Right v. City Of Philadelphia

• Decision Date: 20 September 2010
• Citation: 4 A.3d 610
• Parties: BOARD OF REVISION OF TAXES, CITY OF PHILADELPHIA, and Charlesretta Meade; Robert N.C. Nix, III; Russell M. Nigro; Alan K. Silberstein; Howard M. Goldsmith; and Anthony Lewis, Jr., In their Official Capacities as Members and Officials of the Board of Revision of Taxes, and as individuals in their Own Right, Petitioners v. CITY OF PHILADELPHIA, Respondent
• Court: Pennsylvania Supreme Court

4 A.3d 610

BOARD OF REVISION OF TAXES, CITY OF PHILADELPHIA, and Charlesretta Meade; Robert N.C. Nix, III; Russell M. Nigro; Alan K. Silberstein; Howard M. Goldsmith; and Anthony Lewis, Jr., In their Official Capacities as Members and Officials of the Board of Revision of Taxes, and as individuals in their Own Right, Petitioners

v.CITY OF PHILADELPHIA, Respondent

Supreme Court of Pennsylvania.

Submitted Sept. 20, 2010.

Decided Sept. 20, 2010.

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William P. Murphy, Howard Kenneth Goldstein, Philadelphia, for Board of Revision of Taxes City of Philadelphia.

Richard Feder, Craig R. Gottlieb, City of Philadelphia Law Department, for City of Philadelphia.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Chief Justice CASTILLE.

Petitioners, the City of Philadelphia's Board of Revision of Taxes (“the BRT”) and Charlesretta Meade, Robert N.C. Nix, III, Russell M. Nigro, Alan K. Silberstein, Howard M. Goldsmith, and Anthony Lewis, Jr., individually and in their official capacities as BRT members, filed in this Court an application for leave to file original process, which we grant, and an application for the “Exercise of Original Jurisdiction and King's Bench Power” over this lawsuit against respondent, the City of Philadelphia (“City”). ¹ Petitioners ask that we exercise jurisdiction and then grant: (1) preliminary and permanent injunctions, and/or writs of mandamus, prohibition, and quo warranto to halt the implementation of a City ordinance dated December 17, 2009, which abolishes the BRT effective on October 1, 2010 (“Reorganization Ordinance”); (2) a permanent injunction, equitable relief, and writs of mandamus and prohibition to halt the continued operation of a City ordinance dated April 22, 2010, which reduced the salaries and benefits of BRT members (“Salary Ordinance”); or, alternatively, (3) an order requiring immediate consideration by a lower court of its injunction and writ requests regarding the Reorganization and Salary Ordinances. ²

Philadelphia's BRT was created by statute in June 1939. ³ Pursuant to law, for the next seventy years, the BRT's seven members were appointed for terms of six years by a majority of the judges serving on the Philadelphia County Court of Common Pleas. See 72 P.S. §§ 5341.1, 5341.2. The BRT assesses the value of real property in Philadelphia, examines tax returns, and hears appeals from assessments. See 72 P.S. §§ 5341.7, 5341.8, 5341.11, 5341.14. In December 2009, the Philadelphia City Council adopted (and Mayor Michael A. Nutter signed) the Reorganization Ordinance, which aimed to abolish the BRT and replace it with two newly-created bodies, whose members would be appointed by the mayor with the consent of City Council. The BRT's functions would be divided between the new entities: the Office of Property Assessment, which would make initial and revised property assessments, and the Board of Property Assessment Appeals (“Board of Appeals”), which would hear appeals from assessments. By its terms, the Reorganization Ordinance would come into effect on October 1, 2010, but only if ratified by the electorate at the May 2010 primary election, as required by 53 P.S. § 13132(d).

In March 2010, the BRT filed an application with this Court seeking exercise of our King's Bench power, and requesting that we enjoin submission to the electorate and placement on the ballot at the May 2010 primary election of a question intended to ratify the Reorganization Ordinance. On April 27, 2010, this Court denied BRT's application in a per curiam order. Board of Revision of Taxes v. City of Philadelphia, 993 A.2d 873 (Pa.2010). Subsequently, at the May 2010 primary election, the Philadelphia electorate approved the City's Reorganization Ordinance, and ripened the controversy.

In the meantime, City Council adopted (and Mayor Nutter signed) the Salary Ordinance, which: reduced the annual salaries of the BRT chair and secretary from $75,000 and $72,000 to $50,000 and $45,000, respectively; and eliminated annual salaries of $70,000 for the remaining BRT members and substituted per diem compensation of $150, tied to the members' actual attendance at hearings or meetings in furtherance of their duties. The Salary Ordinance became effective immediately after being signed by the Mayor, on April 22, 2010.

On June 15, 2010, the BRT and its members, individually and in their official capacities, filed a petition for review in the original jurisdiction of the Commonwealth Court seeking to enjoin the Reorganization Ordinance, and requesting writs of prohibition, mandamus, and quo warranto, and other equitable relief. Furthermore, the BRT and its members asked for similar relief with regard to the Salary Ordinance, which had already reduced BRT members' salaries. After a hearing, on July 16, 2010, the Commonwealth Court dismissed BRT's petition for lack of jurisdiction. In an unpublished memorandum opinion, the court held that the BRT is a local-not a Commonwealth-agency and, therefore, the BRT and its members could not invoke the Commonwealth Court's original jurisdiction under 42 Pa.C.S. § 761(a)(2). ⁴ The Commonwealth Court transferred the matter to the Philadelphia County Court of Common Pleas.

The BRT and its members did not appeal the Commonwealth Court's transfer order. Instead, on July 26, 2010, the same petitioners filed with this Court the instant applications, in which they ask that we exercise our original jurisdiction or King's Bench power to grant them various forms of relief. For the reasons that follow, we exercise plenary jurisdiction over petitioners' challenge under 42 Pa.C.S. § 726, but only as to the Reorganization Ordinance, and we consider the case under submission on the existing pleadings. ⁵ We enjoin the Reorganization Ordinance in part, insofar as it affects the BRT's appellate function. We hold that the remaining provisions of the Reorganization Ordinance, which we find are severable, are valid. We also hold that the BRT and its members must be stricken as petitioners to the extent they have sued in their official capacities. Finally, we dismiss petitioners' request to exercise extraordinary jurisdiction or King's Bench powers to review the Salary Ordinance, and will allow that challenge to proceed below in the ordinary course.

I. The Reorganization Ordinance

Petitioners request that we assume plenary jurisdiction over the action pending in the Philadelphia County Court of Common Pleas and address the validity of the Reorganization Ordinance. Petitioners claim that the Reorganization Ordinance is invalid, particularly to the extent that the City transferred the BRT's appellate function to a body appointed by the Mayor and dissolved the BRT in its entirety. According to petitioners, the City's action has immediate public importance because it “subject[s] the public to the jeopardy of voiding all appeals to [the] replacement Board” and, in the future, would expose the public to “multiple appeals, delay and expense once the [BRT] is restored to its rightful role free from the ultra vires interference of the City.” Petitioners further argue that, unless we act, the new appellate entity will be tainted by legal infirmities, “thereby engendering public confusion and uncertainty, ... denying the due process of law to which the public is entitled, and ultimately eroding the public's confidence in the processes of government.” Petitioners insist that “the general public's great interest in mandating the obedience of the City to the supreme statutory and Constitutional law of the Commonwealth” should compel this Court to act now.

On the merits, petitioners claim that the City's action to abolish the BRT's appellate function in favor of creating the Board of Appeals was ultra vires and void. The crux of petitioners' argument is that the BRT's authority to entertain assessment appeals is recognized in the governing Pennsylvania legislation as a quasi-judicial function separate from the BRT's administrative or ministerial function of assessing the value of real property in Philadelphia. Citing 53 P.S. § 13132, ⁶ petitioners contend that the General Assembly delegated to the City the power to reorganize, abolish, or transfer the BRT's ministerial function of assessing property values but not its authority to review appeals from those assessments. Section 13132(c) addresses the City's power to “abolish” as follows:

Subject to the provisions of the Philadelphia Home Rule Charter and the First Class City Home Rule Act ... the Council of the City of Philadelphia shall have full powers to legislate with respect to the election, appointment, compensation, organization, abolition, merger, consolidation, powers, functions and duties of the Sheriff, City Commissioners, Registration Commission and Board of Revision of Taxes or its successor, with respect to the making of assessments of real and personal property as provided by act of Assembly.

53 P.S. § 13132(c) (emphasis added). See 72 P.S. §§ 5341.7-5341.8 (describing BRT's duty to supervise property value assessments made by assessors); §§ 5341.14-5341.14a (describing BRT's appellate function).

According to petitioners, the City's power under this provision is limited to reassigning the BRT's administrative function of making assessments, with the remaining function intentionally preserved by the General Assembly. See 53 P.S. § 13132(c); Pa. Const. Art. XV, § 1-5 (repealed; now at Pa. Const. Art. IX, § 2) (home rule and limits on local government). Petitioners observe that Section 13132(c) was adopted by the General Assembly in 1963 to complete the integration of former county offices and departments into City government following the consolidation of Philadelphia City and County offices, which began in 1951, and was intended to delineate the outer limits of the City's power with respect to offices, boards,...