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decided: January 17, 1989.


Appeal from the Order of the Deputy Secretary, Department of Community Affairs, in the case of In Re: Pleasant Valley School District / Michael Vianello, Marilyn C. Holson, Paul Weber, John G. Klement, James Newton, Richard Knedt, Herb Zorn and Mary Ann Zorn v. Pleasant Valley School District, Monroe County, Pennsylvania, LGUDA Docket No. 24, dated August 2, 1985.


Michael Vianello, for petitioners.

Daniel M. Corveleyn, Mervine, Brown, Newman, Williams & Mishkin, P.C., with him, Jens H. Damgaard and Donna M. J. Clark, Rhoads & Sinon, for respondents.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt. Judge MacPhail did not participate in the decision in this case.

Author: Blatt

[ 122 Pa. Commw. Page 614]

Property owners, residents, and/or taxpayers of the Pleasant Valley School District (petitioners)*fn1 appeal from the August 2, 1985 order of the Department of Community Affairs (DCA)*fn2 dismissing their complaint in this matter. We will affirm.

The petitioners' complaint challenged the application made by the Pleasant Valley School District (respondent or School District) in June of 1985 for approval of the issuance of general obligation bonds in the aggregate principal amount of $7,145,000. The purposes of the bonds are to refund the 1984 series of general obligation bonds, to fund a capital project consisting of the construction of alterations, additions and improvements to various school buildings, and to pay the costs and expenses of the issuance of the bonds. The petitioners challenged the proceedings conducted by the respondent in connection with the bond proposal on several grounds, which basically narrow down to challenges of failure to follow advertising requirements of Section 103

[ 122 Pa. Commw. Page 615]

    of the Local Government Unit Debt Act (Debt Act),*fn3 failure to make a copy of the proposed text of the bond resolution available for public review and violation of the "Open Meeting Law".*fn4

The School District responded by filing an answer and a petition to dismiss pursuant to 1 Pa. Code § 35.54.*fn5 Attached to the School District's petition to dismiss were affidavits to disprove the petitioners' allegations. It also filed a motion for expedited argument in connection with the petition to dismiss, which was granted.

A hearing was held on the petition to dismiss before a hearing examiner for the DCA, which was not attended by the petitioners. The DCA determined that the legal requirements of Section 103 of the Debt Act had been complied with and that it lacked jurisdiction to determine whether any violation of the "Open Meeting Law" had occurred. As a result, it granted the respondent's petition to dismiss. The petitioners then appealed to this Court.

The first issue raised by the petitioners is whether an agency may dismiss a complaint on demurrer*fn6 when

[ 122 Pa. Commw. Page 616]

    the complaint alleges violations clearly cognizable under the act administered by the agency. The pertinent allegations listed in the complaint are:

6). The 1985 bond proceedings of the District are invalid because the District failed to meet the preadoption advertisement requirements of the Debt Act in that the advertisement of the proposed financing resolution failed to state with specific certainty so as to put the public on notice the exact time, date and place of the proposed adoption.

7). The District failed to make a copy of the proposed and adopted resolution avaiable [sic] for public inspection as required by the Debt Act. Therefore the resolution is invalid.

8). The approval of the said resolution and the resolution itself were based on agreements and decisions made in meetings closed to the public and without the required public notice. Therefore, the resolution is invalid.

9). The District has violated the Open Meetings [sic] Law in regard to the proceedings and/or parts thereof by the School District Board for incurring the said bonded debt and its underlying requisites.

10). The District is in violation of Due Process and Other Rights of the Class regarding the propsed [sic] bond issue and its underlying requisites.

Original Record Item No. 3, Petitioners' Complaint. As noted above, the respondent attached affidavits to its motion to dismiss, which clearly refuted the allegation that the proposed resolution had not been made available for public inspection. The remaining allegations were attacked on legal grounds. The petitioners did not respond to the respondent's affidavits in any manner.

[ 122 Pa. Commw. Page 617]

The DCA then accepted the respondent's affidavits and concluded that the requirements of the Debt Act had been complied with. Because the petitioners failed to respond to and to refute the facts as portrayed in the respondent's affidavits, there remained no material issue of fact. See Santoro v. City of Philadelphia, 59 Pa. Commonwealth Ct. 114, 429 A.2d 113 (1981). The DCA did not, therefore, err in disposing of the matter by granting the motion to dismiss.

The petitioners next raise the issue of whether an agency may dismiss a complaint for want of specificity and without affording an opportunity to amend the complaint. This argument can also be answered as it was in Pleasant Valley I. The complaint was not dismissed due to procedural irregularities, but, as noted above, was dismissed because the petitioners' allegations lacked merit.

The third issue raised by the petitioners is whether an agency may consider the factual allegations of a demurrer movant in determining the legal sufficiency of a complaint. This question has been answered in the discussion of the first issue. It was proper for the DCA to consider the motion and affidavits of the respondent without holding a full evidentiary hearing because no counter-affidavits were filed in opposition, and there remained no material issue of fact.

Next, the petitioners pose the question of whether an agency may make an adjudication without notice and the other requirements of the applicable administrative law. They argue that the notice of the hearing on the respondent's petition to dismiss was inadequate because it did not indicate that the hearing would be adjudicatory. The notice, which is the subject of this allegation, indicates that a special hearing had been scheduled on the motion to dismiss the complaint in this case. This description certainly provides ample and accurate notice of the nature of the hearing which was held.

[ 122 Pa. Commw. Page 618]

The petitioners also allege that the notice was inadequate because it was not given within sufficient time in advance of the hearing. The notice was served by certified mail on July 19, 1985, and the hearing was scheduled to be held on July 26, 1985. 1 Pa. Code § 35.105(c) provides that notice of such hearings shall be published in the Pennsylvania Bulletin fifteen days prior to the date of the hearing " unless the agency finds that a shorter period of notice is reasonable and consistent with the public interest ". (Emphasis added.) As noted earlier in this opinion, the respondent's motion for expedited argument had been granted in this case. In consideration of the potential problems listed by the respondent, including the possible failure of the refunding bond issue and the loss of interest savings, it was reasonable for the DCA to allow an exception from the fifteen-day advance notice requirement.

The final issue concerns whether the DCA has jurisdiction to consider violations of the "Open Meeting Law" in reviewing Debt Act proceedings. This Court has previously thoroughly discussed this issue in Pleasant Valley I and we will not change our holding here. The DCA does not have jurisdiction over alleged violations of the "Open Meeting Law".

Accordingly, we will affirm the order of the DCA.


And Now, this 17th day of January 1989, the order of the Department of Community Affairs in the above-captioned matter is hereby affirmed.

Judge MacPhail did not participate in the decision in this case.



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