John W. McIlvaine, Uniontown, for appellant at No. 104.
Thomas J. Terputac, Washington (for Charles S. Wood), Sherman H. Siegel, Washington (for Norma W. Shultz), for appellants at No. 107.
Thomas J. Terputac, Sherman H. Siegel, Washington, William R. Davis, Waynesburg, for appellee at No. 104.
John W. McIlvaine, Uniontown, William R. Davis, Waynesburg, for appellee at No. 107.
Robert P. Kane, Atty. Gen., J. Justin Blewitt, Jr., Deputy Atty. Gen., Chief, Civ. Litigation, G. Alan Kramer, Deputy Atty. Gen., Harrisburg, for intervenor (Com. of Pa.).
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring and dissenting opinion in which Manderino, J., joins.
This is an appeal from an order of the Court of Common Pleas of Greene County removing from office the three supervisors of Franklin Township.*fn1
On March 19, 1976, Allen B. McNeely, one of the three supervisors, filed a complaint pursuant to section 503 of the Second Class Township Code*fn2 for the removal of the other two supervisors, Charles Wood and Norma Shultz. The complaint, signed by 271 electors,*fn3 alleged that Wood and Shultz had failed to perform their official duties, and had
violated the Second Class Township Code, in several respects.*fn4 The court issued a rule upon Wood and Shultz to show cause why their offices should not be declared vacant.
Wood and Shultz then began contacting the electors who had signed the complaint. By April 12, 1976, the hearing date on the rule to show cause, Wood and Shultz had contacted 109 of those persons who had signed the complaint, and had obtained the signatures of 100 of those persons on a counter petition to have their names withdrawn from the original complaint. At the April 12 hearing Wood and Shultz filed preliminary objections to the complaint. Also at that hearing McNeely alleged that Wood and Shultz had been threatening and harassing the electors who had signed the complaint for their removal. On the basis of McNeely's allegations, the court issued a decree "enjoining either of the parties in contacting any other signatores [sic] on the original petition filed for their removal except by leave of the Court . . . ."
On April 19, 1976, Wood and Shultz filed a motion to vacate the injunction. A hearing on this motion was set for April 21, to be heard at the time of the hearing on their preliminary objections to the complaint.
At the April 21, 1976 hearing, seven of the witnesses called by Wood and Shultz asked the court to allow them to withdraw their names from the complaint for the removal of Wood and Shultz.*fn5 One of the witnesses testified that he did not understand it was for the removal of Wood and Shultz. The other witnesses indicated that they wanted their names withdrawn because they thought the complaint was for the removal of all three supervisors, or that, although they understood that the complaint was for the removal of Wood and Shultz, they now believed that removal
proceedings should be held as to all three supervisors.*fn6 Wood and Shultz offered to testify about statements made to them by other electors who had signed the complaint, and later signed the counter petition, but an objection to this evidence was sustained. After their witnesses testified, Wood and Shultz requested a thirty day continuance during which they would be allowed to contact the rest of the electors who had signed the petition for their removal. At this point, the court stated that it was treating this proceeding as an action for removal of all three supervisors. At the conclusion of the hearing, the court denied Wood's and Shultz' motion for a continuance, denied their motion to vacate the injunction, and overruled their preliminary objections.*fn7 No appeal was taken from the order denying the motion to vacate the injunction, or from the decree granting the injunction.
A hearing on the merits of the removal complaint was held on May 27 and 28, 1976. McNeely was the principal witness in favor of removal. The report of the certified public accountants who audited Franklin Township for the year ending December 31, 1975 was also admitted into evidence. The evidence presented revealed that many of the financial transactions of the Township, including payment of bills, borrowing money, and the reporting of bids on township purchases, were undertaken without approval at regular meetings of the supervisors, or were not reported in the minutes of those meetings.
The evidence presented also disclosed a series of transactions which involved transfers between special and general
funds,*fn8 and a tax anticipation loan taken without creation of a sinking fund.*fn9 In January, 1975, $23,000 was transferred from special funds to general funds to meet payroll costs. No resolution was passed by the Board authorizing these transfers. Each of the checks transferring the funds was signed by Shultz, who was secretary and treasurer for the Township, and by either Wood or McNeely. At the January 27 meeting of the Board, the supervisors adopted a resolution to borrow $40,000 for six months. Some time before March 10, 1975,*fn10 Wood and Shultz decided to borrow $50,000, instead of the previously authorized $40,000. They obtained a $50,000 tax anticipation loan due at the end of the year. No sinking fund was created when the loan was taken. Part of the loan ...