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CITY MCKEESPORT AND JOHN E. PRIBANIC v. THOMAS J. FULLARD (09/23/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 23, 1976.

CITY OF MCKEESPORT AND JOHN E. PRIBANIC, APPELLANTS
v.
THOMAS J. FULLARD, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of The City of McKeesport and John E. Pribanic v. Thomas J. Fullard, No. GD 75-28975.

COUNSEL

P. Jerrome Richey, with him David M. Priselac, for appellant.

Mord C. Taylor, Jr., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt. Judge Crumlish, Jr. concurs in the decision only.

Author: Blatt

[ 26 Pa. Commw. Page 394]

On November 6, 1973, the voters of the City of McKeesport (City) elected John E. Pribanic as mayor of the City for a four-year term beginning in January, 1974 and, at the same time, they adopted a home rule charter pursuant to the provisions of the Home Rule

[ 26 Pa. Commw. Page 395]

Charter and Optional Plans Law*fn1 (Act 62). The new charter was to take effect on January 5, 1976. In February, 1975, the City Clerk and City Solicitor filed an amicable action in mandamus to have the Court of Common Pleas of Allegheny County determine which elected offices under the new charter, if any, would be filled at the next general election in November, 1975. On February 13, 1975, the lower court decided: (1) that the voters of the City had adopted the home rule charter filed on August 23, 1973 with the City Clerk and certified to the county board of elections; (2) that a new mayor would be elected at the November, 1975 election; and (3) that the present mayor*fn2 and two other members of council whose terms did not expire at the end of 1975 would continue in office as members of council pursuant to Sections 303 and 702 of the charter*fn3 with the same compensation as provided at the time of their election. No appeal was taken from this decision. Pribanic filed as a

[ 26 Pa. Commw. Page 396]

    candidate for the Democratic nomination for mayor at the spring primary in 1975 and won the nomination, but he lost the mayoral election in November, 1975 to Thomas J. Fullard.

On December 15, 1975, Pribanic filed a complaint*fn4 in equity against Fullard in the Court of Common Pleas of Allegheny County asking the court to order that he (Pribanic) should "hold title to the office of Mayor of the City of McKeesport for the remainder of the term to which he was elected, until the first Monday in January, 1978." Fullard filed preliminary objections which alleged: (1) that the proper procedure to determine the title to an elected office was quo warrantor, not a complaint in equity; (2) that Pribanic was guilty of laches; and (3) that the complaint was an improper attempt to appeal the court order of February 13, 1975. The lower court held a hearing and thereafter sustained Fullard's objections and dismissed the complaint. Pribanic has now appealed, and we must affirm the lower court.

Our review of the lower court's decision has been made very difficult by its failure to file an opinion in this case. We believe, however, that its decision was correct and that the interests of the people of the City of McKeesport will be better served by our final disposition of this case rather than by a remand to the lower court for the entry of an opinion.*fn5

[ 26 Pa. Commw. Page 397]

Quo warrantor is the sole and exclusive method to try title or right to public office*fn6 and can be brought by an Attorney General, a District Attorney, or "a person who has a special right or interest . . . or [who] has been specially damaged." Mayer v. Hemphill, 411 Pa. 1, 6, 190 A.2d 444, 446 (1963); DeFranco v. Belardino, 448 Pa. 234, 292 A.2d 299 (1972). It is clear that Pribanic had a special interest in determining title to the office of mayor and, therefore, he could have instituted a proceeding in quo warrantor. We believe that Pribanic's failure to bring the action in quo warrantor is fatal to his cause. See League of Women Voters of Lower Merion and Narberth v. Lower Merion Township Board of Commissioners, 451 Pa. 26, 301 A.2d 797 (1973).

Furthermore, our Supreme Court has held that

"[l]aches arises when a defendant's position or rights are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be an injustice to permit presently the assertion of a claim against him."

[ 26 Pa. Commw. Page 398]

Judge Crumlish, Jr. concurs in the decision only.

Disposition

Affirmed.


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