Appeal from the Court of Common Pleas of Philadelphia County, in the case of John J. Shanahan v. City of Philadelphia, No. 86-03-191.
Susan Shinkman, Divisional Deputy City Solicitor, for appellant.
No appearance for appellee.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.
[ 121 Pa. Commw. Page 603]
John J. Shanahan (Appellee) filed a complaint in equity in the Court of Common Pleas of Philadelphia County against the City of Philadelphia (City), seeking to have City Council (Council) Bill No. 516 stricken for failure to properly advertise its consideration. The Philadelphia Home Rule Charter requires that notice of public hearings on Council bills be published in the three daily newspapers in the City having the largest paid circulation. Bill No. 516 was advertised on October 8, 1985 only in The Legal Intelligencer and The Philadelphia Tribune, due to the fact that The Philadelphia Inquirer and The Philadelphia Daily News were not published the weeks of October 6 and October 13, 1985 because of a labor dispute. At the close of the pleadings, the trial court judge granted summary judgment in favor of Appellee, and the City has appealed from that order. We affirm.
[ 121 Pa. Commw. Page 604]
Initially, we note that summary judgment is available when a review of the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, considered together, discloses that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. Calesnick v. Commonwealth of Pennsylvania, Board of Finance and Revenue, 114 Pa. Commonwealth Ct. 292, 538 A.2d 989 (1988). In addition, it should only be granted where the right thereto is clear and free from doubt. Id.
The notice requirement, contained in Section 2-201(5) of the Philadelphia Home Rule Charter, § 2.2-201(5), provides, in part:
Notice of public hearings on bills and notice of bills reported from committee shall be given by advertising in the three daily newspapers of the City having the largest paid circulation, the title of the bill, and in the case of a public hearing, the time and place of the hearing, not less than five days before the public hearing or before the bill comes up for final consideration, as the case may be. In addition, such other notice may be given as will bring public hearings or reported bills to the attention of interested citizens.
In the notes following that section, its purpose is partially described as follows:
1. One of the main purposes sought to be accomplished is to prevent the hasty consideration and enactment of ordinances before citizens and the members of Council themselves have had an opportunity to be heard on the subject ...