bedrooms while the average was $350 per month and $450 per month for one-bedroom and two- bedrooin apartments, respectively. The trial court initially denied Chapel Pointe's contention that it was entitled to a rebuttable presumption under Act 55 that it was a purely public charity because that was a preliminary question which first had to be answered within the meaning of Article 8, Section 2(a)(v) of the Pennsylvania Constitution. It then denied Chapel Pointe's petition for an exemption from the real estate tax as a purely public charity because it did not prove that it donated or rendered gratuitously a substantial portion of its services to the residents of its apartments, noting that residents had to meet financial requirements before admission; Chapel Pointe received $5,721,000 for 92 units plus additional entrance fees for subsequent occupants; it retained the entire entrance fee after five years and prorated the fee if the resident died or left before that time; and it charged a monthly rental which was substantially higher than the none for a rental in the Carlisle area. The trial court noted: 6 • • This system gives older people, at a considerable cost, a safe comfortable place to live, it provides ancillary services for a charge, and residents get priority for transition into the assisted living compound and/or nursing home if the unfortunate need arises. The system provides a substantial amount of money for Chapel Pointe, and a steady source of future occupants of its assisted living compound and nursing home. (Trial court's 3anuary 31, 2002 opinion at 17.) This appeal by Chapel Pointe followed. Chapel Pointe contends that the trial court erred in refusing its request for a tax exemption because it looked at the parcel of land on which the independent living apartments are located separately from the other living facilities, i.e., the assisted living and skilled nursing facilities, when considering whether Chapel Pointe was a purely public charity under Article 8, Section 2 of the Pennsylvania Constitution and Act 55 instead of treating Chapel Pointe as one institution. in making its evaluation.3 3 Chapel Pointe initially argues that the trial couz-t erred in concluding that it was not entitled to the rebuttable presumption that it was an institution of purely public charity because it previously was found to be an institution of purely public charity regarding its other facilities. It directs our attention to Section 5(b) of Act 55 which provides: Burden of proof. If an institution of purely public charity assez-ts a presumption under subsection (a), a political subdivision challenging that institution before a govenunent agency or court shall bear the burden, by a preponderance of the evidence, of proving that the institution of purely public charity does not comply with the requirements of section 5. 10 Pa. C.S. ~376(b). Chapel Pointe argues that nothing in the Constitution instructs the courts on the process to detern~ine whether an institution is one of purely public charity, and the rebuttable presumption in Act 55 should apply because it is not being relied upon to ultimately (Footnote continued on next page...) 7 Article 8, Section 2 of the Peiuzsylvania Constitution provides that, "[t]he General Assembly may exempt from taxation...Institutions of purely public charity, but in the case of any real property tax exemptions only that portion of real property of such institution which is actually and regularly used for the purposes of the institution." (Emphasis added.) In Hospital Utilization Project v. Commonwealth of Pennsylvania (HUP), 507 Pa. 1, 487 A.2d 1306 (1985), our Supreme Court determined thaf an entity qualified as a purely public charity under the Constitution if it met the following test: 1. Advances a charitable purpose; 2. Donates or renders gratuitously a substantial portion of its services; 3. Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; 4. Relieves the government of some of its burden; and 5. Operates entirely free from profit motive. (continued...) deternine whether it qualifies for a tax exemption, but only to establish the process through which the taxing authority must proceed to impose taxes on real property to determine that the real property is taxable. That issue ignores that what this issue involves is not whether Chapel Pointe, an institution of purely public charity, which for the purposes of this case is conceded, but whether the independent living apartments are being used for charitable purposes. h~ any event, we need not address this issue because the facts are not in dispute, and this issue merely inquires whether those facts, as established, meet the legal standards for a purely public charity, making the presumption irrelevant. 8 Rather than adopting a more stringent test, Section 5 of Act 55, 10 P.S. §375, adopted this test. This Court has followed that Constitutional mandate and the standards set forth in HUP in two cases that are quite similar factually to the case sub judice and has in both instances upheld the denial of a tax exemption for a facility on property that also maintains additional facilities that do qualify for a tax exemption based on the entity's classification as a purely public charity. In Appeal of Luthef°an Social Services, 539 A.2d 895 (Pa. Cmwlth. 1988), Lutheran Social Services appealed from the' denial of a real estate tax exemption for its 96-unit apartment building and 81 cottage units it operated as part of a retirement community for the elderly which also contained a nursing facility. The Board of Assessment reclassified the apartment building and cottages from tax exempt to taxable but did not change the status of the nursing facility from tax exempt. On appeal, we determined that the apartments were tax exempt because while the applicants paid a processing fee, they did not pay an admission fee and the fees did not cover the operating expenses of the apartments. Many of the residents were exonerated from paying increases in their monthly fees. The apartments operated at a deficit. As to the cottages, applicants paid an entrance fee ranging from $38,500 to $46,000 depending on the type of unit; no resident was ever admitted without paying the entrance fee; if the resident died, any balance became the property of Lutheran Social Services; and residents paid a monthly maintenance fee plus their own utilities. We stated: The cottage operation at Luther Acres presents an entirely different situation. Even if the fact that the cottages provide housing for the elderly were held to satisfy the first Hospital Utilization Project criterion of advancing a charitable purpose, the cottage operation runs afoul of the 9 second criterion, that of donating or rendering gratuitously a substantial portion of its services. The simple fact that the cottage operation consistently realizes a substantial profit demonstrates that no services are being rendered free to cottage residents. LSS's claim that it subsidizes cottage residents by not charging them $20 per month in taxes and by exonerating some from increases in the monthly maintenance fee is untenable... The cottage operation sells something -housing for the elderly - at a profit, and LSS then uses that profit for the purposes above held to be charitable in nature. However, the situation would be no different if LSS conducted some other business on the prenuses, manufacturing or retailing for example, at a profit, and then donated that profit to its charitable activities. Such fund-raising would be laudable but not, in the legal sense, charitable. Id. at 901-902. Relying upon Luther°an Social Services, we came to the same conclusion in Appeal of Bethlen Home, 557 A.2d 828 (Pa. Cmwlth. 1989). In that case, Bethlen Home operated a facility that included a nursing home which provided intermediate and advanced nursing care as well as seven retirement cottages that consisted of two separate living units. The County of Westmoreland assessed the retirement cottages and the land on which they were erected for real estate taxes and Bethlen Home appealed. The appeal was denied and the trial court held that the retirement cottages were tax exempt. On appeal, we reversed based on the following facts: the residents had to be 65 years or older to reside in a cottage; they had to submit evidence of their financial ability to sustain independent living; they had to pay an entrance fee ranging from $25,000 to $45,500; no applicant ever took occupancy without paying the fee; and occupants paid a monthly service fee of $25 plus all of their utilities. We noted that although occupants were able to receive free nursing care in the nursing home at some time in the future, that fact was irrelevant 10 to the determination of whether the cottage operation was of a purely public charity. Further, even though Bethlen repaired its cottages free of charge and provided lawn mowing and snow removal at no cost to the occupants, we concluded that those few services were insufficient to meet the second criterion of HAP. While it was conceded that Chapel Pointe's assisted living and the skilled nursing facilities are used for a charitable purpose and the land on which they are located have been given a tax exemption, we are not required to exempt from taxation the independent living apartments or any other facilities on the same property, whether they be charitable or not, merely because they are located on the same property. Were we to find otherwise, any use could be placed on property that already has received a tax exemption for real estate based on a charitable exemption. Of course, if Chapel Pointe's purpose tips away from being charitable because of an accumulation ofnon-charitable activities or if a claim is made that it competes in its activities with "for profits," see Section 8(a) of Act 55, 10 P.S. §378, then its entire exemption can be challenged. Chapel Pointe then argues that it even if we look at the parcel and use separate and apart from that which has already been exempted, the independent living apartments meet the definition of a purely public charity.4 The only prong of the standard at issue in this case is whether Chapel Pointe donates or renders a Whether an institution is one of purely public charity is a mixed question of fact and law, and we are bound by the trial court's decision as long as there is no abuse of discretion and there is supporting evidence. Concern-Professional Services for Children and Youth. v. Board of Assessment Appeals of Berks County, 560 A.2d 932 (Pa. Cmwlth.), petition for allowance of appeal denied, 524 Pa. 612, 569 A.a2d 1370 (1989). gratuitously a substantial portion of its services relative to the independent living apartments. Chapel Pointe contends that it has met this requirement under Section 5(d)(1)(iii) of Act 55, 10 P.S. §376(d)(1)(iii), which provides that in order to prove that an institution renders gratuitously a substantial portion of its services, it may show that it provides wholly gratuitous goods or services to at least 5% of those receiving similar goods or services from the institution. The trial court in this case found otherwise, determining that there was no evidence that Chapel Pointe was donating a substantial portion of its services to the residents living in the independent living apartments and, therefore, did not meet the definition of a purely public charity.5 We agree. As the trial court stated: Chapel Pointe has not proven by credible evidence, under any standard, that it donates or renders gratuitously a substantial portion of its services to the residents of its apartments. No assistance is provided to any residents for the payment of their entrance fees. Very minimal assistance is provided to a few residents by adjusting their monthly rental fees. Some financially insignificant ancillary program benefits are provided for those residents who choose to participate. The apartment operation helps fund Chapel Pointe's nursing home and assisted living compound. Chapel Pointe's convoluted effort to utilize the criteria in its unified financial statement to convenience us, based on a cost per day per resident analysis, that (1) the apartments operate as a loss, and (2) it renders gratuitously a substantial portion of services for the apartment residents, is not credible. Under Article 8, Section 2(a)(v) of the Pennsylvania Constitution, it is "only that portion of Although not before us, it also seems there is an issue as to whether Chapel Pointe's independent living apartments benefit a substantial and indefinite class of persons who are legitimate subjects of charity when they are required to pay a substantial entrance fee and monthly rental fee. 12 • real property of [an] institution which is actually and regularly used" for "purely public charity," that is exempt from real property taxes. Thus, unlike the nursing home and the assisted living compound, the apartments and the land they are on do not qualify for a statutory real estate tax exemption. • Because there is substantial evidence in the record to support the trial court's determination, we will not disturb that determination on appeal. Accordingly, the order of the trial court is affirmed. DAN PELLEGRINI, J DGE 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa t/a Chapel Pointe, Appellant v. No. 595 C.D. 2002 Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County ORDER AND NOW, this 15t~' day of June, 2004, the order of the Court of Common Pleas of Cumberland County, dated January 31, 2002, is affirmed. ~~ DAN PELLEGRINI, JU GE • • r'-. • IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa t/a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County No. 595 C.D. 2002 Argued: March 31, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McG1NLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE CORN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge DISSENTING OPINION BY JUDGE SIMPSON FILED: June 15, 2004 • I respectfully dissent because I believe the thoughtful trial judge incorrectly applied the constitutional tests for charitable tax exemption. "An entity seeking a statutory exemption for taxation must first establish that it is a `purely public charity' under Article VIII, Section 2 of the Pennsylvania Constitution before the question of whether that entity meets the qualifications of a statutory exemption can be reached." Cmty. Options, Inc. v. Bd. of Prop. Assessment, 571 Pa. 672, 676, 813 A.2d 680, 683 (2002). In Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985}, our Supreme Court set forth afive-part test for determining whether an entity qualifies as a "purely public charity" under the Pennsylvania Constitution: [A]n entity qualifies as a purely public charity if it possesses the following characteristics. (a) Advances a charitable purpose; (b) Donates or renders gratuitously a substantial portion of its services; (c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (d) Relieves the government of some of its burden; and (e) Operates entirely free from profit motive. 507 Pa. at 22, 487 A.2d at 1317 (HUP test). "For the [entity] to obtain the claimed exemption from taxation, it must affirmatively show that the entire institution, (1} is one of `purely public charity'; (2) was founded by public or private charity; (3) is maintained by public or private charity." Appeal of Lutheran Social Services, 539 A.2d 895, 897 (Pa. Cmwlth. 1988)(emphasis added), uotin Appeal of Woods Schools, 406 Pa. 579, 584, 178 A.2d 600, 602 (1962). In addition to a determination as to the charitable status of the entire institution, there is also a constitutional test relating to the use of the parcel in question. Article VIII, Section 2(a)(v) of the Pennsylvania Constitution permits exemption from taxation of "only that portion of real property of such institution which is actually and regularly used for the purposes of the institution." RES-2- • • Here, the trial court confused the two constitutional inquiries. Because some of Chapel Pointe's real property already enjoys charitable tax exemption, the trial court was not asked to determine, and did not determine, whether the entire institution met the constitutional "purely public charity" test. Rather, it held the independent living unit part of the institution did not satisfy the test. Also, it did not determine whether the parcel in question "is actually and regularly used for the purposes of the institution." Instead, its parcel-specific inquiry focused on the charitable status. Lutheran Social Services, a case discussed by the trial court, is instructive. Lutheran Social Services owned property on which was located a retirement community consisting of a nursing care facility, an apartment building and cottage units. The institution appealed the taxable reclassification of the apartment building and cottage parcels. This Court acknowledged that analysis of the entire institution was required. Thereafter, noting financial inconsistencies and operational distinctions between the apartments and cottages, the Court concluded that the apartment and cottage uses were in fact separate. Based on this conclusion, we analyzed each use separately. Ultimately, the Court held that the cottage operation did not donate or render gratuitously a substantial portion of its services.' lIn addition, the generation of profit from the cottage operation subjected the parcel to taxation under Section 204 of the General County Assessment Law, Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §5020-204(b). RES-3- Our Supreme Court followed a similar process in Appeal of Woods Schools, in which an institution sought to extend charitable tax exemption for property surrounding a research center to its contiguous school property. The Court acknowledged the "entire institution" analysis. 406 Pa. at 582, 178 A.2d at 602. However, the Court agreed with the lower courts that the school was in fact a separate and distinct entity from the research center. Id. at 584, 178 A.2d at 603. On that basis, the Court reviewed the facts pertaining only to the school, ultimately concluding the school did not donate a substantial portion of its services. As in Appeal of Woods Schools and Lutheran Social Services, the trial court here was required to apply the constitutional criteria to the entire institution unless the record supports an analysis of separate components.2 Significantly, this approach is consistent with the approach for charitable tax exemption under the Institutions of Purely Public Charity Act,3 known as Act 55. Chartier Valley Sch. Dist. v. Bd. of Assessment Appeals, 794 A.2d 981 (Pa. Cmwlth. 2002)(by statutory definition, basic unit of evaluation is corporation, association or trust, or other similar entity, not parts of entity). Consistent with the forgoing analysis, and with the intent of harmonizing the constitutional and statutory analyses, I would reverse and remand, Z In fairness to the trial court, this Court departed from the "entire institution" analysis without explanation on occasion, especially where attention was not drawn to the entire institution because the appeal concerned only one of several parcels. See e.g„ Appeal of Bethlen Home, 557 A.2d 828 (Pa. Cmwlth. 19.89); Passavant Health Center v. Bd. of Assessment, 502 A.2d 753 (Pa. Cmwlth. 1985). 3 Act of November 26, 1997, P.L. 508, 10 P.S. §§371-85. RES-4- • with direction to apply an "entire institution" analysis to the constitutional questions, and with invitation to consider statutory tests thereafter. ~~~ . Judge RES-S- • • IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alliance Home of Carlisle, Pa. t/a Chapel Pointe, Appellant v, No. 595 C.D. 2002 Argued: March 31, 2004 Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge DISSENTING OPINION BY JUDGE LEAVITT • FILED: ,Tune 15, 2004 Respectfully, I dissent. The majority, as did the trial court, disregards the Institutions of Purely Public Charity Act, Act of November 26, 1997, P.L. 508, l0 P.S. §§371-385 (Act 55). Indeed, in deciding the tax exemption application of Alliance Home of Carlisle, Pennsylvania, t/a Chapel Pointe (Chapel Pointe) the majority declares Act 55 to be "irrelevant."' Our charge, however, is to give effect to statutes of the General Assembly. Act 55 does not create a tax exemption. Exemptions are established in the appropriate taxing statute. Here, the exemption sought by Chapel Pointe was 1 See n.3 of majority opinion. established in Section 204(a)(3) of the General County Assessment Law (Assessment Law}, Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §5020- 204(a)(3), which exempts "institutions ... of charity" from the payment of real property tax.2 Under Act 55, the substantive standards for determining whether Chapel Pointe may claim an exemption under Section 204(a)(3) are the standards of HUP.3 See Section S of Act 55, 10 P.S. §375. However, Act 55 covers new ground insofar as it establishes, for the first time, uniform procedures by which these determinations are to be made at the local level. One of those procedures, applicable here, is the rebuttable presumption. Section 6(a) of Act 55 states as follows: (a) Presumption determination.-- An institution of purely public charity~41 possessing a valid exemption from the tax imposed by Article II of the act of March 4, 1971 (P.L. b, No. 2), known as the Tax Reform Code of 1971, shall be entitled to assert a rebuttable presumption regarding that institution's compliance with the criteria set forth in section 5 as follows: (1) An institution of purely public charity that has annual program service revenue less than $10,000,000 shall be entitled to assert the z This exemption includes "the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity ...." Section 204(a)(3) of the Assessment Law, 72 P. S. §5020-204(a)(3). 3 See Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985) (HUP). In HUP, the Supreme Court, construing Article VIII, Section 2 of the Pennsylvania Constitution, established a 5-point test for determining when a taxpayer is a "purely private charity" entitled to an exemption. Act 55 codifies the HUP test. It states its purpose to implementation of the "traditional legislative and judicial applications of the constitutional term `institutions of purely public charity."' Section 2(b) of Act 55, 10 P.S. §372(b). See also Selfspot, Inc. v. Butler County Family YMCA, 818 A.2d 587, 593 (Pa. Cmwlth. 2003), acknowledging that Act 55 codifies the HUP test. a An "institution of purely public charity" is defined in Section 3 of Act 55 to be an institution that "meets the criteria under section 5." 10 P.S. §373. MHL-2 presumption if the institution possesses a valid exemption under section 204(10) of the Tax Reform Code of 1971. 10 P.S. §376(a)(1) (emphasis added). Chapel Pointe's annual revenue is less than $10,000,000, and it holds an exemption under Section 204(10) of the Tax Reform Code of 1971. However, the trial court held that Chapel Pointe, claiming an exemption for its independent living units had to prove, first, that these units, as a separate institution, satisfied the HUPS standards before the procedures in Act 55 could come into play. This circular exercise is affirmed by the majority. In disallowing Chapel Pointe the Act 55 presumption, the trial court relied upon Community Options, Inc. v. Board of Property Assessment, 571 Pa. 672, 813 A.2d 680 (2002). In that case, the appellant asserted that Act 55 must be applied to all tax exemption cases arising after 1998,6 to which the Supreme Court responded: However, we need not reach this argument because we have rejected the Commonwealth Court's reasoning in Community Service Foundation and the conclusion that Appellant is not a "purely public charity" under the Hospital Utilization Project test.... 5 The trial court held that before Chapel Pointe could invoke the rebuttable presumption, it first had to prove that its apartments were themselves a "purely private charity" within the meaning of Article VIII, Section 2 of the Pennsylvania Constitution. Stated otherwise, the trial court simply disregarded Act 55. 6 At issue was a tax exemption for three years: 1996 to 1998. The trial court applied Act 55 to the application for 1998, which was the first year Act 55 became effective. It applied HUP to tax years 1996 and 1997, denying an exemption for those years. This Court reversed. The appellant appealed with respect to all three years. On appeal, the Supreme Court found that the trial court erred with respect to its application of the HUP test and that the taxpayer qualified for the exemption in all three years. MHL-3 :, Id. at 683, 813 A.2d at 687. In short, Community Options does not support the trial court's conclusion that the holding in HUP trumps Act 55.' To the contrary, the Supreme Court did not reach the question of the scope of Act 55. Where, as here, the General Assembly has codified a judicial interpretation of the constitution, it is appropriate to follow the. terms of that statute. See In re Sale No. 10, 801 A.2d 1280, 1287-1288 (Pa. Cmwlth. 2002) (noting that the enactment of Section 607(a) of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.607, codified our Supreme Court's decision in Tracy v. Chester County Tax Claim Bureau, 507 Pa. 288, 489 A.2d 1334 (1985)). Indeed, our Supreme Court has held that legislative codifications of real estate tax exemption case law are "binding and conclusive until [shown] clearly and beyond all question to be in violation of the Constitution." Young Men 's Christian Association of Germantown v. City of Philadelphia, 323 Pa. 401, 407, 187 A. 204, 207 (1936). Nevertheless, where the Pennsylvania Constitution is silent on the procedure by which a constitutional right is to be determined, the General Assembly's authority is supreme.8 See Glancey v. State Employes' Retirement Board, 530 Pa. 481, 502 n.20, 610 A.2d 15, 26 n.20 (1992) (stating that where the constitution is silent, the mechanics of pension forfeiture must be dictated by interpretation of the Pension Forfeiture Act); Collins v. Commonwealth, 262 Pa. ~ To the contrary, Act 55 implements the substance of the HUP holding. a It goes without saying that the judiciary has ultimate responsibility and authority to interpret the Pennsylvania Constitution. Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, l 18 (Pa. Cmwlth. 1998). MHL - 4 7~ 572, 575, 106 A. 229, 230 (1919) (stating that "[i]f the Constitution is silent on the subject, the legislative authority, being uncontrolled, is supreme").9 Act 55 is such legislative action. It established uniform procedures, including the use of presumptions, to be followed in making the determination of whether or not a tax exemption shall be granted. To cling to HUP as if Act 55 had not been enacted presumes that Act 55 is unconstitutional. However, we must presume it is constitutional. Wilson Partners, L.P. v. Board of Finance & Revenue, 558 Pa. 462, 471, 737 A.2d 1215, 1220 (1999). The majority also fails to consider the regulatory environment in which Chapel Pointe operates. A continuing care community makes a promise not unlike that of an insurance company, which, in exchange for a premium payment, provides protection against future, unknown loss. When a resident enters a continuing care community, the resident receives a life estate in the community, enforceable by contract. This life estate includes future nursing home care, should the need develop, even if the resident lacks the funds to pay for such care at that point. So long as the resident remains in an independent living unit, Chapel Pointe must make services available to the resident such as on-site nursing, meals and housekeeping. If these facilities and services are not used by the resident of the independent living unit, Chapel Pointe still bears the expense of making them available. To compare an independent living unit in a continuing care community to a commercial apartment is the proverbial "apple to orange" comparison. 9 This Court has expressly recognized that Article VIII, Section 2 is not self-executing and that legislative standards for implementing the tax exemptions are appropriate to the extent they are constitutional. Robert Morris College v. Board of Property Assessment, Appeals & Review, Allegheny County, 291 A.2d 567, 571 (Pa. Cmwlth. 1972). MHL - 5 Indeed, to focus on services rendered to residents of independent living units, while they occupy those units, is to miss the purpose of a continuing care community. Persons enter such a community for the purpose of lifetime protections, which the community is contractually obligated to provide. This point was overlooked in Appeal of Lutheran Social Services, East Region, 539 A.2d 895 (Pa. Cmwlth. 1988) and Bethlen Home of Hungarian Reformed Federation of America, 557 A.2d 828 (Pa. Cmwlth. 1989). Accordingly, I do not agree that the outcome here should be determined by Lutheran Social Services or Bethlen. In Lutheran Social Services, this Court held that a retirement community consisting of a nursing care facility, a 96-unit apartment building and 81 cottage units functioned as three separate operations and then evaluated each operation under the HUP test. We concluded that the apartments qualified for the tax exemption but the cottages did not because the residents in the cottages did not receive a substantial portion of their services free of charge. In Bethlen, relying on Lutheran Social Services and Passavant Health Center v. Board of Assessment & Revision of Taxes of Butler County, 502 A.2d 753 (Pa. Cmwlth. 1985), this Court again denied a tax exemption for that portion of a retirement community consisting of cottages. First, the facts in Lutheran Social Services and Bethlen appear distinguishable. Unlike Chapel Pointe, Bethlen is not a licensed continuing care community subject to the rigors of regulation.10 Second, the regulatory scheme 10 Chapel Pointe holds a license issued by the Pennsylvania Insurance Department pursuant to the Continuing Care Provider Registration and Disclosure Act, Act of June 18, 1984, P.L. 391, 40 P.S. §§3201-3225. Legislative findings therein note that continuing care communities have become an important and needed alternative for the long-term residential, social and health maintenance for the Commonwealth's senior citizens. Under this act, Chapel Pointe is regulated (Footnote continued on next page ... ) MHL-6 ~I applicable to a continuing care facility was not given any consideration in either Lutheran Social Services or Bethlen. Third, treating cottages as a separate institution is inconsistent with our holding in Chartiers Valley School District v. Board of Property Assessment, Appeals, Review & Registry of Allegheny County, 794 A.2d 981 (Pa. Cmwlth. 2002), wherein, relying on Act 55, we held that the corporation, not a division or operational unit of the corporation, is the focus of the determination of whether an institution is one of purely public charity. More to the point, Lutheran Social Services and Bethlen are not consistent with our Supreme Court's holding in Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 552 Pa. 212, 714 A.2d 397 (1998) that courts must look to the institution as a whole to determine its status as a purely public charity. Indeed, this Court explained this examination as follows: The presence of two potentially profit-making activities, a garden shop and restaurant, does not change the essential nature of Longwood as a whole, as an institution that operates free from private profit motive. Regardless of whether it shows a profit, the garden shop primarily advances and supports the institution 's educational purposes through its sale of books and films on horticulture-related topics; in addition, the shop carries items such as film and rain gear for the convenience of visitors to the gardens. Profits from the garden shop are applied against the institution's general operating expenses. (continued ... ) to ensure its financial solvency and that its residency agreements meet certain standards. Further, it is required to offer independent living units, assisted living units and full nursing home care to residents. MHL - 7 .~ Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 692 A.2d 1136, 1143 (Pa. Cmwlth. 1997) (emphasis added) (footnote omitted)." Accordingly, it is error to treat the independent living units at Chapel Pointe as a separate institution, even if they should be found to operate at a profit. To conclude, I believe this matter should be remanded to the trial court for a new hearing that conforms to the procedures required by the General Assembly in Act 55. The trial court should, first, determine whether Chapel Pointe is an institution of purely public charity, giving it benefit of the rebuttable presumption set forth in Section 6(a)(1) of Act 55, 10 P.S. §376(a)(1). Consistent with Unionville-Chadds Ford, the trial court should consider the totality of the circumstances in deciding whether the independent living units transform the essential nature of Chapel Pointe from an institution that operates free of the profit motive to something else.12 However, should the trial court determine Chapel Pointe to be an institution of purely public charity, its task would not be complete. .. 11 The Supreme Court affirmed, focusing on the question of whether the beneficiaries of a purely public charity must be the poor, the infirm or the needy. The Court held that "the fundamental character of a purely public charity [is] to benefit the general public." Unionville-Chadds Ford School District, 552 at 220, 714 A.2d at 401. In sum, in the Unionville-Chadds Ford School District cases, the appellate courts of Pennsylvania examined the institution as a whole to determine its status as a purely public charity. The bookstore and restaurants, not themselves charitable, advanced the institution's purpose and, therefore, did not undermine the claim of Longwood Gardens to a tax exemption. iz In support of application, Chapel Pointe submitted a report showing that, in the aggregate, 17.94% of Chapel Pointe's costs of providing goods and services to its residents were uncompensated. In the nursing home, 15.78% of the total costs were uncompensated; in assisted living, 23.05%; and in independent living, 18.66%. The report also concluded that a large number of residents were subsidized. It showed that 70.63% of residents paid less than 100% of the costs of their goods and services; 51.95% of residents paid less than 90% of those costs. On average, 63.72% of the residents paid less than the costs of the goods and services provided to them by Chapel Pointe. MHL - 8 This is because under Act 55, a "parcel or part of the parcel [used] for purposes other than the charitable purpose of that institution" can be subjected to real estate taxes. Section 5(h)(1) of Act 55, 10 P.S. §375(h)(1) (emphasis added). If the independent living units do not advance the charitable purpose13 of Chapel Pointe, then the parcel on which they sit should be taxed. If those independent living units do advance the charitable purpose of Chapel Pointe, then that parcel should be exempt along with the rest of the~institution. For these reasons, I dissent. I would reverse the trial court and remand for another hearing on whether Chapel Pointe is a purely public charity and whether its independent living units advance Chapel Pointe's charitable efforts on behalf of the elderly, considering the totality of circumstances. .~ MARY HANNAH LEAVITT, Judge 's This Court and our Supreme Court have given a liberal construction to "public purposes" to include all uses within the powers granted to the body. Delaware County Solid Waste Authority v. Berks County Board of Assessment Appeals, 534 Pa. 81, 87-88, 626 A.2d 528, 531-532 (1993); Dauphin County General Authority v. Dauphin County Board of Assessments, 768 A.2d 895 (Pa. Cmwlth. 2000). Logically, this same liberal construction should be applied to a private institution claiming to be an institution of purely public charity. MHL - 9 s '? Y • C- ~~ ..-.- - . -.. t?: (_ ' .`~ 4~ 9 __ _` { - .....~ (', ~~ Irene M. Bizzoso Deputy Prothonotary Norma K. Blynn C]uef Clerk TO: Mr. Curtis R. Long Prothonotary ~~ . Supreme Court of Pennsylvania Middle District May 10, 2007 Certificate of Remittal/Remand of Record RE: Alliance Hm. of Carlisle v. Bd. of Assess. Appeals No.208 MAP 2004 Trial Court/Agency Dkt. Number: 01-5659 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 595 CD 2002 P.O. Box 624 Harrisburg, PA 17108 717-787-6181 www.aopc.org Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Parts December 1, 2004 3 Exhibits (1 folder) Date of Remand of Record: 5/10/2007 ORIGINAL RECIPIENT ONLY -Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Signature Printed Name Date /eez cc: Karen Reid Bramblett, Esq. Prothonotary C 4 11:29 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 208 MAP 2004 Page 1 of 7 May 10, 2007 Alliance Home of arlisle, Pa. t7a Chapel Pointe, Appellant v. Board of Assessment Appeals, Carlisle Area School District, Borough of Carlisle, and Cumberland County, Appellees Initiating Document: Order Granting Petition for Allowance of Appeal Case Status: Closed Journal Number: J-57-2005 Date Listed Submitted:. May 17, 2005 Case Category: Civil Case Type: Tax Assessment Appeal Consolidated Docket Nos.: Related Docket Nos.: Receive Mail: Yes Representing: Alliance Home of Carlisle t/a Chapel Pointe, Appellant Pro Se: No COUNSEL INFORMATION Attorney: Steven T. Hanford, Esq. Bar No.: 47105 Capozzi & Associates, P.C. Address: 2933 North Front Street Harrisburg, PA 17110-1250 Phone No.: (717)233-4101 Fax No.: (717)233-4103 IFP Status: Attorney: Louis J. Capozzi, Jr., Esq. Bar No.: 46559 Capozzi & Associates, P.C. Address: 2933 N Front Street Harrisburg, PA 17110 Phone No.: (717)233-4101 Fax No.: (717)233-4103 Receive Mail: Yes Representing: Alliance Home of Carlisle t/a Chapel Pointe, Appellant Pro Se: No IFP Status: Representing: Board of Assessment Appeals, et al, Appellee Pro Se: No IFP Status: Attorney: Robert C. Saidis, Esq. Attorney: Thomas E. Flower, Esq. Bar No.: 83993 Address: 26 W. High Street Carlisle„ PA 17013 Phone No.: (717)243-6222 Fax No.: Receive Mail: Yes 5/10/2007 1055 ` ~ 11:29 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 208 MAP 2004 Page2of7 May 10, 2007 Ad ress: 26 ig treet Carlisle, PA 17013-2922 Phone No.: (717)243-6222 Fax No.: (717)243-6486 Receive Mail: Yes Representing: Board of Assessment Appeals, et al, Appellee Pro Se: No IFP Status: Attorney: James D. Flower, Esq. Bar No.: 27742 Address: Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Phone No.: (717)243-6222 Fax No.: Receive Mail: Yes Representing: Board of Assessment Appeals, et al, Appellee Pro Se: No IFP Status: Attorney: David Christopher Marshall, Esq. Bar No.: 76541 Latsha, Davis, Yohe & McKenna, P.C. Address: 1700 Bent Creek Blvd Ste 140 Mechanicsburg, PA 17050 Phone No.: (717)620-2424 Fax No.: (717)620-2444 Receive Mail: Yes Representing: Pennsylvania Association of Non-Profit Homes for the Aging, Appellant Amicus Curiae Pro Se: No IFP Status: Attorney: Kimber Lynn Latsha, Esq. Bar No.: 32934 Address: 1700 Bent Creek Blvd #140 Latsha, Davis, Yohe & McKenna, P.C. Mechanicsburg, PA 17050 Phone No.: (717)620-2424 Fax No.: (717)620-2444 Receive Mail: Yes Representing: Pennsylvania Association of Non-Profit Homes for the Aging, Appellant Amicus Curiae Pro Se: No IFP Status: Attorney: Neva L. Stanger, Esq. Bar No.: 62935 Campbell, Durrant & Beatty, P.C. Address: 555 Grant St Ste 310 Pittsburgh, PA 15219 Phone No.: (412)395-1264 Fax No.: (412)395-1291 Receive Mail: Yes Representing: Pennsylvania League of Cities and Municipalities, Appellee Amicus Curiae Pro Se: No 5/10/2007 1055 11:29 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 208 MAP 2004 Page 3 of 7 May 10, 2007 tatus: Attorney: Vicki Linn Beatty, Esq. Bar No.: 39522 Address: 555 Grant St Ste 310 Pittsburgh, PA 15219 Phone No.: (412)395-1262 Receive Mail: Yes Campbell, Durrant & Beatty, P.C. Fax No.: (412)395-1291 Representing: Pennsylvania League of Cities and Municipalities, Appellee Amicus Curiae Pro Se: No IFP Status: Attorney: Sean Ashley Fields, Esq. Bar No.: 85141 Address: Pennsylvania Sch Boards Assoc 774 Limekiln Road New Cumberland, PA 17070-2398 Phone No.: (717)774-2331 Fax No.: Receive Mail: Yes Representing: Pa School Boards Association, Appellee Amicus Curiae Pro Se: No IFP Status: SUPREME COURT INFORMATION Appeal From: the Ord of Comm Crt entered 06-15-2004 at No595CD2002 affirming the ord of Cumb Cty CCP, Civ Div, entered 01-31-2002 at No. 01-5659. Probable Jurisdiction Noted: Docketed Date: November 30, 2004 Allocatur Grant Date: November 30, 2004 Allocatur Docket No.: 609 MAL 2004 Allocatur Grant Order: "AND NOW, this 30th day of November 2004, the Petition for Allowance of Appeal is GRANTED, limited to the following questions of law: 1. Whether, as a preliminary matter, petitioner was required, under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution, to demonstrate that the parcel in question independently served, in and of itself, a charitable purpose in order for petitioner to be considered for real estate tax exemption? 2. If the answer to question 1 is "no," whether the Commonwealth Court erred in holding that the statutory presumption of real estate tax exemption, which arises in favor of a qualifying entity under 10 P.S. § 376, was irrelevant in this case, and hence not applicable to petitioner, as a whole, because the parcel in question was clearly not charitable based on the undisputed facts?" FEE INFORMATION Paid Fee Date Fee Name Reason Waived Fee Amt Amount Receipt Number INTERMEDIATE APPELLATE COURT INFORMATION 5/10/2007 1055 Y 11:29 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 208 MAP 2004 Page 4 of 7 May 10, 2007 Court Name: Commonwealth Docket Number: 595 CD 2002 Date of Order: June 15, 2004 Reargument Denied: Judge(s): Cohn, Renee L. Colins, James Gardner Leavitt, M. Hannah McGinley, Bernard L. Pellegrini, Dan Simpson, Robert E. Smith-Ribner, Doris A. Intermediate Appel late Court Action: Affirmed. Referring Court: TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas Lower Court Docket Number: 01-5659 County: Cumberland Division: Civil Date of Trial Court/Agency Order: January 31, 2002 OTN: Order Type: Order Judge: Bayley, Edgar B., President Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date ContentlDescription Parts December 1, 2004 3 Exhibits Record Remittal: May 10, 2007 (1 folder) BRIEFS Appellant Brief Alliance Home of Carlisle t/a Chapel Pointe Due: January 10, 2005 Filed: January 10, 2005 Reply Brief Alliance Home of Carlisle tla Chapel Pointe Due: February 23, 2005 Filed: February 23, 2005 Reproduced Record Alliance Home of Carlisle tla Chapel Pointe Due: January 10, 2005 Filed: January 10, 2005 Appellant Amicus Curiae Brief Pennsylvania Association of Non-Profit Homes for the Aging Due: January 10, 2005 Filed: January 10, 2005 Appellee Brief Board of Assessment Appeals, et al Due: February 9, 2005 Filed: February 9, 2005 Appellee Amicus Curiae Brief Pa School Boards Association Due: February 9, 2005 Filed: February 9, 2005 Pennsylvania League of Cities and Municipalities Due: February 9, 2005 Filed: February 10, 2005 REARGUMENT/RECONSIDERATION REMITTAL 5!10/2007 1055 ~ A 11:29 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 208 MAP 2004 Page 5 of 7 May 10, 2007 Reargument/Reconsideration Filed Date: Reargument Disposition: Date: Reargument Order: Record Remitted: May 10, 2007 SESSION INFORMATION Journal Number: J-57-2005 Consideration Type: Oral Argument Supreme Ct. Date Listed/Submitted: May 17, 2005 DISPOSITION INFORMATION Related Journal Number: J-57-2005 Judgment Date: April 17, 2007 Disposition Category: Decided Disposition Author: Castille, Ronald D. Disposition: Reversed Disposition Date: April 17, 2007 Dispositional Filing: Majority Opinion Author: Castille, Ronald D. Filed Date: Justice: 4/17/2007 Baer, Max Vote: Joins Justice: Cappy, Ralph J. Vote: Joins Justice: Eakin, J. Michael Vote: Joins Justice: Newman, Sandra Schultz Vote: Did Not Participate in the Decision of t Justice: Nigro, Russell M. Vote: Did Not Participate in the Decision of t Justice: Saylor, Thomas G. Vote: Joins Filed Date DOCKET ENTRIES Docket Entryl Document Name Party Type Filed By 5/10/2007 1055 11:29 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 208 MAP 2004 Page 6 of 7 May 10, 2007 ecember 01, 004 ommonwea t t. ecor eceive Commonwealth Court December 08, 2004 Designation of Contents of Reproduced Record Appellant Alliance Home of Carlisle t/a Chapel Pointe January 10, 2005 Reproduced Record Filed Appellant Alliance Home of Carlisle t/a Chapel Pointe Comments: 2 volumes. January 10, 2005 Appellant's Brief Filed Appellant Alliance Home of Carlisle t/a Chapel Pointe Comments: 01-10-05 -Served via 1st class mail. January 10, 2005 Amicus Curiae Brief Appellant Amicus Pennsylvania Association of Curiae Non-Profit Homes for the Aging Comments: 01-10-05 -Served via 1st class mail. February 09, 2005 Appellee's Brief Filed Appellee Board of Assessment Appeals, et al Comments: 02-09-05 -Served via 1st class mail. February 09, 2005 Amicus Curiae Brief Appellee Amicus Pa School Boards Curiae Association Comments: 02-09-05 -Served via 1st class mail. February 10, 2005 Amicus Curiae Brief Appellee Amicus Pennsylvania League of Curiae Cities and Municipalities Comments: 02-10-05 -Served via 1st class mail. February 23, 2005 Appellant's Reply Brief Appellant Alliance Home of Carlisle t/a Chapel Pointe February 24, 2005 Petition for Participate in Oral Argument Appellant Amicus Pennsylvania Association of Curiae Non-Profit Homes for the Aging Comments: 02-18-05 -Served via 1st class mail. March 03, 2005 No BIO Letter to Petition for Participate in Oral Argument Appellant Alliance Home of Carlisle t/a Chapel Pointe March 07, 2005 No BIO Letter to Petition for Participate in Oral Argument Appellee Board of Assessment Appeals, et al Comments: 03-08-05 -Requested orig sign of atty. 03-10-05 - Recd orig sign. March 09, 2005 Acknowledgement of Argument Notice Appellee Board of Assessment Appeals, et al Comments: of Atty. Thomas Flower 5/10/2007 1055 11:29 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 208 MAP 2004 Page 7 of 7 - May 10, 2007 Marc 10, 2 05 c now a Bement o rgument once Appellant Alliance Home of Carlisle t/a Chapel Pointe Comments: of Atty. Louis Capozzi, Jr. & Steven Hanford March 21, 2005 Order Denying Application for Oral Argument Per Curiam Comments: "AND NOW, this 21st day of March, 2005, the Petition to Participate in Oral Argument is denied." March 21, 2005 Order Exited Office of the Prothonotary May 17, 2005 Argued Supreme Court April 17, 2007 Reversed Comments: "For the foregoing reasons, we reverse." Castille, Ronald D. Former Justices Nigro and Newman did not participate in the decision of this case. Mr. Chief Justice Cappy and Messrs. Justice Saylor, Eakin and Baer join the opinion. April 17, 2007 Judgment Entered Office of the Prothonotary May 10, 2007 Remitted Office of the Prothonotary . Comments: Original record remitted to Cumberland County CCP, Civil Division. cc: Superior Court Cross Court Actions Docket Number: Docket Number: 595 CD 2002 609 MAL 2004 5/10!2007 1055 c~ ~~, ~' O • _ ccs -sl ~ ~ ~ _ ~ f -~.: t ~.'s i __._. `~ ~:: ' -~-- _;a art ~,J ~ ::'