decided: February 21, 1985.
EQUITABLE GAS COMPANY AND PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEES,
CITY OF PITTSBURGH, LOUIS R. GAETANO, DIRECTOR, DEPARTMENT OF PUBLIC WORKS, CITY OF PITTSBURGH, AND GEORGE JACOBY, TREASURER, CITY OF PITTSBURGH, APPELLANTS
No. 71 W.D. Appeal Docket 1983, Appeal from the Order of the Commonwealth Court dated September 19, 1983,*fn* entered at No. 97 C.D. 1983
D.R. Pellegrini, City Sol., Marvin A. Fein, Deputy City Sol., Pittsburgh, for appellants.
Lawrence B. Nydes, Carroll F. Purdy, Pittsburgh, for Equitable Gas Co.
Richard S. Herskovitz, Harrisburg, for Pa. Public Utility Com'n.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a dissenting opinion.
[ 507 Pa. Page 56]
This is an appeal from an Order of the Commonwealth Court dismissing preliminary objections and granting peremptory judgment in mandamus for Equitable Gas Company ("Equitable") and the Pennsylvania Public Utility Commission ("PUC") against the City of Pittsburgh ("City"). The result reached by the Commonwealth Court seriously undercuts a carefully designed legislative scheme intended to provide the municipality with a right of set-off against persons having claims or accounts against the political subdivision. The Commonwealth Court has also ignored the clear pronouncements of this Court in setting forth the prerequisites for the issuance of mandamus. We are therefore constrained to reverse the instant order and to remand the matter to the Court of Common Pleas of Allegheny County for resolution.
This case arose out of two separate proceedings before the PUC in which the City was ordered to reimburse Equitable a total of $114,890.67 for the latter's relocation costs in connection with the construction of new City bridges. These orders were entered against the City on August 10, 1981 and December 31, 1981. No appeal was taken from these orders. Subsequently, in 1982 when presented with invoices from Equitable, the City made a demand for payment
[ 507 Pa. Page 57]
from Equitable of annual permit fees totaling $208,620.00 and informed Equitable that a set-off in the amount owed under the PUC orders would be made. Equitable rejected this arrangement and demanded payment of its claimed debt by instituting an action in the Commonwealth Court in mandamus against the City for a total amount of $114,890.67.
The Commonwealth Court ruled sua sponte on January 14, 1983 that it did not have jurisdiction over the action under 42 Pa.C.S. § 761(c) because the PUC was not a party to the action, and ordered the case transferred to the Court of Common Pleas of Allegheny County. Equitable then filed an application for reconsideration on January 28, 1983 stating that it intended to petition the PUC to join as a party-petitioner. On February 1, 1983, while that application was pending, the City informed Equitable that it was bound by statute, Act of July 1, 1937, P.L. 2611, as amended, 53 P.S. §§ 7231 et seq. (1972), to set-off the orders against the amount Equitable owed to the City. The City also stated that under section 7233, Equitable was required to enter into an agreement with the City and that should it fail to do so, the City would take action pursuant to section 7234. The City instituted an action for set-off in the Common Pleas Court of Allegheny County upon Equitable's failure to recognize the City's right of set-off.
The Commonwealth Court on March 4, 1983 stayed its previous order directing transfer of the matter to the court of common pleas, pending the PUC response to the joinder petition. On May 20, 1983 the PUC requested the right to join as party-petitioner and that request was granted by the Commonwealth Court. Thereafter, the PUC filed a motion for peremptory judgment which was also granted. We are now called upon to consider the propriety of the grant of that motion, exercizing jurisdiction pursuant to 42 Pa.C.S. § 723(a).
Mandamus is the proper remedy only where the plaintiff demonstrates (1) a clear legal right in the petitioner,
[ 507 Pa. Page 58]
(2) a corresponding duty in the respondent, and (3) absence of any other appropriate or adequate remedy. Shaler Area School District v. Salakas, 494 Pa. 630, 432 A.2d 165 (1981); Canonsburg General Hospital v. Department of Health of the Commonwealth of Pennsylvania, 492 Pa. 68, 422 A.2d 141 (1980); Bronson v. Commonwealth of Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050, 101 S.Ct. 1771, 68 L.Ed.2d 247 (1981); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979); Princeton Sportswear Corp. v. Redevelopment Authority, 460 Pa. 274, 333 A.2d 473 (1975); Valley Forge Racing Ass'n. v. State Horse Racing Comm'n., 449 Pa. 292, 297 A.2d 823 (1972). As stated in Commonwealth ex rel. McLaughlin v. Erie County, 375 Pa. 344, 100 A.2d 601 (1953), "mandamus will not issue unless the right of the petitioner is clear and specific; it can never be invoked in a doubtful case." Id., 375 Pa. at 351, 100 A.2d at 604. See also Chilli v. McKeesport School District, 334 Pa. 581, 583, 6 A.2d 99 (1939). Where doubt as to the plaintiff's right or the defendant's duty exists, the remedy is neither appropriate nor available. Leff v. N. Kaufman's, Inc., 342 Pa. 342, 346, 20 A.2d 786, 789 (1941). To succeed in an action of mandamus, the plaintiff must show an immediate, specific, well defined and complete legal right to the thing demanded. Purcell v. City of Altoona, 364 Pa. 396, 72 A.2d 92 (1950).
Moreover, Rule 1098 of the Pennsylvania Rules of Civil Procedure directs that peremptory judgment may be entered only where the right of the plaintiff is clear. Pa.R.C.P. 1098. Where there are triable issues of fact that requirement is not met. Shroyer v. Thomas, 368 Pa. 70, 81 A.2d 435 (1951).
There is no question that the City incurred a obligation with Equitable for relocation cost. The City has at all times
[ 507 Pa. Page 59]
conceded that point. What is in issue is the City's claim against Equitable. That claim is disputed and could not be adjusted in the mandamus action instituted by Equitable against the City in the Commonwealth Court. In essence the City is contending that the legislature has conferred in it a priority against those who are asserting claims against the City. An analysis of the pertinent statutes convincingly supports the City's view.
Under section 7232 a political subdivision is required to inquire whether a person having a claim against it is indebted to it for or on account of any delinquent taxes, municipal claims, or outstanding judgments. Section 7232 provides:
Every political subdivision, before approving or paying the claim or account of any person against such political subdivision, shall have power to inquire of the receiver of taxes of the political subdivision whether such person is indebted to it for or on account of any delinquent taxes or municipal claims. In any case where it shall be found that such person is so indebted to the political subdivision, or when such person is indebted to the political subdivision for any sum of money, which debt shall have been reduced to judgment in favor of such political subdivision, the approval and payment of such claim or account in whole or in part shall be withheld by the officer or employe authorized by law to make such approval or payment, until such person shall have entered into an agreement with the political subdivision as hereinafter provided.
53 P.S. § 7232.
The word "person" as used in this section is defined "to include any individual, association, copartnership, and corporation." 53 P.S. § 7231. This would bring Equitable within the definition of "person" as defined under the provision. Equitable does not contest that it would fall within the definition of "person."
[ 507 Pa. Page 60]
Equitable argues, however, that section 7232 should be construed as requiring all claims, including taxes and municipal claims to be reduced to judgment. Such an interpretation is contrary to accepted methods of statutory construction. A reading of section 7232, supra, discloses that the legislature intended to allow set-off in three situations: (1) delinquent taxes, (2) municipal claims, and (3) indebtedness to the political subdivision, " which debt shall have been reduced to judgment in favor of such political subdivision." 53 P.S. § 7232 (emphasis added). Appellant would have the emphasized language act as a gloss upon the entire section. We reject this argument because we must adhere to the accepted principle of English grammar, 1 Pa.C.S. § 1903(a), which states that unless plainly meant otherwise a modifying clause operates only upon the phrase preceding it. This has long been the mode of statutory construction in this jurisdiction. Chestnut Hill & Spring House Turnpike Road Co. v. Montgomery County, 228 Pa. 1, 76 A. 726 (1910).
We further support our view that delinquent taxes and municipal claims need not be reduced to judgments by noting that prior to 1943, section 7232 only contained language relating to delinquent taxes and municipal claims. The 1943 amendatory act added to this section the words, "or when such person is indebted to the political subdivision for any sum of money, which debt shall have been reduced to judgment in favor of such political subdivision." Act of April 15, 1943, P.L. 53, No. 32, § 1. With the insertion of the above-quoted language the legislature did not require that delinquent taxes and municipal claims be reduced to judgments, instead it increased the category of obligations for which the City could claim set-off. The statute as it stands simply means that the City can set-off delinquent taxes, municipal claims,*fn1 and judgments.
[ 507 Pa. Page 61]
Section 7232 establishes the political subdivision's priority against its creditors by authorizing its withholding of payment "until such persons shall have entered into an agreement with the political subdivision . . ." 53 P.S. 7232. The authority conferred under section 7232 is reinforced by section 7233*fn2 which permits the political subdivision to
[ 507 Pa. Page 62]
enter into such agreements necessary to assure payment by the indebted person. Under section 7233 the political subdivision can apply money due by crediting the account of such indebted person. Where one is recalcitrant and resists the statutory scheme the legislature provided that the political subdivision is authorized to continue to withhold payment of the person's claim and advise the indebted person that it has set off that claimed obligation against the City's claim. 53 P.S. 7233. Additionally, the political subdivision is vested with the authority to bring an action in the common pleas court for the enforcement of the set-off and the political subdivision's claim.*fn3
[ 507 Pa. Page 63]
It is apparent that the legislative intent to provide the political subdivision with a priority in collecting claims against those charging a counter obligation was not intended to be frustrated by the form of action chosen by those asserting the counter obligation. Here Equitable, instead of proceeding against the City in the Court of Common Pleas, chose to join the PUC and institute mandamus in the Commonwealth Court. In doing so, Equitable attempted to deny the City use of the set-off provisions since mandamus does not permit counterclaims. Pa.R.C.P. 1096.
Nor should a court which is without jurisdiction to entertain the political subdivision's set-off claim attempt to hear the matter if the effect of that court's exercise of its jurisdiction results in defeating the clear statutory scheme. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965). See generally Lakeland Joint School District Authority v. School District of Scott Township, 414 Pa. 451, 200 A.2d 748 (1964); McCandless Township v. Wylie, 375 Pa. 378, 100 A.2d 590 (1953).
Moreover, it is obvious that mandamus does not lie under the situation here presented. Relief in mandamus may not be granted where the result would be contrary to public policy. Taylor v. Abernathy, 422 Pa. 629, 222 A.2d 863 (1966); Travis v. Teter, 370 Pa. 326, 87 A.2d 177 (1952); Waters v. Samuel, 367 Pa. 618, 80 A.2d 848 (1951). The legislature has determined that this priority to the political subdivision in the collection of claims against those who asserted counter obligations was in the public interest. Mandamus may not be used to defeat that objective.
Additionally, the traditional prerequisites for the application of mandamus are not here applicable. There is not a clear legal right in Equitable since the City's claim, if sustained, would extinguish that obligation. There was not a corresponding duty on the part of the City to pay Equitable since the City had the right and the obligation to set
[ 507 Pa. Page 64]
off Equitable's obligation against the City's claim against Equitable. See Francis v. Corleto, supra. Finally, there was a remedy specifically designed by the legislature to cover this situation which provides for the resolution of all of the issues raised in this dispute.
Accordingly, the order of the Commonwealth Court granting peremptory judgment in favor of Equitable and PUC is reversed and the matter is remanded to the Court of Common Pleas for resolution.
HUTCHINSON, Justice, dissenting.
I dissent. The carefully designed legislative scheme in the Act of July 1, 1937, P.L. 2611, as amended by the Act of April 15, 1943, P.L. 53, No. 32, 53 P.S. §§ 7231-7235, was intended to authorize "political subdivisions, other than cities of the first class, to set-off delinquent taxes, municipal claims and judgments held thereby, and penalties, interest, and cost due thereon, against claims and accounts due by such political subdivisions" and to provide a procedure for doing so. Title of the Act of July 1, 1937, as amended Act of April 15, 1943. The legislature gave the municipalities this authority to aid in their collection of claims "arising out of, or resulting from a tax assessed, service supplied, work done, or improvement authorized and undertaken, by a municipality . . . ." Act of May 16, 1923, P.L. 207, § 1, as amended, 53 P.S. § 7101. It was never intended that this scheme be utilized to circumvent the exclusive authority vested in the Public Utility Commission "to order any [rail highway] crossing . . . to be relocated or altered", 66 Pa.C.S. § 2702, or to determine the allocation of related costs, 66 Pa.C.S. § 2704. See City of Philadelphia v. Philadelphia Electric Company, 504 Pa. 312, 473 A.2d 997 (1984). The majority opinion now invites all of Pennsylvania's municipalities to ignore the Commission's authority in similar
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fashion. By denying the Commission's right to mandamus, set forth in 66 Pa.C.S. § 502, in support of its own unappealed orders in this case, the majority has unwittingly but effectively eroded that body's authority in this type of case.
* This order was accompanied by a Memorandum which will probably not be published.