Appeal, No. 176, Jan. T., 1963, from judgment of Court of Common Pleas of Bucks County, May T., 1962, No. 2398, in case of Stephen Nicoletti v. William Veitch, president, and William G. Major, acting secretary, of Bristol Borough Council, and James Nealis, Mayor of Borough of Bristol. Judgment affirmed.
Norvin Nathan, for appellants.
No argument was made nor brief submitted for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
This action in quo warrantor was brought by plaintiff, Stephen Nicoletti, to question the right of James Whyno to hold the office of borough councilman. The undisputed facts show that a vacancy occurred on the
Bristol Borough Council by virtue of the resignation of one of its members. At the regular monthly meeting of council held on July 9, 1962, Nicoletti and Whyno were nominated to fill the vacancy. A roll call was taken and Nicoletti received a majority of the votes. The result of the vote was accordingly entered in the minutes of the meeting.
Subsequently, the mayor of the borough, upon being advised that he had the power so to act, vetoed the appointment of Nicoletti. On the basis of the mayor's veto, Nicoletti was refused his seat in council and another election was held at which Whyno was elected.*fn1 Nicoletti thereupon instituted this action claiming that he was entitled to the councilmanic seat.
The motions by both sides for judgment on the pleadings raise two questions: (1) whether Nicoletti was properly appointed by council on July 9, 1962, and (2) if he were properly appointed, whether the mayor had the power to veto the appointment. The court below held that Nicoletti was properly appointed and that the mayor possessed no power to veto the appointment. Accordingly, it entered judgment for the plaintiff. We hold that the court below acted correctly in this matter.
On the question of the validity of Nicoletti's appointment, section 901 of The Borough Code provides: "If any vacancy shall occur in the office of ... council ... the borough council shall fill such vacancy by appointing, by resolution, a registered elector ... to hold such office for the unexpired term of the office."*fn2 Appellant argues ...