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LOUIS WASHOWICH v. MCKEESPORT MUNICIPAL WATER AUTHORITY (01/30/86)

decided: January 30, 1986.

LOUIS WASHOWICH, MAYOR OF THE CITY OF MCKEESPORT, APPELLANT
v.
MCKEESPORT MUNICIPAL WATER AUTHORITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of McKeesport Municipal Water Authority v. Louis Washowich, Mayor of the City of McKeesport, No. 83-21519.

COUNSEL

Timothy P. O'Reilly, for appellant.

Walter F. Baczkowski, Liddle and Adams, for appellee.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 94 Pa. Commw. Page 510]

Louis Washowich (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County dismissing his petition to open judgment following the Court's granting of the McKeesport Municipal Water Authority's (Authority) motion for peremptory judgment in a mandamus action.*fn1 We affirm.

[ 94 Pa. Commw. Page 511]

The pertinent facts are not in dispute. On December 28, 1981, the City of McKeesport (City) enacted an ordinance which provided for the sale of the City's water distribution system to the Authority. The ordinance stated "[t]hat the proper officers are hereby authorized to execute any deeds, bills of sale, assignments or other documents required to affectuate [sic] the sale of real estate and personal property of the water works supply system upon the Authority tendering the said purchase price."*fn2 Appellant vetoed the ordinance, but his veto was overridden. On or about December 7, 1983, the Authority entered into a bond purchase agreement with CSM Security Corporation for the purchase of sufficient water revenue bonds to cover the transaction. A closing was scheduled for December 21, 1983 for the transfer of the appropriate funds to the City for the purchase of the water system. Appellant refused to execute the deed and bill of sale to the Authority. The Common Pleas Court entered peremptory judgment on December 23, 1983 ordering Appellant to sign the deed and bill of sale and deliver them to the Authority. Appellant's petition to open,

[ 94 Pa. Commw. Page 512]

    which is the subject of this appeal, concerns itself with this judgment.

The Authority argues that the appeal is moot because the Appellant signed the deed and bill of sale on December 23, 1983 as a result of the Common Pleas Court's order. This may be true, however, there is nothing on the record to indicate to this Court that the Appellant did indeed sign the documents. It is true that Appellant's counsel told the Court at the hearing of December 23, 1983, that "[w]e don't agree, but we will abide by Your Honor's ruling."*fn3 More is required to be displayed on the record before this Court can reach the conclusion that Appellant complied with the order. We must, therefore, reach the merits of the appeal.

Where a party appeals a denial of its petition to open a peremptory judgment, our scope of review is limited to determining whether the Common Pleas Court abused its discretion. Babcock School District v. Potocki, 71 Pa. Commonwealth Ct. 504, 455 A.2d 273 (1983), rev'd on other grounds, 502 Pa. 349, 466 A.2d 616 (1983). An abuse of discretion will be found only ...


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