Stork v. Sommers

630 A.2d 984, 158 Pa. Commw. 65, 1993 Pa. Commw. LEXIS 529
CourtCommonwealth Court of Pennsylvania
DecidedAugust 19, 1993
DocketNo. 115 C.D. 1993
StatusPublished
Cited by6 cases

This text of 630 A.2d 984 (Stork v. Sommers) 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
Stork v. Sommers, 630 A.2d 984, 158 Pa. Commw. 65, 1993 Pa. Commw. LEXIS 529 (Pa. Ct. App. 1993).

Opinion

COLINS, Judge.

Harold Sommers (Sommers) appeals two October 9, 1992 orders of the Court of Common Pleas of Lancaster County (Common Pleas), one of which denied Sommers’ petition for disqualification of counsel and the other of which granted Janice Stork’s (Stork) motion for judgment on the pleadings.

The parties in this matter are elected officials of the City of Lancaster (Lancaster), a third class city governed by The Third Class City Code (Code)1 and utilizing the “mayor-council plan A” option.2 Sommers is the Treasurer of Lancaster and Stork is the Mayor of Lancaster. The present controversy arises out of Sommers’ refusal to sign checks related to funds in Lancaster’s capital fund. Sommers wrote a July 22, 1992 letter to Robert Oaster, Director of Administrative Services for Lancaster, in which Sommers stated that he would not sign any checks that relate in any way to the capital fund, until the Lancaster City Council reversed its decision to block an investigation into certain improprieties Sommers believed had occurred.

Sommers alleges that Stork, in her capacity as mayor, engaged in fraudulent abuses with regard to the capital fund, including an attempt to operate a proprietary scheme with Lancaster’s funds. According to Sommers, this scheme basically consisted of a plan for Lancaster to borrow more money [69]*69than it needed for its budget and then to invest the surplus in an attempt to make a profit. Sommers maintains that the scheme failed, because the investment return on the surplus was lower than the rate of interest Lancaster paid to borrow the money. Sommers also charges that Stork engineered the scheme by deceiving City Council, which alleged fact, in his view, legitimated his decision not to sign Lancaster’s checks and disburse funds from the capital fund.

On July 29, 1992, Stork filed a complaint in mandamus requesting that Common Pleas require Sommers to resume signing checks related to the capital fund. On July 31, 1992, Common Pleas entered a peremptory judgment in Stork’s favor, which judgment required Sommers to resume signing the capital checks. Common Pleas also set a hearing date.

Before Common Pleas conducted the mandamus hearing, Stork filed a motion for judgment on the pleadings, alleging that Sommers was obligated by statute to sign the checks regardless of any allegations he could prove or any justifications he could present. Common Pleas agreed with Stork’s position, ruling that the treasurer of a third class city has a ministerial function and a mandatory duty, as the custodian of public funds, to sign checks for lawful vouchers presented to him. Common Pleas granted Stork’s motion for judgment on the pleadings and directed Sommers to resume signing checks that are duly presented to him.

Additionally, throughout these proceedings, Stork has been represented by the City Solicitor, Robert L. Pfannebecker, Esquire (Pfannebecker). Sommers moved, in Common Pleas, for the disqualification of Pfannebecker, alleging a conflict of interest, because Pfannebecker was obligated to represent him since he is Lancaster’s treasurer. Sommers argues that because Pfannebecker represented Stork without Sommers’ permission, Pfannebecker violated rules of professional conduct and should have been disqualified by Common Pleas. Common Pleas denied Sommers motion for disqualification.

Sommers appealed to this Court for review of Common Pleas’ October 9, 1992 orders, which granted Stork’s motion [70]*70for judgment on the pleadings and which denied Sommers’ petition for disqualification of counsel. Our scope of review of Common Pleas’ decision is limited to determining whether constitutional rights have been violated or whether Common Pleas abused its discretion or committed errors of law. Kearney v. City of Philadelphia, 150 Pa.Commonwealth Ct. 517, 616 A.2d 72 (1992). Sommers raises three issues on appeal.

I. SHOULD THIS COURT REVIEW ONLY THE PLEADINGS THEMSELVES?

First, Sommers argues that when reviewing Common Pleas’ grant of judgment on the pleadings, this Court should consider not only the pleadings themselves but also Sommers’ submitted “offer of proof’ as to what would have been presented at trial. Sommers’ offer of proof consists primarily of his allegations of misconduct by Stork and other Lancaster officials. Sommers submits that pursuant to Giannini v. Carden, 286 Pa.Superior Ct. 450, 429 A.2d 24 (1981), a trial court should consider both the actual record and the record that could be created at trial.

After reviewing Giannini, we do not see its applicability to the present case. In Giannini, a plaintiff made vague allegations in his complaint but did not support the allegations with affidavits or by pleading sufficiently detailed facts. The defendant moved for and was granted summary judgment, because the court held that the plaintiff could not rely on mere unsupported allegations in the pleading stage to get to trial. Giannini is plainly inapplicable to this case and does not otherwise support Sommers’ position.

An accurate statement of the law on this issue may be found in Giddings v. Tartler, 130 Pa.Commonwealth Ct. 175, 178, 567 A.2d 766, 767 (1989), which states that review of “a motion for judgment on the pleadings is exclusively limited to the pleadings themselves; no other outside material may be considered.” Accordingly, any of Sommers’ allegations that were not included in the pleadings will be disregarded by this Court in reviewing Common Pleas’ decision and order.

[71]*71II. WAS COMMON PLEAS’ GRANT OF A MOTION FOR JUDGMENT ON THE PLEADINGS AN ERROR OF LAW?

Second, Sommers argues that Common Pleas erred, when it granted Stork’s motion for judgment on the pleadings. A motion for judgment on the pleadings should be granted only when there exists no genuine issue of fact and when the moving party is entitled to judgment as a matter of law. Giddings.

Common Pleas granted Stork’s motion for judgment on the pleadings, because both of these conditions were met. Common Pleas determined that the facts were not disputed, that Sommers is the treasurer of a third class city, and that he refused to sign checks to allow payment of warrants duly presented to him. Common Pleas also opined that the treasurer of a third class city, under Section 1403 of the Code, 53 P.S. § 36403, had a ministerial, nondiscretionary duty to sign all checks duly presented to him for payment. Common Pleas concluded that since a third class city treasurer does not have discretion in the area of signing checks, Stork was clearly entitled to the relief requested. It granted judgment on the pleadings and entered an order in mandamus that required Sommers to sign checks duly presented to him.

We agree with Common Pleas’ reasoning. Section 1403 of the Code, 53 P.S. § 36403, provides: “The city treasurer ... shall pay all warrants duly countersigned by the director of accounts and finance and the city controller.” (Emphasis added.) The use of the word “shall” in this part of the statute clearly indicates that the treasurer has a ministerial and mandatory duty, rather than a discretionary duty, to sign the checks.

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Bluebook (online)
630 A.2d 984, 158 Pa. Commw. 65, 1993 Pa. Commw. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stork-v-sommers-pacommwct-1993.