City of Philadelphia v. Philadelphia Parking Authority

Justice CASTILLE,

concurring.

I write to explain my reasons for joining the Court’s per curiam order vacating the order of the Commonwealth Court and remanding this matter to that court for disposition on the merits. I join section I of Mr. Justice Saylor’s Concurring Statement concluding that, in light of Act 22’s transfer of control of the governing board (Board) of the Philadelphia Parking Authority (PPA) from the Mayor of Philadelphia to the Governor, PPA constitutes part of the Commonwealth government for purposes of the Commonwealth Court’s original jurisdiction. 1 Unlike Justice Saylor, however, I also believe that the Governor is an indispensable party to this action for declaratory and injunctive relief. My conclusion in this regard provides an additional, independent ground for holding that exclusive original jurisdiction rests in the Commonwealth Court. I write separately to address this independent basis for original jurisdiction in the Commonwealth Court.

Appellant argues that the Governor is not indispensable to the case because his only interest in the matter is his generic concern that Act 22 be declared lawful and this general interest alone does not render him indispensable. Moreover, appellant argues that whatever interest the Governor may have in the case is not essential to a decision on the merits because appellant has not requested any specific relief against *432 the Governor nor has appellant accused the Governor of any wrongdoing. Finally, appellant contends that the Governor does not need to be joined because the defendants named by appellant will adequately represent and protect his interests.

Appellees counter that, notwithstanding that appellant has not requested relief against the Governor specifically, appellant’s lawsuit seeks to invalidate the Governor’s authority under Act 22 to make new appointments to the Board, to remove Board members for cause, and to appoint successors to the PPA’s governing body. The Governor’s interests, appellees contend, are thus “inextricably intertwined” with the lawsuit and will necessarily be affected if relief is granted to appellant. In addition, appellees stress that appellant’s complaint seeks declaratory relief and that such an action will not lie unless all the parties having an interest in the issues are joined.

As Justice Saylor correctly notes, “the basic inquiry in determining whether a party is indispensable concerns whether justice can be done in the absence of a third party....” CRY, Inc. v. Mill Service, Inc., 536 Pa. 462 , 640 A.2d 372, 375 (1994). The determination of indispensability involves “at least” the following considerations:

1. Do absent parties have a right or interest related to the claim?

2. If so, what is the nature of that right or interest?

3. Is that right or interest essential to the merits of the issue? . . '

4. Can justice be afforded without violating the due process rights of absent parties?

Centolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398 , 658 A.2d 336, 338-39 (1995) (quoting CRY, supra) (quoting Mechanicsburg Area School District v. Kline, 494 Pa. 476 , 431 A.2d 953, 956 (1981)). Applying these criteria to the matter sub judice, it is apparent that the Governor is an indispensable party to this action for declaratory and injunctive relief.

The Governor clearly has a direct, concrete interest in this matter, which involves legislation that Justice Saylor aptly *433 describes as having a “unique character.” In its complaint, appellant sought a declaration that 53 Pa.C.S. § 5508.1 is unlawful, null, and void, and sought a temporary and permanent injunction preventing the carrying into effect of any provision of the section, including the seating of any new members of the Board serving by gubernatorial appointment. In addition, appellant sought a declaration that the manner by which the Board is selected may not be changed until all outstanding bonds of the PPA are fully met and discharged, as well as a temporary and permanent injunction preventing the seating of any new members of the Board until such bonds are fully met and discharged. Section 5508.1 authorizes the Governor to appoint immediately six additional members to the Board, to fill any vacancies in the Board as they arise, and to remove Board members upon clear and convincing evidence of misfeasance or malfeasance in office. See 53 Pa.C.S. § 5508.1(e)-(h). In point of fact, the Governor did act to implement the new legislation by appointing six new members of the Board. Indeed, it was this action that triggered the instant lawsuit. Appellant’s requests for declaratory and injunctive relief, if granted, would act to restrict the Governor and necessarily implicate the Governor’s specific powers and interest under Act 22.

I do not doubt the validity of the appellant’s argument that the fact that a challenged statute may be declared unconstitutional does not, of itself, make the Governor an indispensable party to an action. See Pennsylvania School Boards, 696 A.2d at 867-68. Indeed, if that were the law, the Governor could be deemed indispensable to every action challenging the constitutionality of legislation. Here, however, the nature of the Governor’s interest is decidedly not, as appellant contends, merely a generic interest in seeing Act 22 declared lawful; it is a specific interest having to do with the unique character of this legislation, and the Governor’s authority under the statute. The challenged statute grants to the Governor certain powers and duties with respect to its implementation. Those powers are not merely ministerial. By vesting in the Governor the power to decide who will control the PPA, the legisla *434 tion authorizes the Governor to frame and attempt to promote certain policies. Indeed, it is this very fact which aggrieves the City, i.e., the fact that it will be the Governor, rather than the Mayor, to whom the Board now will be responsible. No doubt this explains why the City sought to enjoin the seating of the new Board and joined the Governor in its federal lawsuit. The Governor thus has a direct interest in the litigation, i.e., an interest in participating in the determination of the validity and scope of his authority under this unique, take-over legislation. This is an interest that is not shared by the named defendants or any other party. Contrast id. at 868 (Governor not indispensable to counts challenging legality of law since they are not “directed towards the Governor in any way, and law ... does not give the Governor any powers or duties with respect to its enforcement or administration”) (emphasis added).

, This is not to say that the Governor is indispensable to any dispute involving a governmental body appointed by the Governor. Owing to the Governor’s expansive appointive powers, such a rule would render the. Governor indispensable to a vast number of lawsuits, many of which would, at most, only tangentially implicate his interests. This matter, however, is not a garden-variety action involving a governmental entity whose members happen to have been appointed by the Governor. It is a direct, constitutional challenge by the City of the Philadelphia to the very statutory provision authorizing the Governor to appoint and monitor the members of the Authority’s governing body and thereby direct PPA policy. It involves a statute that dramatically shifts control of an agency from the Mayor to the Governor. Moreover, the complaint seeks declaratory relief. See discussion infra. Where, as here, the Governor’s, appointive power is not merely incidental to the declaratory judgment litigation, but, in fact, is the sine qua non of the dispute, I believe that the Governor has a right to be heard in the matter.

The Governor’s interest also is essential to the resolution of the underlying dispute. A party is essential if his “rights are so directly connected with and affected by [the] litigation that *435 he must be a party of record to protect such rights.” Mechanicsburg, 431 A.2d at 957 (quoting Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377 , 346 A.2d 788, 789 (1975)). Appellant argues that granting its requested relief will not affect the Governor since he has already appointed six members to the Board pursuant to Act 22 and these individuals have taken their seats on the governing body. 2 This argument ignores the fact that the declaratory and injunctive relief sought by appellant would nullify the appointments and remove the Governor from any role in the management or oversight of the PPA. See Commonwealth Court Slip Op. at 10 (“there is no question that the relief sought, i.e., a declaration • that Act 22 is unconstitutional, would, of necessity void the Governor’s appointments”). Moreover, the Governor has ongoing powers, i.e., to fill vacancies on the Board and to monitor and remove members for wrongdoing, which would also be abrogated by the invalidation of Act 22. Given the centrality of the Governor’s role in the legislative recasting of the administrative structure of the PPA, and the Governor’s decision to act' under the new legislation, the question of whether the General Assembly’s shifting of control of the PPA from the Mayor to the Governor was constitutional and otherwise lawful obviously is a matter that the Governor has a right upon which to be heard— irrespective of the position the Governor might ultimately take on the question.

Echoing a view apparently shared by the Commonwealth Court, see Commonwealth Court Slip Op. at 11 (“the City has not requested any relief against the Governor himself, and the Governor is not essential to a determination of the merits”), appellant nevertheless contends that a party is essential only where the plaintiff requests specific relief against such party or alleges that the party engaged in some sort of wrongdoing. Appellant cites Centolanza and CRY in support of this argument. In Centolanza , the Court held that the Department of Environmental Resources (DER) was not essential to the case *436 since the plaintiffs had “not alleged that the Commonwealth ... failed to halt, cease, or abate the nuisance [complained of in the action and] the Centolanzas did not request any type of relief directly involving the Commonwealth.” 658 A.2d at 339 . In CRY, by contrast, the plaintiffs accused the DER, of failing to halt the defendant’s illegal discharge of hazardous waste and sought relief which, among other things, would require the Commonwealth to forebear in the issuance of any further permits to defendant as well, as the appointment of a natural resources trustee over defendant’s property. This Court held that DER was indispensable to the action. Appellant alleges that, like the plaintiffs in Centolanza , and unlike the plaintiffs in CRY, it is not claiming any wrongdoing on the part of the Governor and is not asking the Governor to do, or refrain from doing, anything. Thus, appellant argues, the Governor is not essential to the litigation. A closer examination of the cases shows that appellant is ihistaken.

Centolanza involved an action by private citizens alleging that at least one of the defendants’ storage tanks and/or connecting pipes had leaked onto their property. The plaintiffs sought payment for the anticipated oil contamination cleanup costs and diminution in the value of their property under the Storage Tank and Spill Prevention Act. An issue arose as to whether the courts had jurisdiction to hear the matter because the plaintiffs had failed to join DER as an indispensable party. We held that DER was not essential to the case because the plaintiffs had not alleged that DER engaged in any wrongdoing with respect to its regulatory obligations nor had the plaintiffs requested any type of relief directly involving the Commonwealth. Accordingly, this Court held that DER was not indispensable to the action and that this Court had jurisdiction to resolve the appeal.

In CRY, the plaintiffs brought suit under various environmental statutes against the owner of a hazardous waste storage facility. The relief sought by the plaintiffs included enjoining the defendant from disposing or treating hazardous wastes at the site; enjoining the Commonwealth from issuing any further permits allowing the defendant to continue its *437 waste storage activities; and appointing a trustee of natural resources for the facility. Applying the Mechanicsburg criteria, this Court held that “[bjecause DER’s regulatory activity may be affected by any order entered in th[e] case, and because compliance with that order may require the cooperation of DER, its interest is essential.” 640 A.2d at 376 . In addition, we noted that if DER were not a party to the suit, it would not be required to cooperate in the carrying out of any judicial remedy fashioned by the court, and such non-cooperation would, in all likelihood, require further litigation. We concluded, therefore, that DER must be included in the action.

Appellant’s emphasis on the nature of the relief requested in its pleading ignores the context of this case. Unlike Centolanza and CRY, where the plaintiffs sought monetary damages or other remedial measures, appellant here seeks declaratory relief. Appellant seeks a declaration that Act 22 is unconstitutional, or, at a minimum, a declaration that the manner by which the Board is selected may not be changed until all outstanding bonds of the PPA are fully met and discharged. Thus, a focus on whether the plaintiffs have accused the Commonwealth of wrongdoing or sought relief specifically against a Commonwealth party is simply not appropriate here. Indeed, appellant does not allege that it has been aggrieved by any specific party, including the named defendants. The challenge, instead, is to the Act itself. Pennsylvania law is clear that in a declaratory judgment action all interested parties must be joined, regardless of the parties named in the pleadings. See 42 Pa.C.S. § 7540(A) (“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration and no declaration shall prejudice the rights of persons not parties to the proceeding”); see also Mains v. Fulton, 423 Pa. 520 , 224 A.2d 195, 196 (1966) (“[D]eclaratory judgment proceedings will not lie unless all the parties having an interest in the issue are joined”) (citations omitted).

Even overlooking that this matter sounds in a request for declaratory relief, it cannot be the law that a party may be deemed essential only if the plaintiff specifically alleges that *438 the party engaged in wrongdoing or seeks relief directly involving such party. Under such a rule, a plaintiff could, through intentionally incomplete or tactical pleading, effectively preclude the joinder of a party whose rights are directly at issue and could be prejudiced by the litigation. The absence of an indispensable party, however, goes to the court’s jurisdiction. “[Ujnless all indispensable parties are made parties to an action, a court is powerless to grant relief.” Sprague v. Casey, 520 Pa. 38 , 550 A.2d 184, 189 (1988). The mere fact that a plaintiff omitted, either inadvertently or intentionally, an otherwise indispensable party does not overcome this fundamental bar to merits review.

, For example, in Columbia Gas, supra, the plaintiff brought an action to determine the rightful owner of a disputed maintenance and repair right-of-way. The plaintiff neglected, however, to name as a defendant the owner in fee of the servient tenement across which the disputed easement existed. Notwithstanding that the plaintiff did not accuse this individual of any wrongdoing or seek any relief against him, the Court found him to be indispensable to the dispute:

In the instant case there can be no question that the fee simple owner of the servient tenement is an indispensable party. The right to the use and enjoyment of his property will be adversely affected by any litigation involving the easement, and, therefore, he must be joined. The failure to do so deprives the court of jurisdiction.

346 A.2d at 789 .

The mere naming of the Commonwealth or one or more of its officers in an action does not, of course, conclusively establish the Commonwealth Court’s jurisdiction. See Pennsylvania School Boards Ass’n, 696 A.2d at 867 (citation omitted). The corollary, however, is certainly also true: the failure of a plaintiff to allege wrongdoing on the part of a Commonwealth party or to seek redress against that party does, not necessarily mean that the party is not indispensable to litigation in which it has a direct interest. Because the Governor’s powers to appoint, monitor and replace members of the governing board of the PPA are at the very heart of *439 this declaratory judgment action, and this power will unquestionably be affected if declaratory relief is granted to appellant, I believe that the Governor is essential to the adjudication of the matter.

Finally, principles of due process require that the Governor be permitted to participate in the case. Appellant asserts that justice can be afforded without violating the Governor’s interest because any interests the Governor may have in the case are adequately represented by the named defendants. Appellant argues that it is not challenging the Governor’s exercise of his powers under a lawful statute, but rather the legality of the underlying statute:

The difference is an important one.... In the former circumstance, the Governor has a unique interest — his exercise of his rights — that only he can protect. , In the latter circumstance (like the case here), the Governor’s “interest” is not unique. His “interest” is in seeing the relevant statute (Act 22) declared lawful. That is the same interest as that of the individually named defendants.

Appellant’s Brief at 19-20. Because the interests of the Governor are identical to those of the named defendants, appellant argues, the Governor’s interests in the litigation are fully protected and his presence is not required for the granting of relief.

Appellant’s argument pivots once again on the faulty premise that the Governor’s interest is only that Act 22 be declared constitutional. As explained above, Act 22 vests in the office of the Governor specific powers with respect to the management and control of the PPA. He is the government party charged with acting under the challenged portion of the legislation. Because invalidation of Act 22 will necessarily strip the Governor of his unique powers under the statute, he has a direct, concrete interest in appellant’s challenge to the law. That interest transcends a mere generic concern that the Act be determined constitutional; indeed, as noted above, *440 it is not even a foregone conclusion that the Governor will always advocate in favor of a challenged law that affects him. 3

Moreover, the Governor’s interests are distinct from those of the named defendants. While both the Governor and his recent appointees obviously share an interest in these individuals maintaining their seats on the Board, the Governor is additionally interested in maintaining his power to monitor their performance and to appoint their successors. The Governor’s interests are essential to the merits of the matter and are sufficiently distinct from the interests of the named defendants that he must be permitted to participate in the litigation. See Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 (1965) (“A fundamental requirement of due process is the opportunity to be heard”). Justice in this declaratory judgment action can be done only with the participation of the Governor, the party required to implement this legislation.

According to the criteria set forth in Mechanicsburg and its progeny, I believe that the Governor is an indispensable party to the action. Accordingly, while I join the Court’s per curiam order vacating the order of the Commonwealth Court and remanding to that tribunal for disposition on the merits, I would also join the Governor of Pennsylvania as a party defendant. See Pa.R.C.P. 2232(c).

Justice NIGRO joins this concurring statement.

. As Justice Saylor has also ably summarized the factual and procedural background of this appeal, I will not repeat this information here.

. The Governor’s appointees joined the Board at its July 23, 2001 meeting.

. Furthermore, it should be for the Governor, and not the plaintiff, in a declaratory judgment action, to say whether his interest is otherwise adequately represented.