515 A.2d 365 | Pa. Commw. Ct. | 1986
Thomas Flaherty appeals that portion of an Allegheny County Common Pleas Court order denying his petition for a rule to show cause why Richard S. Caliguiri should not forfeit the office of Mayor of the City of Pittsburgh.
Section 802 of the Pittsburgh Home Rule Charter (Charter) requires that (1) each candidate for nomination or election to city office file a preliminary account of receipts and expenses five days prior to the election
Mayor Caliguiri contends that the common pleas court correctly held that it had no jurisdiction to hear this case. We agree.
Flaherty has not filed a praecipe for a writ of summons, complaint, or agreement for an amicable action, as required by Pa. R.C.P. No. 1007 to commence an “action.” However, proceedings by rule may be had where authorized by statute, as auxiliary for the facilitation of jurisdiction already had or as a means of correcting a courts own records. Butler Area Sewer Authority v. Northwest Sanitary Sewer System Authority, 3 Pa. Commonwealth Ct. 76, 281 A.2d 87 (1971).
Here, the petition clearly functioned as original process because there existed no pending action to which it could be considered auxiliary. See Energy Explorations Appeal, 44 Pa. Commonwealth Ct. 511, 404 A.2d 741 (1979).
Because the proceeding below was improperly commenced, the common pleas court had no power to act and no jurisdiction over Mayor Caliguiri.
The common pleas courts decision is affirmed.
Order
The Allegheny County Common Pleas Court order, No. GD 85-8933 dated August 6, 1985, is affirmed.
This petition was filed under Pa. R.C.P. No. 209.
Flaherty does not appeal that portion of the common pleas court order denying his May 30, 1985 petition, as moot, to the extent that it sought a rule to show cause why Rick Burke, George Heslet, Gary P. Forrest and Mayor Caliguiri should not be prohibited from participating in the May 21, 1985 primary election.
Flaherty incorrectly interprets Pennsylvania Crime Commission Petitions, 446 Pa. 152, 160, 285 A.2d 494, 498 (1971), as authorizing this proceeding by rule as “auxiliary to the exercise by the [Controller] of [his] investigatory function.” As this Court has explained:
The exception to the general unavailability of a petition and rule to commence proceedings found in Petition of Pennsylvania Crime Commission, 446 Pa. 152, 285 A.2d*22 494 (1971) resulted from implied statutory authorization for court proceedings as an auxiliary aid to the commissions investigatory powers.
Energy Explorations Appeal, 44 Pa. Commonwealth Ct. at 513, 404 A.2d at 743 (emphasis added). Therefore, Flaherty’s discussion of the scope of his Charter powers, in light of Pennsylvania Crime Commission Petitions and similar cases, is meaningless absent some alleged statutory authorization for court proceedings as an auxiliary aid to these powers.
Act of June 3, 1937, P. L. 1333, as amended, added by Section 2 of the Act of October 4, 1978, P.L. 893, as amended, 25 P.S. §3256.
25 P.S. §§2600—3591.
Although Section 802 of the Charter provides that “[t]he preliminary account shall be in the same form and contain the same information as required by law . . . [,]” Section 1636 of the Code provides, in pertinent part:
(a) Within ninety (90) days after the last day for filing any report and affidavit required by this act, any five (5) electors of the Commonwealth or of the political division may present a petition to the court of common pleas of the county in which is situated the office where such original report has been filed or with the Commonwealth Court in the case of original report filed with the Secretary of the Commonwealth for an audit of such report.
(Emphasis added.)