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LORETTA COTTONE ET AL. v. JANET KULIS ET AL. (06/01/83)

decided: June 1, 1983.

LORETTA COTTONE ET AL., APPELLANTS
v.
JANET KULIS ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Loretta Cottone, Grace White, Diana Forsythe, Jean W. Sykes and Rachel L. Hobson v. Janet Kulis et al., No. GD 82-1873.

COUNSEL

Edward C. Milburn, for appellants.

Walter F. Baczkowski, for appellees.

President Judge Crumlish, Jr. and Judges MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Dissenting Opinion by Judge MacPhail.

Author: Barbieri

[ 74 Pa. Commw. Page 524]

Loretta Cottone, Grace White, Diana Forsythe, Jean W. Sykes, and Rachel L. Hobson (Appellants) appeal here from an order of the Court of Common Pleas of Allegheny County sustaining a preliminary objection in the nature of a demurrer to their Complaint in Mandamus and dismissing their Petition for Peremptory Writ. We affirm.

Section 1701(b) of the Home Rule Charter (Charter) of the City of McKeesport (City) provides, in part, that

[t]he qualified voters of the City shall have power to require reconsideration by the Council of any adopted ordinance and, if the Council fails to repeal an ordinance so reconsidered, to approve or reject it at a City election, provided that such power shall not extend to the budget or capital program. . . .

Section 1702 of the Charter, in turn, states that "[a]ny five qualified voters may commence . . . referendum proceedings by filing with the City Clerk an affidavit stating they will constitute the petitioners' committee and be responsible for circulating the petition and filing it in proper form. . . ." Section 1702 further provides that upon the filing of a proper affidavit "the City Clerk shall issue the appropriate petition blanks to the petitioners' committee."

On January 7, 1982, Appellants submitted a proper affidavit to City Clerk, Janet Kulis, pursuant to the provisions of Section 1702 of the Charter, to initiate referendum proceedings on an ordinance the City Council enacted on December 14, 1981 (Ordinance 81-31) authorizing the sale of the City's water system to the Water Authority of the City of McKeesport (Authority).

[ 74 Pa. Commw. Page 525]

After reviewing the ordinance in question, however, Ms. Kulis refused to release the petition blanks on the ground that Ordinance 81-31 pertained to a capital program, and hence was exempted from the Charter's referendum procedures by the provisions of Section 1701(b). In response to this refusal to release the petition blanks, Appellants filed an action in mandamus against the City Clerk, the City's mayor and the City Council, and a Petition for Peremptory Writ and Order of Court requesting peremptory judgment pursuant to Pa. R.A.P. No. 1098. A hearing on this matter was subsequently conducted on February 3, 1982, and at this hearing Ms. Kulis submitted a preliminary objection in the nature of a demurrer. Thereafter, the court entered an order dismissing the complaint with respect to the mayor and the City Council members,*fn1 with a separate opinion and order sustaining the preliminary objection filed by Ms. Kulis. In its decision, the court concluded that Ordinance 81-31 fell within the Section 1701(b) capital plan program. The present appeal followed.

Before this Court, Appellants initially allege that under the provisions of Section 1702 of the Charter, the City Clerk had a mandatory duty to issue the petition blanks without any consideration of the nature of the ordinance involved, and that the court of common pleas ...


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