Hudock v. Trinisewski

35 Pa. D. & C.3d 343, 1984 Pa. Dist. & Cnty. Dec. LEXIS 164
CourtPennsylvania Court of Common Pleas, Luzerne County
DecidedMay 2, 1984
Docketno. 414-C of 1984
StatusPublished

This text of 35 Pa. D. & C.3d 343 (Hudock v. Trinisewski) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Luzerne County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hudock v. Trinisewski, 35 Pa. D. & C.3d 343, 1984 Pa. Dist. & Cnty. Dec. LEXIS 164 (Pa. Super. Ct. 1984).

Opinion

TOOLE, J.,

In this case, plaintiffs, all elected officials of Luzerne County, seek a mandamus order directing defendants, the Luzerne County Commissioners, to approve and pay certain salaries in accordance with a schedule provided for in an ordinance adopted by a former board of commissioners in 1982. Defendants are willing to approve and pay salaries, but only as provided for in an [344]*344ordinance adopted by a majority of them in January of 1984.

The matter is procedurally before the court at this time upon defendants’ motion for summary judgment and presents a variety of procedural and substantive questions relating to the salaries of the elected county officials.

On December 13, 1982, the Luzerne County Board of Commissioners, by a majority vote1, enacted Ordinance no. 2 of 1982 which purported to increase the salaries of all county officials above the base amount established by the legislature. The ordinance provided a schedule of percentage salary increases commencing with an eight percent increase effective January 1, 1983. A seven percent increase was then provided for each subsequent year up to and including 1987. The ordinance was to take effect immediately and was, by its terms, applicable to each official when permitted by the State Constitution.

At the time Ordinance no. 2 of 1982 was enacted, each of plaintiffs, having been elected at the municipal election in November of 1979, was serving his second year in office. In addition, each plaintiff aspired successfully for re-election in November of 1983 and assumed the duties as re-elected officials on January 2, 1984. In that same general election, the public elected new majority commissioners2. [345]*345Upon taking the oath of office on January 3, 1984, defendant commissioners, Trinisewski and Phillips, as the new majority of the board of commissioners, adopted a resolution expressing their intent to repeal Ordinance no. 2 of 1982 and reduce the salary of all county officials to the base rate set by the legislature.3 On January 31, 1984, the new majority commissioners enacted Ordinance No. 1 of 1984,4 which purported to repeal Ordinance no. 2 of 1982 and reduce the salaries of all county officials, including the salaries of plaintiffs to the statutorily designated base salary.

Following the taking of their oaths of office on January 2, 1984, each of plaintiffs, as well as defendants, were paid the salaries provided for by Ordinance no. 2 of 1982, and they continued to receive those salaries until February 3, 1984, when the new majority of the board refused to approve the payroll because it did not conform to the provisions of Ordinance no. 1 of 1984. At that point, plaintiffs initiated this mandamus action and, upon a request for peremptory judgment, this court, on the same date, directed that payroll checks should be issued to the parties based on the salary that each office holder was receiving during the calendar year of 1983. That order was to remain in effect until a decision was rendered on the merits in this matter.

The matter has been briefed, argued, and is now ripe for resolution.

It is well settled that mandamus is an appropriate cause of action to compel the performance of a ministerial act or mandatory duty whenever there is a [346]*346clear legal right in plaintiff, a corresponding duty in defendant, and a want of any other adequate, appropriate and specific remedy. Hamm v. Board of Education for the School District of Philadelphia, 79 Pa. Commw. 547, 470 A.2d 189 (1984); Goodman, et ux., v. Meade, et al., 162 Pa. Super. 587, 590, 60 A.2d 577, 579 (1948); Borough of Easton v. Lehigh Water Co., 97 Pa. 554, 560 (1881).

In this case, plaintiffs ask the court to declare Ordinance no. 1 of 1984 constitutionally invalid and to issue the writ of mandamus directing the commissioners to approve the salary increases provided for in Ordinance no. 2 of 1982. A threshold issue presented is whether mandamus is an appropriate form of action in which to challenge the constitutionality of Ordinance no. 1 of 1984. The purpose of mandamus is not to establish legal rights but to enforce those rights already established beyond peradventure. See Southerland v. Commonwealth, 36 D.&C. 2d 786, 791 (1965). We are satisfied that plaintiffs’ legal right in this case is not as clear as required. As the court noted in Hamm, supra, at 190, citing Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 299, 303, 269 A.2d 871, 873 (1970):

“[W]here it is necessary to establish the invalidity of an ordinance before the right sought to be vindicated by the plaintiff in mandamus can be said to exist, the right is not sufficiently ‘clear’ to form the basis upon which to issue the writ.”

We also note that mandamus is appropriate only where the ministerial act or mandatory duty of defendant is clear. Plaintiffs contend that their right to the salary increases provided for in Ordinance no. 2 of 1982 vested with their election in November of 1983, and that Ordinance no. 1 of 1984 is an unconstitutional attempt to decrease those salaries. With[347]*347out answering the contention at this point in the opinion, we simply note that we are obliged by the rules of statutory construction to consider Ordinance no. 1 of 1984, including its repealing features, as valid. There is a presumption that the commissioners, like the legislature, did not intend to violate the Constitution. See Statutory Construction Act of May 28, 1937, P.L. 1019, §52(3), 46 P.S. §552(3). If Ordinance no. 1 of 1984 is valid, then the duty of the commissioners is to comply with and enforce its provisions. In this action, plaintiffs seek not to compel compliance, but to have the board disregard and contravene the provisions of the latest ordinance. This is an inappropriate use of a mandamus action. Cf. Hamm v. Board of Education for the School District of Philadelphia, supra, at 190.

Finally, there must be a want of any other appropriate and adequate remedy. Hamm, supra, indicates that a declaratory judgment may be an appropriate and adequate alternate remedy. Our courts have also held that an action of assumpsit will lie against the county for the recovery of salary by an employee or anyone else entitled to be paid by the county for services rendered to the county. Taylor v. Philadelphia, 126 Pa. Super. 196, 190 Atl. 663 (1937); Gross v. Trout, et al., 69 York Leg. Reg. 95 (1955).

. Without further delving into the procedural aspects of this case, suffice it to say that on the basis of the cited authorities, this court should probably dismiss this mandamus action as procedurally inappropriate. However, no purpose will be served or promoted by a dismissal of the action because of its form. Indeed, plaintiffs’ counsel indicated at oral argument that if this action is dismissed that another action involving the same parties and raising the same issues will be immediately filed and present[348]*348ed. All that a dismissal would then accomplish is further delay and disruption.

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Bluebook (online)
35 Pa. D. & C.3d 343, 1984 Pa. Dist. & Cnty. Dec. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudock-v-trinisewski-pactcomplluzern-1984.