157 A.2d 54

Second Church of Christ Scientist of Philadelphia v. Philadelphia, Appellant.

Supreme Court of Pennsylvania.November 10, 1959.
December 30, 1959.

Constitutional law — Pennsylvania Constitution — Article IX, § 1 — Taxation — Exemption — Actual places of religious worship — Parking lot on church land — Act of May 22, 1933, P. L. 853.

A parking lot contiguous to a church building on land owned by the church, which is used for the convenience of the congregation, is not an “actual place of religious worship” within the meaning of the Constitution of Pennsylvania, Article IX, § 1 (which provides “. . . the General Assembly may, by general laws, exempt from taxation . . . actual places of religious worship, . . .”), and cannot be exempted from taxation.

Argued November 10, 1959. Before JONES, C. J., BELL, MUSMANNO, JONES, COHEN, BOK and McBRIDE, JJ.

Appeals, Nos. 338 and 339, Jan. T., 1959, from judgment of Superior Court, Oct. T., 1959, Nos. 32 and 33, reversing final orders of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1956, Nos. 9104 and 9103, in case of Second Church of Christ Scientist of Philadelphia et al. v. City of Philadelphia et al. Judgments reversed; reargument refused January 25, 1960.

Same case in Superior Court: 189 Pa. Super. 579.

Appeals of plaintiffs from decision of board of revision of taxes denying applications for exemption from taxes on parking lots. Before LEVINTHAL, J., without a jury.

Orders entered dismissing appeals and affirming decisions of Board. Plaintiffs appealed to Superior Court which reversed orders, opinion by WOODSIDE, J., RHODES, P. J., and WRIGHT, J., dissenting. Appeal to Supreme Court allowed.

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David Berger, City Solicitor, with him Yale B. Bernstein, Assistant City Solicitor, and James L. Stern, Deputy City Solicitor, for City of Philadelphia, appellants.

Henry T. Reath, with him Duane, Morris Heckscher, for appellees.

OPINION BY MR. JUSTICE BOK, December 30, 1959:

Two churches have sought exemption from City and School real estate taxation on parking lots created by them on their land contiguous to the church buildings. The lower court denied the exemption and the Superior Court reversed. We have taken the case on allocatur.

Although the churches are in different parts of Philadelphia, the essential facts, which are simple and not in dispute, are alike. The land in both cases is used solely for parking, no religious services are held on it, and it is not needed for ingress or egress or for light and air.

The churches argue that a parking lot is necessary in this modern age, not only as a needed convenience but as an adjunct necessary to the church’s fulfilling its purpose as a place of worship. We cannot credit this argument.

It should be clearly borne in mind that the issue is not whether these churches may have parking lots on their land but only whether the ones they have are to be taxable or exempt. We think they are taxable.

The State Constitution, in Article IX, § 1, provides: “. . . 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, institutions of purely public charity, and real and personal property owned, occupied and used by any branch,

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post, or camp of honorably discharged soldiers, sailors and marines.”

The Legislature consequently passed the Act of May 22, 1933, P.L. 853, Art. II, Sec. 204, as amended, 72 P. S. § 5020-204, which provides: “The following property shall be exempt from all county, city, borough, town, township, road, poor and school tax, to wit: (a) All churches, meeting-houses, or other regular places of stated worship, with the ground thereto annexed necessary for the occupancy and enjoyment of the same; . . .”

It is apparent that the “actual” nature of worship on the place sought to be exempt is a constitutional requirement, and that the “necessary” status of the ground annexed is legislative. Hence we hold, and appellees concede, that the exemption of church property is constitutionally restricted, as educational and charitable property is not, to the actual place of worship: First Baptist Church of Pittsburgh v. Pittsburgh, 341 Pa. 568 (1941), 20 A.2d 209. This distinction between church and charitable exemptions has been deliberately and clearly drawn: Parmentier Trustees’ Appeal, 139 Pa. Super. 27
(1940), 11 A.2d 690.

If this is well understood it becomes obvious that a parking lot, which admittedly is not the scene of any religious observance, cannot be an actual locus of worship without borrowing status from the church structure. To achieve it, appellees offer very meager fare from the precedents. In th First Baptist Church case we spoke of “necessary” as being reasonable and not absolute, but at once excluded from it what is merely desirable. We also limited necessity to entrance, exit, light, and air, and denied exemption. In Pittsburgh v. Third Presbyterian Church, 10 Pa. Super. 302 (1899), the Superior Court denied exemption for a janitor’s house and then indulged in variegated dictum

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approving horse-sheds, shade, places for refreshment, and springs as things of religious necessity. Such dictum does not move us. There is nothing else helpful to the appellees in the precedents, unless it be the argument that in Chevra v. Philadelphia, 116 Pa. Super. 101 (1935), 176 A. 779, the entire synagogue building was exempt, although one floor was used as storage, for later disposal under Jewish law, of old books, damaged scriptures, and pictures. Judge KELLER added that a church building would not lose its exemption because of heating space, robing rooms, and spaces for the storage of music, hymnals, Bibles, chairs, and the like. To shred the idea finer would reduce the situation to the absurdity of taxing the space in church between the bodies of the congregation or between their heads and the ceiling. Exempting an entire building when it is all put to religious use and not to purposes of gain has a reasonable and necessary basis. See als Wynnefield United Presbyterian Church v. Philadelphia, 348 Pa. 252
(1944), 35 A.2d 276.

The status of an actual place of worship has not been extended beyond ingress and egress, and light and air. We see no reason or permission, because of the constitutional provision, to extend it farther.

The authorities contra exemption are conclusive of our position.

In Mullen v. Commissioners of Erie County, 85 Pa. 288 (1877), exemption was denied to a piece of ground on which an unfinished cathedral was in process of construction. I Pittsburgh v. Third Presbyterian Church, supra (10 Pa. Super. 302), a janitor’s house separate from the church was denied exemption. In Philadelphia v. St. Elizabeth’s Church, 45 Pa. Super. 363
(1911), a parsonage separated from the church by a party wall was held taxable. If a clergy house cannot win exemption, a fortiori a parking lot should not either. I Pittsburgh v. Third Presbyterian

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Church of Pittsburg, 20 Pa. Super. 362 (1902), a vacant lot held for the future erection of a church was held taxable. In Laymen’s Week-End Retreat League v. Butler, 83 Pa. Super. 1
(1924), only that part of a religious retreat area used for actual stated worship was allowed exemption. In First Baptist Church of Pittsburgh v. Pittsburgh, supra (341 Pa. 568), a vacant lot, landscaped and partly cindered for parking, was being held for the erection of a parish house and an addition to the church building: it was denied exemption. I Philadelphia v. Overbrook Park Congregation, 171 Pa. Super. 581
(1952), 91 A.2d 310, exemption was refused where religious services were occasionally held in a tent pitched on vacant ground where a synagogue was later built.

We are accordingly of opinion that parking is an adjunctive use of property not part of regular, stated worship and not actually used for that purpose. The appellees have not, therefore, clearly brought themselves within the exempting statute and the Constitution: Wynnefield Presbyterian Church v. Philadelphia, supra (348 Pa. 252); Philadelphia v. Overbrook Park Congregation, supra (171 Pa. Super. 581).

The judgment of the Superior Court is reversed. The orders of Judge LEVINTHAL of the court below and of the Board of Revision of Taxes are affirmed, and the petition for exemption is denied.