Cottone v. Kulis

460 A.2d 880, 74 Pa. Commw. 522, 1983 Pa. Commw. LEXIS 1670
CourtCommonwealth Court of Pennsylvania
DecidedJune 1, 1983
DocketAppeal, 459 C.D. 1982
StatusPublished
Cited by17 cases

This text of 460 A.2d 880 (Cottone v. Kulis) 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
Cottone v. Kulis, 460 A.2d 880, 74 Pa. Commw. 522, 1983 Pa. Commw. LEXIS 1670 (Pa. Ct. App. 1983).

Opinions

Opinion by

Judge Barbieri,

Loretta Cottone, G-raee White, Diana Forsythe, Jean W. Sykes, and Rachel L. Hobson (Appellants) appeal here from an order of the Court of Common Pleas of Allegheny County sustaining a preliminary objection in the nature of a demurrer to their Complaint in Mandamus and dismissing their Petition for Peremptory Writ. We affirm.

Section 1701(b) of the Home Rule Charter (Charter) of the City of McKeesport (City) provides, in part, that

[t]he qualified voters of the City shall have power to require reconsideration by the Council of any adopted ordinance and, if the Council fails to repeal an ordinance so reconsidered, to approve or reject it at a City election, provided that such power shall not extend to the budget or capital program....

Section 1702 of the Charter, in turn, states that “ [a]ny five qualified voters may commence . . . referendum proceedings by filing with the City Clerk an affidavit stating they will constitute the petitioners’ committee and be responsible for circulating the petition and filing it in proper form. ...” Section 1702 further provides that upon the filing of a proper affidavit “the City Clerk shall issue the appropriate petition blanks to the petitioners’ committee.”

On January 7,1982, Appellants submitted a proper affidavit to City Clerk, Janet Kulis, pursuant to the provisions of Section 1702 of the Charter, to initiate referendum proceedings on an ordinance the City Council enacted on December 14, 1981 (Ordinance 81-31) authorizing the sale of the City’s water system to the Water Authority of the City of McKeesport (Au[525]*525thority). After reviewing’ the ordinance in question, however, Ms. Kulis refused to release the petition blanks on the ground that Ordinance 81-31 pertained to a capital program, and hence was exempted from the Charter’s referendum procedures by the provisions of Section 1701(b). In response to this refusal to release the petition blanks, Appellants filed an action in mandamus against the City Clerk, the City’s mayor and the City Council, and a Petition for Peremptory Writ and Order of Court requesting peremptory judgment pursuant to Pa. R.A.P. No. 1098. A hearing on this matter was subsequently conducted on February 3, 1982, and at this hearing Ms. Kulis submitted a preliminary objection in the nature of a demurrer. Thereafter, the court entered an order dismissing the complaint with respect to the mayor and the City Council members,1 with a separate opinion and order sustaining the preliminary objection filed by Ms, Kulis. In its decision, the court concluded that Ordinance 81-31 fell within the Section 1701(b) capital plan program. The present appeal followed.

Before this Court, Appellants initially allege that under the provisions of Section 1702 of the Charter, the City Clerk had a mandatory duty to issue the petition blanks without any consideration of the nature of the ordinance involved, and that the court of common pleas therefore abused its discretion by not granting a mandamus.2 We disagree.

[526]*526We believe that general rules of statutory construction are applicable in interpreting the provisions of a home rule charter. Under those general rules, we must “construe a section of a statute with reference to the entire statute and not a part from its context.” Insurance Department v. Adrid, 24 Pa. Commonwealth Ct. 270, 275, 355 A.2d 597, 599 (1976); see also Section 1921(a) of the Statutory Construction Act of 1972 (Act), 1 Pa. C. 8. §1921 (a). We must also presume that the drafters of the home rule charter did not intend a result which is absurd, impossible of execution or unreasonable. See Section 1922 of the Act, 1 Pa. C. 8. §1922.

Here, although, as Appellants emphasize in their brief to this Court, Section 1702 states that the City Clerk shall issue the petition blanks to the petitioners’ committee upon the submission of a proper affidavit, we believe that the Charter’s referendum provisions, when read as a whole, only require the City Clerk to perform this duty when the ordinance challenged by the petitioners’ committee is subject to the referendum provisions of Charter. If we were to accept Appellants’ contention that the City Clerk is compelled to issue petition blanks without considering the nature of the ordinance which would be the subject of the referendum process, we would thus sanction futile conduct, possibly frivolous or misguided, which could be unnecessarily harassing to City Council and to others involved in such referendum procedures. [527]*527While it is true that the action taken here in this lawsuit could he deferred to some later date in the referendum proceedings, the intervening steps would he senselessly permitted to go on. Worse yet, if no one now or later chose to litigate the challenged ordinance, pursuant to the mandate of Section 1706 of the Charter, it would have to be reconsidered by the Council, and if not' repealed, would be submitted to the Voters within thirty days of the Council’s vote. After the expense of an election had been incurred, and the ordinance' had possibly been repealed, the entire referendum would then be subject to being invalidated in a judicial proceeding. Such an absurd and disruptive ■result could not, in our view, have been intended by the drafters of the Charter.

We note that our decision in this regard is identical to the decisions this and other courts have reached in cases involving mandamus proceedings brought to compel city clerks to initiate analogous referendum proceedings under the provisions of The Third Class City Code, Act of June 23,1931, P.L. 932, as amended, 53 .P.S. §§35101-39701, see Williams v. Rowe, 3 Pa. Commonwealth Ct. 537, 283 A.2d 881 (1971); Catalano v. Swanger, 60 Pa. D. & C.2d 320 (1973); Bogert v. Kistler, 38 Pa. D. & C.2d 133 (1965), and we believe that the court of common pleas’ discussion of this issue in Bogert is equally applicable here:

We are convinced that it would be pointless to compel the city clerk to proceed with the duties outlined in the initiative and referendum statute, with respect to a proposed ordinance clearly not the subject of such proceeding.
In Schultz v. Philadelphia, 385 Pa. 79 . . . [a]t page 86, the court said:
“It is urged that the Court should not pass upon the validity of the proposed legislation [528]*528at this time but should defer a decision thereon until after the measure shall have been voted upon at the polls. We cannot subscribe to this point of view. The question of validity has been argued before us . . . and since ... we are convinced that the legislation is in fact invalid, it would ... be wholly unjustified to allow the voters to give their time, thought and deliberation to the question of the desirability of the legislation . . . and thereafter, if their vote be affirmative, confront them with a judicial decree that their action was in vain. ...”

Id. at 139-40. Accordingly, we believe that the court of common pleas in the case sub judice properly addressed itself to the question of whether Ordinance 81-31 is an exempted “capital plan” ordinance in deciding whether a mandamus should issue.

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Cottone v. Kulis
460 A.2d 880 (Commonwealth Court of Pennsylvania, 1983)

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Bluebook (online)
460 A.2d 880, 74 Pa. Commw. 522, 1983 Pa. Commw. LEXIS 1670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cottone-v-kulis-pacommwct-1983.