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decided: April 19, 1983.


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.


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. § 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.


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, has standing to bring this action.*fn3

Indispensable Parties

The township alleges that the post offices serving it and its neighboring municipalities*fn4 do not reflect the actual boundaries of the municipalities, and requests that this court impound all insurance funds paid to those municipalities until the named state officials resolve the discrepancy, which the township asserts is resulting in the loss of its fair share of the tax revenues.

In response, the state officials contend that the municipalities surrounding the township's borders are indispensable parties, and that the township's failure to join them constrains us to dismiss the complaint, citing Columbia Gas and Transmission Co. v. Diamond Fuel Co., 464 Pa. 377, 346 A.2d 788 (1975) (failure to join indispensable parties deprives a court of jurisdiction).

Recently, our Supreme Court, in Mechanicsburg Area School District v. Kline, 494 Pa. 476, 431 A.2d 953 (1981), noted that:

The determination of an indispensable party question involves at least these considerations:

(1) Do absent parties have a right or interest related to the claims?

[ 73 Pa. Commw. Page 504]

(2) If so, what is the nature of that right or interest?

(3) Is that right or interest essential to the merits of the issue?

(4) Can justice be afforded without violating the due process rights of absent parties?

Id. at 481, 431 A.2d at 956.

Mechanicsburg involved preliminary objections by various state officials to a school district's complaint in equity, which sought to compel those officials to calculate the income valuation of that district in accordance with state funding statutes. At issue was whether all the other school districts of this Commonwealth were indispensable parties to the action. The court said:

The other school districts had a right under [the Act] to a correct and accurate determination of the amount of subsidy granted them. This right is the same as that of [appellant school district]. It is not one of entitlement to a determined portion of the total subsidy, but rather to a sum to be determined by correct computations of the Secretary of Education in accordance with the state school subsidy formula. . . .

Id. at 482, 431 A.2d at 956. Noting that each school district had "a vested right to receive the benefit of the use of correct process by the state officials identified in the Code [and] not a vested right to receive a fixed or determined sum of money. . . ." Id. at 482, 431 A.2d at 957, the court held that the other school districts were not "essential" to the determination of the issue of ascertaining the correct computation.

The school district subsidy formulas at issue in Mechanicsburg required complex calculations of numerous

[ 73 Pa. Commw. Page 505]

    factors in which the school districts were often measured against each other.*fn5 In contrast, the calculations of the foreign fire insurance tax simply involves a determination of the municipality in which each insurance applicant resides. Because the competing concerns of other school districts did not require their categorization as indispensable parties in Mechanicsburg, the more simple computation involved here, requiring no weighing of statewide averages, compels us to conclude that other municipalities are not indispensable parties.

Moreover, the school district's complaint in Mechanicsburg sought to enjoin the state officials from paying the final installment of school subsidies for the school year in question. The potential reimbursement delay to the other Commonwealth school districts did not establish those districts as indispensable parties. Likewise, the township's request here to impound distribution of the tax receipts until a policy is established to ensure compliance with section 2262, should not establish the neighboring municipalities as indispensable parties, notwithstanding the distinction that the township named only its neighboring municipalities, rather than all municipalities in the state.

Therefore, we conclude that the township did not fail to join indispensable parties.*fn6

[ 73 Pa. Commw. Page 506]

Insurance Commission, under sections 506 and 507 of the Insurance Company Law,*fn8 has the responsibility of requiring insurance companies to report correctly the location of the insured property.

Section 506 of the Company Law sets forth the requirements of fire insurance policies. Subsection (8) of that section states:

In addition to the other provisions of this section, no foreign fire insurance company shall issue a policy affording fire insurance, as described in this section, on property in this Commonwealth, unless such policy contains the exact name of the [municipality] wherein the insured property is located in addition to the mailing address for each such insured property. (Emphasis added.)

Section 507 of that Law, 40 P.S. § 637, grants the Insurance Commissioner the authority to enforce the provisions of section 506:

Upon satisfactory evidence that any person, corporation, or insurance company, association or exchange is issued, or caused to be issued, any policy or contract of fire insurance on property situated in this Commonwealth contrary to the provisions of section 506 of this Act [40 P.S. § 636], the Insurance Commissioner may, in his discretion, take, against the offending party, any one or more of the following courses of action: (1) Suspend or revoke the license of such offending person, corporation or insurance company, association or exchange; (2) refuse, for a period of not to exceed one year thereafter, to issue a new license

[ 73 Pa. Commw. Page 508]

    to such offending person, corporation or insurance company, association or exchange; (3) impose a penalty of not more than $1,000 for each violation of said section. (Emphasis added.)

The Insurance Commissioner asserts that he may enforce only the requirements pertaining to insurance policies, and that he has no authority to enforce tax reporting requirements of insurance companies. Moreover, he contends that his authority to enforce section 506 is explicitly discretionary, which precludes the use of mandamus to compel such enforcement. See Pennsylvania Tavern Association v. Liquor Control Board, 472 Pa. 567, 372 A.2d 1187 (1977).

In addition, the township asserts that the Secretary of Revenue, under section 2262, has the responsibility of collecting and distributing taxes of foreign fire insurance companies. Section 2262 provides, in relevant part:

The amount to be paid to each of the treasurers of the several [municipalities] shall be based upon the return of said two percentum tax upon premiums received from foreign fire insurance companies doing business within the said [municipality], and shall be proportionate to the premiums received by such companies on account of insurance written upon property located in such [municipality], as shown by the report made in the Department of Revenue. (Emphasis added.)

The Secretary of Revenue contends that, although he is authorized to enforce reporting requirements of foreign fire insurance companies, he is under no mandatory duty to eliminate every reporting violation.*fn9

[ 73 Pa. Commw. Page 509]

Contending that he is limited by resources in conducting investigations, the Secretary of Revenue asserts that Mellinger v. Kuhn, 388 Pa. 83, 130 A.2d 154 (1957) (because enforcement of the parking lots was discretionary, an action in mandamus could not be maintained to prosecute a street vendor for parking violations), is controlling.

Finally, the township has joined as defendants the Auditor General, who participates in the issuance of funds to municipalities under section 2262, and the State Treasurer, who issues checks for payment of the taxes levied.

In response, the Auditor General asserts that under the Insurance Act, the Insurance Commissioner, not the Auditor General has discretion to take action against any insurance company for issuing any policy or contract of fire insurance which is contrary to the provisions of section 507 of that Act.*fn10 Also, under section 2262, the Department of Revenue not the Auditor General must submit reports concerning distribution

[ 73 Pa. Commw. Page 510]

    of the tax. Thus, because section 706 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 246, provides that the powers and duties of the Auditor General are those that are imposed upon him by the constitution and laws of the Commonwealth, he contends that the Insurance Act does not impose any duties upon him, and that, therefore, he not only is not required to oversee the collection of the tax, but he has no discretion to do so.*fn11 Because those arguments constitute a correct statement of the applicable laws, we must agree that a mandamus action here cannot include the Auditor General.

Likewise, although section 2262 does provide that the State Treasurer shall pay to the treasurers of various municipalities the net proceeds of the tax paid upon premiums by foreign fire insurance companies, that section indicates that such proceeds shall be based on reports made to the Department of Revenue. Thus, because the complaint does not allege that the State Treasurer is distributing the funds contrary to law, that he has the duty or discretion to ensure that these reports are being made correctly, or that he possesses any duty, responsibility, power or authority with respect to the administration or implementation of the Insurance Act, we must conclude that

[ 73 Pa. Commw. Page 511]

    the township has failed to state a claim upon which relief can be granted against the State Treasurer.*fn12

However, as to the demurrers of the Secretary of Revenue and the Insurance Commissioner, arguing that any enforcement powers they have are discretionary, we find our Supreme Court's decision in Hotel Casey Co. v. Ross, 343 Pa. 573, 23 A.2d 737 (1942), applicable. In that case, a hotel, following a decision by our Supreme Court that hotels operating dining rooms for the convenience of their guests were not subject to the payment of the restaurant mercantile license tax, applied to the Pennsylvania Board of Finance and Revenue for a refund of taxes paid under an erroneous interpretation of that tax. The board had argued that under the applicable statute,*fn13 it had complete discretion to determine whether the refund shall in fact be made. The court responded to this argument and said:

It would seem both illogical and unreasonable to assume that, when the legislature attempted to correct a rigor of the law that caused an injustice and in so acting made it the duty of one of its fiscal agents to determine whether a tax had been collected to which the state was not rightfully or equitably entitled and made specific provision for a refund or credit in the event of such a finding, it intended only such illusory relief as would leave the granting of the refund to the unlimited discretion of the agency. . . . Consequently, where a statute directs the doing

[ 73 Pa. Commw. Page 512]

    of a thing for the sake of justice the word "may" means the same thing as the word "shall". The principle is thus stated in Supervisors, Rock Island Co. v. United States, 71 U.S. 435, 446, 18 L. Ed. 419; "The conclusion to be deduced from the authorities is, that where power is given to public officers and the language of the act before us, or in equivalent language -- whenever the public interest or individual rights call for its exercise -- and the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given not for their benefit, but for his. It is placed with the depositary to meet the demands of right, to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remedyless. In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose "a positive and absolute duty."

Id. at 579, 23 A.2d at 740.

Likewise, the requirements of the Company Law and section 2262, when read together, that the Insurance Commissioner require insurance companies to ensure that insurance policies reflect the "exact name of the [municipality] wherein the insured property is located,"*fn14 and the requirements, under section 2262, that the Department of Revenue make a report allocating the proper distribution of the foreign insurance firemen's tax, indicate that the legislature intended that those agencies protect the rights of firemen's relief fund associations and municipalities.

[ 73 Pa. Commw. Page 513]

Thus, assuming the facts to be as pleaded,*fn15 mandamus here is a proper remedy:

If the facts set forth in the petition are found to be true, the commission is required to perform a purely ministerial act, to wit, to direct refund or a credit. There would therefore seem to be no question but that mandamus is the proper remedy.

Id. at 483, 23 A.2d at 742.*fn16

Therefore, the demurrer aspect of the preliminary objections of the State Treasurer and the Auditor General are sustained, and those of the Insurance Commissioner and the Secretary of Revenue are overruled.


Now, April 19, 1983, the preliminary objections of Robert Bloom, Secretary of Revenue of the Commonwealth of Pennsylvania, and Michael L. Browne, Insurance Commissioner of the Commonwealth of Pennsylvania, paragraphs 1-11, inclusive, are overruled.

The preliminary objections of Al Benedict, Auditor General of the Commonwealth of Pennsylvania, paragraphs 1-12, inclusive, are sustained.

The preliminary objections of R. Budd Dwyer, State Treasurer of the Commonwealth of Pennsylvania, are determined as follows:


Paragraphs 1-8, inclusive, are overruled.

[ 73 Pa. Commw. Page 514]

Indispensable and Necessary Parties

Paragraphs 9-15, inclusive, are overruled.


Paragraphs 16-24, inclusive, are sustained. Paragraphs 25-27, inclusive, a motion for more specific pleadings, are thereby moot.

Amended Pleadings

Paragraphs 1-9, inclusive, of the State Treasurer's amended pleadings, which supplement paragraphs 9-15 of his original preliminary objections regarding the indispensable party issue, are overruled.


Preliminary objections of Treasurer and Auditor General sustained. Preliminary objections of Insurance Commissioner and Secretary of Revenue overruled.

Concurring and Dissenting Opinion by Judge Doyle:

I join with the majority but would also find that the neighboring municipalities are indispensable parties and would insist on their joinder under the applicable Rules of Civil Procedure. Unlike in Mechanicsburg, any finding here that the Township of South Fayette is entitled to additional tax revenues, would diminish the revenues which would accrue to the surrounding municipalities.

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