83 Pa. Commw. 190 | Pa. Commw. Ct. | 1984
Opinion by
Hugh H. Aiken, David K. Hart, Worth D. Phillips, Ronald M. Davis and H. Ross Watson (appellants) appeal here an order of the Court of Common Pleas of Delaware County dismissing a mandamus action initiated to compel the township commissioners to record and publish an ordinance in accordance with the provisions of the Township of Radnor Home Rule Charter
The appellants are registered electors of the Township of Radnor who circulated petitions in June, 1982 proposing that an ordinance be adopted prohibit
In ordering the Board of Elections to comply with Section 8.05, the Court of Common Pleas of Delaware County added a sentence to the proposal which read as follows: “ [i]f this Ordinance is adopted, it will be binding upon the Township and the Commissioners for at least two years.” The ordinance, as altered by the court of common pleas, won the approval of a majority of the electors of the Township of Radnor in
The court sustained the Commissioners’ preliminary objection in the nature of a .demurrer, holding that the Commissioners could not now be ordered to record and publish the ordinance because that body was not a party to the earlier decision compelling the Board of Elections to place the proposed ¡ordinance on the ballot. The Court also dismissed the complaint, finding that the appellants lacked standing to bring a mandamus action because they did not have a beneficial interest distinct from that of the general public. In addition, the court overruled the appellants’ motion for peremptory judgment. The present appeal ensued.
We will first decide whether or not the court of common pleas erred in sustaining the Commissioners’ preliminary objection in the nature of a demurrer. The Commissioners contend that the court’s ruling was correct because they were not a party to that court’s earlier order compelling the Board of Elections to place the proposed ordinance on the ballot. While we recognize this statement as true, ¡we believe it to be irrelevant here.
The present appeal arose from a mandamus action instituted against the Commissioners, not the Board of Elections, after the ¡Commissioners refused to record and publish an ordinance adopted pursuant to the HRC. We believe that some confusion might have resulted from the fact that the appellants’ original complaint asked the court to hold the Commissioners in contempt. The complaint, however, was amended and it is to this amended complaint in mandamus that
A preliminary objection in the nature of a demurrer admits all well-pleaded facts along with all reasonable inferences therefrom and may not be sustained unless it is clear on the face of the pleading that the law will not permit the recovery sought. Additionally, all doubts must be resolved in favor of overruling the demurrer. Association of Pennsylvania State Colleges and University Faculties v. Commonwealth, 44 Pa. Commonwealth Ct. 193, 403 A.2d 1031 (1979). An examination of the amended complaint reveals that it contains all of the requisite elements necessary to set forth a cause of action in mandamus. Pa. R.C.P. 1095. And, inasmuch as we must accept all well-pleaded facts as true, we hold that the court of common pleas erred in sustaining the Commissioners ’ preliminary objection.
The issues still left before us are: (1) whether o'r not the trial court erred in concluding that the appellants have no standing to bring a mandamus action here; (2) if the trial court did err, whether or not mandamus will lie; and (3) whether or not the trial court erred in overruling the appellants’ motion for peremptory judgment. And, of course, we can disturb the decision of a trial court only where there has been an abuse of discretion or an error of law. See Mertz v. Lakatos, 33 Pa. Commonwealth Ct. 230, 381 A.2d 497 (1978).
In Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968), our Supreme Court discussed at length the question of standing where a private party brings a mandamus action to compel a public official to perform a ministerial act, in light of the then recently promulgated Pa. R.C.P. 1092. The Supreme Court concluded that the test for standing in such cases remained whether or not the private party
The appellants contend that they have an interest distinct from that of the general public as members of a “Committee of Petitioners” and as a result of having expended money in the process of promoting the ordinance in question. Conversely, the ¡Commissioners argue that the fact that the appellants may be members of a committee which decides to spend funds to promote the passage of an ordinance does not give them an interest in having that ordinance recorded and published distinct from that of the public at large. The Commissioners further submit that the appellants can not now label themselves a “Committee of Petitioners” because they failed to do so in the pleadings before the trial coart.
An examination of the HEC reveals the significance of the “Committee of Petitioners”. Article VIII of the HEC, entitled Citizen Participation and Protection, establishes the means by which registered electors of the Township of Radnor can exercise their right to propose ordinances to the Board of Commissioners and to vote upon any proposal where the Commissioners, as here, fail to adopt the ordinance. In order to submit an ordinance to the Commissioners, a petition must be circulated meeting the requirements as set forth in subsections 1-4 of Section 8.05(A) of the HRC:
1. Contain the names and addresses of five (5) registered electors of the Township, designated as the Committee of the Petitioners, including the person designated as Chairman.
2. Contain the full text of the ordinance proposed or sought to be reconsidered.
3. Contain on each page an affidavit executed by the circulator of the page that the cir*196 culator observed personally the signing of .each signature on the page.
4. Bear in ink the signatures, addresses, Ward, and dates of signing of at least ten (10) percent of the registered electors of each Ward of the 'Township qualified to vote at the time of the most recent primary, municipal or general election. No signature shall be counted as valid which is dated more than thirty (-30) days prior to the date of filing with the Township Secretary.
Our understanding of the concept of standing in mandamus actions is derived from a review of the case law,
More specifically, we find the Commissioners’ reading of our Supreme Court opinion in Dombrowski to be too narrow. The Commissioners would have us
Having concluded that a “Committee of Petitioners” would have standing here, we must also determine whether or not the appellants constitute such a committee. We do not find persuasive the Commissioners ’ argument that the failure of the appellants to label themselves a “Committee of Petitioners” on the initial pleading in the court of common pleas would preclude them from being considered as such here. The appellants have otherwise substantially complied with the requirements delineated under Section 8.05 (A) of the HRC and we will not deny them standing here for having failed to label themselves as ,a “Committee of Petitioners ’ ’ in their pleadings.
As to whether or not mandamus will lie, we are cognizant that ‘ ‘ ‘ [m] andamus is an extraordinary
Section 8.05(D) of the HRC states, in pertinent part, that “ [ordinances adopted or repealed by initiative or referendum vote, or summaries thereof, shall be published and recorded as provided elsewhere in this Chapter.” (Emphasis added.) Further, the court of common pleas found that a majority of the electorate of the Township of Radnor voted in favor of adopting the proposed ordinance on November 2, 1982 and that the Board of Elections certified the validity of the vote on November 10, 1982. The reporting and publishing of the adopted ordinance is clearly a ministerial act on the part of the Commissioners.
The Commissioners contend that mandamus does not lie because the ordinance presented to the voters on November 2nd was not identical to the ordinance originally presented to the Commissioners and they cite to the sentence added by the court of common pleas in the first mandamus action against the Board of Elections.
The appellants’ remaining contention is that the court of common pleas erred in overruling their motion for peremptory judgment pursuant to Pa. R.C.P. 1098. In Mertz v. Lakatos, 33 Pa. Commonwealth Ct. 230, 381 A.2d 497 (1978) this Court remarked that:
The granting or denial of “ peremptory judgment” continues to be guided by the principles governing the disposition of motions for summary judgment. One such principle is that such a motion should not be granted except in the clearest of cases where there is not the least doubt as to the absence of a triable issue of material fact. (Citation omitted.)
Id. at 232, n. 1, 381 A.2d at 499, n. 1. And, of course, like a summary judgment motion, a peremptory judgment motion can not be granted unless the moving party is entitled to judgment as a matter of law. Wolgemuth v. Kleinfelter, 63 Pa. Commonwealth Ct. 395, 437 A.2d 1329 (1981). Moreover, the burden of proof is on the moving party and the record must be examined in the light most favorable to the non-moving party. Id. In view of the complexity of the case sub judice, we are not convinced that the court of common pleas erred in denying peremptory judgment.
We will, therefore, reverse the dismissal of the appellants ’ amended complaint in mandamus, remand for proceedings in light of this opinion and affirm the denial of the motion for peremptory judgment.
Order
And Now, this 12th day of June, 1984, we hereby reverse the order of the Court of Common Pleas of Delaware County which dismissed the amended com
We take judicial notice of the Township of Radnor Home Rule Charter pursuant to 42 Pa. C. S. §6107.
The ordinance as originally proposed read:
The Commissioners of Radnor Township shall terminate their opposition to the construction and completion of the Blue Route (Interstate 476) and cease expending any public funds to oppose, hinder, delay, and/or otherwise prevent the completion of said Blue Route.
Section 8.05 of the HRC provides the procedure by which registered electors of the Township of Radnor may propose an ordinance to the Board of Commissioners. After filing a petition to initiate an ordinance with the Township Secretary, whose job it is to validate the petition, the proposed ordinance is presented to the Board of Commissioners. If within 60 days, the Board fails to pass the proposed ordinance, the petition is filed with the Board of Elections. The proposed ordinance is 'then voted on at the next regular primary, municipal or general election. And, finally, if a majority of registered electors approve the proposed ordinance and the election results are certified by the Board of Elections, the Board of Commissioners shall record and publish the ordinance.
For an excellent opinion comparing Pennsylvania cases dealing with whether or not a private party plaintiff has standing in a mandamus action see, Brown v. Snyder, 40 D. & C.2nd 286 (1966) (cited with approval by the Pennsylvania Supreme Court in Dombrowski).
See opinion at pp. 191-193.