Frank P. Lawley, Jr., Chief Counsel, Frank A. Woelfling, Deputy Counsel, Dept. of Auditor Gen., Robert P. Meehan, Deputy Counsel, Lester Eisenstadt, Deputy Auditor Gen. and Chief Counsel, Harrisburg, for appellant.
James L. Weisman, Weisman, Passafiume, Swartz & Trimm, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy and Manderino, JJ., filed Opinions in Support of Affirmance. Nix, J., would affirm without modification the Order of the Commonwealth Court. Roberts, J., filed an Opinion in Support of Reversal in which Eagen, C. J., and O'Brien, J., joined.
The Court being equally divided, the Order of the Commonwealth Court is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
I respectfully disagree with the views set forth in the opinion in support of reversal. In my view, an award of interest is permissible as an element of damages which may be recovered where a writ of mandamus directs the payment of a sum of money. Compare Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 432-34, 336 A.2d 609 (1975); Mauch v. Pittsburgh Pension Board, 383 Pa. 448, 119 A.2d 193 (1956); Carbondale City School Dist. v. Fidelity & Deposit Co. of Maryland, 346 Pa. 491, 31 A.2d 279 (1943). Whether interest should be allowed in a given case is properly a matter for the discretion of the trial court. See Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 409-11, 276 A.2d 542 (1971); McDermott v. McDermott, 130 Pa. Super. 127, 130, 196 A. 889 (1938). The Commonwealth Court (the trial court here) allowed interest, and I cannot say after a review of the record that it abused its discretion in so doing. I would affirm.
Opinion IN SUPPORT OF AFFIRMANCE
The opinion in support of reversal correctly states that the damage provision of the Mandamus Act was intended to make whole persons injured as the result of acts or omissions of public officials. Despite the fact that denying appellee interest on the money will not make appellee whole, the opinion in support of reversal ignores the ...