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GRIBBLE v. MILLER ET AL. COUNCILMEN MUNHALL BOROUGH (12/17/71)

decided: December 17, 1971.

GRIBBLE
v.
MILLER ET AL. COUNCILMEN OF MUNHALL BOROUGH



Appeal from the Judgment of the Court of Common Pleas of Allegheny County in case of Frank E. Gribble v. Raymond J. Miller, Donald Abraham, A. W. Berger, Stephen R. Dudas, John W. Hadvab, John L. McCarthy and Adolph S. Rodosky, Councilmen, Borough of Munhall, No. 1834 July Term, 1967.

COUNSEL

Harold Gondelman, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellant.

Donald J. Lee, with him Dougherty, Larrimer & Lee, for appellees.

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

Author: Rogers

[ 3 Pa. Commw. Page 521]

This is an appeal by a plaintiff from an order of the Court of Common Pleas of Allegheny County granting defendants' motion for judgment on the pleadings.

On May 12, 1967, appellant Frank E. Gribble, for himself and assertedly in behalf of other taxpayers and certain civic associations of the Borough of Munhall, brought this action in assumpsit against the appellees, members of the Borough Council of Munhall. The complaint recites purchases of goods and services by the

[ 3 Pa. Commw. Page 522]

Borough authorized by vote of the defendants which allegedly violated a provision of the Borough Code declaring unlawful the evasion of advertising requirements by dividing a single transaction into a series of purchases and contracts. It seeks judgment against the defendants and in favor of the Borough.

We have first before us appellees' motion to dismiss the appeal on the ground that the appellant lacked standing to appeal because he was not a resident or taxpayer of the Borough of Munhall when the appeal was taken and because the appellant had not authorized the appeal and did not desire that it should continue. The motion, itself unverified, is supported by two affidavits. One is of the Borough tax collector who states that his records show that Mr. Gribble has not resided in the Borough since the year 1969 and the other is of Mr. Gribble's brother-in-law, the Borough's Chief of Police, who deposes that Mr. Gribble told him on or about April 15, 1971, that he, Gribble, did not desire the appeal to be taken. Assuming that the appellant's removal from the Borough would affect his standing to appeal, we cannot accept the tax collector's records as proof of non-residence. The Police Chief's affidavit, in addition to being unacceptable as hearsay, refers to a conversation which occurred after April 5, 1971, the date on which this appeal was taken. The motion to dismiss the appeal is, therefore, denied.

The sections of The Borough Code, Act of Feb. 1, 1966, P.L. (1965) , No. 581, upon which the appellant relied for relief are:

Section 1402, 53 P.S. ยง 46402: "(a) All contracts or purchases in excess of one thousand dollars ($1,000),*fn1 except those ...


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