Devlin v. City of Philadelphia

• Decision Date: 29 August 2002
• Citation: 809 A.2d 980
• Parties: William and Nancy DEVLIN, Mary Campbell, William and Dottie Free, Dave and Esther Miller, Appellants v. CITY OF PHILADELPHIA.
• Court: Pennsylvania Commonwealth Court

809 A.2d 980

William and Nancy DEVLIN, Mary Campbell, William and Dottie Free, Dave and Esther Miller, Appellants v. CITY OF PHILADELPHIA.

Commonwealth Court of Pennsylvania.

Argued June 6, 2002.

Decided August 29, 2002.

Dennis M. Abrams, Bala Cynwyd, for appellants.

Jane Lovitch Istvan, Philadelphia, for appellee.

BEFORE: DOYLE, Senior Judge,¹ COLINS, President Judge, McGINLEY, Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, KELLEY, Senior Judge, and LEADBETTER, Judge.

OPINION BY Senior Judge DOYLE.

William and Nancy Devlin, Mary Campbell, William and Dottie Free, and Dave and Esther Miller (Appellants), who are residents and property owners in the City of Philadelphia (City), appeal to this Court from two orders of the Philadelphia County Court of Common Pleas. The first order, entered June 22, 1999, granted the preliminary objections of the City to Counts I and II of Appellants' complaint for declaratory and injunctive relief, and the second order, entered October 5, 2000, granted the City's application for summary judgment on the remaining three counts of their complaint.

This is a case of first impression in this Commonwealth, and the facts are as follows. On May 19, 1998, former City Mayor Edward G. Rendell signed into law certain amendments to The Philadelphia Code (Code) that are the underlying basis of this litigation. The amendments were the subject of three ordinances, all of which were passed by City Council on May 7, 1998, and essentially provide for the status of "life partnership" between members of the same sex. Specifically, Bill No. 970750 amended Chapter 9-1100 of the Code, entitled the Fair Practices Ordinance, by, inter alia, amending the definition of "Marital Status" to include "Life Partners," adding a definition of the term "Life Partner," and by disallowing discrimination in employment and places of public accommodations based on "marital status." Bill No. 970749 amended Chapter 19-1400 of the Code, entitled Realty Transfer Tax, by excluding from the tax the transfer of real estate between Life Partners and requiring the joint signing of an affidavit with regard to any such transfer. Bill No. 970745 amended the Retirement System Ordinance and the Municipal Retirement Benefit Plan 1987 Ordinance to permit retirement system City employees to name as beneficiaries any person designated by the employee pursuant to applicable terms and conditions.

On August 14, 1998, Appellants, as residents and taxpayers of the City of Philadelphia, filed a complaint for declaratory and injunctive relief, seeking a declaration that Bill Nos. 970750, 970749, and 970745 be declared null and void.² Appellants alleged in Count I of their complaint, inter alia, that the Commonwealth has preempted the field of regulating the status of marriage and the marriage relationship, and the City is without power to create a new marital status and to extend health and pension benefits to City employees' Life Partners; in Count II, Appellants alleged, inter alia, that these bills violate the clear public policy favoring marriage that has been established by the Commonwealth; in Count III, Appellants alleged, inter alia, that the City's extension of health and pension benefits to Life Partners of City employees is ultra vires; in Count IV, Appellants alleged, inter alia, that the City cannot exempt real estate transfers between Life Partners from taxation, and, finally, Appellants alleged in Count V of their complaint that the City does not have the authority to prevent discrimination against its newly defined marital class of Life Partners.

The City filed preliminary objections to the complaint, and, on December 9, 1998, Common Pleas, by order of Judge Pamela Pryor Dembe, granted the preliminary objections as to Counts I and II of the complaint and overruled them as to Count III. Thereafter, on June 22, 1999, Judge Dembe vacated her earlier order and filed an amended order, sustaining the City's preliminary objections to Counts I and II of the complaint and overruling them as to all three of the remaining counts. On July 10, 2000, Appellants and the City filed cross motions for summary judgment, and, on October 5, 2000, Common Pleas, by order of Judge Matthew D. Carrafiello,³ granted the City's motion as follows:

1. The extension of health benefits and other benefits to life partners by the City of Philadelphia pursuant to the Fair Practices [Ordinance] and other legislation is deemed to be a valid exercise of authority.

2. The anti-discriminatory provisions of the Fair Practices [Ordinance] is deemed legal with respect to public accommodations and in terms of imposing obligations upon the City of Philadelphia as a public employer.

3. The amendments to the transfer tax ordinance providing an exemption for life partners is found to be Constitutional and legal.

4. The registration provisions of the Fair Practices [Ordinance] are deemed to be legal.

The Plaintiffs lack standing and are ineligible to apply for declaratory relief for purposes of challenging the application of the Fair Practices Act to private employers and non-governmental entities.

Devlin v. City of Philadelphia, 48 Pa. D. & C.4th 86, 100, 2000 WL 33199272 (2000). Judge Carrafiello noted in his opinion accompanying this order that Appellants had withdrawn their objection to the amendments to the Retirement System Ordinance contained in Bill No. 970745. Id. at 87.

On November 3, 2000, Appellants filed a Notice of Appeal,⁴ and they now raise several issues for this Court's review, viz., 1) whether Common Pleas erred in deciding that the City has the authority to create and regulate a kind of domestic relationship known as a "Life Partnership," when doing so vests rights and responsibilities in and between two people who heretofore had no such rights and responsibilities; 2) whether Common Pleas erred in deciding that the City's creation of a "Life Partnership" as a new domestic relationship is not violative of Commonwealth public policy; and 3) whether Common Pleas erred in deciding that the City can exempt real estate transfers between Life Partners from the local realty transfer tax. (Appellants' brief, Statement of Questions Involved, at 6).

Of course, our review of a Common Pleas' order sustaining preliminary objections and dismissing a complaint is limited to a determination of whether that Court abused its discretion or committed an error of law. Logan v. Lillie, 728 A.2d 995 (Pa.Cmwlth.1999). Our review of a Common Pleas' order granting summary judgment is likewise limited to a determination of whether Common Pleas abused its discretion or made an error of law. Salerno v. LaBarr, 159 Pa.Cmwlth. 99, 632 A.2d 1002 (1993), petition for allowance of appeal denied, 537 Pa. 655, 644 A.2d 740 (1994). And, because, in the matter sub judice, "[t]here is no genuine issue of material fact that needs to be resolved[,]" (Joint Stipulation of Fact, para. 12 at 2), we have only to determine on appeal whether the Common Pleas Court committed legal error in granting the City's preliminary objections to Counts I and II and its motion for summary judgment.⁵

A. Ultra Vires, Preemption and Public Policy

We begin our analyses of the issues before us by setting forth certain of the salient provisions of Bill No. 970750, which, again, amends Chapter 9-1100 of the Code. Section 9-1102(r) of the Code has been amended to define "Marital Status" as: "The status of being single, married, separated, divorced, widowed or a life partner." (Emphasis added). Section 9-1102(p) defines "Life Partner" as: "A member of a Life Partnership that is verified pursuant to § 9-1106(2)" and Section 9-1106(2)(a) defines "Life Partnerships" as follows:

(a) Definition. For purposes of this Chapter, "Life Partnership" shall mean a long-term committed relationship between two unmarried individuals of the same gender who:

(i) are at least 18 years old and competent to contract;

(ii) are not related to the other Life Partner by blood in any way which would prohibit marriage in the Commonwealth of Pennsylvania;

(iii) are the sole Life Partner of the other person;

(iv) have not been a member of a different Life Partnership for the past twelve months (unless the prior Life Partnership ended as a result of the death of the other Life Partner);

(v) agree to share the common necessities of life and to be responsible for each other's common welfare;

(vi) share at least one residence with the other Life Partner; and

(vii) agree under penalty of law to notify the [Philadelphia] Commission [on Human Relations] of any change in the status of the Life Partnership.

(Emphasis added). Section 9-1106(2) further provides the following:

(b) Verification. No Life Partnership shall be recognized as such under this Chapter unless the members of the Life Partnership have verified the Life Partnership by: (i) filing with the Commission a Verification Statement, in the form and manner required by the Commission, which states, on penalty of perjury, that the Life Partnership meets all the provisions of § 9-1106(2)(a); and (ii) filing with the Commission proof that the Life Partners have been interdependent for a[sic] least six months prior to the date the Verification Statement is filed, such proof to include at least three of the following:

(.1) common ownership of real property or a common leasehold interest in property;

(.2) common ownership of a motor vehicle;

(.3) driver's licenses listing a common address (.4) proof of joint bank accounts or credit accounts;

(.5) proof of designation as a beneficiary for life insurance or retirement benefits, or beneficiary designation under a partner's will;

(.6) assignment of a durable power of attorney or health care power of attorney.

(c) Termination. Either Life Partner may terminate the Life Partnership by filing a sworn Termination Statement with the Commission, in the form and manner required by the Commission, stating that the Life Partnership is to be

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