City of Philadelphia v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 04 April 1973
• Citation: 303 A.2d 247,8 Pa.Cmwlth. 280
• Parties: CITY OF PHILADELPHIA, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellee.
• Court: Pennsylvania Commonwealth Court

303 A.2d 247

8 Pa.Cmwlth. 280

CITY OF PHILADELPHIA, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellee.

Commonwealth Court of Pennsylvania.

April 4, 1973

Argued Feb. 6, 1973.

Howard D. Scher, John Mattioni, Deputy City Sol., Martin Weinberg, City Sol., Philadelphia, for appellant.

Dilwoarth, Paxon, Kalish, Levy & Coleman William T. Coleman, Jr., John F. Smith, III, Lewis H. Van Dusen, Jr., Philadelphia, for appellee; Drinker Biddle &amp Reath, Philadelphia, of counsel.

Before BORMAN, President Judge, and CRUMLISH, Jr. KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

KRAMER, Judge.

This is an appeal by the City of Philadelphia (City) from an order of the Court of Common Pleas of Philadelphia County dated April 20, 1972, dismissing the City's exceptions to an order of the same court (Decree Nisi dated December 13, 1971) holding that a provision of the City's Code (Section 9--403, Infra) providing for the licensing of buses operating in the City was inapplicable to Southeastern Pennsylvania Transportation Authority (SEPTA).

This appeal arose out of a counterclaim in an equity suit originally brought by the City against SEPTA. The original claim of the City against SEPTA involving certain alleged violations of a lease agreement pertaining to the Frankford Elevated System was tried and decided separately. That portion of the original lawsuit is not before this Court.

In the counterclaim, SEPTA alleged that because of its governmental status, as an authority, organized under the Metropolitan Transportation Authorities Act of 1963 (hereinafter referred to as MTA), (Act of August 14, 1963, P.L. 984, as amended, 66 P.S. § 2001 et seq.), and because of certain provisions of agreements between the parties, the City licensing ordinance ^[1] is not applicable to SEPTA.

The ordinance in question was originally passed in 1915, and although it has been amended several times, the last amendment took place Prior to the effective date of MTA and the organization of SEPTA. At the risk of unduly burdening the reader, we believe it necessary to set forth the pertinent provisions of the ordinance, which read as follows:

' § 9--403. Motor Buses

(1) Prohibited Conduct. No motor bus shall be operated on the streets of the City unless the owner, lessee or bailee obtains a license for each bus from the Department of Licenses & Inspections.

(2) License. No license shall be issued unless the applicant:

(a) Furnishes the information required by the Department, including identification of the applicant, description of the bus, its passenger capacity and its proposed route;

(b) Pays an annual fee of $50 for each motor bus.

(c) Furnishes proof of compliance with the Public Utility Law of May 28, 1937, P.L. 1053, 66 P.S. § 1101 et seq., as amended, and the regulations issued under it with respect to carrying public liability insurance or filing surety bonds for the protection of the public.

(5) Penalties. The penalty for violation of any provision of this Section or for any false statement as to any matter required to be disclosed by this Section is a fine of not less than $5, nor more than $12.50 for the first offense, not less than $7.50 nor more than $25 for the second offense, and not less than $12.50 or more than $50 for each subsequent offense, together with imprisonment not exceeding 30 days if the fine and costs are not paid within 10 days. Each day of violation shall be a separate offense.

(6) Size. Motor buses of a total width not in excess of one hundred and two (102) inches may be operated within the City; provided that written approval of the Streets Commissioner is first obtained for any such operation on scheduled service routes and oral approval for charter routes; and provided, further, that the grant of such permission shall not be deemed to constitute a waiver by the City of any other limitation or restriction which may be imposed on the operation of motor buses within the city.'

The City has adopted this ordinance under its Home Rule Charter alleged to be in accord with the powers prescribed by the First Class City Home Rule Act, Act of April 21, 1949, P.L. 665, 53 P.S. § 13101 et seq. In Section 17 of the Home Rule Act (53 P.S. § 13131), there is a general grant of 'complete powers of legislation and administration in relation to its municipal functions', to the end that:

'(T)he city may enact ordinances, rules and regulations necessary and proper for carrying into execution the foregoing powers and all other powers vested in the city by the charter it adopts or by this or any other law.'

The City further points to Section 1103 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1103. Although this section generally denies regulatory powers to municipalities, it contains several express exceptions, among which is the grant of the power to:

'(R)egulate the transportation by motor vehicles of passengers for compensation within the limits of a city, or from points in the city to points beyond the city limits, and make and enforce regulations for the operation of such vehicles not inconsistent with this act, and designate certain streets upon which such vehicles may be operated . . ..'

The City also points to Section 730 of The Vehicle Code, 75 P.S. § 730, which states:

'No city . . . shall require or collect any registration or license fee or tax for any motor vehicle, trailer or semitrailer, or license from any operator thereof, except that cities may levy a fee or tax upon motor buses and motor omnibuses transporting passengers for pay or hire within the limits of any city, or from points within such city to its suburbs which are within a radius of ten (10) miles.'

SEPTA counters the contention of the City by pointing out that it is a governmental instrumentality and agency of the Commonwealth with the power and responsibility to operate transit facilities in the metropolitan region embracing the counties of Philadelphia, Bucks, Chester, Delaware and Montgomery, in which area there are about 75 separate municipalities. SEPTA also points to MTA wherein its right to use any of the streets within the City, as well as its exclusive power to control its facilities (including buses) in rendering services to the public is set forth. SEPTA further points to an agreement with the City in which it is stated that SEPTA has the right to use all of the streets of the City, subject to only certain Enumerated ^[2] police powers of the City. SEPTA argues that under the record in this case the license fee, as described in the ordinance, is in fact a tax, but whether it is a tax or a license fee, SEPTA is not subject to same because of its governmental status.

In Section 2 of MTA, 66 P.S. § 2002, there is set forth the declaration of legislative public policy with regard to the establishment of a transportation authority such as SEPTA. Among other things, it says:

'(a) That there exists in the urban and suburban communities in metropolitan areas, traffic congestion and serious mass transportation problems because of underdeveloped, uncoordinated obsolete mass transportation facilities . . . (b) that (are) . . . harmful to the social and economic well-being of the entire area . . . (which) (c) . . . cannot be effectively dealt with by private enterprise . . . (d) . . . and that the public acquisition of existing mass transportation facilities . . . will promote the public health, safety, convenience and welfare . . . (and that) . . . (i) . . . (t)herefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to promote the safety and welfare of the inhabitants thereof by authorizing the creation of a body corporate and politic . . . which shall exist . . . for . . . (s)uch purposes (which) are hereby declared to be public uses. . . .'

In Section 3(a)(8) of MTA, 66 P.S. § 2003(a)(8), 'buses' are specifically included to be within such a transportation system. In Section 4(a) of MTA, 66 P.S. § 2004(a), the Legislature stated:

'An authority shall in no way be deemed to be an instrumentality of any city or county or other municipality or engaged in the performance of a municipal function, but shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof.'

In Section 4(d)(20) of MTA, 66 P.S. § 2004(d)(20), we find:

'A duly certified authority shall have . . . the following rights or powers:

(20) To have the right to use any public road, street, way, highway, bridge or tunnel for the operation of a transportation system within the metropolitan area . . .'

The Legislature provided certain tax exemptions applicable to such a metropolitan transportation authority in Section 39 of MTA, 66 P.S. § 2039:

'(a) The effectuation of the authorized purposes of any authority created under this act shall . . . be, in all respects, for the benefit of the people of the Commonwealth . . . and since such authority will be performing essential governmental functions in effectuating such purposes, it shall not be required to pay any property taxes or assessments, of any kind or nature whatsoever, now in existence or to be enacted in the future, whether imposed by the Commonwealth or by any political subdivision there . . ..'

Interestingly the lower court did not decide whether the ordinance in question was a true license fee or a tax, but rather, determined that whether the ordinance provided for a license fee or a tax, SEPTA was excluded therefrom because of its governmental status as an authority under MTA. While we agree with the lower court in both conclusions, we believe that the nature of the issues which have been presented to this Court, makes it incumbent upon us to decide preliminarily whether the ordinance does impose a true...