Appeal from the Order of the Court of Common Pleas of the 37th Judicial District Warren County Branch, in the case of The Borough of Warren, A Home Rule Municipality v. County Board of Elections of the County of Warren, David K. Rice, James G. Marshall, William R. Martin, No. 144 of 1981, and in the case of W. LeRoy Schneck, et al. v. D. K. Rice, V.M.D., et al., No. 151 of 1981, In Equity.
James C. Blackman, for appellant.
William F. Morgan, with him Bernard J. Hessley, for appellees.
Bernard J. Hessley, for Amicus Curiae, League of Women Voters of the Warren Area.
Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 59 Pa. Commw. Page 138]
This case is before us on an appeal from the order of the Court of Common Pleas of Warren County which held that a petition for a referendum to amend the Home Rule Charter of the Borough of Warren (Borough) should be set aside and not placed on the ballot for presentation to the electors at the primary election on May 19, 1981.*fn1
It appears from the limited record available to us that the Borough adopted a Home Rule Charter (Charter) pursuant to the provisions of the Home Rule Charter and Optional Plans Law (Act), Act of April 13, 1972, P.L. 184, as amended, 53 P.S. § 1-101 et seq. The effective date of the Charter was the first Monday of January, 1978.
On February 18, 1981, Appellants filed a petition with the Board of Elections of Warren County
[ 59 Pa. Commw. Page 139]
(Board) for a referendum to amend the Charter. The amendments, if adopted by the electors, would increase the number of members on the council, provide for their election by wards or districts rather than at-large and provide for the discretionary compensation of council members. The amendments would also change somewhat the duties of the mayor.
The Board approved the petition and directed that it be placed on the ballot whereupon objectors filed a petition to dismiss the petition for a referendum and an action in equity to enjoin the Board from placing the proposed amendment on the ballot. Both matters were consolidated by the Court of Common Pleas and after argument thereon the order here appealed from was entered.
The issue presented to us is whether the petition for referendum, if adopted, would change the "form of government" in which event the referendum would be barred by the provisions of Section 218 of the Act, 53 P.S. § 1-218 which provides that the voters may not vote on a question "changing the ...