No. 173 Misc. Docket 1979, (C.P. Delaware No. 79-17123), No. 80-3-493, No. 236 Misc. Docket 1980, On Appeal from the Order entered February 26, 1980, in the Court of Common Pleas of Delaware County, Civil Action - Equity No. 1926 of 1980.
Thomas J. Stapleton, Jr., Richard L. Colden, Drexel Hill, for petitioners and appellants.
Christopher F. Gorbey, Chester, for respondents and appellees.
Nix, Justice. Flaherty, J., filed a concurring opinion. Larsen, J., filed a concurring and dissenting opinion in which O'Brien, J., joined.
We are presented with a consolidated appeal. In Spykerman, Healy, and Matthews v. Levy, petitioners seek a writ
of prohibition against the Common Pleas Court of Delaware County in order to prevent that court from appointing someone to fill the vacancy on the Board of Supervisors of Chester Township.*fn1 In Hales and Palazzo v. Township of Chester, Spykerman, Pisarek, Walton, Stapleton and Phillips, the appellants appeal to this Court from a temporary restraining order of the Common Pleas Court of Delaware County enjoining them from acting in their capacity as public officials.*fn2
In January 1979, Connie Hales, Joseph Palazzo, Raymond T. Spykerman, Stephen Heller, and Lawrence Healy were duly elected supervisors of Chester Township. Chester Township is a Second Class Township in Delaware County with a total population of 7,000. The township is comprised of three communities, Toby Farms, Lower Feltonville, and Upper Feltonville.
On January 4, 1979, the Chester Township Board of Supervisors held a reorganizational meeting*fn3 and failed to elect
the Vacancy Board Chairman pursuant to 53 Pa.C.S.A. § 65420.*fn4 Latter that year, on September 13, 1979 at a regularly scheduled supervisors meeting, Spykerman, Healy and Heller voted to send Hales to Atlanta, Georgia on township business during the last week in September. Subsequently, Heller sent a letter to the supervisors advising them that he intended to resign on October 4, 1979. Before leaving on September 26, 1979, Hales asked for a copy of the agenda for the September 27, 1979, supervisors meeting that she would not be able to attend because of the trip to Atlanta. She was informed that there was no meeting agenda.
At the September 27, 1979 meeting, Heller submitted his resignation effective September 28, 1979. Then, Heller, Spykerman, and Healy elected John Matthews as the Chairman of the Vacancy Board. Palazzo objected that the election was illegal since it took place during an annex
homes meeting*fn5 and that there was no notice of the election to himself or Hales.
On October 23, 1979 Hales and Palazzo filed a quo warrantor in the Common Pleas Court of Delaware County against Spykerman, Healy and Matthews challenging the legality of Matthews' election as Vacancy Board Chairman. Hales and Palazzo also filed a motion for a preliminary injunction and temporary restraining order. Judge Joseph T. Labrum issued a Temporary Restraining Order restraining the Vacancy Board from acting to fill the existing vacancies until a hearing could be held on October 26, 1979.
On October 26, 1979, a full hearing was held before Judge John V. Diggins of the Delaware County Court of Common Pleas on the motion for the preliminary injunction. The court denied the requested motion. On the same day, Hales and Palazzo filed a Complaint in Equity, identical to the quo warrantor complaint, along with another motion for a preliminary injunction. In the equity action Judge Diggins granted a preliminary injunction which restrained Spykerman, Healy and Matthews from acting to fill the vacancy on the Board of Supervisors until the quo warrantor action was adjudicated.*fn6
Subsequently, serious problems began to develop in Chester Township such as drafting the 1980 budget, contract negotiations for the fire and policemen, and the circulation of petitions by Toby Farms to secede from Chester Township. Thus on December 7, 1979, Supervisor Palazzo and five Chester Township residents petitioned the Common Pleas Court of Delaware County to fill the vacancy on the
Board of Supervisors. Judge Melvin Levy scheduled a hearing on December 17, 1979 to consider appointing Robert C. Wilson, Jr. to the vacancy on the Board of Supervisors.
On December 13, 1979, Healy, Spykerman and Matthews filed a complaint in prohibition in the Pennsylvania Supreme Court asking this Court to prohibit the common pleas court from conducting a hearing to fill the vacancy of the Board of Supervisors of Chester Township. On that same date, this writer signed a rule to show cause why a supersedeas should not be granted staying any hearing on the appointment until the entire Court ruled on the Complaint in Prohibition. Following an in chambers hearing, on January 3, 1980, I issued the supersedeas pending resolution of the complaint in prohibition before the full Supreme Court.
On January 7, 1980, there was a Chester Township Reorganizational Meeting. Matthews' alleged term as Vacancy Board Chairman expired. Healy's term as Township Supervisor also expired. William Pisarek was elected to the Board of Supervisors to replace Healy. At the meeting, a motion was carried to declare all township offices vacant. The supervisors filled the positions of chairman, secretary, treasurer, and police commissioner by a majority vote. But the office of Vacancy Board Chairman ended in a two to two tie and remained vacant.
Meanwhile, the proposed 1980 budget was adopted at a special supervisors meeting on January 11, 1980. However, before the proposed budget may be finally adopted, the Second Class Township Code required that the proposed budget be posted and advertised for twenty days. Thus, the Board of Supervisors unanimously agreed that a special meeting should be scheduled for January 31, 1980 in order to finally adopt the 1980 budget.
Prior to the January 31, 1980 budget meeting, Palazzo requested a copy of the agenda for the meeting from Pisarek and Spykerman, and also asked whether any other business would be transacted at the meeting. Pisarek and Spykerman stated that there was no agenda and that they knew of no other business to be transacted at the budget
meeting. Palazzo then informed them that he might not be able to attend the budget meeting due to a prior commitment.
On January 31, 1980, Hales arrived at the Township Building prior to the budget meeting, requested a copy of the agenda for the meeting, and asked Spykerman and Pisarek whether any business other than the budget would be transacted at the meeting. Spykerman and Pisarek advised Hales that there was no agenda and that they knew of no other business to be transacted aside from the budget. Palazzo was unable to attend the meeting. After the final budget was unanimously adopted, Spykerman nominated Slavin for the position of Vacancy Board Chairman, Stapleton for Township Solicitor, and Walton as Township Engineer. Hales objected to the nominations and left the room. Meanwhile, Spykerman and Pisarek remained at the meeting and voted in favor of Slavin, Stapleton, and Walton.*fn7
Shortly thereafter, Spykerman, Pisarek, and Slavin scheduled a Vacancy Board meeting for February 4, 1980 at 8:00 a. m. The parties published notice of the scheduled meeting in the Philadelphia Daily News*fn8 on Saturday, February 2, 1980. The advertisement was also posted on the Township Bulletin Board, inside the Township Building but since the Township Building is closed on weekends, it was impossible for township residents to see the notice. On February 4, 1980, Slavin, Spykerman and Pisarek met and elected Phillips to the vacancy on the Board of ...