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BERNARD FITZGERALD v. CITY PHILADELPHIA (02/11/85)

decided: February 11, 1985.

BERNARD FITZGERALD, ON BEHALF OF HIMSELF AND A CLASS OF ALL PERSONS SIMILARLY SITUATED, APPELLANT
v.
CITY OF PHILADELPHIA, APPELLEE. CITY OF PHILADELPHIA, APPELLANT V. BERNARD FITZGERALD, ON BEHALF OF HIMSELF AND A CLASS OF ALL PERSONS SIMILARLY SITUATED, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in case of Bernard Fitzgerald, on behalf of himself and a class of all persons similarly situated v. City of Philadelphia, No. 3526 May Term, 1978, dated September 3, 1982 and July 29, 1983.

COUNSEL

William A. Goichman, with him, David M. Rosenfield and Kenneth R. Gross, Rosenfield, Azrak, Ring & Benn ; Of Counsel: Laurence Ring, for appellant/appellee, Bernard Fitzgerald et al.

John M. Myers, with him, Amy E. Katz, Assistant City Solicitor, and Barbara W. Mather, City Solicitor, for appellee/appellant, City of Philadelphia.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Palladino. Opinion by President Judge Crumlish, Jr. This decision was reached prior to the resignation of Judge Williams, Jr. Concurring and Dissenting Opinion by Judge Doyle. Judge Williams, Jr. joins in this concurring and dissenting opinion.

Author: Crumlish

[ 87 Pa. Commw. Page 484]

Bernard Fitzgerald and the City of Philadelphia cross appeal from two Philadelphia County Common Pleas Court orders. We affirm as to the amount of damages; we reverse as to the award of counsel fees.

Fitzgerald filed a class action suit challenging the constitutionality of procedures under one of the City's towing ordinances. Representing a class of individuals whose vehicles had been towed and who -- through plea or adjudication -- were determined to have violated parking regulations,*fn1 he alleged the ordinance*fn2 offended procedural due process by not providing for a prompt hearing on the validity of a tow. The ordinance required that a towing and storage fee be paid before a vehicle would be released, with a hearing on a tow's legality (usually five weeks) later in Philadelphia Traffic Court.

Acting on cross-motions for summary judgment, the trial court on September 3, 1982, ruled that the ordinance's provision for a delayed hearing was unconstitutional. The court also disallowed Fitzgerald's request for punitive damages and decertified the class since only nominal damages were to be awarded. In addition, the court postponed action on Fitzgerald's request for an injunction in order to allow the City to implement proper constitutional procedures;*fn3 it also

[ 87 Pa. Commw. Page 485]

    granted him reasonable attorney fees. On July 29, 1983, an order awarded Fitzgerald $38,700 in counsel fees, to be paid by the City.

Fitzgerald appeals that part of the September 3, 1982 order which (1) limits damages to a nominal amount,*fn4 arguing that class members are entitled to refunds of towing and storage fees, (2) set the amount of counsel fees awarded, contending that the City should also pay the fees due while he pursued the counsel fees award.

The City moves to quash and/or dismiss these appeals. We will first address the arguments raised in this motion.

The City first contends in its motion that Fitzgerald's brief was not timely filed. This fails because the brief was sent by first-class mail on the filing deadline and is thus deemed to be filed on that date. Pa. R.A.P. 121(a).*fn5 The next contention is that the text of Fitzgerald's brief raises arguments not contained in its Statement of Questions Involved, and it is likewise without merit. Pa. R.A.P. 2116(a) ...


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