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COMMONWEALTH EX REL. RAFFERTY v. D'ALLESANDRO (09/19/73)

decided: September 19, 1973.

COMMONWEALTH EX REL. RAFFERTY, APPELLANT,
v.
D'ALLESANDRO



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, No. 1513, in case of Commonwealth ex rel. Paul A. Rafferty v. Nicholas M. D'Allesandro.

COUNSEL

J. Charles Short, with him Paul A. Rafferty, for appellant.

Howard D. Scher, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.

Author: Manderino

[ 454 Pa. Page 20]

Appellant, Paul A. Rafferty, was appointed to the Tax Review Board of Philadelphia on September 10, 1971, by James H. J. Tate, then Mayor of Philadelphia. Appellant's appointment ran until November 23, 1975. On February 1, 1972, Frank L. Rizzo, who succeeded James H. J. Tate as the Mayor of Philadelphia, removed the appellant from the Tax Review Board and appointed the appellee, Nicholas M. D'Allesandro. Appellant's complaint in quo warrantor was dismissed after preliminary objections were sustained. This appeal followed.

The narrow issue presented is whether a member of the Tax Review Board of Philadelphia serves at the pleasure of the appointing power, the Mayor of Philadelphia, or whether such a member is entitled to complete the term designated by the appointing power at the time of the appointment.

The issue is unequivocally controlled by the Philadelphia Home Rule Charter. Two provisions of the Charter are applicable, the first provision is found in section 3-404 of article III. That article concerns the executive and administrative branch of government. Section 3-404 of the Charter states: " Except as expressly otherwise provided in this charter, all appointed officers and all members and all officers of boards and commissions shall serve at the pleasure of the appointing power and until their successors are qualified." (Emphasis supplied.) The above section of the Charter

[ 454 Pa. Page 21]

    specifically states that members of boards shall serve at the pleasure of the appointing power and, more importantly, specifically states that any exception must be expressly otherwise provided in the Charter.

The annotated edition of the Philadelphia City Charter which was authorized by a resolution of the Charter Commission and prepared under the direction of the Commission's Drafting Committee includes an annotation following section 3-404, stating the purpose of the section. That annotation states that: ". . . every appointive officer of the City serves at the pleasure of his appointing power and until his successor is qualified. For, apart from Constitutional compulsion, the interests of good and harmonious government generally require that an appointing power be able to remove an appointee when any consideration arises requiring removal, provided the appointing power bears the responsibility and remains accountable for his action."

The second applicable provision is found in article IX of the Charter, entitled "Removal of Elective and Appointive Officers." Section 9-200 of that article states: " Except as herein specifically provided, any appointed officer may be removed at the pleasure of the appointing power." (Emphasis supplied.)

Like section 3-404, section 9-200 states that any exception to the section must be specifically ...


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