          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Germantown Cab Company,                :
                Petitioner             :
                                       :
            v.                         :      No. 586 M.D. 2014
                                       :      Argued: October 5, 2015
Philadelphia Parking Authority,        :
                   Respondent          :

BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                          FILED: December 14, 2015

            Germantown Cab Company has filed a petition for review in this
Court’s   original   jurisdiction   seeking     declaratory   and   injunctive   relief.
Germantown Cab challenges the assessment imposed upon it by the Philadelphia
Parking Authority as excessive and invalid. It also challenges the statute under
which the assessment was developed as unconstitutional, both facially and as
applied to Germantown Cab. Germantown Cab has moved for summary relief, and
the Parking Authority has moved to dismiss the petition for review. For the
reasons that follow, we sustain the Parking Authority’s preliminary objections and
dismiss Germantown Cab’s petition for review.

                                    Background

            Prior to 2004, the Pennsylvania Public Utility Commission was solely
responsible for the regulation of taxicab operations in Pennsylvania. In 2004, the
General Assembly transferred the responsibility for regulating taxicabs operating
in Philadelphia to the Parking Authority. See Act of July 16, 2004, P.L. 758, No.
94 (Act 94). The Parking Authority’s regulatory regime is set forth in Chapter 57
of the Parking Authority Law, 53 Pa. C.S. §§5701-5745. Funding for the Parking
Authority is derived from fees, fines and annual assessments paid by the taxicab,
limousine and dispatch companies regulated by the Parking Authority.1
                 Former Section 5707(b) of the Parking Authority Law established the
process for setting the Parking Authority’s annual budget and fee schedule. In
MCT Transportation Inc. v. Philadelphia Parking Authority, 60 A.3d 899 (Pa.
Cmwlth.), affirmed per curiam, 81 A.3d 813 (Pa. 2013), this Court ruled that
former Section 5707(b) was facially unconstitutional because it lacked standards
for guiding the Parking Authority’s exercise of discretion in either undertaking.
We also held that the statute violated due process because it did not give taxicab
companies a hearing to challenge the fee schedule, either before or after the fee
schedule became effective.
                 Following this Court’s MCT Transportation decision, the General
Assembly established a new process for setting the Parking Authority’s budget and
assessments. Act of July 9, 2013, P.L. 455, No. 64 (Act 64). Act 64 substantially
amended Sections 5707 and 5708 and added Sections 5707.1 and 5710 of the
Parking Authority Law. Germantown Cab challenges the constitutionality of these
2013 amendments and their arbitrary implementation by the Parking Authority.




1
    The method for determining the yearly assessment is discussed infra.


                                                 2
                                  Relevant Statutory Law
                 Section 5707(a)(1) of the Parking Authority Law2 requires the Parking
Authority to submit a proposed budget to the General Assembly for its annual
appropriation, which comes from two special funds: the Regulatory Fund, which
is the primary operating fund, and the Medallion Fund.3                    Section 5707(a)(2)


2
    Section 5707(a)(1) states:
          (a)  Budget submission.—
                (1) The authority shall prepare and, through the Governor,
                submit annually to the General Assembly a proposed budget
                consistent with Article VI of the act of April 9, 1929 (P.L. 177, No.
                175), known as The Administrative Code of 1929, consisting of the
                amounts necessary to be appropriated by the General Assembly
                out of the funds established under section 5708 (relating to funds)
                necessary for the administration and enforcement of this chapter
                for the fiscal year beginning July 1 of the following year. The
                authority shall be afforded an opportunity to appear before the
                Governor and the Appropriations Committee of the Senate and the
                Appropriations Committee of the House of Representatives
                regarding its proposed budget. Except as provided in section 5710
                (relating to fees), the authority’s proposed budget shall include a
                proposed fee schedule.
53 Pa. C.S. §5707(a)(1)(emphasis added).
3
  Section 5708 states as follows:
        (a) Regulatory Fund.— The Philadelphia Taxicab and Limousine Regulatory
        Fund is established as a special fund in the State Treasury. A balance remaining
        in the regulatory fund and previously held by the authority shall be transferred to
        the special fund in the State Treasury upon the effective date of section 5710
        (relating to fees). The regulatory fund shall be the primary operating fund of the
        authority for the administration and enforcement of this chapter and shall be
        administered as follows:
                (1) Except as provided in subsection (a.1), the assessments, fees,
                penalties and other revenues, interest earned by the regulatory
                fund, refunds and repayments related to the administration and
                enforcement of this chapter shall be deposited into the regulatory
                fund.
(Footnote continued on the next page . . .)
                                                3
instructs the Parking Authority to estimate the “amount of its expenditures
necessary to meet its obligation to administer and enforce [Chapter 57].” 53 Pa.
C.S. §5707(a)(2).4 That estimate is the starting point for establishing the total


(continued . . .)
              (2) Money deposited in the regulatory fund is reserved for the
              use of the authority and shall be transferred in equal amounts each
              month by the State Treasurer to the authority for the purposes of
              administering and enforcing this chapter.
                (3) Upon the effective date of this paragraph, the money in the
                regulatory fund shall be held and maintained as provided in
                paragraph (2).
        (a.1) Medallion Fund.—The Philadelphia Taxicab Medallion Fund is established
        as a special fund in the State Treasury.
                (1) The consideration, revenue, fees, interest earned by the
                medallion fund, refunds, repayments and other deposits related to
                the sale of medallions as provided in section 5717(b) (relating to
                additional certificates and medallions), shall be deposited into the
                medallion fund.
                (2) Money deposited in the medallion fund is reserved for the
                use of the authority and shall be transferred in equal amounts each
                month by the State Treasurer to the authority solely for the
                purposes of administering and enforcing taxicab regulation under
                this chapter.
53 Pa. C.S. §5708.
4
  Section 5707(a)(2) states:
        (2) The authority’s proposed budget shall include an estimate of the amount of
        its expenditures necessary to meet its obligation to administer and enforce this
        chapter. The authority shall subtract from the expenditure estimate:
                (i) The estimated fees to be collected under section 5710 during
                the fiscal year.
                (ii) Money deposited into the regulatory fund as payment for
                assessments, fees or penalties and any other moneys collected
                pursuant to this chapter but not allocated during a prior fiscal year.
                Unallocated assessment revenue from a prior fiscal year shall be
                applied to reduce the portion of the total assessment applicable to
                the utility group from which the unallocated assessment originated.
(Footnote continued on the next page . . .)
                                              4
annual assessment. From that estimate, the following amounts are deducted: fees
expected to be collected during the upcoming fiscal year; amounts in the
Regulatory Fund not spent in the prior fiscal year; and amounts to be withdrawn
from the Medallion Fund. The remainder constitutes the “total assessment,” which
is “allocated to and paid by” the three utility groups that are regulated by the
Parking Authority, namely, the taxicab utility group, the limousine utility group
and the dispatcher utility group. 53 Pa. C.S. §5707(a)(3).5
              Relevant to this case is the taxicab utility group, which is comprised
of medallion taxicabs with citywide service rights and partial rights taxicabs,
which provide service in a limited area in the City. Assessments for the taxicab
utility group are imposed per vehicle. See Section 5707(c)(1) of the Parking
Authority Law.6 Each owner of a taxicab files annually “a statement under oath


(continued . . .)
                (iii) Money budgeted for disbursement from the medallion fund,
                if any, as part of the authority’s estimated budget.
53 Pa. C.S. §5707(a)(2) (emphasis added).
5
  Section 5707(a)(3) states:
        (3) The remainder so determined, herein called the total assessment, shall be
        allocated to and paid by the utility groups identified in subsection (c) in the
        manner prescribed.
53 Pa. C.S. §5707(a)(3).
6
  Section 5707(c)(1) states as follows:
        (c) Assessments.—
              (1)   The following relate to assessments for taxicabs:
                     (i) The taxicab utility group shall be comprised of
                     each taxicab authorized by the authority pursuant to
                     sections 5711(c) (relating to power of authority to
                     issue certificates of public convenience) and
                     5714(a) and (d)(2) (relating to certificate and
                     medallion required).
(Footnote continued on the next page . . .)
                                              5
estimating the number of taxicabs it will have in service in the next fiscal year.”
53 Pa. C.S. §5707(c)(1)(ii). The Parking Authority divides the total assessment
amount “by the number of taxicabs estimated by the authority to be in service
during the next fiscal year.” 53 Pa. C.S. §5707(c)(1)(iii).7




(continued . . .)
                         (ii) On or before March 31 of each year, each
                         owner of a taxicab authorized by the authority to
                         provide taxicab service on a non-citywide basis
                         shall file with the authority a statement under oath
                         estimating the number of taxicabs it will have in
                         service in the next fiscal year.
                         (iii) The portion of the total assessment allocated
                         to the taxicab utility group shall be divided by the
                         number of taxicabs estimated by the authority to be
                         in service during the next fiscal year, and the
                         quotient shall be the taxicab assessment. The
                         taxicab assessment shall be applied to each taxicab
                         in the taxicab utility group and shall be paid by the
                         owner of each taxicab on that basis.
                         (iv) The authority may not make an additional
                         assessment against a vehicle substituted for another
                         already in taxicab service during the fiscal year and
                         already subject to assessment as provided in
                         subparagraph (iii). The authority may, by order or
                         regulation, provide for reduced assessments for
                         taxicabs first entering service after the initiation of
                         the fiscal year.
                         (v) The taxicab assessment for fiscal years ending
                         June 30, 2013, and June 30, 2014, shall be $1,250.
53 Pa. C.S. §5707(c)(1) (emphasis added).
7
  The Parking Authority requires this “statement under oath” on a Form PR-1. The Form PR-1
states, “Please list the vehicles that you intend to register for the upcoming year.” The Form PR-
1 requires specific vehicle information, including each vehicle identification number and license
plate number.


                                                6
                 Section 5707.1 of the Parking Authority Law provides for assessment
notice and hearings.8 The Parking Authority must serve notice of the assessment to



8
    Section 5707.1 states as follows:
          (a) Notice of assessment and payment.—
                  (1) The authority shall serve notice of the assessment determined
                  pursuant to section 5707 (relating to budget and assessments) to
                  each owner by electronic mail, as provided in 52 Pa. Code §
                  1001.51(b) (relating to service by the authority). The authority
                  shall post the assessment for each utility group on its Internet
                  website.
                  (2) Except as provided in paragraph (3), an assessment must be
                  paid within 30 days of service as provided in 52 Pa. Code
                  §1001.54(a)(4) (relating to date of service).
                  (3) The authority may provide by regulation for the payment of
                  an assessment in scheduled installments.
          (b) Assessment hearings.—
                  (1) Within 15 days after service of notice of assessment, an
                  owner may file a petition with the authority which specifically
                  avers the reason that the assessment is excessive, erroneous,
                  unlawful or otherwise invalid. The authority may prescribe filing
                  procedures and the form for the petition.
                  (2) The authority shall fix the time and place for a hearing on a
                  properly filed petition and shall serve notice thereof upon parties in
                  interest. After the conclusion of the hearing, the authority shall
                  issue a decision and findings in sufficient detail to enable a court to
                  determine, on appeal, the controverted question presented by the
                  proceeding and whether proper weight was given to the evidence.
                  (3) The filing of a petition under this subsection does not relieve
                  the owner of the obligation to pay the assessment within the
                  specified time frame. If a refund due from the authority to the
                  objecting owner or an additional assessment payment due from the
                  objecting owner to the authority is required, the payment must be
                  made within ten days after notice of the findings of the authority.
          (c) Appeals.— A suit or proceeding may not be commenced or maintained in a
          court for the purpose of restraining or delaying the collection or payment of an
          assessment made under this chapter. A person aggrieved by an order of the
(Footnote continued on the next page . . .)
                                                 7
each taxicab owner and the “assessment must be paid within 30 days of service.”
53 Pa. C.S. §5707.1(a)(2). A taxicab owner may challenge its assessment as
“excessive, erroneous, unlawful or otherwise invalid” and obtain a hearing on that
challenge. 53 Pa. C.S. §5707.1(b)(1). However, the filing of a challenge petition
“does not relieve the owner of the obligation to pay the assessment within the
specified time frame.” 53 Pa. C.S. §5707.1(b)(3). Further, the Parking Authority
Law forbids the institution of a court proceeding “in a court for the purpose of
restraining or delaying the collection or payment of an assessment.” 53 Pa. C.S.
§5707.1(c). The Parking Authority is empowered, inter alia, to revoke a taxicab
owner’s operating privileges if the assessment is not paid. 53 Pa. C.S. §5707(d.1).
              Finally, Section 5710 of the Parking Authority Law empowers the
Parking Authority to “collect fees necessary for the administration and
enforcement of this chapter.” 53 Pa. C.S. §5710(a).9 Fees cover such items as
vehicle inspections, for bouncing a check or for the transfer of a certificate of
public convenience. The Parking Authority posts the fee schedule on its website.




(continued . . .)
        authority entered under this section may appeal as provided in section 5705(d)
        (relating to contested complaints).
53 Pa. C.S. §5707.1 (emphasis added).
9
  Section 5710(a) states as follows:
       (a) Fees authorized.—The authority may collect fees necessary for the
           administration and enforcement of this chapter. Payment of fees may be
           enforced in the same manner and to the extent provided for the payment of
           assessments under section 5707 (relating to budget and assessments). Fees
           collected under this section must be deposited into the regulatory fund. The
           authority shall post the current fee schedule on its Internet website.
53 Pa. C.S. §5710(a) (emphasis added).


                                              8
Id. Section 5710(b) set the fee schedule for fiscal years ending June 30, 2013, and
June 30, 2014, but not thereafter.

                                Petition for Review

             Germantown Cab is a partial rights company, authorized to provide
taxicab service within a small portion of Philadelphia and in a larger territory
outside the City. Petition for Review, ¶1. Each vehicle in Germantown Cab’s fleet
is authorized to provide service both inside and outside Philadelphia. Petition for
Review, ¶85. Germantown Cab has no vehicles specifically designated to operate
only within the confines of its Philadelphia service area. Petition for Review, ¶86.
Many of its vehicles are used exclusively outside of Philadelphia, but must be
available should they be called into service in Philadelphia. Petition for Review,
¶90. Furthermore, Germantown Cab’s fleet of taxicabs is “not fixed in number and
may fluctuate according to need” at any point during the fiscal year. Petition for
Review, ¶49. The Parking Authority Law’s per vehicle assessment for vehicles
that are “in service” within the Philadelphia territory during the fiscal year is
calculated without regard for the amount of service the vehicle actually provides in
Philadelphia. Petition for Review, ¶46.
             Germantown Cab did not file a statement with the Parking Authority
by March 31, 2014, estimating the number of taxicabs it would have in service in
the 2015 fiscal year. Petition for Review, ¶77. On August 7, 2014, the Parking
Authority served an assessment notice on Germantown Cab requiring payment of
$1,457 for each taxicab in Germantown Cab’s fleet, which the Parking Authority
estimated to be 169 vehicles. Petition for Review, ¶¶69-70. The notice stated that
the total assessment amount of $246,233.00 had to be paid by September 8, 2014.
Petition for Review, ¶71. Germantown Cab timely filed a petition with the Parking

                                          9
Authority within 15 days of the receipt of this notice to challenge the assessment as
“excessive, erroneous, unlawful or otherwise invalid.” Petition for Review, ¶96.
Germantown Cab did not pay its assessment by September 8, 2014, and the
Parking Authority initiated an enforcement action to revoke Germantown Cab’s
operating rights. Petition for Review, ¶¶107-108.
             On November 7, 2014, while the assessment challenge and
enforcement proceedings were pending before the hearing officer appointed by the
Parking Authority, Germantown Cab filed the instant petition for review
challenging the constitutionality of Sections 5707, 5707.1, 5708 and 5710 of the
Parking Authority Law, both facially and as applied to Germantown Cab.
             Germantown Cab asserts that the Parking Authority lacks authority to
impose assessments on its vehicles because Germantown Cab is not part of the
“taxicab utility group,” having never received a certificate of public convenience
from the Parking Authority. Petition for Review, ¶¶199-200. Germantown Cab
also asserts that even if it is part of the taxicab utility group, it was arbitrary and
unfair to group together partial rights taxicabs and medallion taxicabs and assess
them at the same rate when partial rights taxicabs cannot provide service in
lucrative transportation areas such as Center City, the International Airport or the
30th Street Train Station. Germantown Cab pays an assessment to the Public
Utility Commission, which issued the Charters held by its partial rights taxicabs.
Petition for Review, ¶¶171, 173, 176, 205-06. Germantown Cab avers that even
though it operates in only a small section of Philadelphia, it must list all vehicles in
its fleet for assessment purposes because it is not possible to designate certain of its
taxicabs to operate only within the confines of Philadelphia. Further, it must have




                                          10
all vehicles available to provide service in Philadelphia in response to surges in
public demand. Petition for Review, ¶¶85-87.
               Germantown Cab contends that the statutory procedure in Section
5707.1 for challenging an assessment is not adequate for resolving its above-listed
contentions.     First, Section 5707.1 requires Germantown Cab to pay the
assessment, no matter how high, in order to avail itself of the statutory appeal,
which is limited only to a correction of mathematical errors. Second, the Parking
Authority will not allow Germantown Cab to inquire into its costs and the
methodology for determining the assessment amount. Petition for Review, ¶¶153-
163. Third, the statutory appeal cannot address the constitutional problem in the
2013 amendments, i.e., the lack of constraints on the Parking Authority’s
discretion in formulating its budget and fee schedule, allocating its annual budget
between the three utility groups and estimating the number of partial rights
taxicabs that will be in service during the upcoming fiscal year. Petition for
Review, ¶¶129-142.
               The Petition for Review contains six counts seeking declaratory and
injunctive relief. Count I seeks a declaration that Sections 5707, 5707.1, 5708 and
5710 are unconstitutional as an unlawful delegation of legislative power; Count II
seeks a declaration that Sections 5707, 5707.1, 5708 and 5710 are unconstitutional
because they do not afford adequate procedural due process to aggrieved
individuals; Count III seeks a declaration that the “taxicab utility group,” as
defined by 53 Pa. C.S. §5707(c)(1)(i), violates the equal protection clause of the
14th Amendment to the United States Constitution and Article III, Section 32 of the
Pennsylvania Constitution; Count IV seeks a declaration that Germantown Cab is
not part of the “taxicab utility group” as defined by the plain language of 53 Pa.


                                         11
C.S. §5707(c)(1)(i) and, therefore, not subject to any assessment by the Parking
Authority; Count V seeks a declaration that the statute is unconstitutional because
it does not afford an adequate remedy at law; and Count VI seeks preliminary and
permanent injunctive relief enjoining the Parking Authority from “implementing,
administering, or enforcing Section 5707 of the Parking Authorit[y] Law, 53 Pa.
C.S. §5707, as well as the provisions of Act 94 in its entirety.” Petition for
Review, ¶224.
               On November 11, 2014, Germantown Cab filed an Application for
Summary Relief asserting that it is entitled to judgment because there are no
material facts in dispute and the right to relief is clear.10 The Parking Authority has
filed preliminary objections to the petition for review, seeking its dismissal.

                    Preliminary Objections of Parking Authority

               We begin with the Parking Authority’s preliminary objections,
because they are dispositive.11 The Parking Authority argues that this Court lacks
subject matter jurisdiction to decide the issues raised in the petition for review
because Germantown Cab’s statutory appeal, which is ongoing, involves the same
subject matter. The Parking Authority asserts that Germantown Cab must pursue

10
  Germantown Cab filed the motion for summary relief under Rule 1532(b) of the Pennsylvania
Rules of Appellate Procedure, which states:
       (b) Summary relief. At any time after the filing of a petition for review in an
            appellate or original jurisdiction matter the court may on application enter
            judgment if the right of the applicant thereto is clear.
PA. R.A.P. 1532(b).
11
   Preliminary objections in the nature of a demurrer admit all well-pleaded material facts in the
pleading and all reasonable inferences deducible therefrom. Smolow v. Department of Revenue,
547 A.2d 478, 480 (Pa. Cmwlth. 1988). The preliminary objections will be sustained if it is clear
on the face of the pleading that the law will not permit recovery. Id. In ruling on preliminary
objections, this Court’s decision must be based solely on the facts averred in the petition. Id.


                                               12
its statutory remedy to conclusion and allow the agency to create the evidentiary
record. Germantown Cab must then follow the established appeal process in order
to have its case decided by this Court. Accordingly, Germantown Cab’s petition
for review must be dismissed.
                 Germantown Cab rejoins that nothing in the Parking Authority Law
strips this Court of jurisdiction and, what is more, the Parking Authority lacks
jurisdiction to declare its own enabling statute unconstitutional. Germantown Cab
is not required first to exhaust its administrative remedies where it is challenging
the constitutionality of the statute.         Notably, the Parking Authority’s hearing
officer has determined that he lacked jurisdiction to consider Germantown Cab’s
constitutional claims.
                 Section 7541 of the Declaratory Judgments Act states that the purpose
of that Act is “to settle and to afford relief from uncertainty and insecurity with
respect to rights, status, and other legal relations, and is to be liberally construed
and administered.” 42 Pa. C.S. §7541(a). Generally, declaratory relief is available
even where other procedures are available. 42 Pa. C.S. §7541(b). However, there
are exceptions to this general rule. A declaratory judgment is not available in a
proceeding “within the exclusive jurisdiction of a tribunal other than a court” or
“involving an appeal from an order of a tribunal.” 42 Pa. C.S. §7541(c)(2),(3).12

12
     Section 7541(c) of the Declaratory Judgments Act states:
          (c) Exceptions.—Relief shall not be available under [the Declaratory Judgments
          Act] with respect to any:
                 (1) Action wherein a divorce or annulment of marriage is sought
                 except as provided by 23 Pa.C.S. § 3306 (relating to proceedings to
                 determine marital status).
                 (2) Proceeding within the exclusive jurisdiction of a tribunal
                 other than a court.
(Footnote continued on the next page . . .)
                                               13
              A tribunal includes a state agency performing a quasi-judicial
function. Myers v. Department of Revenue, 423 A.2d 1101, 1103 (Pa. Cmwlth.
1980). Where the legislature provides a statutory remedy, that remedy “must be
strictly pursued and such remedy is exclusive … unless the jurisdiction of the
courts is preserved thereby.” Lashe v. Northern York County School District, 417
A.2d 260, 263, 264 (Pa. Cmwlth. 1980). “A non-exclusive or permissive statutory
remedy is present where the [l]egislature specifically provides that a person may
proceed under the statute or may go to the courts.” Id. at 263. Otherwise a
statutory remedy is “mandatory and exclusive.” Id.
              Section 5707.1(b)(1) of the Parking Authority Law provides that a
taxicab owner who believes his assessment “is excessive, erroneous, unlawful or
otherwise invalid” may obtain relief. 53 Pa. C.S. §5707.1(b)(1). This statutory
remedy encompasses a wide variety of potential challenges to the assessment or
the assessment procedure, not merely those involving mathematical errors. The
Parking Authority must hold a hearing and “issue a decision and findings in
sufficient detail to enable” meaningful appellate review.                        53 Pa. C.S.
§5707.1(b)(2).        Further, the legislature has specifically prohibited the
commencement of a proceeding in a court “for the purpose of restraining or
delaying the collection or payment of an assessment.” 53 Pa. C.S. §5707.1(c).
The legislature has further specified that a “person aggrieved by an order of the
[parking] authority entered under this section may appeal as provided in section
5705(d) (relating to contested complaints).” 53 Pa. C.S. §5707.1(c). Section


(continued . . .)
               (3) Proceeding involving an appeal from an order of a tribunal.
42 Pa. C.S. §7541(c) (emphasis added).


                                              14
5705(d) directs that appeals of Parking Authority adjudications are to be taken to
the Court of Common Pleas of Philadelphia County. Specifically, it states:

            A person aggrieved by an order of the [parking] authority
            entered pursuant to this chapter may appeal the order to the
            Court of Common Pleas of Philadelphia County. All such
            appeals shall be governed by 2 Pa.C.S. Ch. 7 (relating to
            judicial review) and Chapter 15 of the Pennsylvania Rules of
            Appellate Procedure.

53 Pa. C.S. §5705(d).
            The procedure established in Section 5707.1 of the Parking Authority
Law for reviewing an assessment and recovery of overpayment is exclusive of
another procedure.      A hearing before the Parking Authority is the necessary
starting point for Germantown Cab’s assessment challenge and, on appeal, its
constitutional challenge.     Germantown Cab challenges the amount of its
assessment, the validity of the assessment (because it has been treated identically
to taxicabs with citywide service rights) and the Parking Authority’s estimate of
the number of vehicles to be assessed. These are challenges that fall squarely
within the statutory appeal of an assessment as “excessive, erroneous, unlawful or
otherwise invalid.”     53 Pa. C.S. §5707.1(b)(1).    See Department of General
Services v. Frank Briscoe Company, Inc., 466 A.2d 1336, 1341 (Pa. 1983)
(declaratory judgment procedure is not available to decide issues that are
“committed for initial resolution to an administrative forum” or “to establish in
advance the merits of an appeal from that forum.”).
            In fact, both Germantown Cab and the Parking Authority agree that
Germantown Cab did file an assessment appeal with the Parking Authority, and a
hearing has been conducted.       The Parking Authority’s adjudication can be
appealed to the Court of Common Pleas of Philadelphia County. It can then be

                                        15
appealed to this Court.
               The presence of constitutional issues in Germantown Cab’s
declaratory judgment action does not require a different result. Equity jurisdiction
is properly conferred on a court only if there is both “a substantial question of
constitutionality and the absence of an adequate statutorily prescribed remedy.”
All Purpose Vending, Inc. v. City of Philadelphia, 561 A.2d 1309, 1311 (Pa.
Cmwlth. 1989) (emphasis omitted).
               First, it is possible that Germantown Cab could prevail on the merits
of its assessment appeal independent of any constitutional issues. It may be that
the Parking Authority, or the trial court in a de novo appeal, will agree that the
taxicab utility group should be divided into two groups: medallion taxicabs and
partial rights taxicabs. Should that occur, the constitutional issues would not be
decided, because it is well-settled that a court should not decide a constitutional
issue “if the case can properly be decided on non-constitutional grounds.” P.J.S. v.
Pennsylvania State Ethics Commission, 723 A.2d 174, 176 (Pa. 1999).
               Second, the fact that an administrative agency cannot determine the
constitutionality of its own enabling legislation does not require a different result.
Myers, 423 A.2d at 1104. The Court of Common Pleas of Philadelphia County can
address all constitutional challenges, both as applied and facial.13                           The
constitutional claim does not authorize Germantown Cab to sidestep the statutory
remedy.       Should the Court of Common Pleas rule that the statute is
unconstitutional, any appeal therefrom proceeds directly to the Pennsylvania


13
   See 2 Pa. C.S. §703(a) (“A party who proceeded before a Commonwealth agency under the
terms of a particular statute shall not be precluded from questioning the validity of the statute in
the appeal.”).


                                                16
Supreme Court. See Section 722(7) of the Judicial Code.14
                 In short, the statutory remedy precludes Germantown Cab’s request
for declaratory relief.

                                           Conclusion

                 The preliminary objections filed by the Philadelphia Parking
Authority are sustained, and the petition for review filed by Germantown Cab in
this Court’s original jurisdiction is dismissed. Germantown Cab’s application for
summary relief is dismissed as moot.

                                                      ______________________________
                                                      MARY HANNAH LEAVITT, Judge




14
     It states:
           The Supreme Court shall have exclusive jurisdiction of appeals from final orders
           of the courts of common pleas in the following classes of cases:
                                              ***
               (7) Matters where the court of common pleas has held invalid as
               repugnant to the Constitution, treaties or laws of the United States,
               or to the Constitution of this Commonwealth, any treaty or law of
               the United States or any provision of the Constitution of, or of any
               statute of, this Commonwealth, or any provision of any home rule
               charter.
42 Pa. C.S. §722(7).


                                                 17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Germantown Cab Company,            :
                Petitioner         :
                                   :
            v.                     :   No. 586 M.D. 2014
                                   :
Philadelphia Parking Authority,    :
                   Respondent      :


                                  ORDER

            AND NOW, this 14th day of December, 2015, the preliminary
objections filed by the Philadelphia Parking Authority are hereby SUSTAINED
and the petition for review filed by Germantown Cab Company is DISMISSED.
The application for summary relief is DISMISSED AS MOOT.

                                         ______________________________
                                         MARY HANNAH LEAVITT, Judge
