Appeal from order of Court of Common Pleas of Montgomery County, No. 68-0085, in case of David L. Snyderwine et al. v. Earle E. Craley et al.
Otis W. Erisman, with him William C. Ferguson, Jr. and Frank F. Truscott, and Truscott and Erisman, for appellants.
Thomas M. Garrity and Morris Gerber, with them David M. Jordan, and Wisler, Pearlstine, Talone & Gerber, for appellees.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
On January 3, 1966, the Board of Commissioners (hereinafter "Board") of Plymouth Township, a first class township in Montgomery County, voted by a two to one majority to appoint Bernard V. DiGiacomo the Township Solicitor. The Commissioners' action was taken pursuant to § 1201 of The First Class Township Code, Act of June 24, 1931, P. L. 1206, § 1201, as amended, 53 P.S. § 56201 (hereinafter "Code"), which prescribes that solicitors shall be appointed for a two year term. The statute further prescribes the compensation of the solicitor shall be fixed by the Board and details the nature and scope of the solicitor's duties.
In January of 1966, the Board was composed of three persons: Earle E. Craley, Paul W. Callahan and Heather A. Weatherill. At the time of Mr. DiGiacomo's appointment as Township Solicitor, he was a partner in the law firm of Fox, Differ, DiGiacomo and Lowe of which Mr. Callahan was an associate.*fn1 Before the vote on Mr. DiGiacomo's appointment was taken, Mrs. Weatherill called to Mr. Callahan's attention the provisions of section 1811 of The First Class Township Code.*fn2 Section 1811 requires that a township commissioner who is personally "interested to any appreciable degree, either directly or indirectly, in any contract for the sale or furnishing of any supplies or materials for the use of the township or for any work to be done
for such township involving the expenditure by the township of more than three hundred dollars in any year" disclose his interest in such contract to the other commissioners and refrain from voting on any expenditure under the contract. Despite the objection of Mrs. Weatherill, Mr. Callahan voted in favor of Mr. DiGiacomos' appointment and his vote was necessary to effect the appointment.
On March 14, 1966, the Board preliminarily adopted the General Fund Budget which included a provision in the amount of Four Thousand Five Hundred Dollars ($4,500.) for the solicitor's salary. This preliminary approval was voted unanimously on motion of Mr. Callahan, seconded by Mrs. Weatherill. At the subsequent monthly meeting of the Board on April 11, 1966, Mrs. Weatherill again cited § 1811 of The First Class Township Code and registered her opposition to any payment of Township funds to Mr. DiGiacomo. Again, Commissioners Craley and Callahan voted in favor of making such payments.
The following year at the regular meeting of the Board held on March 13, 1967, the Board, now a fiveman body, voted unanimously to adopt preliminarily the 1967 General Budget Fund, which included an item of Seven Thousand Five Hundred Dollars ($7,500.) for the solicitor's salary and a Two Hundred Dollar ($200.) item for other legal expenses. At that time Commissioner Weatherill stated that she objected to the increase in the solicitor's salary, but would not withhold her support of the budget. The budget was subsequently approved on April 18, 1967, by a unanimous vote of the Board. Thus, on five separate occasions Mr. Callahan voted favorably with respect to employing or paying Mr. DiGiacomo, and, on two occasions, his vote was necessary to effect the action in question.
On January 3, 1968, the final day of Mr. DiGiacomo's term of office, appellants, residents, electors and taxpayers of the Township, filed a complaint in equity in the Court of Common Pleas, Montgomery County. The complaint named as defendants Commissioners Craley, Callahan, Weatherill, DiSanto and Curson, Commissioner-elect Volpe and the Township. The appellants' complaint asked: (a) that Mr. Callahan be surcharged to the extent of the damage shown to have been sustained by the Township as a result of his violation of § 1811 of The First Class Township Code; (b) that he be ousted from the office of township commissioner; (c) that all named defendants be enjoined from ...