Appeal from the Order of the Court of Common Pleas of Delaware County in case of Ralph L. Douros, et al. v. Township of Newtown, et al., No. 85-1340.
Ralph L. Douros, appellant, for himself.
Robert J. Sugarman, Robert J. Sugarman & Associates, for appellees.
President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.
[ 108 Pa. Commw. Page 607]
Ralph L. Douros appeals from an order of the Court of Common Pleas of Delaware County which granted the Township of Newtown's motion for summary judgment and dismissed his complaint in mandamus. We affirm.
A corporation known as Joyfor, Incorporated (Joyfor), in which it is not alleged that appellant has any financial or other interest, was the owner of a tract of ground in Newtown Township (Township). It filed an application for lot subdivision approval and submitted plans to the Township Board of Supervisors (Supervisors). Subsequently, Joyfor and the Township entered into an extensive agreement, whereby Joyfor agreed to develop the tract in accordance with the terms set forth therein. One of the terms required Joyfor to "dedicate to the Township in fee simple absolute . . . a strip of land," adjoining a certain highway.
[ 108 Pa. Commw. Page 608]
On November 19, 1981, Joyfor, by deed signed by its president, Claude DeBotton, conveyed this strip of ground. This deed was accepted by the Supervisors. The deed was then given to the Township Manager, who maintained possession but never recorded the deed.
On January 28, 1985, Ralph L. Douros and Peter A. Tyrrell, Jr., plaintiffs below, brought this action in mandamus to compel the Township and the Supervisors to offer the deed of November 19, 1981 for recording in the Office of the Recorder of Deeds. On May 13, 1985, without having recorded the deed, the Township, by resolution, exchanged this land for another property which it believed provided the same purpose, and recorded the new deed in the Office of the Recorder of Deeds. On September 13, 1985, after the filing of responsive pleadings, the Township filed a motion for summary judgment, raising the issue of the plaintiffs' standing to bring the action. The trial court granted the motion and dismissed the plaintiffs' complaint.
The decision whether to issue a mandamus order is within the discretion of the trial court. Our scope of review is to determine whether the trial court abused its discretion or committed an error of law. Trinisewski v. Hudock, 90 Pa. Commonwealth Ct. 159, 494 A.2d 504 (1985).
The question which is dispositive of this issue is whether the plaintiffs below had an interest sufficient to allow them to maintain a mandamus action in their own names. Pennsylvania Rules of Civil Procedure 1091 and 1092, Pa. R.C.P. Nos. 1091 and 1092, dealing with the action of mandamus, simply deal with procedure. The commentary to these rules indicates that the rules do not ...