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TOWNSHIP SOUTH FAYETTE v. COMMONWEALTH PENNSYLVANIA (04/19/83)

decided: April 19, 1983.

TOWNSHIP OF SOUTH FAYETTE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, ROBERT BLOOM, THE SECRETARY OF REVENUE ET AL., RESPONDENTS



Original jurisdiction in case of Township of South Fayette v. Commonwealth of Pennsylvania, Robert Bloom, The Secretary of Revenue; Michael Browne, The Insurance Commissioner; Al Benedict, Auditor General; and R. Budd Dwyer, State Treasurer.

COUNSEL

Timothy P. O'Reilly, McArdle Caroselli, Spagnolli & Beachler, for petitioner.

Michael L. Harvey, Deputy Attorney General, with him, Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation, and LeRoy S. Zimmerman, Attorney General, for respondents, Robert Bloom, Secretary of Revenue and Michael L. Browne, Insurance Commissioner.

Vincent X. Yakowicz, with him, R. Budd Dwyer, for State Treasurer, R. Budd Dwyer.

Charles D. Shields, Jr., Deputy Counsel, with him, Lenora M. Smith, Chief Counsel, for Al Benedict, Auditor General of the Commonwealth of Pennsylvania.

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Craig. Concurring and Dissenting Opinion by Judge Doyle.

Author: Craig

[ 73 Pa. Commw. Page 497]

In this original jurisdiction matter, these preliminary objections now before us challenge the Township of South Fayette's petition for review in the nature of a complaint in mandamus, which seeks an order to require the Secretary of Revenue, the Insurance Commissioner, the Auditor General and the State Treasurer

[ 73 Pa. Commw. Page 498]

    to take all actions necessary to require foreign fire insurance companies to report accurately the location, by municipalities, of all foreign fire insurance applications as required by section 2 of the Act of June 28, 1895, P.L. 408, as amended, 72 P.S. ยง 2262 (section 2262). That section provides that the Commonwealth must pay annually to the treasurers of its municipalities the entire proceeds of the 2% tax paid upon premiums by foreign fire insurance companies, and requires each recipient municipality to pay the amount it receives to the relief fund association or pension fund covering the fire companies in the municipality.*fn1

[ 73 Pa. Commw. Page 499]

Specifically, the township alleges that it has not been receiving its proportionate share of this tax, known as the foreign fire insurance premiums tax, because the named state officials have not prevented the foreign fire insurance companies from allowing its insurance recipients to designate the post office area name on their applications as the recipient municipality, rather than the municipality where the insured property actually is located. Because the delineation of post office areas does not match actual municipal boundaries, the township alleges that it has received less than its proportionate share of the tax. Thus,

[ 73 Pa. Commw. Page 500]

    as relief, the township seeks a mandamus order to compel state officials to insure compliance with section 2262, and, in addition, it has requested an impoundment of all foreign fire insurance premiums on funds to be paid to the municipalities abutting the township, until the reporting insurance companies make an accurate and complete report as required by section 2262.

In response, the state officials have filed preliminary objections, alleging that: (1) the township lacks standing, (2) the township has failed to join indispensable parties, and (3) the township has failed to state a cause of action as to each official. We will consider each of the objections under separate headings.

Standing

In first addressing the standing objection, we note that our Supreme Court, in William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), held that standing requires an aggrieved party showing a substantial, direct and immediate interest in the subject matter of the litigation. The requirement of a "substantial interest" simply means that there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. The requirement of a "direct interest" means that the person claiming to be aggrieved must show causation of harm to his interest by the matter of which he complains. The nature of the connection between the injury complained of and the injury to the person challenging it is the concern of the "immediate interest" element. 464 Pa. at 195, 346 A.2d at 282.

The state officials contend that the language of section 2262(a), which provides that each municipality

[ 73 Pa. Commw. Page 501]

"shall forthwith pay the amount received to the relief fund association of or the pension fund covering the employees of the fire department . . ." indicates that the municipality has no discretion in withholding the funds and is thus merely a conduit for the funds. Furthermore, the officials assert that the firemen's associations are the real aggrieved parties and that the township, in attempting to represent the fiduciary interest of its residents, has no standing.

However, unlike the Township of Upper Moreland v. Department of Transportation, 48 Pa. Commonwealth Ct. 27, 409 A.2d 118 (1979); Borough of Valley-Hi Incorporation Case, 33 Pa. Commonwealth Ct. 180, 381 A.2d 204 (1977), and Snelling v. Department of Transportation, 27 Pa. Commonwealth Ct. 276, 366 A.2d 1298 (1976), upon which the state officials rely, the township here is not generally representing itself as the fiduciary of the public interest with no express or implied mandate to do so. Rather, the township has specific statutorily prescribed responsibilities to offer fire protection to its residents. See, e.g., section 1502 of the First Class Township Code.*fn2

[ 73 Pa. Commw. Page 502]

Given this statutorily prescribed responsibility, the township's interest in fire protection resembles the environmental interest of a second class township, discussed recently in Franklin Township and County of Fayette v. Department of Environmental Resources Page 502} and Elwin Farms, Inc., Pa. , 452 A.2d 718 (1982), where our Supreme Court concluded that the provisions of the Second Class Township Code, which charged Franklin Township with a variety of duties dealing with the regulation of garbage and refuse and with the duty to promote public health, safety, morals and general welfare of the township, were sufficient statutory powers and duties to confer standing upon them to challenge the Department of Environmental Resources' issuance of a permit for solid waste disposal to Elwin Farms.

Furthermore, in the situation before us, the legislature expressly recognized the municipality's role in distributing the foreign fire insurance premium tax by providing in section 2262(a), that before a municipality shall receive this tax from the State Treasurer, the municipality "shall first certify to the Auditor General that the fire department or fire company or companies of such near or adjacent [municipality] afford fire protection to the inhabitants of [that municipality]. . . ." Our Superior Court recognized that involvement of a municipality in applying the proceeds of this tax:

The manner in which the fund was to be set up or administered was left by the legislature to the municipalities.

Commonwealth v. Souder, 172 Pa. Superior Ct. 463, 470, 94 A.2d 136, 139 (1953), aff'd 376 Pa. 78, 101 A.2d 693 (1954).

[ 73 Pa. Commw. Page 503]

Therefore, the township, given its active role in developing fire protection by, among other means, designating the recipients of this tax, ...


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