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THOMAS A. FLAHERTY v. CITY PITTSBURGH ET AL. (09/15/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 15, 1986.

THOMAS A. FLAHERTY, CONTROLLER OF THE CITY OF PITTSBURGH, APPELLANT
v.
CITY OF PITTSBURGH ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of City of Pittsburgh, a municipal corporation, et al. v. Thomas A. Flaherty, Controller of the City of Pittsburgh, No. GD 85-12952.

COUNSEL

David J. Armstrong, with him, David N. Neuhart and William D. Clifford, Dickie, McCamey & Chilcote, P.C., for appellant.

Deborah S. Miskovich, Assistant City Solicitor, with her, D. R. Pellegrini, City Solicitor, for appellees.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 100 Pa. Commw. Page 509]

Thomas E. Flaherty appeals an Allegheny County Common Pleas Court order denying his petition for a rule to show cause why peremptory judgment in mandamus against him should not be opened. We affirm.

Flaherty, Controller of the City of Pittsburgh (City), refused to countersign a contract between the City and Craig Auto Service and Towing, a private concern, because he concluded that there was cause to believe that there were bidding irregularities in the award of the contract. The City and the directors of five of its departments filed a complaint in mandamus which averred that, as this contract was duly authorized pursuant to Councilmanic action and funds sufficient to cover the costs of the contract were appropriated by City Council, Flaherty was duty-bound to countersign the contract. The common pleas court granted the City's motion for entry of peremptory judgment in mandamus against Flaherty.*fn1

Mandamus is an extraordinary remedy which only lies to compel performance of a purely ministerial act or mandatory duty on the part of a public officer. Edwards Engineering Corp. v. Davies, 80 Pa. Commonwealth Ct. 47, 471 A.2d 119 (1984). A ministerial act is defined

[ 100 Pa. Commw. Page 510]

    as "one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed." 17 McQuillen, Municipal Corporations ยง 51.19 (3rd ed. 1982).

Flaherty contends that, as Controller, he has the discretionary authority to refuse to countersign an otherwise duly executed contract, and therefore may not be compelled in mandamus to countersign. We disagree.

A controller is not entrusted with the duty of supervising other department's contracts, but is only to determine whether a department has exceeded its funding limit or diverted funds for a purpose not within the scope of its spending authority. Berks County Institution District v. Schoener, 383 Pa. 210, 117 A.2d 740 (1955).

Flaherty contends that his discretion to refuse to countersign the contract emanates from Section 161.09 of the Pittsburgh Code (Code) and Sections 404(f)(i) -- 407 of the Pittsburgh Home Rule Charter (Charter).*fn2 Upon review of these provisions, we do not find in

[ 100 Pa. Commw. Page 511]

    them any indication that the Controller may exercise discretionary judgment in examining these contracts.*fn3 These provisions simply obligate the Controller to see that the necessary appropriations are authorized and

[ 100 Pa. Commw. Page 512]

    available and do not exceed the scope of the Council's intent. Since these requirements have been fulfilled, Flaherty must perform the ministerial duty of counter-signing the contract. See Broadway Maintenance Corp. v. Hemphill, 408 Pa. 271, 182 A.2d 914 (1962). These provisions do not reveal any authority for the Controller to utilize his judgment concerning the propriety of the act to be performed.

Therefore, we hold that the common pleas court did not err in directing Flaherty to countersign the contract.

Affirmed.

Order

The appeal from the Allegheny County Common Pleas Court order, No. GD85-12952 dated August 13, 1985, is quashed. The Allegheny County Common Pleas Court order, No. GD85-12952 dated August 21, 1985, is affirmed.

Disposition

Affirmed.


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