Petition — Fiore v. County of Westmoreland
Supreme Court brief1979
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MAR 95 1979
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IN THE { stse rorey, JR., CLERK
Supreme Court of the United States
Term,
No... 8 = 1360
IN RE: LEASE OF COAL ON COUNTY LANDS
SITUATE IN HEMPFIELD TOWNSHIP, WEST-
MORELAND COUNTY, PENNSYLVANIA.
FRED FIORE, AGGRIEVED PARTY,
Petitioner,
COUNTY OF WESTMORELAND,
. Respondent,
WEISS BROTHERS LEASING, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA
RICHARD H. GALLOWAY
ACKERMAN & GALLOWAY
11 North Main Street
Greensburg, Pennsylvania 15601
EDWARD P. ZEMPRELLI
528 St. Clair Avenue
Clairton, Pennsylvania 15025
Attorneys for Petitioner
—oooooooooeOOeeeee OOOO OOOO
BATAVIA TIMES, APPELLATE COURT PRINTERS -o
COWARD W. SHARNON, SENIOR REPRESENTATIVE
MAROLD L. BERKOSEN, REPRESENTATIVE
1701 PARKLINE D@., PITTSBURGH, PA. 18887
(4ta) 661-7468
EEE GRGECCUUD SS CN EUs essedcccccccccca
ee Co ibeeccrecccccces
Statement of the Questions Involved ................
Statement of the Constitutional Provisions and Statutes
I ee ee EN ccs deck teceecs
es, Lesa’ as cas cvincceses
Reasons for Granting This Writ....................4.
I. It was an abuse of discretion by the Court of
Common Pleas of Westmoreland County, Penn-
sylvania, as affirmed by the Commonwealth and
Supreme Courts of Pennsylvania, to arbitrarily
refuse approval of the lease by the Westmoreland
County Commissioners to the petitioner for mining
coal under county lands. The lease was a
discretionary decision within the statutory authority
of the Commissioners, and not subject to judicial
review under Pennsylvania law except for fraud,
official misconduct, or arbitrary and capricious
ST GG sido sises s cedecevesccsccce
Il. The Court's arbitrary refusal to approve the
lease to Fiore, made in conformity to and in
reliance on statutory law, is unconstitutional,
where:
A. The Court’s abuse of discretion is an en-
croachment upon a discretionary, executive
decision: and
B. The Court’s abuse of discretion works an
impairment of valuable property and contractual
NED oop e850 hs Ce aNUaedneeepadss
RA ERA RR I NB CR RE REN ASC MUTT EARS EGR
Appendix A—Judgment and Per Curiam Order of
November 29, 1978 of the Supreme Court of Penn-
sylvania at No. 1677 Allocatur Docket ............
Appendix B—Opinion and Order of July 10, 1978 of the
Commonwealth Court of Pennsylvania at No. 1890
Commonwealth Docket 1977 .................045:
Appendix C—Opinion and Order of August 19, 1977 of
the Court of Common Pleas (Court en Banc) of West-
moreland County, Pennsylvania at No. 2618 of 1975
CONE UNIIED ic o's op vtcan apie siesoeebers
Appendix D—Opinion and Order of September 19, 1975
of the Court of Common Pleas (Court en Banc) of
Westmoreland County, Pennsylvania at No. 2618 of
1975 (Westmoreland County) .................00.
Appendix E—Opinion and Order of July 16, 1976 of the
Commonwealth Court of Pennsylvania at No. 1480
Commonwealth Docket 1975 .........ccccccsccces
Appendix F—Petition for Rehearing before the Court of
Common Pleas (Court en Banc) of Westmoreland
~-County, Pennsylvania to Order of September 19, 1975
at No. 2618 of 1975 (Westmoreland County).......
Appendix G—Petition for Allowance of Appeal to the
Supreme Court of Pennsylvania at No. 1677 Allocatur
Docket (less Exhibits Appended hereto at B through
ES os vA kOREN ESET OMRD TRUE ROLE TRA Ts CORR TEEN
Page
15
16
23
33
35
40
a —_—_
ill -
IIl.
Page
TABLE OF CASES.
Allee v. Medrano, 416 U.S. 802, 40 L. Ed. 2d 566, 94 S.
er 8 Be eer ray ered eT ee eee eee 13
Blumenschein v. Pittsburgh Housing Authority, 379 Pa.
Sc eee bls eee Verte cee ehy vissabemsVebben ccs 10
Heilig Bros., Inc. v. Kohler, 366 Pa. 72, 76 A.2d 613
6) URAAD RASS eet os eats ee ry See 9
Illinois C.R. Company v. Greene, 244 U.S. 555, 61 L.
BGs THES, SF S.C GOT CIDE. es es esi ssc des 1]
In Re: Petition of Acchione, 425 Pa. 23, 227 A.2d 816
CHER Fs CULO S) ek eR ED eR RANG CORALS WES SS Cb. 10
In Re: Philadelphia County Grand Jury, 347 Pa. 316, 32
EE RUE as 6000s ARETE USS) ba he bas eee hs 10
Kreshik v. St. Nicholas Cathedral of Russian Orthodox
Church, 363 U.S. 190, 4 L. Ed. 2d 1140, 80S. Ct. 1037,
reh. den. 364 U.S. 855, 5 L. Ed. 2d 79, 81 S. Ct. 35
(GR ck cade dinrclc ves ePMEE USNR eee Oe bares ses 13
Louisville & N.R. Company v. Greene, 244 U.S. 522, 61
a ee ee Bee) eee eee 11
New Orleans v. Paine, 147 U.S. 261, 37 L. Ed. 162, 13S.
ce Ns & 6.>-c wad Ris oe CO aa A EAS SERNA Oe 1]
Ross v. Day, 232 U.S. 110, 58 L. Ed. 528, 34 S. Ct. 233
Sls be CoN na kk win Cadhne Wasa et hcseeuNtenes 11
Smith v. Goquen, 415 U.S. 566, 39 L. Ed. 2d 605, 94 S.
oy gS Be A eS Eaiek Ghose ike 12
Tidal Oil Company v. Flanagan, 263° U.S. 444, 68
Sey ee a Eric sacavosccacsces 12,13
United States v. California & O. Land Company, 148
U.S. 31, 37 L. Ed. 354, 13 S. Ct. 458 (1892)....... 12
Winona & St. Peter Railroad Company v. Town of
Plainview, 143 U.S. 371, 36 L. Ed. 191, 12 S. Ct. 530
IV.
Page
STATUTES.
Article I, Section 10 of the United States Constitution 3,12
Section | of the Fourteenth Amendment to the United
SUR SR: iiiinink 06 setedins BSc on Bods 3,12
Section 2255 of the County Institution District Law, Act
of June 24, 1937, P.L. 2017, Article III, Section 305:
1949, April 21, P.L. 704, Section I; 1951, September
29, P.L. 1619, Section I; 1955, October 7, P.L. 662,
Section I, 1956, February 10, P.L. (1955) 1020, Section
Se GE ae I I oi es 4,9
Section 2306 of the County Code, Act of August 9, 1955,
P.L. 323, Section 2306, 16 P.S. Section 2306 ....... 4,9
IN THE
Supreme Court of the United States
IN RE: LEASE OF COAL ON COUNTY LANDS SITUATE
IN HEMPFIELD TOWNSHIP, WESTMORELAND
COUNTY, PENNSYLVANIA
FRED FIORE, AGGRIEVED PARTY,
Petitioner,
COUNTY OF WESTMORELAND,
Respondent,
WEISS BROTHERS LEASING, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA
To the Honorable, the Chief Justice and Associate Justices of
the Supreme Court of the United States:
Fred Fiore, an aggrieved party and the petitioner herein,
prays that a Writ of Certiorari issue to review the judgment of
the Supreme Court of Pennsylvania in the above entitled case,
dated the 29th day of November, 1978, and entered on the Sth
day of December, 1978.
2
Opinions Below
The judgment of the Supreme Court of Pennsylvania at\
issue is by per curiam order at No. 1677 Allocatur Docket, on
November 29, 1978 and entered December 5, 1978. The per
curiam order is unreported, and is printed in Appendix A
hereto, infra, page 15. The effect of the Order of Novem-
ber 29, 1978 is to deny the Petition for Allowance of Appeal
by Fred Fiore to the Supreme Court of Pennsylvania, affirm-
ing the Order of July 10, 1978 of the Commonwealth Court of
Pennsylvania at No. 1890 Commonwealth Docket 1977, which
affirmed the Order of August 19, 1977 of the Court of Com-
mon Pleas (Court en Banc) of Westmoreland County, Pennsy|-
vania, at No. 2618 of 1975, disapproving the subject lease of
coa: rights to the petitioner. The Order and Opinion of July
10, 1978 of the Commonwealth Court of Pennsylvania is
printed in Appendix B hereto, infra, page 16; the Order
and Opinion of the Court en Banc of Westmoreland County,
Pennsylvania is printed in Appendix C, hereto, infra, page
23.
The Opinion and Order of September 19, 1975 of the Court
en Banc of Westmoreland County, Pennsylvania at No. 2618
of 1975 is printed in Appendix D, hereto, infra, page 33:
and the Opinion and Order of July 16, 1976 of the Common-
wealth Court of Pennsylvania at No. 1480 Commonwealth
Docket 1975, remanding the matter to the Court of Common
Pleas of Westmoreland County, Pennsylvania is printed in
Appendix E, hereto, infra, page 35.
Statement of Jurisdiction
The judgment of the Supreme Court of Pennsylvania (Ap-
pendix A, infra, page 15) was entered on December 5,
1978. The jurisdiction of the Supreme Court of the United
States is invoked under the United States Code, Title 28, Sec-
tion 1257 (3).
3
Statement of the Questions Involved
I. Whether it was an abuse of discretion by the Court of
Common Pleas of Westmoreland County, Pennsylvania, as af
firmed by the Commonwealth and Supreme Courts of Penn-
sylvania, to arbitrarily refuse approval of the lease by the
Westmoreland County Commissioners to petitioner for
mining coal under county lands, where the lease was a discre-
tionary decision within the statutory authority of the Com-
missioners, and not subject to judicial review except for
fraud, official misconduct, or arbitrary and capricious abuse
of power? ae
Il. Whether the Court’s arbitrary refusal to approve a
lease, made in conformity to and in reliance on statutory law,
is unconstitutional where:
A. The Court's abuse of discretion is an encroach-
ment of the judicial function upon a discretionary,
executive decision: and
B. The Court's abuse of discretion works an impair-
ment of a property and contractual right of petitioner?
Statement of Constitutional Provisions
and Statutes Involved
Your petitioner seeks relief in accord with the United States
Constitution, and case law thereunder, as follows:
Article I, Section 10 of the United States Constitution which
provides in part:
“No state shall . . . pass any Bill of Attainder, ex post
facto law, or law impairing the obligation of contracts
”,
And Section I of the Fourteenth Amendment to the United
States Constitution which provides in part:
4
“. . . No state shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the
United States; nor shall any state deprive any person of
life, liberty or property without due process of law. . .”
The authority for the lease in question falls within pro-
cedures prescribed by the Pennsylvania Legislature under two
provisions. The procedure for lease or sale of county in-
stitution district land is set forth in Section 2255 of the
“County Institution District Law”, Act of June 24, 1937, P.L.
2017, Article III, Section 305, 1949, April 21, P.L. 704, Sec-
tion I, 1951, September 29, P.L. 1619, Section I; 1955, Oc-
tober 7, P.L. 662, Section I, 1956, February 10, P.L. (1955)
1020, Section I; 62 Purdon’s Statutes (P.S.), Section 2255(c),
which provides in part:
“Powers and duties as to county institution district
property. ;
As a function of the institution district and with its
funds, the commissioners of each county shall have the
power and it shall be their duty: . . . c. with the ap-
proval of the Court of Quarter Sessions of the Peace,
upon such notice as the Court may require, to sell or
lease real property of the institution district . . .”
County Commissioners are granted the general power to sell
or lease real property under Section 2306 of the County Code,
Act of August 9, 1955, P.L. 323, Section 2306, 16 P.S. Section
2306, which provides:
“The board of commissioners may sell or lease, either as
lessor or lessee, any real property belonging to the
county or to others where the county is lessee. In the
event of such sale or of a lease as lessor under which the
lessee acquires on a royalty basis or otherwise the right to
drill for oil or gas or to mine or remove coal, stone or
other mineral products or to cut and remove trees,
stumps, wood or other forest products, the com-
5
missioners shall petition the Court of Common Pleas, set-
ting forth a description of the property to be sold or lease
and the reason therefor. If the commissioners know or
have reason to believe that the property to be sold con-
tains oil, gas, coal, stone, timber or other mineral or
forest products or commercia! value, such knowledge or
belief shall be stated together with the description. The
Court shall thereupon fix a day for hearing, notice of
which shall be given in at least two newspapers, in said
county, of general circulation, once a week for three con-
secutive weeks.
After hearing, the Court shall make such order and
decree as shall seem right and proper. In the case of any
lease of county property hereunder, such property, with
any and all improvements or additions thereon or there-
to, shall, in the hands of the lessee, be subject to taxation
by such county and any other political subdivision
therein, in the same manner as other real estate located in
the county. Such taxes shall be levied and assessed
against and paid by the lessee. This section shall not ap-
ply to leases or sales of county property or other
property which are otherwise specifically provided for
by law. 1955, Aug. 9, P.L. 323 Section 2306.”
Statement of the Case
Petitioner, Fred Fiore (hereafter referred to as Fiore) is the
owner of the Fiore Coal Company, which conducts coal
mining operations in the Western Pennsylvania Area. Fiore
and other persons became interested in coal deposits located
on Westmoreland County Institution District land situate in
Hempfield Township, Westmoreland County, Pennsylvania,
and on which is located Westmoreland Manor, a home for the
aged. On January 23, 1975, the Board of Commissioners of
Westmoreland County (hereafter referred to as Com-
missioners) authorized the County Solicitor to prepare a pro-
posal to advertise for the sale or lease of the coal on West-
moreland Manor which was to include testing and an option
to mine.
6
On February 13, 1975, the Westmoreland County Solicitor,
by unanimous agreement of the Commissioners, was
authorized to prepare an advertisement for strip mining and
deep mining of coal on the county land where the Westmore-
land County Home for the Aged is presently located, with
specifications that each bidder would submit bids in alternate
form to either pay the County on a per tonnage basis or on the
basis of a per centage of the sale price of the coal, and with
further specification that no bid would be considered unless it
contained bids for both strip mining and deep mining, re-
serving the right of the County to reject any or all bids.
On April 24, 1975, the Commissioners unanimously agreed
to award a contract to respondent, Weiss Brothers, Inc., of
McKeesport, Pennsylvania, only for drilling and test boring
on the coal site at Westmoreland Manor. Subsequently at a
meeting of the Commissioners on July 24, 1975, upon motion
of Commissioner Robert Shirey, seconded by Commissioner
Dorothy Shope, it was unanimously agreed to award the bid
for strip mining of coal on the subject property, to Fred Fiore
Coal Company on a per centage basis with the minimum re-
turn to the County of not less than $5.27 per ton, subject to
Court approval.
The hearing for the required Court approval was held on
September 19, 1975, before the Court en Banc of the Court of
Common Pleas of Westmoreland County, Pennsylvania (here-
after referred to as Court en Banc), the Honorable David H.
Weiss, President Judge, presiding with the Honorable L.
Alexander Sculco, Judge and the Honorable Richard E.
McCormick, Judge. Prior to that hearing, certain parties
claiming to be interested in the approval of the contract to
Fiore intervened to oppose the award of the contract to the
Fiore Coal Company, and consequently appeared at the hear-
ing of September 19, 1975. At the hearing of September 19,
7
1975, arguments of counsel for the Commissioners and for the
respective parties were presented, but no testimony of any
person was taken. The Court en Banc then issued the Order of
September 19, 1975, at No. 2618 of 1975 (Appendix D), dis-
approving the award of the lease to the subject property to
Fred Fiore and setting forth its reasons for doing so. Fiore
then filed an appeal to the Commonwealth Court of Pennsyl-
vania at No. 1480 Commonwealth Docket 1975.
Petitioner was made aware of the fact that on October 9,
1975, at a meeting of the Commissioners, that a motion was
made by Commissioner Shope, seconded by Commissioner
Ted Simon, and passed by Commissioners Shope and Simon
with Commissioner Shirey abstaining, to authorize the County
Solicitor to petition the Court en Banc to lease the rights to
the coal on the subject property to the respondent, Weiss
Brothers Leasing, Inc. This award to Weiss Brothers Leasing,
Inc. by the Commissioners was done without any advertising
or rebidding of the lease contract. Fiore then petitioned the
Commonwealth Court of Pennsylvania for a Writ of Super-
sedeas preventing any proceedings concerning the award of
the subject property until his appeal was heard. The Super-
sedeas was granted on November 18, - 75.
The matter came before the Commonwealth Court of Penn-
sylvania on the appeal of Fiore at No. 1480 Commonwealth
Docket 1975, and by Order dated July 16, 1976 (Appendix EB),
the decision of the Westmoreland County Court en Banc was
remanded for an evidentiary hearing and decision on facts
established on the record.
The Westmoreland County Court en Banc held evidentiary
hearings on April 1, 1977 and June 17, 1977, and by opinion
and decree dated August 19, 1977 (Appendix C) at No. 2618
of 1975, disapproved as it had previously done, the award of
the coal lease to Fiore. However, the record of this hearing
discloses no allegations or evidence of fraud, official miscon-
duct, or arbitrary and capricious abuse of power in the award
of the coal lease to Fiore on July 24, 1975.
Fiore again appealed to the Commonwealth Court of Penn-
sylvania at No. 1890 Commonwealth Docket 1977, which by
Opinion and Order dated July 10, 1978 (Appendix B) affirm-
ed the Order of August 19, 1977 of the Westmoreland County
Court en Banc.
Fiore then petitioned the Supreme Court of Pennsylvania at
No. 1677 Allocatur Docket for Allowance of Appeal from the
Order of the Commonwealth Court of Pennsylvania dated
July 10, 1978. The Petition for Allowance of Appeal was
denied by per curiam order of the Supreme Court of Penn-
sylvania dated November 29, 1978 and entered December 5,
1978 (Appendix A), from which follows this Petition for Writ
of Certiorari to the Supreme Court of the United States.
The issues now before this Honorable Court were asserted
by Fiore through counsel in argument before the Court of
Common Pleas of Westmoreland County, Pennsylvania at
hearing on September 19, 1975, Fiore’s Petition for Rehearing
before the Court of Common Pleas (Appendix F), argument
and objections of Fiore’s counsel at hearing before the Court
of Common Pleas on April 1, 1977, successive appeals to the
Commonwealth Court of Pennsylvania, and Petition for
Allowance of Appeal to the Supreme Court of Pennsylvania
(Appendix G).
9
REASONS FOR GRANTING THIS WRIT
I. It was an abuse of discretion by the Court of Com-
mon Pleas of Westmoreland County, Pennsylvania, as af-
firmed by the Commonwealth and Supreme Courts of
Pennsylvania, to arbitrarily refuse approval of the lease
by the Westmoreland County Commissioners to the
petitioner for mining coal under county lands. The lease
was a discretionary decision within the statutory
authority of the Commissioners, and not subject to
judicial review under Pennsylvania law except for fraud,
official misconduct, or arbitrary and capricious abuse of
power.
The lease which is the subject of this action falls under
procedures prescribed by the Pennsylvania Legislature under
two statutes: Section 2255 of the County Institution District
Law (62 P.S. Section 2255) and Section 2306 of the County
Code (16 P.S. Section 2306). Both statutes require only
procedurally that the County Commissioners petition for
Court approval of the lease, and that notice of the hearing for
approval be given by newspaper advertisement, neither
statute states standards to be applied by the Court in deter-
mining approval or disapproval.
It is held that the County Commissioners, as fiduciaries for
the citizens of the County, exercise their discretion in ob-
taining a buyer or lessee of county land. Heilig Bros., Inc. v.
Kohler, 366 Pa. 72, 76 A. 2d 613 (1950). The Court then passes
upon the exercise of discretion by the Commissioners, and ap-
proves or disapproves the sale or lease. The scope of review
by the Court is limited; the Court will not review the
decisions of public officials involving acts of discretion in the
absence of fraud, official misconduct, bad faith, capricious
actions or abuse of power; nor will the Court inquire into the
10
wisdom of such actions, or into the details of the manner
adopted to carry them into execution; nor will the Court at-
tempt to interfere with or control the performance of
discretionary acts by public officials; nor will the Court at-
tempt to substitute its judicial discretion for administrative or
legislative prerogatives. In Re Petition of Acchione, 425 Pa. 23,
227 A. 2d 816 (1967). It is stated in Blumenschein v. Pittsburgh
Housing Authority, 379 Pa. 566, that:
“Thus we are of the opinion that when the legislature
adopted the County Code and included the requirement
of court approval for sales of county owned property by
the commissioners after a hearing, the intent was not to
have the Court second guess the county commissioners as
to the wisdom of their action. Rather, the legislature in-
tended that our review, and, therefore, the scope of the
hearing, be limited to matters of bad faith, fraud,
capricious action or abuse of power.”
Judicial discretion has been described by the Courts of
Pennsylvania and the United States as:
“Judicial discretion requires action in conformity with
law upon the facts and circumstances before the Court
after hearing and due consideration. In Osborn v. United
States Bank, 9 Wheat, 738, 866, 6 L. Ed. 204, Chief Justice
Marshall said: ‘Judicial power, as contradistinguished
from the power of the laws, has no existence. Courts are
the mere instruments of the law and can will nothing.
When they are said to exercise a discretion, it is a mere
legal discretion, a discretion to be exercised in discerning
the course prescribed by law; and, when that is discern-
ed, it is the duty of the Court to follow it. Judicial power
is never exercised for the purpose of giving effect to the
will of the judge; always for the purpose of giving effect
to the will of the legislature: or, in other words, to the
will of the law.’ ” In Re Philadelphia County Grand Jury,
347 Pa. 316, 32 A.2d 199 (1943).
SS SE
In the instant case, the Court en Banc of Westmoreland
County, Pennsylvania was obligated to exercise its discretion
in accordance with the law: that is, to disapprove award of
the coal lease to Fiore only upon proof of bad faith, fraud,
capricious action or abuse of power on the part of the Com-
missioners. It was, therefore, an abuse of discretion under
Pennsylvania law to disapprove the lease to Fiore where there
was no evidence of bad faith, fraud, capricious action or
abuse of power.
Il. The Court's arbitrary refusal to approve the lease
to Fiore, made in conformity to and in reliance on
statutory law, is unconstitutional, where:
A. The Court's abuse of discretion is an encroachment upon
a discretionary, executive decision: and
B. The Court's abuse of discretion works an impairment of
valuable property and contractual rights of petitioner.
In accord with the most basic constitutional concept of
separation of powers between the various branches of govern-
ment, it has been held by this Court that actions of the
executive branch, represented by the Westmoreland County
Commissioners in this case, will not be disturbed, except for
fraud, or where an action is beyond the scope of executive
authority. /llinois C.R. Company v. Greene, 244U.S. 555, 562,
61 L. Ed. 1309, 37 S. Ct. 697 (1916), Louisville & N.R. Com-
pany v. Greene, 244 U.S. 522, 61 L. Ed. 1291, 37 S. Ct. 683
(1916): Ross v. Day, 232 U.S. 110, 117, 58 L. Ed. 528, 34S. Ct.
233 (1913). New Orleans v. Paine, 147 U.S. 261, 37 L. Ed. 162,
13 S. Ct. 303 (1892).
It is further held that even where a court, in the exercise of
its jurisdiction, reviews discretionary acts of public officials,
the decisions of the public officials will not be disturbed in
the absence of showing of fraud, abuse of discretion, or ar-
12
bitrary and capricious acts as vitiate the official character of
the action. United States v. California & O. Land Company, 148
U.S. 31, 43-44, 37 L. Ed. 354, 13 S. Ct. 458 (1892). The abuse
of discretion by the Court here, in assigning reasons for its
disapproval of the coal lease to Fiore that were not within its
proper scope of review, compels the conclusion that the Court
encroached upon the discretionary, executive decision-
making process, in violation of the basic constitutional con-
cept of separation of powers.
It is a long-standing rule of this Court that the clause in the
United States Constitution (Article I, Section 10) prohibiting
passage of laws impairing obligations of contracts, does not
generally apply to changes in judicial decisions. Tidal Oil
Company v. Flanagan, 263 U.S. 444, 68 L. Ed. 386, 44 S. Ct.
199 (1923); however, it is submitted that the facts of the
present case do not bring it within this rule.
Petitioner contends first that the statutes here permitting
sale or lease of county lands, if construed to allow unlimited
judicial review as to matters other than fraud, official
misconduct, capricious action, or abuse of power, are un-
constitutionally vague, lacking an adequate standard for
review. This Court has held that the provisions of the Four-
teenth Amendment, that no state shall deprive any person of
life, liberty or property without due process of law, requires
that legislatures set reasonably clear standards to be followed
by triers of fact, to avoid arbitrary and selective enforcement
as occurred in this case. Smith v. Goquen, 415 U.S. 566, 573.
39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974).
It is submitted that while a judicial decision, of itself, can-
not be said to violate the constitutional prohibitions against
impairment of contracts or deprivation of property without
13
due process of law, the effect of the Court’s abuse of
discretion in this case is to make an unconstitutional ap-
plication of an otherwise constitutio.ial statute. The
inhibition against such action is held to include all func-
tionaries of state government, judicial as well as legislative.
Kreshik v. St. Nicholas Cathedral of Russian Orthodox Church,
363 U.S. 190, 4 L. Ed. 2d 1140, 80S. Ct. 1037, reh. den. 364
U.S. 855, 5 L. Ed. 2d 79, 81 S. Ct. 35 (1960).
As stated in Winona & St. Peter Railroad Company v. Town
of Plainview, 143 U.S. 371, 36 L. Ed. 191, 200, 12 S. Ct. 530
(1891):
“This Court has jurisdiction only when the State Court
has given effect to a legislative enactment which impairs
the obligation of a prior contract.”
In accord: Tidal Oil Company v. Flanagan, 263 U.S. 444, 453,
68 L. Ed. 386, 44 S. Ct. 199 (1923). This Court has not
hesitated to strike down the unconstitutional application by a
Court of a constitutional statute. Allee v. Medrano, 416 U.S.
802, 40 L. Ed. 2d 566, 94 S. Ct. 2191 (1974). The Court should
do so here where arbitrary refusal of the lower Court to ap-
prove the award of the coal lease to Fiore has the effect of
depriving him of a valuable property without due process of
law, and of impairing a contractual right duly created with
the County Commissioners, acting within their statutory
discretion and authority.
14
Conclusion
For the foregoing reasons this petition for a writ of cer-
tiorari should be granted.
Respectfully submitted,
RICHARD H. GALLOWAY,
ACKERMAN & GALLOWAY,
11 North Main Street,
Greensburg, Pennsylvania 15601,
EDWARD P. ZEMPRELLI,
528 St. Clair Avenue,
Clairton, Pennsylvania 15025,
Attorneys for Petitioner.
15
APPENDIX A
Judgment and Per Curiam Order of November 29, 1978
of the Supreme Court of Pennsylvania at No. 1677 Al-
locatur Docket
Richard H. Galloway, Esquire
Ackerman and Galloway
11 North Main Street
Greensburg, Pa. 15601
Edward P. Hemprelli, Esquire
528 St. Clair Avenue
Clairton, Pa. 15025
In Re: Lease of Coal on County Lands, etc. Fiore, etc.,
et al. No. 1677 Allocatur Docket
Gentlemen:
The Court has entered the following Order on your Petition
for Allowance of Appeal from the decision of the Common-
wealth Court in the above-captioned matter:
**29 November 1978
Petition denied.
Per Curiam”
Very truly yours,
DEPUTY PROTHONOTARY
ITG:erv
ce: Irving L. Bloom, Esquire
Thomas Anton, Esquire
16
APPENDIX B
Opinion and Order of July 10, 1978 of the Common-
wealth Court of Pennsylvania at No. 1890 Commonwealth
Docket 1977
IN THE
COMMONWEALTH COURT OF PENNSYLVANIA
IN RE: LEASE OF COAL ON COUNTY LANDS SITUATE
IN HEMPFIELD TOWNSHIP, WESTMORELAND
COUNTY, PENNSYLVANIA
FRED FIORE, AGGRIEVED PARTY,
Appellant.
No. 1890 C.D. 1977
Before: HONORABLE GLENN E. MENCER, Judge
HONORABLE THEODORE O. ROGERS, Judge
HONORABLE RICHARD DIiSALLE, Judge
Argued: MAY 4, 1978 - PITTSBURGH
OPINION BY JUDGE ROGERS FILED: JULY 10, 1978
Fred Fiore, owner of Fiore Coal Company, has appealed
for the second time from an order of the Court of Common
Pleas of Westmoreland County denying the prayer of a
petition of the County Commissioners for the court’s ap-
proval of a proposed lease to him of county owned lands for
coal mining purposes. On the occasion of the earlier appea!
we reversed an order of the court below refusing approval of
17
Appendix B—Opinion and Order of July 10, 1978 of the Com-
monwealth Court of Pennsylvania at No. 1890 Commonwealth
Docket 1977.
a proposed lease to Fiore and remanded the record for an
evidentiary hearing. Jn Re: Lease of Coal on County Lands
Situate in Hempfield Township, Westmoreland County, Pennsyl-
vania, 25 Pa. Commonwealth Ct. 530, 360 A.2d 849 (1976). In
response to our order the court below conducted evidentiary
hearings and thereafter again refused approval of the pro-
posed lease. That action is the subject of this appeal.
In the opinion accompanying our order when the matter
was last before us, we set forth what then appeared to be the
circumstances. Since a hearing has been conducted and an
evidentiary record made, we will here recite the facts sur-
rounding this lamentable imbroglio. The Commissioners of
Westmoreland County by public advertisement invited the
submission on or before March 18, 1975 of bids for the
mining of coal by strip mining and by deep mining on county
land. The advertisement required that bids should be sub-
mitted in the form of two alternates for payment: (1) payment
based on tonnage of coal removed, or (2) payment based
upon a percentage of the per ton sale price of the coal by the
contractor. The invitation included the following provision
which caused some, if not most, of the trouble which ensued:
“Investigation as to the location and amount of coal on
the premises shall be at the cost of. the bidder. If, after
investigation, the highest responsible bidder determines,
at that bidder’s option, that it is not economically feasi-
ble to mine the said coal, the County Commissioners
shall excuse that bidder and offer the bid to the next
highest responsible bidder, and so on.”
18
Appendix B—Opinion and Order of July 10, 1978 of the Com-
monwealth Court of Pennsylvania at No. 1890 Commonwealth
Docket 1977.
Nine bids were submitted for the work. The two with which
we are here concerned were those of the appellant Fiore in the
amount of $5.11 per ton of coal or 21% of the per ton sale
price of coal, and of Weiss Brothers Leasing, Inc. in the
amount of $5.27 per ton of coal or 13.17% of the per ton sale
price of the coal. On April 24, 1975 the commissioners made
an award to Weiss Brothers of the right of “drilling and test
boring on the site.”” The county solicitor testified that it was
his understanding of the April 24, 1975 action of the com-
missioners that all of the bidders were to be accorded the
right to perform drilling and test boring operations. Weiss
Brothers, however, adduced testimony to the effect that the
county solicitor advised them to draw up a lease under which
they might mine the coal. A lease was prepared by Weiss
Brothers and submitted to the county commissioners. It has
never been executed.
On July 24, 1975 the commissioners unanimously adopted a
resolution awarding the right to mine the property under
lease to the appellant Fiore at a price of $5.27 per ton, or 21%
of the per ton sales price. It is to be noted that the per ton
price of $5.27 is not that originally bid by Fiore ($5.11 per
ton), but that it is the same per ton amount offered by Weiss
Brothers. The percentage of sales price per ton at which the
proposed lease was awarded to Fiore was that offered by
Fiore and one which is considerably in excess of the amount
bid by Weiss Brothers (13.17%). No reference to any prior
dealings with Weiss Brothers appears to have been made when
this resolution was adopted.
The commissioners next caused to be prepared and to be
presented to the Court of Common Pleas of Westmoreland
19
Appendix B—Opinion and Order of July 10, 1978 of the Com-
monwealth Court of Pennsylvania at No. 1890 Commonwealth
Docket 1977.
County their petition asking the court’s approval of a pro-
posed lease to Fiore on the terms fixed in their resolution of
July 24, 1975, pursuant to Section 2306 of The County Code,
Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 2306.
As we have noted, the court below disapproved of the award
of the proposed lease agreement to Fiore. This action of the
court below was taken on September 19, 1975. Fiore then ap-
pealed to this Court. While the matter was pending here the
commissioners undertook: (1) on October 9, 1975, without
taking any action to rescind their award to Fiore, to award the
lease to Weiss Brothers for their original bid, $5.27 per ton or
13.17% of per ton sales price, (2) at some undisclosed time
after October 9, 1975, to petition the court below to approve
the award of a lease to Weiss Brothers; and (3) on December
31, 1975, to petition the court below for leave to withdraw
both their petitions for the approval of leases. '
Section 2306 of The County Code, 16 P.S. § 2306, requires
commissioners proposing to lease as lessor the right to mine
coal on county property to petition the court which “[a]fter
hearing . . . shall make such order or decree as shall seem
right and proper . . . .” The order which seemed right and
proper to the court below in the circumstances hereinbefore
described was one disapproving the proposed lease agreement
with Fiore. The court below believed, and we agree, that
there were a number of remarkable features of this contract-
ing process which required its action of disapproval. First,
' After the commissioners’ action of October 9, 1975, Fiore filed an ap-
plication in Commonwealth Court for supersedeas of the order then on ap-
peal which we granted, and which had the effect of holding in abeyance the
matter of the commissioners’ petition for approval of the proposed Weiss
Brothers’ lease.
20
Appendix B—Opinion and Order of July 10, 1978 of the Com-
monwealth Court of Pennsylvania at No. 1890 Commonwealth
Docket 1977.
there was a patent misunderstanding on the part of the com-
missioners, their solicitor and Weiss Brothers as to what was
awarded to Weiss Brothers by the resolution of April 24,
1975—was it merely a right to drill and make test borings or
was it a lease of mining rights? Their then solicitor, an able
lawyer, did not consider that action as a present award of the
right to mine the coal on the property: Weiss Brothers did and
has a lease prepared. The quoted part of the invitation sug-
gests that it might have been only an offer to Weiss Brothers
to test the feasibility of mining the coal. Next, the process by
which Fiore’s bid per ton of coal in the amount of $5.11 be-
came an award at a bid of $5.27 per ton is uncertain on the
record—was it the result of private negotiations between one
or more of the commissioners and Fiore, or was it, as one of
the commissioners testified, a unilateral suggestion of this
Commissioner? Further, except for the fact that Fiore has
supported the county’s petition for approval of a lease to him
on the amended terms, there is no other record of his
acquiesence in the increased price per ton. And then there are
the actions of the Commissioners in later awarding the lease
to Weiss Brothers on October 9, 1975 without rescinding the
earlier award to Fiore, and finally, in apparent despair over
the whole matter, seeking to withdraw both applications on
December 31, 1975.
In our earlier opinion we remarked briefly on the law as
follows:
“It is true that the power conferred upon the Com-
missioners by Section 2306 is discretionary, and when
public officials take action in discretionary matters a
presumption arises that they are properly acting for the
21
Appendix B—Opinion and Order of July 10, 1978 of the Com-
monwealth Court of Pennsylvania at No. 1890 Commonwealth
Docket 1977.
public good. Parker v. Philadelphia, 391 Pa. 242, 137
A.2d 343 (1958). Normally they may not be restrained
from acting absent allegation and proof of fraud, mis-
conduct, abuse of discretion, or capricious and arbitrary
conduct. Hyam v. Upper Montgomery Joint Authority,
399 Pa. 446, 160 A.2d 539 (1960). However, Section 2306
requires that the court, in approving the lease, exercise
its sound discretion as well. See Baton Coal Company Ap-
peal, 365 Pa. 519, 76 A.2d 194 (1950), and McKees Rocks
Borough School District Petition, 360 Pa. 285, 62 A.2d 20
(1948).” 25 Pa. Commonwealth Ct. at 534, 360 A.2d at
851.
We are fully satisfied that the court below in the circum-
stances of this case exercised a sound discretion in refusing to
approve the proposed lease to Fiore.
Weiss Brothers, who intervened, suggest that we should af-
firm the order below so that the court of common pleas might
take up the matter of the validity of what they assert was the
award of mining rights to them made by the Commissioners
on April 24, 1975. The commissioners have never petitioned
the court to approve their action of April 24, 1975 so that that
matter is not and has never been before the court. It seems to
us that what is properly before the court below with respect to
this litigation, now that the proposed lease to Fiore has been
disapproved, is the petition of the commissioners to withdraw
their petition for approval of a proposed lease to Weiss
Brothers. In view of the misadventures which have befallen
the invitation instituted in 1975 and the fact that the bids then
submitted are more than three years old, it would seem to us
that the public interest would be best served by acceding to
22
Appendix B—Opinion and Order of July 10, 1978 of the Com-
monwealth Court of Pennsylvania at No. 1890 Commonwealth
Docket 1977.
the commissioners’ apparent intention to terminate this ill-
starred venture.
Order affirmed.
THEODORE O. ROGERS,
Theodore O. Rogers, J.
Judge DiSalle dissents.
IN THE
COMMONWEALTH COURT OF PENNSYLVANIA
IN RE: LEASE OF COAL ON COUNTY LANDS SITUATE
IN HEMPFIELD TOWNSHIP, WESTMORELAND
COUNTY, PENNSYLVANIA
FRED FIORE, AGGRIEVED PARTY,
Appellant.
NO. 1890 C.D. 1977
ORDER
AND NOW, this 10th day of July, 1978, the order below
made August 19, 1977 is affirmed.
THEODORE O. ROGERS,
Theodore O. Rogers, J.
CERTIFIED FROM THE RECORD
JUL 10 1978
FRANCIS C. BARBUSH
CHIEF CLERK
23
APPENDIX C
Opinion and Order of August 19, 1977 of the Court of
Common Pleas (Court en Banc) of Westmoreland County,
Pennsylvania at No. 2618 of 1975 (Westmoreland
County)
IN THE COURT OF COMMON PLEAS OF
WESTMORELAND COUNTY, PENNSYLVANIA
CIVIL ACTION—LAW
IN RE: Lease of coal on county lands situate in Hempfield
Township, Westmoreland County, Pa.
No. 2618 of 1975
Before: David H. Weiss, P.J.
L. Alexander Sculco, J.
Richard E. McCormick, J.
Sitting En Banc
By the Court en Banc:
(Opinion by McCormick, J.)
This matter comes before the Court en Banc on Petition of
the Board of Commissioners of Westmoreland County for ap-
proval of a lease agreement for coal situate in Hempfield
Township, Westmoreland County, Pennsylvania owned by the
Westmoreland County Institution District. (Pursuant to the
Act of August 9th., 1955, P.L. 323, Section 2306 (16 P.S.
2306).
24
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
On February 13, 1975, the Westmoreland County Com-
missioners directed the County Solicitor to prepare an ad-
vertisement for strip mining and deep mining of coal on cer-
tain County-owned lands. The advertisement specified that
each bidder would submit bids in alternate form, either to
pay the County on a price per ton basis or on the basis of a
percentage of the sale price of the coal, and that no bid would
be considered unless it contained bids for both strip mining
and deep mining. The County reserved the right to reject any
and all bids. On March 18, 1975 the bids were opened, there
being a total of nine bids submitted. On April 24, 1975 the
Commissioners authorized the County Solicitor to proceed
with contract with the Weiss Bros. Leasing Inc. of
McKeesport, Pennsylvania for the drilling and test boring on
the coal site at Westmoreland Manor. The County Solicitor
pursuant to the direction of the County Commissioners
requested Weiss Bros. Leasing, Inc. to submit a proposed
lease agreement for the coal, which it did. That lease
agreement was never executed. On July 24, 1975 the Com-
missioners agreed to award the bid for the strip mining of
coal on property owned by Westmoreland County at West-
moreland Manor in Hempfield Township, Westmoreland
County, Pennsylvania to Fred Fiore Coal Company on a per-
centage basis with a minimum return to the County of not less
than $5.27 per ton, subject to Court approval. The Com-
missioners then petitioned the Court of Common Pleas for ap-
proval of the Fiore bid, as required by Section 2306 of the
County Code. September 19, 1975 was the date fixed for
hearing where several intervenors, who had submitted bids
pursuant to the advertisement, appeared arguing that an
=—=-
25
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County. Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
award to Fiore Coal Company would be improper and would
not be to the best interest of the people of Westmoreland
County. No testimony was taken at the hearing on September
19, 1975 but after argument by counsel for all of the parties
appearing at the hearing the Court entered an Order disap-
proving the award of the lease to Fred Fiore Coal Company
for the following reasons:
“1. Confusion in advertising.
2. Irregularity in accepting bids of two bidders.
3. The approval of this sale would not be in the best
interest of the people of Westmoreland County.”
Fred Fiore Coal Company took an appeal to the Penn-
sylvania Commonwealth Court from that Order.
On the 16th. day of July, 1976 the Commonwealth Court by
Order of Judge Theodore O. Rogers reversed the decision of
the Lower Court and remanded the matter to the Court for an
evidentiary hearing and decision on the facts established on
the record.
At the remanded hearing which was held on April 1, 1977
the testimony of H. Reginald Belden, Jr., Esquire, then
Solicitor for the County Commissioners, clearly indicates that
the award made to Weiss Bros., Inc. of McKeesport, Penn-
sylvania on April 24, 1975 by the County Commissioners was
an award to the highest and best bidder in response to the ad-
vertisement soliciting bids (Testimony 19-20). Mr. Belden
testified that he felt the award made on July 24, 1975 was also
an award made to Fred Fiore Coal Company even though no
26
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
formal action was ever taken by the Board of Commissioners
rescinding the award to Weiss Bros. nor was any notice given
to Weiss Bros. that they weren’t the recipients of the award.
Both the Petition for Approval of lease of coal and the
proposed lease agreement set forth that the County duly ad-
vertised for bids and proposals to accomplish the mining of
coal by both strip and deep mine method on the County-own-
ed property and that Fiore bid the advertised proposal for
material, labor and services required in order to accomplish
the purposes advertised for. The agreement further sets forth
that Fred Fiore was determined to be “the highest responsible
bidder and has been awarded the said contract for removal of
coal by the County under the terms and conditions hereinaf-
ter set forth.” The proposed agreement, Article 3: contract
price, sets forth the following:
“The contractor shall pay the County for the per-
formance of the contract and for all coal mined the sum
as successfully bid and accepted by the County, which is
21% of the sale price of coal mined and sold by the con-
tractor. . .”
The agreement further sets forth:
“in the event that the said percentage royalty payment to
the County, as above computed, shall result in a com-
puted royalty payment of less than $5.27 per ton of 2,000
pounds of coal for any coal sold during any calendar
month, then the contractor agrees to pay a minimum
royalty price of $5.27 per ton of 2,000 pounds of coal so
y
27
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
mined and sold, for all such coal mined and sold during
the said calendar month period”.
The Fiore Agreement was executed only by Fred Fiore.
The actual bid of Fred Fiore Coal Company dated March
18, 1975 is different from that as set forth in the proposed
lease agreement now for consideration before this Court. The
bid was as follows:
“(1) Payment to the County based upon the tonnage of
coal removed by either strip and deep mining operations
ween eee t ene e teen nee eeeeee eee $5.11 or, (2) payment to the
County based upon the percentage of the per ton sale
of the coal obtained by the contractor by strip and
deep mining operations ------------------------------ 21%”
It is obvious that the Petition and proposed agreement do
not accurately reflect the action of the Board of Com-
missioners nor do they reflect the actual bid made by Fred
Fiore Coal Company, Inc. The bid submitted by Fred Fiore
Coal Company was $5.11 per ton of coal and not $5.27 per ton
of coal. As a matter of fact, the bid of $5.27 per ton of coal
sold was that of Weiss Bros. Leasing, Inc.
On October 9, 1975 Motion was made by Mrs. Shope,
seconded by Mr. Simon and passed by majority vote, with
Mr. Shirey abstaining, to authorize the County Solicitor to
petition the Court to lease the rights of the coal in West-
moreland Manor property to Weiss Bros.
28
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
On December 31, 1975 the Westmoreland County Com-
missioners advised the County Solicitor to withdraw Petitions
to the Court of Common Pleas of Westmoreland County and
the Commonwealth Court of Pennsylvania requesting ap-
proval for strip mining of coal on the Westmoreland Manor
property both at No. 3436 of 1975 and No. 2618 of 1975, being
the Petitions of Weiss and Fiore, respectively.
This Court is aware of the law that even though the Court
might have a different opinion or judgment in regard to the
action of an agency, that is not sufficient legal reason for in-
terference. Judicial discretion must not be a substitute for ad-
ministrative or legislative prerogatives. Blumenschein v.
Pittsburgh Housing Authority, 379 Pa. 566 at 572, 573, 109
Atlantic 2d 331 (1954.)
The Court cannot in good conscience recognize the action
of the Board of Commissioners of Westmoreland County on
July 24, 1975 as being valid and disregard the actions of the
Board of County Commissioners on April 24, October 9 and
December 31 of 1975. To do so would amount to the Court
substituting its discretion fér that of the County Com-
missioners on the action taken by the Commissioners on all of
the dates with the exception of July 24, 1975. It is the opinion
of this Court that the various actions of the Board of County
Commissioners, i.e., on April 24, 1975, July 24, 1975, October
9, 1975 and December 31, 1975 were not consistent with each
other nor are they consistent with the Petition and proposed
agreement now before the Court.
2 a Sr eel
29
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
There is nothing in the record to indicate how the Com-
missioners arrived at the figures set forth in the award made
on July 24, 1975 to Fiore. It is clear, however, that the figures
on which the award were based were not the bid of Fiore in
response to the advertisement for bids which were opened on
March 18, 1975. A review of the record further indicates that
the Commissioners clearly indicated their intention to enter
into a lease agreement for the stripping and mining of the coal
on the Westmoreland County property with Weiss Bros.
Leasing, Inc. This is reflected in the action of the Board of
Commissioners on April 24, 1975 and by their request for a
proposed lease agreement to be submitted by Weiss Bros. and
the testimony of the Commissioner’s Solicitor that he felt an
award of the contract had been made to the successful bidder,
Weiss Bros. The Pennsylvania Supreme Court in the case of
Pearlman v. Pittsburgh, et al. 304 Pa. 25, page 25, speaking
generally as to the concept, stated:
+.
. .it is a novel proposition that the bid of a perfectly
responsible party can be ignored. ... the statute
requires that contracts be awarded to the lowest respon-
sible bidder and the Courts hold it is for the municipal
authorities to exercise a sound discretion to determine
who is such... .”
The above quoted opinion of Mr. Justice Walling is sup-
ported in a statement by Mr. Justice Kephard speaking for the
Court in Hibbs v. Aresnberg, 276 Pa. 24, p. 29 when the Court
said:
x
30
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
‘“ . , though the Directors were not bound in law to give
the contract to the lowest bidder, who might be irrespon-
sible, they were bound to investigate, and if a bidder
measured up to the law’s requirement as a responsible
party, the Board could not capriciously award the con-
tract to another. . .”
The Commissioners in the present case did just this, without
notice to Weiss to whom they had already made an award,
subject to Court approval or any other party in interest. The
opinions were reaffirmed in Summit Hill School District
Director’s removal, 289 Pa. 82, and quoted with approval in
Schuck v. School District of Baldwin Township, 296 Pa. 408,
p. 412 when, the Court said:
. .the Municipal Authorities having determined who
is the lowest responsible bidder, discretion ends and the
contract, if awarded, must be given to him. . .”
Based on these facts and the law the obviously private
negotiations entered into by the Commissioners and Fiore
must be questioned. It is not in the opinion of this Court an
abuse of the Court’s discretion to inquire into the wisdom of
such actions for “. . .an administrative body .. . is not
wholly immune from judicial review. . .” In Re: Petition of
Acchione, 425 Pa. 30 (1967).
Clearly there were irregularities in the procedure followed
by the Commissioners for Westmoreland County.
31
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
Although the governing statute is silent on the matter, the
case law strongly indicates that the Commissioners are given a
choice of three methods of sale:
A. Sealed bids.
B. Public auction.
C. Private sale with approval of the Court.
These three methods were recognized by the Supreme Court
in McKees Rocks Borough School District Petition, 360 Pa.
285, 62 Atlantic 2d, 20 (1948). In the instant case, as a result
of a newspaper advertisement nine bids were received by the
Controller of Westmoreland County, among others Fred
Fiore Coal Company submitted a bid based upon the tonnage
of coal removed at the rate of $5.11 per ton. The bid of Weiss
Bros. offered payment based on the tonnage of coal removed
at the rate of $5.27 per ton. Both of these bids were dated
March 18, 1975 and were opened by the County
Commissioners on that date. Subsequently the bid of Weiss
was accepted. Several months later the County Com-
missioners made an award to Fiore at a price which was dif-
ferent from the actual bid submitted by Fiore.
These inconsistencies cannot be overlooked by the Court. It
is the opinion of the Court that the irregularities are such that
approval of the Petition now before the Court cannot be
given. We therefore enter the following:
32
Appendix C—Opinion and Order of August 19, 1977 of the
Court of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County).
IN THE COURT OF COMMON PLEAS OF
WESTMORELAND COUNTY, PENNSYLVANIA
CIVIL ACTION—LAW
IN RE: Lease of coal on county lands situate in Hempfield
Township, Westmoreland County, Pa.
No. 2618 of 1975
Before: David H. Weiss, P.J.
L. Alexander Sculco, J.
Richard E. McCormick, J.
DECREE
AND NOW, to-wit: this 19th day of August, 1977, after due
and careful consideration of all of the testimony and exhibits
submitted after full hearing the Petition of the County
Commissioners of Westmoreland County for approval of a
proposed lease agreement between Fred Fiore and the County
of Westmoreland be and the same is hereby disapproved.
BY THE COURT:
RICHARD E. McCORMICK,
Judge.
Concurring:
L. Alexander Sculco,
Judge.
ATTEST:
David H. Weiss, P.J., Leo Sukala, Prothonotary
Judge. Prothonotary.
Lat ar nae i
—
33
APPENDIX D
Opinion and Order of September 19, 1975 of the Court
of Common Pleas (Court en Banc) of Westmoreland
County, Pennsylvania at No. 2618 of 1975 (Westmoreland
County)
IN THE COURT OF COMMON PLEAS
OF WESTMORELAND COUNTY, PENNSYLVANIA
CIVIL ACTION—LAW
In Re: Lease of coal on County lands situate in Hempfield
Township, Westmoreland County, Pa.
No. 2618 of 1975
Heard: September 19th, 1975
Before: DAVID H. WEISS, P.J.
L. ALEXANDER SCULCO, J.
RICHARD E. McCORMICK, J.
Sitting en Banc
AND NOW, to wit, this 19th day of September, the Court
by unanimous vote, denies the Commissioner’s Petition to ap-
prove the agreement and lease for the subject coal to Fred
Fiore Coal Company. The reasons for same being:
1. Confusion in advertising.
2. Irregularity in accepting bids of two bidders.
3. The approval of this sale would not be in the best
interest of the people of Westmoreland County.
34
Appendix D—Opinion and Order of September 19, 1975 of the
Court of Common Pleas (Court en Banc) of Westmoreland-
County, Pennsylvania at No. 2618 of 1975 (Westmoreland-
County).
This decision is based on the legal arguments presented by
counsel for the bidders, intervenors, and the County.
BY THE COURT:
DAVID H. WEISS, P.J.,
David H. Weiss, President Judge.
CONCURRING:
L. Alexander Sculco
L. Alexander Sculco, J.
Richard E. McCormick
Richard E. McCormick, J.
ATTEST:
Leo Sukala, Prothonotary
Prothonotary
te ae wns Shane
35
APPENDIX E
Opinion and Order of July 16, 1976 of the Com-
monwealth Court of Pennsylvania at No. 1480 Common-
wealth Docket 1975
IN THE
COMMONWEALTH COURT OF PENNSYLVANIA
In Re: LEASE OF COAL ON COUNTY LANDS SITUATE |
IN HEMPFIELD TOWNSHIP, WESTMORELAND
COUNTY, PENNSYLVANIA
APPEAL OF FRED FIORE, AGGRIEVED PARTY
FRED FIORE,
Appellant.
NO. 1480 C.D. 1975
Before: HONORABLE JAMES S. BOWMAN,
President Judge
HONORABLE GLENN E. MENCER, Judge
HONORABLE THEODORE O. ROGERS, Judge
ARGUED: MAY 6, 1976 - PITTSBURGH
OPINION BY JUDGE ROGERS FILED: JULY 16, 1976
This is an appeal by Fred Fiore, owner of Fiore Coal Com-
pany, from an order of the Court of Common Pleas of West-
moreland County denying a petition for approval of a lease
for the mining of coal on land located within Westmoreland
County’s Institution District. We reverse and remand.
36
Appendix E—Opinion and Order of July 16, 1976 of the Com-
monwealth Court of Pennsylvania at No. 1480 Commonwealth
Docket 1975.
On February 13, 1975, the Westmoreland County Commis-
sioners directed the county solicitor to prepare an advertise-
ment for strip mining and deep mining of coal on certain
county-owned lands. The advertisement specified that each
bidder would submit bids in alternate form, either to pay the
County on a price per ton basis or on the basis of a percentage
of the sale price of the coal, and that no bid would be con-
sidered unless it contained bids for both strip mining and
deep mining. The County reserved the right to reject any or
all bids. On April 24, 1975, after several bids were submitted
in response to the advertisement, the Commissioners
authorized the solicitor to contract with Weiss Brothers
Leasing, Inc. (Weiss) for the drilling and test boring on the
coal site. Whether a contract of this nature was never
executed we do not know. On July 24, 1975, the Com-
missioners unanimously agreed to award the lease for mining
of coal on the site to Fiore on a percentage basis with a
minimum price of not less than $5.27 per ton.' Fiore’s bid, as
amended, was clearly the best bid. The Commissioners then
petitioned the Court of Common Pleas for approval of the
Fiore bid, as required by Section 2306 of The County Code.’
On September 19, 1975, the date fixed for hearing, the lower
court en banc engaged in an extended colloquy with counsel
representing Fiore, several disappointed bidders and a newly
appointed county solicitor. On the same day as the so-called
hearing the court below entered a brief order disapproving
the award of the lease to Fiore for the following reasons:
' Fiore’s first bid, entered March 18, 1975, was for $5.11 per ton or 21% per
ton sale. Apparently, sometime afterward, private negotiations resulted in
the guarantee to the County by Fiore of $5.27 per ton.
* Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 2306.
ipo nee eee -
37
Appendix E—Opinion and Order of July 16, 1976 of the Com-
monwealth Court of Pennsylvania at No. 1480 Commonwealth
Docket 1975.
“1) Confusion in advertising.
2) Irregularity in accepting bids of two bidders.
“3. The approval of this sale would not be in the best
interest of the people of Westmoreland County.”
Fiore has appealed from that order.
The Westmoreland County Commissioners appear before
this Court in the anomolous position of supporting the denial
by the lower court of their own petition for approval of the
Fiore bid. The Commissioners defend their present position
by asserting that confusion existed during the bidding pro-
cedure. * Weiss, an intervenor, asserts that its bid, having been
the first accepted by the Commissioners, should be consider-
ed the only valid bid and therefore requests us to remand the
matter to the lower court to enable it to pass on the Weiss bid.
Fiore contends that the Commissioners wanted Weiss only to
make test borings and that he, Fiore, had been awarded the
mining lease. Fiore says that the lower court abused its dis-
cretion by disapproving the Commissioners’ decision.
“After the lower court disallowed the Fiore bid, the Commissioners
petitioned the lower court for approval of the Weiss bid. A writ of super-
sedeas from this Court prevented the lower court from considering that
petition. Subsequently, the Commissioners directed their solicitor to with-
draw all petitions and now take the position that the matter is moot. It is in-
conceivable that such unilateral action in the face of a supersedeas order
can have any such effect.
38
Appendix E—Opinion and Order of July 16, 1976 of the Com-
monwealth Court of Pennsylvania at No. 1480 Commonwealth
Docket 1975.
At the hearing no testimony was taken.* None of the
documents, including the advertisement for bids, the bids re-
ceived, and the Commissioners’ minutes, were introduced
into evidence during the hearing; nor are they in the record
certified from the court below. (The appellant has filed a so-
called supplemental record containing papers purporting to
be these documents. )
Section 2306 of The County Code, 16 P.S. § 2306, provides:
“The Board of Commissioners may sell or lease . . .
any real property belonging to the county. . . . In the
event of such sale, or of a lease as lessor under which the
lessee acquires on a royalty basis or otherwise the right to
drill for oil or gas or to mine or remove coal, stone or
other mineral products . . . the commissioners shall
petition the court of common pleas, setting forth a
description of the property to be sold or leased and the
reason therefor. . . . The court shall thereupon fix a day
for hearing, notice of which shall be given in at least two
newspapers, in said county, of general circulation, once a
week for three consecutive weeks. After hearing, the court
shall make such order and decree as shall seem right and
proper. . . .” (Emphasis supplied.)
The proceeding below involved issues of fact and the court
below decided this case on facts (confusion in advertising, ir-
regularity in accepting bids and the best interest of the com-
munity) without any facts on the record.
* Fiore offered as a witness one of the Commissioners, a petitioner. ap-
parently in support of the reasonableness and regularity of the Board's
award to Fiore. Although the formal offer was not made until after the
court announced its order, we view this irregularity inconsequential in light
of the informality of the proceedings.
as Sess Re eit
39
Appendix E—Opinion and Order of July 16, 1976 of the Com-
monwealth Court of Pennsylvania at No. 1480 Commonwealth
Docket 1975.
It is true that the power conferred upon the Commissioners
by Section 2306 is discretionary, and when public officials
take action in discretionary matters a presumption arises that
they are properly acting for the public good. Parker v.
Philadelphia, 391 Pa. 242, 137 A.2d 343 (1958). Normally they
may not be restrained from acting absent allegation and proof
of fraud, misconduct, abuse of discretion, or capricious and
arbitrary conduct. Hyam v. Upper Montgomery Joint Authority,
399 Pa. 446, 160 A.2d 539 (1960). However, Section 2306 re-
quires that the court, in approving the lease, exercise its
sound discretion as well. See Baton Coal Company Appeal, 365
Pa. 519, 76 A.2d 194 (1950), and McKees Rocks Borough
School District Petition, 360 Pa. 285, 62 A.2d 20 (1948).
Judicial discretion must be exercised upon the facts before
the court after a full hearing and due consideration.
Philadelphia County Grand Jury Investigation Case, 347 Pa. 316,
32 A.2d 199 (1943). No record was developed by the court
below upon which it could properly perform its function.
Therefore, we enter the following:
ORDER
AND NOW, this 16th day of July, 1976, the decision of the
lower court is reversed and the matter is remanded for an
evidentiary hearing and decision on facts established on the
record as the law requires.
THEGDORE O. ROGERS,
Theodore O. Rogers, J.
40
APPENDIX F
Petition for Rehearing before the Court of Common
Pleas (Court en Banc) of Westmoreland County, Penn-
sylvania to Order of September 19, 1975 at No. 2618 of
1975 (Westmoreland County)
IN THE COURT OF COMMON PLEAS OF
WESTMORELAND COUNTY, PENNSYLVANIA
IN RE: Lease of coal on County lands situate in Hempfield
Township, Westmoreland County, Pennsylvania.
No. 2618 of 1975
TO: The Honorable, the Judges of said Court:
The Petition of Fred Fiore Coal Company, an aggrieved
party and interested party, respectfully represents:
1. That he is an interested and aggrieved party in this
case.
2. That an Order was entered by this Court against
petitioner on September 19, 1975 wherein the Commissioners
of Westmoreland County’s Petition to approve this agreement
and lease for coal on county lands to Fred Fiore Coal Com-
pany was denied.
3. That this case should be reheard for the following
reasons:
a ee Pi cD ts
4
Appendix F—Petition for Rehearing before the Court of Com-
mon Pleas (Court en Banc) of Westmoreland nty, Penn-
sylvania to Order of September 19, 1975 at No. 2618 of 1975
(Westmoreland County).
(a) That the reasons set forth by the Court for disap-
proval are not supported by the evidence of the law in
this case and that the aggrieved party will prove this
averment by further testimony at rehearing if this
petition is granted.
(b) That the Court, in light of oral argument and
evidence presented at the hearing on September 19, 1975,
abused its discretion by not approving the Com-
missioners Petition in this case.
(c) That Petitioner, Fred Fiore Coal Company,
wishes to show by further proof and testimony that was
not presented at the hearing of September 19, 1975, that
the approval of the Commissioners Petition would be in
the best interest of the people of Westmoreland County;
that there was no confusion in advertising and that there
were no irregularities in the bidding or acceptance of
bids.
(d) That petitioner is the victim of fraud, mistake and
coercion or the equivalent thereof.
WHEREFORE, petitioner prays that the case be reheard,
and that pending this petition all proceedings be stayed.
EDWARD P. ZEMPRELLI,
Edward P. Zemprelli,
Attorney for Petitioner.
42
Appendix F—Petition for Rehearing before the Court of Com-
mon Pleas (Court en Banc) of Westmoreland County, Penn-
sylvania to Order of September 19, 1975 at No. 2618 of 1975
(Westmoreland County).
IN THE COURT OF COMMON PLEAS OF
WESTMORELAND COUNTY, PENNSYLVANIA
CIVIL ACTION—LAW
In Re: Lease of coal on County lands situate in Hempfield
Township, Westmoreland County, Pennsylvania.
No. 2618 of 1975
Heard: September 19th, 1975
Before: David H. Weiss, P.J.
L. Alexander Sculco, J.
Richard E. McCormick, J.
Sitting en Banc
PRAECIPE FOR ARGUMENT LIST FOR REHEARING
BEFORE COURT EN BANC
1. Please place the above captioned case on the next
argument list for rehearing before the Court en Banc, at which
time a Petition For Rehearing will be presented.
2. The party requesting the rehearing is Fred Fiore Coal
Company, an interested party and a person aggrieved by the
Order of September 19, 1975 of the Court of Common Pleas
of Westmoreland County sitting en Banc.
rg eT om.
43
Appendix F—Petition for Rehearing before the Court of Com-
mon Pleas (Court en Banc) of Westmoreland County, Penn-
sylvania to Order of September 19, 1975 at No. 2618 of 1975
(Westmoreland County).
3. The Petition prays that by its petition for rehearing that
the Court will grant petitioner a rehearing in order to present
further testimony bearing on the Courts’ decision which was
not presented at the hearing of September 19, 1975. *
4. WHEREFORE, Fred Fiore Coal Company, Petitioner,
respectfully requests that the above captioned case be placed
on the next argument list before the Court en Banc, with
notice sent to:
H. Reginald Belden, Jr., Esq.
100 North Main Street
Greensburg, Pennsylvania 15601
James R. Kelly, Esq.
B. Patrick Costello, Esq.
Commissioners of Westmoreland County
Dorothy K. Shope
Robert G. Shirey
Ted Simon
The Honorable Judges of the Court of Common Pleas of
Westmoreland County:
David H. Weiss, P.J.
L. Alexander Sculco, J.
Richard E. McCormick
EDWARD P. ZEMPRELLI,
Edward P. Zemprelli,
Attorney for Fred Fiore
Coal Company.
44
APPENDIX G
Petition for Allowance of Appeal to the Supreme Court
of Pennsylvania at No. 1677 Allocatur Docket (less
Exhibits Appended hereto at B through E)
IN THE
SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
No. 1677 Allocatur Docket
IN RE: LEASE OF COAL ON COUNTY LANDS SITUATE
IN HEMPFIELD TOWNSHIP, WESTMORELAND
COUNTY, PENNSYLVANIA.
FRED FIORE, AGGRIEVED PARTY,
Petitioner,
COUNTY OF WESTMORELAND,
Respondent,
WEISS BROTHERS LEASING, INC.,
Respondent.
Petition for Allowance of Appeal from the order of the Com-
monwealth Court, entered July 10, 1978, at No. 1890 C. D.
1977, affirming the order of the Court of Common Pleas of
nec nce tL ane
45
Appendix G—Petition for Allowance of Appeal to the Supreme
Court of Pennsylvania at No. 1677 Allocatur Docket (less
Exhibits Appended hereto at B through E).
Westmoreland County, Pennsylvania, Civil Division-Law,
dated August 19, 1977, at No. 2618 of 1975.
RICHARD H. GALLOWAY,
ACKERMAN & GALLOWAY.
11 North Main Street,
Greensburg, Pennsylvania 15601
(412) 836-0700,
EDWARD P. ZEMPRELLI,
528 St. Clair Avenue,
Clairton, Pennsylvania 15025
(412) 233-8803,
Attorneys for Petitioner.
The opinion of the Commonwealth Court is, at this date,
unreported officially or unofficially (a copy of said opinion is
attached hereto and marked Exhibit A). The Commonwealth
Court’s order, dated and entered July 10, 1978, is as follows:
“AND NOW, this 10th day of July, 1978, the order below
made August 19, 1977 is affirmed.
/s/ Theodore O. Rogers, J.”
Theodore O. Rogers, J.
The questions presented for review are whether the Court
of Common Pleas exceeded the scope of its authority and the
mandated scope of its review in rejecting the proposed coal
lease and whether the Court of Common Pleas had facts
before it sufficient to justify its rejection of the proposed coal
lease.
46
Appendix G—Petition for Allowance of Appeal to the Supreme
Court of Pennsylvania at No. 1677 Allocatur Docket (less
Exhibits Appended hereto at B through E).
In early 1975 the Westmoreland County Commissioners by
public advertisement invited the submission, on or before
March 18, 1975, of bids for the mining of coal on county
land. The advertisement required that bids should be sub-
mitted in the form of two alternatives for payment: (1)
payment based on tonnage of coal removed, or (2) payment
based on a percentage of the per ton sale price of the coal. On
July 24, 1975, the commissioners unanimously adopted a
resolution awarding the right to mine the property to the
petitioner, Fred Fiore, for 21% of the per ton sales price,
with the proviso that such percentage could not fall below
$5.27 per ton. The latter provision was an amendment offered
by Commissioner Ted Simon and adopted by the Board, since
Fiore’s original bid had been for 21% of the per ton sales
price or $5.11 per ton. The Commissioners had earlier, on
April 24, 1975, awarded to Weiss Brothers Leasing, Inc., the
right of “drilling and test boring on the site.’ Weiss Brothers
Leasing, Inc.’s bid had been 13.17 percent of the per ton sales
price or $5.27 per ton.
The Commissioners then presented the Court of Common
Pleas of Westmoreland County a petition asking approval of
the proposed lease to Fiore, pursuant to Section 2306 of the
County Code, Act of August 9, 1955, P.L. 323, as amended,
16 P.S. Section 2306. Without taking any testimony or
evidence, the court disapproved the award of the proposed
lease to Fiore, in an order dated September 19, 1975 (a copy
of said order is attached hereto and marked Exhibit B). Fiore
appealed to the Commonwealth Court which reversed the
lower court and remanded for an evidentiary hearing, in an
opinion and order dated July 16, 1976. In Re: Lease of Coal on
ee
47
Appendix G—Petition for Allowance of Appeal to the Supreme
Court of Pennsylvania at No. 1677 Allocatur Docket (less
Exhibits Appended hereto at B through E).
County Lands Situate in Hempfield Township, Westmoreland
County, Pennsylvania, 25 Pa. Commonwealth Ct. 530, 360
A.2d 849 (1976). (a copy of said opinion and order is attached
hereto and marked Exhibit C).
On August 19, 1977, after an evidentiary hearing, the Court
of Common Pleas of Westmoreland County again disapproved
the lease to Fiore (a copy of said opinion and order is at-
tached hereto and marked Exhibit D). Again the matter was
appealed to the Commonwealth Court which, on July 10,
1978, affirmed the lower court’s action.
An appeal should be allowed for the following reasons:
1. The precise function of the Court of Common Pleas in
approving or disapproving such leases, under the County
Code, never has been delineated.
2. The various burdens in such a proceeding have not
been established by the appellate courts.
3. The case involves millions of dollars to each of the par-
ties here invoived.
4. If the ultimate test to be applied is whether the County
Commissioners abused their discretion, there is no evidence
to support the conclusion of the lower court or the Com-
monwealth Court.
5. Because of the greatly deflated coal market, if the or-
der stands, the County of Westmoreland will, in all
likelihood suffer losses totaling millions of doliars.
Attached hereto and marked Exhibit E is the full text of
Section 2306 of the County Code, Act of August 9, 1955, P.L.
323, as amended, 16 P.S. Section 2306.
48
Appendix G—Petition for Allowance of Appeal to the Supreme
Court of Pennsylvania at No. 1677 Allocatur Docket (less
Exhibits Appended hereto at B through E).
WHEREFORE, the petitioner repectfully requests this
Honorable Court to allow an appeal in the within matter for
the reasons set forth herein.
Respectfully submitted,
EDWARD P. ZEMPRELLI,
Edward P. Zemprelli,
RICHARD H. GALLOWAY,
Richard H. Galloway.
EXHIBIT E
Section 2306. Authority to Sell or Lease Real Property
The board of commissioners may sell or lease, either as
lessor or lessee, any real property belonging to the county or
to others where the county is lessee. In the event of such sale
or of a lease as lessor under which the lessee acquires on a
royalty basis or otherwise the right to drill for oil or gas or to
mine or remove coal, stone or other mineral products or to
cut and remove trees, stumps, wood or other forest products,
the commissioners shall petition the Court of common pleas,
setting forth a description of the property to be sold or leased
and the reason therefor. If the commissioners know or have
reason to believe that the property to be sold contains oil, gas,
coal, stone, timber or other mineral or forest products of
commercial value, such knowledge or belief shal! be stated
together with the description. The Court shail thereupon fix a
day for hearing, notice of which shall be given in at least two
newspapers, in said county, of general circulation, once a
week for three consecutive weeks.
siidinnen
teenie ae eateens ASS
ee
49
Appendix G—Petition for Allowance of Appeal to the Supreme
Court of Pennsylvania at No. 1677 Allocatur Docket (less
Exhibits Appended hereto at B through E).
After hearing, the Court shall make such order and decree
as shall seem right and proper. In the case of any lease of
county property hereunder, such property, with any and all
improvements or additions thereon or thereto, shall, in the
hands of the lessee, be subject to taxation by such county and
any other political subdivision therein, in the same manner as
other real estate located in the county. Such taxes shall be
levied and assessed against and paid by the lessee. This sec-
tion shall not apply to leases or sales of county property or
other property which are otherwise specifically provided for
by law. 1955, Aug. 9, P.L. 323 Section 2306.
IN THE
SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: LEASE OF COAL ON COUNTY LANDS SITUATE
IN HEMPFIELD TOWNSHIP, WESTMORELAND
COUNTY, PENNSYLVANIA
FRED FIORE, AGGRIEVED PARTY,
Petitioner,
COUNTY OF WESTMORELAND,
Respondent,
WEISS BROTHERS LEASING, INC.,
Respondent.
50
Appendix G—Petition for Allowance of Appeal to the Supreme
Court of Pennsylvania at No. 1677 Allocatur Docket (less
Exhibits Appended hereto at B through E).
PROOF OF SERVICE
I hereby certify that I am this date serving the foregoing
document upon the persons and in the manner indicated
below, which service satisfies the requirements of Pa. R.A.P.
121:
Service by first class mail Thomas Anton, Attorney for Weiss
addressed as follows: Brothers Leasing Inc.—Respondent
16 North Pennsylvania Avenue
Prothonotary, Supreme Court Greensburg, Pennsylvania 15601
of Pennsylvania, Western District
801 City-County Building Irving L. Bloom, Attorney for County
Pittsburgh, Pennsylvania 15219 of Westmoreland—Respondent
(original plus eight (8) copies plus Courthouse Square
reproduced record) ‘ Greensburg, Pennsylvania 15601
Dated: August 8, 1978
RICHARD H. GALLOWAY,
Richard H. Galloway,
Ackerman & Galloway,
11 North Main Street,
Greensburg, Pennsylvania 15601.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.