*1 POTTSTOWN SCHOOL DISTRICT Borough,

and Pottstown Montgomery

HILL SCHOOL

County Board of Assessment

Appeals.

Appeal of Pottstown School District. Pennsylvania.

Commonwealth Court of

Argued March Nov.

Decided *2 Ambler, Bresnan, appel- for

Joseph E. lant. Rees, Norristown, appel-

Thomas D. lee, Hill School. Norristown, appel- Righter,

Joan M. lee, County Bd. of Assess- Montgomery Appeals. ment Pratter, Philadelphia, for am- E.K. Gene ici curiae. DOYLE, Judge, President

Before SMITH, COLINS, Judge, Judge, FRIEDMAN, PELLEGRINI, Judge, KELLEY, Judge, and Judge, LEADBETTER, Judge. LEADBETTER, Judge. appeals District

Pottstown School Montgomery the order of Pleas, affirmed of Common the Hill tax-exempt status of college providing private school all-male an preparatory Specifically persons. courses. argued issue District be- whether the exclusion of pleas School’s fore common that the Hill School did precludes women from its student body it not benefit a substantial and indefinite as a claiming purely persons class of because its exclusion of *3 public charity. women discriminatory. was The Hill School is located the Potts- pleas initially ap- Common sustained the town School District in Montgomery Coun- peal and held the Hill School was 1998,1 ty. September Prior to the School parcels liable for the taxes the assessed on limited its young only. enrollment to men However, at in response issue. to a mo- May In the Pottstown School District reconsideration, pleas tion for common va- (School District) Borough and the of Potts- cated its order subsequently earlier town filed petition a before the Board of conclusion, reached opposite holding the Appeals Assessment the tax- challenging that the Hill was exempt School taxa- exempt of status sixteen parcels of land tion as an purely public institution of chari- owned Following the School. a hear- conclusion, ty. reaching this common ing, the Board issued a notice indicating pleas held the fact that an institution exempt that the tax parcels status of the at single benefits only gender a does not issue changed, and would preclude it qualifying institu- year continue for the tax beginning Janu- tion of purely charity under the ary recent Purely Institutions of Public Chari- Act)2 ty

The appealed School District Act or (Charity the the decisional law prior matter present appeal was submitted to the court of com- thereto. fol- pleas mon pursuant stipulation to a lowed. respect

facts. period With to the time at Article issue, period the namely, following the Pennsylvania Constitution states: petition May School up District’s through date Hill (a) the when the School Assembly The General law women, began parties to admit agreed exempt from taxation: (1) that: the School young admitted men race, color, any national ethnic origin (v) Institutions of chari- regardless pay of financial to tu- ability ty, property but in case of any real (2) ition; School did not discriminate tax exemptions only that of real portion among men young on the basis edu- property of ac- such institution which is policies, cational or nor admission on the tually regularly pur- used for the loan, scholarship,

basis of its athletic or poses of the institution. programs; school-administered (3) 2(a)(v). Const., VIII, § did young the School not admit women Pa. Art. As our regardless qualifications. noted, Finally, has “The constitu- parties not, itself, agreed any proper- that the met all exempt does legal qualify ty; necessary merely permits criteria as a to do legislature purely public charity except Donohugh’s Ap- that of bene- so within certain limits.” fiting a peal, Accordingly, substantial and indefinite class of 1. In Act School Board Trustees of November School, making voted to women admit (immediately §§ 371-385 School’s Fall class the first co-ed effective). history. class in the School’s (1) advance exemption purposes. im- It must: challenge exemptions to such tax (2) render first, purpose; donate or two-part a does the a charitable plicates test: its portion range gratuitously fall substantial stated within (3) and, services; operate free from authority entirely granted the Constitution (4) motive; a sub- second, profit benefit Assembly has the enacted persons who exempt and indefinite class of property. stantial legislation subjects charity; and legitimate are Act in enactment Until of its bur- government of some reheve statutory pro- November of 21-22, A.2d at 1317. den. Id. analysis relevant to our was found vision Dist. Ford Sch. also Unionville-Chadds II, Article Section 204 of the General Ap- County Bd. Assessment *4 Chester of Law,3 Assessment (1998); 552 Pa. 714 A.2d 397 peals, 5020-204(a)(3), in provides P.S. Presbyte- Area Sch. Dist. v. United Mars pertinent part hospitals, univer- “[a]ll Am., N. 554 Pa. rian Women’s Ass’n of sities, seminaries, academies, colleges, as- (1998). present In the 721 A.2d learning, and of be- sociations institutions case, that the parties stipulated have nevolence, charity or ... grounds with the Hill satisfies all the above crite- School of necessary thereto annexed and for the oc- four, viz., except for that the ria number same, cupancy enjoyment and of the a indef- “benefit and institution substantial founded, endowed, pub- by and maintained persons legitimate of are inite class who private charity” exempt lic or shall be subjects charity.”4 of town, county, city, township, all borough, road, poor and school taxes. Since there is reviewing In do not write issue we no that the Hill question School falls with- a clean slate. In seminal case of on “academies, of category associations Appeal, Pennsylvania Su- Donohugh’s only and institutions of con- learning,” our Li- preme whether The Court addressed November, period cern for before 1997 brary Company Philadelphia qualified “[ijnstitu- the Hill is whether is an School charity tax public purposes as a purely public charity” tion of within the exemption pursuant May Act of to the meaning our Constitution. There, opined P.L. 158.5 the Court that: Hospital Project Utilization (HUP), public use is Commonwealth 507 Pa. The essential feature of a (1985), A.2d Pennsylvania privileged Su that it is confined to indi- explained viduals, indefinite preme open the constitutional unre- criteria which an meet in It or entity public. must order this indefinite public charity quality for tax it its purely public gives constitute stricted that 22, 1933, same; May hospitals, joyment Act of all uni- P.L. 853. ... seminaries, academies, versities, colleges, previously 4. Our held the Court has learning, be- associations institutions of to be satisfied other criteria grounds charity, nevolence or with purely public charity. In re Hill annexed, necessary for the oc- thereto However, 87 A.2d Pa. same, enjoyment found- cupancy and of the was "substantial and indefinite class” issue endowed, ed, by public or and maintained appeal. that not involved in ’ hereby exempted ... are " every city, borough, churches, county, from all provided 5. That Act that 'all road, Donohugh’s Ap- school tax....” meeting-houses, regular places or other (1878)(quoting the peal, worship, grounds an- 308-09 stated with the thereto 158). nexed, necessary May occupancy and en- Act of for the character. The smallest street purely public. be sustained as It is this: village smallest is a highway of persons the third class of enumerated Commonwealth, and none the less so the will of the objects testatrix as the majority because a vast of the citizens are, bounty her “all other white female will certainly any never derive benefit orphan birth, children of legitimate enough its use. It is they may years less than four age, and of not if they do so choose. So there is no more than eight years, respect not, charity conceivable which will its ... qualification whatever practical operation, large part exclude a mankind, and there are few which do Id. at 35-36. Based the above rea express terms, not do so in soning, the Court concluded that the or restrictive force description phanage constituted a chari persons for they whose benefit are in- ty purposes exemption. of tax See also Thus, excludes, tended. College Girard Academy Trustees Episco Protestant word, a single public, half pal Taylor, Church v. 25 A. 55 requiring male children shall (1892) (denominational preference school’s received; great *5 parents for children of connected to de Hospital gates closes its to all but recent nomination preclude does not school from injuries, yet questions no one they that qualifying purely public charity as since no public are in charities the widest and children by are excluded reason of denomi most exacting sense. nation). later, years in City Two Phila 86 Pa. at (emphasis 313-14 in original). delphia v. Pennsylva Masonic Home of Subsequently, in Orphan Asylum Burd nia, (1894), 28 A. 954 our Upper School District Darby, 90 Pa. Supreme Court had occasion to consider (1879), our Court addressed a whether home that only aged, benefited populated whether an orphanage primarily indigent public charity. Freemasons was a by orphan white female baptized children While dispute there was no that the home in Episcopal the Protestant Church consti- charity sense, was a in general the more “purely public tuted a charity.” The char- the issue was whether the home’s admis ter orphanage that established the only sion precluded Masons it from con following classes of children by be served stituting public charity. In concluding (1) the institution: white orphan female that the home did qualify purely not as a children of a certain age, baptized in the public purposes charity exemp for of a tax Episcopal Protestant in the City Church tion, the contrary Court resolved the issue (2) Philadelphia; the same class of chil- Burd, suggestion the dicta in stating: baptized dren in the same church in the “public” The word relates to or affects (3) Pennsylvania; state of all other people whole of nation or state.... orphan white female qual- children without ification, eligibility When the of those admitted except orphan children of [to is thus determined clergymen institution] of the said church shall have admitted], preference. dicta, only [such that Masons are questioning, After religious whether a seems to us the pre- limitation would institution is withdrawn vent a charity being public, put said to from in the benefit class of persons, indefinite class of private, court A charity may charities. re- held: strict its admissions to a class of human-

[Tjhere is another and a ground ity, public. may broader still be It be for particular blind, which mute, this must suffering those un- depen- diseases; which relation is organization, for er special aged, for

der so, men, If infants, women, wholly voluntary act? for for differ- dent his on humanity fact, he is callings by or trades which ent if he excluded because be and, bread; long Freemason, its as as the a mem- earns or Presbyterian, not is determined some reli- ber one of innumerable of some classification involuntarily which social, distinction organizations gious, or beneficial affects may any people, or whole then, commonwealth, however affect may number be although only a small com- charity, however pure may be benefited, directly public. it is But when “purely purpose, its it is mendable depends on the right admission must, under public,” property and its voluntary association with some constitution, taxed; not because fact of society, then a distinction is particular so, people says court but because public which not the at made concerns law. have in their fundamental said so large. public is interested 578-79, (emphasis 28 A. at 955 Id. members, they of its because are relief added). College v. Mercersburg Accord women, children, men, because Poffenberger, Pa.Super. A home they are Masons. male (college’s admission white charge, exclusively Presbyterians, preclude conclusion does not students Catholics, Methodists, or Episcopalians, charity: “so school charity. public not be a But then long the line is drawn distinctions public, idea of every to exclude affect involuntarily affect distinguished private, the word people youth, age, [e.g., the whole prefixed “purely” the constitution. ], destroy sex ... it does not *6 intensify This is to the word “public,” institution”); the Friends’ character of “charity.” public; purely not It must be Comm’rs, 80 Boarding Home v. is, there no that must be admixture of (charter Pa.Super. nursing of 475 admission, any hetero- qualification for home, the of privileges restricts and geneous, solely relating not or those specific religious home sector public no public.... There is burden sect, the precludes with the sympathy indigent the relief of and aged Masons. charity). being home a the public caring There is burden Smith, v. Pa. See also White men, relieving aged indigent and Estate, (1899); re A. 125 In Lawson’s anti-Masons; they whether Masons or be 107 A. 376 age concern indigence Thus, specifically have our courts them; further fact of no than the institutions to “benefit single gender found no inquiry makes into social rela- per a and indefinite class substantial subjects any tions of the of them.... Is sons,” to although public attitudes humanity greater pub- member —that changed discrimination have gender ward con- lic of whom the commonwealth is announced, our were since these decisions structively parent or trustee —ex- authority not particular a research has revealed cluded he has not because sig- More church, precedents.6 these society, questioning oth- relation some or Moreover, gender provide single schools although principle that the role women significant for certain dramatically educational benefits society changed has since the decisions, support. pointed received substantial out in students has time of these as Jones, 51 F.3d by also Faulkner cited amici curiae articles al., (4th Cir.1995). Schools, Independent et Association nificantly, general uniformly test purely pub- em- stitutional term ‘institutions ” ployed' Act, the discrimination lic charity.’ Charity Section of the —whether 372(b). upon voluntary based a as characteristic such Notably, religious Act, involuntary affiliation or an which codifies the HUP gender one—reflects that limitations criteria adding as well as several other preclude standards, not objective an institution from falling phrase defines a, within the constitutional definition of “substantial per- and indefinite class of words, purely public charity. sons” as: arguing legal that the modern view of gen- predetermined in number, Persons not der discrimination should alter “sub- provided where the or goods ser- analysis stantial and indefinite class” miss- primarily by vices are received mem- es the mark. The “indefinite class” test institution, bers of membership can- measures whether benefited class is predetermined in number and upon based voluntary involuntary a or arbitrarily cannot be denied vote of characteristic, not whether that classifica- the existing members. This subsection Indeed, tion is or even illegal. invidious specifically recognizes use of Orphan Asylum both Burd and Girard admissions criteria and enrollment College discriminated the basis of limitations educational institutions

race at our Supreme the time Court found predetermined does not constitute mem- them to benefit substantial and indefinite bership arbitrary restrictions on class, spite of equal protection provi- membership so as to violate section sions in both the United and Penn- States recognizes an institution sylvania Therefore, Constitutions.7 we deny reasonably membership based on conclude that the School’s exclusion of the types provides, services it as long preclude women does not it from satisfying denial is in violation Federal requirement constitutional that it ben- laws, or State anti-discrimination such efit a substantial and indefinite class of (Public Rights as the Civil Act persons legitimate subjects who are 241) 88-352, Law 78 Stat. and the act of charity. (P.L. 744, 222), October No. *7 so, if known the Pennsylvania

Even as Human Re- this the School District lations Act. claims that application Charity the Act exemption precludes the the from effective 375(e) (em- Act, Section 5 of the § date of the until Act the time the school added).8 phasis purports admitted That Act women. to provide applied uniformly “standards be It is this definition that the proceedings in all throughout this Com- School argument. District bases its second course, monwealth determining eligibility for for Of to the extent Article VIII de state and local taxation fines the categories of institutions which taxation, are legis- may exempted legislation consistent with traditional be judicial applications scope lative and of the cannot expand con- the of charitable ex- reason, public meaning For passage 7. this we find the the within Art. 2(v), § rights not a claim under civil law. Equal Rights Amendment to the Constitution I, Pennsylvania, § Pa. Const. Art. argue 8. The District does that School not bearing analysis. empha- have no on We this portion Charity italicized of the Act violates dealing only size that we are here with a Amendment, Equal Rights the I, Pa. Const. Art. purely claim that Hill School is not we do not so consider issue. Act, an edu Charity defini- Pursuant emption beyond that constitutional criteria Assembly alter admissions tion. Nor can the cational institution’s General by purporting to define its Constitution limitations do not violate and enrollment judi- in a manner inconsistent with terms per class of and indefinite substantial construction; interpretation of the cial long as the sons criteria as admission/en province the courts. Constitution is the federal or criteria does not violate rollment Nonetheless, appear it would since laws. The anti-discrimination state Article does not mandate but VIII pleas, which before common argued permits exemption, Assembly the General stu exclusion of women agreed, that its exemp- enact more limited tax is free to any federal or state dents does not violate tions than the Constitution would allow. potentially applicable laws because so, scope legislature If can restrict the private exception statutes contain exemptions entitled to tax of institutions government receive schools that do not charities,” not because it “purely while the School appeal, subsidies.11 On may may define the term but because it may that a school District concedes full exercising refrain from extent of without gender limit its enrollment to one power. may argued, its It as does the law, federal it notes that violating state or concurring opinion Judge Kelley, public education was single gender while Assembly may not effectuate generally the result of historical factors such a limitation in the manner utilized discriminatory, invidiously not themselves Act, ie., Charity saying that certain recognized the federal courts have since charities, are institutions not provide gender single that a state directly but must instead amend the Gen- justification. adequate education eral Assessment Law. need not We Otherwise, provide compa failure to issue, however, here decide this be- both gender consti rable benefit to cause it has been neither nor raised protection. See equal tutes a denial of parties9 briefed and because we Virginia, 518 U.S. United States application conclude that (1996); L.Ed.2d 116 S.Ct. Act does not command a different conclu- Jones, (4th 51 F.3d 440 Cir. Faulkner v. sion from that reached under our constitu- 1995). Mississippi also Univ. analysis tional above.10 See programs generally with education for schools Riedel v. Human Relations nection Comm’n, funds); receiving 739 A.2d 121 federal Section 5 Act, Act of Human Relations noted, repeatedly we As our courts have October constitutionality *8 should not decide the of a (school policies not § admission P.S. 955 question by statute if we can avoid the statu dis- mentioned in enumeration of unlawful Transp. tory Department construction. v. criminatory practices); and Section 9 146, 153, 1155, McCafferty, 563 Pa. 758 A.2d Opportunities Pennsylvania Educational Fair Loverro, (2000), citing Boettger v. 526 Pa. 1159 Act, 17, 1961, July as amend- Act of (1991); Gwynedd 587 A.2d 715 ed, 5009(a) (private § schools that Group, Department Dev. Inc. v. Labor and entirely members their enrollment draw Standards, Industry, A.2d Bureau Labor 666 excepted prohibition gender of one (Pa.Cmwlth. 1995), appeal granted on gender). against on the basis of discrimination grounds, 675 A.2d 1220 other Opportuni- the Fair Education We note that (1996). secondary apply to schools ties Act does not 3 of the Fair School. See Section like the Hill pleas Specifically, common examined 20 Act, 24 P.S. 1681(a)(1) Opportunities Educational (exception prohibition § U.S.C. 5003(1). against in con- discrimination on basis of sex Hogan, Women U.S. S.Ct. must therefore conclude that Charity 73 L.Ed.2d 1090 Thus it Act change intended no in this construc- maintains gender since exclusion tion. equal protec- would amount to a denial of Accordingly, pleas the order of common school, is, by definition, tion a state it is affirmed.

illegal in nature even though discrimina- private schools beyond “is ORDER reach government intervention.” argument This is flawed in respects. two NOW, November, AND day this 1st First, legislature had the deny intended to 2001, the order of the Court of Common exemptions to all discriminatory institu- Montgomery Pleas of the above tions, it provided. Instead, could have so captioned matter is AFFIRMED. it specifically only excluded those institu-

tions whose discrimination is in violation of Concurring Opinion by Judge state or federal law. We decline to infer FRIEDMAN.

that the Assembly intended some-

thing other than I concur in plain what said in En- the result reached addition, However, glish. In purpose majority. the stated I separately write be- provide: Act is to I cause do not believe that disposition issue this case should rest on case applied standards to be uniformly all which, law for the part, most is over one proceedings throughout this Common- years hundred old interprets wealth for determining eligibility for ex- not Pennsylvania Constitution of emption from State and local taxation Pennsylvania Constitution that exists to- which are consistent with traditional day.1 legislative judicial applications of the constitutional term “institutions of The presented issue here is whether the ”

purely public charity. school, an all-male Act, of the Charity an P.S. institution of purely charity that added). § 372(b)(emphasis benefit, i.e., Since we must a government entitled to tax assume that the legislature was aware exemption, under Article Section of longstanding precedents holding that In Constitution. its reli- single gender law, institutions fell within the extremely majori- ance on old case definition of “purely public charity,” ty we dismisses the fact May on following The School District they granted makes the exception by cause were argument appellate in its brief: being private. exception virtue of does language [Charity] [T]he Act is meas- policy not declare that the is not discrimi- conduct, uring the policy the nature of the natory, that such discrimination is itself, regard fact that the beyond government the reach of interven- exceptions anti-discrimination laws contain tion. government sup- for schools that are not Appellant Brief for at 16. words, ported. al- *9 private apply- lowed to such schools when language 1. I note that the contained in Article ing directly the anti-discrimination laws VIII, 1968, Section 2 of the Constitution of "carry does not over” to the Act's case, interpret which we must in this was proviso charity that a school is not a when IX, found in Article Section 1 of the Constitu- discriminatory policy. it has a admissions tion of 1874. See re Hill 370 Pa. The Hill policy School’s admissions was 21, (1952). discriminatory, and this is no less so be- 87 A.2d 259

321 Foster, v. rel. Bartholomew ex tholomew 1971,2 the voters of Commonwealth (1988), 430, A.2d 393 541 Pa.Cmwlth. Pennsylvania 115 adopted the Pennsylvania (1989). 489, A.2d 1390 (ERA) 563 aff'd, 522 Pa. at Arti- Equal Rights Amendment by the I, Pennsylvania applied of the Con- is cle action’ test Section The ‘state 7.) (See whether, giv- n. in a majority op. p. 318 determining stitution. in courts court, must in supreme case, we According to our a state’s involvement en appli- the Penn- provisions justify read and construe activity is sufficient prohibi- oth- together with its sylvania Constitution federal constitutional cation of a rel. ex The provisions. Commonwealth action to that conduct. er of state tion 1, A.2d 869 Pa. action’ Specter Vignola, underlying v. the ‘state rationale (1971). However, analyzes majority interpreta- to the is irrelevant doctrine [ERA], VIII, Pennsylvania 2 of the a state Article Section scope the ERA. considering adopted by amendment Constitution constitutional majority, ignore I part of its own Unlike the Commonwealth ERA in case.3 enact- language The organic law. ERA], not a test used to ment [the Rights Equality the Law 1. Under of federal constitu- measure the extent rights provides: “Equality ERA The controlling. protections, tional not be denied or under the law shall v. In- Indemnity Accident Hartford of Penn- abridged the Commonwealth Commissioner, surance of the individu- sylvania because of the sex added). (1984) (emphasis A.2d I, Const., (emphasis § Art. al.” Pa. clear that its the ERA makes The text of added). conduct of “circumscribes the prohibition to insure The thrust of the [ERA] government local entities state rights under the law and to equality of formulation, in their of all levels officials eliminate as a basis for distinction. sex statutes, and enforcement interpretation citizens of this Common- The sex of legisla- ordinances and regulations, longer permissible is no a factor wealth (em- law.” Id. well as decisional tion as legal rights their in the determination of added). phasis law will legal responsibilities. Exemption Law II. Tax impose or different different benefits 2(a)(v) Penn- Article Section society burdens the members of provides as follows: sylvania Constitution they may be man based on the fact (a) Assembly by law or woman. The General exempt from taxation: Henderson, Henderson added). (emphasis 827 A.2d (v) chari- purely public Institutions concept of “state

The federal constitutional property any case of real ty, the ERA. Bar- apply does not action” Woodside, court never did not exist in the ERA Con- 2. Robert E. provision in Law 193 that constitutional stitutional considered has been The ERA making its determination. supreme our court point I out now, thirty years part of our constitution was an institution of the Hill School held that and, issue view of its relevance to tax entitled us, obliged to confronting believe we are I IX, 1 of the Constitution Article under analysis Hill School's it in include 22,May of the Act of and section 204 of 1874 exemption. to tax entitlement 5020- However, because Hill School. In re *10 tax exemptions only portion sembly that of the Purely Charity real enacted Public Act), (Charity Act Act of November property of such institution is ac- tually for regularly pur- and used 5(e)(2) §§ Charity 371-385. Section poses of the institution. Act states that educational institution 2(a)(v) Const., VIII, (emphasis § Art. may reasonably deny admission to certain added). VIII, Quite clearly, Article Sec- qualify individuals6 and as an institution of 2(a)(v) allows, compel, but does not purely public charity long “as as denial [of Assembly to enact a law ex- admission] is not violation of Federal or empting purely public institutions of chari- State anti-discrimination laws.” However, ty from taxation.4 construing 375(e)(2). P.S. provision ERA, this together with the I The first for question purposes our here believe it is clear that the General Assem- ERA, i.e., is whether law this violates the bly may exemption enact a tax not law that whether, law, equality rights under of abridges denies or equality rights based abridged is denied or on the basis of sex. words, on sex. the General As- distinguish Because does the law not be- sembly may not providing enact a law tax male-only female-only tween edu- exemption male-only institutions of institutions, cational bestowing govern- purely public charity but providing tax ment tax exemption benefit of both exemption female-only institutions.5 schools, law, kinds single-sex on its face, deny equality does not abridge III. Charity Act rights on the basis of sex.7 VIII, Pursuant to Article 5(e)(2) Section Having that determined section Constitution the General As- Act does not violate Thus, theoretically, Assembly Equals: the General Long Educational Research pick among free Consequences to and choose Segregation, charitable Term of Sex institutions, granting exemption (March 1999). tax to some Geo. Wash. L.Rev. withholding while that benefit from others. schools, respect exclusively With to male majority boys research shows that are majority 5. The states that it need not decide best, socially, served academically both whether, VIII, under Article Section 2 of the environments; coeducational the effects of Assembly Constitution of the General single-sex boys education on neu- are either may exempt some institutions negative. tral or Id. As for all-female institu- exempting (Majority op. all. tions, suggests recent data variables oth- 319.) p.at Because this must read court explain performance er than sex differences together construe Article with and, among girls appropriate once controls ERA, believe I that we cannot avoid this variables, are introduced for the other meas- ERA, Clearly, issue. under the the General disappear. urable differences Neverthe- Id. Assembly must withhold tax less, the U.S. stated with has purely public charity institutions that vio- regard single-sex "We to education that: do relating late anti-discrimination laws to sex. question prerogative state's] evetihand- [a that, according majority, I note "the edly support opportuni- diverse educational principle single gender provide schools Virginia, ties." U.S. United States significant educational benefits for certain 534 n. 116 S.Ct. L.Ed.2d 735 support." students has received added). substantial (1996) (emphasis 6.) However, (Majority op. p. 317 n. at least (he single-sex one commentator indicates that results of 7.If schools in empirical are research on this issue inconclu- were all-male institutions like inevitably, necessary sive at best and courts then it rush to would be whether, comport applied, embrace studies that with their decide the law denies or so- Levit, Nancy Separating abridges rights cial equality visions. See on the basis of sex. *11 reached. ERA, exemption can be statutory question the final is whether the v. Council Corporation Plaza [G.D.L. denial of admission to women vio- School’s 54, District, 515 Pa. Rock School or state anti-discrimination lates federal (1987) ]; Utiliza [Hospital A.2d 1173 indicates, majority federal laws. As the Commonwealth, state, Project v. tion do not anti-discrimination laws (1985) ]; Dis A.2d 1306 prohibit single-sex secondary City Erie v. Hamot Medi trict Thus, schools. the Hill School is entitled Center, 668, 602 Pa.Cmwlth. [144 cal exemption to tax under Article Sec- (Pa.Cmwlth.1992) As the ]. A.2d 407 Pennsylvania of the Constitution Supreme Court has stated: Pennsylvania charity. purely public an institution of ], [Hospital Project Utilization I would affirm. Accordingly, statutory involved a different which here, presented exemption than that joins in Judge Concurring SMITH organi- we did not decide whether Opinion. statutory qualifications met the zation Opinion by KELLEY. Concurring Judge exemption for because failed to requirements. meet the constitutional I in the result reached concur au- lacked legislature As result the majority which affirms the order of the exemption to an thority grant Montgomery County Court Common organiza- have extended to the However, I Pleas. believe that the Insti- purported tion and a statute which Purely Charity Act1 an tutions of Public would have been invalid. Id. do so exercise unconstitutional 12-13, A.2d at 1311-12. The stan- Assembly, purports to the extent that it Hospital out in Utilization dards set statutorily define what entities minimum Project reflect the constitu- purely public deemed to be “institutions of qualifications being ap- tional charity” the provisions under of Article subject exemption. tax propriate 2(a)(v) Pennsylvania of the Consti- Section not, themselves, establish They do tution.2 eligibility exemption. previously As this Court has noted: Pa. at Corporation, Plaza G.D.L. question entity of whether an [T]he A.2d at n. 2.11 See also n. seeking a tax defending Pa. at Donohugh’s Appeal, [86 309-10] “purely charity”, within the (“[I]t legislature is conceded that 2(a)(v) meaning of Article of eases go cannot outside the class Constitution, Pennsylvania pre- exemp is a permits constitution which the taxation, liminary question which must be ad- it is to be re tion from but con question provision dressed before the of whether that the membered grant power is not a entity qualifications of a stitution meets However, (a) Assembly may by ex- law in the record The General there is no evidence only single-sex private indicating that empt taxation: Pennsylvania institu- schools in are all-male tions. (v) charity, Institutions exemp- property tax real in the case 26, 1997, P.L. 1. Act of November portion property of only that of real tions §§ 371—385. regular- actually which is such institution purposes the institution. ly 2(a)(v) used for 2. Article Section VIII, 2(a)(v). art. Const, states: Constitution *12 elsewhere, ..., legislature, which belongs Pennsylvania Code it must first and is therefore to be strictly construed qualify under the Constitution as a derogation people’s right. public ‘purely charity’... Because we contrary, upon On the it is a restriction reach the conclusion in our following legislative power which would other ‘purely discussion that HUP not a wise be unlimited and unquestionable. public charity’ within meaning of the hand ..."). up It is a tying of the legislative Constitution, we reach do not whether qualifies Pennsylvania

HUP under the definition.”).... Code * * * Community Options, v. Inc. Board of 11In this regard, important is also Assessment, Property Appeals and Re 8, to note provisions of Article Sec (Pa.Cmwlth. view, 645, 764 A.2d 652-653 Pennsylvania tion 5 of the Constitution 2000). also In Ogontz See re 361 which exempting “[a]ll states laws (1949) Pa. 65 A.2d 163 taxation, property from other than the (“[A]ny attempt act which exempt would to property above enumerated shall be from taxation institution other than Const, VIII, § void.” Pa. art. It has public purely one of un be long been recognized provision that this said, constitutional. Justice Dean in White prohibits absolutely the General Assem Smith, [189 v. Pa. 42 A. bly providing a statutory exemp (1899) start, thing ‘One at ]: is clear no beyond those in Article enumerated was language, matter what the legislative See, Section 2 our Constitution. exemptions could extend to any e.g., Board Christian Education ’”) property not a “purely public charity.” Presbyterian Church in United States (footnote omitted). City Philadelphia, School District of authority exempt to from taxation 610,] Pa.Super. [171 A.2d parcel of real property involved in this (“[T]he sections, (Pa.Super.1952) two provisions case derives from the of Article together, impose read limitations Pennsylvania of the Constitution. Arti power legislature exempt of the to 2(a) V, cle organic Section this law also property beyond from taxation. It Pennsylvania Supreme vests Court legislative competence exempt to more judicial supreme power “[t]he of the Com than the property place used ” Const, V, 2(a). .... monwealth art. or for worship purely charitable Pa. Thus, authority pa determine Moreover, activities. ex exemption rameters what entities constitute “insti ists, by provisions virtue of the public charity” purely tutions of under Ar Constitution, only by the force of (2)(v), ticle then it.”). which a valid enacted statute under As a proper object exemption pursu of an result, qualifying for an as a provisions duly ant to the of a enacted “purely public charity” must be first statute, ultimately in the Pennsyl resides measured lan constitutional vania sits as the guage, statutory language. and not the interpreter ultimate Hospital Project, See Utilization (“Hence, Corporation; Constitution. G.D.L. Plaza 487 A.2d at 1312 we begin Utilization analysis Hospital Project; Community our recognizing also, regardless City Inc. qualifies Options, whether HUP as a Boerne v. Flores, 507, 519-520, ‘charitable under P.F. organization’ [the stat U.S. 2157, 138 (“[C]on- utory exemption], as defined the S.Ct. L.Ed.2d 624 Montgomery Pleas of of Common § 5 the Fourteenth power [of under gress’ be affirmed. should Constitu to the United States Amendment however, tion], ‘enforcing]’ extends joins Judge PELLEGRINI Fourteenth Amend provisions Opinion. Concurring pow has described this

ment. The Court *13 ‘remedial’, v. Katzen South Carolina er as

bach, 301, 326, U.S. 86 S.Ct. [383 design ].

L.Ed.2d incon the text of 5 are

Amendment and Congress suggestion

sistent with the substance power

has the to decree Amendment’s restrictions

the Fourteenth which alters Legislation on the States. TOWNSHIP NORTH SEWICKLEY of the Free Exercise Clause meaning Peters, Appellants, Raymond cannot be said Amendment] the First [of does enforcing Congress

to be Clause. right by chang not enforce constitutional Regina T. Michael LaVALLE given It has been ing right what the is. LaValle, and wife. husband enforce’, power to power ‘to not the Pennsylvania. Court Commonwealth what constitutes a constitutional determine so, Congress violation. it not what Were 10, 2001. Argued Oct. be, in longer no enforcing would be would Decided Nov. sense, any meaningful ‘provisions Fourteenth While [the Amendment].’ remedy pre

line measures that between and measures

vent unconstitutional actions change gov

that make substantive discern, easy is not

erning law wide latitude in deter

Congress must have lies, exists

mining where it the distinction ”).

and must be observed.... majority, I that the Hill

Like the believe the constitutional definition

School meets charity” as

of “institutions

interpreted by pp. Majority Op. at 315-318.

Court. See

Likewise, I conclude that object of an proper is a provided either

from taxation or the County Assessment Law3 Act. Purely Public

Institutions of 314-315, pp. 319- Majority Op. pp. the order of Accordingly, §§ 5020-1 —5020-602. May 3. Act of