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decided: July 22, 1987.


Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of John P. Morris, et al. v. Honorable W. Wilson Goode, et al., No. 484 October Term, 1985.


Peter V. Marks, Sr., with him, Bernard N. Katz, Meranze and Katz, for appellants.

Handsel B. Minyard, City Solicitor, with him, Richard L. Gold, Chief Deputy City Solicitor, and Eric H. Auerbach, Chief Assistant City Solicitor, for appellees.

Gary R. Leadbetter, with him, Donna M. Albani, Dilworth, Paxson, Kalish & Kauffman, for intervenor appellee, Rollins Cablevision of Philadelphia, Inc.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Craig

[ 107 Pa. Commw. Page 531]

Several Philadelphia City Council members and other taxpayers and residents of Philadelphia (plaintiffs)*fn1 appeal a Philadelphia Common Pleas Court order sustaining the preliminary objections of Mayor Wilson Goode, City Council President Joseph Coleman, other council members and city officials, and Rollins Cablevision of Philadelphia, Inc. (Rollins). We reverse and remand the case for further proceedings.

On November 14, 1982, the Mayor approved Ordinance No. 341, which was enacted by the city council pursuant to its powers under Section 2.2-200 of the Philadelphia Home Rule Charter. By this ordinance, city council awarded Rollins a cable television franchise for designated Area III of the city. Section 2 of Ordinance No. 341 provides, in pertinent part:

[ 107 Pa. Commw. Page 532]

The award of this franchise is subject to all of the terms of the Franchising Ordinance. . . . More particularly, the award is subject to the execution, and ratification by Council resolution, of a formal franchise agreement setting forth the terms and conditions for the operation of the Area III CATV system between ROLLINS CABLEVISION OF PHILADELPHIA, INC. and the city of Philadelphia. . . .

(Emphasis added.)

Pursuant to the terms of the ordinance, City Council Resolution No. 534, which approved the franchise agreement between the city and Rollins, was certified by the Council President.

The plaintiffs filed a complaint in equity seeking injunctive relief and charging that the approving resolution was adopted in the absence of a quorum and was therefore of no effect.

The Mayor, Council President and Rollins preliminarily objected on the ground, among others, that as a duly certified and filed resolution, the bill was entitled to a conclusive presumption of validity under the "enrolled bill doctrine." Field v. Clark, 143 U.S. 649 (1892). The common pleas court held that the resolution was valid and dismissed the complaint.

Preliminary objections are not to be sustained unless it is clear that the law will not permit the recovery being sought. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). Moreover, preliminary objections in the nature of a demurrer admit all well-pleaded facts as true. E-Z Parks, Inc. v. Larson, 91 Pa. Commonwealth Ct. 600, 498 A.2d 1364 (1985), aff'd, 509 Pa. 496, 503 A.2d 931 (1985). Consequently, we must proceed on the assumption that the council adopted the ratifying resolution without a quorum of members present.

[ 107 Pa. Commw. Page 533]

The defendants preliminarily objected to the plaintiff's complaint on three grounds which we will analyze individually: (1) the plaintiffs lack standing to question the legitimacy of a council resolution; (2) the enrolled bill doctrine affords the ratifying resolution a conclusive presumption of validity; and (3) the plaintiff's challenge is non-justiciable because the plaintiff-council members failed to follow council procedures for challenging the resolution.

1. Standing

Our Supreme Court outlined the general principles of standing as follows:

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. In particular, it is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law.

William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280-81 (1975).

The plaintiffs in this action may be categorized in three groups: (1) council members; (2) taxpayers and residents of the City of Philadelphia generally; and (3) taxpayers and residents of designated Area III of the City of Philadelphia. We shall consider the last two groups first.

In averment 28 of the complaint, the plaintiffs contend that they are "aggrieved" as follows:

(a) Plaintiffs' voice in City Government, through the power of their elected representatives, is being diluted by a ...

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