Lead Opinion
OPINION BY
The Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from an order of the Court of Common Pleas of Philadelphia County of August 16, 2007 that vacated the decision of SEPTA’s Board of Directors (Board) of June 28, 2007 to eliminate paper transfers as part of its approval of a particular proposal for fare changes and schedule reductions known as “Hybrid Plan A.” The two stated issues include whеther the trial court erred by concluding that SEPTA’s Board acted capriciously and therefore manifestly abused its discretion in deciding to implement a comprehensive fare plan that elimi
I
On March 12, 2007, SEPTA published a notice of public hearing that contained three plans for fare changes and schedule reductions that SEPTA was considering in conjunction with its proposed operating budget for FY 2008. The Board was presented with three рroposals at a public meeting on May 24, 2007: “Plan A — Standard Proposal,” “Plan A — Simplified Proposal” and a new “Hybrid Plan A.” Hybrid Plan A included the elimination of paper transfers, which at the time were sold for $0.60. The Board, with the exception of the two City members, voted to approve Hybrid Plan A. At its next meeting on June 28, 2007, the Board members overrode the veto of the City members and approved Hybrid Plan A to take effect at midnight оn July 31, 2007.
On July 30, 2007, the City and Mayor Street (together, City) filed in the trial court an appeal from the Board’s decision, a verified complaint and an emergency motion for temporary restraining order, preliminary injunction and supersedeas. The trial court heard testimony and argument on July 31, 2007 and then issued an order granting the motion and temporarily enjoining SEPTA from eliminating transfers pending the court’s review and also issued a rule to shоw cause why the temporary restraining order should not be made permanent and a preliminary injunction issue, returnable August 6, 2007. It heard testimony on the rule on that date and issued an opinion and order on August 16, 2007.
In its discussion, the trial court stated that the evidence demonstrated that SEPTA’S Board voted to eliminate paper transfers to mollify the legislature in hopes of ensuring funding, without any study of the impact on those who would be most adversely affected, without any semblance of a “modernization plan” ready and with no agreement with the Philadelphia School District in place, when they could have designed a plan with an equitablе impact on all riders. In view of the real potential for harm to those who most heavily rely upon SEPTA, the trial court concluded that the decision was “capricious” and was a manifest and flagrant abuse of the Board’s discretion. It granted the City’s motion and vacated the Board’s decision to eliminate paper transfers. In addition, the temporary injunction entered July 31 was made permanent during pendency of the underlying action. SEPTA appealed to this Court on August 20, 2007.
The SEPTA Board met on September 27, 2007, while the present appeal was pending. The Board voted on and approved a new resolution that superseded Hybrid Plan A and made several changes, including raising the price of tokens from $1.30 to $1.45 and raising the price of transfers from $0.60 to $0.75 as of October 1, 2007 (September 27 Resolution). After discussing the possibility of a favorable court decision, the Board adopted the following:
FURTHER RESOLVED, that in the event a court of competent jurisdiction issues a final order that would allow SEPTA to eliminate the use of paper transfers as fare instruments SEPTA will (i) retain the increases allowed under this Resolution and (ii) delay the elimination of the use of paper transfers as fare instruments until the Board considers at a regular meeting or special meeting whether to retain the increases and/or eliminate transfers.
September 27 Resolution at 4-5; see September 27, 2007 Notes of Testimony (N.T.) 44-45. In view of the September 27 Resolution the City filed a motion to dismiss the appeal for mootness pursuant to Pa.R.A.P.1972(4).
II
Before the Court may consider the merits of this dispute, it must decide the City’s motion to dismiss the appeal for mootness.
The cases prеsenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way — changes in the facts or in the law — which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that an actual case or controversy must be extant at all stages of review, nоt merely at the time the complaint is filed.
Id.,
The City submits first that the trial court’s August 2007 order constituted preliminary relief, which automatically terminated when the City discontinued its entire civil action in the trial court. Assuming arguendo that the trial court’s order was final, the City argues that SEPTA mooted this case when it adopted the September 27 Resolution, which superseded the very action, namely elimination of paper trans
SEPTA’s position is that the trial court’s August 2007 order did not grant only preliminary relief in that by its own terms it “granted” the statutory appeal filed by the City and “vacated” the Board’s decision to eliminate transfers. Further, the September 27 Resolution permits the Board to еliminate transfers without reinstituting the process of public notice and public hearings required by statute. In its memorandum, SEPTA initially agrees that cases cited by the City do involve mootness due to intervening changes, such as Taylor v. Pennsylvania Board of Probation and Parole,
Second, SEPTA contends that the City is attempting to “manufacture mootness” to evade appellate review. In Pap’s AM. the Pennsylvania Supreme Court prevented parties from arguing mootness because they were attempting to manipulate jurisdiction to insulate a favorable ruling. The trial court would lack authоrity to proceed further in this matter as to which an appeal has been taken. See Pa. R.A.P. 1701(a). Finally, SEPTA directly argues the applicability of two recognized exceptions to the mootness doctrine, namely, that the matter involves issues of great importance to the public interest and that the conduct complained of is capable of repetition yet likely to evade review. Musheno v. Department of Public Welfare,
Ill
The Court concludes that the present controversy is moot under Public Defender’s Office. The question in this case is not whether in the abstract SEPTA may eliminate paper transfers but rather whether the trial court erred in concluding that SEPTA abused its discretion in eliminating transfers in this particular case, with this particular factual context and procedural history. If SEPTA should again vote to eliminate transfers and the City should challenge the action, the challenge would arise under a different set of facts, including the new fare structure and its effects as well as the effect of an increase in state funding. Therefore, an order from this Court would be advisory, relating to some past event that will not recur because underlying financial, operational and procedural facts will be different. See Pittsburgh Palisades Park, LLC v. Commonwealth,
Next, the Court agrees that the effect of the September 27 Resolution is to render the present controversy moot. As the transcript indicates, the Board’s General Counsel, Nicholas J. Staffieri, explained that under one proposal a ruling by this Court in SEPTA’s favor would result in automatically rescinding the fare increases of October 15, 2007 and the continuation of the use of transfers under the trial court’s order; that is, SEPTA’s original decision would be given full effect. See N.T. 36. SEPTA, however, expressly rejected that proposal and instead adopted a proposal maintaining the fare increases approved October 15, 2007 and specifically maintaining paper transfers, with the Board being required to have further discussion and another vote in order to eliminate transfers. It is correct that if SEPTA had adopted the first proposal, this case would not be moot: the effect of the Court’s ruling in SEPTA’s favor would be to reinstitute SEPTA’s original decision. That, however, is not the case in view of the September 27 Resolution. SEPTA superseded the adoption of its original June 28, 2007 plan, and an order from this Court would not have the effect of reinsti-tuting elimination of transfers.
SEPTA may choose to maintain the use of paper transfers indefinitely, which is a matter for its Board to determine during future meetings. Under these circumstances, the actual controversy that gave rise to this case, i.e., whether SEPTA abused its discretion in adopting the elimination of paper transfers under Hybrid Plan A, has ceased to exist. Any remaining controversy is hypothetical rather than actual, see Pittsburgh Palisades Park; Mistich, and for that reason the Court must dismiss SEPTA’s appeal because it is moot.
ORDER
AND NOW, this 14th day of December, 2007, the Court dismisses the appeal filed
Notes
. The trial court’s opinion stated that Christopher Zearfoss, Senior Transportation Manager for the City’s Office of Strategic Planning, testified that City riders constituted 80 percent of the total ridership of the entire SEPTA system but only 30 percent of the Regional Rail System on which transfers are not used, that on average there are 594,000 riders on the City Transit Division daily and that approximately 19 percent of those use transfers. He testified that riders who use transfers would experience transportation cost increases of between 37 percent and 87 percent depending on the number of vehicle changes but that suburban riders would experience a 27.2 percent decrease. Dianne Reed, Budget Director and Deputy Finance Director, testified about the results of two studies conducted at her direction to establish the impact of SEPTA’s services upon certain racial and income groups. They established that 80 percent of SEPTA riders are City residents, 85.2 percent fall within the "low-income” category, and a substantial portion of those are African-American. Additional evidence showed that approximately 32,000 school students would experience transportation cost increases between 100 and 200 percent. The court noted in a footnote that SEPTA had informed it of an accommodation with the School District, but the court pointed out that it was as an afterthought after adoption of the new fares.
John McGee, SEPTA’s Chief Officer of Revenue, Ridership, Marketing and Sales, testified at the July 31 hearing that paper transfers are used by fewer passengers as time goes on and that there are extraordinary issues related to control of the transfers, which have no electronic identity and are the weakest link in the fare collection systеm. He stated that the Pennsylvania House of Representatives had conducted a study and advised SEPTA to proceed posthaste with modernization of fare collection. When asked if his study had evaluated what kind of riders would be affected by the elimination of transfers, he stated that their evaluation had to do with the frequency of rides. He admitted that SEPTA had the ability to design an across-the-board fare increase that would have affected all categories of ridership equally.
. The motion included a transcript of the Board meeting along with a copy of the September 27 Resolution and the praecipe that the City filed to discontinue the statutory appeal and the civil action filed in the trial court, verified by a declaration of J. Barry Davis, the Chief Deputy of Regulatory Affairs of the City Law Departmеnt. See Pa. R.A.P. 123(c) (providing for verified speaking applications). Subsequent to argument, SEPTA filed an application under Pa. R.A.P. 123 and 2501 for leave of Court to file documents erroneously excluded from the Certified Record. Rule 2501(a) provides that after argument no brief, memorandum or letter relating to a case shall be presented or submitted, either directly or indirectly, except upon application or whеn expressly allowed at the time of argument. The Court grants the application.
. On the merits of the dispute, SEPTA first contends that the trial court improperly substituted judicial discretion for administrative discretion of the SEPTA Board and reversed the Board’s final decision in the absence of error of law or manifest and flagrant abuse of discretion. Second, SEPTA maintains that
The City argues that the trial court issued a preliminary injunction on August 16, 2007 because the only matter before the court at that time was the City’s emergency motion. Also, it met the elements required to be shown for a preliminary injunction. See Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc.,
. In Pap’s AM. the operator of an adult entertainment establishment challenged the constitutionality of a city ordinance prohibiting nudity in public places, and the Pennsylvania Supreme Court and the United States Supreme Court refused to dismiss the case for mootness, even though the plaintiff was no longer operating an establishment in the city, becаuse it was still incorporated in Pennsylvania and there was a reasonable expectation that the same controversy could occur if it decided to open a similar establishment.
. SEPTA cites this Court’s decision in County Council of Erie v. County Executive of Erie,
Dissenting Opinion
DISSENTING OPINION BY
I must dissent from the well-prepared opinion of the majority.
The record clearly reflects that this controversy is likely to repeat itself, i.e., the adoption of SEPTA’s fiscal year 2009 budget.
Therefore, since this matter involves important public policy issues, this Court should resolve the case on the merits. See Colonial Gardens Nursing Home, Inc. v. Bachman,
On the merits of the dispute, I agree with SEPTA that the trial court improperly substituted judicial discretion for administration discretion of the SEPTA Board. There being no error of law or manifest and flagrant abuse of discretion, the trial court should be reversed, and the SEPTA Board’s proposal to eliminate paper transfers should be reinstated.