decided: June 10, 1980.
IN RE: CHANGE OF BOUNDARIES AND/OR ELECTION DISTRICTS OF THE FIVE (5) WARDS IN THE TOWNSHIP OF UPPER CHICHESTER. EDWARD W. SELTZER, APPELLANT
Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Change of Boundaries and/or Election Districts of the Five (5) Wards in the Township of Upper Chichester, Misc. Docket No. A-34.
Hans Edward Solum, Jr., for appellant.
Peter J. Nolan, for appellee.
President Judge Crumlish and Judges Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 52 Pa. Commw. Page 122]
Edgar Seltzer has petitioned this court for review of the April 23, 1979 order of the Court of Common Pleas of Delaware County, dismissing his petition to contest the Township of Upper Chichester's (township) Ordinance No. 382, which established a reapportionment of the township's election districts.*fn1
During the summer of 1978 the township had begun ward reapportionment proceedings under Section 3 of the Municipal Reapportionment Act (Act), Act of December 13, 1974, P.L. 947, 53 P.S. § 11603. On July 13, 1978, the township had passed a resolution authorizing the preparation of a reapportionment plan to be completed in time for the May 1979 primary election. However, on August 10, 1978, by way of petition to the court of common pleas, township residents began independent reapportionment proceedings seeking court appointment of a commission to reapportion the wards under Section 4 of the Act, 53 P.S. § 11604, but, in October, on motion by the township, the lower court suspended the appointment of that commission, thereby allowing the township's own reapportionment activities to proceed.
[ 52 Pa. Commw. Page 123]
On February 5, 1979, the township advertised its intention to adopt its own reapportionment, under Ordinance No. 382, which was enacted at the conclusion of a township hearing held on February 8, 1979. The ordinance adoption was advertised on February 16, 1979.
On March 6, 1979, Seltzer filed his nominating petitions for first ward township commissioner. However, under Ordinance No. 382, Seltzer had become a resident of the second ward, which had no vacant commissioner position.
On March 8, 1979, the township petitioned the court of common pleas for approval of the election districts created by the reapportionment ordinance. Pursuant to published notice on March 13, the court, on March 19, 1979, held a hearing and approved the establishment of five election districts based on the ward realignments effectuated by Ordinance No. 382.
On April 3, 1979, Seltzer filed his petition to contest the reapportionment ordinance on substantive grounds, and to seek a remand for modification of the reapportionment. On April 23, 1979, after hearing, the court dismissed Seltzer's petition, from which Seltzer has taken this appeal.*fn2
Seltzer challenges the substance of the reapportionment ordinance on several grounds, alleging that: (1) the reapportionment was drawn to deprive him
[ 52 Pa. Commw. Page 124]
of the opportunity to run for office, and (2) the reapportionment did not comply with the mandates of Section 3 of the Act, 53 P.S. § 11603, which requires that districts be drawn as "nearly equal in population as practicable," and that the district territories be compact and contiguous.*fn3
The lower court dismissed Seltzer's petition on the ground that it was untimely, which is the basis for the primary question we must consider.
The problem in evaluating the issue is that Section 6 of the Act, 53 P.S. § 11606, which provides resident electors a right to contest municipality-initiated reapportionment plans, does not provide a time limit within which such a contest must be filed.
In the opinion for the lower court, Judge Jerome applied the doctrine of laches and found that Seltzer's petition, filed two months after the ordinance
[ 52 Pa. Commw. Page 125]
adoption, was inexcusably delinquent in light of Seltzer's familiarity with the reapportionment proceedings and the stated desire of all parties to wind up the matter in time for the May primary.*fn4
However, the equitable doctrine of laches requires not only a finding of want of due diligence in failing to institute the action, but also that that failure resulted in another's prejudice. Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966). There is simply no evidence that the township, or its residents, were prejudiced by the delay.
Further, the court below based its dismissal of Seltzer's action on its determination that contests of municipality-initiated reapportionments under Section 6 of the Act must be filed within thirty days of the enactment of that ordinance, lifting the thirty-day limit from the requirement in Section 4 that the filing of exceptions to court-appointed commission reapportionment reports must occur within thirty days after the date the report is filed.
A court, however, has no power to insert words into statutory provisions where the legislature has failed to supply them. Peabody v. Tucker, 4 Pa. Commonwealth Ct. 609, 613 (1972), aff'd 447 Pa. 398, 289 A.2d 438 (1972).
We can find no case law interpreting the provisions of the Act and, therefore, find ourselves on new ground. We must analyze the proceedings below afresh.
[ 52 Pa. Commw. Page 126]
We note that all of the proceedings below were brought under the same term and docket number which was originally assigned to the resident petitioners' August 10, 1978 action seeking reapportionment under Section 4 of the Act.
We are therefore tempted to treat the entire series of proceedings below as kindred to a Section 4 resident-initiated commission reapportionment. In this perspective, the township's March 8 petition for court approval of the election districts would be akin to the statutorily mandated commission report, but because the court did not enter a rule nisi or order advertisement of a reapportionment plan with notice that exceptions could be filed thereto within thirty days, the court clearly did not treat the township's petition as a Section 4 proceeding.
Nevertheless, no matter how we label the proceedings, the validity of the reapportionment had been brought before and been favorably adjudicated by the court of common pleas as of March 19, 1979.
Seltzer's petition of April 3, filed in the same proceedings, at the same term and number, appears, at best, to have been in the nature of a petition to intervene.
Seltzer had the opportunity to intervene in the township's proceeding at or before the March 19 hearing, under Pa. R.C.P. No. 2327(4) as a person with a legally enforceable interest potentially affected by the determination of the action. The record indicates that Seltzer had constructive knowledge, by publication, of the hearing. Further, there is record evidence that Seltzer had actual knowledge of the court proceedings. Although he alleges that he was misled by the township secretary's characterization of the proceedings as dealing only with polling place locations, Seltzer was nevertheless put on notice
[ 52 Pa. Commw. Page 127]
to examine the township's pleadings, which clearly revealed the true nature and purpose of the proceedings.
Pa. R.C.P. No. 2329 provides that applications for intervention will be refused if the petitioner had "unduly delayed in making application for intervention." That rule, rather than laches or the Section 4 limitation, provides the proper basis for the decision below, which we affirm.
And Now, this 10th day of June, 1980, the order of the Court of Common Pleas of Delaware County, dated April 23, 1979 (A-34 Misc. Docket 1979) is affirmed.