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MISTICK v. CAMMACK. (10/09/59)

October 9, 1959

MISTICK
v.
CAMMACK.



Original jurisdiction, No. 2277, Miscellaneous Docket, upon special certiorari to Court of Common Pleas of Allegheny County, Oct. T., 1959, No. 2243, in case of Daniel T. Mistick v. Robert L. Cammack et al. Preliminary objections overruled and matter remanded to court below with leave to defendants to answer to the merits.

COUNSEL

Warren S. Reding, with him Reding, Blackstone, Phillips & Sell, for plaintiff.

Gustav W. Wilde, with him Paul G. Perry, Aaron Cohen, and Charles D. McCarthy, and Burgwin, Ruffin, Perry & Pohl, for Monroeville Water Authority, defendant.

Gilbert J. Helwig, with him P. K. Motheral, Carl E. Glock, and Reed, Smith, Shaw & McClay, for defendants.

Thomas N. Griggs, with him William A. Blair, and Griggs, Moreland, Blair & Douglass, for defendant.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 298]

OPINION BY MR. JUSTICE MCBRIDE

This action in equity was instituted by Daniel T. Mistick against the Monroeville Water Authority and its board of directors, Pride Engineering Associates, Inc., A. E. Masten and Co., Massachusetts Mutual Life Insurance Co. and Mellon National Bank and Trust Co. in the Court of Common Pleas of Allegheny County on August 25, 1959. The suit was begun by writ of summons. On August 28, 1959, the Authority appeared and ruled plaintiff to file his complaint. Plaintiff then alleged improper, arbitrary and unreasonable conduct and breach of fiduciary relationship on the part of the Water Authority, its board members, consulting engineer, and financial adviser. On September 24, 1959, the Authority alleging the necessity of speedy final disposition petitioned this Court to take original jurisdiction and at the time of oral argument on the motion, plaintiff joined in the petition. We issued a special certiorari which brought the record here to determine whether the complaint is insufficient and not amendable. Article 5, ยง 3, of the Pennsylvania Constitution expressly grants such power in case of injunction where a corporation is a party defendant, whether it be a private or municipal one. Wentz v. Philadelphia et al., 301 Pa. 261, 151 Atl. 883, Bruce v. Pittsburgh, 166 Pa. 152. Permission to so proceed lies within the discretion of the Court, Clark v. Washington Borough, 145 Pa. 566, 23 Atl. 333, and will be granted where a municipal corporation is a proper party defendant, DeWalt v. Bartley, 146 Pa. 525, 23 Atl. 448, and the necessity for such action is apparent. Thereafter, preliminary objections in the nature of a demurrer were filed by all defendants.

The demurrer, of course, admits every well pleaded material fact set forth in the pleading to which it is addressed as well as inferences reasonably deducible therefrom. West v. Young, 332 Pa. 248, 2 A.2d 745;

[ 397 Pa. Page 299]

Plaintiff also averred that Pride did not make a proper study of existing conditions in the water system, including a particular named type test which he alleges should have been made.

Masten & Company, the financial advisers to the Water Authority, is alleged to have negotiated a private purchase of the new bonds in violation of the provisions of the Municipal Authorities Act ...


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