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March 29, 1993


The opinion of the court was delivered by: STEWART DALZELL

 Dalzell, J. March 29, 1993

 Plaintiffs John O'Neill and Samuel Goodman have sued to challenge the 1989 reorganization of Philadelphia's system of adjudicating parking violations. Plaintiffs in their second amended complaint name as defendants the City of Philadelphia ("City"), the Office of Philadelphia's Director of Finance (the "Office of Director of Finance"), and the Philadelphia Bureau of Administrative Adjudication ("BAA"). *fn1"

 Plaintiffs claim that the 1989 reorganization violated the constitutional prohibition against ex post facto legislation, plaintiffs' due process rights under the Fifth and Fourteenth Amendments of the United States Constitution, and Pennsylvania law. Messrs. O'Neill and Goodman seek restitution of all fines, costs and fees they have paid as a result of the unlawful aspects of the reorganization, as well as injunctive relief.

 On October 15, 1992, we denied plaintiffs' motion for class certification. We concluded that maintaining this suit as a class action was not superior to other available methods for the fair and efficient adjudication of this controversy. We held instead that a test case would be far superior to a class action for resolution of this controversy.

 Both parties have moved for summary judgment after submitting a stipulation of facts. After carefully sifting through plaintiffs' many claims, we have found one nugget that warrants granting relief to plaintiffs, and to that extent we will grant plaintiffs' motion for summary judgment and deny defendant's.

 I. Factual Background

 The underlying facts of this suit are in all material respects uncontroverted.

 The essence of O'Neill and Goodman's second amended complaint is that the City violated their constitutional rights when a Hearing Examiner of the BAA rather than the Philadelphia Traffic Court (the "Traffic Court") adjudicated parking tickets they received before June 1, 1989. A brief history will highlight the significance of this change and how it came about.

 The Pennsylvania Constitution, Article 5, Schedule 16(s), authorized the creation of traffic courts throughout the Commonwealth. 42 Pa. Cons. Stat. § 1321 created the Philadelphia Traffic Court. Under 42 Pa. Cons. Stat. § 1302, the Pennsylvania General Assembly assigned Traffic Court exclusive jurisdiction over all summary offenses arising under Title 75 (Motor Vehicles) and under Local Ordinances enacted pursuant to Title 75. The City enacted Title 12 of the Philadelphia Code, which established traffic control rules, including parking violations, and provided for enforcement.

 In 1982, the Pennsylvania General Assembly authorized the Philadelphia Parking Authority to establish on-street parking regulations and create a comprehensive system of administration and enforcement. Pursuant to this enabling legislation, seven years later the Philadelphia City Council (the "City Council") adopted Bill No. 350 (the "Ordinance") on March 16, 1989. The Mayor signed the Bill No. 350 six days later. By its terms the Ordinance adds a new Chapter, 12-2800, et seq., entitled "Administrative Adjudication of Parking Violations," amending Title 12 of The Philadelphia Code. The Ordinance became effective on June 1, 1989, and granted the Director of Finance authority to adopt regulations for the hearing and determination of parking violations, and the imposition of civil penalties (12-2802[1]). The present action relates only to the retrospective application of this Ordinance.

 To understand plaintiffs' challenges to the retrospective application of the Ordinance, it is illuminating to examine briefly the process of adjudicating parking tickets that existed before the Ordinance became effective. Between 1982 and June 1, 1989, original jurisdiction lay with the Traffic Court and dissatisfied defendants appealed its decisions to the Court of Common Pleas of Philadelphia County (Exhibit 13, pp. 19-20). During that time, the Philadelphia Police Department brought tickets to the attention of the Traffic Court in the form of an information. The Traffic Court filed the information and generated a summons, ordering individuals to appear at trials to defend themselves on the criminal offense for all violations that remained unpaid after eight days (id. p. 21). If the summons did not elicit a response, the Traffic Court issued a warrant for the individual's arrest (id. at 25).

 The Ordinance created a period of dual jurisdiction. A person who had received a parking ticket, citation or summons from the Traffic Court between October 2, 1987 and June 1, 1989, could choose to proceed either in Traffic Court or the BAA (12-2807[8]). *fn2" This option was available until "the Fall of 1990" *fn3" , when the Traffic Court stopped hearing parking ticket cases. At this point we turn to the events that befell our plaintiffs, Goodman and O'Neill. Prior to June 1, 1989, they each received parking tickets in the City as follows: Goodman O'Neill May 16, 1989 May 1, 1989 December 7, 1988 October 10, 1988 December 11, 1987 November 28, 1987 December 11, 1987 February 26, 1987

 Neither paid the fines, and in accordance with the procedures described above, the Traffic Court lodged an information and issued a summons. A summons was served on each stating the fines and penalties for the offense, with a notice to appear in Traffic Court on a date certain. Neither Goodman nor O'Neill appeared for the scheduled hearing, and the Traffic Court periodically sent notices to them seeking payment (see Exhibit 6 and Stipulation of Facts P 21).

 In November of 1989, Goodman and O'Neill each received a "Violation Warning Notice" from the Office of the Director of Finance (Exhibit 4). This notice informed them that they could elect to appear before the Traffic Court, as a criminal matter, or proceed in the Director of Finance's Bureau of Administrative Adjudication as a civil action. *fn4" One of the many disputes between the parties centers on this notice. Plaintiffs contend that the notice the Director of Finance sent was legally insufficient to enable the recipient to make an intelligent waiver of his or her right to appear before the Traffic Court.

 Goodman and O'Neill took no action in response to this notice. As a result, each received an "Order of Default" which told them that the failure to pay the stated amount of fines and penalties "could result in the City taking additional legal actions against [them], which could have an adverse effect on [their] property rights, among other consequences" (Exhibit 11). On March 4, 1991, Goodman requested a hearing before the BAA to adjudicate a ticket he received on February 4, 1991. The BAA responded by scheduling a hearing for March 18, 1991, and listed six outstanding violations for disposition at that hearing. At the March 18 hearing, the BAA listed four additional tickets, including violations that had occurred before June 1, 1989 (Exhibit 7 and Stipulation of Facts P 15). Counsel for Goodman appeared at the hearing and objected to including tickets issued before June 1, 1989, on the basis that they were within the Traffic Court's exclusive jurisdiction and that Goodman did not consent to the BAA's jurisdiction. Moreover, Goodman's counsel raised the statute of limitations defense as to all the tickets that were more than two years old. *fn5"

 The Hearing Examiner overruled the objections, apparently stating that the BAA had jurisdiction regardless of consent, and that the statute of limitations defense only applied in Traffic Court which treated parking violations as criminal offenses (see Exhibit A, Affidavit of Vincent J. Ziccardi PP 5-9 attached to Plaintiffs' Memorandum in Support of Motion for Summary Judgment). The Hearing Examiner determined liability on the ten tickets, resulting in the dismissal or reduction of some, and assessed a total fine of $ 247.10. This fine included $ 173.00 for tickets issued before June 1, 1989. Goodman has paid his fines.

 When O'Neill tried to have three parking tickets listed for disposition in the Traffic Court in April of 1991, the court informed him that it no longer heard parking violation cases (Stipulation of Facts P 18). Subsequently, O'Neill requested and the BAA granted a hearing for August 30, 1991 (Stipulation of Facts PP 20-21). O'Neill attended the hearing with his counsel present, raised the same objections as Goodman, and experienced the same lack of success. The Chief Hearing Examiner determined liability, and reduced the assessment of fines to $ 45.00. To date, O'Neill has not paid any of his fines.

 On October 30, 1991, plaintiffs filed this action asserting violation of their rights under the United States Constitution. They also invoke their rights under 42 U.S.C. § 1983 and claim violations of Pennsylvania state law.

 Specifically, plaintiffs' second amended complaint asserts five counts. The First Count avers that the City violated plaintiffs' due process rights, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, because, at a minimum, the hearings before the BAA should have entitled plaintiffs to all the rights available in a pre-organization Traffic Court proceeding.

 The Second Count claims that the City violated plaintiffs' federal due process rights, as well as the United States Constitution's limitation on ex post facto legislation set forth in art. I, § 9, cl. 3 and art. I, § 10, cl. 1. Plaintiffs allege that the City violated these provisions of the federal Constitution primarily because the BAA did not obtain the plaintiffs' consent to its jurisdiction, as required by the Ordinance, and nevertheless (1) applied the laws and regulations governing hearings in effect under the 1989 amendments to violations that had occurred when exclusive jurisdiction resided in the Traffic Court, and (2) imposed the 1989 civil burden of proof to cases that remained within the exclusive jurisdiction of the Traffic Court and, thus, entitled to the criminal burden.

 The second amended complaint's Third Count alleges that the City violated state law by exceeding the authority granted by 42 Pa. Cons. Stat. § 345(17) when it amended the Traffic Code by providing, in § 12-2807(8), for the consent of ticket holders to retroactive application of the amended Traffic Code to pending violations cognizable in the Traffic Court. They contend that this was an unlawful extension of the BAA's subject matter jurisdiction. *fn6"

 The Fourth Count asserts that the BAA violated the United States Constitution's limitation on ex post facto legislation, as founded in art. I, § 9, cl. 3 and art. I, § 10, cl. 1, when it unlawfully extended the applicable statute of limitations by holding proceedings on parking violations that were time barred pursuant to Pennsylvania law, 42 Pa. Cons. Stat. § 5553(e). The Fourth Count further claims that these proceedings also violated 42 Pa. Cons. Stat. § 5553(e) by its own terms. *fn7"

 The Fifth Count alleges that the Ordinance, § 12-2807(4), is a Bill of Attainder to the extent it subjects plaintiffs' vehicles to seizure without a hearing in violation of art. I, § 10, cl. 1 of the United States Constitution.

 We have jurisdiction under 28 U.S.C. § 1343. *fn8"

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law, id. at 248, and all inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).

 On a motion for summary judgment, the moving party bears the initial burden of identifying for the Court those portions of the record that it believes demonstrate the absence of dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To defeat summary judgment, the non-moving party "may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49 .

 As noted above, given that the parties dispute the legal consequences of admitted public acts, this case is peculiarly appropriate ...

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