dissenting.
I respectfully dissent.
As the majority correctly notes, it is a well-established principle that real estate owned by the Commonwealth may not be subjected to taxation by political subdivisions absent express statutory authority. Bucks County Community College v. Bucks County Board of Assessment Appeals, 147 Pa.Cmwlth. 505, 608 A.2d 622 (1992). This immunity from taxation exists because the Pennsylvania General Assembly never delegated to the taxing body any specific power to tax Commonwealth property. Id. In addition, this immunity from taxation applies not only to property owned by the Commonwealth itself, but also extends to property owned by agencies or instrumentalities of the *623Commonwealth, whether or not the property is used for a public purpose. Id.
Although PSU’s Hershey property may be exempt from taxation under a charitable exemption under Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985), I strongly disagree with the majority’s conclusion that this property is immune from taxation because it is the property of an agency or instrumentality of the Commonwealth. Hence, this dissent.
As the majority also correctly notes, in examining whether an entity is an instrumentality or agency of the Commonwealth for tax purposes, we look to the language of the entity’s enabling legislation. Bucks County Community College. The United States Court of Appeals for the Third Circuit has summarized the enabling legislation that created PSU as follows:
Penn State was created by statute in 1855, 24 P.S. § 2531, et seq., and was originally known as the Farmers’ High School of Pennsylvania. The enabling act provided great detail about the purposes of the school and the subjects to be taught: “the English language, grammar, geography, history, mathematics, chemistry and such other branches of the natural and exact sciences as will conduce to the proper education of a farmer.” 24 P.S. § 2542. The statute also established the time and place of the first meeting of the trustees, and directed them to obtain a tract of land and to make improvements thereon for “an institution properly adapted to the instruction of youth in the art of farming....” 24 P.S. § 2541. The statute also set the number of original trustees, specified that the governor, the secretary of the commonwealth, the “principal of the institution”, and the president of the state agricultural society shall be ex officio members of the board, and designated the nine other trustees by name. 24 P.S. § 2533. Successors to the original designated trustees were to be elected annually by delegates of each county agricultural society in the commonwealth. 24 P.S. § 2535.
The institution broadened somewhat in 1862 when Congress passed the Morrill Act, which established land grant colleges. 7 U.S.C. § 301 et seq. Under the Act, Congress provided land and other assistance for state universities that taught both agriculture and mechanical arts, provided that the state agreed to accept the terms and conditions of the congressional mandate. The commonwealth agreed to those conditions by necessary legislation and expanded the size of the board of trustees by subsequent legislation. Annually, trustees adopt the operating budget and determine the level of tuition to be paid by students in the next academic year. The level of tuition is based on estimates of expense and of income from other sources, including the estimated amount of the state appropriation, endowment income, recovery of indirect costs on government contracts and other miscellaneous sources.
Benner v. Oswald, 592 F.2d 174, 177 (3rd Cir.1979).
Thus, PSU was established by statute as a corporation for educational purposes. Roy v. Pennsylvania State University, 130 Pa.Cmwlth. 468, 568 A.2d 751 (1990); Brush v. Pennsylvania State University Board of Trustees, 249 Pa. Superior Ct. 164, 375 A.2d 810 (1977) (Opinion in support of reversal by Hoffman, J.). However, as this court has previously noted, “[t]he legislature has repeatedly designated Penn State a state-related institution as distinguished from a state-owned or state-aided institution.” Roy, 568 A.2d at 752 (footnotes omitted). Indeed, as the Pennsylvania Supreme Court has stated:
[PSU] students now pay tuition, unlike their counterparts in 1939, and state appropriations have decreased as a percentage of total University revenues, resulting in the fact that [PSUJ’s principal means of support are no longer state and federal funds but private and federal funds. In addition, the composition of [PSU’sJ Board of Directors is no longer public - much less governmental - in nature, and therefore, authority to dispose of University property is not within the purview of the Commonwealth. Appellate courts in this Commonwealth have found these and similar factors to be characteristics of a nonproñt corporation chartered for *624educational purposes - not an agency of the Commonwealth.
Pennsylvania State University v. County of Centre, 532 Pa. 142, 149-50, 615 A.2d 303, 306-07 (1992) (footnotes omitted and emphasis added). See also Roy, 568 A.2d at 753 (“Currently, the Board of Trustees is composed of 32 members only 10 of whom are Commonwealth representatives. The Board of Penn State retains authority over the disposition of the corporation’s property, not subject to review by the Commonwealth.”).1
It is true that an entity’s status as an agency or instrumentality of the Commonwealth can vary depending on the circumstances involved. Indeed, as the majority points out, the General Assembly has, on occasion, chosen to grant PSU this status. See, e.g., The Probate and Fiduciary Code, 20 Pa.C.S. § 7305 (Obligations of PSU are included within the obligations of Pennsylvania governmental organizations as authorized investments); Section 4 of the Pennsylvania College of Technology Act, Act of July 1, 1989, P.L. 132, as amended, 24 P.S. § 2510-504 (The Pennsylvania College of Technology is granted the status of PSU as a state-related institution and instrumentality of the Commonwealth); The Public School Employees’ Retirement Code, 24 Pa.C.S. § 8102 (PSU is included as a governmental entity within the definition of an “Employer”); The State Employees’ Retirement Code, 71 Pa. C.S. § 5102 (PSU employees are included within the definition of “State employee”).
However, all of the foregoing legislative enactments deal with regulatory or administrative matters; none of them deals with the purchase, sale or tax status of real property. I know of no legislative enactment that authorizes an agency or instrumentality of the Commonwealth to dispose of the property of the Commonwealth without the consent of the Commonwealth. In sum, I believe that the General Assembly has not acted to designate the real property owned by PSU as “Commonwealth property”, nor to confer tax immunity status to the property owned by PSU.
Among the reasons supporting its conclusion that PSU is an instrumentality of the Commonwealth for tax immunity purposes, the majority points to the fact that the Commonwealth has constructed many of the educational buildings on PSU’s various campuses that are valued in the hundreds of millions of dollars. Indeed, the United States Court of Appeals for the Third Circuit has previously noted:
[T]he Pennsylvania General State Authority (GSA) has provided physical facilities to [PSU] for many years. [Between] 1968 [and 1979,] the GSA has constructed on the campuses of the University educational buildings valued at approximately 95 million dollars. These improvements were made pursuant to statute, 71 P.S. § 1707.4. The GSA holds legal title to these buildings and to the land upon which they are constructed. In every instance, the University has conveyed title to the land by general warranty deed, and utilizes the GSA buildings in its educational functions and for no other purpose.
*625Benner, 592 F.2d at 178. Thus, when the Commonwealth endeavored to construct facilities on the PSU campuses under the General State Authority Act of 1949 (General State Authority Act),2 the property on which the facilities were located was conveyed by PSU to the Commonwealth. Id.
In 1975, by the Act of July 22, 1975, P.L. 75, the General Assembly amended the Administrative Code of 1929 (Administrative Code)3 and transferred the powers, functions and duties of the GSA to the Pennsylvania Department of General Services. In 1992, the General Assembly amended section 2401.1 of the Administrative Code that now states, in pertinent part, the following:
In addition to all other powers and duties set forth in this act, the Department of General Services shall have the power, and its duty shall be:
(21) To delegate at the discretion of the Secretary of General Services to a State-related institution in the Commonwealth system of higher education the performance on behalf of the Commonwealth of some or all of the powers and duties to plan, design, construct, administer and manage any public improvement project which has been statutorily authorized by the Commonwealth for such institution and the furnishing and equipping thereof, subject to such reasonable, necessary and appropriate conditions as may be mutually agreed upon between the department and such institution.
71 P.S. § 631.1.
In 1992, the General Assembly also amended section 2409-A of the Administrative Code which now reads, in pertinent part, as follows:
(b) Notwithstanding the provisions of this act, including without limitation this article, or any other act to the contrary, the Department of General Services is authorized to convey, with the approval of the Governor, any project within the meaning of the [General State Authority Act], which was conveyed and transferred by resolution of The General State Authority and under the authority of the act of July 22, 1975 (P.L. 75, No. 45) ... to the Department of General Services, provided that:
(1) The grantee is an institution of higher education located in this Commonwealth.
(2) The project was constructed by The General State Authority on behalf of the grantee.
(3) The consideration for each conveyance shall be based upon either the outstanding principal and interest indebtedness of the project or the total cost of the project adjusted to its present value as determined by the Department of General Services in consultation with the Secretary of the Budget.
(4) All costs of the transaction are borne by the grantee.
(5) No part of the consideration or transaction costs are paid with General Fund moneys or Capital Facilities Fund moneys.
(6) No conveyance shall be made under the authority of this subsection to an institution of the State System of Higher Education.
(c) Notwithstanding the provisions of this act, including, without limitation this article or any other act to the contrary, the Department of General Services is authorized to convey, with the approval of the Governor, to The Pennsylvania State University ... any project which The General State Authority or the Department of General Services constructed on behalf of the grantee, provided that:
(1) All outstanding principal and interest indebtedness of the project has been retired.
(2) All costs of the transaction are borne by the university.
(3) The university shall pay one dollar ($1.00) for each project transferred.
*626(4) No part of the transaction costs is paid with General Fund moneys or Capital Facilities Fund moneys.
(5) The deed of conveyance shall contain a clause that the property conveyed shall be used for educational purposes by the grantee, and, if at any time the grantee or its successor in function conveys the property or permits the property to be used for any purpose other than those specified in this section, the title to the property shall immediately revert to and revest in the Commonwealth of Pennsylvania.
71 P.S. § 651.9(b), (c).
Based on the foregoing, I believe that the following salient ideas emerge. Under the past and present statutory scheme, the General Assembly has endeavored to aid PSU by authorizing either the GSA or the Department of General Services to construct educational facilities on PSU’s various campuses. In order to avail itself of this state aid, the General Assembly has required PSU to convey the property on which these facilities were located to the Commonwealth. Because the Commonwealth held title to these properties, they were immune from taxation by the local authorities. In 1992, under section 2401.1 of the Administrative Code, the General Assembly has authorized the Secretary of the Department of General Services to delegate his authority to PSU to act on the Commonwealth’s behalf in the construction and equipping of these facilities.
In addition, under section 2409-A, the General Assembly has authorized the Department of General Services to convey these properties and facilities back to PSU. Where there is an outstanding indebtedness of principal and interest on the project, PSU may purchase these properties and facilities in the amount of this outstanding indebtedness or for the total cost of the project adjusted to its present value. Where there is no outstanding indebtedness, the property may be conveyed to PSU for $1.00, provided that the property and facilities are used solely for educational purposes. When either PSU or its successors in interest do not use the property and facilities exclusively for these purposes, title will immediately revert and revest in the Commonwealth.
The foregoing .demonstrates that the General Assembly draws an explicit distinction between that property on the PSU campuses which is owned by the Commonwealth and that which is owned by PSU, and that property on the PSU campuses which is used for educational purposes and that which is not. As a result, I believe that the General Assembly, i.e., the ultimate taxing authority in this Commonwealth, does not consider all of the property on all of the PSU campuses to be immune from taxation as a “Commonwealth property”.
Although it is not dispositive in the instant appeal, the recently enacted Institutions of Purely Public Charity Act (Public Charity Act)4 demonstrates these distinctions. Section 4 of the Public Charity Act states, in pertinent part:
§ 4. State-related universities
(a) General rule.—It is the intent of the General Assembly to recognize that the State-related universities provide a direct public benefit and serve the public purposes of this Commonwealth by declaring the real property of State-related universities to be public property for purposes of exemption from State and local taxation when the property is actually and regularly used for public purposes ...
(b) Real property.—All real property owned by State-related universities, or owned by the Commonwealth and used by a State-related university, is and shall be deemed public property for purposes of the Constitution of Pennsylvania and the laws of this Commonwealth relating to the assessment, taxation and exemption of real estate and shall be exempt from all State and local taxation when actually and regularly used for public purposes.
(d) Definitions.—As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Public purposes.” All activities relating to the educational mission of State-related *627universities, including teaching, research, service and activities incident or ancillary thereto which provide services to or for students, employees or the public.
“State-related universities.” The Pennsylvania State University and its affiliate, the Pennsylvania College of Technology, the University of Pittsburgh, Temple University and its subsidiaries Temple University Hospital, Inc., and Temple University Children’s Hospital, Inc., and Lincoln University.
10 P.S. § 374. Thus, under this act, the General Assembly has statutorily exempted from taxation only that property owned by PSU that is related to the educational mission of the university. Id.
As a result, I cannot agree with the majority’s holding that PSU is an instrumentality of the Commonwealth for tax immunity purposes, and its Hershey property is immune from taxation by the local taxing authorities. In fact, I believe that the General Assembly has gone to great lengths to distinguish between Commonwealth property and property owned by PSU on its various campuses, and has manifested an intention that only that property which is owned by PSU and used for its educational mission should he exempt from taxation by the local taxing authorities. Accordingly, I would reverse the order of the Court of Common Pleas of Dauphin County.
SMITH and PELLEGRINI, JJ., join in this dissenting opinion.
. The distinction between the composition of PSU’s Board of Trustees and those of the member schools of the Pennsylvania State System of Higher Education (SSHE) is worth noting. As our esteemed colleague Judge J. Sydney Hoffman of the Pennsylvania Superior Court has noted:
[As with Temple University,] Pennsylvania State University was similarly established as a corporation for educational purposes. Act of February 22, 1855, P.L. 46 § 1 et seq.; 24 P.S. § 2531 et seq. Section 2 of the Act provides for management and control by a board of trustees which is currently composed of 32 members only ten of whom are public officials. By contrast, the Governor appoints the entire membership of the boards for [the] state colleges [of the SSHE] and Indiana University, specified as departmental administrative boards. Act of March 10, 1949, P.L. 30, art. XX, § 2003.1, added 1970, Feb. 17, P.L. 24, No. 13, § 4, eff. July 1, Í969; 24 P.S. § 20-2003.1; Act of March 10, 1949, supra; as amended December 6, 1972, P.L. 1413, No. 306, § 1; 24 P.S. § 20-2008.1. The board of trustees of Pennsylvania State University retains authority over disposition of the property of the corporation not subject to review by the Commonwealth, Act of February 22, 1855, supra; 24 P.S. § 2533; while the boards of the state colleges [of the SSHE] must act with approval of the Commonwealth in managing [the] affairs of those institutions. Act of March 10, 1949, supra; 24 P.S. §§ 20-2003.3, 2008.3.
Brush, 249 Pa. Superior Ct. at 180, 375 A.2d at 818-19 (Opinion in support of reversal by Hoffman, J.).
. Act of March 31, 1949, P.L. 372, as amended., 71 P.S. §§ 1707.1 - 1707.16.
. Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§51 -732.
. Act of November 27, 1997, P.L. 508, as amended, 10 P.S. §§371 -385.