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DUPONT BOROUGH WARDS. APPEAL JOSEPH J. VIDA (07/11/78)

decided: July 11, 1978.

IN RE: DUPONT BOROUGH WARDS. APPEAL OF JOSEPH J. VIDA, EDWARD SMICHOWSKI, BEN SMICHOWSKI, ANTHONY HADUCK, JOSEPH BRYK, JOSEPH KULICK AND JOHN ZIOBRO


Appeal from the Order of the Court of Common Pleas of Luzerne County in case of In Re: Dupont Borough Wards, No. 2523 of 1974.

COUNSEL

James F. Geddes, Jr., for appellants.

No appearance for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by President Judge Bowman.

Author: Bowman

[ 36 Pa. Commw. Page 505]

Appellants, seven electors of the Borough of Dupont (Borough), have appealed from an order of the Court of Common Pleas of Luzerne County. The order dismissed appellants' exceptions to and affirmed a prior order which had made absolute a decree nisi abolishing all Borough wards and establishing an at

[ 36 Pa. Commw. Page 506]

    large election procedure for borough council positions. We affirm.

The salient facts of this case can be briefly stated. On December 16, 1974, a petition signed by 243 residents of the Borough was presented to the Luzerne County Court requesting that the court, pursuant to Section 601 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 45601, abolish the Borough's wards. This number of signatures satisfied the requirement of Section 602 of The Borough Code, 53 P.S. § 45602, that such a petition, when initiated by electors, be signed by "at least five percent of the registered electors of the borough." Acting pursuant to further provisions of Section 602, the court appointed a three-member commission "to inquire into the propriety of granting the prayer in the petition." Public hearing was held on the matter in April 1975, and in March 1976, two of the commissioners submitted to the court their report recommending the abolishment of wards.*fn1 In a decree nisi entered by Judge Dalessandro, the report was adopted. Appellants filed exceptions to the decree, which, after consideration by Judge Dalessandro, were dismissed.*fn2 An order absolute was entered. Appellants were then permitted to file exceptions to this order. Argument was heard by the court en banc, which also dismissed appellants' exceptions and affirmed.*fn3

[ 36 Pa. Commw. Page 507]

Appellants argue that the lower court abused its discretion in several respects.*fn4 First, it is argued that the report of the commissioners should not have been considered or approved by the court because it was not filed within sixty days of the date of the appointment of the commission. Section 602 of the Borough Code provides that "[t]he commissioners, or any two of them, shall make a report to the court, within sixty days after their appointment. . . ." Appellants submit that the word "shall," as it appears in Section 602, is mandatory.

"'. . . The word "shall" can be interpreted as mandatory or merely directory; Francis v. Corleto, 418 Pa. 417 [211 A.2d 503 (1965)]. . . .'" In the Matter of Columbia Borough, 24 Pa. Commonwealth Ct. 190, 193, 354 A.2d 277, 279 (1976). While "shall" is generally regarded as imperative, the determination in a specific case whether the word is to be given an imperative or permissive meaning requires an examination of the intention and purpose of the particular statutory provision. Manor Township v. Millersville Borough, 9 Pa. Commonwealth Ct. 143, 147, 304 A.2d 713, 715-16 (1973). "When time and manner are not the essence of the thing required to be done, the statute will be regarded as directory and proceedings under it will be held valid, even though the command of the statute as to form and time has not been strictly obeyed. . . ." Allegheny County v. Pennsylvania Public Utility Commission, 192 Pa. Superior Ct. 100, 110, 159 A.2d 227, 233 (1960) (citation ...


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