City of Philadelphia v. Rendell

ORDER NOW, December, day

AND 20th

2005, the order of State Charter above-cap- in the Appeal

School Board hereby AFFIRMED.

tioned matter A.2d 75. See also PHILADELPHIA, John CITY OF Street, capacity as official F. his

Mayor Philadelphia,

Petitioners RENDELL, in his official

Edward G.

capacity Common as Governor of the Phil and The

wealth Authority, Respon

adelphia Parking

dents. Pennsylvania.

Commonwealth Court

Argued March Dec.

Decided Ewing, Philadelphia, pe- N.

Eleanor titioners. Attorney Forney, Deputy

Susan J. Chief General, for Edward G. Ren- respondent, dell. Putnam, Jr., Philadelphia, for

Alfred W. respondent, Philadelphia Authori- ty. COLINS, Judge, President

BEFORE: SMITH-RIBNER, Judge, PELLEGRINI, Judge, and LEADBETTER, Judge, and COHN JUBELIRER, SIMPSON, Judge, and LEAVITT, Judge. Judge, and Judge BY LEAVITT. OPINION Court, original juris- in our Before this diction, objections of Gov- preliminary and the Philadel- ernor Edward G. Rendell (Authority) Parking Authority phia Philadelphia complaint filed F. Mayor Philadelphia, John City), a re- (collectively, challenging Street commonly to what cent amendment Law, called the §§ City’s C.S. 5501-5517.1 The core areas of following the Commonwealth II, a phenomenon World War viewed as a challenge to this statutory amendment is problem impacting statewide those resid City’s it interferes with the home rule ing inside and outside the affected cities. powers. already It has been determined cities, The Parking Law enabled our Court the Parking townships boroughs, and first class to cre legislation Law is extrinsic to provide, ate authorities in order to and, thus, powers rule administer, collect from vari revenue amendment to transfer control of Au- types Any park ous facilities.4 thority from the to the Governor did ing authority enabling created under this infringe upon home rule act is not considered instru powers. case, In this we consider whether but, instead, mentality “pub constitutes a another Parking amendment Au- body lic corporate politic, exercising thority Law, which the Authority’s extends public powers of the Commonwealth as an of administration in Phil- parking agency § thereof.'” 53 Pa.C.S. 5505. adelphia years, for ten requires different Among the flowing parking benefits from Deciding not, conclusion.2 that it does we authority’s designation agency as a state sustain preliminary objections. ability pro was the finance construction jects applicable free debt limits LEGISLATIVE BACKGROUND governments5 right local to en Parking 1. Authority The Law. gage business-type oper ations governments might from which local Although legislative background generally See precluded. otherwise thе Parking Authority has aptly Law been Pennsylvania Transporta Southeastern cases,3 summarized in earlier a brief his tion v. Authority Signal, Union & Switch torical review material to understanding Inc., 400, 662, 161 A.2d Pa.Cmwlth. 637 present issues in the case. The Gener (1994). 664-65 al Assembly Parking enacted the Authori ty in response Law 1947 growing (Au- to the Parking Authority The Philadelphia demand for off-street parking the urban thority) by City was created in 1950 ordi- 1. The Law City’s complaint. was enacted as Counts VII VI and of the 5, 1947, 458, formerly, Act of June supplemental by P.L. Second filed 53 briefs were 341-356, 25, 2005, §§ repealed P.S. part Authority July and it was as Governor and on 19, 25, by City Mayor August of its codification the Act June on P.L. 287. 2005. See, Schweiker, 591, 598, Argument e.g., 3. 579 Pa. 858 prelimi- before this Court on (2004) (citing City nary objections A.2d 79 n. 3 Philadel originally was scheduled for phia Philadelphia Parking Authority, v. September but it was rescheduled to 430) 441, (2002) (Say 798 A.2d parties supplemental allow the to file briefs lor, J., id., 449-52, concurring); at 798 A.2d applicability on the Supreme Court's C.J., dissenting); (Zappala, City 173-75 Philadelphia decision in v. Parking Philadelphia Philadelphia Authori (2004). Argument 579 Pa. 858 A.2d 75 (Pa.Cmwlth. ty, 837 A.2d 1268-69 was heard еn before this Court banc on 2003)). argument, Subsequent March our Supreme Court rendered its decision in Penn- Fund, generally 4. See sylvanians Pa.C.S. 5504. Against Gambling Expansion Commonwealth, Inc. v. (2005). 12; IX, filing §§ This Court directed the 5. See Pa. art. the act Const, supplemental frequently second briefs to address the im- Government referred as Local Act, pact holding §§ Court's Unit Debt 8001-8285. bonds, Parking outstanding, to the some adopted pursuant

nance Authority Initially, development pro- parking-related Law. finance only garages. operated off-street Airport. and at the jects within present, to the operations continue These guarantor has as on the served through out leases with and are carried of a default in the event bonds City.6 guarantee Authority. made have revenue from knowing would Law amend- was contract; parking service bond- cer- delegate cities to ed allow functions to holders also made aware this reve- tain on-street were stream, ‍​​‌‌​‌​‌‌‌‌‌‌‌‌​​​​​‌‌‌​​​‌‌​​‌‌​​​​​​​‌‌​​‌‌‌​‌‍functions, such City. guaran- authorities. Some these nue to the When collecting issuing parking as tickets made and the service contracts tee was meters, are revenue- money from executed, position in a was were required to be This revenue is producing. presented the' these to control risks pro- municipality to the distributed back because, effect, relationships contractual by ordinance or resolution.7 Consis- vided Authority. Until controlled tent this amendment with recently, Authority’s gov- five-member 1988, Law, enacted Authority City, the by Mayor. the erning appointed board was Authority the delegating an ordinance' to the action are three present At issue in n ser- City’s parking much the Authority Parking to the amendments vices, previously had been handled which 9, Law, 22 Acts and Act and 8 which City.8 The by multiple departments control changed the extent the Authority an City and the executed Authority. over the which “Agreement Cooperation” under City’s sys- the Authority the administers 2. Act 22. reve- parking.9 tem The net of on-street Authority on- by nues the from collected 19, 2001, P.L. The Act of June by City have been used the parking street (Act 22) law signed wаs into No.2001-22 for operations. 22 Ridge.10 Thomas Act by then-Governor Authority Parking the existence, Authority provision added the

Throughout its only to cities of the first applicable tax-exempt long-term has issued numerous Law— tickets, booting issuing parking and and tow- City particular, to the Authori- the leases necessary ing illegally parked the These functions ty buildings for vehicles. the land and alia, garages Authority parking by, City's sur- the operate performed and inter were at the Philadel- Department, face lots within the and Department, Police De- Streets Airport. paid phia International rent Inspection, partment of Licenses facility parking the Department. Revenue approximately has amounted revenues $21,500,000 past per year the several Agreement April entered into in 9. The first generated years. Most of these revenues City for a renewed second 1983 was Airport, parking located facilities ten-year . term 1993. by the were built on land owned through primarily bond issues. and financed alia, Au- inter codified thority through 5517 Law Sections at. 5510(a)(4). note 26. See 7. 53 Pa.C.S. infra Pennsylvania Consolidated Title Statutes, §§ See 53 Pa.C.S. 5501-5517. included parking functions 8. The on-street Commonwealth, meters, Philadelphia maintaining parking installing and 542, 581-584, A.2d 590- 582 n. regulations, promulgating process (2003)(explaining 591 n. installing signage, issuing parking permits, fines, codification). statutory collecting parking receipts and meter power to for all on-street func- supplanting mayor’s sponsibility class— appoint Authority’s governing board tions. authority in

by placing appointment required governor.11 Act 22 also 2. Acts 8 and 9. Authority to up transfer million of $45 earnings Philadelphia its retained Following announcement School District and to make subse- similar Agreement terminate the intended to quent upon annual transfers based Cooperation, Assembly passed General availability of earnings. amending further two statutes § 5508.1(q).12 first, Authority Law. The the Act of Feb- (Act 8),14 ruary P.L. No.2004-8 complaint filed a in this Court’s jurisdiction City to original against required the continue to use then-Governor seeking Mark Sehweiker that Authority declaration to hаndle on-street 22 unconstitutionally infringed upon District,' the School an transfer Philadelphia’s Home Rule and vio basis, Charter annual the maximum on- portion of “statutory lated certain pledges” street revenues deemed available retain would control over the Authori Authority’s by the Board. Act 8 made no ty until all bonds fully were met disc expenses provision for of the Authori- harged.13 Governor and the Sehweiker ty, including need to make interest preliminary objections filed in payments to bondholders. nature of a demurrer to all counts of signature Act 8 awaited the While City’s complaint. This Court sus Governor, General Assembly passed the preliminary objections, tained statute, 10, the Act February second of Pennsylvania Supreme Court affirmed. (Act 2004, 69, 9), P.L. No.2004-9 which City Philadelphia v. 817 of of repealed provisions the aforementioned (Pa.Cmwlth.2003), A.2d 1217 aff'd, Agreement Act 8 and extended the of Co- 591, (2004). 858 A.2d 75 the While Su 31, 2014, effectively operation until March preme Court appeal pending, City was the by termination nullifying given the notice notified the of its intеnt ter Agreement City Authority. Additionally, the the minate of as the Cooperation 31, 2004, of March and to re- Act for annual provided reassume 9 transfers of $25 III, Although original challenges. 11. the five of the In members home rule Counts II and terms, board continued to out the beneficiary serve their City that it averred was the the immediately of members in- number was “statutory pledges” 12 contained in Sections eleven, creased with the six additional Law, Parking Authority and 53 13 of appointed by members the Governor. 5512(b), 5513(a). infra, §§ note Pa.C.S. See original positions five members' were then accompanying V 25 text. Counts and phased expired, leaving out as their terms through asserted various IX constitutional comprised ap- gubernatorial of the board six claims, i.e., impaired that con- Act certain 5508.1(e). pointees. § 53 Pa.C.S. obligations City, of the tractual constituted special law or local that was enacted without Subsequently, 5508.l(q) § 12. was notice, improperly delegated proper munici- 16, by July repealed Section 3 of the Act commissiоn, special pal power was and 2004, repeal P.L. 758. This occasioned was containing a bill than part enacted as more 5508.1(q.l), § addition of 53 Pa.C.S. subject. one effectively replaced Pa.C.S. which 5508(q). § 6109(g), § repealed by 14.75 Pa.C.S. Section complaint, 13. Counts I and IV of the Feb. P.L. No. Act of Sehweiker, subject was the raised which 10 of the Authori- net reve- found million of the City, transfer the reve- and assert that Act ty nues to the Law. Counts VI VII million to the School nues in excess III requirements $25 9 violates District. 53 5508.1. Pa.C.S. that each Pennsylvania Constitution in each house and bill be read three times PRESENTED ISSUES purpose change. Fi- original present action on City VIII, initiated the City argues nally, in Count challenging constitu- April overturn Act 9 we should should this Court Specifically, Acts 22 9.15 tionality of find those of Act 8 provisions also invalid petition, City I Count asserts repealed by Act Act violates amended objections,16 preliminary In their home rule Pennsylvania guaranteeing law assert that Governor II, In asserts City. Count City’s complaint fails to state a cause that Act as amеnded breach- of: upon alleged of action based violations “statutory pledges” es contained certain doctrine, “statutory Rule the Home Law. In Count pledges,” Pennsylvania or the Constitution. asserts that Act was enacted arguments positions consider We violation of Article III of parties presented on each of these Constitution, alia, which, prohibits inter legal questions.17 three one legislation containing than more IV, subject. contends In Count HOME RULE violates the to home right Act 9 rule, the issue of V, On rule. asserts Count in Counts I and IV of the “statutory pledge” City Act 9 asserts breaches another challenges considering prelimi- to sustain 15. 17.In whether raises constitutional demurrer, argues objections it are distinct nary both Acts 8 in the of a nature challenges 22 in from the it raised to Act accept well-plead- all this Court must as true Substantively, City only ad- Schweiker. allegations ed fact and all infer- material effectively repealed dresses Act because reasonably therefrom. Stone ences deduсible maintains, however, that if Act Act 8. The Agency, Depart- Inc. Insurance v. and Edwards of be provisions 9 is Act 8 will invalidated Insurance, 266, 616 ment 151 Pa.Cmwlth. of challenges ''unrepealed'’ and to Act 8 will 1060, (1992). accept We need not A.2d 1063 to City’s Opposition Brief in remain viable. law, of infer- as true conclusions unwarranted analysis Preliminaiy Objections at 13. Our facts, allegations argumentative ences from 9, but acknowl- primarily on Act we focuses Commonwealth, expressions opinion. De- to edge issues related that substantive Portnoy, partment Public v. 129 Welfare indistinguishable and 9 and both Acts 8 469, 336, (1989). 566 Pa.Cmwlth. A.2d 338 legal of Act 9 that resolution of the effect test whether it clear from all of the The is is 8. any challenges to Act resolves pleaded pleader that the will be unable facts prove legally doctrine to Respondents also invoked the to facts sufficient establish 560, pendens stay present pending Firing lis to action right Kephart, 466 relief. v. City’s appeal 833, (1976). of the of Schweiker outcome de- A.2d 835 A 353 Supreme The of the Court. decision unlеss face murrer will not be sustained Supreme September ren- Court on law complaint shows that the will objection in- moot. Governor dered this recovery, any permit doubts should proper party dividually is not a asserts that he against sustaining the demurrer. resolved involving he is not Act 9 because claims Providence, Township Nether 124 Gaster charged of those amend- with enforcement (1989). Pa.Cmwlth. A.2d light disposition of ultimate ments. In of our matter, specific we need not consider this objection. grants implemented by City power that Act the Home Rule Act Complaint as functions, it any divests the of control over on- all municipal over function and, in Philadelphia18 authority, street delegates parking, to an such as therefore, City’s violates Home argu- Rule function. The must be a Pennsylvania rights under the Constitu- It flows from a false ment is circular. tion, the First Class Home Rule Act City’s all premise, namely, powers (Home Act),19 Rule the Philadel- fact, from the Home Rule Act. flow Charter,20 Home Rule phia ordinances ran City’s authority business Philadelphia City оf the Council. Compl. Law, stems from the ¶¶ 64, disagree. 77. We explained not from the Home Rule Act. As Schweiker, Authority in de- is not a Although right to home rule is Rather, partment City. of the guaranteed Constitut Law, a non-home rule enact- ion,21 right through is effected en ment, Authority’s is pow- the source legislation abling such the Home Rule er, 5504(a), § 53 Pa.C.S. and the source of Act, powers which identifies those that fall City’s delegate power, func- the category powers within of home rule Authority, tions those that do not. Section 17 of the 5505(a). § grants Rule Act Home to first class cities charter, i.e., adopt a home rule Phila Commonwealth agen- is delphia, “complete powers legislation cy, empowered engage exclusively and administration in relation to its munic commercial, i.e., functions; its proprietary § ipal functions.” 53 P.S. This generating “business” is revenue from powers subject grant made limita in garages. cars on streets and tions, restrictions regulations enumer Act, Because Section the Home Rule Act, ated Section 18 of thе Home Rule § city 53 P.S. from prohibits 53 P.S. 13133. See activities, engaging proprietary the Su- otherwise, 858 A.2d at 84. Stated preme rejected argument Court these identify limitations those activities exercising Schweiker control over that do rale municipal constitute home an authority performs proprietary functions. One such non-home rale munic functions falls rule within home ipal undertaking function is the of proprie powers. The Court reasoned tary activities. City’s appointment power that even if the fell scope general “within the that Section acknowledges powers granted by it rule the Home Rule prevents engaging businesses, enacted, Act when it except sepa- as authorized in was does not follow However, Legislature rate non-home rule that the could not remove such legislation. Schweiker, City argues that date.” powers the because Section 17 of at a later City’s authority premise parking” parking” 18. is no the "On-street There for "off-street Authority only Parking parking inherently municipal defined in the that is an func- Law, § Pa.C.S. in the 5503. tion. is not listed General Municipal power, general law street under 1949, 21, 665, 19. Act P.L. as amend- highway, safety any April health and other ed, §§ 53 P.S. 25, 1895, subheading. Act of June 13101-13157. P.L. amended, §§ as 53 P.S. 101-70001. §§ 20. See 351 Pa.Code any not listed 1.1-100-12.12-503. is also subsections of April the Home Rule Act. Act P.L. Const, amended, IX, §§ 21. See 53 P.S. 2. 13101-13156. art. - words, City’s with the In Act 9 interferes home rule Pa. at 858 A.2d at 87. other an issue addressed Assembly express power, “retains the Su- the General holding in scope Schweiker. authority preme to limit the Court’s constitutional gover- home any municipality’s rule question in The threshold Schweiker was explained nance.” Id. The further Court appointment to whether members may imposed by that limitations be these required Authority’s board the exer- Act, to the Home Rule legislation extrinsic Schweiker, power. of a rule cise home i.e., statutes, particularly where both 606-07, 858 A.2d at The Pa. at 84-85. first pertain Home Act Rule held that it did The Supreme Court not. Supreme Court Finally, class cities. question very threshold this Court is con- any there is held that “to extent similar, ie., responsibility whether the enactments, 22Act flict between these two a on-street activities is service in a City’s rights limits rule home is municipal governed core function that IX, with Article manner that is consistent exclusively ‍​​‌‌​‌​‌‌‌‌‌‌‌‌​​​​​‌‌‌​​​‌‌​​‌‌​​​​​​​‌‌​​‌‌‌​‌‍by home think not. rule. We 2 of the Constitu- Law expressly Accord- tion.” Id. at engage authorized that this ingly, Court held managing revenue-producing project sustaining prelimi- properly Court acted Philadelphia. on-street Since nary objections City’s claims that then, part this at least on-street Philadelphia’s Home Rule violated pro- has been understood be a Charter. function, as opposed to the kind of prietary n In brief to supplemental its first governed exclusively by function municipal Court,22 concedes that of home rule As the powers. the exercise chal- decision it from precludes Schweiker Schweiker, it observed Supreme Court the trans- lenging, principles, on home rule argue exercising that control is “difficult to mayor the.governor fer from the authority performs an these over appoint Authority’s board power to is [parking] functions nonetheless included also concedes members. powers.” [home rule] within such home Schweiker clarifies that Pa. at 858 A.2d at 87. powers rule do not extend Following logic, this same re- Schweiker functions, parking. Nev- as off-street such us to quires conclude ertheless, argues Schweiker assigned duties challenges. Act 9 of its dispositive governed by functions municipal are not managing Essentially, City argues home rule. park- parking, unlike off-street By negate Act 9 did not rule ing, implicate powers. does purely of a function.23 Agreement Cooperation, control extending the case, any as con- filing of Section 31. In (explaining the supra 22. See note 2 matter). dissent, delegation to supplemental briefs in this execute briefs and ceded permissible; power law is is the to make that Act 9 violates dissent contends delegated. law cannot III, the 31 of Section ordinance, gave Parking Authority City, by the Constitution, As- prohibits the General i.e., execute, administer, power to the delegating municipal functions sembly from City’s parking, a and entered into on-street First, entity. this constitutional private to a implement Cooperation Agreement to that any parties. by issue was not raised of delegation. Act 9 extended contract. Second, delegate municipal Act 9 does not City Council of the Act 9 did not divest the derogation of private entity, in a functions to governed Accordingly, pre- we sustain parking The on-street activities ments. liminary objections to Counts I and IV proprie- by Authority Law are the Petition. tary activities that fall the reach of outside Schweiker,24 power, home rule as held in STATUTORY PLEDGES Court determined in

Schweiker that “Act 22 City’s limits turn next to Counts II and V We rights home rule in a is con- manner that complaint, in which it asserts the Pennsylvania sistent with Constitu- 22 and 9 violate certain “statuto Acts Id. at tion.” Id. at 858 A.2d at 88. Law. ry pledges” Parking Authority Thus, City argues as Specifically, that Act give way must is a Charter where there by further implemented confirmed conflict it and between amendments “statutory pledges” in breached Sections Authority reasoning ap- Law. Parking Authority This Law.25 and 18 of equal plies argues with force to the Act amend- The that Act 9 also breached ability legislate city subject bly, engage any proprie- on the shall and no parking tary private except that does not involve the or business as authorized aspects parking. by Assembly. Notwithstanding of on-street the General act, powers grant of contained in this Authority give The dissent reads Act 9 to to, city powers contrary or no shall exercise veto, legislative relying language of, enlargement powers or in limitation [A]uthority [Cjity, by "[t]he mutual by granted Assembly acts of the General consent, may modify system which are— parking regulation permitted by to the extent applicable law.” The Law regula- makes clear that "on-street (b) Applicable every part of the Com- administration, supervi- tion” involves acts of monwealth. enforcement, legislative sion and not acts. 53 (c) Applicable to all Com- the cities of the 5505(d)(21). § Specifically, Pa.C.S. those au- monwealth, to, inсluding, but not limited research, conducting thorized acts include is- providing disability com- those acts for the tickets, suing collecting fines from police pensation firefighters. officers and booting towing ticket scofflaws and ille- added). (emphasis § 53 P.S. parked gally vehicles. Pa.C.S. 5505(d)(21)(i)-(v). § language We read the 5512(b) 5513(a) Park- Sections by require found offensive the dissent Authority ing following pro- Law contain the to consult the about the visions: aspects of on-street administration (b) au- authority is Limitation. —The 5505(d)(21)(i)-(v). may listed It anything impair do thorized to which will may pass Council ordinances security obligations of the holders of the with Act conflict but this does not authority agreements or violate with implicate Article Section 31. This is a their benefit. them or for simple preemption matter of narrow on one 5512(b). i.e., § 53 Pa.C.S. regulation.” subject, "on-street (a) case, 5505(d)(21). Power authorities. —The Common- § any 53 Pa.C.S. per- pledges agrees any wealth to and with attempted has not act to veto an son, corporation agency or or firm Federal рossibility Council. The mere of that subscribing acquiring to be to or the bonds give event does not rise to a of action. cause construction, otherwise, authority issued for the ripe Stated claim is not our extension, improvement enlargement presented because it is not review here. part project or thereof that the Common- provides 24. Section 18 of the Home Rule Act rights not limit or alter the wealth will part: in relevant chapter authority in the until vested city fully any powers No shall exercise or author- all the interest on them are bonds beyond discharged. ity city except limits such met and 5513(a). an conferred act of the General Assem-

932 the Parking Authority in 10 of the Amendments “statutory pledge” Section Authority City strains Parking Law.26 examples Law are such limitations. Schweiker, spe- in its argument that in We find no merit the claim that “statutory cifically the issue of addressed 10, 12 “pledges” :in of the Sections 13 pledges,” dispositive is not of the Authority are Parking legally Law en- present claims. by the General promises forcеable Assem- Schweiker, reject- In the Court bly powers granted the never to alter City’s theory legislature ed the the a pledge, in that statute. Such if “pledges” can that immunize a stat- make found, violate one of would itself the most any ute from later amendments. With rule, ie., of democratic principle basic in respect “pledge” to the so-called body legislative may one bind a succes- Law, Parking 12 Mitchell Chester legislative body. sor “[wjhile provision Court noted this Authority, Housing 132 articulates a restriction (1957). Accordingly, A.2d 877 they under Authority’s powers as existed objections preliminary to Counts II and V statute, prior version of the it does are sustained.28 on the pledge part constitute Legislature powers never to alter those CONSTITUTIONAL CHALLENGES Schweiker, 579 Pa. at future.” Marshall, In re (citing at 89 A.2d Single Subject. (1949) (“Leg- asserts in Count III of its alter, make, power power islative unconstitutionally petition that Act was laws.”)).27 Further, the Su- repeal containing more than a enacted as a bill preme determined that the General Court “single of the single subject, violation reg- Assembly’s authority constitutional subject” Sec- requirement of ulate home rule includes governance Constitution. ability powers by legis- limit tion 3 rule Rule Act. The raised lation extrinsic to the Home this same issue 5510(a)(4) standing including obligations, 26. Section of the those to upon spe- provides Law bondholders. The focuses follows: as a dis- cific determination factual basis for (4) money the case collected or re- tinguishing present Schweiker from case. authority a mu- on behalf of ceived general proposition, ignores reaf- 5505(d)(21) (relat- nicipality under section the General Assem- firmed in powers), money ing purposes regardless may change existing bly laws municipal- pledged use of shall be grant- protections powers and were whatever ity municipality as and disbursed to the also Associa- ed therein. See Commonwealth provided by ordinance or resolution. v. Board Edu- tion School Administrators 5510(a)(4). cation, Philadelphia, 740 School District of (Pa.Cmwlth.1999), (noting A.2d also that the The Schweiker court found rights granted a statute are not "that under earnings” provision now-repealed "retained and no constitution- contractual in nature ... gave primacy of Act 22 bondholders’ they changed rights implicated are or al if and, therefore, consti- did not interest eliminated.”). rea- tute a breach of Section 12. The Court not, fact, impair the Act 22 did soned that n disposition of the substan- 28.In view of the place interests bondholders issues, necessary to tive it is not address guarantor bonds greater at a risk as proper argument he is not a Governor’s "available” the School because the monies party, procedural claims or the raised include District are net revenues do not any Authority’s out- Counts VI and VII. funds needed to meet Schweiker; however, the Supreme sylvanians Against Court Gambling Expansion Fund, Commonwealth, determined that the claim was abandoned Inc. v. appeal.

on Notwithstanding (2005), the fact that 877 A.2d 383 and announced a new no final decision on the merits of this issue two-prong inquiry determining for wheth- rendered, was ever concedes its First, legislation er violates the rule. a first supplemental brief to this Court reviewing court must compare the final dispositive Schweiker is “single sub- purpose legislation original pur- to its ject” Therefore, claim. since the has pose and determine whether there has issue, again once abandoned this we sus- been an alteration or amendment of the tain preliminary objection to Count 317-18, original purpose. Id. at III. Second, at 408-409. a court must consider whether, form, in its final the title and Original Purpose. deceptive. contents of the bill are Id. at VI,

In Count asserts that 318, 877 A.2d at 409. the enactment of Act 9 violated Article The linchpin of the first prong of the Section 1 of Pennsylvania Constitut analysis defining original is purpose ion,29 which bars the alteration of a bill to bill. This has been explained changes extent original the bill’s Supreme Court as follows: purpose. In support, notes that Regarding the determination of orig- original purposes of Bill House inal purpose legislation, recog- we (Act 9) (1) were: to revise the rеsidency nize legislative pro- the realities of the requirement for members of parking au cess which can involve significant (2) thorities; clarify voting rights changes legislation hopes (3) officers; police and to authorize munici consensus, and “expectation” palities to remove fluoride from their pub legislation will be transformed during ¶57. lic supplies. water Compl. House Furthermore, the enactment process. Bill 1785 was considered for a third and our Court is loathe to substitute our final time passed by both the House judgment the legislative February Senate on 2004. On that pretense branch under the of determin- day, (1) the bill was provide amended to ing whether an change unconstitutional would continue to ad in purpose piece legislation of a has minister and enforce during occurred the course of its enact- (2) regulations in City, that net reasons, ment. For these we believe parking revenues would be directed to the original purpose must be District, thereby repealing sections of Sen reasonably viеwed in ... broad terms. (Act 8). ate Bill 279 provisions relat helpful reviewing is for a [I]t court to police ed to voting rights officers’ and fluo hypothesize, upon based the text of the ridation of public water were deleted. statute, reasonably as to a original broad ¶ 58; Compl. H.B. Leg., Reg. purpose. Given this approach of consid- (Pa.2004). Sess. ering reasonably original pur- broad Our recently Court ad pose, Assembly given the General full dressed the original purpose rule in Penn- opportunity expand to amend and even Constitution, House, 29. passage through its either as to "Passage entitled of laws” states: change original purpose. bill, passed except by No law shall be amended, no bill shall be so altered or bill, and of organization governing duties not run afoul of the and constitu- on an alteration prohibition tional bodies of authorities cities of original changes class; that its making repeals. amendment the first and purpose. (Pa.2001). Leg., Reg. 2001 Sess. S.B. added). (citations omitted) (emphasis Id. deceptive nothing There is about this title. we Applying foregoing principles, persons on puts It reasonable notice purpose of Act original find that legislature amending is terms, includ- reasonably broad viewed changing organi- ‍​​‌‌​‌​‌‌‌‌‌‌‌‌​​​​​‌‌‌​​​‌‌​​‌‌​​​​​​​‌‌​​‌‌‌​‌‍and “the Law au- municipal parking regulation ed the of of zation duties authorities enacted, 9 ultimately Act thorities. As i.e., cities,” Philadelphia. first class contin- provided that would Having did not found Act 9 violate administer on-street ue enforce and III, Pennsylvania Article Section under Philadelphia the terms Constitution, preliminary we sustain un- existing Agreement Cooperation objection to YI. Count 9 is still til 2014. The final version Act purpose of original within its broad Readings. Three 3. parking authori-

regulation municipal judg- ties.30 will not substitute our We complaint, VII of its Count in this Assembly’s ment for the General III, Act 9 violates Article asserts is regard. prong inquiry The first of the Constitution Pennsylvania Section satisfied. “[e]very shall be consid requiring that bill must Turning prong, second we days in each on three different ered form, whether, in its final determine ¶ City argues 95. The Compl. House.” decep- title and contents of the bill were that, changes because of last-minute decep- tive. The final title of a bill is not above, Bill of House described form on “placed persons tive if it reasonable (Act 9) adopted was considered subject notice of the bill.” Id.. fundamentally different from form for A.2d at 409. The final title legislature.31 in the Be the bill introduced 780, printer’s Bill number Senate differences, con cause of these 1186, states: was not considered on tends that Act 9 (Municipali- amending An Act Title 53 ¶ separate Compl. three occasions. Generally) ties disagree. We Statutes, codifying the Consolidated require does . Authorities of 1945 Municipal amended, must, each time a bill it is Law; revising Authorities be three times. As this Court again, read powers of provisions purposes explained: has residency re- authorities and [wjhen or the either House Senate quirements municipal authority gov- bodies; legislation ema- places for the amendments to providing further erning form, (Act original unduly In its House Bill 1785 burden- 30. We nоte it would 9), was topics, three one of which considered expect purpose a final bill some to that the Senate Law. The precisely the same terms used be stated in to make additional amended House Bill 1785 purpose when first introduced. describe i.e., amendments, required continuation impossible requirement would make it Such Authority's park- administration of a bill. amend change ing the alloca- Philadelphia and to tion of revenue derived therefrom. chamber, nating above-captioned hereby in the other matter those SUS- constitutionally amendments do not re- complaint TAINED and the DIS- quire separate days another three of MISSED.

separate [I]f consideration.... were

otherwise and both were chambers con- AND CONCURRING DISSENTING stitutionally required to consider the Judge OPINION BY PELLEGRINI. sepa- conference three on amendments days, legislative process rate the entire its in origin passage This case has of bogged snail-paced would be down which, among things, changed Act 22 other process. appointed majority who of the Boаrd of Pennsylvania Fumo v. Public Utility (Park- Parking Authority the Philadelphia (Pa.Cmwlth. Commission, ing Mayor of Authority) 1998). point case our This illustrates in (City) Philadelphia various state offi- demonstrates, Fumo. record The and the acting through cials Af- Governor. (Act admits, 9) that House Bill 1785 court, firming this our Court in Supreme was on days considered three different in Schweiker, Philadelphia v. different the House and on days three (2004), change A.2d 75 held that did It, therefore, passes the Senate.32 consti not provisions violate the rule scrutiny tutional even though Senate Pennsylvania Constitution because authori- did separate amendments receive “agencies ties were of the Commonwealth” days three in the consideration House of and Assembly the General could have its Representatives.33 preliminary objec way with What is at them. issue this tion to VII Count is sustained.34 case, however, is whether the General As-

CONCLUSION sembly, by passing way Act can have its municipality by vesting with a home rule In accordance with the above-referenced an Parking Authority unelected Board dis- analysis, objec- we sustain all preliminary regarding cretion on street laws tions and Complaint. dismiss the Philadelphia how those and ORDER Act laws should be enforced. Because Constitution, NOW, December, AND violates I day this 20th preliminary objections respectfully in the dissent.1 repealed 32. House Bill 1785 was considered Act 8 declared void shall remain or 7, 2003; 8, 2003; July July House on and on Act be the event that 9 is found to unconsti- September 2003 it was considered and Having tutional. found the enactment of Act passed. It was the Senate constitutional, considered on unnecessary 9 to it is 25, 2003; 9, 2003; November December objections preliminary address the to Count February on 2004 it considered was VIII. passed. Supreme our 1. In Court also held Alternatively, we note in Fumo specific that there no violation of statuto- was Court determined that a III, violation Article ry pledges rights granted under a because directly 4 is Section tied to violation of ... statute are contractual in nature III, Fumo, Article Section 1. 719 A.2d at 14. rights they implicated if no constitutional are have Act Because we concluded that 9 was changed eliminated. is no viola- There III, not enacted in violation of Article III, the Constitu- tion of Article Section 3 of 1, it follows that there was violation of no single regarding subject rule because tion Section 4. subjects municipal two authorities — subjects requested two has Count VIII that authorities—-were inextricably repealed provisions intertwined. Similar chai- this Court rule were statutory challenges and constitutional pending was While the Schweiker ease Court, Act 82 was several counts which al- including before Assembly passed by the General relative provisions lege that Act 9 violates various Parking Authority Law.3 This re regarding home rule as of the Constitution using the quired to continue special well constitutes alleging legislation. Regarding Dis enforcement transfer the School filed prelimi- Governor (School Philadelphia trict of the objections alleging, among other nary District) portion maximum not violate the actions did things, revenues available Pennsylvania Constitution. Authority. While Act 8 awaited Gov preliminary those majority grants February signature, ernor’s the home rule objections and dismisses Assembly further amended the General counts, the dele- reasoning that when 9, by enacting Authority Law Parking local, admittedly gated the responsibility, § 5508.1(q.l)[l], which author functions to parking municipal ized PPA to a on-street the and administer enforce in the the Common- system parking agency of Authority, on-street an the 31, repealed exclusively until March 2014. Act 9 the in wealth, entity engaged an provisions functions, ie., above-mentioned financing and proprietary Authority carry to required Parking the revenue-producing managing of various responsibilities out these consistent with part to that projects are not considered Agreement Cooperation the of an terms and are not governmental activities core and the between to protections afforded within ambit 1, expire January on were due Penn- municipalities rule under the home provided 2004. Act 9 also Park sylvania It states: Constitution. specified ing Authority a would transfer is for this Court question The threshold operation amount of revenue i.e., similar, responsi- very whether regulation system parking of on-street parking activi- bility to on-street service City, and further the Park required function that is municipal is a ties core ing Authority to transfer the excess of that home rule. We exclusively by governed amount to the District. Unlike School not. think Schweiker, then, which involved trans authority an appointment fer over Law Authority expressly a authority held to be commonwealth engage authorized the agency, placing Act 9 involved burdens on project managing revenue-producing police and the exercise of Philadelphia. parking of on-street power. 1982, then, part of on- at Since least has street been understood Mayor then filed a function, proprietary opposed raising be a petition for review with this Court case, 458, formerly 53 I 3. Act of June P.L. lenges have been raised in this 341-356, repealed by §§ Act of June P.S. join majority as with the to the resolution @22 P.L. No. 3. The Law is now those issues. §§ at 53 Pa.C.S. 5501-5517. found § 6109(g), repealed by Pa.C.S. 2.75 municipal func- where the term "core No is February of Act of P.L. No. 9 3, § 31 Article tion” used in either (Act2004-9). See, § 2 of the Constitution.

infra. municipal governed kind of en- regulation function Assembly exclusively by unless the General the exercise of home rule forcement which, case, gives it in this was permission As Court ob- powers. by Schweiker, away Accordingly, taken Act 9. because “difficult served it is longer no engage can argue exercising control over an majority parking regulation, holds authority performs [park- these impinge Act 9 does ing] functions is included nonetheless rule. powers.” such within [home rule] A.2d at holding ignores What this is that what Following logic, this same Schweik- governmental constitutes function is requires us er to conclude that the on- out entity determined that carries assigned

street duties function, comprises but what Authority are not functions (No basic nature function. one governed by home rule. if a war fought would claim was with mer negate Act did not makes a war proprietary control of cenaries that function.) purely municipal public right-of- function. The on- Control out, i.e., lay maintain, way, pave, con governed street activities police trol and its streets and ac- sidewalks Law only governmental but a function tivities that fall reach of outside the governmental performed “the” function power, home rule as held in Schweiker. any municipality. reg On-street parking in Court determined part of governmental ulation is one Schweiker “Act 22 limits ‍​​‌‌​‌​‌‌‌‌‌‌‌‌​​​​​‌‌‌​​​‌‌​​‌‌​​​​​​​‌‌​​‌‌‌​‌‍municipal part function included as of its rule rights in a is manner police to control traffic. power Love consistent with Consti- 320, 597 Borough Stroudsburg, 528 Pa. tution.” Id. at A.2d at (1991); Thus, A.2d 1137 Laubach v. Ea give way Charter must ston, (1943). 32 A.2d 881 where there is a conflict it between and amendments to the Parking Assembly The General has authorized (Internal omitted.) Law. footnotes all to municipalities enforce the 12-13.) opinion at (Slip parking regulation function over agreement into an entering park- with above, From the majority even the does ing park- authorities to enforce on-street dispute that when a city performs on- 5505(21) § ing. provides: 53 Pa.C.S. parking regulation enforcement, street and Notwithstanding anything to the con- governmental However, it is a function. in au- trary chapter, contained this if once function is turned over to a by resolution or thorized ordinance parking authority, majority finds that body parent munic- legislative is function somehow transformed into a administer, en- ipality, supervise and one proprietary parking because a authori- system force an efficient of on-street ty only carry proprietary can out func- in- regulation. This parking paragraph Through legerdemain, tions. this the ma- power: cludes the jority concludes that home rule because a (i) to conduct research and maintain city prohibited in engaging pro- is parking data related activi- prietary functions unless authorized ties; state, engage can in longer no (ii) illegal- parking enforcement is tickets for because it now to issue function, vehicles;

proprietаry engage ly it parked and cannot (iii) city’s poses powers) and and the ordi- municipal- to collect on behalf of January 1, ity charges, including rates and other nances as in effect as penalties, implemented pursuant agreement and uncontested on- to an fines violations; authority city street between the as In January effect on (iv) adminis- to boot or tow vehicle which tering system on-street parking parked or the of which is illegally owner regulation, authority shall have the delinquent payment previously is- powers subject and be same the same tickets; sued January restrictions as were in on effect (v) personal property to own or lease agree- under the ordinances and used connection with the exercise The procedures ment. to be followed provided any power paragraph. this operating system park- of on-street provision, the ultimate though, Under ing regulation budgetary include the municipality control must remain with the procedures respоn- and the allocation of parking regu- over what are the on-street sibility authority between and the parking authority lations to insure that city existing January under only functions, carries out agreement. the ordinances and The au- administration,” the munic- “details of thority city, by mutual con- and, ipality just has it to charged enforce sent, may modify system of on- important, whether desires enter regulation to the extent street arrangement into all. by applicable permitted law. The au- by adding thority city are authorized do all 5508.1(q.l)(l), applies only things necessary or convenient acts cities, Assembly first-class the General implement provisions this sub- away took control from the elected officials added.) (Emphasis section. of the and its citizens over on-street By requiring “mutual consent” over enforcement, parking regulation and a parking regulations, changes on-street by purely governmental municipal function unconstitutionally veto Act 9 vests absolute vesting Parking Authority within the an unelected Board power type regulation. to of control giving power shape it both to by Act 9 requiring did so Authori- parking legislation over forestall on-site ty approval and consent over ordinances of the citizens who act the wishes City dealing of enacted Council representatives its through elected to agreements with on-street By usurping of Council. the discretion carry parking enforcement out on-street they how in- municipal elected officials on unless requiring councilmanie resolutions which, laws, local tend to enforce agreed by an unelected Author- to cavil, function, municipal without is a ity provision provides: Board. This 3, § 31 Pennsylvania violates Article (1) any contrary Notwithstanding provi- part: which reads in relevant Constitution vehicles) or Title to (relating sion of Assembly shall not dele- authority shall enforce The General chapter, this commission, system gate any special private of to and administer a association, any power to regulation city corporation in a first or make, supervise any or interfere city. system The with class on behalf of money, municipal improvement, proper- regulation shall effects, pursuant ty or whether held trust or function and administered otherwise, 5505(d)(21) levy or to taxes or (relating pur- perform to section any function in place whatever. contract to remain that does not added.) (Emphasis legislative approval.5 have In interpreting provision, this our Su 3, § By violating Article 31 of the Penn- said, preme delegation Court has “[i]f fashion, sylvania Constitution in this Act 9 law, power is to make the which involves 9, § 2 necessarily violates Article be, a discretion of what the law shall then provides: Constitution which power nondelegable. If the con Municipalities shall have right authority ferred power is the or discretion power adopt to frame and rule already execute the law determined and charters.A municipality which has circumscribed, then the delegation is unob may any a home rule charter exercise jectionable.” Firefighters Erie Local No. pоwer perform any de- function not Intern. Firefighters Association Constitution, nied by this its home Gardner, 395, 396, 178 406 Pa. A.2d rule charter or Assembly the General Laub, 694 (adopting opinion Judge added.) any (Emphasis time. (1962)). 26 Pa. D. & C. 2d 327 See also Assembly “deny” While the General can District, Philadelphia Wilson v. School municipality power home rule (1937). By 195 A. 90 giving “function,” perform any Act 9 does not the Parking Authority essentially what is “deny” power perform power to control the actions of the “function;” instead, it prescribes way to carry out police power over on-site function, carry has to out a some- parking, Act 9 does give power thing permitted by provision this the Parking Authority carry out the Constitution. administration,” “details of essentially but the power to majority make law over dealing what the on- avoids with the street parking regulations are and require language provision by magically In footnote majority majority makes several concept "pre- confuses the First, points. points emption” it prohibition out that the with the did constitutional agаinst file pointing delegation.” a count "unlawful out that Act 9 takes violates powers away City; no from the still has the point 31. That is the one power parking regulations. to enact on-street agree. on which we analysis of that changed only What has is that it has the provision majority’s is to show that analy- power to do so with the consent of the non- sis leads to an unconstitutional result. Parking Authority elected Board. attempting In analy- to refute the dissent’s majority attempts get over the con- sis, majority goes then on to state: infirmity by attempting stitutional of Act 9 language We read the in Act 9 found offen- "consent,” redefine to mean "consult.” sive require dissent to "consent,” you When have obtain City to consult the aspects about the of on- party give means the who has to it has veto street administration listed in Sec- consult, power cry which is a far from seek- 5505(d)(21)(i)-(v). may tion It be that advice, ing doing you and then what want to may pass Council not ordinances that con- do. Because the unelected implicate fliсt with Act but this does not power governmental Board has "veto” over a simple Article Section 31. This is a function, delegation it an is unconstitutional preemption matter of one narrow sub- power govern- aof invested in elected local i.e., ject, parking regulation.” "on-street mental officials. 5505(d)(21). case, § any Pa.C.S. the Au- majority goes then on to state that it is thority attempted has not to veto an act of ripe away govern- not for review. Act 9 takes possibility Council. The mere of that powers Ci1y they mental from the on how give event does not rise to a cause of going action. to conduct their affairs. How can it otherwise, Stated ripe the claim is ripe not for not be for review and how is the presented our review aggrieved? because it is not here. function, 9, § 2 of the

changing parking regulation on-street Assem- proprie- prohibits function to a Constitution General governmental from a bly directing interfering or how the tary one. It then reasons because from proprietary carry in a busi- can out that function. engage municipality cannot Otherwise, of the Home Rule nothing. ness under Section 18 home rule means 13133,6 Act, provides 53 P.S. you no matter how characterize Because any city proprietary shall engage “no or parking governmental pro- — private except business authorized or a prietary municipal is still function —it then Assembly” the General unconstitutionally Act 9 has with which function, municipal a parking is not interfered. function, is because not a I Accordingly, respectfully dissent. Even implicated. rule cannot be assuming parking regulation that on-street Judge joins in this SMITH-RIBNER function, this proprietary can ever be a dissenting opinion. reasoning is for several reasons. flawed

First, matter, or,

Parking Authority, engaging a meaning business within

proprietary Rule 18 of the Home Act when regulates or on- either of them administers MARCAVAGE, Diener, Michael Mark provision only That for- parking. street Beckman, Beckman, Randall Linda operat- municipalities bids home rule Elshinnawy Startzell, Arlene Susan business,” private ing “proprietary or Major, Nanсy Petitioners team or own a say, professional baseball general public. that is hotel available RENDELL, regulation parking, of on-street with Edward G. Governor cars, towing Pennsylvania, or issuing tickets John Commonwealth Pennsylva- any proprie- Perzel, Speaker said to be a way cannot M. of the tary private Representatives, because it is car- business nia Robert House of public good regulate Jubelirer, Tempore out for the ried C. President Pro Pennsylvania Senate, traffic. Honor- Cortes, Secretary A. able Pedro Second, just pro- a function ais because Pennsylvania, All Commonwealth mean that it is not prietary one does not Capacities and not in their Official municipal corpo- municipal function. “[A] Capacities, Private and Com- Their “governmental” and ration carries out both Pennsylvania, Respon- monwealth Phila- functions.” “proprietary” dents. delphia v. (Pa.2004). Examples Pennsylvania. Court of Commonwealth out municipality that a carries functions Argued Sept. 2005. parks playgrounds. maintaining Dec. 2005. Decided ‍​​‌‌​‌​‌‌‌‌‌‌‌‌​​​​​‌‌‌​​​‌‌​​‌‌​​​​​​​‌‌​​‌‌‌​‌‍Philadelphia, 380 Pa. DeSimone En Reargument Banc Denied (1955), distribu- Jan. 2006. water, Pittsburgh, Helz v. tion (1956). if Even 127 A.2d 89 function, is a nonetheless, abe it would still amended, 53 P.S. April P.L. Act of

Case Details

Case Name: City of Philadelphia v. Rendell

Court Name: Commonwealth Court of Pennsylvania

Date Published: Dec 20, 2005

Citation: 888 A.2d 922

Court Abbreviation: Pa. Commw. Ct.