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COMMONWEALTH PENNSYLVANIA EX REL. LEROY Z. ZIMMERMAN v. LEAH KLEIMAN (05/31/79)

SUPREME COURT OF PENNSYLVANIA


decided: May 31, 1979.

COMMONWEALTH OF PENNSYLVANIA EX REL. LEROY Z. ZIMMERMAN, DISTRICT ATTORNEY OF DAUPHIN COUNTY, PENNSYLVANIA,
v.
LEAH KLEIMAN, COMMISSIONER, SUSQUEHANNA TOWNSHIP BOARD OF COMMISSIONERS, APPELLANT

COUNSEL

Jerome H. Gerber and James L. Cowden, Handler & Gerber, P.C., Harrisburg, for appellant.

Joseph H. Kleinfelter, Deputy Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.

Author: Roberts

[ 485 Pa. Page 423]

OPINION OF THE COURT

This is an appeal from a judgment of ouster of the Court of Common Pleas of Dauphin County excluding appellant, Leah Kleiman, "from action and participation as a Susquehanna Township Commissioner." We reverse.

On October 12, 1978, the Board of Commissioners of Susquehanna Township*fn1 consisted of seven commissioners, each of whom represented one of the township's seven wards. Four of the commissioners were Democrats, and three were Republicans. After the Board's regular October 12, 1978 meeting, the commissioner representing the fifth ward, a Democrat, announced his intention to resign and, by mail, so notified each of the six remaining commissioners.

The next scheduled meeting of the Board was October 25, 1978. A few days prior to that meeting each commissioner received a copy of the agenda.*fn2 The agenda did not mention the resignation of the commissioner for the fifth ward or the filling of the resulting vacancy.

[ 485 Pa. Page 424]

The minutes*fn3 of the October 25, 1978, meeting indicate that when President Buxton declared the time to be 7:30 and called the meeting to order, four of the seven Susquehanna Township commissioners were present.*fn4 The two remaining commissioners, both Republicans, arrived separately, after commencement of the meeting.

[ 485 Pa. Page 425]

After calling the meeting to order, the President recognized Commissioner Goldberg who moved "to change the Agenda so we can accept the resignation of a Commissioner and introduce a Resolution." The motion was seconded and passed unanimously by the four Commissioners then present. Commissioner Goldberg then moved to accept the resignation of the fifth ward commissioner. This motion, too, was unanimously approved. The Board then turned to the matter of filling the newly vacant position. The minutes report:

RESOLUTION Commissioner GOLDBERG stated he would like to make

78R-12 a Resolution WHEREAS, a vacancy in the office of

Township Commissioners has occurred because of the

     acceptance of the resignation of DAVID A. SMITH as

Commissioner of the Fifth Ward of Susquehanna Township,

     be it hereby resolved that LEAH KLEIMAN is

     hereby appointed as successor Commissioner to hold offfice

     for the unexpired term of David A. Smith; seconded

     by Commissioner HARRIS.

Commissioner "This comes as a complete surprise and the hour is not

D. L. SMITH 7:30 P.M. and I protest wholeheartedly this procedure so

     early in the game. I recognize that my two Republican

     cohorts are not here and I don't think this is really -- one

     of them is coming in now." (Commissioner ERNEST

     took his seat).

Commissioner "Mr. Chairman, I don't believe on a Resolution that there

GOLDBERG is discussion as it is a Resolution and not a motion and it

     should not be discussed and I call the question."

President BUXTON stated a Resolution can be debatable,

     however Commissioner GOLDBERG called the question,

     is there a second? Seconded by Commissioner HARRIS

     and carried with Commissioner D. L. SMITH voting

NAY. Commissioner D. L. SMITH stated what they are

     trying to do is appoint a Commissioner so early in the

     game and you just got here. Commissioner ERNEST

     stated the Chair should revert to the original situation.

Commissioner D. L. SMITH moved to table the motion.

President BUXTON stated the motion to table is in

     order. Seconded by Commissioner ERNEST. The motion

     failed with Commissioner ERNEST and Commissioner

D. L. SMITH voting in favor and Commissioner

GOLDBERG, Commissioner HARRIS and President

BUXTON voting NAY. Therefore, the question on

     the table is the call of the question on the original motion

     which was to appoint LEAH KLEIMAN as the Commissioner

     in the Fifth Ward of Susquehanna Township.

President BUXTON requested a vote on the motion.

The motion was carried with Commissioner HARRIS,

Commissioner GOLDBERG and President BUXTON voting

AYE and Commissioner ERNEST and Commissioner

D. L. SMITH voting NAY. The Chair declares the

     motion passes and LEAH KLEIMAN is appointed as

Commissioner of the Fifth Ward, Susquehanna Township.

The Chair declares the meeting was proper, according

     to the Chairman's watch it was 7:30 P.M., the

Chair recognized Commissioner GOLDBERG. His motion

     to suspend the Agenda to move to another appropriate

Item was in order, the motion to accept the resignation

     was in order, the motion to accept an appointment was in

     order and the Chair declares at this time that the

     gentleman was proper by introducing his motion and Mrs.

Kleiman was appointed to succeed Commissioner D. A.

Smith in the Fifth Ward of Susquehanna Township.

[ 485 Pa. Page 426]

On November 9, 1978, appellee, the district attorney of Dauphin County, filed a complaint in quo warrantor alleging that Leah Kleiman's appointment to the Susquehanna Township Board of Commissioners was improper and requesting the Court of Common Pleas of Dauphin County to issue an order of ouster.*fn5 Trial was held and legal arguments were made to the court on December 20, 1978. Immediately thereafter, the court of common pleas ruled that Leah "Kleiman is without warrant or authority of law to serve as a member of the Board of Commissioners and her appointment is of no force and effect" and entered the challenged judgment of ouster. On January 11, 1979, this Court granted appellant's application for a supersedeas and reinstated her as a Commissioner of Susquehanna Township pending the outcome of this appeal.

The court of common pleas concluded that the October 25, 1978, meeting was a "special meeting" to which Rule VI of

[ 485 Pa. Page 427]

    the Rules of the Board of Commissioners of Susquehanna Township applied. Rule VI provides:

"He [the President] shall call special meetings of the commissioners whenever two members of the Board of Commissioners shall request him in writing so to do and the Secretary shall insert in the notices of said special meetings the object or objects for which they are ordered and the Commissioners shall not be competent to transact at such meetings any business other than that specifically mentioned in said call."

The court reasoned that because the agenda for the October 25, 1978 meeting "makes no mention of either the acceptance of the resignation of a Commissioner or the appointment of a Commissioner to fill the vacancy," the appointment of appellant was violative of Rule VI. The court further ruled that Commissioner Goldberg's motion to change the agenda cannot be equated with a motion to suspend the rules which would have enabled the Board to dispense with the requirements imposed by Rule VI.*fn6

This Court held in Commonwealth ex rel. Fox v. Chace, 403 Pa. 117, 168 A.2d 569 (1961), that where the substance of the procedure followed to fill a vacancy in the governing body of a municipality is not inconsistent with statutory provisions and is manifestly expressive of the will of the majority, relief in quo warrantor may not be obtained. See also Nicoletti v. Veitch, 411 Pa. 216, 191 A.2d 383 (1963). The resolution to appoint appellant to fill the vacancy on the Board of Commissioners was passed by a majority of a quorum and reflected the will of the majority of the Board. Cf. United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892) (statute lawfully enacted where vote in House of Representatives was 138 yeas, 0 nays, and 189 not voting).

Further, the procedure followed by the Board of Commissioners at the October 25 meeting to appoint appellant

[ 485 Pa. Page 428]

    to the vacant seat on the Board was not violative of Section 530 of the First Class Township Code.*fn7 Section 530 vests the power of appointment to fill its own vacancies, in the first instance, in the Board of Commissioners. The Legislature has not limited the manner in which the Board exercises that power other than to provide that the new commissioner be appointed "by resolution." Nowhere in the First Class Township Code is any statute to be found which limits the enactment of resolutions to a particular type of meeting or a particular portion of the meeting. Nor is it required that members of the Board and the public be notified that the specific business of filling a vacancy will be taken up at a pre-scheduled meeting of which notice has been duly given.

Indeed, the appointment of appellant was in full compliance with the By-laws and Rules of the Susquehanna Township Board of Commissioners. The October 25 meeting was not called by the President upon the written request of two members of the Board as are meetings to which Rule VI

[ 485 Pa. Page 429]

    applies. Rather, the October 25 meeting was one of twelve regularly scheduled special meetings held by the Board on the fourth Wednesday of each month in 1978 to supplement the statutorily required regular monthly meetings.*fn8 The dates of regularly scheduled special meetings were announced at the same time as the dates for the year's regular meetings, on January 3, 1978, at the Board's statutorily prescribed organizational meeting.*fn9 Subsequently, these twenty-four pre-scheduled meeting dates, including October 25, were advertised pursuant to the Open Meeting Law*fn10 and listed in a formal notice sent to each of the Susquehanna Township Commissioners.

Rule VI does not limit the nature of business that may permissibly be conducted at a regularly scheduled special meeting such as that held on October 25. Nor is there any other formal Rule or By-Law of the Board which prohibits the Board from conducting business not specifically itemized in the agenda at a regularly scheduled special meeting. In the absence of proof that the governing body of a municipality has violated any of its previously adopted rules, a presumption arises that the body has acted in accordance with its own approved procedure. Commonwealth ex rel. Fox v. Chace, 403 Pa. at 120, 168 A.2d at 571.

Section 1502 of the First Class Township Code, 53 P.S. ยง 56502, gives the Board power to prescribe its own procedural rules. "Rules of procedure are always within the control of the majority and may be changed at any time by majority vote." Commonwealth ex rel. Fox v. Chace, 403

[ 485 Pa. Page 430]

Pa. at 120, 168 A.2d at 571, citing Commonwealth v. Mayor of Lancaster, 5 Watts 152 (1836). The power to make rules of procedure "is a continuous power . . . and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." United States v. Ballin, 144 U.S. at 5, 12 S.Ct. at 509. In the instant case, the motion to change the agenda in order to accept a commissioner's resignation and introduce a resolution was passed unanimously by the four commissioners then present. No one objected that under the Board's Rules or its accepted practice it was improper at a regularly scheduled special meeting to entertain new business not specifically itemized on the prepared agenda or to alter the order of the agenda so as to conduct "new business" at the beginning of the meeting. In fact, the minutes indicate that the objecting members of the Board of Commissioners only began to oppose the propriety of the already unanimously approved and lawfully adopted procedure when Commissioner Goldberg introduced the resolution to appoint appellant.

Appellant, a resident and registered voter of the fifth ward of Susquehanna Township for at least one year, was lawfully appointed to fill the vacancy on the Board created by the resignation of the commissioner of the fifth ward by resolution approved by a majority of a quorum of the Board of Commissioners. The Court of Common Pleas of Dauphin County erred when, pursuant to a writ of quo warrantor, it removed her from that position.*fn11

The order of the court of common pleas is reversed and the record remanded with instructions to enter a dismissal of the writ and to enter judgment for defendant.


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