Opinion
J-74-2018 No. 66 WAP 2017
04-26-2019
COUNTY OF BUTLER, Appellee v. CENTURYLINK COMMUNICATIONS, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; THE UNITED TELEPHONE COMPANY OF PENNSYLVANIA LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; CONSOLIDATED COMMUNICATIONS OF PENNSYLVANIA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; CONSOLIDATED COMMUNICATIONS ENTERPRISE SERVICES, INC., AND ALL SUBSIDIARIES AND RELATED ENTITIES; CORE COMMUNICATIONS, INC., AND ALL SUBSIDIARIES AND RELATED ENTITIES; INTERMEDIA COMMUNICATIONS OF FLORIDA, INC., AND ALL SUBSIDIARIES AND RELATED ENTITIES; VERIZON PENNSYLVANIA, INC., AND ALL SUBSIDIARIES AND RELATED ENTITIES; LEVEL 3 COMMUNICATIONS, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; TELCOVE OF EASTERN PENNSYLVANIA, AND ALL SUBSIDIARIES AND RELATED ENTITIES; AT&T CORP., AND ALL SUBSIDIARIES AND RELATED ENTITIES; TELEPORT COMMUNICATIONS AMERICA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; US LEC OF PENNSYLVANIA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; BANDWIDTH.COM CLEC, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; COMCAST PHONE OF PENNSYLVANIA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; PEERLESS NETWORK OF PENNSYLVANIA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; AND ABC COMPANIES 1 THROUGH 20, Appellants
[MO: Saylor, C.J.] Appeal from the Order of the Commonwealth Court entered June 8, 2017 at No. 1506 CD 2016, reversing the Order of the Court of Common Pleas of Butler County entered August 11, 2016 at No. 15-11007, and remanding. CONCURRING OPINION JUSTICE TODD
I join the Majority Opinion in full. However, I make one observation. In my view, the County of Butler is not wholly without an avenue for seeking relief. As the majority relays, "[t]o the degree that [the Pennsylvania Emergency Management Agency ("PEMA")] has taken no action to evaluate the allegation of substantial underfunding of emergency communications services, it seems rather clear that the agency is disregarding its duties under its own enabling legislation." Majority Opinion at 19. Indeed, it appears not to have exercised any judgment with regard to the County's claims. See id. at 19 n.8. Accordingly, should this state of affairs continue following our decision today, the County is free to bring a mandamus action to force PEMA to act. See Kuren v. Luzerne Cty., 146 A.3d 715, 751 (Pa. 2016) ("[M]andamus is chiefly employed to compel the performance (when refused) of a ministerial duty, or to compel action (when refused) in matters involving judgment and discretion. . . . Mandamus is a device that is available in our system to compel a tribunal or administrative agency to act when that tribunal or agency has been sitting on its hands." (internal quotation marks omitted)).