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Reverend Earl L. Harris, Nevin Mindlin, and Eric v. Governor Thomas W. Corbett and David Unkovic

May 2, 2012


The opinion of the court was delivered by: Hon. John E. Jones III



This matter is before the Court in a unique procedural posture. Presently pending are the Plaintiffs' Motion for a Preliminary Injunction (Doc. 18) and the Defendants' Motion for Judgment on the Pleadings. (Doc. 10). In reviewing the parties' respective Motions, the Court opined, to the agreement of the parties, that the most appropriate course was to hold a hearing permitting the Plaintiffs to present testimony to establish standing, noting that we must decide preliminary justiciability matters as a precursor to any consideration of the merits of this dispute. (Docs. 27, 48). A hearing limited in scope to the question of justiciability was held on March 21, 2012, and the Court ordered an expedited briefing schedule that same day. (Doc. 53). The Court is now in receipt of both parties' post-hearing submissions and is prepared to rule on the pending Motions.


It is no secret that the City of Harrisburg ("City" or "Harrisburg") stands on the verge of a debilitating financial collapse, burdened with well over $300 million in debt, and that it has already ceased payments on some of its obligations. Likewise, it is well known that this state of financial despair is largely attributable to a botched retrofit of the City's municipal incinerator nearly a decade ago. It is against this daunting factual backdrop that the instant action was initiated. Because the complex and unfortunate factual predicate leading to this lawsuit is entirely evident to the parties----and the public at large----we shall derive only the most pertinent facts from the record and recite them here.

The Plaintiffs are three long-time citizens and recognized civic leaders residing in the City of Harrisburg. Plaintiff Reverend Earl L. Harris ("Harris") is a pastor at St. Paul Baptist Church on North 17th Street in Harrisburg. (Doc. 1, ¶ 5). Plaintiff Nevin Mindlin ("Mindlin") is a former Harrisburg mayoral candidate who has written and spoken extensively on the state of Harrisburg's financial distress. (Id. ¶ 6). Plaintiff Eric Jenkins is the president of the City's firefighters' union. (Id. ¶ 7). The Defendants are Thomas W. Corbett, Governor of the Commonwealth of Pennsylvania, ("Defendant Governor Corbett") and David Unkovic, the City's court-appointed receiver, ("Defendant Receiver"), both of whom are named in their official capacities.*fn1 (Id. ¶¶ 8-9).

The Financially Distressed Municipalities Act, 53 P.S. §§ 11701.101-.501 ("Act 47"), is a statutory mechanism by which a financially distressed municipality in Pennsylvania can request technical and financial assistance from the state government. On October 1, 2010, the City of Harrisburg filed an application with the Pennsylvania Department of Community and Economic Development ("DCED"), seeking a determination that the City was a "financially distressed municipality" and taking the first step toward entering the Act 47 program. (Doc. 1, ¶ 25). On December 15, 2010, the DCED granted the City's application, designating Harrisburg as a financially distressed municipality and admitting the City into the Act 47 financial assistance program. (Id. ¶26).Under Act 47, as it then existed, the DCED or its designee would formulate a recovery plan and present it to the City; if the City refused to adopt the recovery plan, the state's financial assistance would simply end. (Id. ¶ 27). On July 19, 2011, the Harrisburg City Council rejected the Commonwealth's proposed recovery plan by a 4-3 vote. (Id. ¶ 43).

On October 10, 2011, Defendant Governor Corbett signed into law legislation amending Act 47 ("Act 47 Amendments" or "the Amendments").*fn2 The Act 47 Amendments altered Act 47 in several critical ways. Section 602(a) authorizes the Governor to designate financially distressed municipalities upon consideration of several statutorily-enumerated factors and, at his discretion, to make a declaration of fiscal emergency. See 53 P.S. § 11701.602(b) (as amended). Section 702 permits the Governor to "direct the secretary [of the DCED] to file a petition in [the] Commonwealth Court to appoint" a receiver to the financially distressed city. Id. § 11701.702(a). In such an event, the Act 47 Amendments authorize the Governor, or his designee, to collect funds on behalf of the city and its authorities, to obtain emergency financial aid, to enter into contracts and agreements on behalf of the city, and to exercise any other power necessary to "ensure the provision of vital and necessary services" to the city. Id. § 11701.604(a)(1)-(5). The Act 47 Amendments altered the term "vital and necessary services" to include fulfillment of payment of the city's debt or other financial obligations. See §11701.601 (definitions).

On October 24, 2011, by the authority vested in him under Act 47, as amended, Defendant Governor Corbett executed a Declaration of Fiscal Emergency for the City of Harrisburg. (Doc. 1, Ex. 2). The Commonwealth Court, on petition and nomination of Defendant Governor Corbett, appointed Defendant David Unkovic ("Defendant Receiver") as the Act 47 receiver to the City, and on February 6, 2012, the Defendant Receiver filed his Recovery Plan with the Commonwealth Court. The Honorable Bonnie J. Leadbetter of the Commonwealth Court preliminarily approved the Recovery Plan by Order dated March 9, 2012.

The declaratory action sub judice was initiated by a Complaint filed December 1, 2011, shortly after the Act 47 Amendments became effective. (Doc. 1). The Plaintiffs contend that Act 47, as amended, and the Recovery Plan proposed and approved thereunder, violate their rights to equal protection and due process under the United States Constitution and, further, violate the Pennsylvania Constitution's proscription against "special laws." (Doc. 1). They seek to have this Court declare Act 47, as amended, unconstitutional, and to permanently enjoin the Defendants from enforcing Act 47 or implementing any provision of the Recovery Plan promulgated thereunder. (Docs. 1, 18). On February 6, 2012, the Defendants filed their Answer to the Complaint (Doc. 9) simultaneously with their pending Motion for Judgment on the Pleadings. (Doc. 10). The Defendants contend that the Plaintiffs have failed to overcome preliminary justiciability matters and, in any event, have failed to claim violation of a cognizable constitutional right. (Doc. 10).

On February 23, 2012, the Plaintiffs filed the instant Motion for a Temporary Restraining Order and/or Preliminary Injunction. (Doc. 18). A telephonic conference call was held on February 27, 2012, and on February 28, 2012, the Court issued an Order denying the request for a temporary restraining order and scheduling an injunction hearing for March 21, 2012. (Doc. 27). At that proceeding, the Court heard testimony from several witnesses, including the three Plaintiffs, limited solely to the Court's preliminary justiciability concerns.*fn3

Plaintiff Harris testified that he is employed as a pastor, serving a congregation in the City of Harrisburg, and that he pays both earned income and real estate taxes and uses the City's parking facilities. (Hr'g Tr., 27:14-22, 30:17- 23). He also testified that for over a year, the City has been aware of a sinkhole on a street near his home, and that said sinkhole is dangerous and has yet to be repaired. (Id. at 29:12-16). Finally, Plaintiff Harris explained that, in his opinion, if the earned income and real estate taxes were increased consistent with the Recovery Plan's recommendations, the City would experience "more flight" with "everybody who can getting out." (Id. at 31:1-32:8).

Plaintiff Mindlin likewise testified that he is a resident of the City of Harrisburg who pays real estate and earned income taxes and uses the City's parking facilities. (Id. at 37:18-25, 42:3-9). Plaintiff Mindlin opined that any increase in taxes or parking facility expenses would result in "people mov[ing] out" and leaving the remaining citizens to carry increased financial burdens. (Id. at 45:7-17). Plaintiff Jenkins also testified that he is a taxpaying resident of the Harrisburg. (Id. at 48:4-7). Moreover, he testified that he is a firefighter with the City and president of the firefighters' local union, Local 428. (Id. at 48:9-17). Plaintiff Jenkins contends that if the minimum recall and minimum manning provisions were eliminated as proposed by the Recovery Plan, less firefighters would be present at the scene of any given fire within the City, placing himself and other firefighters in harm's way. (Id. at 54:12-17).

At the close of testimony, the Court issued an expedited post-hearing briefing schedule, directing counsel to limit their argument to the Court's justiciability concerns. (Doc. 53). The Court is now in receipt of both parties' post-hearing submissions (Docs. 55, 57) and is prepared to rule on the pending Motions.


A federal court must satisfy itself that the jurisdictional prerequisites of Article III of the United States Constitution are fulfilled prior to deciding the merits of any suit brought before it, regardless of whether the parties have independently raised the question of justiciability. Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003). Such questions ...

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