*1 and to defendant immunity potential as a waiver of CHCR allegation constitutes County was a contractual that the plead and creates a factual issue. 1029(e)(1) concludes with CHCR. She pro- relationship Procedure Rule of Civil denial consti- County’s general vides, part, follоws: thereby negligence, an admission tutes monetary relief seeking In an action liability. question as to creating jury bodily injury, or death pleading in a to damage, averments County’s gener- assuming that the Even pleading is responsive which a of medi- constitutes an admission al denial excеpt the fol- may generally be denied fall conduct fails to negligence, cal such must be lowing averments of fact which to exceptions any within of the enumerated specifically: denied immunity provided Sec- governmental Therefore, identity relating averments tion 8542 of thе Code.5 a material act matter person immunity whom as a County is entitled committed, agency or em- pleading [or] was defect would be of law and no ployment person.... immunity of such sufficient to overcome that jury in this case. question create a 1029(e)(1). A deni- general Pа. R.C.P. No. an al of such averments has the effect of governmental doctrine of Because the 1029(b). admission. Pa. R.C.P. No. claim, County is immunity bars Davis’ Accord- summary judgment. entitled to subject allegations are contained trial court’s order. ingly, we affirm the paragraph Complaint, 21 of the follows: hereinabove, 21. At all relevant times ORDER agents, employ- Manor [the] its and/or March, 2004, NOW, day this 3rd servants, AND including ees and but not limit- 10, 2003 order of the Court to, doctors, April ed nurses and staff knew or County of Westmoreland Common Pleas should have known that the restraint hereby AFFIRMED. program inappropriate reduction was appro- Davis and failed to take the Mr.
priate response actions in to his above-
described behavior.
(R.R. 10a) follow- response, filed the UNITED METHODIST WESLEY ing Answer: CHURCH Paragraph Complaint 4. 21 ... of the answer, By way denied. of further
[is] denied that specifically [the Manor] BOARD OF DAUPHIN COUNTY negligent any was or careless manner APPEALS, ASSESSMENT contrary, Man- whatsоever. To the [the Appellant. prudent acted a reasonable or] Pennsylvania. Commonwealth
manner at all relevant times. Dec. 2003. Argued (R.R. 19a) March 2004. Decided Pa. No. By operation of R.C.P. 1029(e)(1), that the Davis maintains Coun- identify
ty obligated specifically was §
5. 42 Pa.C.S. 8542. *2 BY Judge
OPINION SMITH- RIBNER. Dauphin County Board of Assess-
The (Board) Appeals appeals ment from an or- der of the Pleas of Common granted appeal Dauphin (Church) Wesley United Methodist Church on which and held two are located the lot used the Church are from real estate taxation. The question Board states the whether the lot owned and used the Church worshipers park for its their vehicles is an “actual place stated reli- gious worship” warranting exemption from real taxation under Article estate Constitu- tion and Section 204 of The General Coun- (Assessment Law), ty Assessment Law amended, 22,1933, May Act of P.L. § 72 P.S. 5020-204. The Church counter- question states thе as whether Section Law, the Assessment P.S. 5020-204(a)(l), § exempts lot annexed to a church when the lot is “rea- necessary” sonably oper- for the successful ation of the church and to sustain its exis- tence. at the corner of
The Church is located
Witherspoon Avenue and
Strеet in
Union
Middletown, Pennsylvania.
A
immediately adjacent
actually
up
made
parcels.
July
of two tax
On
application
filed an
with the Board
parcels declared ex-
seeking to have the
taxation,
empt from
which the Board de-
Wass, Harrisburg,
appellant.
Carl G.
aрplication.
hearing
nied after a
on the
Pannebaker, Middletown,
James B.
appeal,
filed an
and the trial
The Church
appellee.
February
on
hearing
court held a
de novo
Hummert, a member of
2003. Samuel
COLINS,
President
BEFORE:
since 1955 and current chair of
McGINLEY, Judge, SMITH-
committee,
thе trustee
testified
PELLEGRINI,
RIBNER, Judge,
Judge,
in existence for over 150
COHN,
Church has been
FRIEDMAN, Judge
Judge and
area,
SIMPSON,
years.
It is located
a residential
Judge.
credibility
weight
and the
years ago
most members lived within issues of
a block or two and walked to church.
evidence left
to its determination.
Now, however,
aging,
parties agreed
members
that Section
away
applies,
provides:
and most live
from the Church. He
Law
which
*3
in
membership
testified that
the 1980s the
(a)
following property shall be
The
300-400,
steadily declined to
with about
county, city, borough,
all
exempt from
attending
200
services.
1989 the
town, township,
poor
road
and school
purchased
parcels
the two
for a
tax, to wit:
lot,
parking
church
and after that member-
houses,
churches, meeting
All
or
ship increased to more than 700 and at-
places
other actual
stated
tendance increased to around 350. He
ground
religious worship, with the
that
regards
stated
the lot as a
necessary
the occu-
thereto annexed
for
necessity.
enjoyment
pancy and
of the same[.]
Jeffrey Wakely,
Reverend
the senior
primarily upon
The Church relied
In re
pastor
July
at the Church since
Appeal
the National Shrine
Our
that
testified
the
of members now
Czestochowa,
D.
48 Pa.
& C.4th
live
neighborhood.
outside the
He stated
(2000), involving
challenge
to the
380
parking
that after the
provided,
lot was
parcels
status of five
that were
of ten
part
membership began to increase and now
that
parcels
together
up
made
a national
agreed
stands at 750. He
in general
that
shrine. One
five
was used
lot,
an
group parks
youn-
older
the
mass,
regular parking
for
for
one was used
ger
park
people
away.
several blocks
Re-
for a retention basin to control water run-
Wakely
verend
testified that
very
there is
off, two were used for overflow
for
little off-street
neighbor-
the
religious activities and festivals and the
hood, and most
spaces
on-street
are taken
roadway
last was an alternate
to the
up by residents.
expressed
He
his view
public
from
road.
court
shrine
the
The
that the
integral part
lot is an
of approved exemption
parcels.
for all of the
the Church and that without it member-
upon
The Board relied
Second Church
ship would eventually
point
decline to the
Philadelphia
City
Christ Scientist
where it would not be able to sustain its
65,
Philadelphia,
Pa.
ministry financially or
spiritually,
the
(1959).
that
The trial court noted
the
Church would have to close. Reverend Supreme
exemptions
Court denied
for
Wakely referred to other churches that
churches, stating
two
parking lots for
had
lots which
were
from “parking
adjunctive
is an
use of
testimony
taxation.
In lieu of
on that is-
worship
part
regular,
but not
sue,
for
represented
counsel
the Board
actually
purpose.”
and not
used for that
that where newer churches are
Church,
The trial court referred to the de novo and not exit, entrance, fight and air” and hearing cessity nature of the before it and the fact finder, exception further trial court is fact with all declined to extend for grant an for a lot. Id. annexed 67,157 enjoyment same[J” A.2d at 55. at that, here, two Board notes The trial court that much observed churches in Church also used the Second changed reality Pennsylva has reli- solely parking, at issue no land towns since with churches nia’s small gious were held there and was services ago built in the heart of residen decades or ingress egress light not or needed neighborhoods finding tial their members points Bоard out air. The removed, far as confirmed living argued also churches Second Church testimony from the Church’s witnesses. relocating from resi- that members were *4 practice of The court noted the Board’s congested areas to subur- dences urban exemption parсel to the entire granting tax necessary and found it to travel ban areas parking on which a church and facilities automobile, Supreme the to church but required by if parking are located the is parking declined to define Court still ordinance and concluded that zoning lоcal adjunctive more than an use of anything legal to equitable there was little sense part regular, and not of stated solely in this case be denying exemption addition, In to worship. the Board refers is older and was con cause the Church the Court’s statement Second off- structed when no ordinance worship nature of Church that the “actual” parking. Determining that the street a place sought exempt on to be is the lot had been shown to be Church’s requirement, but the “neces- constitutional reasonably necessary occupancy fоr the leg- sary” ground status of the annexed Church, trial enjoyment and of the the contends that the islative. The Board granted appeal.1 court the for the wor- is a convenience necessity a for the shipers opposed begins noting The Board this the religious conduct оf services within tax challenges that Court’s statement worship Lady house of and that Our first, a test: exemptions two-part involve the trial court made no refer- Czestochowa fall within the exemption stated does.the VIII, to the limitations Article ence Constitution, and range granted by the 2(a) or to Sec- Section of the Constitution second, Assembly enacted has General ond Church. property? Potts legislation to School, focuses on Section v. Hill 786 A.2d The Church town School Dist. (Pa.Cmwlth.2001). Law, exemption with its of the Assessment 312 Article Sec “the places worship and provides: for actual tion of the Constitution necessary for the may by ground thereto annexed Assembly law ex “The General (i) occupation enjoyment same[.]” places Actual empt from taxation: ” Czestochowa, the Church religious worship.... Our regularly stated notes, this state- quoted the court Court’s authority legislature enacted On this Law, v. ment in Mt. Zion New Center Assessment Life Tax- and Revision ... Board Assessment churches “[a]ll with its 439, 451, 94 Pa.Cmwlth. Appeals, reli es and or other (quoting First 1072 ground thereto gious worship, with the Trucks, Lehigh County Board Mack Inc. v. this Court deter- 1. In tax assessment casеs (Pa. abused its dis- Appeals, mines whether the trial court A.2d 661 cretion, an error of law or made committed Cmwlth.1997). findings unsupported by evidence. substantial reasonably provided spaces be such Baptist Pittsburgh City enjoyment Pittsburgh, 341 Pa. 20 A.2d (1941)): manner, In the same property. to the satisfaction of proved Church has “necessary” import The word does not fact, court, trial as the finder of meaning the necessity, an absolute but its renders the compre- cannot be broadened so as to set of circumstances reasonably necessary. merely lot at here аs hend which is desirable. As issue statute, in this limit- with the Church’s histo- meaning used Witnesses familiar necessity ed to a reasonable and contem- testified that mem- ry operations and its plates among majority residing other matters the inclusion bership shifted from ground of sufficient entrance to a within one or two blocks light distance, exit and for and air.... virtually no on- residing at a street is available around the Applying standard of reasonable ne- membership Church and that and attend- cessity, the court concluded that all five ance and revenues were serious decline аt exempt. issue were The Church before the lot was established but asserts areas Our *5 upon turned around afterward. Based Lady Czestochowa were held to be ex- history, the trial court in short Church’s they in- empt because were for testimony credited the gress egress, and and it maintains that the In could not exist without the lot. parking area this case is as well.2 situation, the Church has established Additionally, points out the exemption a for under Section basis practice regarding Board’s admitted un- of the Assessment Law and being “necessary areas as for the 2(a) VIII, of the Con- der Article Section enjoyment” prop- of church stitution. erty in those cases where a church is required provide off-street seen, may although similar readily As be view, In prac- ordinance. the Court’s might circumstances be shown some tice inconsistency reveals fundamental cases, they other would not exist most. position. If holding the Board’s result, to be holding As a the Court’s is not may that parking
Second Church is areas exemption a tax general construed as “[ajctual regarded being never be addition, pres church lots. religious wor- is not similar to recent plainly ent case ship” meaning within the of Article denying claimed decisions Court Constitution, it then syna a residence for a exemptions for does not matter whether the areas were person, Con gogue maintenance Reform required by ordinance. v. Berks gregation Oheb Sholom Appeals, Board A careful review of Section (Pa.Cmwlth.2004), a former and for the Assessment Law shows that it does visiting by a parsonage principally is rea- used provide for consideration of what Street Church sonably necessary permit worship preacher, actual Connellsville County Board Assess Fayette The Board is correct Christ v. particular place. (Pa.Cmwlth. A.2d 848 required Appeals, to ment parking spaces that where roadways ingress principal into the shrine persuaded held 2. The Court is not regular basis and parking areas used on egress the basis for the was Czestochowa, used for reserve that two others were parking areas in Our parcel regularly. simply one where the court stated 2003). trial Accordingly, the order of the
court is affirmed.
ORDER NOW, day this 4th of March
AND of Common Pleas of
the order of the Court County is affirmed.
Dauphin BY
DISSENTING OPINION
SIMPSON.
I I would reverse respectfully dissent. Christ Scien-
based on Second Church of 65, 157 City Philadelphia, 398 Pa. tist v. (1959), in which our
A.2d 54 church clearly held that a not an actual because taxable now then and worship,
locus of Constitution. decision, thoughtful, while As precedent. established
departs from court, we should appellate
an intermediate leave predictability. We should
strive *6 to revisit Supreme Court the choice
to our limiting language Article Sec- Constitution.
tion joins in PELLEGRINI
dissent. joins in this dissent.
Judge COHN PALISADES
PITTSBURGH
PARK, LLC, Petitioner HORSE STATE
PENNSYLVANIA Presque COMMISSION, and
RACING Inc., Respondents. Downs
Isle Pennsylvania. Court of
Commonwealth Dec. 2003.
Argued 4, 2004.
Decided March