Opinion
No. 515 M.D. 2012
02-14-2013
The Philadelphia Regional Limousine Association Individually and on behalf of its members, and A-1 Limousine, Inc., Accurate Transportation, LLC, A J & L Limousine Service, Adamo Limousine, Ltd., Afton Limousine Service, LLC, A Royal Limousine, LLC, Aries Limousine Service, AAAA Limousine, At Your Service Limo, BEST OF TIMES Chauffeured Limousine Service, Inc., Bieber Transportation, BOSTON COACH-Pennsylvania Corp., Carey Limousine Phila, Inc., Club Limo, Celebrity Limousine Service, Inc., Concord Limousine, Inc., Champagne Limousine Service, Inc., Corporate Sedan Services, LLC, Cloud 9 Transportation, Inc., Crystal Limousine, Inc., Christa Lauren Limousine Co., Inc., Firstclass Limo, Inc., Five Star Limousine Services, Inc., Frankford Limousine Service, Inc., Flyte Tyme Limousine, Galaxy Limousine, Inc., Global Limousine Network, Infinity Limousine, Inc., J & J Luxury Transportation Service, King Limousine Service, Inc., Limo Today.com, Inc., Luxury Limousine Service, Inc., M J Lavish Limousine Service, Michael's Classic Limousine, Main Line Express, Inc., Pocono Limousine Service, Inc., Paoli Airport Limousine Service, Inc., Profile Transportation Company, Profile Transportation Company, Profile Transportation Company, Park Avenue Luxury Limousine, Private Coach, Park Place Limousine Service, Q Limousine, LLC, Rhoads Limousine Service, Inc., Touch of Class Transportation, Traveler's Limo, LLC, Unique Limousine, LLC, and U.S.A. Limousine Ultra, Inc., Petitioners v. Philadelphia Parking Authority, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
The Philadelphia Regional Limousine Association, et al., (collectively, the Limousine Companies) have filed a petition for review in this Court seeking declaratory and injunctive relief. Their petition lodges a facial constitutional challenge to Section 5707(b) of the act commonly referred to as the Parking Authority Law, by which the Philadelphia Parking Authority sets its annual budget and fee schedule. The Limousine Companies charge that Section 5707(b) is unconstitutional because it did not impose any limitations on the Parking Authority's exercise of discretion in these activities. The Limousine Companies also charge that Section 5707(b) effects a taking without due process of law because it deprives them of the opportunity for a hearing on the amount of fees they must pay to the Philadelphia Parking Authority in order to stay in business; they claim these fees are excessive and confiscatory. The Parking Authority has moved to dismiss the petition for review on these claims, and the Limousine Companies have moved for summary relief. For the reasons that follow, we grant summary relief to the Limousine Companies, in part.
53 Pa. C.S. §§5501-5517, 5701-5745.
Background
The Limousine Companies provide limousine service in Philadelphia. Petition for Review ¶1. Prior to 2004, the Public Utility Commission was solely responsible for the regulation of taxicab and limousine operations throughout Pennsylvania. In 2004, the General Assembly transferred part of this regulatory responsibility to the Parking Authority, i.e., the regulation of taxicab and limousine service in Philadelphia. See Act of July 16, 2004, P.L. 758, No. 94 (Act 94). The Parking Authority's authority with respect to this new regulatory regime is set forth in Chapter 57 of the Parking Authority Law, 53 Pa. C.S. §§5701-5745.
Because this controversy presents a facial constitutional challenge, the petition for review contains few facts.
Section 5708 of the Parking Authority Law establishes the "Philadelphia Taxicab and Limousine Regulatory Fund," which derives its revenue from the fees paid by the various taxicab and limousine companies regulated by the Parking Authority. 53 Pa. C.S. §5708(a). The annual fee schedule changes from year to year and is published by the Parking Authority on its website and in the Pennsylvania Bulletin. 52 Pa. Code §1001.43(b).
It states:
(b) The Authority will provide general notice of the new fee schedule through publication in the Pennsylvania Bulletin. The Authority will provide direct notice of the fee schedule by email to each certificate holder as required under section 5707(b) of the act within 5 days of its effective date. The current fee schedule may be obtained from the Authority's web site at www.philapark.org/tld.52 Pa. Code §1001.43(b).
In turn, Section 5707(b) of the Parking Authority Law establishes the process by which the Parking Authority's annual budget and fee schedule is established. It states as follows:
(b) Fiscal year budget and fees.—The fiscal year for the fund shall commence on July 1 of each year. Before March 15 of each year, the authority shall submit a budget and proposed fee schedule, necessary to advance the purposes of this chapter, for the coming fiscal year along with comprehensive financial data from the past fiscal year to the Appropriations Committee of the Senate and the Appropriations Committee of the House of Representatives. Unless either the Senate or the House of Representatives acts to disapprove through adoption of a resolution by April 15 of each year, the authority fee schedule shall become effective. The authority shall notify all certificate holders of the fee schedule for the coming fiscal year. The procedure for notifying certificate holders must be specified in the regulations of the authority. If either the Senate or the House of Representatives acts to disapprove the authority's fee schedule and budget, the authority may submit a revised budget and fee schedule to the Appropriations Committee of the Senate and the Appropriations Committee of the House of Representatives within 15 days of such disapproval or shall utilize the fee schedule and budget for the prior year. Unless either the Senate or the House of Representatives acts to disapprove, through adoption of a resolution within ten legislative days from the date of submission of the revised budget and fee schedule, the revised budget and fee schedule of the authority shall become effective.53 Pa. C.S. §5707(b) (emphasis added).
To recap, by March 15th of each year, the Parking Authority submits "a budget and proposed fee schedule" for the coming fiscal year "along with comprehensive financial data from the past fiscal year" to the Appropriations Committees of the Senate and the House of Representatives. 53 Pa. C.S. §5707(b). If neither committee takes action within 30 days to move a disapproval resolution through its respective chamber, the Parking Authority's budget and fee schedule "become effective." Id. In the event of a disapproval resolution, the Parking Authority has 15 days to submit a revised budget and fee schedule to the Appropriations Committees. If neither committee acts within 10 days, the revised budget and fee schedule become effective. Id.
On March 9, 2012, the Parking Authority's Board approved an annual budget and fee schedule for fiscal year 2013 and submitted them to the Appropriations Committees. Petition for Review ¶35. Because neither committee took action to disapprove the proposed budget and fee schedule, they became effective on April 15, 2012.
Section 5508.1(b) of the Parking Authority Law states that in cities of the first class, i.e., Philadelphia, "the powers of [the Parking Authority] shall be exercised by a board[.]" 53 Pa. C.S. §5508.1(b).
Consistent therewith, the Parking Authority invoiced the Limousine Companies for 2013 fees. Petition for Review ¶38. When the Limousine Companies did not pay the invoiced fees by June 15, 2012, the Parking Authority issued citations to them. Petition for Review ¶39. The Limousine Companies are, or shortly will be, subject to sanctions by the Parking Authority including "impoundment of their vehicles, imposition of fines, penalties, and late fees and suspension, revocation, or cancellation of their certificates of public convenience." Petition for Review ¶41.
The Limousine Companies responded by filing the instant petition for review. The Limousine Companies contend, inter alia, that the Parking Authority's fee schedule is arbitrary, unfair and confiscatory because it imposes fees that are excessive when measured against their revenue or net profit. Petition for Review ¶42(d).
The Limousine Companies seek a declaration that Section 5707(b) is unconstitutional. They contend that the General Assembly has delegated its legislative power to the Parking Authority because it has given no "guidance, standards for, or restrictions on" the Parking Authority's power to formulate an annual budget or fee schedule. Petition for Review ¶26. The Limousine Companies also seek a declaration that Section 5707(b), which does not provide them a hearing by which to challenge the Parking Authority's fee schedule, effects a taking without due process of law. Petition for Review ¶¶27-28. Finally, the Limousine Companies seek a declaration that Act 94 is void and unenforceable in its entirety because Section 5707(b) is not severable from the remainder of Act 94. This is because it cannot be presumed that the General Assembly would have enacted the remainder of Act 94 without the funding mechanism in Section 5707(b). Petition for Review ¶¶50-55.
The Limousine Companies also request an order enjoining the Parking Authority from "implementing, administering, or enforcing" Section 5707(b) as well as all other provisions of Act 94. Petition for Review ¶57. Believing that their right to this requested relief is clear, the Limousine Companies have filed a motion for summary relief.
The Limousine Companies filed their motion for summary relief under Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure, which states:
(b) Summary relief. At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear.PA. R.A.P. 1532(b).
The Parking Authority filed preliminary objections in the nature of a demurrer asserting that the Limousine Companies have failed to state a claim because its 2012-2013 budget and fee schedule was set by the legislature, not by adjudication of the Parking Authority. Accordingly, there is no right to a hearing. The Limousine Companies need to lobby the Appropriations Committees between March 15 and April 15 if they seek another outcome. The Parking Authority asserts that at least some of the Limousine Companies lack standing because they do not have a license to provide limousine service in Philadelphia and, as such, lack a substantial, direct and immediate interest in the Parking Authority's fee schedule or budget. Finally, the Parking Authority asserts that the Limousine Companies have failed to name the General Assembly and the Attorney General as respondents, and they are indispensable parties to an action challenging the constitutionality of Section 5707 of the Parking Authority Law.
The Parking Authority does not contend that all the Limousine Companies lack standing; accordingly, this preliminary objection does not bar the entry of the Court's order.
We dismiss this claim at the outset. Members of the General Assembly may participate or be named defendants in a constitutional challenge to a statute, but they are not necessary parties. See, e.g., Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383 (2005) (naming as defendants, inter alia, Robert C. Jubelirer, President Pro Tempore of the Senate, John M. Perzel, Speaker of the House, Robert J. Mellow, Minority Leader of the Senate and H. William DeWeese, Minority Leader of the House). The Pennsylvania Attorney General must be given notice of a constitutional challenge to a statute. See PA. R.C.P. No. 235. Under Section 204(a)(3) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, the Attorney General has the duty "to uphold and defend the constitutionality of all statutes ...." 71 P.S. §732-204(a)(3). However, the Attorney General may authorize agency counsel to "defend any particular litigation" where he concludes it would be "more efficient." Section 204(c) of the Commonwealth Attorneys Act, 71 P.S. §732-204(c). In this case, the Attorney General was served with the Limousine Companies' petition for review and chose not to represent the Commonwealth by defending the Parking Authority Law.
This Court addressed the very issues now raised by the Limousine Companies in the companion case of MCT Transportation Inc. v. Philadelphia Parking Authority, ___ A.3d ___ (Pa. Cmwlth., No. 481 M.D. 2012, filed February 14, 2013). In that case, which involved identical issues raised by various taxicab companies, we held that Section 5707(b) of the Parking Authority Law unconstitutionally delegates legislative power to the Parking Authority by failing to provide standards to guide the Parking Authority in establishing its annual budget and fee schedule. We further held that Section 5707(b) unconstitutionally deprives regulated common carriers of due process because it does not provide any procedure for challenging the Parking Authority's fee schedule, either before or after its adoption. These holdings are dispositive in this case. Accordingly, summary relief will be granted to the Limousine Companies, in part, and the preliminary objections of the Parking Authority will be overruled.
We deny the Limousine Companies summary relief on their claim that Section 5707(b) is not severable from the remainder of Chapter 57 and, thus, Act 94 is unconstitutional. There is no requirement that the General Assembly provide funding to any agency charged with the responsibility of enforcing a statute. In any given year the legislature may decide not to fund a program. That does not mean the statute setting up a program is unconstitutional.
We do not address the preliminary objections of the Parking Authority relating to pleading sufficiency and standing because they are, as the Parking Authority acknowledged, amendable defects. At oral argument, the Parking Authority requested the Court to rule on the substantive issues. --------
/s/_________
MARY HANNAH LEAVITT, Judge Judge Leadbetter concurs in the result and joins on the issue of unconstitutional delegation, but dissents as to the due process discussion. ORDER
AND NOW, this 14th day of February, 2013, the preliminary objections filed by the Philadelphia Parking Authority are hereby OVERRULED and the motion for summary relief filed by Petitioners Philadelphia Regional Limousine Association, et al., in the above captioned matter is hereby GRANTED IN PART and DENIED IN PART. Section 5707(b) of the act commonly referred to as the Parking Authority Law, 53 Pa. C.S. §5707(b), is hereby declared unconstitutional and unenforceable, and the Philadelphia Parking Authority is hereby enjoined from taking any action with regard to Petitioners under authority of Section 5707(b). The remainder of the Petitioners' motion is DENIED.
/s/_________
MARY HANNAH LEAVITT, Judge