Aiken v. Radnor Township Board of Supervisors

476 A.2d 1383, 83 Pa. Commw. 190, 1984 Pa. Commw. LEXIS 1503
CourtCommonwealth Court of Pennsylvania
DecidedJune 12, 1984
DocketAppeal, No. 2165 C.D. 1983
StatusPublished
Cited by20 cases

This text of 476 A.2d 1383 (Aiken v. Radnor Township Board of Supervisors) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aiken v. Radnor Township Board of Supervisors, 476 A.2d 1383, 83 Pa. Commw. 190, 1984 Pa. Commw. LEXIS 1503 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Blatt,

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 Charter1 (HRC).

The appellants are registered electors of the Township of Radnor who circulated petitions in June, 1982 proposing that an ordinance be adopted prohibit[192]*192ing the township commissioners from expending funds or exerting official influence to oppose the completion of Interstate Route 476, the Blue Route.2 Although the Secretary of the Township of Radnor, in .accordance with Section 8.05 of the HRC, certified the petitions as valid, the Board of iCommissioners (.Commissioners) .refused to act on the proposed ordinance. The appellants then filed the petition with the Board of Elections and, when that body also failed to follow the mandate of Section 8.05 of the HRC,3 the .appellants brought a mandamus action to compel the Board of Elections to place the proposed ordinance on the ballot.

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 [193]*193the next general election. Thereafter, the appellants sought to have the Commissioners record and publish the ordinance pursuant to Section 8.05(D) of the HRC. Following the Commissioners’ refusal to do so, the appellants initiated the present mandamus action in the court of common pleas.

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 [194]*194the Commissioners filed their preliminary objection in the nature of a demurrer.

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 [195]*195possessed “an interest. . . distinct from that which he shares with the general public. . . .” Id. at 209, 245 A. 2d at 244.

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]

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Bluebook (online)
476 A.2d 1383, 83 Pa. Commw. 190, 1984 Pa. Commw. LEXIS 1503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aiken-v-radnor-township-board-of-supervisors-pacommwct-1984.