Plaintiffs herein have instituted this action in mandamus to which
The first three of the preliminary objections are in the nature of a motion to strike the complaint. The first of these is a motion to strike for lack of conformity with Pa. R.C.P. 1002 and 1024. The verification to the amended complaint was taken by counsel for plaintiffs. Rule 1002 provides that any act other than verification required or authorized by that chapter to be done by a party may be done by his attorney. It is implicit in this rule that an attorney may not take the verification to the complaint. However, Rule 1024(c) provides that the verification shall be made by one or more of the parties filing the pleading unless all the parties either lack sufficient knowledge or information or are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated upon his own knowledge and the reason why the verification is not made by a party.
The complaint alleges that plaintiffs are applicants for a curative amendment to defendant’s zoning ordinance, fifing such application on or about July 29, 1974, under and pursuant to the Pennsylvania Municipalities Planning Code of July 31, 1968, P.L. 805 as amended by the Act of June 1, 1972, P.L. 238 (No. 93), 53 PS §§10101, et seq. It is alleged therein that a meaningful hearing on the application was not fixed within 60 days as re
The verification provides that Richard P. McBride, being duly sworn according to law, deposes and says that he is the attorney for plaintiffs, that the facts upon which the complaint is based are personally within his knowledge and that plaintiffs themselves lack the knowledge and information upon which the averments are made to the extent that McBride would be personally aware of such knowledge or information due to his involvement in the underlying zoning proceedings, and that McBride is authorized to take this affidavit on behalf of plaintiffs and that the facts set forth in the complaint are true and correct to the best of his knowledge, information and belief. We are satisfied that this verification complies with the holding of Malantonio v. Malantonio, 37 D. & C. 2d 687 (1965). Therein it was held that Rules 1002 and 1024 must be read together to provide that there are extraordinary circumstances whereby the party
The second preliminary objection as in the nature of a motion to strike is founded upon plaintiffs’ alleged failure to exercise and/or exhaust their statutory remedy at law. It is specifically asserted that plaintiffs had a remedy in the Second Class Township Code whereby they can gain relief from the township supervisors’ failure to discharge their official duties. The Act of July 10, 1947, P.L. 1481, sec. 5, 53 PS §65503, provides that if any township officer refuses or neglects to perform his duties, the court of quarter sessions, upon complaint in writing by five percent of the registered electors of the township, may issue a rule upon such officer to show cause why his office should not be declared vacant and thereupon, upon hearing held, remove that officer from office. We do not believe that this provision of the Second Class Township Code provides an adequate statutory remedy at law. Under this provision, duly elected public officers may be removed from office only upon showing of a perverseness which amounts to criminality or culpable indifference to their official duties: Foltz Appeal, 370 Pa. 567 (1952). Clearly, plaintiffs do not allege acts of criminality or culpable indifference to the official duties by the supervisors. Furthermore,
The third prehminary objection as in the nature of a motion to strike is to the effect that plaintiffs are relegated exclusively to the provisions of the Municipalities Planning Code for redress of their grievances and that, therefore, this court lacks jurisdiction over an action in mandamus. Specifically defendant refers to the Act of June 1, 1972, P.L. 238 (No. 93), sec. 1001, 53 PS §11001, which provides that the proceedings set forth in this article (article X on appeals) shah constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its agencies or officers adopted or issued pursuant to this act. We do not beheve that this section ousts this court of jurisdiction because the matter complained of by plaintiffs or from which they seek review is not an ordinance, decision, determination or order of the governing body. We are satisfied that this section refers to substantive matters contained in the ordinance, decision, determination or order of the governing
Defendants have likewise asserted a demurrer alleging that the complaint does not set forth a claim for relief in mandamus involving purely ministerial matters required to be performed by the board of supervisors but rather, alleges and avers discretionary matters and decisions of the board of supervisors. Admitting as true all well pleaded material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, as we must for purposes of these preliminary objec
Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in a plaintiff, a corresponding duty in a defendant and a want of any other appropriate and adequate remedy: Unger v. Hampton Township, 437 Pa. 399 (1970); Gallagher v. Springfield Township Board of Commissioners, 438 Pa. 280 (1970); Martin v. Garnet Valley School District, 441 Pa. 502 (1971) and Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 299 (1970). In a mandamus proceeding, a court can compel a public official who is vested with a discretionary power to exercise that discretion, but it cannot interfere with or control the official’s discretion or judgment. Expressed another way, it is the discretion and judgment of the official who is vested with the discretionary power which prevails and not that of a court or a jury or a person aggrieved: Martin v. Garnet Valley School District, supra; Larson v. Peirce Junior College, supra; Porter v. Bloomsburg State College, 450 Pa. 375 (1973); Valley Forge Racing Association v. State Horse Racing Commis
Defendant’s fifth preliminary objection as in the nature of allegation of a failure to join indispensable parties has been abandoned.
ORDER
And now, December 23, 1974, it is hereby ordered, directed and decreed that defendant’s preliminary objections as in the nature of motions to strike and a demurrer are denied, dismissed and overruled with leave to defendant to file an answer to the complaint within 20 days of the date hereof.