Opinion
No. 1841 C.D. 2011
04-27-2012
Derek Anderson, William Aniska, Nick Azzarelli, Gary Dennis, Ben Domenick, Daryll Fratamico, Patrick Gallagher, Christopher Hallock, Dan Hallowich, Robert Hegedus, Nick Hurchick, Timothy Koch, John Megivern, Brennan McDermott, Francis McLane, Patrick Perry, Anthony Shields, Jamie Sofka, William Turner, James Yesalavage, and Paul Zaremski, Petitioners v. City of Scranton and Christopher A. Doherty, in his capacity as the Mayor of the City of Scranton, Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this interlocutory appeal by permission, 21 unionized police officers and fire fighters (Plaintiffs) laid off by the City of Scranton (City) in August 2011 seek review of an order of the Court of Common Pleas of Lackawanna County (trial court) that denied Plaintiffs' motion for peremptory judgment in the nature of mandamus. Plaintiffs' motion sought an order: (1) declaring the refusal of the City and its mayor, Christopher A. Doherty (collectively, Mayor) to abide by the minimum staffing mandates of 137 fire fighters in File of the Council No. 57-2010 (Ordinance 57), and 150 police officers in File of the Council No. 58-2010 (Ordinance 58), to constitute a violation of the Mayor's statutory duties; and, (2) directing the Mayor to immediately rescind Plaintiffs' layoff notices issued in July 2011 and maintain the minimum staffing levels in Ordinances Nos. 57 and 58. In denying Plaintiffs' motion, the trial court reasoned that Council, in enacting Ordinances 57 and 58, acted beyond its legislative authority under the City's Home Rule Charter (Charter). Therefore, the trial court determined Ordinances 57 and 58 to be improper commands of authority reserved to the executive branch under the Charter. Thus, Plaintiffs had no clear right to enforcement of the ordinances. For the reasons that follow, we affirm the trial court's denial of peremptory judgment and remand for further proceedings in the case.
Senior Judge Harold A. Thomson, Jr., formerly a commissioned judge of the Court of Common Pleas of Pike County, presided.
I. Background
In the fall of 2010, the Mayor presented City Council (Council) a proposed 2011 operating budget which included, among other things, reduction in staffing levels for the fire and police bureaus. In its amicus brief here, Council claims it amended the Mayor's budget to fund the salaries of 137 fire fighters and 150 police officers for 2011. Council's claim, however, is not confirmed by the bare bones record in this case.
Although City Council is not a party to this case, it participates in this appeal as amicus curiae, or friend of the court.
Thereafter, Council enacted Ordinances 57 and 58, effective January 1, 2011. Ordinance 57 provides in pertinent part:
NOW THEREFORE, BE IT ORDAINED BY [COUNCIL], that for the calendar year 2011 and as included in the legally and lawfully adopted [City] 2011 Operating Budget, as amended, the number of firefighters in the Bureau of Fire, Department of Public Safety, shall be 137 firefighters and the Mayor shall be required to fill all vacancies within thirty (30) days after the vacancy is created, so that the staffing of the Fire Department shall be maintained at all times at 137 firefighters.Reproduced Record (R.R.) at 44a. Ordinance 58 provides in pertinent part:
NOW THEREFORE, BE IT ORDAINED BY [COUNCIL], that for the calendar year 2011 and as included in the legally and lawfully adopted [City] 2011 Operating Budget, as amended, the number of police officers in the Bureau of Police, Department of Public Safety, shall be 150 police officers and the Mayor shall be required to fill all vacancies within thirty (30) days after the vacancy is created, so that the staffing of the Police Department shall be maintained at all times at 150 police officers.Id. at 47a.
At the beginning of 2011, the City employed 137 firefighters and 150 police officers. By March 2011, the number of police officers dropped to 148 following two resignations.
In late July 2011, the Mayor provided written notice to the president of the Fire Fighters Local Union No. 60 of the International Association of Fire Fighters that eight fire fighters would be laid off in 30 days. On the same day, the Mayor notified the president of the Fraternal Order of Police, E.B. Jermyn Lodge No. 2 that 13 police officers would be laid off in 30 days. These layoffs would lower the total number of fire fighters to 129 and the total number of police officers to 135.
Plaintiff fire fighters are Nick Azzarelli, Gary Dennis, Ben Domenick, Daryll Fratamico, Patrick Gallagher, Dan Hallowich, Timothy Koch and James Yesalavage.
Plaintiff police officers are Derek Anderson, William Aniska, Christopher Hallock, Robert Hegedus, Nick Hurchick, John Megivern, Brennan McDermott, Francis McLane, Patrick Perry, Anthony Shields, Jamie Sofka, William Turner and Paul Zaremski.
In response to the layoff notices, Plaintiffs filed a complaint in mandamus seeking to require the City and the Mayor to abide by the minimum staffing requirements in Ordinances 57 and 58. In response, the City and Mayor filed preliminary objections. Plaintiffs also filed a motion for peremptory judgment directing the City and the Mayor to abide by Ordinances 57 and 58 and rescind the layoff notices. Peremptory judgment is appropriate where the right to relief is clear and there are no genuine issues of fact. Council of the City of Phila. v. Street, 856 A.2d 893 (Pa. Cmwlth. 2004).
At any time after the filing of a complaint in mandamus, "the court may enter judgment if the right of the plaintiff thereto is clear." Pa. R.C.P. No. 1098.
The trial court heard argument on Plaintiffs' motion in late August 2011, just prior to the effective date of the layoffs. Plaintiffs argued the Mayor, in refusing to enforce Ordinances 57 and 58, refused to perform a purely ministerial act. Ordinances 57 and 58 are clear and unequivocal; the City shall maintain a minimum of 137 fire fighters and a minimum of 150 police officers. Ordinances 57 and 58 are presumed valid. Plaintiffs maintained Council possesses the police power to enact ordinances it deems necessary to protect the public health, safety and welfare. In addition, Council's police power can be imposed upon other branches of government. Therefore, Plaintiffs argued mandamus was appropriate.
The Mayor countered that Ordinances 57 and 58 are invalid and illegal. The Charter delineates certain legislative powers to Council and certain executive powers to the Mayor. Section 609(2) of the Charter grants the Mayor "full charge and control of all executive departments in the city." R.R. at 22a. Section 609(11) of the Charter provides the Mayor the "power to suspend, with or without pay, all executive department employees." Id. The City's police and fire bureaus are part of the executive branch solely under the Mayor's control.
Moreover, the Mayor argued, setting minimum staffing or minimum manning requirements in the City's police and fire bureaus is not one of the powers granted to Council in Section 502 of the Charter. See R.R. at 20a. Given the Mayor's executive powers and the Council's legislative powers enumerated in the Charter, the Mayor urged the legality and validity of Ordinances 57 and 58 is at issue. Therefore, the Mayor argued Plaintiffs had no clear right to the relief requested. As a result, mandamus was inappropriate.
The Mayor further argued he is responsible for keeping the City within its budget. If Council can determine the size of the police and fire bureaus, there is nothing preventing Council from increasing the police and fire bureaus to a size the City cannot afford.
Following argument, the trial court entered an order denying Plaintiffs' motion for peremptory judgment. R.R. at 98a. In an opinion filed with the order, the trial court observed that the City's Charter, adopted in 1974, provides for a "strong mayor" government with a division of power between the legislative and executive branches. See R.R. at 102a-03a. Power belonging to one branch shall not be exercised by the other. Id. The trial court further explained (with emphasis added):
Council also argued the City's 2002 Act 47 Recovery Plan's "Elimination of Minimum Manning" provisions stated, "The City shall have the sole right to determine the number of personnel employed and utilized by the City." The trial court rejected Council's argument that the Plan's reference to "City" meant "City Council." Trial Ct., Slip Op., 08/26/11, at 6.
Under this framework, the citizens of the Electric City approved a type of government that is comprised of equally important branches, each with its own prerogatives. The question before this Court is essentially to decide if one branch has overstepped its bounds and entered into the zone of authority delegated by the People in ratifying the Charter, to another coequal branch.
* * * *
Scranton's adoption of the [Charter] places it in the same category of local government as Philadelphia (a city of the First Class) and Pittsburgh (a city of the Second Class), that is, these cities operate with what some have styled a 'strong mayor' government. The
home rule charters of these three municipalities grant broad executive powers to the mayors elected under these bodies of law.
If this Court were to read §609 (10), [of the Charter], (that the Mayor must act pursuant to 'any ordinance') to mean that ... he is unthinkably bound to act by them it would give Council the right to act as both the executive and legislative branches, by merely enacting edicts expressing its will. Such a reading would reduce the mayor to a mere functionary and would give Council the type of powers that such bodies possess in cities of the Third Class and other such municipalities, where the legislative branch is almost fully in control. Such a reading would deprive the citizens of Scranton the form of government they voted to enact in 1974 and would create a true 'repugnant result.'
It is a well settled principle of our American government that Fire and Police personnel are within the executive branch and §609 (11) [of the Charter] above controls. Further, for the foregoing reasons, this Court finds [Ordinances 57 and 58] to be improper commands of an authority reserved to the executive branch and outside City Council's province of action pursuant to the Home Rule Charter of 1974. As such, [Plaintiffs'] request for extraordinary relief in the form of Mandamus is hereby DENIED.
Trial Ct. Slip Op, 08/26/11, at 5, 7-8; R.R. at 103a, 105a-06a.
Thereafter, the trial court certified its order as final for appeal on the basis that it involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the matter. R.R. at 107a. In October 2011, this Court granted Plaintiffs' petition for permission to appeal. Id. at 1a-2a.
II. Issues
On appeal, Plaintiffs raise two primary issues. They contend the trial court erred in concluding Council's enactment of Ordinances 57 and 58 constitutes an improper command of executive authority reserved for the Mayor. Plaintiffs also contend the trial court erred in denying their motion for peremptory judgment in mandamus.
Our review of the grant or denial of a writ of mandamus is limited to a determination of whether the trial court abused its discretion. Salem Twp. Mun. Auth. v. Twp. of Salem, 820 A.2d 888 (Pa. Cmwlth. 2003).
The Mayor, on the other hand, contends Council, in its amicus curiae brief, raises issues not raised by the actual parties. The extra issues regard the Mayor's power under the Charter to layoff City employees and the Mayor's failure to follow specific budgetary procedures delineated in Section 601(b) of the City's Administrative Code required to enact layoffs. Therefore, the Mayor asserts these issues are waived.
III. Discussion
A. Mandamus
1. Plaintiffs' Argument
Plaintiffs first contend that under the City's Charter and Administrative Code, the Mayor is responsible for enforcing Ordinances 57 and 58. They therefore assert the Mayor has a clear and undeniable duty to maintain minimum staffing levels of 150 in the police bureau and 137 in the fire bureau.
Plaintiffs' argument is as follows. Mandamus is an extraordinary writ used to compel performance of a ministerial act or a mandatory duty. City Council v. Street. A ministerial act is one in which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. Id.
In order to obtain a writ of mandamus, a plaintiff must establish: (1) a clear legal right to performance of the ministerial act or mandatory duty; (2) a corresponding duty in the defendant to perform the ministerial act or mandatory duty; and, (3) the absence of any other adequate or appropriate remedy. Equitable Gas Co. v. City of Pittsburgh, 507 Pa. 53, 488 A.2d 270 (1985); Street.
Here, Plaintiffs assert, Ordinances 57 and 58 could not be clearer. Ordinance 57 requires a minimum of 137 fire fighters at all times. R.R. at 44a. Ordinance 58 requires a minimum of 150 police officers at all times. R.R. at 47a. There is nothing discretionary about the Mayor's obligations under these ordinances. The Mayor's opinion regarding the propriety of the staffing levels of the police and fire bureaus is immaterial; he is required by Ordinances 57 and 58 to maintain these levels. Nothing in the Charter grants the Mayor the power to nullify an ordinance once it becomes law.
Further, Plaintiffs assert a duly enacted ordinance is entitled to a presumption of validity. See Public Advocate v. Phila. Gas Comm'n, 544 Pa. 129, 674 A.2d 1056 (1996) (ordinance properly adopted by the city council has the force and effect of an act of the General Assembly). Here, Council duly passed Ordinances 57 and 58, and then overrode the Mayor's vetoes by the required 4-1 vote. Therefore, Plaintiffs urge, Ordinances 57 and 58 are presumed valid.
Thus, Plaintiffs argue, their right to mandamus relief is clear, specific and beyond any doubt. See Equitable Gas (mandamus will not issue unless right of petitioner is clear and specific; it can never be invoked in a doubtful case; where doubt as to plaintiff's right or defendant's duty exists, mandamus is neither appropriate nor available). Enforcement of the duly enacted ordinances at bar is a purely ministerial act which the Mayor is bound to perform. See Flaherty v. City of Pittsburgh, 515 A.2d 91 (Pa. Cmwlth. 1986) (city controller did not have discretion to refuse to countersign duly enacted contract between city and towing service on the basis that he believed there were bidding irregularities in the award of the contract).
Plaintiffs also contend Chelten Trust Co. v. Blankensburg, 241 Pa. 394, 88 A. 664 (1913) is instructive here. In Blankensburg, the City of Philadelphia passed an ordinance appropriating certain land for use as a public park. The ordinance directed the mayor to make payment for damages incurred by the city's exercise of eminent domain. The mayor, however, refused. Exercising his discretion, the mayor concluded the property should not be purchased by the city at that time. The trial court ultimately granted the plaintiff's request for mandamus. In affirming, the Supreme Court reasoned:
What discretion does [the mayor] have above that of any other citizen of Philadelphia to set at naught a valid ordinance duly passed by the city councils and approved
by a former mayor? Though he now be mayor, that ordinance is as much the law to him as to the humblest citizen, and, until it is repealed, will continue to be so. His duty is to observe it, instead of imagining that he has discretion to ignore it and declare it to be inoperative.Id. at 397, 88 A. at 665. Plaintiffs urge Blankenburg is similar to the present situation; the Mayor has no discretion to disregard Ordinances 57 and 58.
Further, Plaintiffs cite Warren v. City of Philadelphia, 382 Pa. 380, 115 A.2d 218 (1955), for the proposition that Council has the authority to enact any "police power" ordinances it deems necessary to protect the public health, safety and welfare of City residents. They assert Ordinances 57 and 58, establishing minimum staffing requirements for fire fighters and police officers, constitute a core exercise of that police power. Therefore, Plaintiffs maintain, Ordinances 57 and 58 are proper exercises of Council's legislative authority.
2. Council's Argument
a. Legislative Authority
Council, as amicus curiae, or friend of the court, argues it did not overstep its legislative authority as one of the coequal branches of City government by enacting Ordinances 57 and 58. Upon receipt of the Mayor's proposed 2011 budget in late 2010, Council determined the Mayor's proposed cuts in police and fire staffing would adversely affect the general health, safety and welfare of the City's residents. Council then amended the Mayor's budget to increase funding in the line items for the police and fire bureaus to pay the salaries and benefits for 137 fire fighters and 150 police officers. Notably, Council does not cite to any record support for these factual assertions. Thereafter, Council enacted Ordinances 57 and 58.
Council asserts the trial court misinterpreted the Mayor's duties under the Charter. Section 609(6) of the Charter requires the Mayor to enforce the City's duly enacted ordinances. By not requiring the Mayor to enforce Ordinances 57 and 58, the trial court gave the Mayor the power and authority to enforce only those ordinances he chooses. Council maintains this combination of legislative, executive and judicial powers essentially provides the Mayor with dictatorial power.
Council sums up that it did not attempt to usurp the Mayor's power to hire, promote or discharge fire fighters or police officers. It simply established minimum staffing levels for the police and fire bureaus in the interests of public safety.
b. Validity of Layoffs
Further, Council argues the Mayor did not have the authority or power to layoff fire fighters or police officers under either Sections 609(10) (discharge) or 609(11) (suspension) of the Charter. A layoff is neither a discharge, which is a permanent termination, nor a suspension, which is a disciplinary action pending investigation.
Before the Mayor can layoff any fire fighters or police officers, Council argues, even if Ordinances 57 and 58 were not in effect, Section 601(b) of the City's Administrative Code requires that the Mayor or the City's Business Administrator submit a recommendation to Council to amend the budget. See R.R. at 38a. Council would then enact an ordinance amending the 2011 budget by reducing the allotment in the line items for the police and fire bureaus. Here, neither the Mayor nor the Business Administrator submitted any recommendation to Council to amend the 2011 budget to reduce the allocation for salaries for the police and fire bureaus. Therefore, Council reasons, the Mayor did not have the unilateral power or authority to layoff Plaintiffs.
3. Mayor's Response
a. No Clear Right to Mandamus Relief
The Mayor counters that the trial court properly denied Plaintiffs' motion for peremptory judgment in mandamus because their right to relief was not clear. Ordinances 57 and 58 are invalid and illegal because Council did not have the legislative authority under the Charter to set minimum staffing requirements for executive departments under the Mayor's control. Section 201 of the Charter provides, "The Mayor and [C]ouncil jointly shall be the governing body of Scranton City Government." R.R. at 17a.
To that end, there is a clear division of powers in the Charter. Section 202 of the Charter (Division of Powers General) provides (with emphasis added):
The powers of the city government shall be divided among the executive and legislative branches of the city government. Power belonging to one branch of the government shall not be exercised by the other branch, except as expressly provided in this charter.Id. Section 203 of the Charter (Allocation of Certain Powers and Duties) provides (with emphasis added):
Where the city government has any power or duty and the responsibility for the exercise of such power or the performance of such duty is not fixed by this charter or by general law or special law, the power or duty shall be exercised as follows: All powers and duties of the city government which are legislative in nature shall be exercised and performed by the [C]ouncil. All powers and duties which are executive in nature shall be exercised or performed by the Mayor or such other executive officer of the city government as the Mayor may designate .... In the event the nature of any power or duty is uncertain, or the law creating such power or duty requires cooperation between the branches of the city government the president of [C]ouncil and the [M]ayor shall fix the responsibility for the exercise of such power or the performance of such duty.
Id.
Article VI of the Charter governs the City's Executive Branch. Section 601 of the Charter (Composition) provides: "The executive branch shall consist of a Mayor and as many departments as he shall recommend be ordained and established with the approval of [Council]." R.R. at 21a. Section 609 (Powers and Authority) provides in pertinent part:
The Mayor shall have the following specific powers, duties, and authority:
1. [A]ll the normal powers that traditionally accrue to executive authority.
2. [F]ull charge and control of all executive departments in the city.
* * * *
10. [S]ubject to any ordinance of the city establishing standards for appointment, promotion, or discharge of employees, he shall have the power to designate, promote or discharge all city employees except those controlled by Civil Services.R.R. at 22a.
11. [P]ower to suspend, with or without pay, all executive department employees.
Furthermore, the Mayor asserts, Council's legislative powers are delineated in Sections 501-05 of the Charter. Section 502 of the Charter lists 17 actions by Council requiring an ordinance. Id. at 20a. None of the listed actions or functions, the Mayor argues, authorizes Council to set staffing or manpower requirements in an executive department under the Mayor's control. Indeed, nowhere in the Charter is Council granted executive powers. Because Ordinances 57 and 58 encroach upon the Mayor's executive powers under the Charter, they are invalid and illegal. Therefore, they have no force or effect.
As noted, peremptory judgment is proper only in the clearest of cases. Equitable Gas. Here, the validity of Ordinances 57 and 58 are at issue. Because Plaintiffs' right to relief is not clear, the Mayor maintains mandamus is inappropriate. Id.
b. Validity of Layoffs; Budgetary Procedures
The Mayor further asserts Plaintiffs did not raise the issue of whether the Mayor or City Administration failed to follow the proper budgetary procedures under Section 601(b) of the Administrative Code prior to issuing the layoff notices. An appellate court may not consider arguments by amicus curiae not raised by the actual parties. Pa. R.A.P. 531(a); Commonwealth v. Tharp, 562 Pa. 231, 754 A.2d 1251 (2000).
Alternatively, the Mayor maintains Plaintiffs argument is flawed. Section 609(2) of the Charter provides the Mayor with full charge and control of all executive departments. In addition, the power to layoff is clearly implied in the Mayor's power to discharge under Section 609(10) of the Charter.
IV. Analysis
In determining whether to grant a motion for peremptory judgment in mandamus pursuant to Pa. R.C.P. No. 1098, a court is guided by the standards governing disposition of motions for summary judgment. Washowich v. McKeesport Mun. Water Auth., 503 A.2d 1084 (Pa. Cmwlth. 1986). In making its decision, the trial court must consider the record actually presented and the record potentially possible at the time of trial. Id. Peremptory judgment can be entered only in the clearest of cases where there is not the slightest doubt as to the absence of material fact. Id. The burden of demonstrating that no genuine issue of material fact exists, and that one is clearly entitled to judgment as a matter of law, is on the moving party. Id. Further, the record must be examined in the light most favorable to the non-moving party. Id. See also Morganelli v. Casey, 641 A.2d 674 (Pa. Cmwlth. 1994) (peremptory judgment is only available where there is a clear basis in law and no dispute of fact).
Here, viewing the scant record in the light most favorable to the City and the Mayor, we conclude the trial court did not abuse its discretion in denying peremptory judgment. As the trial court observed, the Charter provides for a "strong mayor" government. Section 201 of the Charter states the Mayor and Council "jointly shall be the governing body of Scranton City Government." R.R. at 17a. Section 202 divides power equally between the legislative and executive branches. Id.
Section 609(2) of the Charter specifically grants the Mayor "full charge and control of all executive departments in the [C]ity." Id. at 22a. (emphasis added). Section 609(10) authorizes the Mayor to appoint, promote or discharge all City employees not covered by civil service. Id. Section 609(11) authorizes the Mayor to suspend, with or without pay, all executive department employees. Id.
Ordinances 57 and 58, which establish minimum manning requirements for the police and fire departments, encroach on the Mayor's full charge and control of all executive departments. In addition, Ordinances 57 and 58 encroach upon the Mayor's authority under the Charter to discharge or suspend all executive department employees.
Further, nothing in the Charter distinctly authorizes Council to establish minimum staffing requirements for the police and fire bureaus, which are under the Mayor's control. Although the City has the police power to enact legislation for public safety purposes, Warren, the City's governing body includes the Mayor and Council as coequal branches. What is more, the Charter provides the Mayor with full charge and control over the police and fire bureaus. Council may not usurp the Mayor's authority under the Charter by simply overriding the Mayor's veto of an invalid ordinance. See e.g., Reed v. Harrisburg City Council, 606 Pa. 117, 995 A.2d 1137 (2010) (city council may not assume mayor's executive powers under the city charter without amending the charter; otherwise, there would be few mayoral powers which city council could not usurp by ordinance).
Additionally, we note Section 203 of the Charter provides: "In the event the nature of any power or duty is uncertain, or the law creating such power or duty requires cooperation between branches of the city government, the president of council and the mayor shall fix the responsibility for the exercise of such power or the performance of such duty." R.R. at 17a (emphasis added). Thus, if cooperation between the legislative and executive branches is required to establish minimum staffing for the police and fire departments, Council cannot establish such staffing requirements merely by overriding the Mayor's veto.
Here, the record contains no evidence of either Council's or the Mayor's compliance with Section 203 of the Charter. Rather, this case is proceeding in a near-vacuum from a factual standpoint. Some of the terms of Section 203 are ambiguous, especially the designations of powers and duties which are legislative in nature and those which are executive in nature. The ambiguity could be lessened by evidence of past practices. Unfortunately, there is no record as to how public employee manning issues have been resolved since 1974. The absence of such a record provides further support for the respected trial court's cautious exercise of discretion at this early stage of litigation. Consequently, Plaintiffs' reliance on Blankenburg (current mayor must enforce ordinance duly enacted and approved by previous mayor) is misplaced.
In addition, before the trial court, Plaintiffs' counsel conceded that Ordinances 57 and 58 did not require that certain fire fighters or police officers be reinstated. At hearing, Plaintiffs' Counsel stated:
Furthermore it must be recalled these ordinances aren't saying that firefighter "X" is guaranteed employment, police officer "Y" is guaranteed employment. The ordinances establish .... It's a certain number.Notes of Testimony (N.T.), 08/25/11, at 12; R.R. at 87a. Therefore, even assuming, for sake of argument, that Ordinances 57 and 58 were valid, Plaintiffs' individual rights to reinstatement would remain unclear.
Finally, we decline to address Council's argument that the Plaintiffs' layoffs are invalid because the Mayor and City Administration failed to comply with the budgetary procedures in Section 601(b) of the Administrative Code. Plaintiffs, the actual parties in interest, did not raise this issue before the trial court. Therefore, it is waived. Pa. R.A.P. 531(a); Tharp.
V. Conclusion
For the above reasons, we agree with the trial court that Plaintiffs failed to establish a clear right to mandamus relief. Accordingly, we affirm the trial court's denial of Plaintiffs' motion for peremptory judgment and remand to the trial court for further proceedings.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 27th day of April, 2012, for the reasons stated in the foregoing opinion, the order of the Court of Common Pleas of Lackawanna County denying Petitioners' motion for peremptory judgment in the nature of mandamus is AFFIRMED and this case is REMANDED for further proceedings on the merits. Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge