City of Harrisburg v. Intergovernmental Coop. Auth. for Harrisburg

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Harrisburg, Mayor :
Eric Papenfuse and Bruce :
Weber, :
:
Petitioners :
:
v. : No. 180 M.D. 2020
: Argued: December 8, 2020
Intergovernmental Cooperation :
Authority for Harrisburg, :
:
Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 7, 2021

Before the Court are the preliminary objections of the
Intergovernmental Cooperation Authority for Harrisburg (Authority) to the petition
for review filed in our original jurisdiction by the City of Harrisburg (City),1 Mayor
Eric Papenfuse (Mayor), and Bruce Weber (Director), the City’s Director of
Financial Management, pursuant to the Declaratory Judgments Act (DJA), 42 Pa.
C.S. §§7531-7541. The petition for review seeks a declaration that Director, as an

1
The City is a City of the Third Class. See 122 The Pennsylvania Manual 6-5, 6-46, 6-53
(2017); Emert v. Larami Corporation, 200 A.2d 901, 902 n.1 (Pa. 1964) (“Courts will take judicial
notice of geographical facts such as the county in which a town or city is located.”) (citations
omitted).
ex officio member, has the right to participate fully in the Authority’s executive
sessions, and an injunction to enjoin the Authority from excluding and precluding
Director from participating in all of the Authority’s public and executive session
meetings. The Authority preliminarily objects to the City’s and the Mayor’s
standing to initiate and prosecute this matter.2 We sustain the preliminary objections,
dismiss the City and the Mayor as parties to this action, and direct the Authority to
file an answer to the Director’s petition for review.
The relevant facts of this case as gleaned from the petition for review
may be summarized as follows. The Authority was created pursuant to Section
201(a) of the Intergovernmental Cooperation Authorities Act for Cities of the Third
Class (Act 124),3 which was enacted to help Cities of the Third Class, such as the
City, to achieve financial stability and exit distressed municipality status under the
Municipalities Financial Recovery Act (Act 47),4 the statute enacted to assist such
financially distressed municipalities. See Section 706(2) of Act 124, 53 P.S.
§42706(2) (“The distressed status of a city under [Act 47] shall terminate when an

2
Pa. R.C.P. No. 1029(a)(5) states, “Preliminary objections may be filed by any party to
any pleading and are limited to the following grounds: . . . (5) lack of capacity to sue[.]” When
ruling on preliminary objections contesting a party’s standing to initiate and maintain a matter, this
Court must “accept as true all well-pleaded allegations of material facts as well as all of the
inferences reasonably deducible from the facts. For preliminary objections to be sustained, it must
appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor
of the non-moving party.” Gregory v. Pennsylvania State Police, 160 A.3d 274, 276 (Pa. Cmwlth.
2017) (citation omitted).

3
Act of October 24, 2018, P.L. 751, 53 P.S. §42201(a). Section 201(a) states, in relevant
part: “A body corporate and politic to be known as the Intergovernmental Cooperation Authority
for (name of city) is established as a public authority and instrumentality of the Commonwealth
for each city that shall exercise public powers of the Commonwealth as an agency and
instrumentality thereof.”

4
Act of July 10, 1987, P.L. 246, as amended, 53 P.S. §§11701.101–11701.712.
2
intergovernmental cooperation agreement is entered into by the city and an authority
under section 203(d).”). As stated in Section 203(a) of Act 124, the Pennsylvania
General Assembly created the Authority “for the purpose, without limitation[,] . . .
of assisting the assisted city in solving its budgetary and financial problems.” 53
P.S. §42203(a). To this end, Section 203(b)(1) outlines the extensive powers
conferred upon the Authority with respect to the City’s finances “[t]o assist the
assisted city in achieving financial stability in any manner consistent with the
purposes and powers described by this act.” 53 P.S. §42203(b)(1). The primary
goal of the Authority is to negotiate and finalize a five-year financial recovery plan
and an intergovernmental cooperation agreement with the City. See, e.g., Sections
203(b), 209, and 210 of Act 124, 53 P.S. §§42203(b), 42209, 42210.
Additionally, Section 202(a)(1)(vi) of Act 124 provides, in pertinent
part:

[T]he director of finance of an assisted city shall serve as
[an] ex officio member[] of the board. The ex officio
members may not vote and shall not be counted for
purposes of establishing a quorum. [T]he director of
finance of an assisted city may designate in writing a
representative of [his] respective office[] to attend
meetings of the board on [his] behalf.
53 P.S. §42202(a)(1)(vi). Thus, by statute, the Director is an ex officio member of
the Authority.
Although the Director, or his designee, has attended monthly Authority
board meetings, on at least three occasions, the Authority has excluded the Director
from executive sessions in spite of his stated intention to attend. See Petition for
Review ¶¶22-25. The Mayor has also asked the Authority to permit the Director to
participate in the executive sessions, yet the Authority has denied these requests
without explanation and has not provided the Director with summaries or minutes
3
from the executive sessions that he has been prevented from attending. See id. ¶¶26-
31. As a result, the City, the Mayor, and the Director filed the instant petition for
review seeking declaratory and injunctive relief to compel the Authority to permit
the Director to attend and participate in the Authority’s executive sessions.
In ruling on the Authority’s preliminary objections, we initially note
that our Supreme Court has explained:

In Pennsylvania, the doctrine of standing at issue in
this matter is a prudential, judicially created principle
designed to winnow out litigants who have no direct
interest in a judicial matter. For standing to exist, the
underlying controversy must be real and concrete, such
that the party initiating the legal action has, in fact, been
“aggrieved.” As this Court explained[,] “the core concept
[of standing] is that a person who is not adversely affected
in any way by the matter he seeks to challenge is not
‘aggrieved’ thereby and has no standing to obtain a
judicial resolution to his challenge.” A party is aggrieved
for purposes of establishing standing when the party has a
“substantial, direct and immediate interest” in the outcome
of litigation. A party’s interest is substantial when it
surpasses the interest of all citizens in procuring obedience
to the law; it is direct when the asserted violation shares a
causal connection with the alleged harm; finally, a party’s
interest is immediate when the causal connection with the
alleged harm is neither remote nor speculative.

Thus, while the purpose of the [DJA] is to “settle and to
afford relief from uncertainty and insecurity with respect
to rights, status, and other legal relations, and is to be
liberally construed and administered,” the availability of
declaratory relief is limited by certain justiciability
concerns. 42 Pa. C.S. §7541(a). In order to sustain an
action under the [DJA], a plaintiff must allege an interest
which is direct, substantial and immediate, and must
demonstrate the existence of a real or actual controversy,
as the courts of this Commonwealth are generally
proscribed from rendering decisions in the abstract or
issuing purely advisory opinions.
4
Office of Governor v. Donohue, 98 A.3d 1223, 1229 (Pa. 2014) (citations omitted).
In Count I of the petition for review, the following injunctive relief is
requested:

a. An injunction, permanently enjoining the [Authority]
from taking any action to prohibit, impede, discourage or
otherwise prevent [the Director] or his designee from fully
participating in all public and executive sessions of the
[Authority]; and

b. Such other further relief as this Honorable Court
deems just and proper.
Petition for Review at 11-12.
In Count II of the petition for review, the following declaratory relief is
requested:

a. Judgment declaring that the [Authority] has violated
Act 124[’s] enabling legislation by precluding [the
Director] from attending executive sessions;

b. Judgment declaring that the [Authority] has no lawful
authority to exclude [the Director] from the [Authority’s]
executive sessions; and

c. Such other and further relief as this Honorable Court
deems just and proper.
Petition for Review at 14.
Based on the allegations and the relief requested, it is clear that the
Director has standing to initiate this action and prosecute the instant petition for
review. In a similar case involving the Pennsylvania Gaming Control Board’s
(Board) exclusion of the Commonwealth’s Treasurer from Board executive sessions
based on his status as an ex officio member, this Court stated:

Simply on the basis that the Board seeks to preclude
the Treasurer from participating in deliberative sessions,
5
 the Treasurer has a substantial, direct and immediate
interest in the outcome of this litigation. If this Court does
not grant the relief sought by the Treasurer, it appears that
he will not be permitted to participate in deliberative
sessions. Accordingly, we hold that the Treasurer does
have standing to bring the petition for review in this
matter.
McCord v. Pennsylvania Gaming Control Board, 9 A.3d 1216, 1220 (Pa. Cmwlth.
2010).
However, neither the City nor the Mayor have such a substantial, direct,
and immediate interest in this matter. It is undisputed that both the City and the
Mayor are very interested in the actions of the Authority as they will impact City
operations once the five-year plan and intergovernmental cooperation agreement are
implemented in the future pursuant to the provisions of Act 124. Nevertheless, these
future interests do not equate to a present substantial, direct, and immediate interest
so as to confer standing in the instant matter, which is most properly prosecuted by
the Director, as only his interest is directly related to his participation in the
Authority’s executive sessions.
Accordingly, the Authority’s preliminary objections are sustained; the
City and the Mayor are dismissed as parties to this action; and the Authority is
directed to file an answer to the Director’s petition for review.

MICHAEL H. WOJCIK, Judge

Judge Crompton did not participate in the decision of this case.

6
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Harrisburg, Mayor :
Eric Papenfuse and Bruce :
Weber, :
:
Petitioners :
:
v. : No. 180 M.D. 2020
:
Intergovernmental Cooperation :
Authority for Harrisburg, :
:
Respondent :

ORDER

AND NOW, this 7th day of January, 2021, the preliminary objections
of the Intergovernmental Cooperation Authority for Harrisburg are SUSTAINED;
the City of Harrisburg and Mayor Eric Papenfuse are DISMISSED as Petitioners;
and the Intergovernmental Cooperation Authority for Harrisburg is directed to file
an answer within thirty (30) days of the date of this order to the Petition for Review
filed by Bruce Weber.

__________________________________
MICHAEL H. WOJCIK, Judge