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HUGH H. AIKEN ET AL. v. RADNOR TOWNSHIP BOARD SUPERVISORS ET AL. (06/12/84)

decided: June 12, 1984.

HUGH H. AIKEN ET AL., APPELLANTS
v.
RADNOR TOWNSHIP BOARD OF SUPERVISORS ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Hugh H. Aiken, David K. Hart, Worth D. Phillips, Ronald M. Davis and H. Ross Watson, individual citizens v. Radnor Township Board of Commissioners and Mary S. Bentley, Radnor Township Secretary, No. 83-4870.

COUNSEL

Kristine F. Hughey, for appellants.

Eugene H. Evans, Goldberg, Evans and Herald, for appellees.

Judges MacPhail, Palladino and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 83 Pa. Commw. Page 191]

Hugh H. Aiken, David K. Hart, Worth D. Phillips, Ronald M. Davis and H. Ross Watson (appellants) appeal here an order of the Court of Common Pleas of Delaware County dismissing a mandamus action initiated to compel the township commissioners to record and publish an ordinance in accordance with the provisions of the Township of Radnor Home Rule Charter*fn1 (HRC).

The appellants are registered electors of the Township of Radnor who circulated petitions in June, 1982 proposing that an ordinance be adopted prohibiting

[ 83 Pa. Commw. Page 192]

    the township commissioners from expending funds or exerting official influence to oppose the completion of Interstate Route 476, the Blue Route.*fn2 Although the Secretary of the Township of Radnor, in accordance with Section 8.05 of the HRC, certified the petitions as valid, the Board of Commissioners (Commissioners) refused to act on the proposed ordinance. The appellants then filed the petition with the Board of Elections and, when that body also failed to follow the mandate of Section 8.05 of the HRC,*fn3 the appellants brought a mandamus action to compel the Board of Elections to place the proposed ordinance on the ballot.

In ordering the Board of Elections to comply with Section 8.05, the Court of Common Pleas of Delaware County added a sentence to the proposal which read as follows: "[i]f this Ordinance is adopted, it will be binding upon the Township and the Commissioners for at least two years." The ordinance, as altered by the court of common pleas, won the approval of a majority of the electors of the Township of Radnor in

[ 83 Pa. Commw. Page 193]

    the next general election. Thereafter, the appellants sought to have the Commissioners record and publish the ordinance pursuant to Section 8.05(D) of the HRC. Following the Commissioners' refusal to do so, the appellants initiated the present mandamus action in the court of common pleas.

The court sustained the Commissioners' preliminary objection in the nature of a demurrer, holding that the Commissioners could not now be ordered to record and publish the ordinance because that body was not a party to the earlier decision compelling the Board of Elections to place the proposed ordinance on the ballot. The Court also dismissed the complaint, finding that the appellants lacked standing to bring a mandamus action because they did not have a beneficial interest distinct from that of the general public. In addition, the court overruled the appellants' motion for peremptory judgment. The present appeal ensued.

We will first decide whether or not the court of common pleas erred in sustaining the Commissioners' preliminary objection in the nature of a demurrer. The Commissioners contend that the court's ruling was correct because they were not a party to that court's earlier order compelling the Board of Elections to place the proposed ordinance on the ballot. While we recognize this statement as true, we believe it to be irrelevant here.

The present appeal arose from a mandamus action instituted against the Commissioners, not the Board of Elections, after the Commissioners refused to record and publish an ordinance adopted pursuant to the HRC. We believe that some confusion might have resulted from the fact that the appellants' original complaint asked the court to hold the Commissioners in ...


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