IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Friends of Marconi Plaza, :
Rich Cedrone and Joseph Q. Mirarchi :
: No. 1104 C.D. 2021
: Argued: June 23, 2022
From a decision of: :
The City of Philadelphia Board :
of License and Inspection Review :
:
Appeal of: City of Philadelphia :
ORDER
AND NOW, this 11th day of July, 2023, the Court’s Memorandum
Opinion in the above matter, filed December 9, 2022, is amended to reflect the
following corrections:
Page 3, fifth sentence, should read as follows: See In
re: Friends of Marconi Plaza, 287 A.3d 965 (Pa.
Cmwlth. 2022).
Page 3, first paragraph, first sentence, should read as
follows: While the City’s appeal was pending with this
Court, Objectors filed the instant Motion to Remove,
asserting that the plywood box around the Columbus
statue constituted an “alteration” that had not been
approved in accordance with the applicable provisions in
the City’s Home Rule Charter1 and The Philadelphia
Code2.
Page 3, footnote one, third sentence, should read as
follows: Additionally, Section 4-606(1)(e) provides:
“The Art Commission shall . . . a]pprove the…alteration
of any existing work of art in the possession of the City[.]”
Page 3, footnote two, first sentence, should read as
follows: Section 14-1005(1) of The Philadelphia Code
provides: “Unless a building permit is first obtained from
the [the L&I Board], no person shall alter or demolish a
historic . . . object . . . .”
Page 4, first paragraph, first sentence, should read as
follows: On October 8, 2021, the trial court granted the
Motion to Remove and directed the City to “remove [the]
plywood structure covering the Christopher Columbus
Statue in Marconi Plaza forthwith.”
Page 4, first paragraph, second sentence, should read
as follows: Further, the trial court authorized Objectors to
“erect a clear structure encompassing the Statue for
protective purposes.”
Page 4, third paragraph, first sentence, should read as
follows: In its Pennsylvania Rule of Appellate Procedure
1925(a) Opinion, the trial court stated that it had
jurisdiction to enter its October 8, 2021, unboxing order
under PA. R.A.P. 1701(b) and (c), which authorizes the
1
The City adopted its home rule charter on April 17, 1951, and it went into effect on January 7,
1952. City of Philadelphia v. Schweiker, 858 A.2d 75, 81 n.9 (Pa. 2004). Section 8-207(1) of the
City’s Home Rule Charter provides: “No work of art shall be . . . altered in any way without
approval first obtained from the Art Commission.” PHILADELPHIA HOME RULE CHARTER, §8-
207(1). Additionally, Section 4-606(1)(e) provides: “The Art Commission shall . . . [a]pprove the
. . . alteration of any existing work of art in the possession of the City[.]” PHILADELPHIA HOME
RULE CHARTER, §4-606(1)(e).
2
Section 14-1005(1) of The Philadelphia Code provides: “Unless a building permit is first
obtained from [the L&I Board], no person shall alter or demolish a historic . . . object . . . .”
PHILADELPHIA CODE §14-1005(1).
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trial court to maintain the status quo and to resolve
ancillary or collateral issues while an appeal is pending.
Page 4, third paragraph, second sentence, should read
as follows: The trial court explained that “prior to this
initial legal dispute the Statue sat peaceably, undisturbed,
unhidden and exposed to public view within the confines
of Marconi Plaza” since 1976, when the statue was moved
there from Fairmount Park.
Page 4, third paragraph, third sentence, should read as
follows: “[T]he last actual, peaceable and lawful, non-
contested status” of the Columbus statue was its
placement in Marconi Plaza unhidden by any plywood
structure.
Page 5, second paragraph, third sentence, should read
as follows: Specifically, Objectors argued that the trial
court’s August 17, 2021, order “vitiated” the decision of
the City’s Historical Commission or Art Commission,
“leaving [the City] with no existing legal basis for the
plywood structure.”
Page 8, first full sentence, should read as follows: The
trial court’s unboxing order was not a housekeeping matter
but rather “generated an entirely new issue in [the] case,
to detriment of the City’s substantive property and First
Amendment rights.
Page 8, first full paragraph, third sentence, should read
as follows: Examples of auxiliary actions include
petitions for counsel fees, contempt and to lift a stay on
discovery. Samuel-Basset v. Kia Motors America, Inc., 34
A.3d 1, 49 (Pa. 2011) (petition for attorneys’ fees ancillary
to the appeal from the judgment on the merits); Rosenberg
v. Holy Redeemer Hospital, 506 A.2d 408, 413-14 (Pa.
Super. 1986) (trial court had jurisdiction to act on
motions for contempt and to lift stay on discovery after
appeal filed).
Page 9, first full paragraph, third sentence, should read
as follows: On June 18, 2020, the parties entered into a
Stipulation allowing the City to “reasonably protect the
statue pending a decision by the Art Commission.”
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Page 10, first full paragraph, first sentence, should
read as follows: In sum, the trial court’s order returned
the Columbus statue to the condition in which it has
existed since 1876 in Fairmount Park and since 1976 in
Marconi Plaza.
Page 11, first paragraph, third sentence, should read
as follows: Before a building permit can be issued, the
building permit application must be forwarded to the
Historical Commission for its review.
Page 11, first paragraph, fourth sentence, should read
as follows: The City’s governing legislation, however,
does not address the unboxing of historic objects, only
their alteration and removal.
Page 12, third paragraph, second sentence, should read
as follows: There was no obligation to raise the boxing of
the Columbus statue in the underlying proceeding.
Page 12, fourth paragraph, first sentence, should read
as follows: We conclude that the trial court’s order to
unbox the Columbus statue was not barred by the Local
Agency Law.
Page 12, fifth paragraph, second sentence, should read
as follows: The City contends that Objectors cannot show
a legal right to compel the City to uncover its own
property, and, further, the plywood box does not alter the
Columbus statue as the term is defined in The
Philadelphia Code because it merely shields the statue
from view.
Page 13, second paragraph, third sentence, should read
as follows: The City is bound by the mandates of its own
ordinance, charter and Directive 67.
Page 14, second sentence, should read as follows: The
statue’s iconography commemorates Columbus’s sailing
achievement with an anchor, a globe on which one hand
rests, and a chart in the other hand.
Page 14, third sentence, should read as follows: The
inscription on the statue’s pedestal commemorates the
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country’s centennial and the Italian-American community
in the City.
Page 14, fourth sentence, should read as follows: To
the extent the City considers the “message” incomplete, it
can affix its own plaque to the site, inscribed with the
message the City wishes to convey.
Page 15, first sentence, should read as follows: This
Court has now addressed the merits of the City’s
underlying appeal in In Re: Friends of Marconi Plaza,
287 A.3d 978-81, and affirmed the trial court’s order
prohibiting removal of the Columbus statue from Marconi
Plaza.
Page 15, second sentence, should read as follows: In so
holding, we stated that the City failed to allow the requisite
time period for public input required by Directive 67. Id.
at 981.
Page 15, first full paragraph, second sentence, should
read as follows: The trial court’s order is affirmed to the
extent it orders the removal of the plywood box
surrounding the Columbus statue, but its order is reversed
to the extent it authorizes Objectors to construct a
plexiglass box around the statue.
In all other respects, the opinion and order shall remain in effect.
It is ORDERED that the above-captioned opinion filed on December 9,
2022, shall be designated OPINION rather than MEMORANDUM OPINION, and
it shall be reported.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
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