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MUNICIPALITY MT. LEBANON v. JOHN L. ERSKINE ET AL. (10/19/84)

decided: October 19, 1984.

THE MUNICIPALITY OF MT. LEBANON, A HOME RULE COMMUNITY, AND JAMES P. CAIN, MANAGER/SECRETARY OF THE MUNICIPALITY OF MT. LEBANON, APPELLANTS
v.
JOHN L. ERSKINE ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of John L. Erskine, Margaret Cary Smith, Michele M. Sorensen, Catherine M. Anderson and Mary Sue Johnson v. The Municipality of Mt. Lebanon, a home rule community, and James P. Cain, Manager/Secretary of the Municipality of Mt. Lebanon, No. GD-84-6341.

COUNSEL

Edwin L. Klett, with him, Robert L. Byer, Eckert, Seamans, Cherin & Mellott, for appellants.

Richard DiSalle, with him, Templeton Smith, Jr. and Thomas W. Corbett, Jr., Rose, Schmidt, Dixon & Hasley, and Myrna P. Field, of counsel, for appellees.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 85 Pa. Commw. Page 492]

The Municipality of Mt. Lebanon appeals a decision of the Court of Common Pleas of Allegheny County granting peremptory judgment on a mandamus complaint. The petitioners, as members of a committee formed pursuant to the Mt. Lebanon Home Rule Charter, had filed the complaint seeking to compel the secretary of Mt. Lebanon to provide them with blank initiative petitions. We must determine whether the petitioners had standing to seek mandamus and whether the trial court erred in refusing to allow the municipal authorities to consider the substantive merits of the proposed initiative before issuing the petition blanks.

The committee had filed with the municipal secretary an affidavit requesting the issuance of blank petitions, the beginning of the process under the Home Rule Charter by which citizens may place proposed ordinances, or initiatives, before the municipal commission and the voters.*fn1 The secretary refused the request, stating that the affidavit was defective

[ 85 Pa. Commw. Page 493]

    because it was untimely and concerned a fiscal issue which was not properly subject to initiative or referendum procedures.*fn2

On the request for mandamus, the trial court, through Judge Silvestri, granted peremptory judgment and ordered the secretary to deliver the blank petitions.

Initially, Mt. Lebanon contends that the petitioners lack standing to maintain the mandamus action because they have no beneficial interest in the performance of the public duty distinct from that of the general public.

Although the municipality's brief correctly sets forth the beneficial interest standard applicable to mandamus actions, citing Dombrowski v. Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968),*fn3 at that juncture Mt. Lebanon did not have the benefit of this court's recent opinion in Aiken v. Radnor Township Board of Supervisors, 83 Pa. Commonwealth Ct. 190, 476 A.2d 1383 (1984).

There, Judge Blatt, writing for the court, determined that members of a committee formed under the Radnor Township Home Rule Charter "must be considered to have an interest distinct from that of the remainder of the townspeople in seeing [the charter provisions] followed." Aiken, 83 ...


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