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decided: July 17, 1972.


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Port Authority of Allegheny County, a municipal corporation, v. Peter F. Flaherty, Mayor of the City of Pittsburgh, No. 3778 January Term, 1972.


Gary H. McQuone, with him Ruffin, Hazlett, Perry and Lonergan, for appellant.

Frederick A. Boehm, First Assistant City Solicitor, with him Eugene B. Strassburger, III, Executive Assistant City Solicitor, Daniel M. Curtin, Assistant City Solicitor, and Ralph Lynch, Jr., City Solicitor, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 6 Pa. Commw. Page 137]

The Port Authority of Allegheny County (Authority) here sought judgment in mandamus compelling the mayor of the City of Pittsburgh to execute deeds conveying to the Authority certain premises in which the city has an interest. The premises are (1) a property included between parallel planes, each 33 feet wide, located respectively 826.08 and 854.25 feet above sea level, being an unused railway tunnel, and (2) a parcel adjacent to the unused railway tunnel, in the form of a parallelogram, containing 1358 square feet and lying between the tunnel and the tracks of the Penn Central Railroad. The deed of the first described property would convey "[a]ll of the interest of the City of Pittsburgh only" in the unused tunnel property. The deed for the second described property would grant a perpetual easement for the purpose of the erection by the Authority of an aerial structure for a rapid transit system. The parties agree that the city's title to the tunnel property was acquired at sheriff's sales, presumably upon municipal claims, and at treasurer's sales for delinquent taxes due the city and allegedly the Pittsburgh School District and the County of Allegheny. The small parcel at the tunnel entrance is part of a 52 acre tract conveyed to the city by a railroad company in 1959, subject to a covenant by the city that the tract should be used only as a public park and further subject to a right of re-entry by the railroad company and reversion of title upon breach of the covenant.

The deeds were presented to the mayor for execution by him pursuant to ordinances of City Council directing such execution by him and the Director of

[ 6 Pa. Commw. Page 138]

Lands and Buildings on behalf of the city.*fn1 Indeed, the ordinances were twice adopted, the second time by two thirds of council over the mayor's veto.*fn2 The mayor's veto of the first enactment was accompanied by a statement of his objection which objection did not include any of the matters raised in this suit in justification for his refusal to execute the deeds as directed by the ordinances.

The defendant mayor refused to execute the deeds and asserted in his Answer and New Matter the following interrelated reasons why he should not be compelled to do so by the judiciary: (1) that the city is trustee for the school district and Allegheny County, having obtained title at treasurer's or sheriff's sales for delinquent taxes or municipal claims due them as well as the city, and that the city may not convey the interests of others, and (2) that he has power to refuse to execute such assertedly invalid deeds.*fn3 The plaintiff filed its Reply to New Matter and then moved for summary judgment pursuant to Pa. R.C.P. No. 1098, authorizing such a judgment in mandamus. The court below issued a rule upon the defendant to show cause why the judgment should not be entered and the matter was set down for hearing. By the time of hearing almost four months had passed since the complaint was filed and almost three months since the filing of defendant's Answer and New Matter. By some means

[ 6 Pa. Commw. Page 139]

    or in some fashion not disclosed on the record, the plaintiff's motion for judgment was converted from an application under Pa. R.C.P. No. 1098 to a motion for summary judgment pursuant to Pa. R.C.P. No. 1035. The parties here agree that the motion was treated by them and the court as one pursuant to Pa. R.C.P. No. 1035 and the facts that a hearing was scheduled, affidavits filed and judgment eventually given to the nonmoving party all so indicate. We will so treat it.

As noted, the plaintiff filed affidavits, but no depositions or interrogatories or other evidential things were made a part of the record. However, it is represented to us by the plaintiff without contradiction by the defendant, that, after the hearing and before the court below entered its judgment, there was provided to it a copy of an executed quitclaim deed conveying Allegheny County's interest in the tunnel to the Authority and a copy of a ...

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