Petition for A Writ of Certiorari — Eways v. Board of Road Supervisors of Exeter Township

Supreme Court brief1966

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foe ee Office-Supreme Court, U.S.

Pees Gages 4 ‘FILED

na, %, Ms sata SEP.21 1966 —

sie |_JOHN F. pais, CLERK ‘

_ Supreme Court of the United States

October Term, 1966.

0.58 8...

MUSA J. EWAYS and JEANETTE =. EWAYS, his wife,

Petitioners,

BOARD OF ROAD SUPERVISORS OF ‘EXETER TOWN-

SHIP, Exeter Township, Berks County, Pennsylvania, and

EXETER TOWNSHIP MUNICIPAL AUTHORITY, of ~

Exeter Township, Berks County, Pennsylvania.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA.

’ ” 9

J. Pennineton Srravs, —

CG. Witsox Avastin,

ScHNADER, Hakrzison, waa

& Lewis, |

1719 Packard Building, :

Philadelphia, Pa. 19102 .

Spzicuer, Austin, Connor 2.

& Gioret, ~~

44 N. Sixth Street,

Reading, Pa. 19601 *

Of Counsel.

o Attorneys for Petitioners.

International, 711 So. S0th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215°

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OPINIONS BELOW PLT Op ROO OE EOL LS ina yep. Oe

JURISDICTION .....,..

QUESTION PRESENTED ageteeteecgesteceesneeseeeeseu sees

ConstrTuTIONAL Provision INVOLVED cecbecvsesdacsnucees

STATEMENT PE Neca Naat ere es

é M5 ers

REASONS FoR GRANTING THE Wart i ccvdesibaeebuabasanews

1. The Importance of the — s Suit in ‘State and

Local Government : eal asia kh ig yi eal Mila on ae

2. The Special aiinaie a of the Taxpayer’ s ‘Suit Where

a Municipal Authority Is Involved snes hav due dbowe

3.-ThHe Decisions Below a wea

4. Petitioners’ Proof seein eases

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CONCLUSION

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TABLE OF CASES CITED. -

“ata _-Page

Avinlasong v. @lanzo, 380 U. S. 545 (1965) ...... pon: RED 5

: Francis v. Henry, 399 Pa. 369, 160 A. 2d 455: (1960) ...... oe 5

“* Gaines v. Philadelphia ‘Transp. Cons 359 Pa. 610, 59 A: 24 916

(1948) 0... eee ee Saacthasengeercen Snadicanedg ts sls

Hyam et al. v v. Upper “Montgomery Joint Satthacity et al., 399

‘Pa-446 (1960) 2 ..... eee eees Suarcncecbeipevnds "210,41

Levy's Estate, 326 Pa: 310,:192 Atl. 102 (1937) .....2...... 5 15

Mistick v. Cammack, 397: Pa..296, 154 A, 2d 588 (1959) ..:....11, 12

Page v. King, 285 Pa. 153, 131 Atl. 707 (1926) «.......0...° 7

Price v. Phila. "Parking Authority, 422 Pa. 317 (1966) ...... 8

7 Rhoades, Inc. v. United Air Lines, Inc., 340 F, 2d 481 (3rd }-

* hee, TRGB). oe cicvccnesvcdccccccecécccccesevcesesace 12

Schwartz v. “Urban Rediieslopment” Authority of Pittsburgh,

411 Pa.-530, 192 A..2d 371 (1963): ...cecccaccsecccese 15

Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853)....... B

Speisér v. Randall, 357 U. S. 513 (1958) ...........eeeeees 5,6

' Western & AtL Rv. Henderson, 279 U. S. 639 1 ere 5

Winger v. Aires, 371 Pa. 242, 89 A, 24.521 (1952) .......2.. 15

STATUTES AND AUTHORITIES CITED.

Page

Citiiaiia Taxpdyers? Suits: A Satin and Summary, 69 Yale

Bi Oe GE 6 dx dntnccatenesedbsndeccagoucseeaks ae

Jaffe, Standing to Secure Judicial Review : Public Actions 74.

Harv. L. Rev. 1265 (1961) ....... Pe a pre Pen 6

Morris, Evading Debt Limitations With Public Building-Au-.

thorities : The Costly Subversion of State Constitutions, 68

ee PR ree eae 8,9

Pa. Const., Art..9, §8 ........... tise usaahoueieweciws woke SS

Pennsylvania Municipality Authority Act of 1945, Pa. - Stat.

5 I I gives cacacdaveeteccecncpanss 9

28 U.S. C. S100) «...2.. os: Maes patients -

U. S. Constitution, Amendment 14, IES ie etcacn. - 2, 15

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SS :

_ Supreme Court. of the United States.

3 . a : eae

- Ocrosrr’ TERM, 1966. *

3 . No.

MUSA J. EWAYS ann JEANETTE, M. EWAYS, His

es Petitioners,

< 2 :

BOARD OF ROAD SUPERVISORS OF EXETER ~

TOWNSHIP, Exerer TownsiiP, Berks County, Penn-

syYLVANIA, AND EXETER TOWNSHIP MUNICIPAL _

AUTHORITY, or Exeter Townsur, Berks County,

PENNSYLVANIA. ae , oe Ue

PETITION FOR A WRIT OF CERTIORARI TO THE

“SUPREME COURT OF PENNSYLVANIA. =

e _ ee

_ Musa J. Eways and J eanetie M..Sways, his wife,

petition for a writ of certiorari to review the judgment of

_ the Supreme Court of Pennsylvania entered in the above » :

case on June 24, 1966. | mi

ene OPINIONS BELOW. .

‘The memorandum of reasons for-decision of the Court

of Common Pleas of Berks County, Pennsylvania (R. 192a-

195a)' is unreported. The opinion of the Supreme Court

of Pennsylvania (App., infra,.pp. i-iii) is reported at 422

Pa. 169 (1966). : : Sis

1. References herein are to the printed Record.

. o.

on. Petition aN a Writ of Certiorari’

ee 4. _ JURISDICTION.

ae The judgment oft the Supreme Court of ‘Vea aii |

. (App., infra, p. iii) was entered on June. 24, 1966. The

: a of this Court is “invoked under 28 U.S. -

: § 1257(3).

“QUESTION 1 PRESENTED.

Whether i in a state taxpayer’ 8 suit brought to ial aeis

' “the action of a towiship and municipal authority, where ;

evidence has been introduced which, if believed, would

_establish fraud and abuse of discretion on the part. of de-

| fendants, the trial court’s ‘dismissal of the action. without

. putting defendants. to their proof constitutes a denial of

_ the due process. guaranteed by the Fourteenth. Amendment

to the United States Constitution.

: | ey > . ty mes

> comeerto rina PROVISION INVOLVED.

Acieamiialieiat 14, Section 1 of. the’ Constitution of the

United States provides:

“Due process. and equal protection of laws. — |

_* * * nor shall any. State deprive any person of life, "

liberty, or property, without due process of law;-nor °

deny to any person within its ne ‘the —

oe of. the laws. ”

‘Petition for a Writ of —— Piene oe

STATEMENT.

Politioners brought this taxpayer’ s' suit, in the public

* behalf, to challenge the conduct of the Board of Supervisors.

of Exeter Township, Berks County, Pennsylvania and the

Exeter Township Municipal Authority, which led to the

_ adoption of a certain plan (hereinafter referred to as the

Gannett Plan) for sewering ‘areas of that Township. Peti-

tioners alleged that the plan’s adoption resulted from

fraud on the part of the defendant Board of Supervisors

and abuse of discretion by the Municipal Authority. “ :

- Petitioners’ complaint. in equity was filed in the Court. -

of Common Pleas on June 25, 1965 (R. 3a). The defend-

ants answered on July‘8, 1965, joining issue ‘on the merits ©

and, pleading. New Matter, ‘raised several riew issues: of eos

fact as defense (R. 8a; 21a; 22a). Plaintiffs replied to

‘ defendants’ New Matter. on July 16, 1965 (R. 230-428), and -—

' the case went to trial.

In support of their silts petitioners offered evi-

dence tending to prove that: :

_ . . 1. The seope and expense ‘of the Gannett Pia, which |

iia would extend service to several sparsely populated areas

* of the: Township, * were excessive (R. 112a-113a). — ,

| ‘ Substantially the same amount: of justifiable sewer

coverage could have been obtained by adopting an earlier

plan developed in a report (hereinafter referred to as

. Mast plan) prepared at the Township’s request by. Mast

_ Engineering Company, Inc. of which petitioner Musa J.

Eways is and was president. and sole shareholder, at a

‘ present cost of not more than $2,650,000, as opposed to-

. the: Gannett plan’ 8 $6,000,000 cost (R. 97a-98a, 176a-177a).

3. Tlie Municipal Authority of Exeter ‘Township, a

group of five laymen, was created subsequent to the sub-

mittal of the Mast plan and made its decision without.the

benefit of having seen the Mast plan in its entirety (R. 64a)

and without officially nevis viewed any _— of the Meat |

‘plan | (B. 38a).

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| Petition for a Writ of Certiorar

4. Members of the Authority were unaware, even after

- ‘adoption of the Gannett plan, that any plan for sewering

‘the Township at substantially. lower cost sro ever been

submitted (R. 108a).

5. The Authority ¢) adoption. of the Gannett plan was

induced in part by the urging of a member of the Town-

‘er Board of Supervisors (RB. | 143a-44a).

-6. The Gannett plan ’s. silliaillien of sewer lines into

several areas of the Township was predicated upon wholly

unrealistic estimates of future population ses 116a, sare

149a-151a). -

¥; ‘The’ Ganneit. plan would in one area nina an

existing sewer line to which the Township had — access

_ CR. 116a-117a, 149a-151a).

¢ 8. Certain sewer lines i in the Gannett plan would pass .

through unpopulated territory for unreasonable lengths

and terminate without em any eee area (R, 133a,

- 134a, 138a).

Upon the plaintiffs’ conclusion of proof, defense coun-:

sel moved for a compulsory nonsuit. on the ground. that

plaintiffs’ evidence had failed to éstablish abuse of discte-

tion or fraud on the part of the defendants. The motion

was granted (R. 2a) without requiring defendants either

to controvert plaintiffs’ evidenc@or to prove the allega-

tions of New Matter raised in their answer.” ,

‘On appeal, the Supreme Court of Pennsylvania affirmed

the decision of the trial court on the ground that ‘‘* * * The

, record fails to diselpse bad faith, fraud abut of power,

or’ arbitrary or capricious conduct on part of appel- -

‘lees. *.* *’’ (App.,'p! iii, infra). The Supreme Court did

not touch upon petitioners’ assertion that the lower court’s

failure to put defendants,to the proofs they had suggested

constituted an abuse of petitioners’ constitutional right to

a full hearing on ens matter.

Petition for a Writ of Certiorari “4G

oan

REASONS FOR GRANTING THE WRIT.

‘It. is well settled, in Pennsylvania as in most juris-

_ + dictions, that, upon a motion for nonsuit, the evidence of

the-challenged party must be taken as true. Wigmore on

E ce (3rd Ed.) § 2495; Francis v. Henry, 399 Pa. 369,

. 160A. 2d 455 (1960). The rule applies in both jury and.

non-jury cases and, in fact, 1 is applied most any Ae in ben

latter category. Gaines v. Philadelphia Transp. Co

Pa. 610, 59 A. 2d 916 (1948). °

The rule4s grounded in the concept of fair play oi

_ fair trial. The failure to apply the rule, even though, it

be d rule of procedure, can; in certain circumstances, create

an issue which rises to the dignity of a constitutional ques-

tion. | Recently, Mr. Justice Brennan, speaking for the

Court in Speiser v. - Randall, 357 U. S. 513 (1958); stated .

(at pp. 520-521): .

“To experienced lawyers it is cieieaiias that

the outcome of a lawsuif—and hence the vindication

of legal rights—depends more often on how the fact-

finder appraises the facts than on a disputed construc-

tion of a statute or interpretation of a line of prece-

*. derits. Thus the procedures’ by which the facts of the

case are determined assume an importance fully as

great as the validity of the, substantive rule of law

to be applied. And the more important the rights at

‘stake the more important must be the procedural safe-

, guards surrounding those rights. * * *’’?™

‘Had petitioners’ evidencagbeen taken as true, the to-

tion for nonswit woufd have been denied and the respond- .

ents would have been put to their proof. See.infra, pp. .

12-15. It was plain error on the part of the trial ane .

to fail to apply the controlling rule and it’ was equally .

2: See, also, Armstrong v. Manzo, 380 U: S. 545 1965) ;

Western & Atl. R. v. Hendetson, 279 U. S. 639 (1929), ee

P P

6 Petition for a Writ of Certiorart

error on the part of the court below to view this case as

involving mere discretionary action on the part of respond-

ents. Further, the erroneoug rulings were made in circum-

stances in’ which “* ** thé rights at stake * * *” are such

" , that “* ° °* the procedural safeguards surrounding those

rights * ° *” must be. fully ne Speiser v. Randall,

_ Supra.

1. ‘The iagietiieia of the Taxpayer’s Suit i in State and

Local Government. The taxpayer’s suit, long a recognized

action in the Commonwealth of Pennsylvania, Sharpless v.

Mayor of Philadelphia, 21. Pa. 147 (1853), operates to fill

an obvious need, particularly in connection with local gov-

- ernment. As Professor Jaffe has noted, -/

_ “* * * The citizenry needs institutional control of .

the congeries of local and discrete authorities, no less

in matters that concern them as a body than in those:

which affect’them individually. * * *” (Jaffe, Standing

to Secure Judicial Review: Public — 74 ‘Harv.

L. Rev. 1265, 1270 (1961)). : ,

In many areas, the taxpayer’s action fas become the |

most effective method by which. the state citizenry can

control “* * * matters that concern them as a body. * * *”

Professor Jaffe states: pres f

- “This conclusion emerges, I think, from this histori-

cal survey: Judicial control of official action, through

citizen or taxpayer suits, has flourished when the

seemingly more desirable system of administrative

- control has ‘been lacking. These suits have had their

- initial and fullest development in the control of local

authorities. *-** =,

“The American development, * * * is consistent

with the same conclusion. The taxpayer suit was first

directed’ to local action; its extension to state action

“came later, and even now is not complete. After doubt

- and occasional rejection, the American states have be-

-~come more and rhore committed to the public action.

Petition for a Writ of Certiorart — ee

While the Supreme Court has rejected such suits by

federal taxpayers, the federal concept: of ‘persons ad-.

versely affected or aggrieved’ has been broadened to.

the point where, in certain fields at least, there is

-something approaching the public action. It seems

that a need for some external controls, at least of

local authorities, is generally felt. * * *” (Jd. at 1281-

82.)

. The importance ‘of the taxpayer’ s suit as an integral

vert of local government is recognized without regard ‘to

the varying motives which may have ei the institu-

tion of the action. @.

wee Taxpayers’ litigation seems 5 designed to:

enable a large body of the citizenry to challenge gov- .

ernmental action which would otherwise go unchal-

‘ lenged in the courts because of the standing require-

ments. * * * Because the motive of a plaintiff-taxpayer

is viewed as irrelevant, taxpayers’ suits afford a means

of mobilizing the self-interest of individuals within |

the body politic to challenge legislative’ programs, pre-

vent illegality, and avoid corruption. | Taxpayers’

suits thus create an army of potential private attor-

neys general acting on whatever private incentives

may induce them to spend thé time and money to bring

a taxpayer’s suit: personal economic gain, partisan

political objectives, desire to attract personal publicity,

or to delay unwanted public projects, or to prevent

expenditurés believed to be socially or economically

unwise. * * *” (Comment, Taxpayers’ Suits: A Survey

and Summary, 69 Yale,L. J. 895, 904 (1960)).

That the principal purpose and function of a taxpay-

-er’s suit is the protection of the public interest has long —

been recognized by the Supreme Court of Pennsylyania.

In Page v. King, 285 Pa. 153, 156, 131 Atl. 707, 708 (1926),

that court said:

eens Petition for a Writ of Certiorart

\ mace . .

“Appellant’s right as a taxpgyer, having an in-

terest in public funds, to maintain a bill ‘to prevent

an unauthorized or unlawful expenditure of state

money carinot now be questioned * * *. It is immate-

rial whether theindividual loss is great or small; the

court will not stop to inquire into that.” *

Thus, wheré a taxpayer charges misconduct in local

government—the unnecessary and unwarranted expendi-

ture of public funds—and supports these charges with

proof, it is serious error to nonsuit the-taxpayer without

requiring any evidence in rebuttal. Given the critical im-

portance of the taxpayer’s suit in local government, the

“error is of sufficient dimension to warrant review by this —

Court. Further; the gravity of the error and the need for

review on certiorari are emphasized by the —— context

in which this case arose.

2. Thé Special ‘Importance of the icaceiial s Suit

Where a Mumicipal Authority Is Involved. If the tax-

payer’s suit plays an important role in cases involving the

activities of elected public officials, such a suit’s importance:

becomes far greater where a municipal authority’s. acts ——

are involved. A prime ‘function of authorities éuch as the

one involved in the present litigation is the avoidance of |

state constitutional or statutory restrictions upon the acti-

vities of government. See Morris, Evading Debt Limita-

tions With Public Building Authorities: The Costly Sub-

version of State Constitution, 68 Yale L. J. 234 (1958).

Certainly this is a primary: reason for the creation of the

authority involved in this case. Pennsylvania’ s Constitu-

tion provides that:

“The debt of any county, city, borough, Mt

_ school district, or other municipality or ineorporated

district, except as provided herein, and in. section fif-

. 3. See, also, Price v. Phila. Parking Authority, 422 sin 317,

325-327 (1966).

ra)

Petition for a Writ of Certiorars . 9

. teen of this article, shall never exceed seven. (7) per

centum upon the assessed value of the taxable property

| therein, nor shall any such county, municipality or dis-

‘trict incur any debt, or increase its indebtedness to an

amount exceeding two (2) per centum upon such as- -

sessed valuation of property, without the consent of

the electors thereof at a public election in such manner

as shall be provided ods law. * * *” (Pa. Const., Art. 9,

$8).

Nevertheless, the Peunsyivenia Municipality Autho: ity

Act of 1945, Pa. Stat. Ann. tit. 53, §§ 301-322, provides for

virtually autonomous authorities with the power t issue

bonds in excess of the constitutional debt limitation.

There is no occasion here to challenge the wisdom or

validity of this statutory device. Cf. Morris, supra. But

the creation and use of these municipal authorities makes

doubly necessary the maintenance of a right in the tax- -

payer to a full hearing. The municipal authority is a

fis¢ally autonomous body, a step removed from the reach .

of pe og my elected its creators. Even if a right

~—~of redress at the polls were to be considered an adequate

remedy in some situations, that right does not exist with

respect to municipal authorities. See Morris, supra, at

240, 265. Thus, a full hearing of the aed suit i

sumes ¢ritical eensetdibe

3. The Decisions Below. (a) The nied Court of

Pennsylvania based its decision on a reference to the rule

that ‘‘* * * in the absence of bad faith, fraud, capricious |

eonduct or abuse of power, courts will not interfere with

the acts of governmental or administrative bodies involv-

ing the exercise of discretion. * * *’? (App., infra; p. ii.)

Following the recital of this well established proposition, _

the court below stated that |

_ °«* * * The gravamen of appellants’ suit involves

no more than a challenge to the wisdom and desirability

of the project as proposed by appellees. The record

10. Petition for a Writ of Certiorari

fails to disclose bad faith, fraud, abuse of power. or

arbitrary or capricious conduct on the part of appel-

ea > (App., infra, p. iii.) :

It is Prom we submit, that the «¢ grayamen’” of peti-

tioners’ case involves more than a challenge to ‘the wisdom

‘of the municipal authority. The complaint charges fraud

and abuse of disc&etion and the evidence adduced by peti- -

tioners supports such allegations. See,-infra, pp. 12- =

” It’is equally clear that the Supreme Court of Pennsyl

viewed the issue: before it as involving the weighing of evi-

dence in a case that had been fully tried. Nowhere does

* the court below advert to the actual issue presented, namely,

the validity of: the nonsuit, and nowhere does that court in- |

‘divate that it tested the atatahe by taking cineaieal evi-

; dence as true.

(b) The Court of Common Pleas of Berks County,

’ the trial court in this case, employed substantially the same

technique of decision as that adopted by the Supreme Court

of Pennsylvania in, affirming the trial court’s judgment.

However, the trial judge ‘indicated an awareness of the

actual problem before him, namely, the validity of the mo-

tion for a nonsuit, by resting decision on the ‘‘* * * prin-

ciples enunciated by the Supreme Court in Hyam et ‘al.

v. Upper Montgomery Joint Authority et al., 399 Pa. 446 .

: (1960) * * *’? (R. 195a). Like the present case, Hyam in-

volved a taxpayer’s suit against a municipal authority in

which the authdrity was not put to its proof, and the trial

judge here presumably relied on the decision for that rea-

son. However, there is a critical difference between Hyam

and this case. In Hyam, the Supreme Court of Pennsyl-

_ Vania held that the complaint failed to state a cause of

action, ‘that even if évery allegation of the complaint were

proved, the taxpayer could not prevail. The court held

(399 Pa. 446 at: p. 455, 160 A. 2d at pp. 544-545) :

- The property owners want a hearing. Hyen if

such hearing were | held and all the facts alleged in

: Petition. for a Writ of Certtorart 7. r

the complaint were proven judicial interference would

be unwarran a 2 an

There i is, thus, no similarity ilies this case and the ©

Hyam case, Petitioners here charged that unnecessary

sewer footage would be constructed under the adopted plan

' (R. 5a), that the cost of installing the adopted plan’s lines .

would be excessive (R. 6a), that adequate sewer fasilities

are available at a cost substantially lower than that under

the adopted plan (R; 4a), that an earlier feasibility study —

. projecting such lower cost was concealed from the Author- .

ity (R. 4a-5a), thereby constituting a fraud of the Author-

_ ity on the part of the Township (R. 6a), and that the

Authority had abused its discretion in failing to consider

all available proposalgfor sewering the Township (RB. 6a). ©

. The inapplicability of Hyam to this case is under-

seored by contrasting it with the decision of’ the Supreme |

Court of Pennsylvania in Mistick v. Cammack, 397 Pa. 296,

154 A. 2d 588 (1959). Mistick involved a taxpayer’s suit

against a municipal water authority and ‘others. . There,

_ the court refused to sustain a«demurrer, stating (397 Pe.

at p. 299, 154 A. 2d at p. 590):

“The complaint sets forth specific averments with

“respect to the conduct of the affairs of the Authority

and of thefconduct of the board members, their agents

and advisers, which, if proved, will show waste, mis-

‘management or at least ill-conceived or unreasonable. —

plans. Actual fraud is not alleged. The need for

expansion of water facilities is not attacked but the -

' method pursued to accomplish such expansion as well . *

as the refinancing method. and costs are the subject .

of. complaint.

“As to the. Water Authority, plaintiff alleges that

the construction of new facilities and the ‘issuance of

bonds contemplated by them are grossly and greatly

in excess of what is needed to improve, | modernize,

and repair the existing system. It is also _— that |

f .

Petition for a Writ of Certiorari

ee authorizing the refinancing of the outstanding bonds,

“a large cost in additional interest was unnecessarily

. Incurred. :: \"

‘‘ A's to Pride it is eta that they seaietall to

- produce accurate ahd ‘reliable’ figures with respect to’

_ the construction costs and financing of the extensions

- and modernizations of the water system and that they

improperly held’ roost 8 4 out to the Authority” as

properly qualified consulting a an when, in fact,

they were not so ee me

The complaint in, Ahis case make charges entirely

comparable to those which were held to state a cause of

action in Mistick. And we will show that the evidence

” presented by petitioners in support of their allegations,

' taken as true, was sufficient to defeat the motion for: non-

suit and shift the burden of going forward.‘

4.’ Petitioners’ Proof. (a) Concededly, the sewering

plan adopted by the Authority would necessitite the issuing

of bonds fh the amount of $5,550,000 (R. 11). Petitioner

Musa J. Eways testified that the Mast engineering plan,

submitted i in 1959, provided for sewering substantially the

same ‘areas at a projected cost of $1,095,000 (R. 96a).

Eways testified that, adjusted to reflect increased cost and | |

the correction of certain distance approximations, the sewer

coverage of the 1959 plan would presently cost no more

than $2,650,000 (R. 97a-98a, 176a-177a).

(b) Petitioner, Musa J. Eways, testifying as an expert,

stated that the projected population estimate upon which

_ the Gannett plan was predicated was unrealistic and un-

supported, providing no reasonable time period in which

» + 4, There are, of course, certain emotions to the rule that,

on motion for rionsuit, a —, s proof must be, taken as true.

‘Thus, the trial judge is free to disregard the testimony of a

witness believed to be ue See, ¢.g., Rhoades, Inc. v. United

. Air Lines, Inc., 340 F. 2d 481 (3rd Cir., me No such excep-

. tions are involved i in this case.

ES aR -—

the. projected population sitll was to oceur @. 119a). .

During‘ the course of his testimony, it developed that the

Gannett plan anticipated a, population increase from the

approximately 9,000 peeple presently living in the area

i 000 per cent. — ‘

Whe construction of service lines to several areas of the

‘ Township, as proposed in the Gaynett plan, was unjustifi- |

ably expensive in view of the number of hor s to be served .

(R. 112a-113a). Petitioner Musa J. Eways further testi-

a fied that one-of the proposed sewer lines would run parallel

to an existing line which belonged to an adjacent township;

Exeter Township users and that the use of the existent

line had been offered to. Exeter Township (R. 116a-117a,

149a-151a), Further, petitioner Eways testified that the

Gannett plan proposed the construction of sewer lines which

ran through unpopulated areas for unduly long stretches, - :

sometimes terminating without om been... _— to any

use (R. 133a-134a, 138a).

(d) Raymer W. Kent, ‘Secretary. of the Municipal

Authority, testified that the Mast report had never been

submitted to the ‘group as a body and that his only access

to any part of the report had been by his receipt thereof.

from a private citizen (R. 58a). The witness also testified

that ‘‘the study as a whole was not submitted. We received’ ”

it through the mail.’”’ (R. 58a). The ns = :

also took place (R. 64a) :

“By Mr. Avenn:

to 88,000 people (R: 14Sa-144a), a projected growth of

**Q. Was there a figure set forth for setinnsitelt .

(* construction cost for sanitary sewering of the popu-

lated area of Exeter Township?

A. Not that I know of.

_ * Q. By ‘the way, I notice there are no plans at- |

tached to this feasibility study. Do you know whether.

Pe : a

m4 - Petition for a Writ of Certiorari

or ak the feasibility study originally had plans ac- :

companying it?.-

A: Sir, T-don *% know.

Q. Is this all you ever saw?

' A. That is all I ever saw.

Q. In the ‘absence of plans, ‘if plans there had

_ been, you don’t know that one taal or the ather; is that ,

correct? , nee

"A. That’s correct. aa

‘Since there is no question that plans were cieittted

with ‘the. Mast report and the report could not be’ fully.

_ understood without reference to sugh plans,.it must be

taken as established that not only did the Authority never ~

- officially view the Mast report, but that. at least one mem-

Petitioner also testified that one of the defendant mem-

~ bers of the Authority had admitted his unawareness that”

any plan had been_submitted proposing sewer service at a

never questioned or contradicted. Thus, ‘at least two of

' the five Authority members were presumptively unin-

. formed of the. availability ¢ of a more eooriomical alternative.

‘Ine sum, petitioners must ra viewell as s having produced

evidence to show that,the. Municipal Authority has adopted .

__@plan more thar twice as expensive as. a prior plan which

would provide substantially the same’ service; that the plan

adopted was designed to serve a population of 88,000’ in

an area of 9,000 persons; that the plan: adopted contains

-a Sewer line which-parallels an existing and available-line,

. lines which serve iio purpose for the present or the fore-

-. seeable future, and lines Ww ich serve sparsely populated .

areas at unjustifiably high ; that the Board of feces:

sors had the complete Mast report but did not make it

available to the. Municipal Authority; that the Municipal

Anthority was not i in reality familiar with the Mast report

* grt

: .

\ ;

teu

—

‘mek

, ‘tainly

' of Supervisors of knowledge’ of the substantially lower cost of *

Petition for a Writ of. Coritorars = ose

aid the substantially similar coverage it proposed at much }

~ lower cost. |

It may well be that evidence can. be adduced on ‘behalf : ;

_ of respondents to rebut petitioners’ proof. So far, this

_ has not been done. Absent such rebuttal evidencey it is

obvious that, t, singly and in sum, petitioners have presented *

evidence as to both fraud and abuse of discretion sufficient

to defeat’a motion for ‘nonsuit and put the respondents -

‘to their proof. 5 The rulings to the contrary by the courts.

below have, in essence, dénied ‘petitionerstheir day in court.

_ And, ‘as we urged -at-the outset of this argument, supra,

’ pp. 6-9, the circumstances of this case are such as to raise

ae this:denial to the levél of a constitutional i issue, the ‘Gonial

of due process. -The Supreme Court of. Pennsylvania has

elsewhere recognized the force of the factors which lead:

_ to this conclusion. In Schwartz v. Urban Redevelopment

Authority of Pittsburgh, 411 Pa. 530, 192 A. 2d 371 (1963),

that court:reversed a nonsuit granted agaig&t the taxpayer

plaintiff. > Applying the. rule that, upon a motion for non-.

_ suit, the 6vidence must be viewed! most favorably to the

plaintiff, it was held that the taxpayer had made out a gis

prima facié case. The Court said (411 Pa. at p. 536, 192

A. 2d at p. 374):

“This eourt has :held that ‘the shakin of

ee authorities at all levels of government and the. frequent

complaints that theagencies arbitrarily or .capriciously

- and unintentionally i ignore or violate rights which are

5, Compare Levy’s Estate, 326 Pa. 310,192 Atl. 102 (1937)

| (gross inadequacy of price in the sale of land may create inference

of, fraud).; Winger v. Aires, 371 Pa. 242, 89 A. 2d 521 (1952)

(school board held to-have abused discretion i in waving unneces~”

sarily large amounts of land). .

‘It should be noted that, contrary to statements” by re courts

" below, petitioners have ngt abandoned the charge of fraud. Cer-

raud can be inferred from the withholding by the Board.

the Mast plan from the Authority (see Levy’s Estate, supra) and

the suggestion that a member of the Board of Supervisors was |

——" interested. i in ‘the eT (R. ase

wae

-\ Mesto

‘“<« @

“16. ~—_— Petition, for Wat of Certiorari

ordained or 7 cman by the Federal and State Con- ,

. stitutions and established law makes it imperative that

- a check rein be dest upon them. ba Ais ceil

CONCLUSION.

2 ‘For the reasotis set forth above, this petition for a

writ of certiorari should be granted.

m Respéctfully submitted,

> J. Pennincton Sraavs,

C.’Wiuson Austin,

* Attorneys for Petitioners.

Appendix. — |

\ IN THE AEM GRAS,

SUPREME COURT OF PENNSYLVANIA

Eastern District

- Musa J. Eways and Jeanette M.) as

Eways, his wife, — No. 1 January Term,

Appellants.| 1967. -

i " ~ o-

Boarp or Roap Supervisors of ppeal From the De- -

* Exerer Townsnr, Exetert . cree of the Court of %

Township,’ Berks County,| . Common Pleas of

Pennsylvania, and lExerer| Berks County, No.

Townsure Monicrean Autnor-| 3175 Equity Docket,

. rry, of Exeter Township, Berks | - "1965.

County, Pennsylvania. —

OPINION OF THE COURT |

Fizzp: June 24, 1966.

--Rosears, J. | _ adie

F This appeal arises out ofa dispute in which appellants,

. , taxpayers of the Township of Exeter, Berks County, Penn-

sylvania; sought to restrain appellees, the Board of Super-

visors of Exeter Township and the Exeter Municipal Au-

thority, from proceeding with the proposed construction of

a sanitary sewage disposal system for, the conimunity’ of

_ Exeter. Appellants’ complaint alleged fraud and manifest °

_ abuse of discrétion on the part of appellees in the planning

_ and design of the proposed system, ,

(i)

rf)

re 7 Appendia

At trial, no evidence was adduced by appellants in sup-

port of the allegation of fraud, the evidence introduced

-a manifest abuse of discretion in approving the construe:

tion of a system more extensive than that which appellants |

considered economically feasible. .At, the conclusion of

- appellants’ evidence, the chancellor granted appellees’ mo-

tion for a compulsory non-suit. .The court en banc, after

argument, refused a motion for the removal of the non-suit

and this appeal followed. ;

Appellants do not contest the right of appellee Better

Municipal Authority to engage in the project in dispute, the

‘power to-do so having been explicitly granted by the Act

of May 2, 1945, P. L. 382, ‘$4, as amended, 53 P. S. 306. The

sole disagreement between the parties lies in the manner by

which appellees have elected to proceed, and, more spe-

cifically, with thé size of. the proposed ‘system. Appellants

have expressed a preference for a more limited system than

. that contemplated by appellees’ project, urging that the

additional number of persons to be served by the. more

extensive system planned by sidan does not warrant the

expenditure involved. 6°

In. considering whether the refusal of the court en banc

to remove the non-suit was. error, we start with the well

settled proposition that in the absence of bad faith, fraud,

capricious conduct or abuse of power, courts will not inter-

fere with the acts of governmental or administrative bodies

involving the exercise of discretion. Faranda Appeal, 420

Pa, 295, 300, 216 A. 2d 769, 771-2 (1966); Hyam v. Upper

Montgomery Joint Authority, 399 Pa. 446, 455-6, 160 A. 2d

539, 545, cert. denied, 364 U. S. 288, 81 S. Ct. 50 (1960) ;

Eways v. Reading Parking Authority, 385 Pa. 592, 597,

124 A.2d 92, 94-5 (1956) ; Blumenchein v. Pittsburgh Hous- ;

ing Authority, 379 Pa. 566, 572-4, 109 A. 2d 331, 334 (1954), ,

cert. denied, 350 U. S. 806, 76 S. Ot. 68 (1955). . The wisdom

of such action or the details of the manner adopted to carry

them into effect are matters into which courts will not

Appendia ; ‘iti

inquire. Faranda Appeal, supra; Eways v. Reading Park-

ing Authority, supra; Blumenchein v. Pittsburgh Housing

Authority, supra. |

Our examination of the record leads us to conclude, as

did the court below, that the gravamen of appellants’. suit

involves no more than a challenge to the wisdom and de-

sireability of the project as proposed by appellees. The

record fails to disclose bad faith, fraud, abuse of power,

or arbitrary or capricious conduct on the part of appellees.

In the absence of. evidence of such conduct, we find no basis

. for disturbing the determination made below.:

Decree affirmed. Each party to pay own costs.

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