                             [J-11-2014] [MO: Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


FRIENDS OF PENNSYLVANIA                       :   No. 66 MAP 2013
LEADERSHIP CHARTER SCHOOL,                    :
                                              :   Appeal from the Order of the
                     Appellant                :   Commonwealth Court dated January 16,
                                              :   2103 at No. 790 CD 2012 affirming the
                                              :   order of the Chester County Court of
              v.                              :   Common Pleas, Civil Division, entered
                                              :   March 30, 2012 and exited April 2, 2012 at
                                              :   No. 2011-09438-AB.
CHESTER COUNTY BOARD OF                       :
ASSESSMENT APPEALS,                           :   ARGUED: March 12, 2014
                                              :
                     Appellee                 :
                                              :
WEST CHESTER AREA SCHOOL                      :
DISTRICT,                                     :
                                              :
                     Intervenor               :


                                  CONCURRING OPINION


MR. JUSTICE EAKIN                                   DECIDED: September 24, 2014
       I agree with the majority’s holding § 1722-A(e)(3) violates the separation of powers

doctrine, but I also find meritorious West Chester Area School District’s argument that §

1722-A(e)(3) violates the constitutional guarantee of uniform taxation, which the majority

declined to address. See Majority Slip Op., at 11 n.9. Specifically, the School District

argues § 1722-A(e)(3) violates the Uniformity Clause by treating identically situated

property differently for taxation purposes and by excluding from the retroactive exemption

those charter schools, cyber charter schools, and associated nonprofit foundations that

failed to file an assessment appeal prior to the statute’s effective date.
         The Uniformity Clause provides, “All taxes shall be uniform, upon the same class

of subjects, within the territorial limits of the authority levying the tax, and shall be levied

and collected under general laws.” Pa. Const. art. VIII, § 1. “Taxation, however, is not a

matter of exact science; hence[,] absolute equality and perfect uniformity are not required

to satisfy the constitutional uniformity requirement.” Clifton v. Allegheny County, 969

A.2d 1197, 1210 (Pa. 2009) (citing Leonard v. Thornburgh, 489 A.2d 1349, 1352 (Pa.

1985); In re Harleigh Realty Co., 149 A. 653, 654 (Pa. 1930) (“Scientific formulae,

arithmetical deductions and mental contemplations, have small value in making

assessments under our practical system of taxation.”)). “Some practical inequalities are

obviously anticipated, and so long as the taxing scheme does not impose substantially

unequal tax burdens, rough uniformity with a limited amount of variation is permitted.”

Id., at 1210-11 (citation omitted); see also Delaware, L. & W. R. Co.’s Tax Assessment,

73 A. 429, 430 (Pa. 1909) (noting Uniformity Clause requires only “substantial uniformity,

which means as nearly uniform as practicable in view of the instrumentalities with which

and subjects upon which tax laws operate”). A taxpayer who believes he has been

subjected to unequal taxation due to an allegedly unconstitutional statute must

demonstrate: “(1) the enactment results in some form of classification; and (2) such

classification is unreasonable and not rationally related to any legitimate state purpose.”

Clifton, at 1211 (citation omitted).

         Here, § 1722-A provides for prospective and retrospective tax relief.

Prospectively, § 1722-A(e)(1) exempts from real estate taxation: (1) property directly

owned by a charter school, cyber charter school, or an associated nonprofit foundation; or

(2) property owned by a nonprofit corporation or foundation that is leased to a charter

school, cyber charter school, or an associated nonprofit foundation at or below fair market

value.    24 P.S. § 17-1722-A(e)(1).      Thus, nonprofit landlords leasing property to a




                                [J-11-2014] [MO: Baer, J.] - 2
charter school are exempt from all taxation, while similarly situated nonprofits leasing to

otherwise exempt organizations do not receive any exemptions.                     See id.

Retrospectively, § 1722-A(e)(3) applies only to those charter schools, cyber charter

schools, and associated nonprofit foundations that filed a tax assessment appeal. Id., §

17-1722-A(e)(3). Because only entities that directly own property can file an appeal from

a tax assessment, only the first class of entities included in § 1722-A(e)(1) may obtain

retrospective tax relief under § 1722-A(e)(3); entities that lease property are ineligible.

Id. Similarly, entities that directly own property but failed to file an appeal from a tax

assessment are ineligible for retrospective tax relief. Id.

       By treating identically situated taxpayers differently for taxation purposes and

excluding from the retrospective exemption entities that failed to or could not file an

assessment appeal, § 1722-A results in classifications that are unreasonable and not

rationally related to any legitimate state purpose. See Clifton, at 1211 (citation omitted).

The provisions of § 1722-A impose unequal tax burdens and therefore violate the

Uniformity Clause. See, e.g., id., at 1228-29 (holding inequitable assessments amongst

similarly situated taxpayers violated Uniformity Clause); City of Harrisburg v. School

District of the City of Harrisburg, 710 A.2d 49, 53-54 (Pa. 1998) (holding unequal tax

treatment of lessees of public and nonpublic property violated Uniformity Clause).

       That said, I concur in affirming the Commonwealth Court because, as explained by

the majority, § 1722-A(e)(3) also violates the separation of powers doctrine and is

therefore unconstitutional.

       Mr. Chief Justice Castille joins this concurring opinion.




                              [J-11-2014] [MO: Baer, J.] - 3
