Filed and Attested by the

Office of Judicial Records

02 OCT 2023 07:47 am
C. SMITH

FOX ROTHSCHILD LLP

BY: EDWARD J. HAYES, ESQUIRE
IDENTIFICATION NO. 30243 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, TWENTIETH FLOOR
PHILADELPHIA, PA 19103-3222
(215) 299-2000
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
918 S. St. Bernard Street : OF PHILADELPHIA COUNTY
Philadelphia PA 19143 :
v. : TERM, 2023
CITY OF PHILADELPHIA :
c/o the Law Department :
1515 Arch Street, 14th Floor :
Philadelphia PA 19107 :
and
CITY COUNCIL OF THE CITY OF :
PHILADELPHIA :
c/o the Law Department :
1515 Arch Street, 14th Floor :
Philadelphia PA 19107 : No.

COMPLAINT
NOTICE AVISO
You have been sued in court. If you wish to defend against the claims Le han demandado a usted en la corte. Si usted quiere defenderse de estat demandas
set forth in the following pages, you must take action within twenty expuestas las páginas siguientes, usted tiene viente (20 dias de plazo al partir de la
(20) days after this complaint and notice are served, by entering a fecha de la demanda y la notificatión. Hace falta asentar una comparencia escrita o
written appearance personally or by attorney and filing in writing with en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus
the court your defenses or objections to the claims set forth against you objeciones a las demandas en contra de su personá. Sea avisado que si usted no se
by the court without further notice for any money claimed in the defiende, la corte tomará medidas y puede continuar la demanda en contra suya sin
complaint or for any other claim or relief requested by the plaintiff. previo aviso o notificatión. Además, la corte puede decidir a favor del demandante
You may lose money or property or other rights important to you. y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puese
perder dinero o sus propiedades u ostros derechos importantes para usted.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET SERVICO, VAYA EN PERSONA O LLAME POR TELEPHONO A LA OFICINA
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR
HELP. DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL.

PHILADELPHIA BAR ASSOCIATION ASOCIACION DE LICENCIADOS DE FILADELFIA

LAWYER REFERRAL AND INFORMATION SERVICE Servicio De Referencia E Información Legal
ONE READING CENTER One Reading Center
PHILADELPHIA, PA 19107 Filadelfia, Pennsylvania 19107
TELEPHONE: (215) 238-1701 Telephono: (215) 238-1701

Case ID: 231000053

 COMPLAINT

The Parties

1. Plaintiff, Melissa V. Johanningsmeier (“Plaintiff”), is an adult individual and the owner

of certain real property located at 913 and 918 S. St. Bernard Street, Philadelphia PA 19143.

2. Defendant, City of Philadelphia (“City”), is a municipal entity maintaining an address

c/o the Law Department, 1515 Arch Street, 14th Floor, Philadelphia PA 19107.

3. Defendant, City Council of the City of Philadelphia (“Council”), is the governing body

of the City maintaining an address c/o the Law Department, 1515 Arch Street, 14th Floor, Philadelphia

PA 19107.

Background

4. This case involves the illegal and unconstitutional spot zoning of certain real property

located at 5000 Warrington Avenue in the City and County of Philadelphia (the “Subject Property”).

5. Prior to the illegal and unconstitutional spot zoning, the Subject Property was situated

in the I-2 Zoning District.

6. After the illegal and unconstitutional spot zoning, the Subject Property is situated in a

RMS-3 Zoning District.

7. Plaintiff seeks a declaration that the actions of City Council in rezoning the Subject

Property for the sole purpose of accommodating one single development of the Subject Property, in

direct response to an unfavorable decision of the Court of Common Pleas on that development, and in

direct contravention of the City’s comprehensive plan is illegal and unconstitutional.

The unsuccessful application for a Zoning/Use Registration Permit

8. Omni Development Corporation (“Omni”) filed an Application for a Zoning/Use

Registration Permit (the “Application”) in connection with the Subject Property in which is sought,

Case ID: 231000053

among other things, permits to construct two high-rise multi-family apartment buildings and accessory

parking on the Subject Property (the “Proposed Project”).

9. The Proposed Project was not permitted in an I-2 Zoning District.

10. The City of Philadelphia Department of Licenses & Inspections (“L&I”) properly issued

a Notice of Refusal in connection with the Application (the “Notice of Refusal”).

11. In the Notice of Refusal, L&I correctly concluded that there were “three (3) use

refusals” as follows:

(a) Pursuant to Table 14-602-3 relating to what uses are “Allowed in

[the] Industrial District,” a refusal was issued because “The Proposed,
multi-family household living, is prohibited, in this zoning district.”

(b) Pursuant to Section 14-803(5)(e) of the Zoning Code relating to

“Interior Landscape Requirements for Parking Lots,” a refusal was issued
for failure to comply with “Interior Landscaping” requirements where a
minimum of ten percent (10%) of the interior surface parking lot and off-
street loading areas, calculated as the total of area in all surface parking
spaces and surface drive aisles, shall be planted with landscape, but only
“5.1% of parking space” is “Proposed.”

(c) Pursuant to Table 14-806-1 relating to “Loading Spaces,” a refusal

was issued for failure to comply with requirements for “Loading Spaces,”
where seven (7) are “Required,” and only two (2) are “Proposed.”

12. As a result of the Notice of Refusal, the Proposed Project could not proceed.

Omni files an appeal and the ZBA improperly grants the requested variances

13. Omni filed a Petition of Appeal to the City of Philadelphia Zoning Board of Adjustment

(“ZBA”) contesting the issuance of the Notice of Refusal by L&I.

14. In an attempt to proceed with the Proposed Project, at the hearing on the Petition of

Appeal that was held before the ZBA on March 15, 2022, Omni requested variances from the three (3)

refusals set out by L&I in the Notice of Refusal.

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 15. At the hearing, it was also determined that Omni was required to obtain a variance for

its failure to comply with an eight-foot rear yard setback requirement.

16. Despite the fact that Omni did not present sufficient evidence to warrant the issuance of

the requested variances, on April 5, 2022, the ZBA issued its decision, dated March 15, 2022 which

granted the variances requested by Omni. A true and correct copy of the decision granting the variances

is attached hereto as Exhibit “A”.

Plaintiff files an appeal of the grant of the variances and the decision is reversed

17. Because the action of the ZBA in granting the variances was erroneous, arbitrary,

capricious, an abuse of discretion and contrary to law, Plaintiff filed an appeal of the decision granting

the variances to the Court of Common Pleas.

18. The appeal was assigned to the Honorable Anne Marie B. Coyle for determination.

19. After briefing and oral argument, by Order and Opinion dated January 30, 2023, Judge

Coyle agreed that the actions of the ZBA in granting the variances were improper and that the ZBA

had impermissibly conducted itself as a legislative body in modifying the unambiguous provisions of

the Philadelphia Zoning Code through its grant of the variances to Omni. A true and correct copy of

the Order and Opinion is attached hereto as Exhibit “B”.

Omni’s successor-in-interest appeals the decision of Judge Coyle

20. On February 27, 2023, Warrington Development Partners Limited Partnership

(“Warrington”), as the alleged successor-in-interest to Omni, filed a Notice of Appeal of Judge Coyle’s

Order to the Commonwealth Court.

21. In response to the filing of the appeal, on March 9, 2023, Judge Coyle issued an Order

mandating that Warrington file a statement of matters complained of on appeal pursuant to Pa.R.A.P.

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1925(b) within 21 days of the date of the Order, i.e. by March 30, 2023. A true and correct copy of the

Order is attached hereto as Exhibit “C”.

22. Contrary to Judge Coyle’s Order requiring that the statement be filed by March 30,

2023, Warrington did not file its statement of matters complained of on appeal until April 3, 2023, four

days after the deadline for doing so. A true and correct copy of the statement of matters complained

of on appeal is attached hereto as Exhibit “D”.

23. As a result of its failure to timely file its statement of matters complained of on appeal,

Warrington is at risk that it has waived any issues on its appeal to the Commonwealth Court.

24. As a result of Judge Coyle’s Order, the Proposed Project could not proceed and

Warrington was left to develop the Subject Property in a manner consistent with the requirements of

an I-2 Zoning District and consistent with the surrounding neighborhood.

Warrington and City Council do an “end-run” on Judge Coyle’s decision

25. The Honorable Councilwoman Jamie Gauthier is the councilperson for the district in

which the Subject Property is located.

26. On May 25, 2023, in a direct attempt to override the decision made by Judge Coyle and

to specifically allow the Proposed Project to proceed despite its non-compliance with applicable zoning

requirements, Councilwoman Gauthier introduced an ordinance to re-zone the Subject Property from

I-2 to RMS-3. A true and correct copy of the ordinance is attached hereto as Exhibit “E”.

27. The proposed ordinance only affected the Subject Property.

28. As further evidence that the proposed ordinance was intended solely to allow the

Proposed Project to proceed on the Subject Property, the ordinance specifically indicated that it was

only effective for two years and that after that time the zoning would revert to the prior zoning.

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 29. In addition, to further insure that the Proposed Project would be approved despite its

non-compliance with applicable zoning requirements, Councilwoman Gauthier introduced a second

ordinance that purported to create the Warrington Affordable Housing Overlay District which would

supersede the zoning requirements for accessory parking, landscaping and vehicle access points which

were applicable to the Proposed Project. A true and correct copy of the Overlay District ordinance is

attached hereto as Exhibit “F”.

30. As further evidence that the proposed Overlay District ordinance was intended solely to

allow the Proposed Project to be permitted, the ordinance specifically indicated that the overlay district

would expire in two years.

31. The expiration of the two ordinances as set forth above would create a situation where

the Proposed Project would then become a pre-existing non-conforming use.

32. Plaintiff objected to the proposed ordinances on the basis that:

(a) the ordinances were improperly aimed at facilitating one

development on the Subject Property;

(b) the ordinances were an improper attempt to circumvent the

objections of the neighbors;

(c) The ordinances were an improper attempt to override the decision

made by Judge Coyle revoking the grant of the variances;

(d) The ordinances were not consistent with the comprehensive plan of
the City; and

(e) The ordinances were a clear case of spot zoning.

33. As evidence that the improper rezoning of the Subject Property was not consistent with

the City’s comprehensive plan, the City of Philadelphia Planning Commission did not indicate approval

of the rezoning of the Subject Property.

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 34. Despite the fact that the ordinances were illegal and improper, and despite the objections

raised by Plaintiff to the ordinances, City Council approved both ordinances on June 22, 2023,

effectively rezoning just the Subject Property to permit the Proposed Project to proceed.

35. The ordinances were submitted to the Mayor of the City and were either signed by the

Mayor or were not acted upon by the Mayor within the required time period.

36. As a result, the ordinances are currently in place.

The rezoning of the Subject Property constitutes illegal spot zoning

37. Under the City of Philadelphia Home Rule Charter and the Zoning Enabling Act, all

zoning legislation must be enacted in accordance with the City’s comprehensive plan.

38. The rezoning of the Subject Property constitutes a singling out of the Subject Property

for treatment different than that afforded to similar surrounding parcels of land indistinguishable from

the Subject Property in character.

39. The rezoning of the Subject Property constitutes a singling out of the Subject Property

for treatment different than that afforded to similar surrounding parcels of land indistinguishable from

the Subject Property solely for the economic benefit of Warrington.

40. The rezoning of the Subject Property is not in accordance with a rational and well-

considered approach to a coordinated development of the City and is contrary to the City’s

comprehensive plan.

41. The rezoning singles out the Subject Property for special treatment.

42. The rezoning of the Subject Property is arbitrary and unreasonable and has no relation

to the public health, safety, moral and general welfare of the surrounding community.

43. The rezoning of the Subject Property converts the Subject Property into an island of

dissimilar zoning.

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 44. The rezoning of the Subject Property provides unjustified special treatment that benefits

a particular owner/developer, while undermining the pre-existing rights and uses of adjacent property

owners by over-crowding the neighborhood, by unnecessarily increasing traffic in the area, and by

dramatically increasing the population of the community.

45. The rezoning of the Subject Property is an improper attempt by City Council to override

Judge Coyle’s reversal of the grant of the improperly granted variances.

The Necessity for Declaratory Relief

46. The Court has the power and authority to interpret and determine the validity of an

ordinance pursuant to the Pennsylvania Declaratory Judgments Act. 42 Pa.C.S.A. 7531 et. seq.

47. Section 7533 of the Act provides as follows:

Any person…whose rights, status, or other legal relations are affected by a

statute, municipal ordinance, contract, or franchise, may have determined
any question of construction or validity arising under the instrument, statute,
ordinance, contract, or franchise, and obtain a declaration of rights, status,
or other legal relations thereunder.

42 Pa.C.S.A. 7533.

48. The validity/invalidity of the ordinances rezoning the Subject Property constitutes an

actual controversy that necessitates the Court’s involvement and decision in order to determine the

rights of the parties to this action.

49. The need for a determination of the validity/invalidity of the ordinances is immediate

as Warrington will undoubtedly seek to obtain approvals for the Proposed Project now that the zoning

has been improperly changed to specifically address its needs.

50. As the owner of two properties that sit immediately behind the residential properties

that face the Subject Property, which properties are located less than 0.1 miles from the Subject

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Property, Plaintiff will be adversely affected by the Proposed Project and therefore has standing to

contest the ordinances.

Request for Declaratory Relief

51. The allegations of paragraphs 1-50 inclusive are incorporated herein by reference.

52. Plaintiff has standing to assert the challenge to the illegal and invalid rezoning of the

Subject Property.

53. The enactment of the ordinances which rezone or otherwise change the zoning

requirements for only the Subject Property constitutes illegal spot zoning of the Subject Property.

54. The enactment of the ordinances was an illegal attempt by City Council to override the

Order issued by Judge Coyle finding that the variances were improperly granted by the ZHB.

55. Plaintiff is entitled to an Order declaring that:

(a) The rezoning of the Subject Property constituted an illegal and

impermissible spot zoning of the Subject Property;

(b) The ordinances enacted by City Council rezoning the Subject

Property and creating an Overlay District for the Subject Property are
hereby stricken;

(c) The Subject Property shall remain zoned I-2; and

(d) Any development of the Subject Property that does not meet the
requirements of an I-2 zoning classification is prohibited.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant Plaintiff’s

request for declaratory relief and issue an Order:

(a) Declaring that the rezoning of the Subject Property constituted an

illegal and impermissible spot zoning of the Subject Property;

(b) Declaring that the ordinances enacted by City Council rezoning the
Subject Property and creating an Overlay District for the Subject Property
are hereby stricken;

(c) Declaring that the Subject Property shall remain zoned I-2;

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 (d) Declaring that any development of the Subject Property that does
not meet the requirements of an I-2 zoning classification is prohibited; and

(e) Awarding such other and further relief as may be just and proper.

EDWARD J. HAYES, ESQUIRE

Fox Rothschild LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103-3222
(215) 299-2092

Attorneys for Plaintiff,

Melissa V. Johanningsmeier

Dated: October 2, 2023

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 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
Filed and Attested by the
Office of Judicial Records
03 NOV 2023 11:02 am
A. STAMATO
Johanningsmeier COURT OF COMMON PLEAS
CIVIL TRIAL DIVISION
v.

City of Philadelphia No. 231000053

And

City Council of Philadelphia

ANSWER AND NEW MATTER

The City of Philadelphia and the City Council of Philadelphia hereby respond to the

Complaint as follows in accordance with the numbering contained therein; New Matter follows.

1. No response required.

2. No response required.

3. No response required.

4. Denied as a conclusion of law to which no response is required; to the extent that

a response may be required by the Rules of Civil Procedure, the remapping of 5000 Warrington

Street (“Subject Property”) was lawful and fully constitutional.

5. Denied in part, admitted in part. The claim that the property was illegally spot-

zoned is denied as a conclusion of law; it is admitted that the Subject Property was previously

zoned I-2.

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 6. Denied in part, admitted in part. The claim that the property was illegally spot-

zoned is denied as a conclusion of law; it is admitted that the Subject Property is currently zoned

RMS-3.

7. Denied as a conclusion of law to which no response is required; to the extent that

a response may be required by the Rules of Civil Procedure, the remapping of 5000 Warrington

Street (“Subject Property”) was lawful and fully constitutional.

8. Admitted.

9. Admitted.

10. Admitted.

11. Admitted.

12. Admitted.

13. Admitted.

14. Admitted.

15. Admitted.

16. Admitted in part; denied in part. It is only admitted that the Zoning Board granted

the requested variance.

17. Admitted in part; denied in part. It is only admitted that the Plaintiff filed an

appeal from the Zoning Board’s decision.

18. Admitted.

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 19. Admitted in part. It is admitted that the Honorable Judge Coyle reversed the

Zoning Board; the decision of the Honorable Judge Coyle speaks for itself.

20. Admitted.

21. Admitted.

22. Admitted.

23. Denied as a conclusion of law to which no response is required.

24. Denied as a conclusion of law to which no response is required.

25. Admitted.

26. Admitted in part; denied as stated. It is admitted that the Honorable

Councilmember Gauthier introduced a bill to remap the Subject Property; the remainder of the

averment is denied as a conclusion of law.

27. Admitted in part; denied as stated. It is admitted that the bill rezoned the Subject

Property; it is denied that the remapping only affected the Subject Property itself.

28. Admitted in part; denied in part. It is admitted that the ordinance has a two-year

sunset provision; the remainder of the averment is denied as a conclusion of law.

29. Admitted in part; denied in part. It is admitted that Council passed an ordinance

creating a mixed-income housing overlay; the remainder of the averment is denied as a

conclusion of law.

30. Admitted in part; denied in part. It is admitted that the ordinance has a two-year

sunset provision; the remainder of the averment is denied as a conclusion of law.

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 31. Denied as a conclusion of law to which no response is required. By way of further

response, the averment is based upon speculation.

32. Admitted in part; denied in part. It is admitted that the Plaintiff voiced objections

to the ordinances. The City is without information or knowledge as to the Plaintiff’s state of

mind or her motivations for objecting to the ordinances which are irrelevant.

33. Admitted in part; denied in part. It is admitted that the Planning Commission

recommendation for the overlay bill was “not for approval”. It is denied that the Planning

Commission opposed the base zoning bill: their recommendation for the base zoning bill was

“for approval”.

34. Admitted in part; denied in part. It is admitted that the ordinances in question

were approved by City Council. The remainder of the averment is denied as a conclusion of law.

35. Admitted.

36. Admitted.

37. Denied as a conclusion of law to which no response is required.

38. Denied as a conclusion of law to which no response is required.

39. Denied as a conclusion of law to which no response is required.

40. Denied as a conclusion of law to which no response is required.

41. Denied as a conclusion of law to which no response is required.

42. Denied as a conclusion of law to which no response is required.

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 43. Denied as stated. The remapping of the Subject Property brings the parcel into

conformity with surrounding parcels and is consistent with the Comprehensive Plan.

44. Denied as a conclusion of law to which no response is required.

45. Denied as a conclusion of law to which no response is required.

46. Denied as a conclusion of law to which no response is required.

47. Denied as a conclusion of law to which no response is required.

48. Denied as a conclusion of law to which no response is required.

49. Denied as a conclusion of law to which no response is required.

50. Denied as a conclusion of law to which no response is required.

51. No response required.

52. Denied as a conclusion of law to which no response is required.

53. Denied as a conclusion of law to which no response is required.

54. Denied as a conclusion of law to which no response is required.

55. Denied as a conclusion of law to which no response is required.

NEW MATTER

I. Plaintiff’s challenge to Bill No. 230447 is time-barred

56. Bill No. 230447 was signed by the Mayor on July 12, 2003, and became effective

immediately.

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 57. 42 Pa.C.S.A. § 5571.1 provides that Appeals from ordinances, resolutions, maps,

etc. must be brought within 30 days of the intended effective date of the challenged ordinance.

58. The Plaintiff is therefore time-barred from challenging the validity of Bill No.

230447.

II. Plaintiff lacks capacity to bring this litigation

59. Plaintiff owns property located 913 and 918 South Bernard Street (“Plaintiff

Properties”).

60. Plaintiff admits that Plaintiff Properties are “behind the residential properties that

face the subject property.”

61. Plaintiff does not have a substantial, direct, and immediate interest in the outcome

of the litigation.

62. Plaintiff does not have a substantial interest in the outcome of litigation exceeding

that of all citizens in procuring obedience to the law.

63. Plaintiff lacks standing to bring a validity challenge against Bills No. 230447 and

230443.

Respectfully,

/s/

Leonard F. Reuter
Senior Attorney
For the City of Philadelphia
1515 Arch St., 15th Fl.
Philadelphia, PA 19102

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 CERTIFICATE OF SERVICE

I, Leonard F. Reuter, hereby certify that on this 20th day of July, 2022, I caused the

attached Praecipe to Opt-Out as Appellee to be served via the Court’s e-filing system and

electronic mail to counsel of record.

Respectfully,

/s/

Leonard F. Reuter
Senior Attorney
For the City of Philadelphia
1515 Arch St., 15th Fl.
Philadelphia, PA 19102

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11 JUN 2024 11:33 am

J. BOYD

Exhibit A

Case ID: 231000053

Control No.: 24061979
BLANK ROME LLP Attorneys for Intervenor Warrington
BY: Peter F. Kelsen, Esquire Development Partners Limited Partnership
Evan H. Lechtman, Esquire
Jonathan G. Blevins, Esquire

Attorney ID Nos. 35822, 89845, 331380

One Logan Square
Philadelphia, PA 19103
Tel.: (215) 569-5500
Fax: (215) 832-5555
Email: [email protected]
[email protected]
[email protected]

:
Melissa V. Johanningsmeier, : COURT OF COMMON PLEAS OF
: PHILADELPHIA COUNTY
Plaintiff, : CIVIL TRIAL DIVISION
:
v. : NO. 231000053
:
City of Philadelphia :
:
and :
:
City Council of Philadelphia, :
:
Defendants. :
:

INTERVENOR WARRINGTON DEVELOPMENT PARTNERS LIMITED

PARTNERSHIP’S ANSWER AND NEW MATTER

Intervenor Warrington Development Partners Limited Partnership (“Warrington”) by and

through its undersigned counsel, hereby sets forth its Answer to the Complaint filed by Plaintiff

Melissa V. Johanningsmeier. Warrington denies each and every allegation in the Complaint except

as admitted or otherwise stated herein as follows:

Case ID: 231000053

Control No.: 24061979
 The Parties 1

1. Plaintiff, Melissa V. Johanningsmeier (“Plaintiff”), is an adult individual and the

owner of certain real property located at 913 and 918 S. St. Bernard Street, Philadelphia, PA 19143.

ANSWER: Denied. Warrington denies knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 1.

2. Defendant, City of Philadelphia (“City”), is a municipal entity maintaining an

address c/o the Law Department, 1515 Arch Street, 14th Floor, Philadelphia PA 19107.

ANSWER: Admitted in part; denied in part. Warrington denies knowledge or information

sufficient to form a belief as to the truth of the allegations in Paragraph 2, except admits that the

City of Philadelphia is a municipal entity.

3. Defendant, City Council of the City of Philadelphia (“Council”), is the governing

body of the City maintaining an address c/o the Law Department, 1515 Arch Street, 14th Floor,

Philadelphia PA 19107.

ANSWER: Denied. Warrington denies that the City Council of the City of Philadelphia

is the governing body of the City of Philadelphia, and otherwise denies knowledge or information

sufficient to form a belief as to the truth of the remaining allegations in Paragraph 3.

Background

4. This case involves the illegal and unconstitutional spot zoning of certain real

property located at 5000 Warrington Avenue in the City and County of Philadelphia (the “Subject

Property”).

1
Warrington incorporates the headings from Plaintiff’s Complaint for ease of reference, but to the
extent such headings can be deemed as averments, they are denied.

1
Case ID: 231000053
Control No.: 24061979
 ANSWER: Denied. Paragraph 4 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 4 are denied.

5. Prior to the illegal and unconstitutional spot zoning, the Subject Property was

situated in the I-2 Zoning District.

ANSWER: Admitted in part; denied in part. Warrington admits that the Subject Property

previously was situated in a I-2 Zoning District. Otherwise, Paragraph 5 calls for legal conclusions

to which no response is required. To the extent a response is required, the remaining allegations

in Paragraph 5 are denied.

6. After the illegal and unconstitutional spot zoning, the Subject Property is situated

in an RMX-3 Zoning District.

ANSWER: Admitted in part; denied in part. Warrington admits that the Subject Property

is currently situated in an RMS-3 Zoning District. Otherwise, Paragraph 6 calls for legal

conclusions to which no response is required. To the extent a response is required, the remaining

allegations in Paragraph 6 are denied.

7. Plaintiff seeks a declaration that the actions of City Council in rezoning the Subject

Property for the sole purpose of accommodating one single development of the Subject Property,

in direct response to an unfavorable decision of the Court of Common Pleas on that development,

and in direct contravention of the City's comprehensive plan is illegal and unconstitutional.

ANSWER: Denied. The Complaint speaks for itself, and Warrington respectfully refers

the Court to the Complaint for a complete and accurate statement of its contents and denies

Paragraph 7 to the extent inconsistent therewith.

2
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Control No.: 24061979
 The unsuccessful application for a Zoning/Use Registration Permit

8. Omni Development Corporation (“Omni”) filed an Application for a Zoning/Use

Registration Permit (the “Application”) in connection with the Subject Property in which is sought,

among other things, permits to construct two high-rise multi-family apartment buildings and

accessory parking on the Subject Property (the “Proposed Project”).

ANSWER: Denied. The Application speaks for itself, and Warrington respectfully refers

the Court to the Application for a complete and accurate statement of its contents and denies

Paragraph 8 to the extent inconsistent therewith.

9. The Proposed Project was not permitted in an I-2 Zoning District.

ANSWER: Admitted.

10. The City of Philadelphia Department of Licenses & Inspections (“L&I”) properly

issued a Notice of Refusal in connection with the Application (the “Notice of Refusal”).

ANSWER: Admitted in part; denied in part. Warrington admits that L&I is issued a

Notice of Refusal in connection with the Application. Otherwise, Paragraph 10 calls for legal

conclusions to which no response is required. To the extent a response is required, the remaining

allegations in Paragraph 10 are denied.

11. In the Notice of Refusal, L&I correctly concluded that there were “three (3) use

refusals” as follows:

(a) Pursuant to Table 14-602-3 relating to what uses are “Allowed in [the]
Industrial District," a refusal was issued because "The Proposed, multi-family
household living, is prohibited, in this zoning district.”

(b) Pursuant to Section 14-803(5)(e) of the Zoning Code relating to “Interior

Landscape Requirements for Parking Lots,” a refusal was issued for failure to
comply with "Interior Landscaping" requirements where a minimum of ten percent
(10%) of the interior surface parking lot and off-street loading areas, calculated as
the total of area in all surface parking spaces and surface drive aisles, shall be
planted with landscape, but only “5.1% of parking space” is “Proposed.”

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Control No.: 24061979
 (c) Pursuant to Table 14-806-1 relating to “Loading Spaces,” a refusal was
issued for failure to comply with requirements for “Loading Spaces,” where seven
(7) are “Required,” and only two (2) are “Proposed.”

ANSWER: Denied. The Notice of Refusal speaks for itself, and Warrington respectfully

refers the Court to the Notice of Refusal for a complete and accurate statement of its contents and

denies Paragraph 11 to the extent inconsistent therewith.

12. As a result of the Notice of Refusal, the Proposed Project could not proceed.

ANSWER: Denied. Paragraph 12 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 12 are denied.

Omni files an appeal and the ZBA improperly grants the requested variances

13. Omni filed a Petition of Appeal to the City of Philadelphia Zoning Board of

Adjustment (“ZBA”) contesting the issuance of the Notice of Refusal by L&I.

ANSWER: Admitted in part; denied in part. Warrington admits that it filed a Petition of

Appeal to the City of Philadelphia Zoning Board of Adjustment (the “Petition”). Otherwise, the

Petition speaks for itself, and Warrington respectfully refers the Court to the Petition for a complete

and accurate statement of its contents and denies Paragraph 12 to the extent inconsistent therewith.

14. In an attempt to proceed with the Proposed Project, at the hearing on the Petition

of Appeal that was held before the ZBA on March 15, 2022, Omni requested variances from the

three (3) refusals set out by L&I in the Notice of Refusal.

ANSWER: Admitted in part; denied in part. Warrington denies the allegations in

Paragraph 14, except admits that a hearing on the Petition was held on March 15, 2022.

15. At the hearing, it was also determined that Omni was required to obtain a variance

for its failure to comply with an eight-foot rear yard setback requirement.

ANSWER: Admitted.

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Control No.: 24061979
 16. Despite the fact that Omni did not present sufficient evidence to warrant the

issuance of the requested variances, on April 5, 2022, the ZBA issued its decision, dated March 15,

2022 which granted the variances requested by Omni. A true and correct copy of the decision

granting the variances is attached hereto as Exhibit “A”.

ANSWER: Admitted in part; denied in part. Warrington admits that the ZBA granted the

Petition on March 15, 2022, and that a copy of the Notice of Decision is attached to the Complaint

as Exhibit A. Otherwise, Warrington denies the remaining allegations in Paragraph 16.

Plaintiff files an appeal of the grant of variances and the decision is reversed

17. Because the action of the ZBA in granting the variances was erroneous, arbitrary,

capricious, an abuse of discretion and contrary to law, Plaintiff filed an appeal of the decision

granting the variances to the Court of Common Pleas.

ANSWER: Admitted in part; denied in part. Warrington denies the allegations in

Paragraph 17, except admits that Plaintiff filed an appeal of the ZBA’s decision.

18. The appeal was assigned to the Honorable Anne Marie B. Coyle for determination.

ANSWER: Admitted.

19. After briefing and oral argument, by Order and Opinion dated January 30, 2023,

Judge Coyle agreed that the actions of the ZBA in granting the variances were improper and that

the ZBA had impermissibly conducted itself as a legislative body in modifying the unambiguous

provisions of the Philadelphia Zoning Code through its grant of the variances to Omni. A true and

correct copy of the Order and Opinion is attached hereto as Exhibit “B”.

ANSWER: Admitted in part; denied in part. Warrington admits that a copy of the Order

and Opinion is attached to the Complaint as Exhibit B. Otherwise, the Order and Opinion speaks

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for itself, and Warrington respectfully refers the Court to the Order and Opinion for a complete

and accurate statement of its contents and denies Paragraph 19 to the extent inconsistent therewith.

Plaintiff files an appeal of the grant of variances and the decision is reversed

20. On February 27, 2023, Warrington Development Partners Limited Partnership

(“Warrington”), as the alleged successor-in-interest to Omni, filed a Notice of Appeal of Judge

Coyle’s Order to the Commonwealth Court.

ANSWER: Admitted.

21. In response to the filing of the appeal, on March 9, 2023, Judge Coyle issued an

Order mandating that Warrington file a statement of matters complained of on appeal pursuant

to Pa.R.A.P. 1925(b) within 21 days of the date of the Order, i.e. by March 30, 2023. A true

and correct copy of the Order is attached hereto as Exhibit “C”.

ANSWER: Admitted in part; denied in part. Warrington admits that a copy of the Order

is attached to the Complaint as Exhibit C. Otherwise, the Order speaks for itself, and Warrington

respectfully refers the Court to the Order for a complete and accurate statement of its contents and

denies Paragraph 21 to the extent inconsistent therewith.

22. Contrary to Judge Coyle's Order requiring that the statement be filed by March 30,

2023, Warrington did not file its statement of matters complained of on appeal until April 3, 2023,

four days after the deadline for doing so. A true and correct copy of the statement of matters

complained of on appeal is attached hereto as Exhibit “D”.

ANSWER: Admitted in part; denied in part. Warrington admits that Warrington filed a

Concise Statement of Matters Complained of on Appeal and a copy of the Statement is attached

to the Complaint as Exhibit D. Otherwise, Warrington denies the remaining allegations in

Paragraph 22.

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 23. As a result of its failure to timely file its statement of matters complained of on

appeal, Warrington is at risk that it has waived any issues on its appeal to the Commonwealth

Court.

ANSWER: Denied. Paragraph 23 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 23 are denied.

24. As a result of Judge Coyle's Order, the Proposed Project could not proceed and

Warrington was left to develop the Subject Property in a manner consistent with the requirements

of an I-2 Zoning District and consistent with the surrounding neighborhood.

ANSWER: Denied. Paragraph 24 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 24 are denied.

Warrington and City Council do an “end run” on Judge Coyle’s decision

25. The Honorable Councilwoman Jamie Gauthier is the councilperson for the district

in which the Subject Property is located.

ANSWER: Admitted.

26. On May 25, 2023, in a direct attempt to override the decision made by Judge Coyle

and to specifically allow the Proposed Project to proceed despite its non-compliance with

applicable zoning requirements, Councilwoman Gauthier introduced an ordinance to re-zone the

Subject Property from I-2 to RMX-3. A true and correct copy of the ordinance is attached hereto

as Exhibit “E”.

ANSWER: Admitted in part; denied in part. Warrington admits that Councilwoman

Gauthier introduced a bill, which is attached to the Complaint as Exhibit E, and otherwise denies

knowledge or information sufficient to form a belief as to the truth of the remaining allegations in

Paragraph 26.

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 27. The proposed ordinance only affected the Subject Property.

ANSWER: Denied.

28. As further evidence that the proposed ordinance was intended solely to allow the

Proposed Project to proceed on the Subject Property, the ordinance specifically indicated that it

was only effective for two years and that after that time the zoning would revert to the prior zoning.

ANSWER: Admitted in part; denied in part. Warrington denies the allegations in

Paragraph 28, except admits that the ordinance expires two years after becoming law.

29. In addition, to further insure that the Proposed Project would be approved despite

its non-compliance with applicable zoning requirements, Councilwoman Gauthier introduced a

second ordinance that purported to create the Warrington Affordable Housing Overlay District

which would supersede the zoning requirements for accessory parking, landscaping and vehicle

access points which were applicable to the Proposed Project. A true and correct copy of the

Overlay District ordinance is attached hereto as Exhibit “F”.

ANSWER: Admitted in part; denied in part. Warrington admits that Councilwoman

Gauthier introduced a second bill, which is attached to the Complaint as Exhibit F, and otherwise

denies knowledge or information sufficient to form a belief as to the truth of the remaining

allegations in Paragraph 26.

30. As further evidence that the proposed Overlay District ordinance was intended

solely to allow the Proposed Project to be permitted, the ordinance specifically indicated that

the overlay district would expire in two years.

ANSWER: Admitted in part; denied in part. Warrington denies the allegations in

Paragraph 30, except admits that the ordinance expires two years after becoming law.

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 31. The expiration of the two ordinances as set forth above would create a situation

where the Proposed Project would then become a pre-existing non-conforming use.

ANSWER: Denied. Paragraph 31 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 31 are denied.

32. Plaintiff objected to the proposed ordinances on the basis that:

(a) the ordinances were improperly aimed at facilitating one development on

the Subject Property;

(b) the ordinances were an improper attempt to circumvent the objections of the
neighbors;

(c) The ordinances were an improper attempt to override the decision made by
Judge Coyle revoking the grant of the variances;

(d) The ordinances were not consistent with the comprehensive plan of the City;
and

(e) The ordinances were a clear case of spot zoning.

ANSWER: Admitted in part; denied in part. Warrington admits that Plaintiff objected to

the proposed ordinances and otherwise denies knowledge or information sufficient to form a belief

as to the truth of the remaining allegations in Paragraph 32.

33. As evidence that the improper rezoning of the Subject Property was not consistent

with the City’s comprehensive plan, the City of Philadelphia Planning Commission did not

indicate approval of the rezoning of the Subject Property.

ANSWER: Denied.

34. Despite the fact that the ordinances were illegal and improper, and despite the

objections raised by Plaintiff to the ordinances, City Council approved both ordinances on June 22,

2023, effectively rezoning just the Subject Property to permit the Proposed Project to proceed.

ANSWER: Admitted in part; denied in part. Warrington denies the allegations in

Paragraph 34, except admits that the City Council approved both ordinances on June 22, 2023.

9
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 35. The ordinances were submitted to the Mayor of the City and were either signed by

the Mayor or were not acted upon by the Mayor within the required time period.

ANSWER: Admitted.

36. As a result, the ordinances are currently in place.

ANSWER: Admitted.

The rezoning of the Subject Property constitutes illegal spot zoning

37. Under the City of Philadelphia Home Rule Charter and the Zoning Enabling Act,

all zoning legislation must be enacted in accordance with the City’s comprehensive plan.

ANSWER: Denied. Paragraph 37 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 37 are denied.

38. The rezoning of the Subject Property constitutes a singling out of the Subject

Property for treatment different than that afforded to similar surrounding parcels of land

indistinguishable from the Subject Property in character.

ANSWER: Denied.

39. The rezoning of the Subject Property constitutes a singling out of the Subject

Property for treatment different than that afforded to similar surrounding parcels of land

indistinguishable from the Subject Property solely for the economic benefit of Warrington.

ANSWER: Denied.

40. The rezoning of the Subject Property is not in accordance with a rational and

well-considered approach to a coordinated development of the City and is contrary to the City’s

comprehensive plan.

ANSWER: Denied.

41. The rezoning singles out the Subject Property for special treatment.

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Control No.: 24061979
 ANSWER: Denied.

42. The rezoning of the Subject Property is arbitrary and unreasonable and has no

relation to the public health, safety, moral and general welfare of the surrounding community.

ANSWER: Denied.

43. The rezoning of the Subject Property converts the Subject Property into an island

of dissimilar zoning.

ANSWER: Denied.

44. The rezoning of the Subject Property provides unjustified special treatment that

benefits a particular owner/developer, while undermining the pre-existing rights and uses of

adjacent property owners by over-crowding the neighborhood, by unnecessarily increasing traffic

in the area, and by dramatically increasing the population of the community.

ANSWER: Denied.

45. The rezoning of the Subject Property is an improper attempt by City Council to

override Judge Coyle’s reversal of the grant of the improperly granted variances.

ANSWER: Denied. Warrington denies knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 45 concerning City Council’s state of mind

and otherwise denies the remaining allegations in Paragraph 45.

The Necessity for Declaratory Relief

46. The Court has the power and authority to interpret and determine the validity of an

ordinance pursuant to the Pennsylvania Declaratory Judgments Act. 42 Pa.C.S.A. 7531 et. seq.

ANSWER: Denied. Paragraph 46 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 46 are denied.

47. Section 7533 of the Act provides as follows:

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 Any person ... whose rights, status, or other legal relations are affected by a statute,
municipal ordinance, contract, or franchise, may have determined any question of
construction or validity arising under the instrument, statute, ordinance, contract,
or franchise, and obtain a declaration of rights, status, or other legal relations
thereunder.

42 Pa.C.S.A. 7533.

ANSWER: Denied. The statutory provision, 42 Pa. C.S.A. 7533, speaks for itself, and

Warrington respectfully refers the Court to the provision for a complete and accurate statement of

its contents and denies Paragraph 47 to the extent inconsistent therewith.

48. The validity/invalidity of the ordinances rezoning the Subject Property constitutes

an actual controversy that necessitates the Court’s involvement and decision in order to determine

the rights of the parties to this action.

ANSWER: Denied. Paragraph 48 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 48 are denied.

49. The need for a determination of the validity/invalidity of the ordinances is

immediate as Warrington will undoubtedly seek to obtain approvals for the Proposed Project now

that the zoning has been improperly changed to specifically address its needs.

ANSWER: Admitted in part; denied in part. Warrington denies the allegations in

Paragraph 49, except admits that the need for a determination of the validity of the ordinances is

immediate.

50. As the owner of two properties that sit immediately behind the residential properties

that face the Subject Property, which properties are located less than 0.1 miles from the Subject

Property, Plaintiff will be adversely affected by the Proposed Project and therefore has standing to

contest the ordinances.

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Control No.: 24061979
 ANSWER: Denied. Paragraph 50 calls for legal conclusions to which no response is

required. By way of further Answer, Warrington denies knowledge or information sufficient to

form a belief as to the truth of the allegations in Paragraph 50 concerning what, if any, properties

Plaintiff owns, and otherwise denies the remaining allegations in Paragraph 50.

Request for Declaratory Relief

51. The allegations of paragraphs 1-50 inclusive are incorporated herein by reference.

ANSWER: Paragraph 51 is not an allegation of fact and thus requires no response. To

the extent a response is required, Warrington’s responses to Paragraphs 1-50 inclusive are

incorporated herein by reference.

52. Plaintiff has standing to assert the challenge to the illegal and invalid rezoning of

the Subject Property.

ANSWER: Denied. Paragraph 52 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 52 are denied.

53. The enactment of the ordinances which rezone or otherwise change the zoning

requirements for only the Subject Property constitutes illegal spot zoning of the Subject Property.

ANSWER: Denied. Paragraph 53 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 53 are denied.

54. The enactment of the ordinances was an illegal attempt by City Council to override

the Order issued by Judge Coyle finding that the variances were improperly granted by the ZHB.

ANSWER: Denied. Paragraph 54 calls for legal conclusions to which no response is

required. To the extent a response is required, the allegations in Paragraph 54 are denied.

55. Plaintiff is entitled to an Order declaring that:

(a) The rezoning of the Subject Property constituted an illegal and

impermissible spot zoning of the Subject Property;

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Control No.: 24061979
 (b) The ordinances enacted by City Council rezoning the Subject Property and
creating an Overlay District for the Subject Property are hereby stricken;

(c) The Subject Property shall remain zoned I-2; and

(d) Any development of the Subject Property that does not meet the
requirements of an I-2 zoning classification is prohibited.

ANSWER: Denied.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant Plaintiffs

request for declaratory relief and issue an Order:

(a) Declaring that the rezoning of the Subject Property constituted an illegal
and impermissible spot zoning of the Subject Property;

(b) Declaring that the ordinances enacted by City Council rezoning the Subject
Property and creating an Overlay District for the Subject Property are hereby
stricken;

(c) Declaring that the Subject Property shall remain zoned I-2;

(d) Declaring that any development of the Subject Property that does not meet
the requirements of an I-2 zoning classification is prohibited; and

(e) A warding such other and further relief as may be just and proper.

ANSWER: Denied. Warrington denies each and every allegation contained in the

“WHEREFORE” clause immediately following Paragraph 55, including that Plaintiff is entitled

to any relief whatsoever.

NEW MATTER

56. Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

57. Plaintiff lacks standing.

58. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has not suffered

any actual injury as a result of the conduct alleged in the Complaint.

59. Plaintiffs’ claims are barred, in whole or in part, by the applicable statutes of

limitations and/or other temporal restrictions governing those claims.

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Control No.: 24061979
 61. Warrington will rely upon any and all other defenses that become available or

appear during discovery proceedings in this action and reserves the right to amend and supplement

this Answer and New Matter for the purpose of asserting any such additional defenses.

WHEREFORE, Intervenor Warrington Development Partners Limited Partnership

respectfully requests that this Court enter judgment against Plaintiff, dismissing the Complaint in

its entirety with prejudice, and awarding Warrington any such other and further relief as the Court

deems just and proper.

Respectfully submitted,

BLANK ROME LLP

Dated: June 11, 2024 BY: /s/ Peter F. Kelsen

PETER F. KELSEN
EVAN H. LECHTMAN
JONATHAN G. BLEVINS

Atty. I.D. Nos. 35822, 89845, 331380

Attorneys for Intervenor Warrington

Development Partners Limited Partnership

15
Case ID: 231000053
Control No.: 24061979
 11 JUN 2024 11:33 am

J. BOYD
BLANK ROME LLP Attorneys for Intervenor Warrington
BY: Peter F. Kelsen, Esquire Development Partners Limited Partnership
Evan H. Lechtman, Esquire
Jonathan G. Blevins, Esquire

Attorney ID Nos. 35822, 89845, 331380

One Logan Square
Philadelphia, PA 19103
Tel.: (215) 569-5500
Fax: (215) 832-5555
Email: [email protected]
[email protected]
[email protected]

:
Melissa V. Johanningsmeier, : COURT OF COMMON PLEAS OF
: PHILADELPHIA COUNTY
Plaintiff, : CIVIL TRIAL DIVISION
:
v. : NO. 231000053
:
City of Philadelphia :
:
and :
:
City Council of Philadelphia, :
:
Defendants. :
:

INTERVENOR WARRINGTON DEVELOPMENT PARTNERS LIMITED

PARTNERSHIP’S VERIFIED PETITION TO INTERVENE

Pursuant to Pennsylvania Rules of Civil Procedure 2326 through 2328, Warrington

Development Partners Limited Partnership (“Warrington”), by and through the undersigned

counsel, respectfully submits this Petition to Intervene in the above-captioned matter. For the

reasons set forth more fully below, Warrington’s Petition should be granted.

1. On October 2, 2023, Plaintiff Melissa V. Johanningsmeier (“Plaintiff”) filed a one-

count civil complaint against Defendants the City of Philadelphia and the City Council of

Philadelphia seeking a declaratory judgment that “the actions of City Council . . . illegal[ly] and

1
Case ID: 231000053
Control No.: 24061979
unconstitutional[ly]” rezoned the Zoning District applicable to the property located at 5000

Warrington Avenue in the City and County of Philadelphia, Pennsylvania (the “Property”) from

I-2 to RMX-3. (Compl. ¶ 7.)

2. Warrington is the owner of the Property. Warrington seeks to develop the Property

for an affordable housing project that has received wide local community support.

3. On November 3, 2023, Defendants served an Answer and New Matter, to which

Plaintiff replied on November 7, 2023.

4. Despite being represented by the same law firm in both this action and her appeal

of the decision by the City of Philadelphia Zoning Board of Adjustment granting Warrington’s

Application No. ZP-2021-007200 seeking zoning variances for the Property (which is currently

pending in the Commonwealth Court), neither Plaintiff nor her counsel informed Warrington or

its outside counsel that this lawsuit had been commenced.

5. The ordinances passed by the City and at issue in this case were valid, legal

exercises of the City’s authority.

6. Far from creating an “island,” the rezoning conforms the Zoning District to the

surrounding districts, which are all zoned for residential use. In addition, the rezoning will allow

the redevelopment of the site, which currently is used as a junkyard that constitutes significant

urban blight.

7. Pursuant to Pa. R. Civ. P. 2327(4), “[a]t any time during the pendency of an action,

a person not a party thereto shall be permitted to intervene therein . . . if . . . the determination of

such action may affect any legally enforceable interest of such person whether or not such person

may be bound by a judgment in the action.”

2
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Control No.: 24061979
 8. Because the Property is subject to the rezoning challenged in the instant case, as

the owner, Warrington has a “legally enforceable interest.” See Keener v. Zoning Hearing Bd. of

Millcreek Twp., 714 A.2d 1120, 1122-23 (Pa. Commw. Ct. 1998) (explaining that a party, which

“own[s] an interest in or a lien upon property in question” satisfies Rule 2327). As

owner/developer, intervention will permit Warrington to address any issues concerning the merits

of the contemplated affordable housing project to the community and the city of Philadelphia by

providing much needed affordable housing while removing the significant urban blight imposed

by the site through its current use.

9. Accordingly, Warrington seeks to intervene in this matter with all rights and

privileges provided by the Pennsylvania Rules of Civil Procedure, including filing an Answer and

New Matter to Plaintiff’s Complaint. Warrington’s intervention should not affect the current

litigation schedule, as Warrington’s participation in this matter will be limited to addressing the

merits of the affordable housing project and the removal of the existing urban blight.

10. For the reasons stated herein, Warrington requests that this Court grant its Petition

to Intervene. A copy of Warrington’s proposed Answer and New Matter is attached hereto as

Exhibit A.

Respectfully submitted,

BLANK ROME LLP

Dated: June 11, 2024 BY: /s/ Peter F. Kelsen

PETER F. KELSEN
EVAN H. LECHTMAN
JONATHAN G. BLEVINS

Atty. I.D. Nos. 35822, 89845, 331380

Attorneys for Intervenor Warrington

Development Partners Limited Partnership

3
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Control No.: 24061979
 CERTIFICATE OF SERVICE

I, Peter F. Kelsen, counsel for Warrington Development Partners Limited Partnership,

hereby certify that on this date a true and correct copy of the foregoing Verified Petition to

Intervene and enclosed exhibits were served on the following by electronic filing, email, and mail

courier to the following:

Edward J. Hayes, Esq.

FOX ROTHSCHILD LLP
200 Market Street, 20th Floor
Philadelphia, Pennsylvania 19103-3222
Telephone: (215) 299-2092
Email: [email protected]
Counsel for Plaintiff

Dated: June 11, 2024 /s/ Peter F. Kelsen

Peter F. Kelsen

Case ID: 231000053

Control No.: 24061979
 Filed and Attested by the
Office of Judicial Records
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
11 OCT 2024 06:57 am
: OF PHILADELPHIA COUNTY
M. TIERNEY
:
v. : OCTOBER TERM, 2023
:
CITY OF PHILADELPHIA, et al. : No. 00053
__________________________________________:

ORDER

AND NOW, this day of , 2024, upon consideration of the Motion to

Compel Depositions filed by Plaintiff and the response of the City of Philadelphia, if any, and considering

this Court’s prior Order overruling the City’s assertion of legislative privilege in connection with the

production of documents sought by Plaintiff, it is hereby

ORDERED AND DECREED that the Motion is granted and the City of Philadelphia shall produce

Councilwoman Gauthier and Andrew Goodman for deposition within days of the date of this Order at

the offices of counsel for Plaintiff.

In the event the City fails to comply with this Order, it shall risk such sanctions as this Court deems

appropriate, including an award of attorney’s fees.

BY THE COURT:

______________________________________
J.

Discovery deadline: January 6, 2025

Certification Due Date: 10/18/2024

Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
FOX ROTHSCHILD LLP
BY: EDWARD J. HAYES, ESQUIRE
IDENTIFICATION NO. 30243 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, TWENTIETH FLOOR
PHILADELPHIA, PA 19103-3222
(215) 299-2000
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
: OF PHILADELPHIA COUNTY
:
v. : OCTOBER TERM, 2023
:
:
CITY OF PHILADELPHIA, et al. : No. 00053
__________________________________________

MOTION TO COMPEL DEPOSITIONS

Plaintiff, Melissa V. Johanningsmeier (“Plaintiff”), by her attorneys, Fox Rothschild LLP, hereby

files this Motion to compel depositions and in support thereof avers the following:

1. Plaintiff filed this action seeking a judicial determination that certain ordinances enacted

by Defendant, City of Philadelphia (the “City”), were invalid and illegal because the ordinances spot

zoned certain real estate in the City.

2. As part of her prosecution of the claims set forth in the Complaint, Plaintiff served a

request for production of documents upon the City on January 31, 2024.

3. The City did not provide a response to the request for production or produce any of the

requested documents within thirty days of service, as required by the Pennsylvania Rules of Civil

Procedure.
Certification Due Date: 10/18/2024
Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
 4. As a result of the City’s failure to cooperate with discovery, Plaintiff filed a Motion to

Compel with this Court.

5. By Order dated April 2, 2024, the Court directed that the City produce all of the requested

documents within 20 days or risk additional sanctions. A true and correct copy of the Order is attached

hereto as Exhibit “A”.

6. The City filed a Motion for Reconsideration of the Order.

7. On April 23, 2024, the Court granted the Motion for Reconsideration and issued a new

Order compelling the production of the requested documents, subject to privilege, and providing Plaintiff

with the opportunity to challenge the withholding of documents for privilege. A true and correct copy

of the Order is attached hereto as Exhibit “B”.

8. The City produced certain documents but withheld other documents based on legislative

privilege.

9. Plaintiff objected to the withholding of documents based on legislative privilege as the

privilege does not apply to the facts of this case.

10. In order to obtain the documents improperly withheld on the basis of legislative privilege,

Plaintiff filed a Motion to strike the objections and compel the production of the documents withheld on

the basis of legislative privilege.

11. After oral argument before the Honorable Joshua Roberts on the issue of legislative

privilege, Judge Roberts agreed that the assertion of legislative privilege was improper and issued an

Order on September 13, 2024 directing the City to produce the withheld documents. A true and correct

copy of the Order is attached hereto as Exhibit “C”.

Certification Due Date: 10/18/2024

Response Date: 10/25/2024
Case ID: 231000053
-2- Control No.: 24102704
 12. Plaintiff then requested that the City provide dates on which Councilwoman Gauthier and

her assistant, Andrew Goodman, would be made available for deposition.

13. Councilwoman Gauthier and Andrew Goodman were intricately involved in the drafting

and adoption of the ordinances which spot zoned the subject property and it is believed that they had

communications with the owner of the subject property, and others, about enacting the ordinances for

the specific purpose of overriding a decision issued by Judge Coyle which struck variances issued to the

owner to develop the property in a certain manner.

14. The owner filed an appeal of Judge Coyle’s decision, but rather than await a decision on

the appeal, the ordinances were enacted to “reverse” Judge Coyle’s Order and granted the owner the

ability to develop the subject property as of right.

15. In response to the request for depositions, counsel for the City indicated that despite Judge

Roberts’ decision that legislative privilege does not apply in this matter, the City has no obligation to

produce these witnesses because of legislative privilege. A true and correct copy of e-mail in which the

City indicated its refusal to produce the witnesses is attached hereto as Exhibit “D”.

16. The refusal to produce the witnesses for deposition is in direct contradiction of Judge

Roberts’ decision that legislative privilege is not applicable under the facts of this case and does not

preclude the discovery being sought by Plaintiff.

17. Based on the City’s wrongful refusal to produce Councilwoman Gauthier and Andrew

Goodman for deposition, Plaintiff is entitled to an Order compelling the City to produce Councilwoman

Gauthier and Andrew Goodman for deposition. See Pa.R.C.P. 4019(a)(1)(iv) and (viii).

18. Plaintiff has made a good faith effort to resolve this discovery dispute with the City but

has been unable to do so.

Certification Due Date: 10/18/2024

Response Date: 10/25/2024
Case ID: 231000053
-3- Control No.: 24102704
 WHEREFORE, Plaintiff respectfully requests that her Motion to Compel be granted and that the

City be compelled to produce Councilwoman Gauthier and Andrew Goodman for deposition or suffer

such sanctions as the Court deems appropriate.

_________________________________________
EDWARD J. HAYES, ESQUIRE
FOX ROTHSCHILD LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103-3222
(215) 299-2092

Attorneys for Plaintiff,

Melissa V. Johanningsmeier
Date: October 11, 2024

Certification Due Date: 10/18/2024

Response Date: 10/25/2024
Case ID: 231000053
-4- Control No.: 24102704
 STATEMENT

EDWARD J. HAYES hereby states that he is attorney for Plaintiff and authorized to make this

statement; that the fact set forth in the preceding Motion are true and correct to the best of his knowledge,

information and belief and that the statements set forth herein are subject to 18 Pa.C.S.A. 4904 relating

to unsworn falsification to authorities.

Date: October 11, 2024 _______________________________________

EDWARD J. HAYES

Certification Due Date: 10/18/2024

Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
Certification Due Date: 10/18/2024
Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
Certification Due Date: 10/18/2024
Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
Certification Due Date: 10/18/2024
Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
Certification Due Date: 10/18/2024
Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
 ATTORNEY CERTIFICATION OF GOOD FAITH

I, Edward J. Hayes, Esquire, certify that I am the attorney for Plaintiff in the above-captioned

matter and that I have been unable to resolve this issue in good faith.

Date: October 11, 2024 _______________________________________

Edward J. Hayes

Certification Due Date: 10/18/2024

Response Date: 10/25/2024
Case ID: 231000053
-6- Control No.: 24102704
 CERTIFICATE OF SERVICE

I hereby certify that on this date, a true and correct copy of the foregoing Motion to Compel has

been served upon the following individual via e-mail:

Leonard F. Reuter, Esquire

Mary Costello, Esquire
City of Philadelphia Law Department
1515 Arch Street, 15th Floor
Philadelphia PA 19102

Peter Kilson, Esquire

130 N. 18th Stret
Philadelphia PA 19103

Date: October 11, 2024 _______________________________________

EDWARD J. HAYES

Certification Due Date: 10/18/2024

Response Date: 10/25/2024
Case ID: 231000053
Control No.: 24102704
 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
Filed and Attested by the
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
Office of Judicial Records
CIVIL TRIAL DIVISION 21 OCT 2024 04:11 pm
N. SWEENEY

JOHANNINGSMEIER COURT OF COMMON PLEAS

CIVIL TRIAL DIVISION
V.

CITY OF PHILADELPHIA, ET AL. NO. 231000053

ORDER

AND NOW, this day of , 2024, upon

consideration of Plaintiff’s Motion to Compel Depositions (Control No. 24102704), and the

response thereto, it is HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

, J.

Case ID: 231000053

Control No.: 24102704
 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION

JOHANNINGSMEIER COURT OF COMMON PLEAS

CIVIL TRIAL DIVISION
V.

CITY OF PHILADELPHIA, ET AL. NO. 231000053

RESPONSE TO PLAINTIFF’S MOTION TO COMPEL

The City of Philadelphia and the City Council of Philadelphia hereby respond to the

Plaintiff’s Motion to Compel in accordance with the numbering contained therein.

1. Admitted that the Plaintiff filed this action making such allegations; it is denied that any

of the allegations are valid.

2. Admitted.

3. It is admitted that there was a delay in responding to the Plaintiff’s first discovery

requests.

4. It is admitted that there was a delay in responding to the Plaintiff’s first discovery

requests.

5. It is admitted that there was a delay in responding to the Plaintiff’s first discovery

requests.

6. Admitted.

7. Admitted.

8. Admitted.

Case ID: 231000053

Control No.: 24102704
9. It is admitted that the Plaintiff objected to the withholding of documents based on

legislative privilege. It is denied that the legislative privilege does not apply to the facts

of this case.

10. Admitted.

11. It is admitted that the Honorable Joshua Roberts ordered the production of documents

withheld on the basis of legislative privilege.

12. Admitted.

13. Denied. Plaintiff’s deposition requests seek largely irrelevant matter to the central claim

which is nearly, if not entirely, a question of law based on facts that are not in dispute.

The motivation of the bill’s authors or the manner in which the bills were drafter are

entirely irrelevant to the question of whether the bills constitute spot-zoning.

14. Admitted in part; it is admitted that ordinances were passed regarding the property in

dispute. It is denied that the motivations of such ordinances are relevant to the question

of law of whether the ordinances constitute spot-zoning.

15. Admitted in part; it is admitted that the City has no obligation to produce the

Councilmember and a member of the Councilmember’s office and has not produced the

witnesses for deposition. It is denied that Judge Roberts’s decision regarding documents

withheld on legislative privilege has any effect on the legislative privilege protecting the

Councilmember and her staff from the burdens of a deposition.

16. Denied. The Honorable Judge Robert’s decision regarding the documents withheld based

on legislative privilege, documents produced pursuant to the Court’s order, had no

bearing on the current dispute before the Court based on the City’s refusal to produce the

witnesses for deposition.

Case ID: 231000053

Control No.: 24102704
 17. Denied.

18. Admitted.

Respectfully,

Date: October 21, 2024 /s/

LEONARD F. REUTER
Senior Attorney
Pa. Attorney ID No. 90422
City of Philadelphia Law Department
1515 Arch Street, 14th Floor
Philadelphia, PA 19102
[email protected]

Case ID: 231000053

Control No.: 24102704
CITY OF PHILADELPHIA LAW DEPARTMENT
LEONARD F. REUTER
SENIOR ATTORNEY
IDENTIFICATION NO. 90422
1515 ARCH STREET, 14TH FLOOR
PHILADELPHIA, PA 19102
[email protected]

JOHANNINGSMEIER COURT OF COMMON PLEAS

CIVIL TRIAL DIVISION
V.

CITY OF PHILADELPHIA, ET AL. NO. 231000053

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S OPPOSITION TO

PLAINTIFF’S MOTION TO COMPEL DEPOSITIONS

I. MATTER BEFORE THE COURT

The Court should deny Plaintiff’s motion to compel depositions as Defendants will show

that the depositions of Councilmember Gauthier and a member of her staff are subject to the

legislative privilege. Plaintiff has failed to set forth any facts or city any case law showing that

the deposition of a legislator should be compelled. Denial is warranted based on the caselaw

protecting legislators from depositions and the important governmental interest in avoiding

disruption of legitimate legislative activity. Plaintiff’s requested relief is a question of law -

whether the ordinances at issue constitute spot zoning - and the Councilmember’s deposition

would not further develop an answer to that question while inappropriately delaying this

litigation and distracting the Councilmember from her legislative duties.

Case ID: 231000053

Control No.: 24102704
II. BACKGROUND

On October 12, 2024, Plaintiff filed a Motion to Compel Depositions of Councilmember

Jamie Gauthier and a member of her staff, Andrew Goodman. See, Plaintiff’s Motion to Compel

Depositions (Control No. 231000053). The Motion has been certified as contested, as the City

notified the Plaintiff that it would oppose producing the Councilmember or any member of her

staff as such deposition would not lead to the discovery of any evidence relevant to this matter and

that said depositions are barred by the doctrine of legislative immunity and the privileges arising

therefrom.

The City has concurrently filed a Motion for a Protection Order to excuse the City from

any obligation to respond to further requests to produce witnesses for deposition and to preclude

the Plaintiff from making such requests in the future. The City incorporates all averments and

arguments set forth in its Motion for a Protection Order and the failure to raise any arguments in

said Motion shall not in any way be construed to imply any waiver for purposes of the present

Response.

This action arises from two zoning ordinances approved by City Council on June 22, 2023

for the property located at 5000 Warrington Avenue (“Subject Property”) in the City and County

of Philadelphia. The ordinances in question remapped the Subject Property from its prior zoning

classification and created a zoning overlay imposing additional requirements . Plaintiff filed a

complaint seeking declaratory judgment, asking this Court to determine the validity of the

ordinances rezoning the Subject Property. Plaintiff’s requested relief asked that the challenged

ordinances be struck down as constituting illegal spot zoning: a claim that solely largely involves

a question of law; at best, the only facts in dispute would relate to the land in question, not any

motivations or state of mind of the legislature or the drafters of the bills.

Case ID: 231000053

Control No.: 24102704
 The Defendants provided Plaintiff’s Counsel with Responses to Plaintiff’s First Set of

Requests for Productions of Documents on April 22, 2024. Defendants provided Plaintiff’s

Counsel with production of responsive, non-privileged documents on a rolling basis as well as a

log for all documents for which Defendants claim privilege. By letter dated May 28, 2024,

Plaintiff’s counsel informed Defendant’s counsel of inadvertently disclosed documents and stated

the legislative privilege does not apply to the facts of this case. Plaintiff filed a Motion to Compel

production of privileged documents on July 1, 2024, to which Defendants responded. See

Plaintiff’s Mot. to Compel (Control No. 24070181). After holding a hearing on the matter, the

Honorable Joshua Roberts ordered the production of all documents requested by Plaintiff which

the City withheld on the basis of legislative privilege. See Order of the Court, Sept. 13, 2024

(Control No. 24070181).

On October 10th, Defendants informed Plaintiff’s Counsel that the City does not intend to

produce either Councilmember Gauthier or her staff member for deposition, as Judge Roberts’s

decision on the legislative privilege applied solely to emails. Plaintiff filed the present Motion to

Compel Depositions on October 12, 2024, to which Defendants’ respond. See Plaintiff’s Mot. to

Compel Depositions (Control No. 231000053).

III. ARGUMENT

Because Plaintiff’s request seeks depositions from Councilmember Gauthier and her staff

member for the sole purpose of proving legislative motive and would infringe upon City Council’s

legislative process, the requests are barred by legislative privilege. Facially, Plaintiff challenges

ordinances passed by City Council based on alleged illegal spot zoning, largely, if not wholly, a

question of law. Any relevant factual dispute would arise from the characterization of the Subject

Case ID: 231000053

Control No.: 24102704
Property itself, and not the motives or state of mind of a legislator or their staff. Here, there are no

allegations of insidious motive by the Councilmember or her staff targeting Plaintiff’s protected

rights to be found in Plaintiff’s complaint, therefore there is no relevance to their state of mind or

motivations. Plaintiff’s failure to cite any case law supporting the deposition of a legislator for

legitimate legislative activity speaks volumes. Plaintiff’s request for deposition of the

Councilmember, if compelled in contravention of the legislative privilege, would open up

legislators for incessant discovery on all matters of legislation.

A. Legislative Privilege applies to Legitimate Legislative Activities

Legislative immunity, and the privileges that arise therefrom are deeply rooted in the law.

The privileges are universally recognized throughout the courts of the United States at both Federal

and state levels; Pennsylvania is no exception. The Supreme Court has emphasized that as to

legislative immunity, “such pretrial matters as discovery are to be avoided if possible, as

‘[i]nquiries of this kind can be peculiarly disruptive of effective government.’” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)). The

legislative privilege, derived from the Speech and Debate Clauses of both the United States and

Pennsylvania Constitution, also recognizes that “it [is] not consonant with our scheme of

government for a court to inquire into the motive of legislators.” Tenney v. Brandhove, 341 U.S.

367, 377 (1951) (citation omitted).

In addition to immunizing officials exercising a legislative function from liability itself,

legislative immunity has two applications specific to discovery: first, it bars seeking discovery

from those who acted as part of the legislative process, because legislative immunity includes

immunity from “‘from the burden of defending’” against suit. Fowler-Nash v. Democratic

Case ID: 231000053

Control No.: 24102704
Caucus of Pa. House of Representatives, 469 F.3d 328, 331 (3d Cir. 2006) (quoting Dombrowski

v. Eastland, 387 U.S. 82, 85 (1967)). Second, it bars discovery that has the aim of “‘inquir[ing]

into legislative acts or the motivation for actual performance of legislative acts.’” Id. (quoting

United States v. Brewster, 408 U.S. 501, 508 (1972)); see also Wright & Miller, 26A Fed. Prac.

& Proc. Evid. § 5675 n.11 Legislative Privilege (1st ed.) (“If the legislator cannot be punished

for some legislative act, then evidence relevant to prove that act is inadmissible even though it is

not itself a legislative act.”). Legislative immunity necessarily gives rise to the privilege

shielding officials from the burden of responding to discovery relating to claims arising from

legislative activity and substantively bars discovery into the motivation for legislative acts—even

if the material or testimony sought occurred outside the legislative chamber. As the Supreme

Court has explained, there is a sound basis for this. “The privilege of absolute immunity ‘would

be of little value if [legislators] could be subjected to the cost and inconvenience and distractions

of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based

upon a jury’s speculation as to motives.’” Bogan v. Scott-Harris, 523 U.S. 44, 54–55 (1998)

(quoting Tenney, 341 U.S. at 377).

The Supreme Court of Pennsylvania has found “no basis for distinguishing the scope of

the Pennsylvania Speech and Debate Clause applicable to members of the General Assembly from

that of the federal clause applicable to members of Congress.” Consumers Education and

Protective Ass’n v. Nolan, 470 Pa 372, 383 (Pa. 1977). The Court also noted that the Supreme

Court has interpreted the federal Speech and Debate Clause broadly “in order to protect legislators

from judicial interference with their legitimate legislative activities.” Id. at 382 (citing Eastland

v. United States Servicemen’s Fund, 421 U.S. 491 (1975)). The Commonwealth Court has

previously noted the protections of the Pennsylvania Speech and Debate Clause extend to “fact-

Case ID: 231000053

Control No.: 24102704
finding, information gathering, and investigative activities,” as these are “essential prerequisites

to the drafting of bills and the enlightened debate over proposed legislation.” 1 League of Women

Voters of Pennsylvania v. Commonwealth, 177 A.3d 1000, 1003 (Pa. Cmwlth. 2017) (quoting

Government of Virgin Islands v. Lee, 775 F.2d 514, 521 (3d Cir. 1985)). Finally, the Supreme

Court has held for the “for the purpose of construing the [legislative] privilege a Member and his

aide are to be ‘treated as one.’” Gravel v. United States, 408 U.S. 606, 616 (1972) (quoting United

States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972)).

As noted by the Commonwealth Court, “the bulk of the case law involving the Speech and

Debate Clause arises in the context of immunity from liability.” William Penn School District v.

Dept. of Education, 243 A. 3d 252, 265 (Pa. Cmwlth. 2020) (citations omitted). However, the

protection of legislators from deposition is not a novel issue in Pennsylvania. The Commonwealth

Court concluded in William Penn School District that members of the Pennsylvania Assembly

showed good cause, based on the legislative privilege, that they were entitled to a protective order

preventing their deposition. Id. The Commonwealth Court, after a thorough review of the

Pennsylvania Speech and Debate Clause, concluded that the plain language of the Clause, as well

as precedent, supported a finding that the depositions at issue in that case would contravene the

legislative privilege. Id. at 272. The Commonwealth Court utilized language from the

Pennsylvania Supreme Court which stated that “[t]he Speech and Debate Clause prohibits inquiry

into those things generally said or done in the House or Senate in the performance of official duties

1
cf. Fowler-Nash v. Democratic Caucus of Pa. House of Representatives, 469 F. 3d 328 (3d Cir. 2006) (finding a
Pennsylvania legislator was not entitled to legislative immunity in a claim brought by a fired legislative assistance as
the termination was carried out as a purely administrative function.)

Case ID: 231000053

Control No.: 24102704
and into the motivation for those acts.” Pa. School Boards Ass’n v. Commonwealth Ass’n of School

Administrators, 569 Pa. 436 (Pa. 2002).

The sole case considering the legislative privilege in the context of documentation of a

non-party is League of Women Voters of Pennsylvania v. Commonwealth, 177 A.3d 1000 (Pa.

Cmwlth. 2017). In League of Women Voters, the Commonwealth Court stated it “lacks the

authority to compel testimony or the production of documents relative to the intentions,

motivations, and activities of state legislators and their staff with respect to the Act 131 of 2011.”

Id. at 1005. The Court held that the third-party subpoenas at issue should be interpreted as

“excluding those documents that reflect the intentions, motivations, and activities of state

legislators and their staff with respect to the consideration and passage of Act 131 of 2011.” Id. at

1008. While presenting slightly different factual backgrounds, both the Allegheny County Court

of Common Pleas 2 and United States District Court for the Eastern District of Pennsylvania 3 have

similarly invoked a legislative privilege to deny discovery that infringes on the legislative process.

The United States Courts of Appeals for both the Fifth and Eighth Circuit have considered

the exact issue presented here, with both finding a legislative privilege exists for state legislators.

The Eighth Circuit considered a petition for writ of mandamus filed by members of the North

Dakota Legislative Assembly; the legislators challenged an order from the district court directing

them to comply with subpoenas for documents or testimony in a civil case alleging violations of

2
See Melvin v. Doe, 48 Pa. D. & C. 4th 566 (Ct. Comm. Pl. 2000) (After conducting its own review of the case law,
the Court of Common Pleas found that the speech and debate clause must be interpreted broadly to protect
legislators from judicial interference with their legitimate legislative activity. Relying on a separation of powers
analysis, the Court held that a non-party state legislator was not required to submit to a deposition in a defamation
case. The subpoena requested that the legislator submit to questioning surrounding the nominee for a judicial
appointment.)
3
See I.B.I.D. Assocs. Ltd. Partnership v. Gauthier, 2022 WL 1524973 (E.D. Pa. 2022) (Finding the courts generally
do not subject the legislative process to discovery as the threat might chill the legislative process.)

Case ID: 231000053

Control No.: 24102704
the Voting Rights Act – the legislators were not named parties in the case. In re North Dakota

Legislative Assembly, 70 F.4th 460 (8th Cir. 2023). The Court noted that “[l]egislative privilege,

like legislative immunity, reinforces representative democracy by fostering an environment where

public servants can undertake their duties without the threat of personal liability or the distraction

of incessant litigation.” Id. at 463. The plaintiffs in the underlying lawsuit sought documents and

testimony from legislators and aides concerning acts undertaken with respect to redistricting

legislation. Id. The Court found the “conditions for legislative privilege are plainly satisfied here.”

Id. The Fifth Circuit similarly held in favor of the legislative privilege, specifically stating that an

exception to the privilege for “communications ‘outside the legislature’ would swallow the rule

almost whole” because meeting with interest groups “is a part and parcel of the modern legislative

procedures.” La Union Del Pueblo Entero v. Abbot, 68 F.4th 228, 236 (5th Cir. 2023). The Court

also noted that “it [legislative privilege] also serves the “public good” by allowing lawmakers to

focus on their jobs rather than on motions practice in lawsuits.” Id. at 237.

Plaintiff’s request to compel the depositions of Councilmember Jamie Gauthier and a

member of the Councilmember’s staff, Andrew Goodman, stands in stark opposition to the

constitutional protection found in the Pennsylvania and Federal Speech and Debate Clauses. These

depositions would unequivocally invade upon the intentions and motivation of the Councilmember

when performing legitimate legislative activity. Plaintiff’s requested depositions threaten to

establish a dangerous precedent, wherein plaintiffs can now waste the time of legislators by going

on fishing expeditions for motives that have no bearing on the ultimate question posed in a

complaint, where no malice is alleged, and where, as here, plaintiffs’ have no tangible harm from

the legislation at issue.

Case ID: 231000053

Control No.: 24102704
 B. Plaintiff’s Reliance on the Court’s Sept. 13 Order is Unfounded

According to Plaintiff’s Motion to compel, the City is wrongfully refusing to produce the

witnesses for deposition because Judge Roberts previously ordered the production of documents

withheld on the basis of legislative privilege. The Honorable Judge Roberts’s September 13th

Order in this case did not say anything regarding the deposition of a member of City Council. See

Order of the Court, September 13, 2024 (Control No. 24070181). As shown above, while the case

law regarding the protection of the legislative privilege as it pertains to documents may be

underdeveloped, the deposition of a member of the legislature has been considered and rejected

by the courts of the Commonwealth and by the Pennsylvania Constitution. The Motion to

Compel’s reliance on the September 13th Order of the Court, which in no way authorizes the

requested depositions, absent additional legal basis, must be rejected.

IV. CONCLUSION

For all the reasons set forth above, Defendants respectfully request that this Court deny

Plaintiff’s Motion to Compel.

Respectfully submitted,

Date: October 21, 2024 /s/

LEONARD F. REUTER
Senior Attorney
Pa. Attorney ID No. 90422
City of Philadelphia Law Department
1515 Arch Street, 14th Floor
Philadelphia, PA 19102
[email protected]

Case ID: 231000053

Control No.: 24102704
CITY OF PHILADELPHIA LAW DEPARTMENT
LEONARD F. REUTER
SENIOR ATTORNEY
IDENTIFICATION NO. 90422
1515 ARCH STREET, 14TH FLOOR
PHILADELPHIA, PA 19102
[email protected]
____________________________________
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
Plaintiff, : OF PHILADELPHIA COUNTY
:
v. :
: Case ID No. 231000053
:
CITY OF PHILADELPHIA, et. al. :
Defendant. :
____________________________________:

CERTIFICATE OF SERVICE

I, Leonard Reuter, Esquire, Attorney for Defendant, certify that a true and correct copy of the
foregoing Opposition to Plaintiff’s Motion to Compel was electronically filed and served upon
all counsel of record in accordance with this Court’s e-filing system.

Date: October 21, 2024 /s/

LEONARD F. REUTER
Senior Attorney
Pa. Attorney ID No. 90422
City of Philadelphia Law Department
1515 Arch Street, 15th Floor
Philadelphia, PA 19102
[email protected]

Case ID: 231000053

Control No.: 24102704
 Filed and Attested by the
Office of Judicial Records
07 NOV 2024 03:31 pm
N. SWEENEY

FOX ROTHSCHILD LLP

BY: EDWARD J. HAYES, ESQUIRE
IDENTIFICATION NO. 30243 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, TWENTIETH FLOOR
PHILADELPHIA, PA 19103-3222
(215) 299-2000
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
: OF PHILADELPHIA COUNTY
:
v. : OCTOBER TERM, 2023
:
CITY OF PHILADELPHIA, et al. : No. 00053
__________________________________________

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF HER

MOTION TO COMPEL DEPOSITIONS

Plaintiff, Melissa V. Johanningsmeier (“Plaintiff”), by her attorneys, Fox Rothschild LLP,

hereby files this brief in support of her Motion to Compel Depositions (“Motion”) and in response to

the Memorandum of Law of the Defendants, City of Philadelphia and the City Council of Philadelphia

(together, “Defendants”), filed in Opposition to Plaintiff’s Motion to Compel Depositions. The Motion

seeks an Order from the Court compelling Defendants to produce Councilperson Jamie Gauthier

(“Councilperson Gauthier) and her aide, Andrew Goodman (“Mr. Goodman”) for deposition.

INTRODUCTION

The Court has already resolved the issue at the heart of Plaintiff’s Motion to Compel, i.e.,

whether legislative privilege forecloses discovery into Councilperson Gauthier’s political, non-

legislative efforts to spot zone the subject property in circumvention of an adverse decision issued by

Case ID: 231000053

Control No.: 24102704
Judge Coyle revoking certain variances granted to the developer of the property. This Court previously

held that legislative privilege was not available to shield Defendants from discovery. Specifically, in

an Order dated September 13, 2024, the Honorable Joshua Roberts granted Plaintiff’s earlier filed

Motion to compel the production of documents and directed Defendants to produce all documents

withheld by them on the basis of legislative privilege. The difference here is that Plaintiff now seeks

to compel depositions rather than the production of documents.

Having been previously ordered to produce documents over an objection based on legislative

privilege, the Defendants act as though no such Order was ever issued and, once again, improperly

assert legislative privilege as a basis to shield a Councilperson and her aide from depositions. As this

Court has already rejected the assertion of legislative privilege in this case, and as Defendants cannot

explain why that ruling does not apply equally in the context of deposition practice, Plaintiff’s Motion

should be granted.

ARGUMENT

As this Court may recall, this case involves Plaintiff’s attack on the City’s illegal spot zoning

of certain property in the City of Philadelphia in direct response to an unfavorable decision by the

Honorable Ann Coyle overturning the grant of variances issued to the owner/developer of the property.

Despite the fact that the decision is on appeal to the Commonwealth Court, Councilperson Jamie

Gauthier decided to act as her own appellate Court and spot zoned the property so that the project could

go forward without the rejected variances. Plaintiff seeks to invalidate the spot zoning of the property

and has engaged in discovery aimed at proving the impropriety of that zoning.

When Defendants refused to produce Councilperson Gauthier and her aide, Andrew Goodman,

for depositions, Plaintiff filed a Motion to compel those depositions. In response to the Motion to

compel, Defendants filed an Answer to the Motion and also filed a Motion for protective Order seeking

2 Case ID: 231000053

Control No.: 24102704
to preclude those depositions. In their response, the Defendants have made two arguments: (1) that

legislative privilege precludes Plaintiff from taking the proposed depositions and (2) the depositions

are unnecessary because Plaintiff’s claim turns on a legal question. In support of their first argument,

Defendants merely recycle an entire section from their unsuccessful opposition to Plaintiff’s Motion to

compel the production of documents, which opposition was based on legislative privilege. The

argument did not work in connection with Plaintiff’s Motion to compel the production of documents,

and it does not work here. Plaintiff has already argued—and the Court has already ruled—that

legislative privilege does not apply to the facts of this case.

As for the second argument, it is not only legally incorrect, but it also simply comes too late:

Defendants have already participated in written discovery and document production related to the

impropriety of the spot zoning, and Plaintiff should be permitted to develop that discovery through

deposition practice. The Court should therefore grant Plaintiff’s Motion to compel the depositions.

I. LEGISLATIVE PRIVILEGE DOES NOT APPLY HERE.

A. The Court Has Already Ruled That Legislative Privilege Does Not Shield
Defendants from Discovery, and Defendants are Bound by that Decision.

As this Court is aware, Defendants previously refused to produce documents requested by

Plaintiff based on the improper assertion of legislative privilege and Plaintiff sought to have that

objection overruled. Oral argument was held on the propriety of that assertion and by Order dated

September 13, 2024 (the “Order”), the Court agreed with Plaintiff that legislative privilege is not a

proper basis to foreclose Plaintiff’s request for documents evidencing communications regarding the

spot zoning of the subject property. The Order made it clear that Defendants were required to “produce

all of the documents requested by Plaintiff which the City has withheld on the basis of legislative

privilege . . . .” In other words, the Order made clear that legislative privilege was not a legitimate

basis upon which Defendants could withhold documents. Now, acting as though the Order did not

3 Case ID: 231000053

Control No.: 24102704
exist and as though the Court did not already determine that the assertion of administrative privilege

was not proper, Defendants attempt to take a second bite of the apple, literally making the same

arguments which were unsuccessful in connection with the production of documents. Defendants

cannot establish any justification why the Court would rule that legislative privilege does not apply to

the production of documents, but would apply to a different discovery method, i.e. depositions, which

depositions are directed to the same subject matter—namely, the non-legislative activities of

Councilperson Gauthier and her office staff regarding the zoning ordinances at issue. Indeed,

Defendants’ memorandum of law does not address the Order whatsoever. And because the Order itself

supports the position raised in Plaintiff’s Motion to compel, the Court should grant the Motion.

B. Even If the Order Was Not Dispositive, Plaintiff Has Already Refuted Defendants’
Legislative Privilege Arguments.

The Court is already familiar with Defendants’ legal argument regarding the purported

application of legislative privilege. An almost word-for-word argument appears in Defendants’

opposition to Plaintiff’s motion to compel the production of documents, filed on July 15, 2024, under

the same heading (“Legislative Privilege applies to Legitimate Legislative Activities”). Rather than

repeat her responses to that argument, Plaintiff attaches hereto her Brief in Support of Her Motion to

Strike Objections and to Compel Production of All Requested Document [sic], filed on July 30, 2024,

as Exhibit A. That Brief made clear that under the facts of this case, no assertion of legislative privilege

was proper.

In addition to the authority cited in the earlier filed Brief, Plaintiff will address herein the only

new legal assertion raised in Defendants’ memorandum of law. Defendants cite the Commonwealth

Court’s decision in William Penn School District v. Department of Education, 243 A.3d 252 (Pa.

Commw. Ct. 2020) as an example of a protective order issuing to prevent depositions based on

legislative privilege. But the Commonwealth Court did not apply legislative privilege in that case. Id.,

4 Case ID: 231000053

Control No.: 24102704
243 A.3d at 267 (“[T]his Court . . . does not need to reach the issue of whether the Speech and Debate

Clause can be invoked . . . because the Court is not convinced the topics that Petitioners identified fall

within the ambit of the Speech and Debate Clause.”); id. at 270 (concluding “that the general topics

identified by Petitioners are not protected by the Speech and Debate Clause”). Rather, the

Commonwealth Court engaged in a nuanced analysis that distinguished between the two proposed

deponents: (1) Stanley E. Saylor, Chairman of the Pennsylvania House of Representatives

Appropriations Committee (“Chairman Saylor”); and (2) Bryan Cutler, Speaker of the Pennsylvania

House of Representatives (“Speaker Cutler”).

As for Chairman Saylor, the Commonwealth Court applied the “high ranking government

official exception” to bar “questions about general, publicly known information related to the school

funding process, relevant budgets and appropriations, or public legislation or acts taken by the General

Assembly.” Id. at 271. In lieu of a deposition, the Commonwealth Court allowed the petitioners to

serve written discovery regarding public statements that Chairman Saylor had made, so long as those

statements were not made during official House proceedings. Id. at 273. As for Speaker Cutler, who

was a party to the action, the Commonwealth Court allowed the petitioners to serve him with requests

for admission, a less-burdensome means of achieving the intended purpose of their proposed deposition

(to collect party admissions). Id. at 271. The Commonwealth Court also allowed the petitioners to

serve Speaker Cutler with written discovery related to public statements that he had made. Id. at 272.

Defendants have not raised any of these arguments in their response to Plaintiff’s Motion to compel.

In addition, William Penn is distinguishable based on its procedural posture. There, written

discovery had not yet occurred, so the Commonwealth Court left the door open to allow the petitioners

to renew their request for depositions after receiving discovery responses from Chairman Saylor and

Speaker Cutler. See id. at 271 n.14 (“Following receipt of written responses, should Petitioners

5 Case ID: 231000053

Control No.: 24102704
determine the need for additional discovery, Petitioners may file an application to that effect, at which

time the Court will revisit its holding.”). Here, Plaintiff seeks to depose Councilperson Gauthier and

Mr. Goodman to follow up on documents that have already been received from Defendants in response

to Plaintiff’s written discovery requests. Those documents strongly suggest that Councilperson

Gauthier and Mr. Goodman engaged in political (rather than legislative) communications with the

owner of the subject property and other third parties about circumventing Judge Coyle’s decision

striking the variances needed to develop the Property, as opposed to communications regarding the

type of permissible activity that normally accompanies a change of zoning of an area of the City.

Finally, it bears repeating that Defendants have not cited any Pennsylvania cases explaining

when legislative privilege protects documents versus depositions. Nor could Plaintiff find any. The

likely reason for this is that to the extent legislative privilege even applies to discovery in

Pennsylvania—a proposition that the Pennsylvania Supreme Court has not adopted 1—its applicability

hinges on the subject matter to which the discovery is directed. Specifically, courts distinguish

between discovery directed to legislative activities (which are protected) and political activities (which

are not). See William Penn, 243 A.3d at 267 (quoting Dickey v. CBS, Inc., 387 F.Supp. 1332, 1334

(E.D. Pa. 1975)) (“[S]tatements made outside of the legislative forum to constituents ‘is a political, not

a legislative activity, it is not entitled to the protection of the Speech [and] Debate Clause.’”).

Here, Defendants have not met their burden of showing that the complained-about conduct

applies to the political activities about which Plaintiff seeks to question Councilperson Gauthier and

Mr. Goodman. See Couloumbis v. Senate of Pa., 300 A.3d 1093, 1103 (Pa. Commw. Ct. 2023)

1
League of Women Voters v. Commonwealth, 178 A.3d 737, 767 n.38 (Pa.2018) (noting that the
Pennsylvania Supreme Court “has never interpreted our Speech and Debate Clause as providing
anything more than immunity from suit, in certain circumstances, for individual members of the
General Assembly”).

6 Case ID: 231000053

Control No.: 24102704
(quoting League of Women Voters of Pennsylvania v. Commonwealth, 177 A.3d 1000, 1005 (Pa.

Commw. Ct. 2017)) (“To assert the speech and debate privilege, the agency asserting the privilege must

establish that the information concerns activity ‘within the sphere of legitimate legislative activity.’”).

And absent an applicable privilege, Plaintiff is entitled to “obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter involved in the pending action . . . .” Pa.R.Civ.P.

4003.1. “[A]ny doubts” as to whether discovery is relevant “are to be resolved in favor of relevancy.”

William Penn, 243 A.3d at 263 (internal quotation marks omitted) (quoting Ario v. Deloitte &

Touche, LLP, 934 A.2d 1290, 1293 (Pa. Cmwlth. 2007)). For this additional reason, the Court should

grant Plaintiff’s Motion to compel.

II. DEFENDANTS CANNOT SUDDENLY OBJECT TO PLAINTIFF’S DISCOVERY.

Defendants’ other argument should be deemed waived at this point. Defendants contend that

the proposed depositions would exceed the scope of discovery because Plaintiff’s claim turns on a legal

question and therefore does not require fact gathering from Councilperson Gauthier and Mr. Goodman.

Separate and apart from the fact that the Defendants are incorrect in that statement and that fact

gathering is necessary to support the spot zoning claim, Defendants omit that both Councilperson

Gauthier and Mr. Goodman were document custodians and directly involved in the rezoning of the

subject property. And Defendants further omit that they did not raise this scope-of-discovery objection

during written discovery. Defendants cannot, on the one hand, claim that “[t]he deposition of

Councilperson Gauthier and a member of her staff would not lead to any relevant evidence weighing

on whether the challenged ordinance constitutes illegal spot zoning” and, on the other hand, have

previously turned over Councilperson Gauthier’s and Mr. Goodman’s documents without any

objection that Plaintiff’s requests were unrelated to any claims or defenses. In each case, Plaintiff is

concerned with the same subject matter. Moreover, now that Councilperson Gauthier and Mr.

7 Case ID: 231000053

Control No.: 24102704
Goodman have turned over documents, Plaintiff should be allowed to question those two custodians

about the contents of their documents and the communications which occurred relating to those

document. Since, as stated above, any doubts as to whether discovery is relevant are to be resolved in

favor of relevancy, this Court should conclude that the information which Plaintiff seeks to obtain

through depositions is relevant to the claims asserted herein. As a result, the Court should grant

Plaintiff’s Motion to Compel.

CONCLUSION

For the reasons set out above, the Court should grant Plaintiff’s Motion and allow the

depositions of Councilmember Gauthier and Mr. Goodman to proceed.

Respectfully submitted,

_____________________________________
Edward J. Hayes, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103
(215) 299-2092

Attorneys for Plaintiff,

Lisa Johanningsmeier
Date: November 7, 2024

8 Case ID: 231000053

Control No.: 24102704
 CERTIFICATE OF SERVICE

I hereby certify that on this date, a true and correct copy of the foregoing Plaintiff’s Reply

Brief has been served upon the following individuals via e-mail:

Leonard F. Reuter, Esquire

Mary Costello, Esquire
City of Philadelphia Law Department
1515 Arch Street, 15th Floor
Philadelphia PA 19102

Peter Kilson, Esquire

130 N. 18th Stret
Philadelphia PA 19103

Date: November 7, 2024 _______________________________________

EDWARD J. HAYES

Case ID: 231000053

Control No.: 24102704
Exhibit “A”

Case ID: 231000053

Control No.: 24102704
 Filed and Attested by the
Office of Judicial Records
30 JUL 2024 11:24 am
M. TIERNEY

FOX ROTHSCHILD LLP

BY: EDWARD J. HAYES, ESQUIRE
IDENTIFICATION NO. 30243 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, TWENTIETH FLOOR
PHILADELPHIA, PA 19103-3222
(215) 299-2000
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
: OF PHILADELPHIA COUNTY
:
v. : OCTOBER TERM, 2023
:
CITY OF PHILADELPHIA, et al. : No. 00053
__________________________________________

PLAINTIFF’S BRIEF IN SUPPORT OF HER MOTION TO STRIKE

OBJECTIONS AND TO COMPEL PRODUCTION OF ALL REQUESTED DOCUMENT

Plaintiff, Melissa V. Johanningsmeier (“Plaintiff”), by her attorneys, Fox Rothschild LLP,

hereby files this Brief in Support of her Motion to Strike Objections and to Compel Production of All

Requested Document (“Motion”) by the Defendants City of Philadelphia and the City Council of

Philadelphia (together, “Defendants”). 1 The Motion sought an Order from the Court compelling

Defendants to produce (1) all of the documents which have been withheld on the basis of legislative

privilege and (2) all documents requested by Plaintiff which still have not yet been produced.

1
Citations to “Opp. _” refer to Defendants’ opposition.

Case ID: 231000053

Control No.: 24102704
24070181
 INTRODUCTION

This case involves a constitutional challenge to Councilmember Jamie Gauthier’s rezoning

ordinances, the purpose of which were to spot-zone real property located at the 5000 block of

Warrington Avenue in Philadelphia to circumvent a ruling by the Honorable Ann Coyle which revoked

certain variances granted by the Department of Licenses and Inspection to the developer of the

property. Within a short period of time after Judge Coyle’s decision, the zoning of the property was

changed by Councilmember Gauthier in such a way as to permit the development of the property

without the variances struck down by Judge Coyle. As further evidence that the property was spot-

zoned, the ordinances which were enacted include specific provisions which cause them to expire after

a certain period of time (the time needed to develop the property), after which the property would revert

back to the prior zoning classification. A more clear case of spot zoning could not exist.

Discovery to date reveals that Councilmember Gauthier’s office was in contact with developers,

independent contractors, constituents, and other third parties regarding the subject property. Yet

Defendants have produced virtually no communications between Councilmember Gauthier and these

third parties. They have also refused to produce several documents based on an improper assertion of

legislative privilege, which does not apply to communications with third parties, and which the

Pennsylvania Supreme Court has never held may block discovery requests in cases which do not seek

to impose liability on a legislator. Defendants contend in their response to Plaintiff’s Motion to Compel

that they have produced thousands of documents, but while they may have produced thousands of pages

of documents, many of those documents are simply duplicates of other documents included in the

production. For the reasons set forth below, it is respectfully suggested that the Court should grant

Plaintiff’s Motion and permit Plaintiff to obtain evidence of the actions taken by the Defendants to spot

zone the property in direct response to Judge Coyle’s decision.

2
Case ID: 231000053
Control No.: 24102704
24070181
 ARGUMENT

I. The Legislative Privilege Does Not Protect Communications with Third Parties.

Defendants have sought to expand their claim of legislative privilege to preclude the production

of any documents relating to communications Councilmember Gauthier or her staff had with third

parties outside of the Councilmember’s office. These communications are critical to Plaintiff’s case,

as they will show the motivation for the spot zoning of the property, and there is no basis to shield these

communications from discovery. 2 “[S]tatements made outside of the legislative forum to constituents

‘is a political, not a legislative activity, it is not entitled to the protection of the Speech [and] Debate

Clause.’” William Penn, 243 A.3d at 267 (quoting Dickey v. CBS, Inc., 387 F.Supp. 1332, 1334

(E.D. Pa. 1975)). Indeed, as noted by the Commonwealth Court in William Penn (id. at 266), the

United States Supreme Court has found a whole host of activities as not “legislative” and therefore not

protected by the legislative privilege:

These include a wide range of legitimate “errands” performed for constituents, the
making of appointments with Government agencies, assistance in securing Government
contracts, preparing so called “news letters” to constituents, news releases, and speeches
delivered outside the Congress. The range of these related activities has grown over the
years. They are performed in part because they have come to be expected by
constituents, and because they are a means of developing continuing support for future
elections. Although these are entirely legitimate activities, they are political in nature
rather than legislative, in the sense that term has been used by the Court in prior cases.
But it has never been seriously contended that these political matters, however
appropriate, have the protection afforded by the Speech or Debate Clause.

U.S. v. Brewster, 408 U.S. 501, 512 (1972).

Under this authority, any communications that Councilmember Gauthier had with developers,

independent contractors, constituents, or other third parties regarding the construction project, the

2
The legislative privilege bars discovery into a legislator’s motivation or purpose only with respect to
legislative acts, not political acts, such as those at issue here. See William Penn School District v.
Department of Education, 243 A.3d 252, 264 (Pa. Cmwlth. 2020).

3
Case ID: 231000053
Control No.: 24102704
24070181
decision by Judge Coyle to strike down the variances granted to the developer, what action the

Councilmember could take to move the project forward in light of Judge Coyle’s decision, and the

decision to rezone the property in response to Judge Coyle’s decision—whether directly or through her

staff—constitute unprotected political activities and are not protected from disclosure. The legislative

privilege simply does not apply, and Defendants must be required to produce all such communications.

II. In This Commonwealth, the Legislative Privilege Does Not Bar Discovery.

The Pennsylvania Supreme Court “has never interpreted our Speech and Debate Clause as

providing anything more than immunity from suit, in certain circumstances, for individual members of

the General Assembly.” League of Women Voters v. Commonwealth, 178 A.3d 737, 767 n.38 (Pa.

2018). True, the Commonwealth Court in League of Women Voters invoked the Speech and Debate

Clause to quash legislative subpoenas and partially strike third-party subpoenas directed to the General

Assembly’s redrawing of congressional district lines. Id., 177 A.3d 1000, 1005–08 (Pa. Cmwlth.

2017). However, the Supreme Court “caution[ed] against reliance on the Commonwealth Court’s

ruling.” League of Women Voters v. Commonwealth, 178 A.3d at 767 n.38. This line, which

Defendants label “dicta” (Opp. at 8), has been affirmed in no uncertain terms by the Commonwealth

Court, which explained that it

understands and shares the Pennsylvania Supreme Court’s concerns about allowing a
legislator to invoke the Speech and Debate Clause to prevent discovery of information
that goes to the heart of a challenge to the constitutionality of a statute, particularly if a
petitioner is prevented from making its case against the constitutionality of a law based
upon a legislator's invocation of the privilege.

William Penn School District v. Department of Education, 243 A.3d at 267. 3

3
This language from William Penn appears directly after the language quoted by Defendants on Page
8 of their Opposition.

4
Case ID: 231000053
Control No.: 24102704
24070181
 In this case, Plaintiff does not seek to impose liability on the Defendants or Councilmember

Gauthier for legislative action taken by Councilmember Gauthier. Instead, Plaintiff seeks a declaration

that the subject ordinances constituted an unconstitutional spot zoning of the subject property in direct

response to Judge Coyle’s decision striking down the variances granted to the developer. The whole

rationale behind legislative privilege is inapplicable when a party does not seek to impose liability on

a legislator for his/her actions. In this case, Plaintiff seeks discovery of information needed to challenge

the constitutionality of rezoning ordinances introduced by Councilmember Gauthier, which were in

direct response to Judge Coyle’s decision to strike down the variances improperly issued to the

developer. In sum, the Pennsylvania Supreme Court and the Commonwealth Court are of one mind.

Under Pennsylvania law, the legislative privilege cannot block the discovery requests at issue here.

III. Defendants Lack Standing to Assert the Legislative Privilege.

Even if the legislative privilege applied here—and it does not—Defendants have not established

standing to assert it. Cf. Pa. Dept. of Educ. v. Bagwell, 131 A.3d 638, 648 (Pa. Cmwlth. 2015) (citation

omitted) (noting, in the context of the attorney-client and work-product privileges, that “standing inures

to the person or entity holding the privilege to preserve it”). Defendants’ own position is that the

legislative privilege is “presently held by Councilmember Gauthier,” not by Defendants, yet it is the

Defendants and not Councilmember Gauthier who have asserted the privilege. Opp. at 9. But if the

privilege is personal to Councilmember Gauthier (a member of City Council), then it cannot be asserted

by Defendants (a municipality and a legislative body).

IV. Defendants Can Waive the Legislative Privilege.

Finally, even if the legislative privilege applies (it does not), and even if Defendants can assert

it (they cannot), Defendants have provided no reason why they are unable to waive it. Contrary to

Defendants’ assertion, the Commonwealth Court in William Penn did not “recognize[] . . . that only

the legislator or the legislator’s staff were able to waive legislative privilege.” Opp. at 9. Rather, the

5
Case ID: 231000053
Control No.: 24102704
24070181
Commonwealth Court held that the legislative privilege did not apply and that, therefore, “any assertion

of waiver is premature.” William Penn, 243 A.3d at 270. So too here. 4

As the legislative privilege does not apply to the communications which Plaintiff seeks to

discover in support of her claim that the ordinances in this matter were unconstitutional, Plaintiff

respectfully requests that this Court compel Defendants to produce (1) all of the documents requested

by Plaintiff which Defendants have withheld on the basis of legislative privilege and (2) all documents

requested by Plaintiff which have not yet been produced. The assertion of the legislative privilege by

the Defendants is not proper and is not supported by applicable law.

Respectfully submitted,

_____________________________________
Edward J. Hayes, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103
(215) 299-2092

Attorneys for Plaintiff,

Lisa Johanningsmeier
Date: July 30, 2024

4
To the extent that Defendants are arguing that they are unwilling (rather than unable) to waive
privilege, that argument presupposes that the privilege applies, which it does not.

6
Case ID: 231000053
Control No.: 24102704
24070181
 CERTIFICATE OF SERVICE

I hereby certify that on this date, a true and correct copy of the foregoing Plaintiff’s Reply

Brief has been served upon the following individuals via e-mail:

Leonard F. Reuter, Esquire

Mary Costello, Esquire
City of Philadelphia Law Department
1515 Arch Street, 15th Floor
Philadelphia PA 19102

Peter Kilson, Esquire

130 N. 18th Stret
Philadelphia PA 19103

Date: July 30, 2024 _______________________________________

EDWARD J. HAYES

Case ID: 231000053

Control No.: 24102704
24070181
 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
Filed and Attested by the
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
Office of Judicial Records
CIVIL TRIAL DIVISION 21 OCT 2024 03:50 pm
N. SWEENEY

JOHANNINGSMEIER COURT OF COMMON PLEAS

CIVIL TRIAL DIVISION
V.

CITY OF PHILADELPHIA, ET AL. NO. 231000053

ORDER

AND NOW, this day of , 2024, upon

consideration of Defendants’ Motion for Protection Order, and the response thereto, if any, it is

HEREBY ORDERED that the Motion is GRANTED.

The following is FURTHER ORDERED:

1) The City of Philadelphia is excused from any duty or obligation to produce

any witnesses for deposition;

2) Plaintiffs are precluded from serving any notices of deposition directed at

the City of Philadelphia absent leave to do so from the Court.

BY THE COURT:

, J.

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
CITY OF PHILADELPHIA LAW DEPARTMENT
LEONARD F. REUTER
SENIOR ATTORNEY
IDENTIFICATION NO. 90422
1515 ARCH STREET, 14TH FLOOR
PHILADELPHIA, PA 19102
[email protected]

JOHANNINGSMEIER COURT OF COMMON PLEAS

CIVIL TRIAL DIVISION
V.

CITY OF PHILADELPHIA, ET AL. NO. 231000053

DEFENDANTS’ MOTION FOR PROTECTION ORDER

Defendants move for a Protection Order precluding depositions by Plaintiff and relies on

and incorporates by reference the accompanying memorandum of law.

Respectfully,

Date: October 21, 2024 /s/

LEONARD F. REUTER
Senior Attorney
Pa. Attorney ID No. 90422
City of Philadelphia Law Department
1515 Arch Street, 14th Floor
Philadelphia, PA 19102
[email protected]

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
CITY OF PHILADELPHIA LAW DEPARTMENT
LEONARD F. REUTER
SENIOR ATTORNEY
IDENTIFICATION NO. 90422
1515 ARCH STREET, 14TH FLOOR
PHILADELPHIA, PA 19102
[email protected]

JOHANNINGSMEIER COURT OF COMMON PLEAS

CIVIL TRIAL DIVISION
V.

CITY OF PHILADELPHIA, ET AL. NO. 231000053

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT

OF ITS MOTION FOR PROTECTION ORDER

I. MATTER BEFORE THE COURT

The Court should grant Plaintiff’s motion for protection order as Defendants will show

that the depositions of Councilmember Gauthier and a member of her staff are subject to the

legislative privilege, nor would their respective depositions lead to the discovery of any evidence

relevant to this matter. Plaintiff has failed to set forth any facts or city any case law showing that

the deposition of a legislator should be compelled. Denial is warranted based on the caselaw

protecting legislators from depositions and the important governmental interest in avoiding

disruption of legitimate legislative activity. Plaintiff’s requested relief is a question of law -

whether the ordinances at issue constitute spot zoning - and the Councilmember’s deposition

would not further develop an answer to that question while inappropriately delaying this

litigation and distracting the Councilmember from her legislative duties.

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
II. BACKGROUND

On October 12, 2024, Plaintiff filed a Motion to Compel Depositions of Councilmember

Jamie Gauthier and a member of her staff, Andrew Goodman. See, Plaintiff’s Motion to Compel

Depositions (Control No. 231000053). The Motion has been certified as contested, as the City

notified the Plaintiff that it would oppose producing the Councilmember or any member of her

staff as such deposition would not lead to the discovery of any evidence relevant to this matter and

that said depositions are barred by the doctrine of legislative immunity and the privileges arising

therefrom.

The City is filing this Motion for a Protection Order to excuse the City from any obligation

to respond to further requests to produce witnesses for deposition and to preclude the Plaintiff from

making such requests in the future. The City incorporates all averments and arguments set forth in

its Response to Plaintiff’s Motion to Compel (which is being filed concurrent to this motion) and

the failure to raise any arguments in said response shall not in any way be construed to imply any

waiver for purposes of the present motion.

This action arises from two zoning ordinances approved by City Council on June 22, 2023

for the property located at 5000 Warrington Avenue (“Subject Property”) in the City and County

of Philadelphia. The ordinances in question remapped the Subject Property from its prior zoning

classification and created a zoning overlay imposing additional requirements 1. Plaintiff filed a

complaint seeking declaratory judgment, asking this Court to determine the validity of the

ordinances rezoning the Subject Property. Plaintiff’s requested relief asked that the challenged

1
Bill No. 230447 remapped certain properties located in an area bounded by 50th Street, Springfield Avenue,
SEPTA Railroad Right-of-Way and Warrington Avenue from I-2 Industrial to RMX-3 and I-2. Bill No. 230443,
creating the Warrington Affordable Housing Overlay District.

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
ordinances be struck down as constituting illegal spot zoning: a claim that solely largely involves

a question of law; at best, the only facts in dispute would relate to the land in question, not any

motivations or state of mind of the legislature or the drafters of the bills.

III. ARGUMENT

Because Plaintiff’s request seeks depositions from Councilmember Gauthier and her staff

member for the sole purpose of proving legislative motive and would infringe upon City Council’s

legislative process, the requests are barred by legislative immunity and the privileges arising

therefrom. Facially, Plaintiff challenges ordinances passed by City Council based on alleged

illegal spot zoning: largely, if not wholly, a question of law. No allegations of insidious motive

by the Councilmember specifically targeting Plaintiff’s protected rights are found in Plaintiff’s

complaint, to the extent those allegations may support a deposition of the Councilmember.

Plaintiff’s failure to cite any case law supporting the deposition of a legislator for legitimate

legislative activity speaks volumes. Plaintiff’s request for deposition of the Councilmember, if

compelled in contravention of the legislative privilege, would expose legislators for incessant

discovery on all matters of legislation. Such depositions, moreover, would not lead to the discovery

of any evidence relevant to the matter.

A. Relevancy is Wholly Dependent Upon the “Defined Legal Issues” in the Case.

While the Pennsylvania Rules of Civil Procedure “provide a broad scope for a party

seeking discovery, the focal point at all times is relevancy.” Off. of the Dist. Att'y of Phila. v.

Bagwell, 155 A.3d 1119, 1138 (Pa. Commw. Ct. 2017). “Discovery may not be used to search for

information which is not reasonably calculated to lead to the discovery of admissible evidence.”

Id. (emphasis added). “In each instance a request for discovery is evaluated within the context of

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
a given case presenting defined legal issues and, where there is a dispute, the court is called upon

to assess the legitimacy, necessity, and burden to ultimately determine whether the specific request

is relevant to the case at bar.” Id. (emphasis added).

Here, the discovery requested by Plaintiffs involves an inquiry into the language,

interpretation, enactment and enforcement of the Ordinance; i.e., the act of legislation on which

the case is centered. By itself, this does not render the discovery requested as relevant and proper.

As stated above, the discovery requested must be analyzed by this Court “within the context of

[the] defined legal issues” in the case. As discussed below, analysis of the specific cause of action

brought by Plaintiff, i.e., “the defined legal issues”, demonstrates that the discovery sought by

Plaintiff is unnecessary and improper. The deposition of Councilmember Gauthier and a member

of her staff would not lead to any relevant evidence weighing on whether the challenged ordinance

constitutes illegal spot zoning: a question of law, not of motive.

B. Legislative Privilege applies to Legitimate Legislative Activities

Legislative immunity and its companion privilege, has two foundations. The Supreme

Court has emphasized that as to legislative immunity, “such pretrial matters as discovery are to be

avoided if possible, as ‘[i]nquiries of this kind can be peculiarly disruptive of effective

government.’” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 817 (1982)). The legislative privilege, derived from the Speech and Debate Clauses of

both the United States and Pennsylvania Constitution, also recognizes that “it [is] not consonant

with our scheme of government for a court to inquire into the motive of legislators.” Tenney v.

Brandhove, 341 U.S. 367, 377 (1951) (citation omitted).

In addition to immunizing officials exercising a legislative function from liability itself,

legislative immunity has two applications specific to discovery: first, it bars seeking discovery

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
from those who acted as part of the legislative process, because legislative immunity includes

immunity from “‘from the burden of defending’” against suit. Fowler-Nash v. Democratic

Caucus of Pa. House of Representatives, 469 F.3d 328, 331 (3d Cir. 2006) (quoting Dombrowski

v. Eastland, 387 U.S. 82, 85 (1967)). Second, it bars discovery that has the aim of “‘inquir[ing]

into legislative acts or the motivation for actual performance of legislative acts.’” Id. (quoting

United States v. Brewster, 408 U.S. 501, 508 (1972)); see also Wright & Miller, 26A Fed. Prac.

& Proc. Evid. § 5675 n.11 Legislative Privilege (1st ed.) (“If the legislator cannot be punished

for some legislative act, then evidence relevant to prove that act is inadmissible even though it is

not itself a legislative act.”). That is, legislative immunity procedurally shields officials from the

burden of responding to discovery relating to claims arising from legislative activity and

substantively bars discovery into the motivation for legislative acts, even if the material or

testimony sought occurred outside the legislative chamber. As the Supreme Court has explained,

there is a sound basis for this. “The privilege of absolute immunity ‘would be of little value if

[legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a

conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s

speculation as to motives.’” Bogan v. Scott-Harris, 523 U.S. 44, 54–55 (1998) (quoting Tenney,

341 U.S. at 377).

The Supreme Court of Pennsylvania has found “no basis for distinguishing the scope of

the Pennsylvania Speech and Debate Clause applicable to members of the General Assembly from

that of the federal clause applicable to members of Congress.” Consumers Education and

Protective Ass’n v. Nolan, 470 Pa 372, 383 (Pa. 1977). The Court also noted that the Supreme

Court has interpreted the federal Speech and Debate Clause broadly “in order to protect legislators

from judicial interference with their legitimate legislative activities.” Id. at 382 (citing Eastland

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
v. United States Servicemen’s Fund, 421 U.S. 491 (1975)). The Commonwealth Court has

previously noted the protections of the Pennsylvania Speech and Debate Clause extend to “fact-

finding, information gathering, and investigative activities,” as these are “essential prerequisites

to the drafting of bills and the enlightened debate over proposed legislation.” 2 League of Women

Voters of Pennsylvania v. Commonwealth, 177 A.3d 1000, 1003 (Pa. Cmwlth. 2017) (quoting

Government of Virgin Islands v. Lee, 775 F.2d 514, 521 (3d Cir. 1985)). Finally, the Supreme

Court has held for the “for the purpose of construing the [legislative] privilege a Member and his

aide are to be ‘treated as one.’” Gravel v. United States, 408 U.S. 606, 616 (1972) (quoting United

States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972)).

As noted by the Commonwealth Court, “the bulk of the case law involving the Speech and

Debate Clause arises in the context of immunity from liability.” William Penn School District v.

Dept. of Education, 243 A. 3d 252, 265 (Pa. Cmwlth. 2020) (citations omitted). However, the

protection of legislators from deposition is not a novel issue in Pennsylvania. The Commonwealth

Court concluded in William Penn School District that members of the Pennsylvania Assembly

showed good cause, based on the legislative privilege, that they were entitled to a protective order

preventing their deposition. Id. The Commonwealth Court, after a thorough review of the

Pennsylvania Speech and Debate Clause, concluded that the plain language of the Clause, as well

as precedent, supported a finding that the depositions at issue in that case would contravene the

legislative privilege. Id. at 272. The Commonwealth Court utilized language from the

Pennsylvania Supreme Court which stated that “[t]he Speech and Debate Clause prohibits inquiry

into those things generally said or done in the House or Senate in the performance of official duties

2
cf. Fowler-Nash v. Democratic Caucus of Pa. House of Representatives, 469 F. 3d 328 (3d Cir. 2006) (finding a
Pennsylvania legislator was not entitled to legislative immunity in a claim brought by a fired legislative assistance as
the termination was carried out as a purely administrative function.)

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
and into the motivation for those acts.” Pa. School Boards Ass’n v. Commonwealth Ass’n of School

Administrators, 569 Pa. 436 (Pa. 2002).

The sole case considering the legislative privilege in the context of documentation of a

non-party is League of Women Voters of Pennsylvania v. Commonwealth, 177 A.3d 1000 (Pa.

Cmwlth. 2017). In League of Women Voters, the Commonwealth Court stated it “lacks the

authority to compel testimony or the production of documents relative to the intentions,

motivations, and activities of state legislators and their staff with respect to the Act 131 of 2011.”

Id. at 1005. The Court held that the third-party subpoenas at issue should be interpreted as

“excluding those documents that reflect the intentions, motivations, and activities of state

legislators and their staff with respect to the consideration and passage of Act 131 of 2011.” Id. at

1008. While presenting slightly different factual backgrounds, both the Allegheny County Court

of Common Pleas 3 and United States District Court for the Eastern District of Pennsylvania 4 have

similarly invoked a legislative privilege to deny discovery that infringes on the legislative process.

The United States Courts of Appeals for both the Fifth and Eighth Circuit have considered

the exact issue presented here, with both finding a legislative privilege exists for state legislators.

The Eighth Circuit considered a petition for writ of mandamus filed by members of the North

Dakota Legislative Assembly; the legislators challenged an order from the district court directing

them to comply with subpoenas for documents or testimony in a civil case alleging violations of

the Voting Rights Act – the legislators were not named parties in the case. In re North Dakota

3
See Melvin v. Doe, 48 Pa. D. & C. 4th 566 (Ct. Comm. Pl. 2000) (After conducting its own review of the case law,
the Court of Common Pleas found that the speech and debate clause must be interpreted broadly to protect
legislators from judicial interference with their legitimate legislative activity. Relying on a separation of powers
analysis, the Court held that a non-party state legislator was not required to submit to a deposition in a defamation
case. The subpoena requested that the legislator submit to questioning surrounding the nominee for a judicial
appointment.)
4
See I.B.I.D. Assocs. Ltd. Partnership v. Gauthier, 2022 WL 1524973 (E.D. Pa. 2022) (Finding the courts do not
subject the legislative process to discovery as the threat might chill the legislative process.)

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
Legislative Assembly, 70 F.4th 460 (8th Cir. 2023). The Court noted that “[l]egislative privilege,

like legislative immunity, reinforces representative democracy by fostering an environment where

public servants can undertake their duties without the threat of personal liability or the distraction

of incessant litigation.” Id. at 463. The plaintiffs in the underlying lawsuit sought documents and

testimony from legislators and aides concerning acts undertaken with respect to redistricting

legislation. Id. The Court found the “conditions for legislative privilege are plainly satisfied here.”

Id. The Fifth Circuit similarly held in favor of the legislative privilege, specifically stating that an

exception to the privilege for “communications ‘outside the legislature’ would swallow the rule

almost whole” because meeting with interest groups “is a part and parcel of the modern legislative

procedures.” La Union Del Pueblo Entero v. Abbot, 68 F.4th 228, 236 (5th Cir. 2023). The Court

also noted that “it [legislative privilege] also serves the “public good” by allowing lawmakers to

focus on their jobs rather than on motions practice in lawsuits.” Id. at 237.

Plaintiff’s request to compel the depositions of Councilmember Jamie Gauthier and a

member of the Councilmember’s staff, Andrew Goodman, stands in stark opposition to the

constitutional protection found in the Pennsylvania and Federal Speech and Debate Clauses. These

depositions would unequivocally invade upon the intentions and motivation of the Councilmember

when performing legitimate legislative activity. Plaintiff’s requested depositions threaten to

establish a dangerous precedent, wherein plaintiffs can now waste the time of legislators by going

on fishing expeditions for motives that have no bearing on the ultimate question posed in a

complaint, where no malice is alleged, and where, as here, plaintiffs’ have no tangible harm from

the legislation at issue.

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
IV. CONCLUSION

For all the reasons set forth above, Defendants respectfully request that this Court grant the

City’s Motion for a Protective Order and bar the Plaintiffs from seeking the depositions of

Councilmember Jamie Gauthier and any members of her staff.

Respectfully submitted,

Date: October 21, 2024 /s/

LEONARD F. REUTER
Senior Attorney
Pa. Attorney ID No. 90422
City of Philadelphia Law Department
1515 Arch Street, 14th Floor
Philadelphia, PA 19102
[email protected]

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
CITY OF PHILADELPHIA LAW DEPARTMENT
LEONARD F. REUTER
SENIOR ATTORNEY
IDENTIFICATION NO. 90422
1515 ARCH STREET, 14TH FLOOR
PHILADELPHIA, PA 19102
[email protected]
____________________________________
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
Plaintiff, : OF PHILADELPHIA COUNTY
:
v. :
: Case ID No. 231000053
:
CITY OF PHILADELPHIA, et. al. :
Defendant. :
____________________________________:

CERTIFICATE OF SERVICE

I, Leonard Reuter, Esquire, Attorney for City in the above-captioned matter, certify that a true
and correct copy of the foregoing Motion for a Protective Order was served upon all counsel of
record via the Court’s e-filing system.

Date: October 21, 2024 /s/

LEONARD F. REUTER
Senior Attorney
Pa. Attorney ID No. 90422
City of Philadelphia Law Department
1515 Arch Street, 15th Floor
Philadelphia, PA 19102
[email protected]

Certification Due Date: 10/28/2024

Response Date: 11/04/2024
Case ID: 231000053
Control No.: 24104516
 Filed and Attested by the
Office of Judicial Records
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
04 NOV 2024 09:31 am
: OF PHILADELPHIA COUNTY
M. TIERNEY
:
v. : OCTOBER TERM, 2023
:
CITY OF PHILADELPHIA, et al. : No. 00053
__________________________________________:

ORDER

AND NOW, this day of November 2024, upon consideration of Defendants’

Motion for Protective Order and the response of Plaintiff Melissa V. Johanningsmeier thereto, and

this Court already having decided that legislative privilege does not bar discovery in this case, it

is hereby ORDERED AND DECREED that the Motion is DENIED.

BY THE COURT:

______________________________________
J.

Case ID: 231000053

Control No.: 24104516
FOX ROTHSCHILD LLP
BY: EDWARD J. HAYES, ESQUIRE
IDENTIFICATION NO. 30243 ATTORNEYS FOR PLAINTIFF
2001 MARKET STREET, SUITE 1700
PHILADELPHIA, PA 19103-3222
(215) 299-2000
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
: OF PHILADELPHIA COUNTY
:
v. : OCTOBER TERM, 2023
:
CITY OF PHILADELPHIA, et al. : No. 00053

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS CITY OF

PHILADELPHIA AND CITY COUNCIL’S MOTION FOR PROTECTIVE ORDER

Plaintiff, Melissa V. Johanningsmeier (“Plaintiff”), by her attorneys, Fox Rothschild LLP,

hereby files this response in opposition to the Motion for Protective Order (“Motion”) filed by

Defendants City of Philadelphia and City Council of City of Philadelphia (together, “Defendants”),

and in support thereof avers the following:

INTRODUCTION

Defendants’ Motion is part of its continuing attempt to thwart Plaintiff from pursuing legitimate

discovery in this matter. Having been previously ordered to produce documents over an objection

based on legislative privilege, the Defendants act as though no such Order was ever issued and, once

again, improperly assert legislative privilege as a basis to shield a Councilperson and her aide from

depositions. As this Court has already rejected the assertion of legislative privilege in this case, and as

Case ID: 231000053

Control No.: 24104516
Defendants cannot explain why that ruling does not apply equally in the context of deposition practice,

the Motion must be denied.

ARGUMENT

As this Court may recall, this case involves Plaintiff’s attack on the City’s illegal spot zoning

of certain property in the City of Philadelphia in direct response to an unfavorable decision by the

Honorable Ann Coyle overturning the grant of variances issued to the owner/developer of the property.

Despite the fact that the decision is on appeal to the Commonwealth Court, Councilperson Jamie

Gauthier decided to act as her own appellate Court and spot zoned the property so that the project could

go forward without the rejected variances. Plaintiff seeks to invalidate the spot zoning of the property

and has engaged in discovery aimed at proving the impropriety of that zoning.

When Defendants refused to produce Councilperson Gauthier and her aide, Andrew Goodman,

for depositions, Plaintiff filed a Motion to compel those depositions. In response to the Motion to

compel, Defendants filed a Motion for protective Order seeking to preclude those depositions. In doing

so, the Defendants have made two arguments: (1) that legislative privilege precludes Plaintiff from

taking the proposed depositions (Mot. at 3–4); 1 and (2) the depositions are unnecessary because

Plaintiff’s claim turns on a legal question. In support of its first argument, Defendants merely recycle

an entire section from their unsuccessful opposition to Plaintiff’s Motion to compel the production of

documents, which opposition was based on legislative privilege. The argument did not work in

connection with Plaintiff’s Motion to compel, and it does not work here. Plaintiff has already argued—

and the Court has already ruled—that legislative privilege does not apply to the facts of this case.

1
Citations to “Mot. at _” refer to Defendants’ Memorandum of Law in Support of Its Motion for
Protection Order. Because that document does not contain page numbers, Plaintiff considers Page 1 to
be the page bearing the document title “Defendants’ Memorandum of Law in Support of Its Motion for
Protection Order.”

Case ID: 231000053

Control No.: 24104516
 As for the second argument, it is not only legally incorrect, but it also simply comes too late:

Defendants have already participated in written discovery and document production related to the

impropriety of the spot zoning, and Plaintiff should be permitted to develop that discovery through

deposition practice. The Court should therefore deny Defendants’ Motion.

I. LEGISLATIVE PRIVILEGE DOES NOT APPLY HERE.

A. The Court Has Already Ruled That Legislative Privilege Does Not Shield
Defendants from Discovery, and Defendants are Bound by that Decision.

As this Court is aware, Defendants previously refused to produce documents requested by

Plaintiff based on the improper assertion of legislative privilege and Plaintiff sought to have that

objection overruled. Oral argument was held on the propriety of that assertion and by Order dated

September 13, 2024 (the “Order”), the Court agreed with Plaintiff that legislative privilege is not a

proper basis to foreclose Plaintiff’s request for documents evidencing communications regarding the

spot zoning of the subject property. The Order made it clear that Defendants were required to “produce

all of the documents requested by Plaintiff which the City has withheld on the basis of legislative

privilege . . . .” In other words, the Order made clear that legislative privilege was not a legitimate

basis upon which Defendants could withhold documents. Now, acting as though the Order did not

exist and as though the Court did not already determine that the assertion of administrative privilege

was not proper, Defendants attempt to take a second bite of the apple, literally making the same

arguments which were unsuccessful in connection with the production of documents. Defendants

cannot establish any justification why the Court would rule that legislative privilege does not apply to

the production of documents, but would apply to a different discovery method, i.e. depositions, which

depositions are directed to the same subject matter—namely, the non-legislative activities of

Councilperson Gauthier and her office staff regarding the zoning ordinances at issue. Indeed,

Defendants’ memorandum of law does not address the Order whatsoever. And because the Order itself

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Control No.: 24104516
disposes of the issue raised in Defendants’ Motion, the Court should deny Defendants’ Motion based

on the Order alone.

B. Even If the Order Was Not Dispositive, Plaintiff Has Already Refuted Defendants’
Legislative Privilege Arguments.

The Court is already familiar with Defendants’ legal argument regarding the purported

application of legislative privilege (Mot. at 4–8). An almost word-for-word argument appears in

Defendants’ opposition to Plaintiff’s motion to compel the production of documents, filed on July 15,

2024, under the same heading (“Legislative Privilege applies to Legitimate Legislative Activities”).

Rather than repeat her responses to that argument, Plaintiff attaches hereto her Brief in Support of Her

Motion to Strike Objections and to Compel Production of All Requested Document [sic], filed on July

30, 2024, as Exhibit A. That Brief made clear that under the facts of this case, no assertion of

legislative privilege was proper.

In addition to the authority cited in the earlier filed Brief, Plaintiff will address herein the only

new legal assertion raised in Defendants’ memorandum of law. Defendants cite the Commonwealth

Court’s decision in William Penn School District v. Department of Education, 243 A.3d 252 (Pa.

Commw. Ct. 2020) as an example of a protective order issuing to prevent depositions based on

legislative privilege. See Mot. at 6–7. But the Commonwealth Court did not apply legislative privilege

in that case. Id., 243 A.3d at 267 (“[T]his Court . . . does not need to reach the issue of whether the

Speech and Debate Clause can be invoked . . . because the Court is not convinced the topics that

Petitioners identified fall within the ambit of the Speech and Debate Clause.”); id. at 270 (concluding

“that the general topics identified by Petitioners are not protected by the Speech and Debate Clause”).

Rather, the Commonwealth Court engaged in a nuanced analysis that distinguished between the two

proposed deponents: (1) Stanley E. Saylor, Chairman of the Pennsylvania House of Representatives

Case ID: 231000053

Control No.: 24104516
Appropriations Committee (“Chairman Saylor”); and (2) Bryan Cutler, Speaker of the Pennsylvania

House of Representatives (“Speaker Cutler”).

As for Chairman Saylor, the Commonwealth Court applied the “high ranking government

official exception” to bar “questions about general, publicly known information related to the school

funding process, relevant budgets and appropriations, or public legislation or acts taken by the General

Assembly.” Id. at 271. In lieu of a deposition, the Commonwealth Court allowed the petitioners to

serve written discovery regarding public statements that Chairman Saylor had made, so long as those

statements were not made during official House proceedings. Id. at 273. As for Speaker Cutler, who

was a party to the action, the Commonwealth Court allowed the petitioners to serve him with requests

for admission, a less-burdensome means of achieving the intended purpose of their proposed deposition

(to collect party admissions). Id. at 271. The Commonwealth Court also allowed the petitioners to

serve Speaker Cutler with written discovery related to public statements that he had made. Id. at 272.

Defendants have not raised any of these arguments in their Motion.

In addition, William Penn is distinguishable based on its procedural posture. There, written

discovery had not yet occurred, so the Commonwealth Court left the door open to allow the petitioners

to renew their request for depositions after receiving discovery responses from Chairman Saylor and

Speaker Cutler. See id. at 271 n.14 (“Following receipt of written responses, should Petitioners

determine the need for additional discovery, Petitioners may file an application to that effect, at which

time the Court will revisit its holding.”). Here, Plaintiff seeks to depose Councilperson Gauthier and

Mr. Goodman to follow up on documents that have already been received from Defendants in response

to Plaintiff’s written discovery requests. Those documents strongly suggest that Councilperson

Gauthier and Mr. Goodman engaged in political (rather than legislative) communications with the

owner of the subject property and other third parties about legislatively circumventing Judge Coyle’s

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Control No.: 24104516
decision striking the variances needed to develop the Property, as opposed to communications

regarding the type of permissible activity that normally accompanies a change of zoning of an area of

the City.

Finally, it bears repeating that Defendants have not cited any Pennsylvania cases explaining

when legislative privilege protects documents versus depositions. Nor could Plaintiff find any. The

likely reason for this is that to the extent legislative privilege even applies to discovery in

Pennsylvania—a proposition that the Pennsylvania Supreme Court has not adopted 2—its applicability

hinges on the subject matter to which the discovery is directed. Specifically, courts distinguish

between discovery directed to legislative activities (which are protected) and political activities (which

are not). See William Penn, 243 A.3d at 267 (quoting Dickey v. CBS, Inc., 387 F.Supp. 1332, 1334

(E.D. Pa. 1975)) (“[S]tatements made outside of the legislative forum to constituents ‘is a political, not

a legislative activity, it is not entitled to the protection of the Speech [and] Debate Clause.’”).

Here, Defendants have not met their burden of showing that the complained-about conduct

applies to the political activities about which Plaintiff seeks to question Councilperson Gauthier and

Mr. Goodman. See Couloumbis v. Senate of Pa., 300 A.3d 1093, 1103 (Pa. Commw. Ct. 2023)

(quoting League of Women Voters of Pennsylvania v. Commonwealth, 177 A.3d 1000, 1005 (Pa.

Commw. Ct. 2017)) (“To assert the speech and debate privilege, the agency asserting the privilege must

establish that the information concerns activity ‘within the sphere of legitimate legislative activity.’”).3

And absent an applicable privilege, Plaintiff is entitled to “obtain discovery regarding any matter, not

2
League of Women Voters v. Commonwealth, 178 A.3d 737, 767 n.38 (Pa.2018) (noting that the
Pennsylvania Supreme Court “has never interpreted our Speech and Debate Clause as providing
anything more than immunity from suit, in certain circumstances, for individual members of the
General Assembly”).
3
Defendants attempt to flip the burden without citing any legal basis. Opp. at 4 (“Plaintiff’s failure to
cite any case law supporting the deposition of a legislator for legitimate legislative activity speaks
volumes.”).

Case ID: 231000053

Control No.: 24104516
privileged, which is relevant to the subject matter involved in the pending action . . . .” Pa.R.Civ.P.

4003.1. “[A]ny doubts” as to whether discovery is relevant “are to be resolved in favor of relevancy.”

William Penn, 243 A.3d at 263 (internal quotation marks omitted) (quoting Ario v. Deloitte &

Touche, LLP, 934 A.2d 1290, 1293 (Pa. Cmwlth. 2007)). For this additional reason, the Court should

deny Defendants’ Motion.

II. DEFENDANTS CANNOT SUDDENLY OBJECT TO PLAINTIFF’S DISCOVERY.

Defendants’ other argument should be deemed waived at this point. Defendants contend that

the proposed depositions would exceed the scope of discovery because Plaintiff’s claim turns on a legal

question and therefore does not require fact gathering from Councilperson Gauthier and Mr. Goodman.

See Mot. at 3–4. Defendants omit, however, that both Councilperson Gauthier and Mr. Goodman were

document custodians and directly involved in the rezoning of the subject property. And Defendants

further omit that they did not raise this scope-of-discovery objection during written discovery.

Defendants cannot, on the one hand, claim that “[t]he deposition of Councilperson Gauthier and a

member of her staff would not lead to any relevant evidence weighing on whether the challenged

ordinance constitutes illegal spot zoning” (Mot. at 4) and, on the other hand, have previously turned

over Councilperson Gauthier’s and Mr. Goodman’s documents without any objection that Plaintiff’s

requests were unrelated to any claims or defenses. In each case, Plaintiff is concerned with the same

subject matter. Moreover, now that Councilperson Gauthier and Mr. Goodman have turned over

documents, Plaintiff should be allowed to question those two custodians about the contents of their

documents. Since, as stated above, any doubts as to whether discovery is relevant are to be resolved

in favor of relevancy, this Court should conclude that the information which Plaintiff seeks to obtain

through depositions is relevant to the claims asserted herein. As a result, the Court should deny

Defendants’ Motion.

Case ID: 231000053

Control No.: 24104516
 CONCLUSION

For the reasons set out above, the Court should deny Defendant’s Motion and allow the

depositions of Councilperson Gauthier and Mr. Goodman to proceed.

Respectfully submitted,

_____________________________________
Edward J. Hayes, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103
(215) 299-2092

Attorneys for Plaintiff,

Lisa Johanningsmeier
Date: November 3, 2024

Case ID: 231000053

Control No.: 24104516
 CERTIFICATE OF SERVICE

I hereby certify that on this date, a true and correct copy of the foregoing Plaintiff’s

Response in Opposition to Defendants’ Motion for Protection Order has been served upon the

following individuals via e-mail:

Leonard F. Reuter, Esquire

Mary Costello, Esquire
City of Philadelphia Law Department
1515 Arch Street, 15th Floor
Philadelphia PA 19102

Peter Kilson, Esquire

130 N. 18th Stret
Philadelphia PA 19103

Date: November 4, 2024 _______________________________________

EDWARD J. HAYES

Case ID: 231000053

Control No.: 24104516
Exhibit “A”

Case ID: 231000053

Control No.: 24104516
 Filed and Attested by the
Office of Judicial Records
30 JUL 2024 11:24 am
M. TIERNEY

FOX ROTHSCHILD LLP

BY: EDWARD J. HAYES, ESQUIRE
IDENTIFICATION NO. 30243 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, TWENTIETH FLOOR
PHILADELPHIA, PA 19103-3222
(215) 299-2000
MELISSA V. JOHANNINGSMEIER : COURT OF COMMON PLEAS
: OF PHILADELPHIA COUNTY
:
v. : OCTOBER TERM, 2023
:
CITY OF PHILADELPHIA, et al. : No. 00053
__________________________________________

PLAINTIFF’S BRIEF IN SUPPORT OF HER MOTION TO STRIKE

OBJECTIONS AND TO COMPEL PRODUCTION OF ALL REQUESTED DOCUMENT

Plaintiff, Melissa V. Johanningsmeier (“Plaintiff”), by her attorneys, Fox Rothschild LLP,

hereby files this Brief in Support of her Motion to Strike Objections and to Compel Production of All

Requested Document (“Motion”) by the Defendants City of Philadelphia and the City Council of

Philadelphia (together, “Defendants”). 1 The Motion sought an Order from the Court compelling

Defendants to produce (1) all of the documents which have been withheld on the basis of legislative

privilege and (2) all documents requested by Plaintiff which still have not yet been produced.

1
Citations to “Opp. _” refer to Defendants’ opposition.

Case ID: 231000053

Control No.: 24104516
24070181
 INTRODUCTION

This case involves a constitutional challenge to Councilmember Jamie Gauthier’s rezoning

ordinances, the purpose of which were to spot-zone real property located at the 5000 block of

Warrington Avenue in Philadelphia to circumvent a ruling by the Honorable Ann Coyle which revoked

certain variances granted by the Department of Licenses and Inspection to the developer of the

property. Within a short period of time after Judge Coyle’s decision, the zoning of the property was

changed by Councilmember Gauthier in such a way as to permit the development of the property

without the variances struck down by Judge Coyle. As further evidence that the property was spot-

zoned, the ordinances which were enacted include specific provisions which cause them to expire after

a certain period of time (the time needed to develop the property), after which the property would revert

back to the prior zoning classification. A more clear case of spot zoning could not exist.

Discovery to date reveals that Councilmember Gauthier’s office was in contact with developers,

independent contractors, constituents, and other third parties regarding the subject property. Yet

Defendants have produced virtually no communications between Councilmember Gauthier and these

third parties. They have also refused to produce several documents based on an improper assertion of

legislative privilege, which does not apply to communications with third parties, and which the

Pennsylvania Supreme Court has never held may block discovery requests in cases which do not seek

to impose liability on a legislator. Defendants contend in their response to Plaintiff’s Motion to Compel

that they have produced thousands of documents, but while they may have produced thousands of pages

of documents, many of those documents are simply duplicates of other documents included in the

production. For the reasons set forth below, it is respectfully suggested that the Court should grant

Plaintiff’s Motion and permit Plaintiff to obtain evidence of the actions taken by the Defendants to spot

zone the property in direct response to Judge Coyle’s decision.

2
Case ID: 231000053
Control No.: 24104516
24070181
 ARGUMENT

I. The Legislative Privilege Does Not Protect Communications with Third Parties.

Defendants have sought to expand their claim of legislative privilege to preclude the production

of any documents relating to communications Councilmember Gauthier or her staff had with third

parties outside of the Councilmember’s office. These communications are critical to Plaintiff’s case,

as they will show the motivation for the spot zoning of the property, and there is no basis to shield these

communications from discovery. 2 “[S]tatements made outside of the legislative forum to constituents

‘is a political, not a legislative activity, it is not entitled to the protection of the Speech [and] Debate

Clause.’” William Penn, 243 A.3d at 267 (quoting Dickey v. CBS, Inc., 387 F.Supp. 1332, 1334

(E.D. Pa. 1975)). Indeed, as noted by the Commonwealth Court in William Penn (id. at 266), the

United States Supreme Court has found a whole host of activities as not “legislative” and therefore not

protected by the legislative privilege:

These include a wide range of legitimate “errands” performed for constituents, the
making of appointments with Government agencies, assistance in securing Government
contracts, preparing so called “news letters” to constituents, news releases, and speeches
delivered outside the Congress. The range of these related activities has grown over the
years. They are performed in part because they have come to be expected by
constituents, and because they are a means of developing continuing support for future
elections. Although these are entirely legitimate activities, they are political in nature
rather than legislative, in the sense that term has been used by the Court in prior cases.
But it has never been seriously contended that these political matters, however
appropriate, have the protection afforded by the Speech or Debate Clause.

U.S. v. Brewster, 408 U.S. 501, 512 (1972).

Under this authority, any communications that Councilmember Gauthier had with developers,

independent contractors, constituents, or other third parties regarding the construction project, the

2
The legislative privilege bars discovery into a legislator’s motivation or purpose only with respect to
legislative acts, not political acts, such as those at issue here. See William Penn School District v.
Department of Education, 243 A.3d 252, 264 (Pa. Cmwlth. 2020).

3
Case ID: 231000053
Control No.: 24104516
24070181
decision by Judge Coyle to strike down the variances granted to the developer, what action the

Councilmember could take to move the project forward in light of Judge Coyle’s decision, and the

decision to rezone the property in response to Judge Coyle’s decision—whether directly or through her

staff—constitute unprotected political activities and are not protected from disclosure. The legislative

privilege simply does not apply, and Defendants must be required to produce all such communications.

II. In This Commonwealth, the Legislative Privilege Does Not Bar Discovery.

The Pennsylvania Supreme Court “has never interpreted our Speech and Debate Clause as

providing anything more than immunity from suit, in certain circumstances, for individual members of

the General Assembly.” League of Women Voters v. Commonwealth, 178 A.3d 737, 767 n.38 (Pa.

2018). True, the Commonwealth Court in League of Women Voters invoked the Speech and Debate

Clause to quash legislative subpoenas and partially strike third-party subpoenas directed to the General

Assembly’s redrawing of congressional district lines. Id., 177 A.3d 1000, 1005–08 (Pa. Cmwlth.

2017). However, the Supreme Court “caution[ed] against reliance on the Commonwealth Court’s

ruling.” League of Women Voters v. Commonwealth, 178 A.3d at 767 n.38. This line, which

Defendants label “dicta” (Opp. at 8), has been affirmed in no uncertain terms by the Commonwealth

Court, which explained that it

understands and shares the Pennsylvania Supreme Court’s concerns about allowing a
legislator to invoke the Speech and Debate Clause to prevent discovery of information
that goes to the heart of a challenge to the constitutionality of a statute, particularly if a
petitioner is prevented from making its case against the constitutionality of a law based
upon a legislator's invocation of the privilege.

William Penn School District v. Department of Education, 243 A.3d at 267. 3

3
This language from William Penn appears directly after the language quoted by Defendants on Page
8 of their Opposition.

4
Case ID: 231000053
Control No.: 24104516
24070181
 In this case, Plaintiff does not seek to impose liability on the Defendants or Councilmember

Gauthier for legislative action taken by Councilmember Gauthier. Instead, Plaintiff seeks a declaration

that the subject ordinances constituted an unconstitutional spot zoning of the subject property in direct

response to Judge Coyle’s decision striking down the variances granted to the developer. The whole

rationale behind legislative privilege is inapplicable when a party does not seek to impose liability on

a legislator for his/her actions. In this case, Plaintiff seeks discovery of information needed to challenge

the constitutionality of rezoning ordinances introduced by Councilmember Gauthier, which were in

direct response to Judge Coyle’s decision to strike down the variances improperly issued to the

developer. In sum, the Pennsylvania Supreme Court and the Commonwealth Court are of one mind.

Under Pennsylvania law, the legislative privilege cannot block the discovery requests at issue here.

III. Defendants Lack Standing to Assert the Legislative Privilege.

Even if the legislative privilege applied here—and it does not—Defendants have not established

standing to assert it. Cf. Pa. Dept. of Educ. v. Bagwell, 131 A.3d 638, 648 (Pa. Cmwlth. 2015) (citation

omitted) (noting, in the context of the attorney-client and work-product privileges, that “standing inures

to the person or entity holding the privilege to preserve it”). Defendants’ own position is that the

legislative privilege is “presently held by Councilmember Gauthier,” not by Defendants, yet it is the

Defendants and not Councilmember Gauthier who have asserted the privilege. Opp. at 9. But if the

privilege is personal to Councilmember Gauthier (a member of City Council), then it cannot be asserted

by Defendants (a municipality and a legislative body).

IV. Defendants Can Waive the Legislative Privilege.

Finally, even if the legislative privilege applies (it does not), and even if Defendants can assert

it (they cannot), Defendants have provided no reason why they are unable to waive it. Contrary to

Defendants’ assertion, the Commonwealth Court in William Penn did not “recognize[] . . . that only

the legislator or the legislator’s staff were able to waive legislative privilege.” Opp. at 9. Rather, the

5
Case ID: 231000053
Control No.: 24104516
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Commonwealth Court held that the legislative privilege did not apply and that, therefore, “any assertion

of waiver is premature.” William Penn, 243 A.3d at 270. So too here. 4

As the legislative privilege does not apply to the communications which Plaintiff seeks to

discover in support of her claim that the ordinances in this matter were unconstitutional, Plaintiff

respectfully requests that this Court compel Defendants to produce (1) all of the documents requested

by Plaintiff which Defendants have withheld on the basis of legislative privilege and (2) all documents

requested by Plaintiff which have not yet been produced. The assertion of the legislative privilege by

the Defendants is not proper and is not supported by applicable law.

Respectfully submitted,

_____________________________________
Edward J. Hayes, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103
(215) 299-2092

Attorneys for Plaintiff,

Lisa Johanningsmeier
Date: July 30, 2024

4
To the extent that Defendants are arguing that they are unwilling (rather than unable) to waive
privilege, that argument presupposes that the privilege applies, which it does not.

6
Case ID: 231000053
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 CERTIFICATE OF SERVICE

I hereby certify that on this date, a true and correct copy of the foregoing Plaintiff’s Reply

Brief has been served upon the following individuals via e-mail:

Leonard F. Reuter, Esquire

Mary Costello, Esquire
City of Philadelphia Law Department
1515 Arch Street, 15th Floor
Philadelphia PA 19102

Peter Kilson, Esquire

130 N. 18th Stret
Philadelphia PA 19103

Date: July 30, 2024 _______________________________________

EDWARD J. HAYES

Case ID: 231000053

Control No.: 24104516
24070181