No. 504 January Term, 1979, Appeal from the Order Entered August 16, 1979, by the Commonwealth Court, No. 1889, C.D. 1978, Affirming the Order Entered July 21, 1978, in the Court of Common Pleas of Chester County, Pennsylvania, Civil Action--Law, at No. 244-P Misc. 1977. Appeal Allowed at No. 4536 Allocatur Docket, 45 Pa. Commonwealth Ct. 135,
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C.j., did not participate in the decision of this case.
This appeal by allowance is from the August 16, 1979 order of the Commonwealth Court, 45 Pa. Commw. 135, 405 A.2d 1314, sustaining a Chester County Court of Common Pleas order, on de novo appeal from that County's Board of Assessment Appeals, that Tax Parcel 24-6-3, known as Welkinweir and located within the Owen J. Roberts School District, is exempt from taxation because the property is owned by the Commonwealth.
Appellant has argued at every level that this particular transfer to the Commonwealth with retained lifetime possession by the grantors and express detailed reservations of control, both during and after grantors' joint lives, in them and a non-profit association, said to be created for charitable purposes, is insufficient to exclude Welkinweir from local real estate taxation. However, the lower courts have not examined the indicia from which ownership for tax purposes flow, but have simply assumed such ownership from the title transfer. Since such an assumption is incorrect, we must remand to Common Pleas for determination of this issue.
In Commonwealth v. Dauphin County, 335 Pa. 177, 6 A.2d 870 (1939) we held that real estate owned by the Commonwealth may not be subjected to taxation by political subdivisions in the absence of express statutory authority. This principle was reaffirmed in Southeastern Pennsylvania Transportation Authority v. Board of Assessment and Revision of Taxes of Delaware County, 13 Pa. Commonwealth Ct. 207, 319 A.2d 10 (1974). See also Commonwealth v. Erie Page 468} Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 882 (1971). Thus, in the absence of express statutory authorization no power to tax Commonwealth agencies can be imputed to a political subdivision.
The Commonwealth Court has correctly held the applicable statute, the General County Assessment Law, Act of May 22, 1933, P.L. 853, § 201, as amended,*fn1 does not expressly impose local real estate taxes on property owned by the Commonwealth. SEPTA v. Bd., Commonwealth v. Dauphin County, supra. However, this presumption that the legislature does not intend to subject the sovereign's property to local taxation unless it plainly says so applies only where the Commonwealth does in fact have rights of control over the premises consistent with ownership. Baltimore & Ohio Railroad Appeal, 405 Pa. 349, 175 A.2d 841 (1961). Mere registration of title in the Commonwealth is not always sufficient to establish its ownership for tax purposes. The trial court here must consider de novo whether appellant school district's uncontradicted evidence, documentary and otherwise, of the Rodebaughs' continuing possession and control of the property overcomes the prima facie validity of the Board of Assessment Appeal's action "exempting" it from assessment.
Welkinweir is an estate in Chester County consisting of one hundred and sixty-two acres of land, a house containing twenty or more rooms, a garage and an equipment building. The property was acquired by Everett G. and Grace H. Rodebaugh on May 4, 1935 by deed from Edgar G. and Elizabeth H. Carlisle and has been the Rodebaughs' residence since that date. On the tenth of November, 1976, the Rodebaughs executed an "open space easement in gross" granting Green Valleys Association, an association therein described as a public charity organized to preserve historical sites and natural scenic and conservation areas, a perpetual encumbrance, restriction and covenant to maintain Welkinweir in its present scenic state, requiring that the "property shall be used solely for farming, residential or recreational
purposes or for such religious, charitable, scientific or educational purposes as might be carried on by an 'exempt organization' under the provisions of Section 501(c)(3) of the United States Internal Revenue Code or such amendments thereto . . . as may hereafter govern such organizations."*fn2 Green Valleys Association, its successors and assigns, were given the right to enter upon the property "to inspect for violations of the . . . [easement's] provisions;*fn3 to remove or eliminate any such violations; and to perform such restoration as may be deemed necessary to restore the land after removal of said violations,"*fn4 as well as to take legal action to enforce the easement's provisions.
On May 31, 1977, the Rodebaughs signed and acknowledged a deed transferring title in Welkinweir to West Chester State College subject to the November 10, 1976 Easement in Gross and to a Statement of Principles also executed on November 10, 1976. These principles required the College, inter alia, to: (1) pay the appraisal cost for the easement given to Green Valleys Association, (2) "furnish full and first-class maintenance of the residence, contents and grounds according to standards at least as high as those previously observed, casualty and liability insurances, utilities, security patrol service on a seven-day, three-shift basis and special security services during public events or donors' absence," in conformity with correspondence between the college vice-president and the Rodebaughs, (3) submit any contemplated major physical additions to the Rodebaughs for approval, (4) submit the timing and details of all contemplated uses of Welkinweir and its facilities for the prior
approval of the Rodebaughs and (5) provide residence and ground staff satisfactory to and amenable to the direction of the Rodebaughs. The Rodebaughs retained the right to reside at Welkinweir as long as they desire and enjoy ...