IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PHILADELPHIA RECREATION

ADVISORY COUNCIL (PRAC),

Plaintiff,

v.

CITY OF PHILADELPHIA, et al.

Respondent.

Civil Action No. 04-2012

March 31, 2005

MEMORANDUM / ORDER

Currently before the court are two motions to dismiss, the first filed by defendants Safe

and Sound and Jo Ann Lawer (Safe and Sound s president and CEO) (together, S & S ),

and the second filed by the city of Philadelphia, Mayor John Street, and the members of the City

Council named in plaintiff s complaint (together, the City ). In its complaint, plaintiff, a

Pennsylvania, not-for-profit organization with 195 members which together operate

recreational facilities, parks, educational programs, and city pools, alleges that the Mayor

has entered into an illegal agreement with S & S in which he has conferred on S & S

duties traditionally undertaken by the Department of Recreation, including the awarding

of contracts. Plaintiff claims that this arrangement violates the Fourteenth s

Amendment s due process and equal protection clauses, the Pennsylvania Constitution,

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the Supremacy clause of the U.S. Constitution, and provisions of Philadelphia s Home

Rule Charter.

Plaintiff bears the burden of proof with respect to standing. In order for plaintiff

to establish that it has standing to sue on its own behalf, it must demonstrate , inter alia,

that it has suffered an injury in fact -- an invasion of a legally prote cted interest which is

(a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical.... Trump Hotel and Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d

478, 484 (3d Cir. 1998). Plaintiff cannot claim that it has suffered an injury in fact as a

result of the city s contract with S & S since, by its own averments, it is clear that PRAC

has had an opportunity to have its concerns regarding the city s arrangement with S & S

heard. Nor can PRAC claim an injury in fact in light of its preclusion from city contract

awards since, under state law, which governs entitlements to property interests subject to

protection under the Fourteenth Amendment, see Logan v. Zimmerman Brush Co., 455 U.S.

422, 430 (1982), a disappointed bidder has no standing to request the judicial award of a

public contract. Ogden Foods, Inc. v. State Farm Products Show Commission, 315 A.2d

329, 332 (Pa. 1974).

Further, PRAC has not succeeded in demonstrating that it has standing as an

association to bring suit on behalf of its membe rs. Associational standing exists only

where the association s members would otherwise have standing to sue in their own

right, Hunt v. Washington State Apple Adver. Comm n, 432 U.S. 333, 343 (1977).

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Because PRAC has failed to specify the identity of its members or the precise nature of

the injury each suffers, it has not established that any of its members would have

standing to sue individually. 

Finally, prudential reasons militate against a recognition of PRAC s standing to

bring the bulk of its claims since these claims affect the legal rights or interests of third

parties, Miller v. Nissan Motor Acceptance Corp., 362 F.3d 209, 221 (3d Cir. 2004)

(citing Valley Forge Christian College v. Americans for Separation of Church and State,

Inc., 454 U.S. 464, 474-75 (1982)) and/or they consist of abstract questions of wide

public significance which amount to generalized grievances shared and most

appropriately addressed in the representative branches, id.

In sum, the court finds that PRAC lacks standing to pursue any of its claims.

Accordingly, it is hereby ORDERED that plaintiff s complaint is DISMISSED.

BY THE COURT:

________________________

Pollak, J.

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