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decided: July 8, 1981.


Original jurisdiction in the case of Philadelphia Facilities Management Corporation, in its own right and on behalf of the Philadelphia Gas Works and all of its rate-paying customers, and Philadelphia Gas Works, in its own right and on behalf of all of its rate-paying customers v. The Honorable Edward G. Biester, Attorney General for the Commonwealth of Pennsylvania, and The Honorable Howard A. Cohen, Secretary of Revenue for the Commonwealth of Pennsylvania, and The Honorable Robert E. Casey, State Treasurer for the Commonwealth of Pennsylvania.


Daniel J. Zucker, with him James Lewis Griffith, and John J. Leonard, Obermayer, Rebmann, Maxwell & Hipple, for plaintiffs.

Robert B. Hoffman, Deputy Attorney General, with him Norman D. Watkins, Deputy Attorney General, Allen C. Warshaw, Chief, Civil Litigation, and Harvey Bartle, III, Attorney General, for defendants.

Stephen P. Ulan, with him George D. Gould, and Stephen Bosch, for intervenor, Tenant Action Group.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Williams, Jr., Craig and Palladino. Judges Blatt and MacPhail did not participate. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case. Judge Palladino dissents.

Author: Williams

[ 60 Pa. Commw. Page 370]

Before us in this matter is an original action challenging the constitutionality of the Utility Service Tenants Rights Act.*fn1 The suit was brought by Philadelphia Facilities Management Corporation (Management Corporation) suing on behalf of itself, on behalf of the Philadelphia Gas Works (PGW), and on behalf of all the ratepaying customers of PGW. Also named as a party-plaintiff is PGW itself, suing in its own right and on behalf of all its ratepaying customers. The plaintiffs urge this Court to declare the Act to be violative of the federal and state constitutions, and to enjoin the Act's enforcement.*fn2

The defendants are the state Attorney General, the state Secretary of Revenue, and an organization called "Tenant Action Group," which was permitted to intervene as a party-defendant. The defendants have filed preliminary objections which (1) demur to the standing of the named plaintiffs to bring the action; (2) question, by demurrer, the legal sufficiency of the complaint; and (3) move for a more specific complaint. The preliminary objections, and only the preliminary objections, are the point of our decision in the instant matter.

The Utility Service Tenants Rights Act (Act), enacted in 1978, seeks by a series of provisions to protect the utility service to residential tenants from discontinuance caused by the failure of the landlord ratepayer to pay the bill. One of the striking features of the Act is that it applies only to a public utility owned or operated by a "municipal corporation" as that term is defined by the Act.

The Act provides that before a subject utility may discontinue service to a residential landlord ratepayer,

[ 60 Pa. Commw. Page 371]

    the utility must give such a landlord at least 37 days advance written notice of the proposed discontinuance. More significantly, the utility must also give written notice of the proposed discontinuance to "each residential unit reasonably likely to be occupied by an affected tenant."*fn3 And, the utility must notify a prescribed agency of local government. The notice to the tenants must be given at least 7 days after notice to the landlord and at least 30 days before any actual discontinuance. Notice to the local agency must be given at the time the tenants are notified.

The Act imposes on the landlord a duty of supplying the utility with the names and addresses of every affected tenant. So too, the Act imposes on the utility the duty of pursuing any appropriate legal remedy to obtain that information from a landlord.

What may be considered the key substantive provisions of the Act for tenants are Sections 7 and 9.*fn4 Section 7 grants to affected tenants the legal right to prevent discontinuance of service by paying the landlord's utility bill, and states in part as follows:

(a) At any time before or after service within the utility's corporate limits is discontinued by a public utility on account of nonpayment by the landlord ratepayer, the affected tenants may apply to the utility to have service continued or resumed. A public utility shall not discontinue such service or shall promptly resume service previously discontinued if it receives from the tenants an amount equal to the bill of the landlord ratepayer for the 30-day period preceding the notice to the tenants.

By force of Section 9 of the Act, any tenant who has made such payment is entitled to deduct it from any

[ 60 Pa. Commw. Page 372]

    rent or other charges owed to the landlord, or to obtain reimbursement from the landlord.

The power and the duty of enforcing the Act are vested in the Attorney General. The Attorney General may seek injunctive relief to restrain any person from using any method, act or practice declared by the Act to be unlawful.*fn5 In that regard, if it is found by the court that any such violation was willful the offender may be subject to a civil penalty of up to $1000.00 for each violation. If a person violates the term of any injunction, he shall forfeit and pay a civil penalty of up to $5,000.00 for each such violation. The civil penalties assessable under the Act are payable to the Commonwealth.*fn6

We turn now to the plaintiffs' complaint. Besides contesting the reasonableness of the notice provisions and making general allegations of adverse public impact, the complaint raises five identifiable constitutional challenges to the Act.

First, it is asserted that the Act is so indefinite, inconsistent and confusing that it frustrates interpretation and execution of its terms, and thereby unfairly exposes the plaintiffs to substantial civil penalties for noncompliance. In short, this is a challenge that the Act is "void for vagueness." Second, the complaint charges that the Act infringes on the right of the plaintiffs and all Philadelphians to local self-government under the city's home rule charter, as guaranteed by the state constitution. Third, it is alleged that the Act deprives Management Corporation, PGW and their ratepaying customers of due process of law as guaranteed by both the federal and state constitutions. Underlying this allegation is the further contention that the plaintiffs are compelled, under threat of civil

[ 60 Pa. Commw. Page 373]

    penalty, to supply gas at their own expense to persons not under a contract to pay for the service. Fourth, the complaint asserts that the Act alters and impairs the terms, conditions, and rights of the plaintiffs under existing contracts, with specific regard to the delivery of gas, the termination of service, and the obligation to pay for it. And, Fifth, the Act is challenged as being in violation of the uniformity provisions of the state constitution and the equal protection clause of the federal constitution. This challenge is directed to the fact that the burdens imposed by the Act apply only where the utility is one owned or operated by a "municipal corporation." Thus, it is claimed that the Act subjects plaintiff PGW to penalties which do not confront non-municipal utilities.

Given the provisions of the Act and the plaintiffs' challenges to its validity, we first consider whether the named plaintiffs have standing: to bring this suit in their own right or on behalf of the other interests designated. To resolve this question we must analyze the nature of the named plaintiffs and their relation to the matter in controversy.

The Philadelphia Gas Works, or PGW as it is referred to in this opinion, is not an identifiable legal entity or agency, but is merely the collective name for all the real and personal property by which the City of Philadelphia furnishes gas to customers. Legal title to all that property, including real estate, facilities and equipment, is in the name of the City of Philadelphia. This, the nature of PGW, was specifically noted by the Federal District Court for the Eastern District of Pennsylvania in Dawes v. Philadelphia Gas Commission, 421 F. Supp. 806, 811 (E.D. Pa. 1976). We know of nothing which has altered the nature of PGW for purposes of the instant suit; indeed, there is no allegation by the plaintiffs which even suggests any change.

[ 60 Pa. Commw. Page 374]

It has long been an axiom of our legal system that, in order to maintain a suit, a would-be plaintiff must have an actual or legal existence. The plaintiff may be a natural or artificial person, but must be an entity which the law recognizes. E.g., Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935); McConnell v. Apollo Savings Bank, 146 Pa. 79, 23 A. 347 (1892). Since PGW is not a legal entity of any type, the above jural principle precludes PGW from being a party plaintiff, either for itself or on behalf of any other person. Accordingly, that dimension of this case must be, and is, dismissed.

The standing of Management Corporation presents a more complex question. We start with the self-evident root principle that any objection to the validity of a statute can only be raised by a person having the right to do so. E.g., Kauffman v. Osser, 441 Pa. 150, 156, 271 A.2d 236, 239 (1970). A person who is not adversely or directly affected by a statute cannot attack the validity of its provisions. White v. Philadelphia, 408 Pa. 397, 184 A.2d 266 (1962). See Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). It is also fundamental that a court will not heed objections to the constitutionality of a statute unless the complainant is harmed by the particular feature alleged to be unconstitutional; that is, the complainant must be harmed by the particular defect that is claimed to make the statute unconstitutional. Booz v. Reed, 398 Pa. 172, 157 A.2d 170 (1960); Dwyer v. Dilworth, 392 Pa. 123, 139 A.2d 653 (1958); Knowles's Estate, 295 Pa. 571, 145 A. 797 (1929).

The type of harm that can give one standing to challenge the constitutionality of a statute must be a harm in the nature of some special damage or injury to him in a right of person or property. Kauffman, ...

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