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TOM MISTICK AND SONS v. CITY PITTSBURGH (12/19/89)

decided: December 19, 1989.

TOM MISTICK AND SONS, INC., D. THOMAS MISTICK, APPELLANTS,
v.
CITY OF PITTSBURGH, BEN WOODS, JACK WAGNER, OTIS LYONS, MICHAEL COYNE, MICHELLE MADOFF, EUGENE DEPASQUALE AND JAMES FERLO, APPELLEES



Appeal from Common Pleas Court, Allegheny County; Honorable Silvestri Silvestri, Judge.

COUNSEL

David M. Priselac, Pittsburgh, for appellants.

George R. Specter and D.R. Pellegrini, Pittsburgh, for appellees.

Crumlish, Jr., President Judge, and Colins, J., and Barbieri, Senior Judge.

Author: Barbieri

[ 130 Pa. Commw. Page 235]

Appellants, Tom Mistick and Sons, Inc. and D. Thomas Mistick, appeal the order of the Court of Common Pleas of

[ 130 Pa. Commw. Page 236]

Allegheny County dismissing their complaint upon sustaining a preliminary objection in the nature of a demurrer which was raised by Appellees, the City of Pittsburgh and seven members of Pittsburgh's City Council. The sole issue presented for review is whether a timely filed writ of summons meets the requirement of Section 13 of the Sunshine Act,*fn1 65 P.S. § 283,*fn2 that a "legal challenge" be filed within 30 days from the date of an alleged unauthorized meeting. We reverse and remand.

Appellants filed a praecipe for a writ of summons in equity and declaratory judgment against Appellees on August 12, 1988 and, on September 9, 1988, Appellees were duly served. On January 31, 1989, Appellants filed a complaint in equity and declaratory judgment, challenging the validity of a July 13, 1988 City Council meeting on the ground that no public notice of the meeting was given as required by Section 9 of the Sunshine Act, 65 P.S. § 279, and seeking an injunction to preclude Appellees from enforcing certain ordinances enacted at the July 13, 1988 meeting. In response, Appellees filed preliminary objections asserting, inter alia, that Appellants failed to file a "legal challenge" to the ordinances within 30 days of the July 13, 1988 meeting.

In sustaining Appellees' preliminary objection for failure to timely file a "legal challenge", the trial court reasoned

[ 130 Pa. Commw. Page 237]

    that a "legal challenge", within the meaning of the Sunshine Act, is a process by which a governmental agency is given notice of the grounds constituting an alleged violation of the Sunshine Act and that a writ of summons apprises an agency only of the filing of a lawsuit. Based thereon, the trial court concluded that commencement of an action by issuance of a writ was not a "legal challenge". Inasmuch as Appellants' complaint, apprising Appellees of the grounds for the challenge, was not filed within 30 days of the July 13, 1988 meeting, the trial court dismissed it as untimely.

We initially note that the keystone of all statutory interpretation and construction is "to ascertain and effectuate the intention of the General Assembly." Section 1921(a) of the Statutory Construction Act of 1972 (SCA), 1 Pa. C.S. § 1921(a). Legislative intent may be ascertained by considering, inter alia, the necessity for the statute, the mischief to be ...


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