Appeal from order of Court of Common Pleas of Montgomery County, No. 64-13888, in case of Ignatius M. Zaffarano v. Ambler Borough Council, James Ricciardi, William R. Webster, Jr. et al.
Louis D. Stefan, with him Foulke, Knight, Stefan & Timoney, for appellants.
Michael H. Malin, with him White and Williams, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts joins in this dissenting opinion.
The appellee, Ignatius M. Zaffarano, was elected to a four year term as councilman for the Borough of Ambler, his term to begin in January, 1964. In January of 1964, the appellee took his seat as a member of the council. At the close of the April meeting of the borough council, the appellee requested that the borough secretary read a letter to the council which he had written. This letter stated to the council that the appellee was leaving at 6:00 o'clock A.M. the following morning for Italy; that he had planned this trip for a long time; and that he was going. The next morning, the appellee left the United States for Italy and did not reappear in council until November of 1964. At the July meeting, council of the Borough of Ambler by a majority vote declared the appellee's seat to be vacant, and at the August meeting, council for the Borough of Ambler filled the vacancy which was created at the July meeting.
Shortly after the appellee's return to the United States and upon learning for the first time that his seat had been vacated and that the vacancy had been filled, the appellee filed a complaint in mandamus against the Ambler Borough Council and its members.
The complaint alleged that the council failed to recognize appellee as a councilman from the 3rd Ward of the Borough of Ambler, and that the council had illegally declared his seat vacant without giving him, or attempting to give him, notice of a hearing, and a hearing on the question of the necessity of his absence. The appellant, Ambler Borough Council, filed an answer in which it denied the lack of notice and hearing and raised, by new matter, that the burden of proving the reason for his absence rested on the appellee. The appellee then filed a reply to new matter and moved for judgment on the pleadings which the lower court granted, thus setting aside the vote of the council declaring the appellee's seat vacant. This appeal followed.
The first issue raised by the appellant is that the lower court erred in finding that the plaintiff did not receive a hearing on the issue of the necessity of his absence from council meetings. The Borough Code, Act of May 4, 1927, P. L. 519, § 905, as amended, 53 P.S. § 45905, authorizes a borough council to declare a vacancy in a councilmanic seat and to fill that vacancy. The Borough Code (§ 905) provides as follows: "Right of council to declare seat of councilman and burgess vacant for failure to attend meetings, Etc. -- If any person, having qualified as a member of council or burgess, shall neglect or refuse to attend two successive regular meetings, unless detained by sickness, or prevented by necessary absence from the borough, or if, a councilman in attendance at any meetings, shall neglect or refuse to vote or by his withdrawal from council or otherwise refuse to act in his official capacity as a member of council, or if the burgess in attendance at any meetings shall neglect or refuse to cast the deciding vote as required by section 1003 of this act, the borough council, acting without such person, may declare his office as a member of council or burgess vacant, and may fill such vacancy as provided in section nine hundred one of this act. For such actions a majority
of the remaining members of the council shall constitute a quorum.:" Act of July 10, 1947, P. L. 1621, § 22, 53 P.S. § 45905.
Although the above quoted legislation is devoid of any requirement pertaining to notice of hearing, or a hearing before a borough council seat can be declared vacant, case authority holds that prior to the seat of a councilman or burgess being declared vacant under the provisions of The Borough Code, the councilman or burgess involved must have an opportunity to present his reasons for his absence at a hearing. In Lumley v. Hughestown Boro., 362 Pa. 532, 66 A.2d 833 (1949), at p. 534, we said: "It may be noted that the borough code makes no provision for notice of hearing. But in order to determine the necessity of his absence, as provided in the Code, case law requires a hearing and a notice thereof to the defending official ...