Phantom Fireworks Showrooms, LLC v. Tom Wolf, Governor of the Comwlth of PA
198 A.3d 1205
Pa. Commw. Ct.2018Background
- Act 43 (Act of Oct. 30, 2017) began as a short tax bill (HB 542) requiring remote sellers to give a PA sales/use tax notice, but was amended into a lengthy revenue code that, among many provisions, relocated and revised the Fireworks Law (Article XXIV), expanded consumer fireworks sales, imposed a 12% fireworks tax, and authorized sales from temporary structures.
- Article XXIV defines compliance for temporary-structure fireworks sales by reference to “NFPA 1124,” defined as the 2006 NFPA Standard 1124 "or any subsequent edition." NFPA withdrew its 1124 standard in 2014 and the 2017 Code contains no retail-sales fireworks standard.
- Phantom Fireworks (retail sellers) sued in this Court’s original jurisdiction, challenging Act 43 as unconstitutional under multiple provisions of the Pennsylvania Constitution (Article II and Article III), and seeking declaratory and injunctive relief. Respondents included executive agency heads and legislative leaders; the Governor was later dismissed as unnecessary.
- Procedural posture: preliminary objections and cross-motions for summary relief were fully briefed; the Court treated the dispute as purely legal and appropriate for summary relief.
- Key factual claim by Phantom: Act 43’s authorization of transient vendors in temporary structures harms brick-and-mortar sellers by creating an uneven competitive cost structure (standing and ripeness grounds).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Phantom: suffers direct competitive injury from temporary-structure vendors; also qualifies for taxpayer-standing exception | Respondents: lack of capacity/standing | Court: Phantom has traditional standing (economic harm) and taxpayer-standing under the five-factor test; standing sustained |
| Ripeness | Phantom: injury is current and prospective due to lost sales; action ripe under Declaratory Judgments Act | Respondents: claim premature | Court: ripeness satisfied (Declaratory Judgments Act standard; factual loss alleged) |
| Article III — original purpose / single subject / clear title / repealed-text | Phantom: fireworks provisions and safety rules are outside original tax purpose; title/§6 repealer defects | Respondents: amendments germane to revenue; title listed "providing for fireworks"; PAGE and other cases distinguishable | Court: No Article III violation — original purpose and single-subject met (unifying revenue purpose); title adequate; repealed-text claim denied on these pleadings |
| Delegation (Article II, §1) re: NFPA 1124 and "any subsequent edition" | Phantom: delegating safety standards reference to a private body (NFPA) with no legislative standards or procedural safeguards is unconstitutional | Respondents: ask court to interpret definition as limited to 2006 edition to avoid constitutional issue | Court: Held unconstitutional delegation — Act 43 improperly vested legislative policy choices in NFPA without standards, public process, or review; cannot rewrite statute to limit to 2006 edition |
Key Cases Cited
- Washington v. Dep’t of Pub. Welfare, 188 A.3d 1135 (Pa. 2018) (explains Article III historical purpose and germaneness/original-purpose tests)
- Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017) (invalidated delegation to private standards body; requires legislature to make basic policy choices and provide adequate standards and safeguards)
- Pa. State Ass’n of Jury Comm’rs v. Commonwealth, 64 A.3d 611 (Pa. 2013) (single-subject and title/germaneness analysis under Article III)
- Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth (PAGE), 877 A.2d 383 (Pa. 2005) (germaneness and repeal/publishing principles under Article III)
- Stilp v. Commonwealth, 905 A.2d 918 (Pa. 2006) (germaneness/original purpose framework)
- Allegheny County v. Monzo, 500 A.2d 1096 (Pa. 1985) (standing based on economic/competitive injury)
- William Penn Parking Garage, Inc. v. Pittsburgh, 346 A.2d 269 (Pa. 1975) (tax imposition on patrons can confer standing on businesses suffering economic harm)
- Christ the King Manor v. Dep’t of Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006) (presumption of constitutionality; application of §6 repealer/publishing analysis)