United States District Court, E.D. Pennsylvania
THE PROPERTY MANAGEMENT GROUP, LTD., B.H. HOLDING CORP., CORE ASSET MANAGEMENT, LLC, GABRIEL FALCO, ELBA GONZALEZ, PENNSYLVANIA APARTMENT ASSOCIATION, EAST, ABOB'S TOWING, INC., SIANI'S TOWING AND RECOVERY, LLC, LEWIS BLUM TOWING, INC., Plaintiffs,
CITY OF PHILADELPHIA, JIM KENNEY, PHILADELPHIA POLICE DEPARTMENT, and RICHARD ROSS, JR., Defendants.
B. BRODY, J.
a coalition of private parking lot owners and towing
companies, have towed the City of Philadelphia into court on
account of a recently enacted ticket-to-tow ordinance. The
ordinance requires a neutral City official, like the police,
to verify a parking violation and issue a ticket before a
vehicle may be towed. The parking lot owners and towing
companies allege this mandate is more than just a speed bump,
arguing the ordinance is preempted by state law and that it
functions as an unlawful taking and deprivation of procedural
due process. The City, claiming this case is a dead end,
moves to dismiss the Complaint. Regrettably for Plaintiffs,
the wheels have come out from under them; their Complaint
reaches the end of its road.
BACKGROUND AND HISTORY OF THE ORDINANCE
streets of Philadelphia, as frequently reported in the press,
parking is an intractable problem. The reputation of private
towing companies has been tarnished: media accounts detail
the vilification of law-abiding tow truck companies, given a
bad name by their unscrupulous and predatory brethren who tow
legally parked vehicles. Municipal regulations have permitted
tow truck drivers to be “judge, jury, and
executioner” of parking violations, meaning the tow
driver is permitted to both determine if a car is parked
illegally and collect fees for towing it. This system has led
to widespread abuse, perpetrated by a small number of towing
companies, and a chorus of civilian complaints. City Council
Hr'g Tr. 50:18-51:20, Nov. 29, 2016.
and towing regulation in Philadelphia is governed by state
law and by municipal ordinance, promulgated by the City
Council. Section 3353(b)(1) of the Pennsylvania
Vehicle Code makes it unlawful for anyone to park a vehicle
on private property without the consent of the owner. 75 Pa.
Cons. Stat. Ann. § 3353. To protect a parking space
owner's exclusive right of possession over his or her
privately owned spaces, this statute also grants private
property owners the right to “remove or have removed
the vehicle at the reasonable expense of the owner of the
vehicle.” 75 Pa. Cons. Stat. Ann. §
3353(c). A property owner may exercise this right so
long as a sign is posted to notify the public of relevant
parking restrictions. 75 Pa. Cons. Stat. Ann. §
City Council has enacted towing ordinances under Section
9-605 of the Philadelphia Code, regulating both consensual
and non-consensual tows. Regulations require, among other
things, licensing of towing services, approval of fee
schedules, proof of insurance, vehicle inspections, and
driver background checks. See Phila. Code §
9-605 et seq. Section 9-605(11)(a) of Philadelphia's
towing ordinance also mandates specific signage requirements,
ensuring motorists are aware of restrictions before an
offending vehicle may be towed. If signage requirements have
not been followed, towing of the vehicle is
response to complaints about abusive towing practices, the
City Council has experimented with a variety of solutions. In
2010, the City amended its towing ordinance to add a
ticketing requirement, largely identical to the ordinance now
before this Court. Adding a layer of government approval
between the tow truck and the public, the 2010 ordinance
required ticketing by the police before an illegally parked
vehicle could be towed away at the motorist's expense.
Compl. 4-5, ECF No. 1.
City abandoned the first ticket-to-tow ordinance in 2012
after it proved “unworkable.” Compl. 5, ECF No.
1. Instead of a ticketing requirement, new regulations were
promulgated that required a towing company to photograph an
offending vehicle's license plate, as well as the sign
prohibiting parking, and notify the police of any impending
tow. See Phila. Code § 9-605(11)(e) (repealed
2017). A vehicle owner was entitled to a copy of
these photographs before the owner was required to pay towing
and storage fees. Id. Failure to comply with these
mandates subjected the towing company to monetary penalties
and a license suspension. Further, if a vehicle about to be
towed had been reported stolen, towing of the vehicle was
prohibited for 24 hours to give the owner time to reclaim the
vehicle on site. Phila. Code § 9-605(11)(d) (repealed
solution, as well, had its detractors. City Council Hr'g
Tr. 53:18-55:18, Nov. 29, 2016. Private parking lot owners
were unhappy with the 24-hour waiting period for stolen
vehicles. When a stolen vehicle was left undisturbed for 24
hours, property owners were unable to use their parking
spots, and the stolen vehicle was often vandalized or
re-stolen. Id. 54:1-15. To combat this, the
City began towing all stolen vehicles to a secure lot, and
waived fees if an owner reclaimed his or her vehicle within
24 hours. This often left towing companies unpaid for their
work. Id. at 54:16-55:9. Further, the City reported
that it received complaints of no parking signs being posted
after a car was parked, and cars being moved from lawful
spots to unlawful ones to provide a predicate to tow.
Id. at 51:11-20.
City Council again explored amending towing regulations in
2016. On November 29, 2016, a public hearing was held on Bill
No. 160682 (“the 2016 ordinance, ” or “the
Ordinance”). The 2016 Ordinance proposed reinstating
the ticket-to-tow requirement, but omitting the 24-hour
waiting period for stolen vehicles. At the hearing, testimony
was given by individual citizens, the Philadelphia Police
Department, and a representative from Plaintiff Pennsylvania
Apartment Association, East, on behalf of private parking lot
owners. The City Council heard complaints about abusive
towing practices, as well as complaints about the burden of
the 24-hour waiting period and of the long delays, waiting
for police to arrive to issue a ticket, that private lot
owners endured under the prior ticket-to-tow ordinance. A
representative of the Police Department testified that a
ticketing requirement was necessary to properly determine the
legality of disputed tows. Id. at 57:14-24.
No. 160682, amending Section 9-605 of the Philadelphia Code,
was passed by the City Council on December 8, 2016 and signed
by Mayor James Kenney on January 24, 2017. The law went into
effect on February 1, 2017. Balancing the competing interests
involved, the final amended Ordinance resurrects the
ticketing requirement to ensure that a neutral law
enforcement authority first certifies that a vehicle is
unlawfully parked before it may be towed. But to minimize
delays in waiting for a ticket, the Ordinance expands the
entities eligible to determine if a car is illegally parked.
Rather than requiring a ticket from the Philadelphia Police
Department, the Ordinance allows “other law enforcement
authorities, ” to issue tickets, which includes the
Parking Authority, SEPTA, and various university-affiliated
police forces. Phila. Code § 9-605(d); City Council
Hr'g Tr. 56:13-20; 90:17-91:24, Nov. 29, 2016. The
24-hour waiting period for stolen vehicles was removed
Property Management Group, Ltd., B.H. Holding Corp., Core
Asset Management, LLC, Pennsylvania Apartment Association,
East, Gabriel Falco and Elba Gonzalez (“Property
Owners”), Abob's Towing, Inc., Siani's Towing
and Recovery, LLC, Lewis Blum Towing, Inc., (“Towing
Companies, ” collectively, “Plaintiffs”)
now bring suit in this Court against the City of Philadelphia
(“the City”), seeking to invalidate the Ordinance.
Plaintiffs' Complaint, ECF No. 1, makes three primary
claims in two counts. In Count I, Property Owners and Towing
Companies claim the Ordinance was impermissibly enacted and
is preempted by state law. They seek an order under the
Declaratory Judgments Act, 42 Pa. Cons. Stat. Ann. §
7532, declaring that the Ordinance is void because the City
Council exceeded its power under Article IX, Section 2 of the
Pennsylvania Constitution and §§ 13131 and 13133 of
the Home Rule Act. They also seek an order that the Ordinance
is void because it is preempted by the state Vehicle Code, 75
Pa. Cons. Stat. Ann. §§ 3351-3354. In Count II,
Property Owners claim the Ordinance is
unconstitutional. They claim the Ordinance operates as an
unlawful taking without just compensation, in violation of
Art. I, Sec. I of the Pennsylvania Constitution and the Fifth
and Fourteenth Amendments of the United States Constitution.
The Property Owners also claim the Ordinance violates their
procedural due process rights because the Ordinance impinges
upon their property interests without a requisite
February 15, 2017, Property Owners filed suit in the Court of
Common Pleas, seeking to enjoin the Ordinance. They amended
their complaint on March 21, 2017, and it was timely removed
by the City. ECF No. 1. On March 28, 2017, the City moved to
dismiss the Complaint in its entirety for failure to state a
claim upon which relief can be granted. ECF No. 5. I exercise
jurisdiction over this dispute pursuant to federal question
jurisdiction 28 U.S.C. § 1331, and supplemental
jurisdiction, 28 U.S.C. § 1367.
deciding a motion to dismiss under Rule 12(b)(6), a court
must “accept all factual allegations as true, construe
the complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.”
Phillips v. County of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008) (internal quotation marks omitted).
survive dismissal, a complaint must allege facts sufficient
to “raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In order to determine
the sufficiency of a complaint under Twombly and
Iqbal, a court must engage in the following
First, the court must take note of the elements a plaintiff
must plead to state a claim. Second, the court should
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Finally, where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209,
212 (3d Cir. 2013), as amended (May 10, 2013)
(quoting Burtch v. Milberg Factors, Inc., 662 F.3d
212, 221 (3d Cir. 2011).
a general matter, a district court ruling on a motion to
dismiss may not consider matters extraneous to the pleadings.
However, an exception to the general rule is that a
‘document integral to or explicitly relied
upon in the complaint' may be considered . . . .”
In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997) (citations omitted). Thus,
a court may consider “the complaint, exhibits attached
to the complaint, matters of public record, as well as
undisputedly authentic documents if the complainant's
claims are based upon these documents.” Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
a facial challenge to a legislative or municipal act is
“the most difficult challenge to mount
successfully.” United States v. Salerno, 481
U.S. 739, 745 (1987). To deem the statute facially invalid,
the challenger must establish “that no set of
circumstances exists under which [the statute] would be valid
. . . or that the statue lacks any plainly legitimate
sweep.” United States v. Stevens, 559 U.S.
460, 472 (2010). Courts are generally to defer to the
judgment of the legislature, and “do not sit as a
super-legislature to weigh the wisdom of legislation nor to
decide whether the policy which it expresses offends the
public welfare.” Day-Brite Lighting Inc. v. State
of Missouri, 342 U.S. 421, 423 (1952).
COUNT I - PREEMPTION
Count I of their Complaint, Property Owners and Towing
Companies make several overlapping arguments. First, they
claim that enactment of the Ordinance runs afoul of the City
Council's powers under Article IX, Section 2 of the
Pennsylvania Constitution and § 13133(a) of the Home
Rule Act. Specifically, they allege the Ordinance was
erroneously enacted because “it involves the regulation
of parking, which is not an inherently municipal
function.” Pls.' Resp. Mot. Dismiss 29, ECF No. 6.
Second, they argue that the Ordinance is violative of §
13133(b) of the Home Rule Act because the Ordinance is
preempted by Vehicle Code § 3353(c). Finally, they make
out a standard conflict preemption claim, arguing directly
that the Ordinance conflicts with Vehicle Code § 3353(c)
and is therefore preempted. The City moves to dismiss
Count I of the Complaint because, they argue, the Ordinance
is a valid exercise of the City's municipal power as a
Enactment under the Home Rule Act, § 13133(a) -
is fundamental that municipalities are creatures of the state
and that the authority of the Legislature over their powers
is supreme.” Naylor v. Township of Hellam, 565
Pa. 397, 403 (2001) (citations omitted). The City's
“ability to exercise municipal functions is limited
only by its home rule charter, the Pennsylvania Constitution,
and the General Assembly.” City of Philadelphia v.
Schweiker, 579 Pa. 591, 605 (2004). “[I]n
analyzing a home rule municipality's exercise of power .
. . [courts] begin with the view that it is valid absent a
limitation found in the Constitution, the acts of the General
Assembly, or the charter itself, and [courts] resolve
ambiguities in favor of the municipality.” Nutter
v. Dougherty, 595 Pa. 340, 357 (2007) (citations
omitted). See also 53 Pa. Cons. Stat. Ann. §
2961 (“All grants of municipal power to municipalities
governed by a home rule charter under this subchapter . . .
shall be liberally construed in favor of the
City of Philadelphia exists as a first class city under the
Home Rule Act, 53 Pa. Stat. Ann. § 13131 et
seq. See also 351 Pa. Code §§
1.1-100-12.12-503 (Philadelphia's Home Rule
Charter). The Home Rule Act is an enabling statute that
“grants to first class cities that adopt a home rule
charter, i.e., Philadelphia, ‘complete powers
of legislation and administration in relation to its
municipal functions.'” City of Philadelphia v.
Rendell, 888 A.2d 922, 929 (Pa. Commw. Ct. 2005)
(quoting 53 Pa. Stat. Ann. § 13131). Section 13133(a) of
the Home Rule Act places limits on a municipality's
powers by “identify[ing] those activities that do not
constitute home rule municipal functions.” Id.
Section 13133(b) of the Home Rule Act dictates that “no
city shall exercise powers contrary to, or in limitation or
enlargement of, powers granted by acts of the General
Assembly which are . . . applicable in every part of the
Commonwealth.” 53 Pa. Stat. Ann. § 13133(b). A
municipal ordinance can therefore be violative of §
13133(a) of the Home Rule Act, by regulating in an
impermissible area, or of § 13133(b) of the Act, by
regulating inconsistently with state statute.
identified, there are three external limits to the City's
municipal power: the Constitution, the Home Rule Charter, and
state statute. Plaintiffs point to no internal provisions of
the Pennsylvania Constitution that deem the Ordinance outside
the bounds of the City's municipal power. They also fail
in arguing that § 13133(a) of the Home Rule Act limits
the City's ability to legislate in the area of parking or
towing. While it is true that parking is not an inherently
municipal function, that does not mean the City cannot
regulate in that area. City of Philadelphia v.
Rendell, 888 A.2d at 929 n. 18 (“There is no
authority for the City's premise that parking is an
inherently municipal function.”). This merely means
that a municipality may not point to the Home Rule Act as its
source of authority to regulate parking, but must derive the
power to regulate parking from another statutory source.
“[T]he Parking Authority Law, a non-home rule
enactment, is the source of the [parking regulation] power,
53 Pa. C.S. § 5504(a), and the source of the City's
power to delegate parking functions to the [parking
authority], 53 Pa. C.S. § 5505(a).” Id.
(citing Schweiker, 579 Pa. at 610). Although
parking is not an inherently municipal function, neither
‘parking' nor ‘towing' is expressly
listed as an activity “that [does not] constitute home
rule municipal functions” in Section 13133(a) of the
Home Rule Act. City of Philadelphia v.
Rendell, 888 A.2d at 929. Property Owners and Towing
Companies therefore fail in claiming that the Ordinance
violates § 13133(a) of the Home Rule Act by regulating a
Preemption Claims under the Home Rule Act, §
Property Owners and Towing Companies hitch their remaining
allegations in Count I to the third external constraint on
municipal power, arguing the Ordinance is preempted by state
statute. “Preemption takes three forms . . . express,
conflict, and field preemption.” Nutter v.
Dougherty, 595 Pa. at 357. “Total preemption is
the exception and not the rule.” Council of
Middletown Township v. Benham, 514 Pa. 176, 184 (1987).
Plaintiffs make no claim of field, or total, preemption.
Instead they assert that the Ordinance is expressly preempted
by § 6101(a) of the Vehicle Code. They also argue that
conflict preemption applies, and that the Ordinance fails
because it conflicts with § 3353(c) of the same Vehicle
Code. The City asserts that the Vehicle Code “indicates
no intent to preempt local action . . . .” Defs.'
Mot. Dismiss 11, ECF No. 5.
state statute to expressly preempt local action, the General
Assembly must “expressly signal its preemptive
intent” in the relevant statute. Nutter, 595
Pa. at 357. Express preemption requires a “clear
statement of legislative intent to preempt” and absent
such a statement, “state legislation will not generally
preempt local legislation on the same issue.” Mars
Emergency Med. Servs., Inc. v. Township of Adams, 559
Pa. 309, 315 (1999).
Property Owners and Towing Companies point to § 6101(a)
of the Vehicle Code as “express” intent to
preempt. That provision reads: “no local authority
shall enact or enforce any ordinance on a matter covered by
the provisions of this title unless expressly
authorized.” 75 Pa. Cons. Stat. Ann. § 6101(a).
Although dubious whether or not this provision qualifies as a
clear statement of legislative intent to preempt all local
ordinances on the subject, such an inquiry is of no
moment. Merely because the General Assembly
requires express statutory authorization for local regulation
does not mean the legislature has decreed that municipalities
many not regulate in the area. See Benham, 514 Pa.
at 180 (“The state is not presumed to have preempted a
field merely by legislating in it.”). Furthermore, the
Vehicle Code does in fact “expressly authorize”
towing regulation. Section 3353(c) of the Vehicle Code, the
very provision Property Owners and Towing Companies claim
conflicts with the Ordinance, see infra, states that
“[a]ny city . . . may, by ordinance, provide . . . for
municipal regulation of authorized towing ...