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UNICO VILLAGE v. PHILADELPHIA WATER DEPT. AND PHILADELPHIA DEPT. COLLECTIONS. CITY PHILADELPHIA (06/15/79)

decided: June 15, 1979.

UNICO VILLAGE, INC.
v.
PHILADELPHIA WATER DEPT. AND PHILADELPHIA DEPT. OF COLLECTIONS. CITY OF PHILADELPHIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Unico Village, Inc. v. Philadelphia Water Department and Philadelphia Department of Collections, No. 2852 September Term, 1974.

COUNSEL

Barbara R. Axelrod, Assistant City Solicitor, with her James M. Penny, Jr., Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellant.

Richard J. Gordon, with him Benjamin R. Jones, and, of counsel, Dilworth, Paxson, Kalish, Levy & Kauffman, for appellee.

President Judge Bowman and Judges Wilkinson, Jr., Rogers, Blatt, Craig and MacPhail. Judges Crumlish, Jr., Mencer and DiSalle did not participate. Opinion by Judge Rogers. President Judge Bowman dissents.

Author: Rogers

[ 43 Pa. Commw. Page 387]

Philadelphia Water Department Regulation 34(B)(1)(b) modified the phrase "purely public charity" appearing in the Philadelphia Code by limiting the class described to organizations "which are supported by voluntary contributions" and, based on the modification, denied Unico Village, Inc. the benefit of charity water rates. On appeal, the Court of Common Pleas of Philadelphia County held the modification void, ordered the Water Department to supply Unico water at the charity rates pursuant to Section 5-801 of the Philadelphia Home Rule Charter and Section 13-101(2)(e) of the Philadelphia Code, and the City Department of Collections to refrain from collecting from Unico charges for water other than at charity rates.

Unico is a non-profit corporation which operates an apartment community for elderly persons of limited income. It is exempt from federal and state income taxation and local real estate taxation. The Water Commission denied Unico's application for charity rates. Unico filed a petition for review with the Philadelphia Tax Review Board which, after conducting hearings, determined that Unico was a "purely public charity" entitled to charity rates although not supported by voluntary contributions. The Philadelphia Department of Collections, however, refused to follow the decision of the Tax Review Board and threatened to shut off the water supply to Unico unless regular rates were paid. The Department of Collections asserted

[ 43 Pa. Commw. Page 388]

    that the Tax Review Board had no jurisdiction to adjudicate Unico's entitlement to charity rates. Unico then filed a complaint in mandamus and equity against the Water Department and the Department of Collections seeking an order that defendants abide by the decision of the Tax Review Board. The court below granted Unico the relief it sought. The defendants filed exceptions which were dismissed and a final decree, described above, was entered. The Water Department and the Department of Collections have appealed.

Three questions are raised by the appellants.

1. Did the Tax Review Board exceed its jurisdiction in granting relief from a determination of the Water Department regarding the water rate applied to appellant?

2. Did the Tax Review Board abuse its authority in entertaining plaintiff's petition after the Law Department had advised the Board that it had no jurisdiction over the instant matter?

3. Is the Water Department's Regulation 34(B)(1)(b), promulgated pursuant to legislative power granted the Department by the Philadelphia Code, a ...


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