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APPEAL FROM ENACTMENT AN ORDINANCE INCREASING INDEBTEDNESS BOROUGH BLAKELY v. COMMONWEALTH PENNSYLVANIA (02/28/79)

decided: February 28, 1979.

IN RE: APPEAL FROM THE ENACTMENT OF AN ORDINANCE INCREASING THE INDEBTEDNESS OF THE BOROUGH OF BLAKELY, ETC. EDWARD GEREK, APPELLANT. EDWARD GEREK ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF COMMUNITY AFFAIRS ET AL., RESPONDENTS



Appeal from the Order of the Department of Community Affairs in case of Edward Gerek and Joseph Caterina, Individually and on behalf of the Electors, Citizens and Taxpayers of the Borough of Blakely v. Department of Community Affairs, Commonwealth of Pennsylvania, Borough of Blakely, Edward Ghilardi, Harold J. McCusker, Jr., Michael Hanuscik, Edward Alco, Dr. Stephen Kostage, Robert Nalevanko, Robert Klinko, Dominick York, Jr. and Edward L. Perucki, Mayor; and Original jurisdiction, No. 43 T.D. 1978, in case of Electors of the Borough of Blakely c/o Edward Gerek v. Borough of Blakely.

COUNSEL

John E. V. Pieski, for petitioners.

Chester Harhut and Carol Porell Cocheres, Assistant Attorney General, with them Henkelman, McMenamin, Kreder & O'Connell; Ellen Marie Coggins, Assistant Attorney General, and Gerald Gornish, Attorney General, for respondents.

Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 41 Pa. Commw. Page 2]

These two cases arising from the same circumstances were consolidated for argument before this

[ 41 Pa. Commw. Page 3]

Court. Both represent a challenge by the same taxpayer to the enactment by the Borough of Blakely of an ordinance increasing its indebtedness by issuing a general obligation note in the principal amount of $350,000.00.

On May 25, 1978, Edward Gerek (taxpayer), without benefit of legal counsel, filed a notice of appeal in the Court of Common Pleas of Lackawanna County. He alleged that the ordinance in question was invalid because the Borough of Blakely (Borough) had advertised the proposed ordinance for only two days before it was enacted on May 11, 1978, and that under Section 103 of the Local Government Unit Debt Act (Act),*fn1 a minimum of three days' public notice was required. Meanwhile, the Borough, as required by the Act, filed proceedings for approval of its action by the Department of Community Affairs (Department), which received the proceedings on May 15, 1978 and approved them on June 7, 1978. On June 28, 1978, after the taxpayer had retained an attorney, the Department received from the taxpayer a "Petition/Complaint for Declaratory Order" challenging the proceedings there. Also, the notice of appeal in the common pleas court was amended by changing the title of the matter from "Notice of Appeal" to "Petition for Review." By letter of July 5, 1978, the Department responded to the petition for a declaratory order by informing the taxpayer that the statutory time period in which to petition the Department for a declaratory order under the Act had expired. Moreover, the Department advised, the statutory time period within which to appeal its approval of the proceedings to this Court had also expired. On July 26, 1978, the common pleas court ordered the action which had been initiated there transferred to this Court.

[ 41 Pa. Commw. Page 4]

Presently before this Court are the petition for review at 1668 C.D. 1978, to which the Department and the Borough have filed motions to quash, and the transferred common pleas court action at 43 T.D. 1978, to which the Borough has filed a motion to dismiss. Because they are dispositive of these cases, we shall address only the motions to quash and to dismiss.

43 T.D. 1978

The Borough has moved to dismiss this transferred case because there is no provision under the Act for challenging its proceedings by initiating an action in a common pleas court or in this Court, because, although court review under the Act is "of the determination of the department," the action here was filed before the Department had approved the proceedings and the Department was ...


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