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COMMONWEALTH PENNSYLVANIA v. JAMES E. KLEMM (12/31/82)

decided: December 31, 1982.

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 AND MAYOR LOUIS J. TULLIO, APPELLANTS



NO. 16 WESTERN DISTRICT APPEAL DOCKET 1982, APPEAL FROM AN ORDER OF AUGUST 11, 1981 OF THE COMMONWEALTH COURT OF PENNSYLVANIA AT NO. 2392 C.D. 1978

COUNSEL

Lawrence L. Kinter, Deputy City Sol., Erie, for appellant.

George M. Schroeck, Erie, for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., filed a dissenting opinion in which Larsen, J., joined.

Author: Hutchinson

[ 499 Pa. Page 567]

OPINION

Resolution of this case turns solely upon a question of statutory construction: viz. whether an Act of Assembly which requires "a vote of two-thirds of the members" to override the Mayor's veto means two-thirds of the entire body or two-thirds of the members present. We hold that in the context of section 413(a) the Optional Third Class City Charter Law (Article IV, Mayor-Council Plan A), Act of July

[ 499 Pa. Page 56815]

, 1957, P.L. 901, as amended, 53 P.S. § 41413(a), the quoted expression means two-thirds of the entire body. We therefore reverse the Commonwealth Court, 61 Pa. Commw. 227, 433 A.2d 583, which had held that affirmative votes by four of the six councilmen present out of a seven member council were enough to override the mayor's veto.

On June 14, 1978, the City Council of Erie passed an ordinance providing for the City's sewer rental rates to remain unchanged until December 31, 1978. Mayor Louis J. Tullio vetoed this ordinance. Pursuant to section 413(a) of the Optional Third Class City Charter Law, a council member introduced a resolution 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 the resolution, and one member was absent.*fn1 The City Solicitor ruled at the meeting that this 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, appellee, Councilman Mario Bagnoni, filed a petition for a writ of mandamus and declaratory judgment in the Court of Common Pleas of Erie County, requesting that the court order the City Clerk to enter in the official city journal that the veto of the Mayor was overriden. The Court of Common Pleas denied the petition holding that there is no modifying language in section 413(a) to indicate that "members" means only those who are present at the meeting. The Commonwealth Court reversed and this appeal followed.*fn2

[ 499 Pa. Page 569]

This Court has applied the common law rule that a majority of those voting in the presence of a quorum can act for a board or other body "in the absence of any language to the contrary in the relevant enabling statute." Stoltz v. McConnon, 473 Pa. 157, 373 A.2d 1096 (1977) (citing Raynovich v. Romanus, 450 Pa. 391, 299 A.2d 301 (1973)) (emphasis in original); Meixell v. Hellertown Borough Council, 370 Pa. 420, 88 A.2d 594 (1952); Commonwealth ex rel. Fortney v. Wozney, 326 Pa. 494, 192 A. 648 (1937); Frackville Borough Council Case, 308 Pa. 579, 162 A. 835 (1932). However, in the same context of voting requirements in representative municipal bodies this Court has rejected the necessity of a clear and explicit statutory provision to demonstrate a legislative intent to change the common law rule and require a majority of the full body. The Pennsylvania Statutory Construction Act, 1 Pa. C.S. § 1928(a), provides that the "rule that statutes in derogation of the common law are to be strictly construed, shall have no application to the statutes of this Commonwealth enacted finally after September 1, 1937." Applying the above this Court has held that it will construe statutes dealing with the number of votes required for action by a municipal body without any presumption in favor of the common law rule. Stoltz v. McConnon, 473 Pa. at 165 n. 4, 373 A.2d at 1099-1100 n. 4.

In cases not involving votes by representative bodies of strictly limited membership, e.g. general public elections or elections open to the entire membership of a church or religious institution, this Court has applied the common law rule more rigorously:

'[T]he great weight of authority holds that where a statute provides for a vote of "a majority of the voters", "a majority of the legal voters," "a majority of the qualified voters", etc., all that is required is a majority of those actually voting, unless a contrary legislative intention and purpose is very clearly expressed.'

Heuchert v. State Harness Racing Comm., 403 Pa. 440, 450, 170 A.2d 332, 338 (1961) (quoting Munce v. O'Hara, 340 Pa. 209, 211,

[ 499 Pa. Page 57016]

A.2d 532, 533 (1940)) (emphasis added). See also Stryjewski v. Panfil, 269 Pa. 568, 112 A. 764 (1921). Schlichter v. Keiter, 156 Pa. 119, 27 A. 45 (1893).

The reasons are manifest for a more stringent application of the common law rule to general elections. First, as the older cases stressed, there is an inability to determine the number of electors as distinguished from voters. A second and more compelling reason is that there is no way to compel people to vote. Particularly in primaries where less than fifty percent of the registered voters participate, a requirement of a majority of all voters would, for all practical purposes, cause institutional paralysis. See Heuchert v. State Harness Racing Comm., supra.

With this background we consider section 413(a) of the Optional Third Class City Charter Law to ascertain whether the legislature intended that the required number of votes be computed as a portion of the entire membership or only of those members present. Section 413(a) provides:

No ordinance or any item or part thereof shall take effect without the mayor's approval . . . unless council upon reconsideration, thereof, . . . shall by a vote of two-thirds of the members resolve to override the mayor's veto.

53 P.S. § 41413(a).*fn3 The meaning of the phrase in question, "by a vote of two-thirds of the members", is unclear. This Court has never considered the meaning of this phrase.*fn4

The appellees' and Commonwealth Court's reliance on the fact that the legislature is familiar ...


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