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CARL R. MELLIN v. CITY ALLENTOWN ET AL. (06/19/81)

decided: June 19, 1981.

CARL R. MELLIN, PAUL LOWE AND CALL-CHRONICLE NEWSPAPERS, INC., FOR THEMSELVES AND ALL OTHER CITIZENS AND TAXPAYERS OF THE CITY OF ALLENTOWN, APPELLANTS
v.
THE CITY OF ALLENTOWN ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Carl T. Mellin, Paul Lowe and Call-Chronicle Newspapers, Inc. v. The City of Allentown; Councilmen of the City of Allentown, Samuel G. Costa, Watson W. Skinner, Jr., Karl K. Kercher, Thelma W. Barnes, Alton W. Frey, Jr., Benjamin F. Howells, Jr.; and City Clerk, Charles S. Saeger, No. 24 June Term, 1976, in Equity.

COUNSEL

William S. Hudders, Butz, Hudders & Tallman, for appellants.

Michael P. McIntyre, Majczan, Heidecker & McIntyre, with him Jack I. Kaufman, Assistant City Solicitor, for appellees.

Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Blatt

[ 60 Pa. Commw. Page 115]

The appellants, Call-Chronicle Newspapers, Inc., operate a newspaper serving the City of Allentown. They and Carl T. Mellin and Paul Lowe, individual taxpapers residing in Allentown, appeal from an order

[ 60 Pa. Commw. Page 116]

    of the Court of Common Pleas of Lehigh County dismissing their complaint against several members of the Allentown City Council*fn1 and the Allentown city clerk.*fn2

Injunctive relief was sought to declare invalid the suspension of an Allentown police officer on the grounds that the evidence leading to his suspension was obtained at a secret hearing of the city council which was improperly closed to the public. It was also sought to compel the city clerk to produce the transcript of the closed hearing for public inspection.

The facts as found by the court below are undisputed. Donald G. Oswald, an Allentown police officer, was indefinitely suspended from duty on June 15, 1976 because of alleged instances of conduct unbecoming a policeman. The council scheduled an executive session to be held on July 22, 1976 to hear the charges brought against the police officer, and the police officer requested, prior to the meeting, that the hearing be conducted in private. The council president then directed that the hearing be closed to the public, although no formal vote of the council was taken on the subject. The private session lasted for four hours, during which time several witnesses testified concerning the alleged misconduct. On August 18, 1976, at a duly advertised open meeting, the council formally adopted a resolution of suspension.

In their action in equity before the lower court, the appellants argued that: 1) the hearing could not legally be closed because the Third Class City Code*fn3

[ 60 Pa. Commw. Page 117]

    and Allentown ordinances require all council meetings to be open to the public; 2) the city clerk cannot refuse public access to the transcripts of the hearings; and, 3) even if the city council can hold closed "executive sessions", such sessions may not last longer than one-half hour. The lower court ...


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