Atlantic-Inland, Inc. v. Board of Supervisors

410 A.2d 380, 48 Pa. Commw. 397, 1980 Pa. Commw. LEXIS 1010

• Court: Commonwealth Court of Pennsylvania
• Decided: January 10, 1980
• Docket: Appeal, No. 29 C.D. 1979
• Status: Published

Opinions

Opinion by

Judge Blatt,

Atlantic-Inland, Inc. (appellant) appeals from an order of the Court of Common Pleas of Chester County dismissing its complaint in equity and mandamus against West Goshen Township (Township).¹

In 1974, the West Goshen Township Board of Supervisors (Board of Supervisors) passed an ordinance known as the West Goshen Township Electrical Code (Code), which establishes a system for the inspection of certain electrical work done within the Township. It provided in part as follows:

Approved Electrical Inspection Agency— shall mean the Middle Department Association of Fire Underwriter[s], the Middle Atlantic Electrical Inspection, Incorporated and such other electrical inspecting agency or agencies which shall hereafter be approved by resolution of the Board of Township Supervisors.

Section 3(b) of the Code.

As to the method of approval, it provided:

The Building Inspector shall not accept any Certificate of Inspection from an inspecting agency which has not been approved by resolution of the Board of Supervisors who will investigate the qualifications, method of operation, completeness of inspectional activity, amount of insurance coverage, and type of report before approving such agency.

Section 6(d) of the Code.

Following the enactment of the ordinance, the appellant applied for approval as an electrical inspection agency, but the Township denied the application, explaining in a letter to the appellant that it was “quite satisfied with the present inspection agencies doing electrical inspection for this Township.” The appellant thereupon filed a complaint in the county court of common pleas seeking a declaration that the ordinance, on its face and as applied, was unconstitutional or, in the alternative, that a writ of mandamus be issued directing the Township to approve the appellant as an electrical inspector.

On the record then developed before the court below, the court found that the actual reason for the appellant’s rejection was its record of defective inspections and its failure to follow reporting procedures. As to the constitutionality of the ordinance, the court determined that it was a valid exercise of the Township’s police power, holding that the designation of two approved agencies was not a denial of substantive due process or equal protection and that the method of approval was not so vague as to violate procedural due process. In addition, the court ruled that a writ of mandamus was inappropriate because approval here was a discretionary matter and the Township had not abused its discretion.

The appellant now raises two constitutional issues. It argues first that the designation of two agencies as not requiring approval violates the principle of equal protection and Article III, Section 32 of the Pennsylvania Constitution, which prohibits special legislation “![r]egulating labor, trade, mining or manufacturing”. Secondly, it argues that the. standards for agencies seeking approval are so vague as to constitute a violation of due process.² The appellant does not explicitly address the issue of mandamus.

As to the appellant’s due process argument, we are unable to agree that the standards governing approval in Section 6(d) of the Code are so vague as to render them unconstitutional. The ordinance clearly suggests that, upon application by an inspection agency, the Board of Supervisors will “investigate the qualifications, method of operation, completeness of insurance coverage, and types of report before approving such agency.” Section 6(d) of the Code. The ordinance thus establishes a number of areas into which the Township may inquire in determining whether or not an agency is competent to conduct electrical inspections. The appellant argues that the ordinance does not establish any specific criteria that must be met for approval and that the Township need not approve anyone, so that the absence of explicit guidelines may result in arbitrary and discriminatory approval decisions by the Township. We believe, however, that the appropriate standard to be applied here is suggested in Dixon v. Pennsylvania Crime Commission, 347 F. Supp. 138, 144 (E.D. Pa. 1972):

A statute is not unconstitutionally vague merely because clearer and more precise language could have been used; it is sufficient if it contains general principles to be followed and leaves the details of ministerial acts in the hands of those charged with the duty of administering the statute.

Applying this criterion and considering our obligation to adopt a reasonable construction which will save the constitutionality of the ordinance, Kadash v. City of Williamsport, 19 Pa. Commonwealth Ct. 643, 340 A.2d 617 (1975), we conclude that the ordinance is specific enough to prevent the arbitrary and discriminatory exercise of power.

"While it is true that the reference to “qualifications” in Section 6(d) of the Code may seem abstract and redundant, we believe that a reasonable reading of the ordinance indicates that an inspection agency is entitled to approval if its method of operation is consistent with accepted industry standards, its inspections are complete, its insurance coverage is adequate, and its inspection reports are sufficient and accurate. Undeniably, the Board of Supervisors may exercise discretion in evaluating the evidence developed by its investigation, but so long as it is guided by the considerations expressed in the ordinance, that discretion is sufficiently limited.

In addition, we must note that the Township’s decision is subject to judicial review and must be supported by substantial evidence. In the present case, the record contains substantial evidence that the appellant made improper inspections and reports, and we believe therefore that the Township’s refusal to approve the appellant was within its discretion. Accordingly, the court’s refusal to issue mandamus was proper, for mandamus will not lie to control the exercise of discretion unless the defendant’s action is so arbitrary as to be no exercise of discretion at all. Phillips v. Neville Township, 23 Pa. Commonwealth Ct. 274, 351 A.2d 314 (1976). Further, although the letter indicating the Township’s decision offered a legally insufficient reason for refusing to approve the appellant, we agree with the court below that it was not bound to accept the wording of the letter when other evidence of record established that the actual reason for denying approval was legally sufficient.

Finally, while we are inclined to agree with the appellant’s characterization of Section 3(b) of the Code, which names two agencies as not requiring approval,³ we need not and shall not address the constitutionality of this provision. As we have said in the past, a court will not consider a constitutional issue unless it is clearly necessary to do so to dispose of the case before it. Hostetter v. Department of Transportation, Bureau of Traffic Safety, 10 Pa. Commonwealth Ct. 228, 309 A.2d 600 (1973). Here, were we to find this designation unconstitutional, we would be required, under the severability clause of the ordinance, to strike only the reference to the named agencies. The ordinance would then require all inspection agencies to seek approval on an equal footing, and the appellant would consequently be left in the same position it is now. That is, it would not be entitled to automatic approval but would still have to petition for approval by the Board of Supervisors. Its cause would not be advanced in any way.

We shall therefore affirm.

Order

And Now, this 10th day of January, 1980, the order of the Court of Common Pleas of Chester County in the above-captioned case, dismissing the exceptions of Atlantic-Inland, Inc., and entering judgment on its decree nisi, is hereby affirmed.

This decision was reached prior to the expiration of the term of office of Judge DiSalle.

1 It seems to us that the proper procedure for prosecuting this type of matter is established by the Local Agency Law, 2 Pa. O.S. §551 et seq., which was not followed here. The parties, however, have not raised this issue, and therefore, we do not address it.

2 The appellant also suggests that it was denied due process because its application was rejected on the advice of the Township Building Inspector and was never actually considered by the Board of Supervisors. This issue was not raised below, however, and we shall not consider it on appeal.

3 See State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 272 A.2d 478 (1971) (applying Pa. Const. art. III, § 32) ; Francis v. Neville Township, 372 Pa. 77, 92 A.2d 892 (1952) (invalidating ordinance as special legislation); Commonwealth v. Mervis, 55 Pa. Superior Ct. 178 (1913) (applying equal protection principles).