Opinion
No. 2391 C.D. 2014
07-06-2015
Frank Allen, Appellant v. City of Philadelphia
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Frank Allen (Allen) appeals, pro se, the order of the Court of Common Pleas of Philadelphia County (common pleas court) that denied Allen's appeal from the decision of the City of Philadelphia Tax Review Board (TRB).
Allen is the owner of five properties in the City of Philadelphia (City), located at 778 North 25th Street, 827 North 26th Street, 821 North 26th Street, 1700 West Girard Avenue, and 1702 West Girard Avenue (collectively, the Properties). The TRB assessed a refuse collection fee (Fee) for each Property. Section 10-717.1(2) of the Philadelphia Code, §10-717.1(2), provides that a $300 annual fee for refuse collection is assessed against properties in the City. Single family homes, condominiums, cooperatives, and properties using private waste hauling companies are exempt under the Philadelphia Code §10-717.1(2)(a)-(c). Duplexes, where one of the units is occupied by the owner, are exempt for fifty percent of the fee. Philadelphia Code §10-717.1(2)(d).
All of the Properties were multi-family residences subject to the Fee. On April 16, 2013, Allen petitioned the TRB's Office of Administrative Review and challenged the imposition of the Fee against the Properties. Following a continuance and a postponement due to weather, the TRB conducted a hearing on February 20, 2014.
Frank Leo (Leo), program administrator of the City of Philadelphia Street Sanitation Department, testified that for 821 North 26th Street for the year 2010, Allen owed $150 in principal, $63 in interest, and $11.25 in penalties for a total of $224.25. For 2011, Leo testified that Allen owed $300 in principal, $90 in interest, and $22.50 in penalties for a total of $412.50. For 2012, Allen owed $300.00 in principal, $48.00 in interest, and $27.00 in penalties for a total of $375.00. For 1702 West Girard Avenue, nothing was owed for 2010 and 2011. For 2012 there was a credit of $22.90 to be applied to the current year. For 827 North 26th Street, the balance for 2010 was $150 in principal, $63.00 in interest, and $9.38 in penalties for a total of $222.38. For 2011, the principal owed was $300 with interest of $90.00 and penalties of $18.75 for a total due of $408.75. For 2012, the principal owed was $300.00, with interest of $48.00, and penalties of $27.00 for a total of $375.00. For 1700 West Girard Avenue there was a zero balance for the years 2010-2012 with a balance for 2014 of $36.41. For 778 North 25th Street, there was a zero balance for 2010-2012 with a balance due for 2013 of $19.26. Notes of Testimony, February 20, 2014, (N.T.) at 3-6; Reproduced Record (R.R.) at 16a-19a.
Allen testified that for 1700 West Girard Avenue and 778 North 25th Street, he made payments at an August 9th hearing before a hearing master but that the City still listed a balance due when the balance should have been zero. N.T. at 6-7; R.R. at 19a-20a. Leo stated that he would look into the matter and "[w]e would certainly be glad to make that adjustment and further reduce the balance if we found that. I just can't see that with what's in front of me." N.T. at 10; R.R. at 23a.
With respect to all the Properties, Allen argued that the Fee could not be collected because it violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. He also argued that the Fee violated the Pennsylvania Constitution "Conformity Clause proportionality principal [sic]." N.T. at 11; R.R. at 24a.
It is likely that Allen meant "Uniformity" rather than "Conformity."
Allen argued:
Now, I'm simply [sic] situated with my residential tax-paying neighbors and I'm entitled to the same protection under the laws as they receive, and I shouldn't have to pay any more or less than my fair share of the cost of government. These are my fundamental rights.
I believe the ordinance violates those rights, and therefore, it cannot be collected on because of this violation. The Cityty [sic] has no jurisdiction dictating who has fundamental rights and who doesn't.
I don't have a problem paying for governmental services I receive over and above my neighbor, but I have a problem being denied, in this case, the sanitation pick-up that my neighbor receives. Like I said, I'm similarly situated, I'm not part of a high-rise or a guarded complex that does not receive ordinary pick-up.
In the past I received it prior to this ordinance. I put out my trash on the curb just like them, and with that said, I
should be given uniform government and equal protection under the law just like my neighbors.N.T. at 11-12; R.R. at 24a-25a.
Allen sought a refund for all tax years for which he paid the Fee, and any interest and penalties associated with the Fee. N.T. at 13; R.R. at 26a.
Leo did not believe that he was qualified to comment on the constitutionality of the Fee but asserted that it was a Fee and not a tax. Leo testified that it became necessary to charge the Fee when the City experienced fiscal issues and budget cuts in 2008. N.T. at 14-15; R.R. at 27a-28a.
For 821 North 26th Street, the TRB abated fifty percent of the interest and one hundred percent of the penalty for all years. For 827 North 26th Street, the TRB abated eighty percent of the interest and one hundred percent of the penalty. For 778 North 25th Street, the TRB abated the residual balance. For 1702 West Girard Avenue, the TRB found that it was paid in full and the credit was moved to another year and no action was needed by the TRB. For 1700 West Girard Avenue, the TRB granted the petition and abated the residual balance. N.T. at 17-18; R.R. at 30a-31a.
The TRB determined:
Petitioner [Allen] did not meet his burden of proof to provide the TRB with substantial evidence to establish that the ordinance should not be upheld or could not be applied to Petitioner's [Allen] properties. He did not provide evidence to address the issues of whether the ordinance violates the Uniformity provision of the Pa.
Constitution by impermissibly classifying categories of properties for purposes of this assessment, or that a fee of this nature fits into the category of 'taxes' covered by the Uniformity Clause.TRB Opinion, June 16, 2014, at 4; Supplemental Reproduced Record (S.R.R.) at S.R.R. 5b.
While Petitioner [Allen] stated his general disagreement with the Ordinance and the City's decision to distinguish his properties from neighboring properties, he did not cite any legal authority to establish that the City's classifications were constitutionally defective or in any other way outside the scope of the City's authority to impose such a fee.
Allen appealed to the common pleas court and argued that because the City had no compelling interest justifying the appeal and because this was an administrative appeal, the standard of review should be "stringent." He also argued that the City's justification for imposing the Fee (its financial constraints) was not a compelling interest. He also argued that the Ordinance was overly broad because Allen did not have a choice whether to pay the Fee. Allen also claimed that the Fee was arbitrary and intentionally discriminatory and infringed upon his fundamental right to property.
By order dated November 10, 2014, the common pleas court denied Allen's appeal. The common pleas court reasoned:
First and foremost, despite Appellant's [Allen] argument that strict scrutiny should be applied in this case, rational basis is the proper test for determining whether a tax ordinance runs afoul of the Fourteenth Amendment's Equal Protection Clause. . . . Under the rational basis test, a classification must simply bear a rational relationship to
a legitimate government objective. . . . Classifications within a tax scheme are evaluated as to whether the distinction between the classes is legitimate and non-arbitrary and provides a 'reasonable and just' basis for the differential treatment. . . . 'Stated alternatively, the focus of judicial review is upon whether there can be discerned 'some concrete justification' for treating the relevant group of taxpayers as members of distinguishable classes subject to different tax burdens.' . . . . When rational basis is deemed to be the proper standard, the challenging taxpayer bears the burden of demonstrating that the at-issue classifications are unreasonable. . . . This burden is a heavy one, in light of the presumption that an ordinance is constitutional unless it clearly, palpably and plainly violates the Constitution. . . .Common Pleas Court Opinion, January 13, 2015, at 4-5; S.R.R. at S.R.R.10b-S.R.R. 11b.
Applying the rational basis test, this Court determined that Phila. Code § 10-717.1(2) is constitutional because the classification of various types of property bears a rational relationship to the legitimate government interest of optimally providing refuse collection services with the City. In this case, the at-issue ordinance was enacted in 2010 and imposes an annual $300 fee on all residential and commercial properties which are eligible for curbside waste collection, but are not also eligible for the above-discussed, enumerated exemptions. . . . The rational [sic] for the 2010 ordinance, as articulated by Mr. Leo, was that due to the financial crisis of 2008 and the resulting budgetary issues, such a fee was necessary to continue providing service to commercial properties and to multi-unit residential properties. . . . This Court found that the budgetary concerns facing the City provided a legitimate governmental rational [sic] for imposing the refuse collection fee upon the articulated property classes. Given that Appellant [Allen] failed to demonstrate that Phila. Code § 10-717.1(2)'s [classifications] were unreasonable, there was thus no basis for sustaining his constitutional challenge to this ordinance; therefore, this Court properly denied Appellant's [Allen] appeal. . . . (Citations and Footnote omitted.)
Allen contends that the common pleas court erred because it failed to defend the United States Constitution and uphold Allen's fundamental right to equal protection under the law through the Fourteenth Amendment, Section One of the United States Constitution and because it failed to employ the strict scrutiny test to determine whether there was a constitutional violation.
Allen's Statement of Questions Involved consists of seventeen numbered paragraphs. Essentially, the main issues raised are those listed. Most of the paragraphs are statements that support his interpretation of his issues.
This Court's review is limited to a determination of whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact were supported by substantial evidence. Society Hill Civic Association v. Philadelphia Board of License & Inspection Review, 905 A.2d 579 (Pa. Cmwlth. 2006).
Initially, Allen contends that the City violated his fundamental rights to equal government and equal protection under the law, created a suspect class, and discriminated against him and others in his class. According to Allen, the common pleas court erred when it employed the rational basis test when it evaluated the constitutionality of the Fee.
This Court has held that where the legislative classification does not implicate fundamental rights or involve a suspect class, the rational basis test is the proper level of scrutiny. Muscarella v. Commonwealth, 87 A.3d 966 (Pa. Cmwlth. 2014). Under the rational basis test a classification must simply bear a rational relationship to a legitimate government objective. Strong v. City of Erie, 552 A.2d 350 (Pa. Cmwlth. 1989).
In Ramsgate Court Townhome Association v. West Chester Borough, 313 F.3d 157 (3d Cir. 2002), the United States Third Circuit Court of Appeals employed the rational basis test to determine that West Chester Borough did not violate the rights to equal protection of Ramsgate Court Townhome Association and other landowners when it declined to provide trash collection services to residential property owners whose property generated in excess of six thirty gallon containers of trash per week due to economic considerations. The same rationale applies here as a municipality facing economic constraints modified its trash collection policy.
Here, there is no fundamental right to municipal trash collection. Further, there is not a suspect class of multi-unit property owners. The common pleas court properly applied the rational basis test to determine that the Fee bore a rational relationship to the objective of providing municipal trash collection in the City while taking into account economic and budgetary constraints. The common pleas court did not err when it determined that the Fee did not violate Allen's right to due process.
Allen cites to an unpublished opinion, Philadelphian Owners Association v. City of Philadelphia, 57 Fed.Appx. 961 (3d Cir. 2003), for the proposition that economic considerations cannot be a legitimate compelling governmental interest. In reality, the case stands for the opposite.
Accordingly, this Court affirms.
Allen also contends that the common pleas court erred because it failed to find that all City officials who drew up, passed, adopted, and enforced the ordinance were liable for committing state ethics violations for conflict of interest and that the common pleas court erred because it did not address whether the City agencies, all City officials, and the City Law Department and its officers who drew up, passed, adopted, and enforced the ordinance that authorized the Fee were liable and subject to paying compensatory, punitive, special, and continuing damages. Similarly, Allen contends that the common pleas court erred when it immunized the City from punitive damage awards under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because this Court has determined that the Fee as applied to Allen passed constitutional muster, this Court need not address these issues. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 6th day of July, 2015, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge