Pilchesky, J., Aplt. v. Bulzoni, D.

J-A03026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH PILCHESKY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DAVID BULZONI, BUSINESS
ADMINISTRATOR FOR CITY OF
SCRANTON, CITY OF SCRANTON, MAYOR
WILLIAM COURTRIGHT, AND SCRANTON
CITY COUNCIL
Appellees No. 1002 MDA 2016
Appeal from the Order Dated May 26, 2016
In the Court of Common Pleas of Lackawanna County
Civil Division at No: 2016-CV-1374
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 26, 2017
Appellant Joseph Pilchesky pro se1 appeals from the May 26, 2016
order of the Court of Common Pleas of Lackawanna County (“trial court”),
which sustained the preliminary objections of David Bulzoni, Business
Administrator for the City of Scranton, William Courtright, Mayor of the City
of Scranton, and Scranton City Council (collectively “Appellees”) and
dismissed Appellant’s complaint. Upon review, we affirm.2
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1
Appellant proceeded pro se at all stages of this case.
2
By order dated June 20, 2016, our Supreme Court transferred the instant
appeal to our Court.
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On February 11, 2016, Appellant filed a complaint in quo warranto and
a request for injunctive relief against Appellees to oust Appellee David
Bulzoni from his appointed position of Business Administrator for the City of
Scranton (“Scranton”). Appellant alleged that Appellee William Courtright
assumed the Office of Mayor in January 2014. See Complaint, 2/11/16, at
¶ 6. Upon assuming office, Mayor Courtright appointed Bulzoni as
Scranton’s Business Administrator. Id. at ¶ 7. Appellant alleged that
Bulzoni resided outside of Scranton and was required to relocate within the
limits of Scranton six months from the time of commencement of
employment under one of its ordinances. Id. at ¶ 8. Appellant further
alleged that in early 2015, after Bulzoni had failed to relocate to Scranton,
the Council of the City of Scranton (“City Council”), upon the Mayor’s
request, passed Resolution No. 122 of 2015 exempting Bulzoni from the
residency requirement until December 31, 2015. Id. at ¶¶ 11-12; see id.
at Ex. “B”. Bulzoni failed to relocate to Scranton by December 31, 2015.
Id. at ¶¶ 12-13. On February 4, 2016, City Council passed Resolution No. 7
of 2016, amending Resolution No. 122 of 2015 to exempt Bulzoni from the
residency requirement for the duration of his employment. Id. at ¶¶ 13-14.
On February 25, 2016, Appellant petitioned for temporary injunctive
relief, seeking the immediate removal of Bulzoni from the position of
Business Administrator. On March 4, 2016, following a hearing, the trial
court denied Appellant’s petition for temporary injunctive relief. On the
same day, Appellees filed preliminary objections to the complaint, asserting
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that, under Pa.R.C.P. No. 1028(a)(2), Appellant lacked standing to institute
the quo warranto action. Appellees argued that Appellant notified the Office
of the Attorney General (“AG”) by letter dated January 30, 2016, and the
Lackawanna District Attorney’s Office (“DA”) by letter dated January 14,
2016, and imposed upon the AG and the DA a seven-day period to respond
to his request to prosecute the quo warranto action. Because the AG and
the DA had not declined to prosecute the quo warranto action, Appellees
alleged that Appellant lacked standing to initiate the instant action.
Appellees also challenged the sufficiency of Appellant’s complaint through a
preliminary objection based on Rule 1028(a)(4). Specifically, Appellees
alleged that Resolution 7 of 2016 did not conflict with the Ordinance.
On March 24, 2016, in response to Appellees’ preliminary objections,
Appellant filed an amended complaint, which was nearly identical to the
original complaint. The amended complaint differed only to the extent
Appellant included a paragraph titled “The issue of Plaintiff’s standing” to
explain how he notified the AG and the DA. Appellant explained that the AG
declined to prosecute the quo warranto action. Appellant alleged that, on
March 8, 2016, he sent another letter to the DA’s Office, requesting that it
prosecute his quo warranto action and respond within ten days. Appellant
further alleged that he had not yet heard from the DA’s Office. See
Amended Complaint, 3/24/16, at 4.
On April 13, 2016, Appellees filed preliminary objections to Appellant’s
amended complaint, renewing their allegation that Appellant lacked standing
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to bring a quo warranto action and that City Council did not violate the
Ordinance in passing Resolution No. 7 of 2016, which granted Bulzoni an
indefinite residency waiver. On May 26, 2016, the trial court issued an order
sustaining Appellees’ preliminary objections, denying Appellant’s request for
injunctive relief, and dismissing Appellant’s amended complaint. Appellant
timely appealed to this Court.3
On appeal, Appellant raises two issues for our review:
[I.] Did [the] trial court err at law or abuse its discretion by
denying Appellant’s standing to bring a [q]uo [w]arranto
[c]omplaint?
[II.] Did [the] trial court err at law by declaring that []
Appellant’s [q]uo [w]arranto [c]omplaint was legally insufficient
and moot?
Appellant’s Brief at 4 (italicization added).
We review a trial court’s order sustaining preliminary objections for an
error of law and apply the same standard as the trial court. Richmond v.
McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (quotation omitted).
A preliminary objection in the nature of a demurrer is
properly [sustained] where the contested pleading is legally
insufficient. Preliminary objections in the nature of a demurrer
require the court to resolve the issues solely on the basis of the
pleadings; no testimony or other evidence outside of the
complaint may be considered to dispose of the legal issues
presented by the demurrer. All material facts set forth in the
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3
The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
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pleading and all inferences reasonably deducible therefrom must
be admitted as true.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading
would permit recovery if ultimately proven. This Court will
reverse the trial court’s decision regarding preliminary objections
only where there has been an error of law or abuse of discretion.
When sustaining the trial court’s ruling will result in the denial of
claim or a dismissal of suit, preliminary objections will be
sustained only where the case is free and clear of doubt.
Thus, the question presented by the demurrer is whether,
on the facts averred, the law says with certainty that no
recovery is possible. Where a doubt exists as to whether a
demurrer should be sustained, this doubt should be resolved in
favor of overruling it.
Hill v. Slippery Rock Univ., 138 A.3d 673, 676–77 (Pa. Super. 2016).
We begin with Appellant’s second issue, i.e., that City Council did not
have the authority under the Ordinance to grant Bulzoni a residency waiver
after Bulzoni was employed by Scranton.4 Differently put, Appellant argues
that City Council could have granted a residency waiver only prior to the
commencement of Bulzoni’s employment with Scranton. We disagree.
The Ordinance provides in relevant part:
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4
Based on the outcome of this appeal, we need not address the merits of
Appellant’s first issue implicating his standing to initiate this quo warranto
action. We also need not address whether Appellees premised their standing
challenge on an improper subsection of Pennsylvania Rule of Civil Procedure
1028(a) or whether Appellees should have endorsed their preliminary
objection challenging Appellant’s standing with a notice to plead.
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The best interest of the City of Scranton shall be most important
in employing any person or persons to work for the City. It shall
be within the discretion of the Mayor in evaluating the
circumstances of each potential candidate for employment to
determine whether or not to seek a waiver of the residency
requirement contained herein. If the Mayor decides to seek a
waiver of these residency requirements for a potential candidate
or candidates for employment by the City, then such an
appointment to any and all employment positions within the
City shall not be made unless the advice and consent of Council
is secured prior to employment of the potential candidate for
employment in the same manner as Cabinet Department Heads
and Solicitors are confirmed.
Ordinance, File of the Council No. 17 of 1980, § 4 (emphasis added).
Here, based on our review of the Ordinance, we conclude that City
Council had the authority to grant Bulzoni a residency waiver after the start
of his employment with the City of Scranton. The plain language of the
Ordinance provides only that an appointment to a position of employment
must be made by advice and consent of City Council before City Council may
grant a residency waiver to an employee of Scranton. In other words,
contrary to Appellant’s contention, the Ordinance does not require a Mayor
of Scranton to seek a residency waiver from City Council prior to the hiring
of an employee. Accordingly, we conclude that the trial court did not err in
sustaining Appellees’ preliminary objection challenging the sufficiency of
Appellant’s complaint under Rule 1028(a)(4). See Liberty Mut. Ins. Co. v.
Domtar Paper Co., 77 A.3d 1282, 1286 (Pa. Super. 2013) (noting that it is
well settled that if the trial court’s decision is correct, we may affirm it on
any ground supported by the record on appeal).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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