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06/30/97 BERKS COUNTY HOTEL ASSOCIATION v. BERKS

June 30, 1997

BERKS COUNTY HOTEL ASSOCIATION, INC., JOSEPH M. EWAYS, II, AND CHARLES ROHRER, APPELLANTS
v.
BERKS COUNTY BOARD OF COMMISSIONERS AND COUNTY OF BERKS, THE CITY OF READING AND THE HONORABLE PAUL J. ANGSTADT



Appealed From No. 96-7709. Common Pleas Court of the County of Berks. Judge STALLONE.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge, Honorable Jess J. Jiuliante, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: June 30, 1997

The Berks County Hotel Association, Inc. and two of its members, Joseph M. Eways, II and Charles Rohrer (collectively, Hotel Association), appeal from an order of the Court of Common Pleas of Berks County (trial court), which sustained the preliminary objections filed by the County of Berks and its Board of Commissioners (County), and the City of Reading and its Mayor (City) (collectively, Appellees), in response to the Hotel Association's notice of appeal filed with the trial court, which challenged the creation of the Berks County Convention Center Authority (Authority). We affirm.

On June 20, 1996, the County enacted Ordinance No. 2-96, creating the Authority pursuant to Section 4 of the Third Class County Convention Center Authority Act of 1994 (CCAA), 16 P.S. § 13104. *fn1 (R.R. 17a.) It also appointed four members to the Authority's governing board. On June 24, 1996, the City enacted Ordinance No. 16-96, in which the City signified its intention to organize an authority jointly with the County and appointed three members to the governing board.

On July 22, 1996, the Hotel Association filed a notice of appeal and declaratory judgment action against Appellees. *fn2 The complaint sought to void the ordinances and all actions of the Authority, direct the County to hold a public hearing before enacting a similar ordinance, enjoin the creation of a convention center authority until after the completion of feasibility studies and require appointment of a member of the Hotel Association to the governing board of any convention center ultimately created. *fn3

On August 14, 1996, Appellees filed preliminary objections in the nature of a demurrer. On October 17, 1996, the trial court entered an order sustaining Appellees' preliminary objections, denying all relief requested by the Hotel Association, and dismissing the action with prejudice. This appeal followed.

The issues in this case are (1) whether the Municipality Authorities Act of 1945 (MAA), Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §§ 301-401, applies to a convention center authority created pursuant to the CCAA, and (2) whether the creation of the Authority was premature and in contravention of the CCAA because no determination has been made to build a convention center.

Our standard of review for preliminary objections is well settled. We must accept as true all material facts set forth in the complaint and all inferences reasonably deducible therefrom. Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995). The question presented by a demurrer is whether, on the facts averred, the law says with certainty that recovery is not possible. Id.

The County and City ordinances provide that the Authority is organized under the CCAA. Section 4 of the CCAA, 16 P.S. § 13104, provides, in pertinent part:

The governing bodies of a third class county and the political subdivision constituting the county seat . . . may create a body corporate and politic to be named the ........... County Convention Center Authority . . . .

Section 5 of CCAA, 16 P.S. § 13105(a), lists the general powers provided to an Authority and states that:

An authority created under this act shall be a public body . . . and shall be for the purpose . . . of acquiring, holding, developing, designing, constructing, improving, maintaining . . . and ...


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