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CITY PHILADELPHIA AND W. WILSON GOODE v. MAX WEINER AND CONSUMERS EDUCATION & PROTECTIVE ASSOCIATION (CEPA) (11/15/88)

decided: November 15, 1988.

CITY OF PHILADELPHIA AND W. WILSON GOODE, MAYOR, GENEVIEVE GRANT, REVENUE COMMISSIONER, FLORENCE SCOTT, COMMISSIONER OF RECORDS, APPELLANTS
v.
MAX WEINER AND CONSUMERS EDUCATION & PROTECTIVE ASSOCIATION (CEPA), APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Max Weiner and Consumers Education & Protective Association (CEPA) v. City of Philadelphia and W. Wilson Goode, Mayor, Genevieve Grant, Revenue Commissioner, Florence Scott, Commissioner of Records, No. 3659 June Term, 1988.

COUNSEL

Seymour Kurland, City Solicitor, with him, Evan Meyer, Assistant City Solicitor, and Arlene F. Bell, Deputy City Solicitor, for appellants.

Max Weiner, appellee for himself.

David Kairys, with him, Adam Thurschwell, Kairys & Rudovsky, for appellee, Consumers Education & Protective Association (CEPA).

Howard D. Scher, with him, Dennis P. Lynch ; Of Counsel: Lennard B. Steinberg, Montgomery, McCracken, Walker & Rhoads, for intervening appellees, Christopher Artur, Stephen F. Blau, Allan Domb, Joseph C. Fluehr, Jr., Joseph E. Sindoni and the Philadelphia Board of Realtors.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, Palladino and McGinley. Opinion by Judge Craig. Judge MacPhail did not participate in the decision in this case. Judge Doyle dissents. Judge Palladino dissents.

Author: Craig

[ 121 Pa. Commw. Page 141]

The City of Philadelphia appeals a decision of Judge Murray C. Goldman, of the Court of Common Pleas of Philadelphia County, granting a preliminary injunction which enjoined the city from enforcing Bill 164, a provision to increase the amount of the city's real estate transfer tax.*fn1

The issue presented in this appeal is whether a councilmanic bill to amend the Philadelphia realty transfer tax rate has been "considered at a public hearing" in accordance with section 2-201(2) of the Philadelphia Home Rule Charter if it remained blank as to the proposed rate of tax, which council did not disclose until after adjournment of the public hearings. We conclude that because the rate of the tax was in fact the only aspect of the transfer tax to be amended, and because council never disclosed that indispensable element of the bill before or during the public hearings, council therefore did not provide a complete or meaningful bill to be "considered at a public hearing," and thus violated section 2-201(2) of the charter. Hence, we affirm.

The facts of the case are undisputed. On May 12, 1988, as part of the council's 1988-1989 fiscal year budget process, Council President Joseph E. Coleman introduced Bill 164, entitled an Ordinance to "Amend Section 19-1403 of the Philadelphia Code relating to imposition of the realty transfer tax by increasing the rate of tax imposed by taxable conduct." The only change to section 19-1403, as proposed by Bill 164, related to the

[ 121 Pa. Commw. Page 142]

    rate of the tax. However, Bill 164 contained no indication of the proposed new rate.

On May 13, 1988, the bill was advertised for a public hearing before the Committee of the Whole, which council scheduled for May 18, 1988. The advertisement for the public hearing contained no mention of the proposed rate of increase.

On May 18, 1988, the committee conducted the advertised hearing. Although testimony was heard on Bill 164, at no time during the hearing did the committee discuss or reveal any proposed tax rate. The committee recessed the hearing and scheduled it to be reconvened on May 23, 1988.

When the hearing reconvened on May 23, 1988, the committee again failed to disclose the proposed tax rate. The committee continued the hearing a second time to May 24, 1988. At this hearing, the committee again did not announce a proposed rate of increase of the tax. At the conclusion of the last public hearing, Council President Coleman stated "[w]e at this time are going to close the public hearing and go into public meeting . . . [to] vote on bills as they come up." Then, in the public meeting, Councilman Street, for the first time, proposed an increase of one-and-one-half percent (1.5%) to the existing two-and-one-half percent (2.5%) realty transfer tax. In a public meeting as distinguished from a hearing, council does not entertain any comment from the public. The committee rejected the proposed increase.

Later in the public meeting, in the early morning hours of May 25, 1988, Councilman Street again proposed the same amendment, changing the realty transfer tax from 2.5% to 4.0%. At that time, the committee approved Councilman ...


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