In re APPEAL OF LOCK HAVEN UNIVERSITY FOUNDATION From the Decision of the Clinton County Board of Assessment Appeals Regarding Property Located in the City of Lock Haven, Clinton County, Pennsylvania, Tax Parcel No. 104-04-0220-N (Evergreen Commons)
Commonwealth Court of Pennsylvania
March 7, 2007
921 A.2d 215
Id. at 3-4.
Although common pleas never discussed whether Evergreen Commons was exempt from tax under the Fourth to Eighth Class County Assessment Law,13 it did conclude that the Foundation provides student housing; it sets the rents so that, in combination, they will be enough to repay the bond and the expenses of the facility; there is presently no profit; and when the bond is paid back, any income the Foundation receives would benefit the programs and purposes of the University. We believe that these findings are enough to satisfy the Foundation‘s burden of proving that Evergreen Commons is necessary to and actually used for the Foundation‘s principal purposes and is not used in a manner that competes with private enterprise.
Further, to be exempt from taxation, Section 202(b) of the Assessment Law requires that the revenue derived from the subject property come from the recipients of the bounty of the institution or charity,
For all of the above reasons, the order of the Court of Common Pleas of Clinton County is reversed.
ORDER
AND NOW, this 7th day of March, 2007, the ORDER of the Court of Common Pleas of Clinton County in the above captioned matter is hereby REVERSED.
Ronald BLOUNT, Individually and as president of the Taxi Worker‘s Alliance of Pennsylvania, Arink, Inc., Raink, Inc., Audrey Cab, Inc., t/a County Cab, Sawink, Inc., Dee-Dee Cab, Inc., t/a Penn-Del Cab, Quaker City Cab, Inc., Germantown Cab Co. and Michael Etemad, Petitioners v. PHILADELPHIA PARKING AUTHORITY, Respondent
Commonwealth Court of Pennsylvania
March 9, 2007
Argued Sept. 13, 2006.
Andrew A. Chirls, Philadelphia, for respondent.
BEFORE: COLINS, President Judge, McGINLEY, Judge, SMITH-RIBNER, Judge, FRIEDMAN, Judge, LEADBETTER, Judge,1 COHN JUBELIRER, Judge, and SIMPSON, Judge.
OPINION BY Judge LEADBETTER.
Before this court are preliminary objections filed by the Philadelphia Parking Authority (PPA) to the petition for review filed by Ronald Blount, individually and as president of the Taxi Worker‘s Alliance of Pennsylvania,2 along with Michael Etemad, a Philadelphia business owner, several other corporations providing taxicab services, and a corporation providing radio dispatch services (hereinafter collectively referred to as Blount) against PPA.3 Because we
In April of 2006, Blount filed a petition for review against PPA in this court‘s original jurisdiction. In the petition for review, Blount seeks a declaration that the taxicab and limousine regulations promulgated by PPA in 2005, pursuant to Act 94 of 2004 (Act 94),4 which effectively transferred the regulation of the Philadelphia taxicab and limousine industry from the Pennsylvania Utility Commission (PUC) to PPA are invalid and unenforceable.5 Blount contends, inter alia, that the regulations were not properly promulgated in accordance with the Commonwealth Documents Law6 and that PPA failed to apply the General Rules of Administrative Practice and Procedure.7 Blount also requests injunctive relief, a writ of mandamus, and/or writ of prohibition.
In response, PPA filed preliminary objections to Blount‘s petition for review.8 By order dated June 19, 2006, we directed the parties to address the issue of whether PPA is “the Commonwealth for the purposes of our original jurisdiction” in their briefs on the preliminary objections or in separate briefs. Shortly thereafter, on June 28, Blount filed a Motion for Preliminary Injunction and/or Special Injunction (Motion for Injunction) seeking to enjoin PPA from implementing and enforcing the taxicab and limousine regulations. In that motion, Blount contended that the implementation and enforcement of these regulations would cause immediate and irreparable harm. Following a hearing, the motion was dismissed due to Blount‘s failure to show irreparable harm.
Prior to addressing PPA‘s preliminary objections, we must first determine whether this court has jurisdiction over the action. The Judicial Code provides that we have original jurisdiction over all civil actions brought against the “Commonwealth government” unless one of several enumerated exceptions applies. See
The government of the Commonwealth, including the courts and other officers or agencies of the unified judicial system, the General Assembly and its officers and agencies, the Governor, and the departments, boards, commissions, author-
ities and officers and agencies of the Commonwealth, but the term does not include any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision or local authority.
The Judicial Code defines a “Commonwealth agency” as “[a]ny executive agency or independent agency.”
Boards, commissions, authorities and other agencies and officers of the Commonwealth government which are not subject to the policy supervision and control of the Governor, but the term does not include any court or other officer or agency of the unified judicial system or the General Assembly and its officers and agencies.
Id. “Executive agencies differ from independent agencies only insofar as they are subject to the Governor‘s supervision and control whereas independent agencies are not. Notably, the Judicial Code does not define the terms political subdivision, municipal authority, local authority, or local agency.” James J. Gory Mech. Contracting Inc. v. Philadelphia Housing Auth., 579 Pa. 26, 31 n. 7, 855 A.2d 669, 673 n. 7 (2004). The Statutory Construction Act, though, defines a “local authority” as “a municipal authority or any other body corporate and politic created by one or more political subdivisions pursuant to statute.”
This court, on prior occasions, has found PPA to be a local agency or authority and not part of the “Commonwealth government.” See City of Philadelphia v. Philadelphia Parking Auth., 837 A.2d 1267 (Pa. Cmwlth.2003); E-Z Parks, Inc. v. Larson, 91 Pa.Cmwlth. 600, 498 A.2d 1364 (1985), affirmed without op., 509 Pa. 496, 503 A.2d 931 (1986). See also Philadelphia Parking Auth. v. Am. Fed‘n of State, County, Mun. Employees, Dist. Council 33, Local 1637, 845 A.2d 245 (Pa.Cmwlth.2004).10 In City of Philadelphia,11 we addressed whether changes to the Parking Authority Law12
As can be seen, what makes an authority a “local agency” is not who appoints the board members, but who creates the authority. Despite the fact that Act 22 changed who appoints board members to PPA, that Act does not change the fact that it was the City who created PPA or that in cities of the first class-Philadelphia-both then and now, only the city can create a parking authority.
Id. at 1272-73. Thus, we concluded that “because PPA was created by the City, it is, by definition, a ‘local authority.‘” Id. at 1273. Therefore, we determined that our prior conclusion in E-Z Parks, that PPA constituted a local agency remained controlling and that the action did not fall within our original jurisdiction. Consequently, we transferred the matter to common pleas.
Furthermore, in Gory, in determining the status of the Philadelphia Housing Authority (PHA), “[o]ur Supreme Court established the criteria by which we determine whether an entity is a commonwealth agency.” Banacol Mktg. Corp. v. Penn Warehousing & Distrib., Inc., 904 A.2d 1043, 1046 (Pa.Cmwlth.2006). In Gory, our Supreme Court articulated the following standard:
[W]hen determining whether an entity is a Commonwealth agency for jurisdictional purposes so that cases against it must be originally heard in the Commonwealth Court, the pivotal factors to be looked at are whether the entity operates on a statewide basis and is predominantly controlled by the state. As we explained in [T & R Painting Co. v. Philadelphia Housing Authority, 466 Pa. 493, 353 A.2d 800 (1976),] where the entity acts throughout the state and under the state‘s control, it is clearly meant to be a Commonwealth agency for jurisdictional purposes so that it may be sued in the Commonwealth Court. In contrast, where the entity operates within a single county or municipality and is governed in large part by that county or municipality, the entity must be characterized as a local agency and sued in the trial courts because the trial courts will be more familiar with the issues surrounding the entity‘s operations and organizational make-up.
Gory, 579 Pa. at 40, 855 A.2d at 678 (emphasis added). “The concept of jurisdiction is designed to insure the availability of the most practical and competent forum for the airing of a particular grievance.” Id. at 39, 855 A.2d at 678 [quoting Scott v. Shapiro, 19 Pa.Cmwlth. 479, 482, 339 A.2d 597, 599 (1975)]. The Gory court observed that “the Commonwealth Court was created to serve as an original forum for deciding issues of statewide concern that needed to be uniformly decided.” Id. In determining PHA‘s status, the court noted that the governing body of the city or county in which a housing
Because these cases were decided before passage of Act 94, we must determine whether its impact on PPA changes that body‘s status as a local agency.15 Prior to the enactment of Act 94, the PUC regulated taxicabs and limousines on an exclusive basis.16 As noted above, Act 94, in effect, transferred the regulation of the Philadelphia taxicab and limousine industry from the PUC to PPA.17 In general, for a taxicab or limousine to operate in Philadelphia, it must have a certificate of public convenience issued by PPA.
A taxicab or limousine authorized by a certificate of public convenience issued by PPA may transport persons: 1) between points in Philadelphia; 2) from any point in Philadelphia to any point in the Commonwealth; 3) from any point in the Commonwealth to any point in Philadelphia if the request for service for such transportation is received by call to its centralized dispatch system; and 4) from any point in Philadelphia to any point outside the Commonwealth as part of a continuous trip.
Furthermore, the legislative findings of the General Assembly provide insight into the purpose of Act 94:
Due to the size, total population, population density and volume of both tourism and commerce of a city of the first class, it may be more efficient to regulate the taxicab and limousine industries through an agency of the Commonwealth with local focus than an agency with diverse Statewide regulatory duties. Well-regulated local focus on improving those industries can be an important factor in the continual encouragement, development, attraction, stimulation, growth and expansion of business, industry, commerce and tourism within a city of the first class, the surrounding counties and this Commonwealth as a whole.
With respect to the amount of control the Commonwealth maintains over PPA, PPA is now required to submit an annual budget and fee schedule necessary to advance the purposes of Act 94 to the Appropriations Committees of the Senate and the House of Representatives.
Applying this court‘s analysis in City of Philadelphia, as well as the standard set forth in Gory, we conclude that Act 94 does not disturb PPA‘s status as a local authority or agency. In City of Philadelphia, we focused on who has the power to create PPA. Act 94, like Act 22 before it, does not “change the fact that it was the City who created PPA or that in cities of the first class-Philadelphia-both then and now, only the city can create a parking authority.” City of Philadelphia, 837 A.2d at 1273. See also
Furthermore, applying the Gory test, PPA does not operate on a statewide basis and is not predominantly controlled by the Commonwealth; PPA‘s authority is limited to taxicabs and limousines that have a nexus to the City, such as a trip that begins or ends there. See
Because nothing in Act 94 changes the analysis which had led this court consistently to conclude that PPA is a local authority for purposes of jurisdiction, we reaffirm those holdings. Consequently, we transfer this matter to the Court of Common Pleas of Philadelphia County.
AND NOW, this 9th day of March, 2007, we hereby transfer the above-captioned matter to the Court of Common Pleas of Philadelphia County.
Ronald BLOUNT, Individually and as president of the Taxi Worker‘s Alliance of Pennsylvania, et al. v. PHILADELPHIA PARKING AUTHORITY
Commonwealth Court of Pennsylvania
March 9, 2007
DISSENTING OPINION BY President Judge COLINS.
I must dissent from the well-presented opinion of the majority. For jurisdictional purposes, the Philadelphia Parking Authority (PPA) is a Commonwealth Agency.
As noted by the majority, Act 22 of 2001 (Act 22)1, recodified the Parking Authority Law2 and made dramatic changes to the substance of the law. Act 94 of 20043 effectively transferred the regulation of the Philadelphia taxicab and limousine industry from the Pennsylvania Utility Commission to PPA.
As further noted by the majority:
In general, for a taxicab or limousine to operate in Philadelphia, it must have a certificate of public convenience issued by PPA.
53 Pa.C.S. §§ 5714(a) ,5741(a) .A taxicab or limousine authorized by a certificate of public convenience issued by PPA may transport persons: 1) between points in Philadelphia; 2) from any point in Philadelphia to any point in the Commonwealth; 3) from any point in the Commonwealth to any point in Philadelphia if the request for service for such transportation is received by call to its centralized dispatch system; and 4) from any point in Philadelphia to any point outside the Commonwealth as part of a continuous trip.
53 Pa.C.S. §§ 5714(c) ,5741(a.1) .
Majority opinion at 220.
The members of the PPA are appointed by the Governor of the Commonwealth and no longer by the Mayor of Philadelphia. Further, the Appropriations Committees of the Senate and House of Representatives have the power to disapprove of the proposed budget of the PPA.
This case is on all fours with the standards recently enunciated by this Court in Banacol Marketing Corporation v. Penn Warehousing & Distribution, 904 A.2d 1043 (Pa.Cmwlth.2006).
For these reasons, I would overrule the preliminary objections.
Judge McGINLEY and Judge SMITH-RIBNER join.