*545Dissenting Opinion by
Mb. Justice Robebts:Whether mandamus should eventually issue in this case is not the concern of this Court in the present appeal. We are asked to decide merely if granting of summary judgment was proper. The majority concludes that it was. I do not agree.
As the lower court opinion correctly notes: “The motion for summary judgment admits the allegations in the defendants’ answer to the complaint in mandamus and also the allegations in defendants’ answer to the motion for summary judgment. . . .” Thus, examining the allegations contained in appellants’ answer, allegations that must be accepted as true, the following is clear. Although appellants admit that they have not yet complied with the Water Board’s order, they claim that this failure has resulted from their complete inability to raise the essential funds by any lawful means. Specifically, they aver (1) that they have no funds on hand; (2) that the Borough does not have sufficient borrowing capacity under law to raise this money; (3) that the only possible way to raise the money would be by the issuance of non-debt revenue bonds which can only be issued upon the request of the Water Board, which request has not been made; and (4) that therefore the ordered project cannot be financed at this time “in any manner.”
These allegations completely negate the majority’s statement that “[t]here is no indication in the pleadings that appellants have exhausted every possible avenue in an effort to find some way of financing this sewage construction.” Quite to the contrary, for purposes of summary judgment under these pleadings it must be assumed as true that appellants have “exhausted every possible avenue.” It thus logically follows that a sine qua non for the grant of summary judgment in this case would have to be a rule of law that complete financial inability to perform an other*546wise required duty will still not preclude the issuance of mandamus. I fail to find any authority whatsoever for such a principle. In fact, appellee’s own brief is rife with statements that seem to admit financial impossibility as a defense. For example, on page 12 of its brief appellee states: “The appellants have not alleged any facts to show that it was financially impossible to comply with the .order of the Board.” Not only is this statement absolutely incorrect, but it also implies quite strongly that appellee does indeed recognize this defense of financial impossibility. Moreover, the majority opinion itself contains similar language, quoted, supra.1
Appellee frankly admits that “[i]f, in fact, the appellants are able to show beyond any doubt that . . . construction of a sewage treatment works and necessary sewers is an absolute impossibility because they cannot borrow or obtain sufficient funds, this can be presented as a defense in a contempt proceeding to en*547force the judgment.”2 I submit that to hold a defense valid in a contempt proceeding to enforce the same mandamus whose original issuance could not have been avoided by interposing that same defense would be absolute judicial folly.
I realize that Commonwealth ex rel. McLaughlin v. Erie County, 375 Pa. 344, 100 A. 2d 601 (1953), relied upon by appellants, is both factually and procedurally distinguishable from this case. But the statements of law contained therein are still very much applicable to the present controversy. As this Court there noted: “It is a fundamental principle that mandamus will not issue, as a rule, where it is apparent that the writ will be futile or ineffectual by reason of the inability of the respondent to comply therewith.” Whether financial inability to comply should be equated with futility, in any given case, must be determined by the court in its discretion. See Erie County, supra. The obvious import of this discretionary standard is that the court must determine how close the financial hardship comes to equalling futility. Therefore, unless the trial court judge be possessed of some clairvoyant power, I fail to see how he could grant summary judgment in a case where the defendant pleads facts, which if proven would establish a complete lack of finances, and the total impossibility of performance. It is quite true that the appellee has alleged facts which indicate that the appellants have not exhausted all possible means. However, conflicting allegations merely create material issues of fact which must be resolved before the trial *548court can possibly exercise its discretion, and cannot be resolved on the basis of pleadings alone.
It is therefore my opinion that the summary judgment below should be vacated, and that the lower court should hear this case on the merits.
I dissent.
Mr. Chief Justice Bell joins in this dissenting opinion.Although, later in its opinion, the majority does declare that financial impossibility should not be a defense at all, this assertion is grounded upon the totally fallacious assumption, set out in footnote four of that opinion, that a financial impossibility defense would render the Court powerless to enforce the Act of June 22, 1937, P. D. 1987, §3, 35 P.S. §691.3, and would “sanction the harmful discharge of sewage into the waters of the Commonwealth.” (Emphasis supplied.) To allow a borough to escape the harshness of mandamus only upon a clear showing that it cannot possibly comply with the order is certainly not a sanctioning of pollution. Somehow, the majority incorrectly assumes that as a result of this defense being available, every township, borough, city, etc., will be able to successfully assert it. Furthermore, when the majority, in this same footnote, says that accepting appellants’ defense would “put our Court in the anomalous position of rendering ‘futile and ineffectual’ a clearly defined public policy as enunciated by the legislature. . . .” it obviously fails to realize that by calling “futile” the attempt of one borough to pay for something with funds it does not possess, no one is suggesting that it would be futile to enforce the public policy of beeping our waters clean.
The majority opinion contains similar language: “The inability of appellants to obtain financing to plan and construct sewer facilities to abate the sewage discharge is not a defense to a mandamus action, but rather may be a factor to be considered and evaluated by the court in any proceeding by the Commonwealth to enforce the judgment.”