dissenting.
I respectfully dissent from the decision of the Majority. The Majority affirms the trial court based on its determination that Community Service Foundation, Inc. (CSF) failed to demonstrate that it relieved the government of some of its burden. In so holding, the Majority states that CSF programs must be substantially funded by private contributions instead of government grants and that tax exempt status may not be accorded to those organizations which do not abate government costs.
The Pennsylvania Supreme Court reviewed extensive case law concerning charitable tax exemptions and summarized the minimum constitutional requirements in Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 21-22, 487 A.2d 1306, 1317 (1985):
[An] entity qualifies as a purely public charity if it possesses the following characteristics.
(a) Advances a charitable purpose;
(b) Donates or renders gratuitously a substantial portion of its services;
(c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity;
(d) Relieves the government of some of its burden; and
(e) Operates entirely free from private profit motive.
In the present case, Bucks County conceded that CSF meets four of these criteria; the only one in dispute, as noted by the Majority, is whether CSF relieves the government of some of its burden.
The entity seeking a tax exemption of course has the affirmative burden of proving its entitlement. Hospital Utilization Project. The trial court noted the origin of this element in Young Men’s Christian Ass’n of Germantown v. Philadelphia, 323 Pa. 401, 187 A. 204 (1936), where the Supreme Court stated that an institution that through its charitable activities relieves government of some of its burden confers a pecuniary benefit for which it receives a quid pro quo in the form of exemption from taxation. The Supreme Court elaborated upon this element of the test in St. Margaret Seneca Place v. Board of Property Assessment, Appeals and Review, 536 Pa. 478, 487, 640 A.2d 380, 385 (1994):
The [Hospital Utilization Project ] test of whether an institution has relieved the government of some of its burden does not require a finding that the institution has fully funded the care of some people who would otherwise be fully funded by the government. The test is whether the institution bears a substantial burden that would otherwise fall to the government.
CSF cited the Supreme Court’s decision in St. Margaret Seneca Place, noting that under the test set forth there, the court upheld the exemption where roughly half of the patients were self-paying, and the nursing home made up the one-third difference between the actual costs and the Medicaid payments received on behalf of the others. Under similar facts, this Court recently concluded that a nursing home that paid a portion of the costs for Medicaid patients, who comprised about 60% of its patients, met the test of relieving government of some of its burden. Couriers-Susquehanna, Inc. v. Dauphin County, 165 Pa.Cmwlth. 192, 645 A.2d 290 (1994). Neither of these eases imposed a specific monetary percentage or cash formula in regard to the criterion of relieving government of some of its burden.
CSF correctly asserts that the trial court erroneously focused on the amount of contributions received as compared to total income, implicitly requiring some threshold level of private funding. This error has been compounded by the Majority’s interpretation of the law and its narrow focus upon charitable contributions to CFS. Further, CFS argues that no such threshold has ever been established and points out that the uniqueness of the service provided by the institution has been held to be sufficient, even where nearly all revenues were derived from government payments or from the recipients themselves. In Vanguard School Tax Exemption Case, 430 Pa. 378, 243 A.2d 323 (1968), where a *378school provided unique services to children with learning and emotional disabilities, the Supreme Court stated that strict acceptance of an institution’s relief of tax burdens as the only measure of its relief of government responsibilities has never been required.
In a case where an institution concededly renders services to legitimate subjects of charity, the issues of relieving government of some of its burden and of whether the institution is maintained through public or private charity may become intertwined. From the earliest cases, however, courts have recognized that receipt of some payments does not necessarily destroy the character of an entity as a “purely public charity.” In Episcopal Academy v. Philadelphia, 150 Pa. 565, 574, 25 A. 55, 57 (1892), the Supreme Court stated:
We are now disposed to go further, and say that an institution that is in its nature and purposes a purely public charity does not lose its character as such under the tax laws if it receives a revenue from the recipients of its bounty sufficient to keep it in operation. It must not go beyond self-support. When a charity embarks in business for profit it is liable to taxation like any other business establishment; but so long as the trustees of the school manage it as a charity, giving the benefit of what might otherwise be profit to the reduction of tuition fees or the increase of the number of free scholars in furtherance of the “education of youth,” the corpus of the trust, the schoolhouse, is entitled to exemption.
See also West Allegheny Hospital v. Board of Property Assessment, Appeals and Review, 500 Pa. 236, 455 A.2d 1170 (1982) (citing Episcopal Academy and expressly disapproving language in Y.M.C.A of Germantown that “charity” within the meaning of Section 204(a)(3) requires only a nominal charge to the beneficiaries).
In the present case, the Board did not dispute before the trial court that CSF met four of the five Hospital Utilization Project criteria, including the second — that it donates or renders gratuitously a substantial portion of its services. This point alone renders the Board’s position that CSF does not relieve government of some of its burden highly problematic, where the services involved are those that government is required to provide.1 The trial court made findings that CSF compensates its employees at rates lower than those for similar government positions and that CSF has on occasion continued to provide services after funding ran out, but the court made no reference to undisputed testimony from the same witnesses (the Board presented no witnesses) regarding the relative cost of CSF’s operations.
Mr. Wachtel testified that the per diem rate for the day program included $40.95 per day for day treatment and $27.00 per day for education, which is lower than the local school tuition rate CSF is permitted by statute to charge.2 He testified that the rate for the residential program was $91.60, which included day treatment for no additional charge, and that CSF is able to charge less because of the lower salaries it pays as compared to government positions. The Chief Probation Officer testified that CSF’s foster home and day treatment program cost comparably less than the county group home or foster home system or residential treatment at a large facility operated by the Commonwealth, such as the Youth Development Centers at Bensalem or New Castle, where costs are in the range of $150 to $175 per day for what he termed “custodial care.”
*379The Majority erred in sustaining the trial court’s conclusion that CSF presented no evidence that it pays a substantial portion of the cost for any of the students that it houses and educates. In accordance with the Supreme Court’s holding on this point in St. Margaret Seneca Place, CSF has, at a minimum, provided the facilities and performed the day-to-day management of this school and residential treatment center which the government is statutorily bound to provide. Although the trial court found that CSF compensates its employees at rates lower than those for government positions and charges less for its services than similar institutions, the court erred in failing to conclude that these facts together amount to a form of subsidization.
In focusing too narrowly on the charitable donations received by CSF, the trial court and the Majority have disregarded another aspect of St. Margaret Seneca Place. There the Supreme Court stated that factors other than those established in Hospital Utilization Project supported the conclusion that the nursing home at issue was a purely public charity entitled to tax exemption. After concluding that the parent health system made a charitable gift with an eleemosynary motive in a contribution to help found the home, the Court stated:
Moreover, it is not indispensable that the institution be maintained by charity. As we noted in West Allegheny Hospital, supra, “[o]ne would have to be removed from modern-day realities to believe that such costs are easily subsidized [by charitable donations], even in part.” 500 Pa. at 241 n. 4, 455 A.2d at 1172 n. 4.
St. Margaret Seneca Place, 536 Pa. at 489, 640 A.2d at 385-386. It is evident that CSF presented a legally sufficient basis under the Supreme Court’s decisions to demonstrate that it meets the test for the only point in dispute, i.e., that CSF reheves government of some of its burden. Therefore, the order of the trial court should be reversed.
DOYLE, J., joins in this dissent.
. For a clear example of failure to show relief of government burden, see Associated YM-YWHA of Greater New York/Camp Poyntelle v. County of Wayne, 149 Pa.Cmwlth. 349, 613 A.2d 125 (1992). There the Court held that religious summer camps were not entitled to exemption because the record failed to establish that the government is obligated to provide social, recreational or educational activities for children during summer months or that government would otherwise have to provide the food and medical services supplied by the camps.
. See Section 914.1-A of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, added by Section 3 of the Act of April 6, 1980, P.L. 86, 24 P.S. § 9-964.1. This Section authorizes intermediate units and local school districts to contract with private residential rehabilitative institutions for education services and provides that the full tuition charge of the school district in which the institution is located shall be paid by the school district of the child's residence.