# Petition for A Writ of Certiorari — Eways v. Board of Road Supervisors of Exeter Township > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1803%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 385 U.S. 958 ## Text = - . ' 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, v. 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° ° B. s * $ ; ” ¥, is 07] / - / ° e “ . e ¢ ” - oo . ‘ J . 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 e . eeeeeeeeeeveereeeeeeeeeeeeeeeeeeeeeeeeeeneeee - CONCLUSION See esiser reser eere pees eseseseseseseee ~~ 12. - 16 ‘ t ne Seti . \* ; ~S . N e . i \ ‘ r) s ” Wigmore on Evidence seis Ed.) $2485 > . 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 re 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 - > \ \ . \ m ‘ \ J \ » & . SS : ee _ Supreme Court. of the United States. 3 . a : eae - Ocrosrr’ TERM, 1966. * 3 . No. MUSA J. EWAYS ann JEANETTE, M. EWAYS, His es Petitioners, . 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). a «i, 3 . ¢* . pnt | 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- . o 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 a 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. o 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, 4 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 | = SS 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. Ud ES aR -— Petition for a Writ of Certiorari © «1 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. — ‘ (c) Petitioners presented testiniony to the effect that 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; _ that the existing line was adequate to serve the needs of © 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 r **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- ber never saw. the repott in its entirety, © °- « 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 substantially lower cost (R. 108a). This testimony was © 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 of 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 a aS \ -\ Mesto ‘“ 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. — Y" 4 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 being directed to establishing that appellees had committed © -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 i} 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. 0 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1803%3A1. Public record. Not legal advice.