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JOHN S. WOLF v. FRANK M. TOMINAC (12/19/73)

decided: December 19, 1973.

JOHN S. WOLF, JAMES S. BREWSTER, HENRY E. SIMONE, GLENN EASTLAND, EARL H. STOCKDALE, J. K. KESSLER, WILLIAM S. DYSON, RICHARD L. RIGATTI, SAMUEL JOSEPH FAIR, MARY ANN FAIR, WILLIAM DOWNING, MELVIN F. WOODS, CHARLES A. NIX, PETER E. MIDOCK, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
FRANK M. TOMINAC, RAYMOND STANISZEWSKI, WILLIAM J. BARNES, M.D., JOHN L. FERBER, RICHARD J. STAMPAHAR AND THE TOWNSHIP OF O'HARA, A MUNICIPAL CORPORATION, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of John S. Wolf, James S. Brewster, Henry E. Simone, Glenn Eastland, Earl H. Stockdale, J. K. Kessler, William S. Dyson, Richard L. Rigatti, Samuel Joseph Fair, Mary Ann Fair, William Downing, Melvin F. Woods, Charles A. Nix, Peter E. Midock, for themselves and all others similarly situated, v. Frank M. Tominac, Raymond Staniszewski, William J. Barnes, M.D., John L. Ferber, Richard J. Stampahar, and the Township of O'Hara, a municipal corporation, Nos. SA 861 of 1971 and 2554 January Term, 1972.

COUNSEL

James Victor Voss, with him Joseph T. Kosek, Jr. and Neely and Voss, for appellants.

Francis P. Massco, Solicitor, for appellee.

Stanford A. Segal, with him Gatz, Cohen, Segal & Koerner, for amicus curiae, Western Pennsylvania Chiefs' of Police Association.

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

Author: Wilkinson

[ 11 Pa. Commw. Page 210]

On December 2, 1971, appellants commenced the two actions in the Court of Common Pleas of Allegheny

[ 11 Pa. Commw. Page 211]

County from which these appeals were taken. One, here identified as 1245 C.D. 1972, is in the form of a statutory appeal, contesting the validity of Ordinance 598 of appellee Township. The other, here identified as 1246 C.D. 1972, is in the form of a complaint in equity to enjoin the enforcement of Ordinance 598. Other than the prayer for relief, the allegations of the two complaints are identical and, initially, appellees filed identical preliminary objections in both actions.*fn1 The court fixed December 8, 1971, as the date for a hearing on the statutory appeal, as well as the date for the hearing on the request for a preliminary injunction. On December 8, 1971, and thereafter, a record of testimony and exhibits were produced before the lower court which required 400 pages of record to be prepared, exclusive of the pleadings and the opinions.

The transcript of the testimony and exhibits were filed in the equity action. On July 7, 1972, the learned court below dismissed the complaint in equity. On July 20, 1972, extensive exceptions were filed by the appellants to the "Findings, Conclusions, Determinations and Decree Nisi, filed July 7, 1972." On August 11, 1972, the parties filed a formal stipulation that the "record, exhibits, and testimony" in the equity action be incorporated into the statutory appeal. On December 6, 1972, reciting that the parties had agreed and stipulated that the statutory appeal could be determined on the basis of the same testimony taken in the equity action, the court entered an order dismissing the statutory appeal.

Procedurally, these two cases were presented in a very informal manner with regard to whether there was one or two particular cases before the court at any one time; nevertheless, at all critical times in the record, as

[ 11 Pa. Commw. Page 212]

    outlined above, appropriate actions were taken by counsel in each case to incorporate the other, except perhaps at the most critical point in the statutory appeal, here identified as 1245 C.D. 1972. We can find no exceptions filed to the court's order entered on December 6, 1972, dismissing the statutory appeal. No opinion was filed by the court below in the statutory appeal, nor was there any stipulation that the opinion in the equity action, including findings and conclusions, should be considered the opinion in the statutory appeal action. When the court en banc was constituted by having a judge specially assigned by the President ...


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