R. Martin, Jr. v. Donegal Twp. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Martin, Jr., Richard Fidler and :
Tammi Iams, :
Appellants :
:
v. :
:
Donegal Township, James Bauer, :
Randy Polan, Ed Shingle, Kathleen :
Croft and Washington County Board : No. 369 C.D. 2022
of Elections : Submitted: December 9, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: April 13, 2023
Richard Martin, Jr. (Martin), Richard Fidler (Fidler), and Tammi Iams
(Iams) (collectively, Appellants) appeal from the Washington County Common
Pleas Court’s (trial court) March 29, 2022 order that sustained in part the preliminary
objections (Preliminary Objections) filed by Donegal Township (Township),1 James
Bauer (Bauer), Randy Polan (Polan), Ed Shingle (Shingle), Kathleen Croft (Croft),
and the Washington County Board of Elections (Board of Elections) (collectively,
Appellees) to Appellants’ action for declaratory judgment and injunctive relief
(Complaint), and dismissed the Complaint with prejudice. Appellants present two
issues for this Court’s review: (1) whether Iams had standing to bring the declaratory
judgment action; and (2) whether Section 402(e) of The Second Class Township
1
The Township is a second class township. See Reproduced Record at 2a.
Code (Code)2 violates article VI, section 7 of the Pennsylvania Constitution.3, 4 After
review, this Court affirms in part and reverses in part.
Background5
Section 601 of the Code provides: “Townships shall be governed and
supervised by boards of supervisors[,]” which “shall consist of three members or, if
approved by the electors under [S]ection 402(b) [of the Code, 53 P.S. § 65402(b)],
five members.” 53 P.S. § 65601. Appellants are Township voters and taxpayers,
and were elected members of the Township’s Board of Supervisors (Board) which,
prior to the November 2020 General Election, consisted of five members.6 See
Complaint ¶¶ 2-4, 13-16 (Reproduced Record (R.R.) at 9a-12a). Iams and Croft
were elected to the Board in the fall of 2017, to terms that expired in January 2022.
See Complaint ¶¶ 4, 10, 16 (R.R. at 10a-12a). Martin and Shingle were elected to
the Board in the fall of 2019, to terms originally set to expire in January 2024. See
2
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65402(e).
3
PA. CONST. art. VI, § 7 (governing the removal of civil officers).
4
Appellants present five issues in their Statement of Questions involved: (1) whether the
trial court erred by holding that Section 402(e) of the Code does not violate article VI, section 7 of
the Pennsylvania Constitution; (2) whether the trial court erred by holding that the Township’s
2020 referendum reducing the size of its Board of Supervisors (Board) from five to three members
(Referendum) was a change in the Township’s form of government; (3) whether the trial court
erred by holding that South Newton Township Electors v. South Newton Township Supervisor
Bouch, 838 A.2d 643 (Pa. 2003), and In re Petition to Recall Reese, 665 A.2d 1162 (Pa. 1995), are
not applicable to the present action; (4) whether the trial court erred by holding that Iams lacks
standing to bring this action; and (5) whether the trial court erred by sustaining in part Appellees’
Preliminary Objections. See Appellants’ Br. at 4. However, in the Argument portion of their brief,
Appellants consolidated the issues, asserting that the trial court erred by holding that: (1)
Appellants’ removal from their Board supervisor positions did not violate article VI, section 7 of
the Pennsylvania Constitution; (2) the Referendum changed the form of the Township’s
government; and (3) Iams lacks standing to bring this action. See Appellants’ Br. at 13-24. This
Court has reordered and consolidated Appellants’ issues for clarity of discussion.
5
The facts are as alleged in the Complaint.
6
In the November 2016 General Election, Township voters passed a referendum to expand
the Board from three to five members.
2
Complaint ¶¶ 2, 9, 16 (R.R. at 9a-12a). Fidler was elected to the Board in the fall of
2019, to a term originally set to expire in January 2026. See Complaint ¶¶ 3, 16
(R.R. at 10a, 12a).
Section 402(e) of the Code states:
At the first municipal election following approval of the
question providing for a return to a three-member board,
three supervisors shall be elected to serve from the first
Monday of January after the election, when the terms of
the officers of the five-member board of supervisors shall
cease. The three candidates receiving the highest number
of votes for the office of supervisor shall be elected. The
candidate receiving the highest number of votes shall
serve for a term of six years. The candidate receiving the
second highest number of votes shall serve for a term of
four years. The candidate receiving the third highest
number of votes shall serve for a term of two years. . . .
53 P.S. § 65402(e).
In the November 2020 General Election, Township electors voted to
pass a referendum to reduce the Board’s composition from five to three members,
pursuant to Section 402(d) of the Code (Referendum).7 See Complaint ¶¶ 17-18
7
Section 402(d) of the Code provides:
In townships in which the electorate has opted for a five-member
board, the township shall return to a three-member board of
supervisors upon petition of at least five percent of the electors of
the township, or under a resolution of the board of supervisors, and
upon approval by a majority of electors voting at the next municipal
or general election. The referendum petition shall be filed with the
county board of elections not later than the thirteenth Tuesday
before the next municipal or general election. The county board of
elections shall place the question before the electors as provided
under the “Pennsylvania Election Code[, Act of June 3, 1937, P.L.
1333, as amended, §§ 2600-3591].” The form of the question shall
be as follows:
Should this township return to a Yes
three-member board of supervisors? No
3
(R.R. at 12a). On May 18, 2021,8 Polan, Shingle, Bauer, Croft, and Iams won the
Board supervisor Primary Election.9 See Martin v. Donegal Twp. (Pa. Cmwlth. No.
1062 C.D. 2021, filed Dec. 17, 2021). In the November 2021 General Election,
Polan received the highest number of votes, while Bauer received the next highest,
and Shingle received the lowest number of votes. See Complaint ¶¶ 7-9 (R.R. at
10a-11a). Thus, effective on Monday, January 3, 2022, Iams’ and Croft’s terms
The county board of elections shall tabulate and publish the results
of the referendum within [30] days of the election. In no event shall
the question of reducing the five-member board of supervisors be
voted on more than once in any five-year period.
53 P.S. § 65402(d).
8
On April 8, 2021, Appellants filed a complaint in the trial court against the Board of
Elections, the Township, Shingle, and Croft, seeking that the trial court: declare Section 402(e) of
the Code unconstitutional as applied herein; enjoin the enforcement of Section 402(e) of the Code;
enjoin the Board of Elections from conducting an election for Township Supervisor in the 2021
Primary Election or, alternatively, from counting the votes for such offices and thereafter certifying
the election; enjoin the removal of Martin and Fidler before the expiration of their office terms;
and declare that those supervisors can remain in office until their terms expire. On April 15, 2021,
Appellants filed a petition for preliminary injunction which, after a hearing, the trial court denied
on April 16, 2021. On April 21, 2021, Appellants appealed to this Court. On April 30, 2021,
Appellees filed preliminary objections to the Complaint. On May 13, 2021, this Court affirmed
the trial court’s April 16, 2021 order denying the petition for preliminary injunction for failure to
meet the necessary criteria, in particular, the primary election would not result in anyone being
removed from office. See Martin v. Wash. Cnty. Bd. of Elections (Pa. Cmwlth. No. 486 C.D. 2021,
filed May 13, 2021).
9
On May 20, 2021, Appellants filed an amended complaint in the trial court against the
Township, Shingle, and Croft, seeking to enjoin the election and a declaration that Section 402(e)
of the Code is unconstitutional, and that Martin and Fidler can carry out their terms. On June 1,
2021, Appellees filed preliminary objections, arguing that Appellants failed to join indispensable
parties (i.e., the Board of Elections, Polan, and Bauer). After a hearing, on September 17, 2021,
the trial court sustained the preliminary objections and dismissed the amended complaint. On
September 29, 2021, Appellants appealed to this Court. On December 17, 2021, this Court held
that although the Board of Elections was not an indispensable party, Polan and Bauer were
indispensable parties. Because failure to join indispensable parties deprived the trial court of
jurisdiction over the matter, this Court vacated the trial court’s order and remanded the matter to
the trial court to dismiss the amended complaint for lack of jurisdiction. See Complaint ¶¶ 22-25
(R.R. at 13a); see also Complaint Ex. A (R.R. at 17a); Martin v. Donegal Twp. (Pa. Cmwlth. No.
1062 C.D. 2021, filed Dec. 17, 2021).
4
would expire, Martin’s and Shingle’s terms would end two years early, Fidler’s term
would end four years early, and Polan, Bauer, and Shingle would be sworn in as the
new three-member Board. See Complaint ¶¶ 4, 10, 16, 20-21, 34-35 (R.R. at 10a-
13a, 15a).
On December 29, 2021, Appellants filed the Complaint in the trial court
challenging Martin’s and Fidler’s removal from the Board before their elected terms
expired as violative of article VI, section 7 of the Pennsylvania Constitution, based
on South Newton Township Electors v. South Newton Township Supervisor Bouch,
838 A.2d 643 (Pa. 2003), and In re Petition to Recall Reese, 665 A.2d 1162 (Pa.
1995), and, thus, the November 2021 Board supervisors’ election was void ab initio.
See Complaint ¶¶ 19-21, 28-29, 33-35 (R.R. at 12a-15a). Appellants requested the
trial court to: (1) declare Section 402 of the Code unconstitutional as applied; 10 (2)
enjoin its enforcement; (3) enjoin Martin’s and Fidler’s removal; (4) declare the
November 2021 Board election invalid and the results void; and (5) award other
appropriate relief. See R.R. at 16a.
On January 26, 2022, Appellees filed the Preliminary Objections in the
nature of a demurrer11 to Appellants’ Complaint, arguing: (1) Appellants failed to
10
“[A]n as-applied challenge ‘does not contend that a law is unconstitutional as written but
that its application to a particular person under particular circumstances deprived that person of a
constitutional right.’” E. Coast Vapor, LLC v. Pa. Dep’t of Revenue, 189 A.3d 504, 511 (Pa.
Cmwlth. 2018) (quoting Johnson v. Allegheny Cnty. Intermediate Unit, 59 A.3d 10, 16 (Pa.
Cmwlth. 2012)).
11
“The question presented in a demurrer is whether, on the facts
averred, the law indicates with certainty that no recovery is possible.
In reviewing a [trial] court’s decision to grant a demurrer, our
Court’s standard of review is de novo.” Stilp v. Gen. Assembly, . . .
974 A.2d 491, 494 ([Pa.] 2009) (citations omitted). Thus, we will
affirm a trial court’s order sustaining preliminary objections and
dismissal of a complaint “only in cases that are clear and free from
doubt that the law will not permit recovery” by the appellant. Cap.
City Lodge No. 12, Fraternal Ord. of Police v. City of
Harrisburg, . . . 588 A.2d 584, 586-87 ([Pa. Cmwlth.] 1991). In
5
follow the Pennsylvania Election Code’s (Election Code)12 procedures for
challenging the conduct and results of the November 2021 Board election; (2)
Appellants failed to state a valid quo warranto action; (3) because Appellants are no
longer Board members, they lack standing to sue; (4) Appellants’ action for
declaratory and injunctive relief is moot because it cannot bypass mandatory
Election Code procedures; (5) the doctrine of laches applies because, despite
knowing after the November 2020 Referendum was passed that the Board
complement would be reduced to three members, Appellants waited until April 2021
to first challenge the process, and then waited until December 2021 to again
challenge it; and (6) Appellants’ action fails as a matter of law because they were
not unconstitutionally removed from office. See R.R. at 21a-61a. Appellants
opposed the Preliminary Objections. See R.R. at 62a-91a.
On February 28, 2022, the trial court heard argument on the Preliminary
Objections. On March 29, 2022, the trial court overruled Appellees’ Preliminary
Objections as to the Election Code, quo warranto, mootness, and laches defenses,
but sustained Appellees’ Preliminary Objections that Iams lacked standing and that
the Complaint failed to state a valid claim that Section 402(e) of the Code violates
the Pennsylvania Constitution as applied to Appellants Martin and Fidler. See R.R.
at 92a-112a. In reaching the latter holding, the trial court determined that Bouch and
ruling on preliminary objections in the nature of a demurrer, this
Court accepts as true all well-pleaded facts in the complaint and
draws all inferences reasonably deducible therefrom in favor of the
nonmoving party. Stone & Edwards Ins. Agency, Inc. v. Dep’t of
Ins., . . . 616 A.2d 1060, 1063 ([Pa. Cmwlth.] 1992). However, we
“need not accept as true conclusions of law, unwarranted inferences
from facts, argumentative allegations, or expressions of opinion.”
Id. . . . And, in the face of doubt, our resolution should be in favor
of reversing the grant of the demurrer.
Vasquez v. Berks Cnty., 279 A.3d 59, 75-76 (Pa. Cmwlth. 2022) (italics added).
12
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
6
Reese are distinguishable, and that the change in the number of Board members
changed the Township’s form of government. By April 11, 2022 praecipe, the trial
court ordered its prothonotary to enter judgment in Appellees’ favor and dismiss the
Complaint with prejudice. See R.R. at 3a, 113a-114a. On April 12, 2022, Appellants
appealed to this Court.13
On April 25, 2022, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure (Rule) 1925(b), which they did on May 9, 2022. On May 16,
2022, the trial court filed a statement pursuant to Rule 1925(a) adopting its March
29, 2022 opinion.
Discussion
Standing
Appellants argue that the trial court erred by holding that Iams lacked
standing to bring the declaratory judgment action.
The Declaratory Judgments Act’s (DJA)14 purpose is “to settle and to
afford relief from uncertainty and insecurity with respect to rights, status, and other
legal relations[.]” 42 Pa.C.S. § 7541(a). Accordingly, Section 7533 of the DJA
specifies: “Any person . . . whose rights, status, or other legal relations are affected
by a statute . . . may have determined any question of construction or validity arising
under the . . . statute . . . and obtain a declaration of rights, status, or other legal
13
“Our review of a trial court’s order sustaining preliminary objections and dismissing a
complaint is limited to determining whether the trial court abused its discretion or committed an
error of law.” Ward v. Potteiger, 142 A.3d 139, 142 n.6 (Pa. Cmwlth. 2016) (quoting Pub. Advoc.
v. Brunwasser, 22 A.3d 261, 266 n.5 (Pa. Cmwlth. 2011)).
By September 12, 2022 letter (Letter), the Board of Elections notified this Court that it
would not participate in this appeal, and “will proceed as directed by the Court following
adjudication of this matter.” Letter at 1.
14
42 Pa.C.S. §§ 7531-7541.
7
relations thereunder.” 42 Pa.C.S. § 7533. However, “a person who is not adversely
impacted by [a] matter he seeks to challenge does not have standing to proceed with
the court system’s . . . process.” Pittsburgh Palisades Park, LLC v. Commonwealth,
888 A.2d 655, 659 (Pa. 2005).
The courts in our Commonwealth do not render decisions
in the abstract or offer purely advisory opinions; consistent
therewith, the requirement of standing arises from “the
principle that judicial intervention is appropriate only
when the underlying controversy is real and concrete. . . .”
City of Phila[.] v. Commonwealth . . . , . . . 838 A.2d 566,
577 ([Pa.] 2003).
Stated another way, a controversy is worthy of judicial
review only if the individual initiating the legal action has
been “aggrieved.” In re Hickson, . . . 821 A.2d 1238, 1243
([Pa.] 2003); see also City of Phila[.], 838 A.2d at 577.
Pittsburgh Palisades Park, 888 A.2d at 659. “An individual can demonstrate that
he has been aggrieved if he can establish that he has a substantial, direct and
immediate interest in the outcome of the litigation.” Fumo v. City of Phila., 972
A.2d 487, 496 (Pa. 2009).
A substantial interest in the outcome of litigation is one
that surpasses the common interest of all citizens in
procuring obedience to the law. A direct interest requires
a causal connection between the asserted violation and the
harm complained of. An interest is immediate when the
causal connection is not remote or speculative.
Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1215 (Pa. Cmwlth.
2018) (citations omitted). “[I]t is not sufficient for the person claiming to be
‘aggrieved’ to assert the common interest of all citizens in procuring obedience to
the law.” Pittsburgh Palisades Park, 888 A.2d at 660 (quoting In re Hickson, 821
A.2d at 1243).
8
The crux of Appellants’ action is that the removal of a Board member
before his/her elected term expires violates the Pennsylvania Constitution.
Appellants pled in the Complaint that “[Iams] is a voter and taxpayer in [the]
Township[,] as well as a current member of the [Board] who was elected in the fall
of 2017 and whose term is set to expire in 2022 . . . [,]” Complaint ¶ 4 (R.R. at 10a),
and “[f]ollowing the 2017 [General E]lection, the [Board] was comprised of five
[s]upervisors, to wit: a. [] Iams was elected in the fall of 2017, taking office in
January 2018 for a term of four (4) years. [] Iams’[] term expires in January 2022.”
Complaint ¶ 16 (R.R. at 12a). Although Iams was a sitting Board member when
Appellants filed the Complaint, it was clear that her term would naturally expire on
January 3, 2022. The Complaint does not contain any averment that Iams’ term
would prematurely end on January 3, 2022, like Martin’s and Fidler’s terms, that she
has an immediate interest that is harmed in any manner by Section 402(e) of the
Code’s application in this instance, or that her interest in the outcome of this
litigation in any way surpasses the common interest of other Township
citizens/voters.15 Thus, Iams did not have “rights . . . affected by a statute” on which
the trial court could have issued declaratory judgment in her favor. 42 Pa.C.S. §
7533. Because Iams did not have a substantial, direct and immediate interest in the
15
The taxpayer exception to the traditional standing requirements applies when
(1) the governmental action would otherwise go unchallenged;
(2) those directly and immediately affected by the complained of
matter are beneficially affected and not inclined to challenge the
action;
(3) judicial relief is appropriate;
(4) redress through other channels is unavailable; and
(5) no other persons are better situated to assert the claim.
Pittsburgh Palisades Park, 888 A.2d at 662 (quoting Consumer Party of Pa. v. Commonwealth,
507 A.2d 323, 329 (Pa. 1986)). Because Martin and Fidler have challenged Section 402(e) of the
Code’s application, the taxpayer exception does not apply in this case.
9
outcome of the litigation, she was not aggrieved. Accordingly, the trial court
properly concluded that Iams lacked standing to bring this action.
Constitutionality
Appellants16 also argue that the trial court erred by concluding that
Section 402(e) of the Code does not violate article VI, section 7 of the Pennsylvania
Constitution.17 Specifically, Appellants contend that because the Pennsylvania
Supreme Court ruled in Bouch and Reese that article VI, section 7 of the
Pennsylvania Constitution is the only method by which the Township could
prematurely end Board supervisors’ terms, and Section 402(e) of the Code, as
applied, conflicts with article VI, section 7 of the Pennsylvania Constitution, Section
402(e) of the Code is unconstitutional. Appellants further assert that, contrary to the
trial court’s reasoning, the Referendum did not change the Township’s form of
government so as to abolish Martin’s and Fidler’s positions.
This Court has declared:
There is a strong presumption in the law that legislative
enactments are constitutional. Christ the King Manor v.
Dep’t of Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006)
(en banc), aff’d per curiam, . . . 951 A.2d 255 ([Pa.] 2008)
. . . . A court will not declare a statute unconstitutional
unless the constitutional violation is clear, palpable, and
plain. Id. The court will resolve all doubts in favor of
constitutionality. Id. Thus, a party challenging the
constitutionality of a statute has a heavy burden of
persuasion. Id.Phantom Fireworks, 198 A.3d at 1221.
16
Because Iams lacked standing to bring this action, this Court’s references to Appellants
hereinafter shall refer to only Martin and Fidler.
17
Appellants clarify: “This case challenges a violation of the Pennsylvania Constitution
resulting from [] Martin[’s] and [] Fidler’s unconstitutional removal from office prior to the
expiration of their terms of office. Appellants do not challenge the constitutionality of Section
[]402(e) [of the Code] as a whole.” Appellants’ Br. at 7.
10
Here, Section 402(e) of the Code mandated that Polan, Bauer, and
Shingle, the three supervisors elected in the November 2021 General Election after
the Referendum was approved, “shall . . . serve from the first Monday of January
after the election [(i.e., January 3, 2022)], when the terms of the officers of the five-
member board of supervisors [(i.e., Iams, Croft, Martin, Shingle, and Fidler)] shall
cease.” 53 P.S. § 65402(e). Iams’ and Croft’s terms as Board members naturally
concluded on January 3, 2022. Although Shingle would proceed to serve a new term
as Board supervisor, Section 402(e) of the Code, as applied, cut short Martin’s and
Fidler’s terms on January 3, 2022, by several years before they were due to expire.
According to Appellants, based on Bouch and Reese, article VI, section
7 of the Pennsylvania Constitution is the exclusive method by which they could be
removed from their Board supervisor positions before their terms ended. Article VI,
section 7 of the Pennsylvania Constitution declares:
All civil officers shall hold their offices on the condition
that they behave themselves well while in office, and shall
be removed on conviction of misbehavior in office or of
any infamous crime. . . . All civil officers elected by the
people, except the Governor, the Lieutenant Governor,
members of the General Assembly and judges of the courts
of record, shall be removed by the Governor for
reasonable cause, after due notice and full hearing, on
the address of two-thirds of the Senate.
PA. CONST. art. VI, § 7 (emphasis added).
In Reese, Kingston Citizens for Change (petitioners) filed a petition
with the board of elections (petition) seeking to recall the mayor on the primary
11
ballot under the recall provisions of the Kingston Home Rule Charter.18 The mayor
filed preliminary objections seeking to set aside the petition.19
The petitioners filed an amended petition and the mayor filed an
amended preliminary objection challenging the recall on constitutional and other
grounds. The common pleas court ultimately sustained the mayor’s amended
preliminary objection to the amended petition, set aside the amended petition, and
directed the board of elections not to place the recall question on the primary ballot,
holding that the Kingston Home Rule Charter’s recall provisions were
unconstitutional and void. The petitioners appealed to the Pennsylvania Supreme
Court, which held:
Article VI, [s]ection 7 [of the Pennsylvania Constitution]
“indisputably applies to all elected officers, and sets forth
in unambiguous language the exclusive method, absent
impeachment, conviction of crime or misbehavior in
office, of removing such elected officers.” Rizzo [v.
Citizens Comm. to Recall Rizzo v. Bd. of Elections], . . .
367 A.2d [232,] 250-51 [(Pa. 1976)] (Concurring Opinion
of Nix, J.) (emphasis in original).
18
The recall provision provided:
Petition demanding the recall of any elective municipal officer shall
be signed by qualified electors equal in number to at least forty-five
percent (45%) of the number of total votes cast for the office of
mayor in the most recent election for mayor in the municipality. No
signature contained in a petition on recall shall be valid unless
affixed to the petition within ninety (90) days prior to the filing of
the petition. If the majority of the votes cast on the question are in
favor of recall, the office shall become vacant immediately upon
certification of the results by the [c]ounty [b]oard of [e]lections.
Any vacancy created by recall shall be filled in accordance with
Articles II and III of this [Home Rule] Charter.
Reese, 665 A.2d at 1164.
19
The common pleas court ruled that the petition was facially defective and allowed the
petitioners to amend it. The common pleas court also permitted the mayor to file amendments to
his original preliminary objections and additional preliminary objections.
12
Having thus interpreted [a]rticle VI, [s]ection 7 [of the
Pennsylvania Constitution], we must conclude that in
providing for recall[,] the municipality of Kingston
exceeded the powers conferred by [a]rticle IX, [s]ection 2
[of the Pennsylvania Constitution, PA. CONST. art. IX, § 2
(relating to home rule),] and the Home Rule Charter and
Optional Plans Law.[20] This method of removal is
specifically denied by the [Pennsylvania] Constitution.
Reese, 665 A.2d at 1167.
In Bouch, township residents filed an amended complaint in the
common pleas court seeking to remove a township supervisor pursuant to Section
503 of the Code for his alleged dereliction of duties. Section 503 of the Code
provides:
Whether elected or duly appointed to fill a vacancy in
elective office, a township officer shall be removable from
office only by impeachment, or by the Governor for
reasonable cause after due notice and full hearing on the
advice of two-thirds of the Senate, or upon conviction of
misbehavior in office, or of an infamous crime in
accordance with the Constitution of Pennsylvania, but the
officer’s title to office may be tried by proceedings of quo
warranto as provided by law.
53 P.S. § 65503. The township supervisor filed preliminary objections, alleging that
Section 503 of the Code violated article VI, section 7 of the Pennsylvania
Constitution. The common pleas court sustained the preliminary objections and
dismissed the amended complaint.
The township residents appealed to the Pennsylvania Supreme Court,
which, relying in part on Reese, held, inter alia, that Section 503 of the Code was
unconstitutional because it conflicted with article VI, section 7 of the Pennsylvania
Constitution, reasoning:
20
Act of April 13, 1972, as amended, formerly 53 P.S. §§ 1-101 - 1-1309, repealed by
Section 2(a) of the Act of December 19, 1996, P.L. 1158. A similar act is now found in 53 Pa.C.S.
§§ 2901-3171.
13
The causes of removal for township supervisors as well as
the methods that existed before the passage of the 1874
[Pennsylvania] Constitution differed from those that
existed after its passage. For example, with regard to the
causes of removal, under Section 503 [of the Code],
removal is permitted if the supervisor “fails to perform the
duties of the office[.]”[] However, the pre-1874
constitutional statutes did not allow for removal for such
neglect of duties. Under the 1834 Act,[21] for example, the
penalty for neglect of duty was payment of a sum - not
removal. The 1860 Act[22] did permit removal of the
township supervisor, but only upon the officer’s refusal to
give a required security - not for neglecting the duties of
the office. Unlike the allegations in [In re] Georges
Township [School Directors, 133 A. 223 (Pa. 1926)], [the
a]ppellants’ allegations regarding [Bouch’s] dereliction of
duties would not have provided a basis for removal under
the pre-1874 legislation.
Moreover, with regard to the method of removal, neither
of these acts contained provisions allowing a certain
number of citizens to petition for removal of the
supervisor. Because there was no legislation existing prior
to the 1874 [Pennsylvania] Constitution providing for the
removal of a township supervisor via petition for his
failure to perform the duties of the office, the tenet from
Georges Township does not control.
Bouch, 838 A.2d at 649.
In the instant matter, the trial court concluded that Bouch and Reese are
distinguishable and do not control the outcome of this case because Appellants’
terms as Board supervisors were not cut short due to their misbehavior or for other
cause but, rather, by operation of law. The trial court declared that, although Bouch
and Reese “address the constitutional limitations on the Legislature’s authority to
direct when and under what circumstances a municipal officer may be removed from
21
Act of April 15, 1834, P.L. 554 (subjecting township supervisors to a fine for neglect of
duty).
22
Act of March 16, 1860, P.L. 174 (providing for removal of township supervisors who
failed to post a statutorily required bond).
14
office, th[o]se cases do not broadly hold that the Legislature lacks the authority to
direct when and how municipal offices may be abolished.” Trial Ct. Op. at 16.
The trial court referenced that “[article VI,] section [7] of the
Pennsylvania Constitution is read in conjunction with [a]rticle VI, [s]ection 1 [of the
Pennsylvania Constitution] . . . .” Arneson v. Wolf, 117 A.3d 374, 379 (Pa. Cmwlth.),
aff’d & adopted, 124 A.3d 1225 (Pa. 2015) (Arneson II). Article VI, section 1 of the
Pennsylvania Constitution declares: “All officers, whose selection is not provided
for in this Constitution,[23] shall be elected or appointed as may be directed by law.”
PA. CONST. art. VI, § 1.
In Arneson II, the Pennsylvania Supreme Court expounded:
[W]e have consistently interpreted these two
constitutional provisions together to hold that when the
[L]egislature creates a public office in accord with [a]rticle
VI, [s]ection 1 [of the Pennsylvania Constitution], it may
impose terms and limitations regarding tenure or removal
as it sees fit, thereby limiting the Governor’s power of
removal under [a]rticle VI, [s]ection 7 [of the
Pennsylvania Constitution]. [Commonwealth ex rel.
Sortino v.] Singley, 392 A.2d [1337,] 1339 [(Pa. 1978)];
Watson v. P[a.] Tpk. Comm’n, . . . 125 A.2d 354, 356 ([Pa.]
1956) (explaining that [a]rticle VI, [s]ection 1 [of the
Pennsylvania Constitution] expressly grants the
[L]egislature authority to create a public office and to
impose terms and limitations on the tenure or removal of
one holding that office); Burger v. Sch. Bd. of McGuffey
Sch. Dist., . . . 923 A.2d 1155, 1164 ([Pa.] 2007)
(recognizing that “when the General Assembly creates a
public office it may impose terms and limitations on the
removal of the public officer so created[]”). Where the
[L]egislature creates a public office without imposing
terms or conditions on the duration of an incumbent’s
tenure or the mode of removal, the method of removal
provided in [a]rticle VI, [s]ection 7 [of the Pennsylvania
23
“The township supervisor is not mentioned in any of the Constitutions of the
[C]ommonwealth[.]” In re Supervisors of Milford Twp., Somerset Cnty., 139 A. 623, 624 (Pa.
1927), overruled on other grounds by Reese.
15
Constitution] applies. Watson, 125 A.2d at 356-57
(applying the prior version of [a]rticle VI, [s]ection 7 [of
the Pennsylvania Constitution]).
Whether the legislature has exercised its authority under
[a]rticle VI, [s]ection 1 [of the Pennsylvania Constitution]
to limit the Governor’s removal power under [a]rticle VI,
[s]ection 7 [of the Pennsylvania Constitution] depends
upon the statute creating the public office. Singley, 392
A.2d at 1339 (“Whether an appointed civil officer holding
a legislatively created office is subject to removal at the
pleasure of the appointing power depends upon legislative
intent, ‘to be gleaned from the statute creating or
regulating the office.’”). We have never required express
language in a statute, i.e., that an appointee may only be
removed for cause, to find a legislative limitation on the
Governor’s removal power. Rather, we look to the totality
of the statutory language in accord with the oft-stated rules
of statutory construction to glean the legislative intent.
Arneson II, 124 A.3d at 1227-28.
Here, the trial court interpreted that article VI, section 7 of the
Pennsylvania Constitution does not apply when municipal voters abolish their
governing body by referendum, see Trial Ct. Op. at 14, and the Referendum
“repeal[ed] [the Township’s] optional form of local government [when it] return[ed]
to a three[-]member Board . . . .” Id. at 16. Relying on Varner v. Swatara Township
Board of Commissioners (Pa. Cmwlth. No. 153 C.D. 2017, filed Feb. 21, 2017,
amended, Mar. 10, 2017), and Lyons v. Pittsburgh, 586 A.2d 469 (Pa. Cmwlth.
1991), the trial court determined that a change in the number of members of a local
governing body is a change in form of government and, therefore, Bouch and Reese
do not apply.
In Varner, the board of commissioners enacted an ordinance in
February 2015, that eliminated the nine-member by-ward system by reducing the
number of commissioners, which were to be elected at-large, to five. At the 2015
municipal election, the transition from a by-ward to an at-large system began when
16
five commissioners elected by-ward whose terms were expiring were replaced by
three members elected at-large. At the 2017 municipal election, the changeover
would have been complete when the remaining four by-ward members with expiring
terms were replaced by two members elected at-large, so that all five board members
would have been elected at-large. However, in 2016, without petitioning the court,
the board of commissioners enacted Ordinance 2016-7, which changed the system
back to nine commissioners to be elected by-ward.
The petitioners filed a declaratory judgment action in the common pleas
court contending that Ordinance 2016-7 was void under Section 401 of The First
Class Township Code,24 and seeking a declaration that court approval was required
before a change could be made from an at-large to a by-ward system of electing
commissioners. The board of commissioners opposed the action, arguing that article
IX, section 11 of the Pennsylvania Constitution,25 as implemented by the Municipal
Reapportionment Act,26 superseded Section 401 of The First Class Township Code.
Finding that Section 401 of The First Class Township Code was not inconsistent
with either article IX, section 11 of the Pennsylvania Constitution or the Municipal
Reapportionment Act, the trial court concluded that Ordinance 2016-7 was void ab
initio. On appeal, this Court affirmed the trial court’s decision, reasoning that article
24
Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 55401 (relating to the creation
and alteration of wards).
25
PA. CONST. art. IX, § 11 (within a year after the federal census is officially reported,
municipalities consisting of governing bodies not entirely elected at[-]large shall be reapportioned
into districts as nearly equal in population as practicable).
26
53 Pa.C.S. §§ 901-908. Section 903(a) of the Municipal Reapportionment Act
implements article IX, section 11 of the Pennsylvania Constitution, stating, in pertinent part:
“Within the year following that in which the [f]ederal census, decennial or special, is officially and
finally reported and at such other times as the governing body deems necessary, each entity having
a governing body not entirely elected at[-]large shall be reapportioned into districts by its
governing body.” 53 Pa.C.S. § 903(a). Section 904 of the Municipal Reapportionment Act adds
that, if the governing body does not reapportion within one year of the federal census, resident
electors may petition the common pleas court to take steps to do so. See 53 Pa.C.S. § 904.
17
IX, section 11 of the Pennsylvania Constitution and the Municipal Reapportionment
Act were intended to ensure that elected officials selected by districts represented a
population as equal as possible to other districts so that each voter would have equal
voting weight and, because an at-large election was already the intention when the
township enacted it, Ordinance 2016-7’s purpose could not have been to carry out
that goal but, rather, was an attempt to change the form of governance from a five-
member at-large board to a nine-member by-ward board. Here, because the
Referendum only changed the number of Board supervisors, and there was no
intention to change the Township’s form of governance, this Court holds that Varner
is inapposite.27
The trial court also relied on Lyons to support its position that Bouch
and Reese do not apply. The trial court reasoned that, in Lyons, this Court affirmed
a common pleas court’s determination that permitted “a home rule charter
amendment that created district elections [that] caused a city councilman to lose his
seat before the expiration of his term.” Trial Ct. Op. at 8. However, “the amendment
creating the district-wide electoral system,” in Lyons, “constituted a change in the
form of the [c]ity’s government tantamount to the adoption of a new home rule
charter.” Lyons, 586 A.2d at 471. Again, as the Referendum in the instant matter
did not change the form of government, Lyons is also inapposite.
Since this Court’s rulings in Varner and Lyons do not support the trial
court’s attempt to distinguish Bouch and Reese, we are constrained to hold that
Bouch and Reese control the outcome in this case. Under Bouch and Reese, article
VI, section 7 of the Pennsylvania Constitution provides the exclusive method to
27
The trial court also cited to Borough of Warren v. County Board of Elections, 425 A.2d
1113 (Pa. Cmwlth. 1981), in support of its position. However, because the Warren Court held that
“provisions for the size of the council and the basis for electing them [] is a ‘complete and
separate form of government[,]’” id. at 1115 (emphasis added), Warren is also inapposite.
18
remove elected officials from office.28 Accordingly, Section 402(e) of the Code’s
method of terminating Board supervisor positions was unconstitutional as applied to
Martin and Fidler. Because it does not appear with certainty that Appellants’ claim
that they were unconstitutionally removed from office will not permit them to
recover, the trial court erred by sustaining Appellees’ Preliminary Objections and
dismissing the Complaint on that basis. See Vasquez v. Berks Cnty., 279 A.3d 59(Pa. Cmwlth. 2022).
Conclusion
Based on the foregoing, this Court affirms the portion of the trial court’s
order sustaining the Preliminary Objection as to Iams’ standing, and reverses the
portion of the trial court’s order sustaining the Preliminary Objection as to the
constitutionality of Section 402(e) of the Code and dismissing the Complaint.
_________________________________
ANNE E. COVEY, Judge
Judge Wallace did not participate in the decision in this matter.
28
Notably, in response to the appellants’ argument in Bouch that the result “allow[ed]
township electors to burden the Governor and Senate with affairs that are not of statewide
importance, which would waste government resources[,]” the Supreme Court stated: “[E]ven if we
agreed that the constitutional removal method is not as practical as the one provided for in Section
503 [of the Code], we cannot disregard a controlling constitutional provision.” Bouch, 838 A.2d
at 647.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Martin, Jr., Richard Fidler and :
Tammi Iams, :
Appellants :
:
v. :
:
Donegal Township, James Bauer, :
Randy Polan, Ed Shingle, Kathleen :
Croft and Washington County Board : No. 369 C.D. 2022
of Elections :
ORDER
AND NOW, this 13th day of April, 2023, the portion of the Washington
County Common Pleas Court’s (trial court) March 29, 2022 order sustaining
Donegal Township’s, James Bauer’s, Randy Polan’s, Ed Shingle’s, Kathleen
Croft’s, and the Washington County Board of Elections’ (collectively, Appellees)
preliminary objection (Preliminary Objection) relative to Tammi Iams’ standing is
AFFIRMED. The portion of the trial court’s order sustaining the Preliminary
Objection as to the constitutionality of Section 402(e) of The Second Class
Township Code, 53 P.S. § 65402(e), and dismissing Richard Martin, Jr.’s and
Richard Fidler’s action for declaratory judgment and injunctive relief (Complaint)
is REVERSED.
The Complaint is hereby reinstated and the matter is remanded to the
trial court with the direction that Appellees shall file an answer to the Complaint
within 20 days of the date of this Court’s remand of the record to the trial court in
accordance with the Pennsylvania Rule of Appellate Procedure 2572, Pa.R.A.P.
2572.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge