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RAYNOVICH v. ROMANUS (01/19/73)

decided: January 19, 1973.

RAYNOVICH, APPELLANT,
v.
ROMANUS



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1972, No. 340, in case of George Raynovich, Jr. v. John T. Romanus.

COUNSEL

George Raynovich, Jr., in propria persona, with him Stone & Raynovich, for appellant.

John R. Luke, with him Luke & Dempsey, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino concurs in the result. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy joins in this dissenting opinion.

Author: Roberts

[ 450 Pa. Page 392]

This Quo Warrantor proceeding challenges the validity of the borough councilmanic election of one of its members to fill a vacancy in the office of mayor. The appellant, George Raynovich, Jr., initiated the action alleging voting improprieties in the election of appellee,

[ 450 Pa. Page 393]

John T. Romanus, to the office of Mayor of the Borough of Baldwin.

The complaint recites that on January 1, 1972, a vacancy existed in the office of Mayor of the Borough of Baldwin. At a properly called meeting on January 3, 1972, the borough council undertook to fill that vacancy. Four were nominated for the office of mayor: Romanus, Bracken, and Bennett -- all council members; and Burke -- a non-council member.

Appellant, also a member of council, objected to the nomination for the office of mayor of any council member.*fn1 He also objected to any nominated members participating in the voting. However, neither objection prevailed and council proceeded to vote on the nominees. Appellant voted for Burke, the non-council member. Bennett abstained from voting. Three council members voted for Romanus. Romanus voted for Bracken and Bracken voted for Romanus, giving Romanus a total of four votes out of seven. Immediately after resigning from council Romanus was sworn in as the new mayor on January 3, 1972, to fill the unexpired term.

In his complaint appellant alleged that by "prearrangement" Romanus and Bracken had voted for each other. Appellant contends that such a trade of votes is illegal, and thus invalidates council's election of Romanus as mayor. Appellee, Romanus, filed preliminary objections in which, inter alia, he demurred to the complaint on the grounds that it failed to state a cause of action. The court below sustained the preliminary objections and dismissed the complaint. This appeal followed. The main issue thus presented is whether, accepting as true all of appellant's factual allegations, he has stated a cause of action which would

[ 450 Pa. Page 394]

    invalidate the election of John T. Romanus as mayor and thus entitle him to the relief requested.

We start with the premise that absent a statutory prohibition a borough council may select one of its members to fill a mayoral vacancy. Our Legislature has not spoken on this issue and thus absent any voting illegality or other impropriety there is no impediment to the authority of council to select a fellow council member to fill a vacancy in the office of mayor. The only statutory restriction placed upon council in filling such vacancies is that the new mayor must be "a registered elector of the borough."*fn2 It would indeed seem counterproductive and contrary to the public interest to establish for the first time a rule that one who has been elected by his fellow citizens, served on the council, and presumably has knowledge and experience in local governmental affairs is per se ineligible to fill a vacancy in the mayor's office. We are not disposed to fashion such a categorical rule.

However, it is also well established in this Commonwealth, as well as in practically all jurisdictions, that a councilman may not vote for himself nor may he vote on any matter in which he has a personal or pecuniary interest. Meixell v. Hellertown Borough Council, 370 Pa. 420, 88 A.2d 594 (1952); Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303 (1951); Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 22 A.2d 686 (1941); Commonwealth v. Raudenbush, 249 Pa. 86, 94 Atl. 555 (1915). Appellant contends, and we agree, this rule means that any council membernominee for mayor could not vote for himself because of his personal interest in the result of the ...


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