Scott v. City of Pittsburgh

• Decision Date: 19 July 2006
• Citation: 903 A.2d 110
• Parties: Gene SCOTT, Appellant v. CITY OF PITTSBURGH and University of Pittsburgh.
• Court: Pennsylvania Commonwealth Court

Page 110

903 A.2d 110

Gene SCOTT, Appellant v. CITY OF PITTSBURGH and University of Pittsburgh.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 10, 2006.

Decided July 19, 2006.

Joseph J. Chester, Pittsburgh, for appellant.

George R. Specter, Pittsburgh, for appellee, City of Pittsburgh.

BEFORE: McGINLEY, Judge, COHN JUBELIRER, Judge, and LEAVITT, Judge.

OPINION BY Judge COHNJUBELIRER.

Gene Scott (Vendor) appeals from an order of the Court of Common Pleas of Allegheny County, which, inter alia, sustained preliminary objections filed by the City of Pittsburgh¹ (City) to a Complaint he filed when the Pittsburgh City Council did not include the location where he had customarily operated a hotdog stand as an approved vending site.

By Ordinance Amendments passed on October 17, 2000, the Pittsburgh City Council revised the City's licensing scheme for the operation of vendors and peddlers (Vending Ordinance), after which licensed vendors could no longer operate anywhere within the City, but were limited to locations approved by the City Council. (Trial Ct. Ex. "A".) The Vending Ordinance provided for the selection of permitted locations as follows:

[b]ased upon sites reviewed and approved by the Council of the City of Pittsburgh, the Director of the Department of Public Works or his/her assign shall compile a list of permitted locations where the presence of vending units . . . would be compatible to the public interest. . . . The Director may modify the list as he/she deems necessary with approval from the Council.

(Ordinance § 719.05A(a).) The Vending Ordinance also provides for the establishment of "vending districts" and the allowance of input, regarding the operation of vending carts within a particular vending district, through a provision that reads:

At the promulgation of City Council, the Bureau of Building Inspection, or at the urging of community or business organizations, vendor districts, areas within a particular and contiguous geographic area, may be established in which the particulars of this ordinance may be lifted or amended by Council resolution. At the time vendor districts are established representatives of merchants, community groups, and vendors will be called upon in order to give input regarding appropriate vending activities.

(Ordinance § 719.05A(c).) In addition, the Vending Ordinance, in a section entitled Permit Application and Duration and cited by Vendor, also provides that:

[v]endors who have been operating at a particular location prior to the adoption of [the new Ordinance] shall be provided an opportunity for first preference to continue their operation provided that they have been in compliance with all previous regulations and obligations and City Council designates the location as a permitted site.

(Ordinance § 719.05B(d).)

By a separate Resolution, which was also passed on October 17, 2000, the Pittsburgh City Council established the "Street and Sidewalk Vending Site Designation Committee"² (Site Designation Committee) to:

a) Prepare for public advertising and general notification to the community a formal announcement that City Council is requesting recommendations for specific vending . . . locations within the boundaries of the City of Pittsburgh from the general public and those directly involved in the business of street and sidewalk vending.

b) [C]ompile a list of all recommendations for vending and vehicular vending sites and submit to City Council . . . a report including exact locations and the Committee[']s evaluation of the site appropriateness.

(Pittsburgh City Council Resolution 756, Vol. 134 (Oct. 17, 2000) ("Resolution") § 3 (enacted).) Pursuant to the Resolution, the Site Designation Committee was to meet two weeks after passage of the Resolution and submit a list of recommendations to City Council by December 1, 2000. (Resolution § 3.) City Council was to adopt an ordinance, no later than January 1, 2001, specifically listing each site where street and sidewalk vending would be permitted by the Vending Ordinance. (Resolution § 4.)

Since 1992, Vendor legally operated a licensed "New-York style hot-dog vending cart" outside the University of Pittsburgh's Hillman Library (customary site). (Vendor Complaint ¶¶ 8-10.) When the Site Designation Committee ultimately submitted its list of recommended sites to City Council, the list did not include Vendor's customary site in front of the library.

Vendor apparently, twice, wrote requesting that his customary site be included on the list of recommended sites. We have no copies of these letters, and we do not know to whom the letters were sent, the dates on which the letters were sent, or their contents. In response to Vendor's second letter, the City Clerk, by letter dated March 27, 2002, referenced its earlier correspondence to Vendor and informed him that the "Vending Site Designation Committee met on February 28, 2002 to discuss [his] nomination of a permanent vending site . . . [but t]his site was denied."³ (Letter from Linda M. Johnson-Wasler Pittsburgh City Clerk, to Vendor (March 27, 2002).)

After receiving this letter from the City Clerk, Vendor filed a Complaint against the City of Pittsburgh and the University of Pittsburgh wherein he averred, inter alia, that (1) the City violated his right to due process by depriving him of a property right for the continued operation of his hotdog stand at his customary site, and (2) the City violated his right to due process and the rights provided by the Local Agency Law⁴ by not providing an evidentiary hearing prior to issuing the letter from the City Clerk advising him that the Site Designation Committee had denied his written request to include his customary site as a permitted area for vendors.

In response to Vendor's complaint, the City filed preliminary objections averring, inter alia, that no action by the City can be construed as a violation of Vendor's constitutional rights, and the Vendor was not entitled to a Local Agency Law hearing, pursuant to 2 Pa.C.S. § 553, because City Council's failure to approve Vendor's location as a vending site was a non-appealable legislative determination and not an adjudication. (Prelim. Objections of City (PO) ¶¶ 16-18.)

The trial court sustained the City's preliminary objections and dismissed Vendor's complaint with prejudice. The trial court, in a subsequently issued opinion, reasoned that Vendor has no property right or due process interest in a vending location and that, "[u]nder Pennsylvania law, City Council has the right to determine where in the city vendors shall be permitted to operate." (Trial Ct. Op. at 4.) The trial court also ruled that Vendor was not entitled to a local agency hearing, because City Council is not a local agency and its legislative determination was not reviewable as a statutory appeal from a local agency decision. (Trial Ct. Op. at 4.)

Vendor raises two issues on appeal to this Court: (1) whether Vendor was deprived of a constitutionally protected property right to operate his hotdog stand at his customary site; and (2) whether Vendor was entitled to an evidentiary hearing prior to City Council's decision, based on the recommendation of the Site Designation Committee, to deny his application for a permanent vending spot.

This Court's review of a trial court's decision sustaining preliminary objections in the nature of a demurrer is limited to whether, on the facts averred, the law states with certainty that no recovery is possible. Hawks by Hawks v. Livermore, 157 Pa.Cmwlth. 243, 629 A.2d 270, 271 n. 3 (1993). This Court must accept as true all well-pleaded allegations and material facts averred in the complaint, as well as reasonable inferences therefrom, and any doubt should be resolved in favor of overruling the demurrer. Id.

The first issue is whether Vendor was deprived of a constitutionally protected property right to operate his hotdog stand at his customary site. This issue has previously been addressed by both this Court and the federal courts, which have determined that a vendor does not have a constitutionally protected property right to operate a vending or peddling cart in a particular location.

The City of Philadelphia's passage of an ordinance restricting operation of vending stands at previously acceptable locations caused two vendors to challenge the ordinance in Fetfatzes v. City of Philadelphia, 108 Pa.Cmwlth. 552, 529 A.2d 1220 (1987). In Fetfatzes, the appellants were licensed hotdog vendors, who had operated their stands for over ten years at the same location on Fourth Street, between Market and Chestnut Streets. Prior to the adoption of the new ordinance, the City allowed vendors, once licensed, to operate "at any location not specifically prohibited by [Philadelphia city ordinance]." Id. at 1224. The new ordinance added the vendors' customary site on Fourth Street, between Market and Chestnut, to the list of prohibited vending locations. The vendors argued that the City violated their due process rights because the new ordinance "effectively deprived Appellants of their right to engage in the business of vending...." Id. at 1222. This Court rejected that argument, and found no violation of a right to due process, because the new ordinance continued to allow those vendors to operate their vending business in other locations, and in no way prohibited the vendors from engaging in their occupation, just not at the particular location they desired. Id. at 1224. The Court reasoned, "[a]lthough we recognize that [the vendors] conducted their businesses in the same location for a number of years and most likely developed regular clientele, that is the risk to be assumed by the nature of the vending business." Id. at 1224. Thus, this Court found that the City of Philadelphia could prohibit the operation of vending carts at a customary location without offending a vendor's due process rights.

Similarly, in Lindsay v. City of...