City of Philadelphia Petition

83 Pa. D. & C. 581, 1953 Pa. Dist. & Cnty. Dec. LEXIS 325
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedFebruary 5, 1953
Docketno. 661
StatusPublished

This text of 83 Pa. D. & C. 581 (City of Philadelphia Petition) 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
City of Philadelphia Petition, 83 Pa. D. & C. 581, 1953 Pa. Dist. & Cnty. Dec. LEXIS 325 (Pa. Super. Ct. 1953).

Opinion

Hagan, J.,

On January 29,1953, this court, after a hearing upon a petition filed by the City of Philadelphia under the Act of May 21, 1921, P. L. 1054, 53 PS §§ 6757 et seq., made certain findings, and on the basis thereof entered an order in accordance with the prayer of the petition. .

Because of the importance of these proceedings (involving, as they do, an existing and proposed indebted[582]*582ness of $26,000,000, invested or about to be invested in the Philadelphia Gas Works); and because of the circumstance that there was presented to the court for determination questions of law relating to basic and fundamental procedure under the Act of 1921 which have never been raised or determined in any of the prior proceedings by the city under the act, the court deems it appropriate to file this memorandum opinion in support of the order heretofore entered.

On December 5,1952, the city filed its petition under the above act for the purpose of obtaining a judicial decree excluding from the city’s general indebtedness a total of $26,000,000 existing and proposed indebtedness invested or about to be invested in the Philadelphia Gas Works, as authorized by ordinances passed by city council on June 7,1951, and October 9, 1952.

The Act of 1921 implements section 8 of article IX of the Constitution of Pennsylvania, which created for Philadelphia a special class of indebtedness tobe invested in self-sustaining public improvements that might be incurred without regard to the limitation on the city’s borrowing power. This section of the Constitution provides that where the City of Philadelphia has invested part of its indebtedness in a public improvement or utility which may reasonably be expected to produce revenues to the city in excess of operating expenses sufficient to pay the interest and sinking fund charges on such indebtedness, that part of the city’s debt may be excluded from the calculation of its general indebtedness in determining the city’s borrowing capacity. The Act of 1921 prescribes the method by which this is accomplished.

On December 29, 1952, a hearing was held on the petition of the city, at which testimony in support of the petition was submitted by petitioner. No one appeared in opposition to the petition.

Under the petition and the evidence submitted in support thereof, three issues arose for adjudication by the [583]*583court, to wit: (1) whether or not the Philadelphia Gas Works may reasonably be expected to produce revenue in- excess of operating expenses sufficient to pay the interest and sinking fund charges on the indebtedness incurred or about to be incurred by the city in the gas works; (2) if the court should determine that the Philadelphia Gas Works Company may reasonably be expected to produce revenue in excess of operating expenses sufficient to pay the interest and sinking fund charges on the indebtedness, should such indebtedness be merely deducted or completely excluded from the general indebtedness of the city in ascertaining its constitutional borrowing capacity, and (3) if the court should (a) find that the Philadelphia Gas Works Company may reasonably be expected to produce revenue ■in excess of operating expenses sufficient to pay the interest and sinking fund charges on the city’s indebtedness, and (b) conclude that such indebtedness should be completely excluded from the general indebtedness of the city in ascertaining its constitutional borrowing capacity, is the city required in these proceedings to present to the court all of its self-liquidating improvements and utilities and demonstrate that they are still self-sustaining. These issues will be considered in the order in which they are set forth above.

I. Is the existing and proposed indebtedness of the city in the gas works self-liquidating? — The city’s petition in this case involves only part of the indebtedness which has been or will be invested in the Philadelphia Gas Works. The gas works is a municipally owned utility whose history dates back over 100 years ago when it was first created by an ordinance of city council.1 For a good part of its much litigated existence, the Philadelphia Gas Works has been operated [584]*584under lease arrangements by a utility company. It is presently leased to the Philadelphia Gas Works Company under an ágreement dated October 5, 1938, most recently revised as of September 25, 1951, which will run until December 31, 1962, unless earlier terminated by the city because of default by the company in the substantial performance of the conditions in the agreement. After that date, the agreement is terminable at two-year intervals by either party upon specified notice to the other.

The existing and proposed gas works indebtedness with which this petition is concerned amount to $26,-000,000. Fourteen million dollars of this indebtedness was authorized by the Ordinance of June 7, 1951, ratified by the voters on July 24, 1951, as a 15-year serial loan. On October 16, 1951, $7,500,000 of bonds were issued under this ordinance and are now presently outstanding. According to the evidence presented by the city, the balance of this loan authorization, $6,500,-000 of bonds, is to be issued on April 1,1953. Twelve million dollars of indebtedness was provisionally authorized by the Ordinance of October 9, 1952, ratified by the voters on November 4,1952, contingent upon the exclusion decree which is sought in this proceeding. This is also a 15-year serial loan, half of which is to be issued on April 1, 1954, and the balance on April 1, 1955, so that none of the bonds contingently authorized by this ordinance has yet been issued.

By Ordinance of December 6, 1951, the entire sum of $14,000,000 was appropriated by the council for gas works purposes, and subsequently a contract was entered into by the city and the gas company, in which the gas company undertook to make capital improvements up to the amount of the loan to the gas works facilities. In the Capital Budget Ordinance for 1953, approved December 9, 1953, $12,000,000 was appropriated to the gas commission for improvements to the [585]*585gas works. A capital improvement program similar to the one undertaken under the 1951 gas works loan is contemplated for the 1952 gas works loan as soon as the court has filed its decree in this case, making the loan authorization effective.2

At the time of the proceeding, there was also outstanding gas works indebtedness in the amount of $7,500,000 that was authorized by Ordinance of September 12, 1947. This 30-year term loan had been made the subject of an earlier proceeding under the Act of 1921, together with the city’s other self-sustaining utility indebtedness, and was excluded from the city’s general indebtedness by an order of Court of Common Pleas No. 5 entered on May 7, 1951. See City of Philadelphia Petition, 76 D. & C. 156. Since that indebtedness has already been wholly excluded in determining the city’s borrowing power, it was not covered by the city’s petition in this case and was referred to only collaterally in order to show the exact status of the entire gas works indebtedness.

The city put in evidence a series of elaborate exhibits showing a six-year projection from 1951 to 1956, inclusive, of the annual receipts and costs of the gas works, the status of its indebtedness during the period, and the annual amount and rate of interest and sinking fund charges, both actual and estimated for the entire period.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Corporation for the Relief of Widows v. Philadelphia
176 A. 727 (Supreme Court of Pennsylvania, 1934)
Williams v. Samuel
2 A.2d 834 (Supreme Court of Pennsylvania, 1938)
Greenhalgh v. Woolworth
64 A.2d 659 (Supreme Court of Pennsylvania, 1949)
Kelley v. Earle
190 A. 140 (Supreme Court of Pennsylvania, 1937)
Duane v. Philadelphia
185 A. 401 (Supreme Court of Pennsylvania, 1936)
Atkins v. Philadelphia
14 A.2d 423 (Supreme Court of Pennsylvania, 1940)

Cite This Page — Counsel Stack

Bluebook (online)
83 Pa. D. & C. 581, 1953 Pa. Dist. & Cnty. Dec. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-philadelphia-petition-pactcomplphilad-1953.