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EDITH OLSZEWSKI AND JOHN SKANDERSON v. BOROUGH BLAWNOX COUNCIL (02/17/83)

decided: February 17, 1983.

EDITH OLSZEWSKI AND JOHN SKANDERSON, APPELLANTS
v.
THE BOROUGH OF BLAWNOX COUNCIL, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Edith Olszewski and John Skanderson v. The Borough of Blawnox Council, No. SA 172 of 1981.

COUNSEL

James R. Mall, with him James Victor Voss, Meyer, Unkovic & Scott, for appellants.

John F. Cambest, Conway, Meyer & Cambest, for appellee.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 72 Pa. Commw. Page 211]

This is an appeal from an order of the Court of Common Pleas of Allegheny County which dismissed the appeal of Edith Olszewski and John Skanderson (Appellants) of their removal from the Zoning Hearing Board of the Borough of Blawnox (Board) pursuant to Section 905 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10905. For the reasons which follow, we reverse the order of the court of common pleas.

[ 72 Pa. Commw. Page 212]

The relevant facts are not in dispute. The Appellants were duly appointed members of the Board. On July 2, 1980, an informal meeting was held concerning the possible need for certain variances for the proposed construction of a federally funded high-rise apartment building for low-income, handicapped and elderly citizens in the Borough of Blawnox.*fn1 Following this meeting, the developer, Crossgates, Inc., (Crossgates) formally requested that a hearing before the Board be scheduled in order to obtain variances from certain height and parking requirements.*fn2 On July 21, 1980, before a variance hearing was held, the Borough Council (Council) passed a resolution which directed the building inspector to immediately issue a building permit for the proposed apartment building. Upon discovery of the Council's action, the Board, rather than consulting the borough solicitor, approved the retaining of an attorney to provide an opinion on the need for variances to construct the apartment building. Subsequently, Appellants, acting as both the Board and in their individual capacities, filed an appeal with the court of common pleas seeking to set aside the building permit. This appeal was dismissed for lack of standing. By letter dated December 23, 1980, the Council informed Appellants of its intention to remove them from membership on the Board. The reasons cited for this action included the Appellants' appeal of the issuance of the building permit and the retaining of a private attorney without the approval of the Council. Following a hearing before the Council, Appellants were removed from the Board by resolution of that body.

Appellants appealed their removal from the Board to the court of common pleas. Following a hearing, the

[ 72 Pa. Commw. Page 213]

    trial court concluded that although Appellants' conduct was not malfeasant, misfeasant or nonfeasant, the evidence did support a finding of good cause for removal from office. Since a full and complete record of the proceeding before the Council was not available, the court below heard the appeal de novo, pursuant to Section 754(a) of the Local Agency Law, 2 Pa. C.S. § 754(a). Thus, our scope of review is limited to determining whether the Appellants' constitutional rights have been violated, and whether the trial court manifestly abused its discretion or committed an error of law. See Goetz v. Borough of Zelienople, 14 Pa. Commonwealth Ct. 639, 324 A.2d 808 (1974).

[ 72 Pa. Commw. Page 214]

The charges against Appellants essentially alleged malfeasance and misfeasance in office. Malfeasance in office "is not merely error in judgment or departure from sound discretion, but the act, omission or neglect must be wilful, corrupt and amount to a breach of duty legally required by one who has accepted public office." Commonwealth v. McSorley, 189 Pa. Superior Ct. 223, 227-228, 150 A.2d 570, 572 (1959). Misfeasance has been construed to mean "either the breach of a positive statutory duty or the performance by a public official of a discretionary act with a corrupt motive." Id. at 227, 150 A.2d at 572. While Appellants' appeal of the issuance of the building permit may have been misguided, it certainly did not constitute malfeasant conduct. Similarly, Appellants' actions to secure independent legal advice for the Board is not misfeasant.*fn3 In fact, under certain circumstances, due process will preclude the borough solicitor from serving as solicitor for the Board. See Horn v. Township of Page 214} Hilltown, 461 Pa. 745, 337 A.2d 858 (1975). The trial court determined that the Appellants "acted from a deep conviction of public service and in the belief that they were fighting to correct a grievous wrong," and also that they "acted from a personal sense of civic ...


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