Washowich v. McKeesport Municipal Water Authority

503 A.2d 1084, 94 Pa. Commw. 509, 1986 Pa. Commw. LEXIS 1860
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 30, 1986
DocketAppeal, No. 3595 C.D. 1984
StatusPublished
Cited by15 cases

This text of 503 A.2d 1084 (Washowich v. McKeesport Municipal Water Authority) 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
Washowich v. McKeesport Municipal Water Authority, 503 A.2d 1084, 94 Pa. Commw. 509, 1986 Pa. Commw. LEXIS 1860 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge MacPhail,

■ Louis Washowich (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County dismissing his petition to open judgment following the Court’s granting of the McKeesport Municipal Water Authority’s (Authority) motion for peremptory judgment in a mandamus action.1 We affirm:

[511]*511The pertinent facts are not in dispute. On December 28, 1981, the City of McKeesport (City) enacted an ordinance which provided for the sale of the City’s water distribution system to the Authority. The ordinance stated “ [t]hat the proper officers are hereby authorized to execute any deeds, bills of sale, assignments or other documents required to affectuate [sic] the sale of real estate and personal property of the water works supply system upon the Authority tendering the said purchase price.”2 Appellant vetoed the ordinance, but his veto was overridden. On or about December 7, 1983, the Authority entered into a bond purchase agreement with CSM Security Corporation for the purchase of sufficient water revenue bonds to cover the transaction. A closing was scheduled for December 21, 1983 for the transfer of the appropriate funds to the City for the purchase of the water system. Appellant refused to execute the deed and bill of sale to the Authority. The Common Pleas Court entered peremptory judgment on December 23, 1983 ordering Appellant to sign the deed and bill of sale and deliver them to the Authority. Appellant’s petition to open, [512]*512which is the subject'of this appeal, concerns itself-with this judgment.

The Authority argues that the appeal is moot be-, cause the Appellant signed the deed and bill of sale on December 23, 1983 as a result of the Common Pleas Court’s order. This may be true, however, there is nothing on the record to indicate to this Court that the Appellant did indeed sign the documents. It is true that Appellant’s counsel told the Court at the hearing of December 23, 1983, that [w]e don’t agree, but we will abide by Tour Honor’s ruling.”3 Moré is required to be displayed on- the record before this Court can reach- the conclusion that Appellant complied with the order. "We must, therefore, reach the merits of the appeal.

Where a party appeals a denial of its petition to open a peremptory judgment, our scope of review is limited to determining whether the Common Pleas Court abused its discretion. Babcock School District v. Potocki, 71 Pa. Commonwealth Ct. 504, 455 A.2d 273 (1983), rev’d on other grounds, 502 Pa. 349, 466 A.2d 616 (1983). An abuse of discretion will be found only where the party has met his burden of showing good caiise for the opening of the judgment. Id.

Pa. R.C.P. No. 1098, which governs peremptory judgments in mandamus proceedings, reads:

At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear, but the judgment may be opened upon cause shown. Judgment shall not be entered without prior notice to all parties .unless the exigency of the case is such as to require action before notice, in which event notice -shall be given as soon as possible. -
This Court has said that
[513]*513[i]n determining whether to grant a motion for peremptory judgment pursuant to Buie 1098, a court is to be guided by the standards governing disposition of motions for summary judgment. Commonwealth v. Mifflin County School Board, 30 Pa. Commonwealth Ct. 213, 399 A.2d 421 (1977). Accordingly, in making its decision ‘ “ [t]he Court must consider both the record actually presented and the record potentially possible at the time of the trial[,] ” ’ Schacter v. Albert, 212 Pa. Superior Ct. 58, 61-2, 239 A.2d 841, 843 (1968) (quoting International Latex Corp. v. Lexicon Products, Inc., 37 F.B.D. 524, 525-6 (E.D. Pa. 1965)), and judgment can be entered ‘only in the clearest of oases where there is not the slightest doubt as to the absence of material fact. ’ Leach v. Philadelphia Saving Fund Society, 234 Pa. Superior Ct. 486, 492, 340 A.2d 491, 494 (1975). Furthermore, ‘ [t]he burden of demonstrating that no genuine issue of material fact exists and that one is entitled to judgment as a matter of law is on the moving party, and the record must be examined in the light most favorable to the non-moving party.’ Giannini v. Carden, 286 Pa. Superior Ct. 450, 454, 429 A.2d 24, 26 (1981).

Wolgemuth v. Kleinfelter, 63 Pa. Commonwealth Ct. 395, 398, 437 A.2d 1329, 1331 (1981). A refusal to open peremptory judgment is an abuse of discretion where the entry of the judgment was based upon a misapplication or misinterpretation of the law. Babcock.

In order to determine whether the Common Pleas Court erred by refusing to open the peremptory judgment, we must look to the law which governs mandamus actions. Our Supreme Court recently reviewed that law:

Mandamus is the proper remedy only where the plaintiff demonstrates (1) a clear legal right [514]*514in the petitioner, (2) a corresponding duty in the respondent, and (3) absence of any other appropriate or adequate remedy. ... As stated in Commonwealth ex rel. McLaughlin v. Brie 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. ’... Where doubt as to the plaintiff’s right or the defendant’s duty exists, the remedy is neither appropriate nor available. ... To succeed in an action of mandamus, the plaintiff must show an immediate, specific, well defined and complete legal right to the thing demanded.

Equitable Gas Company v. City of Pittsburgh, 507 Pa. 53, 57, 58, 488 A.2d 270, 272-73 (1985) (citations omitted). Appellant, as mayor of the City, had the ministerial duty of signing the deed and bill of sale. The ordinance directing that the water system was to be sold was passed by the McKeesport City Council over the veto of the mayor. That ordinance directed the mayor to sign the documents. The McKeesport Home Rule Charter states in delineating the mayor’s duties:

(4) He shall have the duty to enforce the ordinances and regulations of the City.
(5) He shall have the duty to sign such papers, contracts, obligations and documents that are properly presented to him, as may be required by law.4

Appellant argues that despite the fact that he had the duty under the Ordinance and the Home Rule Charter to sign the deed and bill of sale, he was justified in not doing so.

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Cite This Page — Counsel Stack

Bluebook (online)
503 A.2d 1084, 94 Pa. Commw. 509, 1986 Pa. Commw. LEXIS 1860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washowich-v-mckeesport-municipal-water-authority-pacommwct-1986.