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COMMONWEALTH PENNSYLVANIA EX REL. MARIO BAGNONI v. JAMES E. KLEMM (08/11/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 11, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. MARIO BAGNONI, COUNCILMAN OF THE CITY OF ERIE, ON HIS OWN BEHALF AND ON BEHALF OF ALL PROPERTY OWNERS OF THE CITY OF ERIE, APPELLANT
v.
JAMES E. KLEMM, CITY CLERK, THE CITY OF ERIE, AND MAYOR LOUIS J. TULLIO, APPELLEES

Appeal from the Order of the Court of Common Pleas of Erie County in the case of Commonwealth of Pennsylvania ex rel. Mario Bagnoni, Councilman of the City of Erie, on his own behalf and on behalf of all property owners of the City of Erie v. James E. Klemm, City Clerk, The City of Erie, Mayor Louis J. Tullio, No. 3048 -- A -- 1978.

COUNSEL

George M. Schroeck, for appellant.

Donald J. Rogala, City Solicitor, with him Lawrence L. Kinter, Deputy City Solicitor, for appellees.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 61 Pa. Commw. Page 228]

On June 14, 1978, the City Council of Erie (Council) passed an ordinance providing for the City's sewer rental rates to remain unchanged until December 31, 1978. On August 3, 1978, Mayor Louis J. Tullio vetoed this ordinance. Pursuant to Section 413(a) of the Optional Third Class City Charter Law,*fn1 a resolution was introduced before the Council proposing to override the Mayor's veto. Four members of the Council voted in favor of overriding the veto, two members voted against this resolution, and one member was absent. The City Solicitor ruled at the meeting that the vote was insufficient to constitute an override of the veto by "two-thirds of the members of Council" within the meaning of Section 413(a).

On August 14, 1978, Councilman Mario Bagnoni (appellant) filed a petition for a writ of mandamus and declaratory judgment in the Court of Common

[ 61 Pa. Commw. Page 229]

Pleas of Erie County, requesting that the City Clerk be ordered to enter in the official city journal records that the veto of the Mayor was overridden. The lower court denied appellant's petition, and this appeal followed.

The sole matter for our determination in this appeal*fn2 is the proper interpretation to be given Section 413(a). This section provides, in pertinent part, as follows:

No ordinance or any item or part thereof shall take effect without the mayor's approval, unless the mayor fails to return an ordinance to the council within ten days after it has been presented to him, or unless council upon reconsideration thereof, on or after the third day following its return by the mayor, shall by a vote of two-thirds of the members resolve to override the mayor's veto. (Emphasis added.)

Appellant maintains that the requirement of "two-thirds of the members" means two-thirds of the members present and not two-thirds of all the members of the Council.

In determining the number of votes necessary for a deliberative body to take official action, Pennsylvania follows the common law rule. DiGiacinto v. City of Allentown, 486 Pa. 436, 406 A.2d 520 (1979). This rule provides that a majority of those voting, in the presence of a quorum, can act for the body as a whole.

[ 61 Pa. Commw. Page 230]

    ordinance shall be adopted by the council without the affirmative vote of a majority of all the members of the council."*fn3 (Emphasis added.)

In sum, we conclude that the common law rule was not abrogated by Section 413(a) of the Optional Third Class City Charter Law, and thus four votes to override the Mayor's veto was a vote of two-thirds of the six members who voted and constituted a quorum.

Order reversed.*fn4

Order

And Now, this 11th day of August, 1981, the order of the Court of Common Pleas of Erie County, dated September 8, 1978, in the above captioned matter, is hereby reversed and the case is remanded to the trial court with instructions to issue a writ of mandamus to James E. Klemm, City Clerk, for the entry in the official City of Erie journal record that the veto of Mayor Louis J. Tullio of Ordinance No. 27-1978 was overriden by the Council of the City of Erie.

Disposition

Reversed and remanded.


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