Reed v. Harrisburg City Council

927 A.2d 698

The Honorable Stephen R. REED, Mayor of the City of Harrisburg, Harrisburg Authority and Fred Clark v. The HARRISBURG CITY COUNCIL, Susan Brown Wilson, Patty Kim, Daniel C. Miller, Gloria Martin-Roberts, Linda Thompson, Erica Bryce, James E. Ellison and Eric Papenfuse, Appellants.

No. 406 C.D. 2007.

No. 783 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued June 13, 2007.

Decided July 2, 2007.

Ronald M. Katzman and Royce L. Morris, Harrisburg, for appellants.

Louis B. Kupperman, Thomas A. Leonard and Robert W. Hayes, Philadelphia, for appellees.

BEFORE: LEADBETTER, President Judge, and COLINS, Judge, and McGINLEY, Judge, and SMITHRIBNER, Judge, and PELLEGRINI, Judge, and SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge SMITH-RIBNER.

The matter presently before the en banc Court involves consolidated appeals filed by the above-named Appellants (hereafter referred to as City Council) from a February 27, 2007 order of the Court of Common Pleas of Dauphin County granting a thirty-day preliminary injunction in favor of the above-named Appellees (hereafter referred to as the Mayor). The trial court enjoined City Council from enforcing an Ordinance that it passed February 20, 2007, over a mayoral veto, and prohibited City Council's appointees to the Harrisburg Authority Board (Board) from acting as members of the Board. The trial court continued the preliminary injunction by order dated March 29, 2007. City Council has appealed both orders, and the Court granted City Council's request for expedited review.

I

City Council questions whether the trial court misapplied the law when it determined that the Mayor had a clear right to the requested relief; whether the trial court misapplied the law when it determined that the Ordinance would not be held constitutional; whether the trial court had a reasonable basis for finding irreparable harm when the Mayor presented speculative evidence to support the request for relief; whether a reasonable basis existed for the preliminary injunction when the trial court barred City Council from presenting its defense and thereafter extended the preliminary injunction without a hearing; and whether the trial court erred in prohibiting City Council's appointees from serving on the Board. The Mayor counter states the questions as whether the trial court granted the injunction to preserve the status quo ante when the Ordinance and the appointments made pursuant thereto violated the Optional Third Class City Charter Law (Third Class City Charter Law), Act of July 15, 1957, P.L. 901, as amended, 53 P.S. §§ 41101-41625, and the Harrisburg City Charter; whether City Council of Hazleton v. City of Hazleton, 134 Pa.Cmwlth. 174, 578 A.2d 580 (1990), aff'd by an equally divided Court, 528 Pa. 604, 600 A.2d 191 (1992), controls this case; and whether the trial court followed proper procedure and applied the correct law in granting relief.

Harrisburg is a third-class city constituted pursuant to the Third Class City Charter Law, and the city operates under the "mayor-council plan A" form of government. See Sections 401-421 of the Third Class City Charter Law, 53 P.S. §§ 41401-41421. The Harrisburg Authority is a municipal authority existing pursuant to the Municipality Authorities Act, 53 Pa.C.S. §§ 5601-5623. The record reveals that on February 20, 2007 City Council appointed three members to the Board (Appellants Bryce, Ellison and Papenfuse) pursuant to Ordinance 36-2006, which City Council passed on February 20 after overriding the Mayor's veto. Previously, the Mayor made appointments to the Board with advice and consent of City Council. That changed when City Council amended Section 2-301.3 of the Harrisburg City Code to provide that it shall appoint the members to boards, commissions and authorities where such authority is vested in the "governing body or legislative branch" by statute or ordinance, subject to applicable state, federal or local laws, ordinances or regulations.¹ Section 2-301.4, governing removal of appointees and filling any vacancy created by removal, was deleted in its entirety.

The Mayor filed a three-count civil action complaint on February 22, 2007, later amended on February 26, 2007 to allege that City Council violated the Third Class City Charter Law in enacting the Ordinance. The Mayor sought declaratory judgment as to the validity of the Ordinance and preliminary and permanent injunctions against the enforcement of the Ordinance and writs of quo warranto prohibiting the appointees from serving as members of the Board. Also on February 26 the Mayor filed an amended petition for special injunction and temporary restraining order, heard February 27, after which the trial court issued the subject preliminary injunction that enjoined City Council from enforcing its Ordinance and prohibited its appointees from acting as members of the Board.

City Council appealed the order the next day to this Court, and on March 2, 2007 the trial court directed City Council to file a statement of matters complained of on appeal pursuant to Pa. R.A.P.1925(b). The trial court did not issue an opinion, but it did make findings and conclusions in its February 27, 2007 order. It concluded that City Council's appointments could not be made prior to the Ordinance effective date, or no sooner than March 12, 2007; it found that the appointments carry a high potential for irreparable harm, that the new Board potentially could make decisions that might adversely affect the Authority's fiscal position along with having an impact upon bondholders and guarantors of the bonds, that damages could not be recoverable by monetary considerations alone and that the Mayor was likely to succeed in his constitutional challenge to the Ordinance.²

II

The Pennsylvania Supreme Court has elaborated on the standards of appellate review of preliminary injunction orders. In Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992), the Supreme Court explained that generally appellate courts review a trial court order either granting or denying a preliminary injunction under an abuse of discretion standard. The court recognized that while the appellate court does not inquire into the merits of the controversy it does examine the record to determine whether there are any apparently reasonable grounds for the trial court's action. See Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 828 A.2d 995 (2003) (relying on, inter alia, Roberts v. Board of Dirs. of Sch. Dist. of Scranton, 462 Pa. 464, 341 A.2d 475 (1975)). In examining the meaning of the phrase "apparently reasonable grounds," the Supreme Court provided an overview of case law distilled to the following essential prerequisites before a preliminary injunction may issue:

First, a party seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages.... Second, the party must show that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings.... Third, the party must show that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.... Fourth, the party seeking an injunction must show that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits .... Fifth, the party must show that the injunction it seeks is reasonably suited to abate the offending activity .... Sixth and finally, the party seeking an injunction must show that a preliminary injunction will not adversely affect the public interest.

Summit Towne Centre, 573 Pa. at 646-647, 828 A.2d at 1001 (citations omitted).

Former Chief Justice Nix noted in his dissent in City of Philadelphia v. District Council 33, American Fed'n of State, County & Mun. Employees, 528 Pa. 355, 371, 598 A.2d 256, 264 (1991), that the Supreme Court previously had broadened its explanation of the standard of review to introduce the term "essential prerequisites" when courts examine whether "apparently reasonable grounds" exist for a decision to grant or to deny a preliminary injunction. In Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 770-771 (1965), the Supreme Court expounded as follows:

The scope of our review on an appeal from a decree either granting or denying a preliminary injunction is "to examine the record only to determine `if there were any apparently reasonable grounds for the action of the court below....' Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A.2d 626, 627 (1956). (Emphasis supplied). Summit Township v. Fennell, 392 Pa. 313, 140 A.2d 789 (1958)." Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 215, 189 A.2d 180, 181 (1963). And the essential prerequisites for the issuance of a preliminary injunction are: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., supra. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiff's right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded: Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960), and Herman v. Dixon, 393 Pa. 33,...