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WM. PENN PARKING GARAGE v. CITY PITTSBURGH (10/03/75)

decided: October 3, 1975.

WM. PENN PARKING GARAGE, INC., ET AL.
v.
CITY OF PITTSBURGH, APPELLANT



COUNSEL

Grace S. Harris, Mead Mulvihill, Jr., Dept. of Law, Pittsburgh, for appellant.

Leonard Boreman, Richard H. Martin, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., filed a concurring opinion in which Jones, C. J., and Pomeroy, J., join. Nix, J., concurs in the result.

Author: Roberts

[ 464 Pa. Page 181]

OPINION

On January 26, 1973, the City of Pittsburgh adopted an ordinance imposing a tax on all patrons of "non-residential parking places" in the amount of 20% of the consideration paid for storage of any vehicle in such a parking place. On February 14, 1973, this appeal from adoption of the ordinance, pursuant to section 6 of the Local Tax Enabling Act,*fn1 Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6906 (1972) (the Act),*fn2 was brought by nine operators of commercial parking facilities and fifty-five other persons.*fn3

[ 464 Pa. Page 182]

The City filed preliminary objections in the nature of a demurrer contending that (1) none of the plaintiffs were "taxpayers . . . aggrieved by the ordinance" authorized by section 6 to appeal from its adoption, (2) section 6 is an unconstitutional delegation of taxing power to the judiciary "insofar as it permits a court to determine the reasonableness of a tax rate and to reduce any rate it finds unreasonable without providing standards to guide the court's determination," and (3) the petition failed to state a cause of action. The court of common pleas sustained the objections on both of the first two grounds asserted by the City. It therefore dismissed the petition without leave to amend.

The plaintiffs appealed to the Commonwealth Court. They admitted certain formal defects in their petition, but contended that they should have been permitted to correct these by amendment.*fn4 On this basis, they argued that the trial court had erred as to both substantive grounds on which it based the dismissal of the petition. The Commonwealth Court agreed with them and reversed. William Penn Parking Garage, Inc. v. City of Pittsburgh, 11 Pa. Commw. 507, 314 A.2d 322 (1974). Because of the importance of the issues involved to the administration of the Act, we allowed this appeal.*fn5 We affirm the order of the Commonwealth Court.

Part I of this opinion will consider the contentions of the City relating to the trial court's refusal to allow

[ 464 Pa. Page 183]

    amendment, a question which assumes peculiar importance in the procedural setting of this litigation. Part II will resolve the dispute over standing of the plaintiffs to maintain this statutory appeal. Part III will deal with the claim that the Act has unconstitutionally delegated legislative power to the judiciary.

I

It is now agreed that the petition is formally defective because it fails to allege any manner in which the individual plaintiffs are "aggrieved by the ordinance,"*fn6 though it has been assumed at all stages of the proceedings that they are individuals who are liable for the tax imposed by the ordinance.*fn7 The City maintains that this formal defect is fatal to the petition because the trial court properly refused to allow amendment.

If the trial court were correct in refusing to allow the amendment, the City's position would be well taken because the Act requires "taxpayers representing twenty-five percent or more of the total valuation of real estate in the political subdivision . . . or taxpayers of the political subdivision not less than twenty-five in number aggrieved by the ordinance" to bring an appeal under section 6.*fn8 If the individual appellants are not permitted to allege the basis on which they are "aggrieved by the ordinance," only the parking operators would remain and they are fewer than 25 in number. Because there is no claim that the plaintiffs own "twenty-five percent or more of the total valuation of real estate" in the City, the petition would then fail to comply with the threshold requirements of section 6. However, we conclude that the trial court was not correct in refusing to allow amendment.

[ 464 Pa. Page 184]

The City's argument on this point is twofold. It argues, first, that no amendment to a petition under section 6 is permitted after the thirty-day period allowed for filing such petitions. Second, even if the statute permits a petition to be amended after expiration of the thirty-day period, the City argues that the trial court did not abuse its discretion in refusing to allow amendment. We find no merit in either contention.

The City argues that the brief period allowed for the taking of appeals under section 6 is intended to promote early determination of the validity of taxing ordinances in order to minimize the uncertainty which would otherwise affect budgetary planning. See Alco Parking Corp. v. City of Pittsburgh, 6 Pa. Commw. 433, 446, 291 A.2d 556, 563, 295 A.2d 349 (1972) (dictum), rev'd on other grounds, 453 Pa. 245, 307 A.2d 851 (1973), rev'd on other grounds, 417 U.S. 369, 94 S.Ct. 2291, 41 L.Ed.2d 132 (1974); Jones v. Oxford School District, 3 Pa. Commw. 102, 108, 281 A.2d 188, 191 (1971) (laches will bar equitable action to enjoin collection of a tax). From this proposition the City argues that taxpayers proceeding under section 6 should not be permitted to amend their petitions after expiration of the thirty days allowed for commencement of an appeal. However, the only direct support offered for this position is Archbold v. Codorus Township School District, 33 Pa.D. & C.2d 311, 315-16 (Q S.York 1963) (dictum).

Apparently recognizing the weakness of its position, the City seeks to bolster its argument by reliance on two cases involving elections. Pietrowski Nominating Petition, 24 D. & C.2d 239 (C.P. Philadelphia 1961); Williams v. Todman, 367 F.2d 1009 (3d Cir. 1966).*fn9 Pietrowski

[ 464 Pa. Page 185]

    refused to allow amendment of a motion to strike a nominating petition to cure a failure to specify the signatures attacked after expiration of the time allowed for filing objections to such petitions. In Williams, a petition to set aside a nominating petition was filed on September 12, the last day on which such petitions were permitted. However, it was not presented to any judge for action, as required by statute, until September 24, immediately after an amended petition was filed. Because the statute required that hearings on such petitions be conducted not later than September 16 and final determinations be made not later than September 21, the court of appeals held that the district court was powerless to act when the petition was presented to the court on September 24. It also held that the petition was barred by failure of the plaintiff to prosecute it with due diligence. Finally, the court noted that the petition, as originally filed, was defective because it failed to set forth specifically the plaintiff's objections. It then held, relying on Pietrowski, that the amendment of the petition could not cure the defect because the amendment was filed too late.

Assuming that these cases correctly hold that defects in a challenge to a nominating petition may not be cured by amendment after expiration of the time allowed for filing of such challenges,*fn10 we conclude that they are distinguishable. The peculiar reasons for requiring rigid adherence to statutory time limits are well stated by the opinion in Williams :

"[T]he time limits fixed by section 412 are mandatory and not merely directory, since that section is intended

[ 464 Pa. Page 186]

    to provide the efficient procedure for the speedy determination of controversies regarding nomination petitions which is absolutely essential if political campaigns are to proceed in order and primary and general elections are to be held without confusion, or even at all.

"That this must necessarily be the construction to be placed upon the Virgin Islands statute is highlighted by the situation in which we find ourselves today. For although we heard argument in this appeal only 10 days after it was docketed and only 16 days after the order appealed from was entered, our decision, rendered with the greatest dispatch, comes down only 13 days before the day of the general election in the Virgin Islands. And it must be remembered that this proceeding is an attack upon nomination petitions filed in behalf of candidates who might have had to run in a primary election on October 4th, the very day on which the district court heard and decided the matter, if such a primary election had been required. It hardly needs to be added that if the court had set aside the petition the Republican primary election, which in that event would have been required by 18 V.I.C. § 359 to be held on October 4th, could not actually have been held. Indeed it would have been difficult enough to prepare for and hold such a primary election on October 4th even if the district court had set aside the petition on September 21st, the last day for such action fixed by section 412."

367 F.2d at 1012-13.

However great the need for prompt determination of the validity of a tax, it cannot be compared with the exigencies resulting from the need to conduct an election on a specific date, fixed in advance. Consequently, we conclude that Pietrowski and Williams have no application in this case.

[ 464 Pa. Page 187]

We hold that section 6 does not preclude amendment of a petition after expiration of the period allowed for commencing an appeal. We base this conclusion on two factors. First, the rule argued for by the City encourages hyper-technicality and formalism in pleading, contrary to the modern practice of allowing free amendment in order to promote resolution of cases on their merits. See, e. g., Schaffer v. Larzelere, 410 Pa. 402, 406-07, 189 A.2d 267, 270 (1963); Pa.R.Civ.P. 126, 1033; Fed.R.Civ.P. 1, 15(a) & (b). Second, the proposed restriction of amendments would tend to defeat, rather than promote, a prompt determination of the validity of a taxing ordinance.

In its brief, the City speaks in terms of taxpayers "delaying" a tax by proceedings under section 6. However, section 6 specifically provides that "[n]o . . . appeal shall act as a supersedeas unless specifically allowed by the court to which the appeal is taken or a judge thereof."*fn11 Because no supersedeas has ever been allowed in this case, there has been no disruption of collection of the tax involved.

The interest of the municipality which is served by prompt determination of the validity of the tax is the ability to plan its budget. The municipality should know if the tax is invalid as promptly as possible so that it may consider other sources of revenue. This interest cannot be served by a dismissal of an appeal brought under section 6 on a ground unrelated to the merits unless all other challenges to the validity of the ordinance are foreclosed. If other challenges are not foreclosed, dismissal of an appeal under section 6 simply defers the determination of validity to a later proceeding.

In fact, avenues of attack other than section 6 are available in which the validity of a taxing ordinance may be determined. The principal alternative to section 6 is

[ 464 Pa. Page 188]

    an action for a refund.*fn12 The General Assembly has authorized such suits by those who have paid "any taxes of any sort . . . to which [a] political subdivision is not legally entitled" except where "the taxpayer involved had or has available . . . a specific remedy by way of review, appeal, refund or otherwise, for the recovery of moneys paid as aforesaid."*fn13 Failure to take an appeal under section 6 would not bar an action for refund. Pickar v. Owen J. Roberts School District, 4 Pa. Commw. 273, 276-78, 286 A.2d 14, 16-17 (1972) (alternate holding).*fn14 Another avenue for challenging the validity of a

[ 464 Pa. Page 189]

    taxing ordinance which is available in some circumstances is an action in equity. See Borough of Greentree v. Board of Property Assessments, Appeals & Review, 459 Pa. 268, 328 A.2d 819 (1974) (opinion announcing the judgment); id. at 283-286, 328 A.2d at 826-28 (concurring opinion); and the cases there collected.

Because there are other procedures by which the validity of a taxing ordinance may be challenged, it would be counter-productive to dismiss proceedings under section 6 solely on the basis of curable defects. We therefore conclude that section 6 does not preclude amendment of a petition after expiration of the thirty days allowed for the commencement of an appeal.*fn15

The City also urges that, even if section 6 did not preclude amendment of the petition, the trial court did not err in refusing to allow amendment. In support of its argument it quotes Kilian v. Allegheny County Distributors, 409 Pa. 344, 347, 185 A.2d 517, 519 (1962):

"The amendment of pleadings is a matter for the exercise of a wise and judicial discretion in the court below. The right to amend should be liberally granted at any stage of the proceedings, unless there is

[ 464 Pa. Page 190]

. . . resulting prejudice to an adverse party." (footnote omitted; emphasis in original)

It is the contention of the City that it would be prejudiced by a grant of leave to amend. However, the "prejudice" it asserts is of the same type it urged in support of a rule precluding any amendment of the petition after the expiration of the period allowed for filing it -- that is, "delay" in the tax and uncertainty in its financial affairs. We find these arguments no more persuasive in the present context than we did before.

Finally, it is urged that the decision of the trial court on leave to amend, being an exercise of its discretion, may not be reversed in the absence of plain error. See Schaffer v. Larzelere, 410 Pa. 402, 406-07, 189 A.2d 267, 270 (1963); Trabue v. Walsh, 318 Pa. 391, 177 A. 815 (1935). That rule has no application in this case.

The trial court's denial of leave to amend was not based upon an ordinary exercise of its discretion. It considered at some length whether the fact that individual plaintiffs were subject to the tax imposed by this ordinance would suffice to render them "aggrieved by the ordinance." It concluded that this fact would not be sufficient and therefore refused to allow an amendment to allege that fact because such an amendment would be futile. There is no basis in the record for the belief that leave to amend would have been denied had the trial court concluded that the amendment would have overcome the defect in the petition resulting from failure to allege any manner in which the individual plaintiffs were "aggrieved by the ordinance." Thus, if the trial court erred in its initial premise, the denial of leave to amend cannot stand.

[ 464 Pa. Page 191]

II

We now turn to the question of whether the plaintiffs in this case are "aggrieved by the ordinance."*fn16 We shall first discuss the general principles applicable to this inquiry. Then, because the standing of the individual plaintiffs is crucial to the maintenance of this proceeding,*fn17 we will consider whether they are "aggrieved by the ordinance." Finally, we will consider the standing of the parking operators.

A

The established formulation of what is necessary to render a person "aggrieved" by an order or other action, which originated in Lansdowne Board of Adjustment's Appeal, 313 Pa. 523, 525, 170 A. 867, 868 (1934), appeared most recently in Man O' War Racing Association, Inc. v. State Horse Racing Commission, 433 Pa. 432, 441, 250 A.2d 172, 176-77 (1969):

"'[The party] must have a direct interest in the subject-matter of the particular litigation, otherwise he can have no standing to appeal. And not only must the party desiring to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary and not a remote consequence of the judgment. The interest must also be substantial.' Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961)."

It appears that certain aspects of this formulation have resulted in confusion among the lower courts, including

[ 464 Pa. Page 192]

    the trial court in this case. Consequently, we must attempt to clarify the relevant principles in this opinion.

The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not "aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge.*fn18 In particular, it is not sufficient for the person claiming to be "aggrieved" to ...


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