Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of City of Philadelphia v. Southeastern Pennsylvania Transportation Authority, No. 5388 June Term, 1970.
Howard D. Scher, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellant.
William T. Coleman, Jr., with him John F. Smith, III, and Lewis H. Van Dusen, Jr., and, of counsel, Dilworth, Paxson, Kalish, Levy & Coleman and Drinker, Biddle & Reath, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Concurring Opinion by Judge Rogers.
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 in-applicable 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*fn1 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:
"(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 ...