Petition — Fiore v. County of Westmoreland

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

a

Paice Court, Ui

+4

fa

MAR 95 1979

ee

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.