Americans for Democratic Action v. Rizzo

71 Pa. D. & C.2d 648, 1975 Pa. Dist. & Cnty. Dec. LEXIS 446
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 9, 1975
Docketno. 979
StatusPublished

This text of 71 Pa. D. & C.2d 648 (Americans for Democratic Action v. Rizzo) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Americans for Democratic Action v. Rizzo, 71 Pa. D. & C.2d 648, 1975 Pa. Dist. & Cnty. Dec. LEXIS 446 (Pa. Super. Ct. 1975).

Opinion

GREENBERG,/.,

This action was commenced by a complaintin equity seeking to enjoin the implementation of Civil Service Regulation 33.04 on the ground that the regulation was adopted in violation of the Philadelphia Home Rule [650]*650Charter and was intended to permit defendants to hire city employes on the basis of their political affiliations.

Defendants have filed preliminary objections to the complaint raising, inter alia, the issues of the standing of plaintiffs, their failure to exhaust administrative remedies and the propriety of regulation 33.04. We discuss these, since the first two concern the viability of the action as commenced in this court and the third is dispositive of the action.

A. Plaintiffs’ Standing.

The issue of plaintiffs’ standing has been simplified by plaintiffs’ agreement that under S.P.C.A. v. Bravo Enterprises, Inc., 428 Pa. 350, 237 A. 2d 342 (1968), the two unincorporated associations lack standing. There remains the question of whether individual taxpayers have standing to challenge defendants’ actions.

Civil Service Regulation 33.04, upon which this suit is based, was adopted to exclude from civil service requirements employes hired under the Federal Comprehensive Employment and Training Act (CETA) of December 28, 1973, Pub. L. 930203, sec. 1, 87 Stat. 839, 29 U.S.C.A. §§801, et seq. CETA authorizes Federal grants to cities and other governmental units for the purpose of providing job training and employment opportunities for economically disadvantaged and unemployed persons.

Defendants argue that the taxpayers of a municipality may sue only to prevent the wrongful expenditure of the money of the municipality or the wasting of its assets: Schlauger v. West Berwick Borough, 261 Pa. 605, 104 Atl. 764 (1918). Since the funds involved here come entirely from the Federal Government, the contention is that plain[651]*651tiffs do not fall within the ambit of the above rule and, therefore, lack standing.

It is also argued that, regardless of whose funds are involved, plaintiffs have shown no harm to their interest as taxpayers because the employes in question would be paid the same salary whether they are exempt from civil service or not. These arguments overlook the significant taxpayers’ interest averred in paragraphs 25 through 28 of the complaint. The allegations there are that defendants have sought to have CETA employes excluded from civil service requirements through regulation 33.04, so that these jobs may be used for political patronage. It is further alleged that it is the intention of defendant, Rizzo, to hire employes for these jobs on the basis of their political affiliations in violation of the regulations promulgated by the Secretary of Labor prohibiting political patronage in CETA programs: 29 C.F.R. §96.26(b). Defendants thereby risk the termination of those programs in Philadelphia which would, in turn, deprive the city of millions of dollars that would otherwise be available for public employment to the injury of plaintiffs as taxpayers.

In recent years, the basis upon which taxpayers’ suits may be brought has been broadened by our Supreme Court’s recognition that “A taxpayer’s suit, as an alternative to reliance on public prosecutions to prevent and redress wrongful conduct, serves an important public interest.”: Price v. Philadelphia Parking Auth., 422 Pa. 317, 221 A. 2d 138 (1966), at page 329, n. 21. The court has accordingly held that a taxpayer has a sufficient pecuniary interest to challenge an ordinance which would lead to the city’s improperly incurring a debt for the construction of a sports stadium (Martin v. Philadelphia, 420 Pa. 14, 215 A. 2d 894 (1966)): [652]*652the illegal exemption of a tract of real estate from the tax rolls (Price v. Phila. Parking Auth., supra), and the failure to award a public contract to the lowest responsible bidder as required by law: Faden v. Phila. Housing Auth., 424 Pa. 273, 227 A. 2d 619 (1967). Of the above cases, Price is most clearly analogous to the matter before us. These two taxpayers attacked the parking authority’s decision to purchase a large tract of real estate for the construction of a public parking facility which would result in a tract of prime real estate being removed from the tax rolls. In upholding the taxpayers’ standing, the court agreed with the chancellor’s statement that, “to the extent that real estate tax revenues will be diminished by an illegal exemption, and hence be unavailable for future use, . . . [plaintiffs] as contributors to that fund will have suffered a pecuniary loss.”: 422 Pa. at page 326.

Here, defendants’ acts risk the termination of Federal funds to which the city is entitled, thereby causing the funds available for the city’s use to be diminished to the obvious detriment of plaintiffs who, as citizens and taxpayers, must either replace those funds through increased taxes or forego the services they were intended to provide. Since a taxpayer’s interest in his local government’s access to Federal funds cannot be underestimated in this age of ever-increasing Federal payments to municipalities and “revenue sharing” programs, we find that the individual taxpayers do have standing to maintain the within action.

B. Exhaustion of Administrative Remedies.

Defendants argue that since the alleged politically motivated hiring practices of which plaintiffs complain are a violation of both the CETA Act, supra, Pub. L. 93-203, Title 2, §208(0, 29 U.S.C. [653]*653§848(f), and the regulations adopted by the Department of Labor, 29 C.F.R. 96.26(b) (Pol. Patronage Prohibitions), plaintiffs must first exhaust the administrative remedies provided by the Labor Department regulations: 29 C.F.R. §98.40(c). For a number of reasons, we cannot agree.

First, plaintiffs’ action seeks to enforce the requirements of the Philadelphia Home Rule Charter which is allegedly violated by the adoption of Civil Service Regulation 33.04, not the provisions of the Federal act or the regulations of the Department of Labor. Since the Secretary of Labor, to whom defendants would have plaintiffs take their complaint, could not grant any relief for the violation of the Philadelphia Home Rule Charter, there is no need for plaintiffs to exhaust any Federal administrative remedies.

Second, if plaintiffs were to file their complaint with the Secretary of Labor, the only action which he is authorized to take is to order a “suspension or termination of, or refusal to grant or continue Federal financial assistance.”: 29 C.F.R. §98.48(f). This is exactly the eventuality which plaintiffs have filed their complaint to prevent.

Finally, there is no indication that the section of the regulations on which defendants rely, 29 C.F.R. §98.40(c), attempts to limit the jurisdiction of powers of the State courts. On the contrary, subpart C of section 98.44 requires that a complaint filed with the Secretary contain:

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Related

Price v. Philadelphia Parking Authority
221 A.2d 138 (Supreme Court of Pennsylvania, 1966)
Martin v. Philadelphia
215 A.2d 894 (Supreme Court of Pennsylvania, 1966)
Faden v. Philadelphia Housing Authority
227 A.2d 619 (Supreme Court of Pennsylvania, 1967)
Schlanger v. West Berwick Borough
104 A. 764 (Supreme Court of Pennsylvania, 1918)

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Bluebook (online)
71 Pa. D. & C.2d 648, 1975 Pa. Dist. & Cnty. Dec. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/americans-for-democratic-action-v-rizzo-pactcomplphilad-1975.