Lester S. Hecht, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
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This is an action of scire facias sur municipal lien in which the use-plaintiff asserts a municipal claim
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for cartway paving against a vacant lot of ground owned by the appellant, a Pennsylvania non-profit corporation.*fn1 The lot is located on Woodbine Avenue, near 76th Street, in the City of Philadelphia. The work of paving the cartway took place during November and December, and was completed on December 14, 1950.
In its affidavit of defense to the scire facias, appellant averred that between September 11 and October 2, 1950, it had conducted religious services in a tent erected on the lot; that the lot had been purchased on February 28, 1950, for the conduct of religious services within the Jewish religion; and that 'Continuously from the 28th day of February, 1950, the aforesaid date of defendant's [appellant's] acquisition of the said premises and including the time of the said paving, the defendant's premises were as aforesaid used by the defendant as an actual place of religious worship, were thus by law exempt from taxation and according to the provisions of the Act of May 16, 1923, P.L. 207, § 5, as amended by the Act of May 4, 1927, P.L. 733, § 1, the said premises are not subject to a municipal claim for cartway paving.' In granting the use-plaintiff's motion for judgment for want of a sufficient affidavit of defense, the court below held that the facts averred by appellant did not show the ground
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was used as an 'actual place of religious worship'; and that consequently it was not exempt under the Municipal Lien Act of 1923, P.L. 207, as amended, 53 P.S. § 2025, from the claim for cartway paving. This appeal by the Overbrook Park Congregation followed.
Appellant's claim for exemption arises under section 5 of the Act of May 16, 1923, P.L. 207, as amended, 53 P.S. § 2025, which provides as follows: 'All real estate, by whomsoever owned and for whatsoever purpose used, other than property owned by the State or the United States, shall be subject to all tax and municipal claims herein provided for, except that all property owned by any county, city, or other municipality or municipal division, and actual places of religious worship, * * * shall not be subject to tax or municipal claims on property, by law, exempt from taxation except for the removal of nuisances, for sewer claims and sewer connections, or for the curbing, recurbing, paving, repaving, or repairing the footways in front thereof.'
The facts averred in the pleadings are not in dispute. The question raised is one of law -- whether, under the admitted facts, this property is exempt from the municipal claim. More specifically, appellant's affidavit of defense averred that on September 9, 1950, it rented and caused to be erected on the lot a canvas tent seating 800 persons; that on September 11 and 12, 1950, it conducted religious services of Rosh Hashana in the tent, during which time 750 worshippers were in attendance; that on September 16, 1950, it conducted Sabbath religious services in the tent with about 200 present; that on September 20, 1950, services of Yom Kippur were conducted with ...