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R. HENRY DIGIACINTO v. CITY ALLENTOWN (10/01/79)

decided: October 1, 1979.

R. HENRY DIGIACINTO, APPELLANT,
v.
CITY OF ALLENTOWN, PENNSYLVANIA, AND ALTON W. FREY, JR., APPELLEES



No. 502 January Term, 1978, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Lehigh County, Docket No. 78-C-3149,

COUNSEL

James C. Lanshe, Jr., Allentown, for appellant.

Daniel K. McCarthy, Asst. City Sol., William C. Wickkiser, Allentown, for appellees.

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

Author: Manderino

[ 486 Pa. Page 438]

OPINION

The question in this appeal is whether the appellant, R. Henry DiGiacinto, is entitled to be certified as an elected member of the City Council of the City of Allentown.

The underlying facts are not in dispute. On September 30, 1978, a vacancy was created on the Allentown City Council when one of its members resigned. Two weeks later, on October 16, 1978, the remaining six members of the seven member council convened to elect a person to the vacancy. Appellant was nominated for the vacancy. A resolution proposing appellant as a member of city council was voted upon with three votes for appellant, two against him, and one abstention. One of the appellees, Alton W. Frey, as the president of city council, refused to certify that appellant had been elected. Frey ruled that, four affirmative votes, a majority of the total membership of city council, were necessary for election -- not three votes.

On October 25, 1978, appellant filed a mandamus action against appellee Frey and appellee, the City of Allentown, in the Court of Common Pleas, Lehigh County, seeking certification of the election results. Preliminary objections were filed by appellees in the form of a demurrer. The trial court sustained appellees' preliminary objections and dismissed

[ 486 Pa. Page 439]

    appellant's complaint for mandamus. This direct appeal followed. Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(2).

In determining the number of votes necessary for a deliberative body to take official action, Pennsylvania follows the common law rule. Stoltz v. McConnon, 473 Pa. 157, 373 A.2d 1096 (1977); Munce v. O'Hara, 340 Pa. 209, 16 A.2d 532 (1940); see also Commonwealth of Pennsylvania ex rel. Zimmerman v. Kleiman, 485 Pa. 421, 402 A.2d 1343 (1979); Federal Trade Commission v. Flotill Products, 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (1967).

Under the common law rule so long as a quorum is present at a meeting, all that is required is that the highest vote be equal to a majority of the quorum number, even though the highest vote constitutes only a plurality of all the legal votes cast. This is true even if more than the quorum number is present at the meeting. For example, if there are seven members of a body and four of those members constitute a quorum and attend a meeting, a majority of the four, which would be three, is necessary to take official action of any kind. Even if all seven members, more than the necessary quorum of four, attend the meeting, the same number of votes, namely three, is all that is necessary to take official action if that is the highest number of votes cast (plurality) in a given matter. Thus, if the minimum quorum of four is present, and the vote on a particular proposal is 3 in favor and 1 against, the proposal is adopted. If all seven members of the body attend and the vote on a particular proposal is 3 in favor, 1 against and 3 abstentions, the proposal is likewise adopted by the plurality vote. 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 ...


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