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

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 ...


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