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WILLIAMS ET AL. v. ROWE (11/17/71)

decided: November 17, 1971.

WILLIAMS ET AL.
v.
ROWE



Appeal from Orders of the Court of Common Pleas of Northumberland County in Civil Action -- Mandamus No. 284, December Term, 1970, in case of Paul D. Williams, John J. Kirkpatrick, George N. Vought, Anna K. Schriver and Betty Drumm v. Helen Rowe.

COUNSEL

Andrew K. Parker, for appellants.

E. Eugene Brosius, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer.

Author: Kramer

[ 3 Pa. Commw. Page 538]

This is an appeal from two orders of the Court of Common Pleas of Northumberland County: (1) refusing plaintiffs' (appellants here) Motion for a Summary

[ 3 Pa. Commw. Page 539]

Judgment, and (2) sustaining defendant's (appellee here) Preliminary Objections to a Complaint in Mandamus.

On January 21, 1971, Paul D. Williams et al. (appellants) presented a written request to Helen Rowe (appellee), City Clerk of the City of Sunbury, asking for the preparation of a petition for the submission of a proposed ordinance to the City Council. The above mentioned "written request" was signed by one hundred eight electors of the City of Sunbury, five of whom are the petitioners below and appellants here. This procedure was intended by the appellants to set into motion the initiative process as provided for in "The Third Class City Code," Act of June 23, 1931, P.L. 932, Article X, Section 1030,*fn1 53 P.S. 36030 et seq.

Appellants had requested that appellee prepare a petition for submission to the City Council of a proposed ordinance prohibiting the addition of fluoride to the public water system in and about the City of Sunbury. Six days later, appellee orally refused to comply with appellants' written request. It is to be noted that Section 1031 (53 P.S. 36031) provides for the city clerk to prepare such a petition for submission to city council within ten days after the written request is made by the electors. The preparation consists of public notification via newspaper that a petition will be ready for signing by the electors of the city at the expiration of ten days from the presentation of the written request to the city clerk.

On January 29, 1971, at 9:57 a.m., appellants filed a complaint in Mandamus in the office of the Prothonotary of Northumberland County. Within minutes, appellants also filed in that same action a Motion for Summary Judgment. The Sheriff of Northumberland

[ 3 Pa. Commw. Page 540]

County personally served (at 10:20 a.m. on that same date) appellee with copies of both pleadings. Later that day (at 2:30 p.m.), without prior notice to the appellee, appellants appeared in court and requested the court to issue an ex parte ruling on their motion for summary judgment, under Rule 1098*fn2 of the Pennsylvania Rules of Civil Procedure. The court, by an Order issued that day, refused to grant the motion for summary judgment.

On February 2, 1971, in response to appellants' Petition for the reconsideration of their Motion for Summary Judgment, the court issued upon appellee a rule to show cause why the Court should not reconsider appellants' motion for summary judgment. Thereafter the court received briefs and heard arguments of both parties, and on February 25, 1971, issued an order denying appellants' petition for reconsideration, and again refusing a summary judgment.

On February 16, 1971, appellee filed preliminary objections in the nature of a demurrer to appellants' Complaint in Mandamus. On March 2, 1971, appellants filed an answer to the preliminary objections with a request that they be stricken. On March 22, 1971, the court sustained the appellee's preliminary objections and dismissed the appellants' Complaint in Mandamus. In its opinion, the court ". . . concluded that the proposed ordinance ...


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