Equitable Gas Co. v. City of Pittsburgh

488 A.2d 270, 507 Pa. 53, 1985 Pa. LEXIS 303
CourtSupreme Court of Pennsylvania
DecidedFebruary 21, 1985
Docket71 W.D. Appeal Docket 1983
StatusPublished
Cited by58 cases

This text of 488 A.2d 270 (Equitable Gas Co. v. City of Pittsburgh) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equitable Gas Co. v. City of Pittsburgh, 488 A.2d 270, 507 Pa. 53, 1985 Pa. LEXIS 303 (Pa. 1985).

Opinions

OPINION

NIX, Chief Justice.

This is an appeal from an Order of the Commonwealth Court dismissing preliminary objections and granting peremptory judgment in mandamus for Equitable Gas Company (“Equitable”) and the Pennsylvania Public Utility Commission (“PUC”) against the City of Pittsburgh (“City”). The result reached by the Commonwealth Court seriously undercuts a carefully designed legislative scheme intended to provide the municipality with a right of set-off against persons having claims or accounts against the political subdivision. The Commonwealth Court has also ignored the clear pronouncements of this Court in setting forth the prerequisites for the issuance of mandamus. We are therefore constrained to reverse the instant order and to remand the matter to the Court of Common Pleas of Allegheny County for resolution.

I.

This case arose out of two separate proceedings before the PUC in which the City was ordered to reimburse Equitable a total of $114,890.67 for the latter’s relocation costs in connection with the construction of new City bridges. These orders were entered against the City on August 10, 1981 and December 31, 1981. No appeal was taken from these orders. Subsequently, in 1982 when presented with invoices from Equitable, the City made a demand for pay[57]*57ment from Equitable of annual permit fees totaling $208,-620.00 and informed Equitable that a set-off in the amount owed under the PUC orders would be made. Equitable rejected this arrangement and demanded payment of its claimed debt by instituting an action in the Commonwealth Court in mandamus against the City for a total amount of $114,890.67.

The Commonwealth Court ruled sua sponte on January 14, 1983 that it did not have jurisdiction over the action under 42 Pa.C.S. § 761(c) because the PUC was not a party to the action, and ordered the case transferred to the Court of Common Pleas of Allegheny County. Equitable then filed an application for reconsideration on January 28, 1983 stating that it intended to petition the PUC to join as a party-petitioner. On February 1, 1983, while that application was pending, the City informed Equitable that it was bound by statute, Act of July 1, 1937, P.L. 2611, as amended, 53 P.S. §§ 7231 et seq. (1972), to set-off the orders against the amount Equitable owed to the City. The City also stated that under section 7233, Equitable was required to enter into an agreement with the City and that should it fail to do so, the City would take action pursuant to section 7234. The City instituted an action for set-off in the Common Pleas Court of Allegheny County upon Equitable’s failure to recognize the City’s right of set-off.

The Commonwealth Court on March 4, 1983 stayed its previous order directing transfer of the matter to the court of common pleas, pending the PUC response to the joinder petition. On May 20, 1983 the PUC requested the right to join as party-petitioner and that request was granted by the Commonwealth Court. Thereafter, the PUC filed a motion for peremptory judgment which was also granted. We are now called upon to consider the propriety of the grant of that motion, exercizing jurisdiction pursuant to 42 Pa.C.S. § 723(a).

II.

Mandamus is the proper remedy only where the plaintiff demonstrates (1) a clear legal right in the petition[58]*58er, (2) a corresponding duty in the respondent, and (3) absence of any other appropriate or adequate remedy. Shaler Area School District v. Salakas, 494 Pa. 630, 432 A.2d 165 (1981); Canonsburg General Hospital v. Department of Health of the Commonwealth of Pennsylvania, 492 Pa. 68, 422 A.2d 141 (1980); Bronson v. Commonwealth of Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050, 101 S.Ct. 1771, 68 L.Ed.2d 247 (1981); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979); Princeton Sportswear Corp. v. Redevelopment Authority, 460 Pa. 274, 333 A.2d 473 (1975); Valley Forge Racing Ass’n. v. State Horse Racing Comm’n., 449 Pa. 292, 297 A.2d 823 (1972). As stated in Commonwealth ex rel. McLaughlin v. Erie County, 375 Pa. 344, 100 A.2d 601 (1953), “mandamus will not issue unless the right of the petitioner is clear and specific; it can never be invoked in a doubtful case.” Id., 375 Pa. at 351, 100 A.2d at 604. See also Chilli v. McKeesport School District, 334 Pa. 581, 583, 6 A.2d 99 (1939). Where doubt as to the plaintiff’s right or the defendant’s duty exists, the remedy is neither appropriate nor available. Leff v. N. Kaufman’s, Inc., 342 Pa. 342, 346, 20 A.2d 786, 789 (1941). To succeed in an action of mandamus, the plaintiff must show an immediate, specific, well defined and complete legal right to the thing demanded. Purcell v. City of Altoona, 364 Pa. 396, 72 A.2d 92 (1950).

Moreover, Rule 1098 of the Pennsylvania Rules of Civil Procedure directs that peremptory judgment may be entered only where the right of the plaintiff is clear. Pa.R. C.P. 1098. Where there are triable issues of fact that requirement is not met. Shroyer v. Thomas, 368 Pa. 70, 81 A.2d 435 (1951).

III.

There is no question that the City incurred a obligation with Equitable for relocation cost. The City has at all times [59]*59conceded that point. What is in issue is the City’s claim against Equitable. That claim is disputed and could not be adjusted in the mandamus action instituted by Equitable against the City in the Commonwealth Court. In essence the City is contending that the legislature has conferred in it a priority against those who are asserting claims against the City. An analysis of the pertinent statutes convincingly supports the City’s view.

Under section 7232 a political subdivision is required to inquire whether a person having a claim against it is indebted to it for or on account of any delinquent taxes, municipal claims, or outstanding judgments. Section 7232 provides:

Every political subdivision, before approving or paying the claim or account of any person against such political subdivision, shall have power to inquire of the receiver of taxes of the political subdivision whether such person is indebted to it for or on account of any delinquent taxes or municipal claims.

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Bluebook (online)
488 A.2d 270, 507 Pa. 53, 1985 Pa. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equitable-gas-co-v-city-of-pittsburgh-pa-1985.