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ROSS TOWNSHIP ELECTION DISTRICT REAPPORTIONMENT. BOARD COMMISSIONERS TOWNSHIP ROSS (08/13/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 13, 1984.

IN RE: ROSS TOWNSHIP ELECTION DISTRICT REAPPORTIONMENT. THE BOARD OF COMMISSIONERS OF THE TOWNSHIP OF ROSS, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Ross Township Election District Reapportionment, No. Misc. 6 of 1983.

COUNSEL

William W. Milnes, Brandt, Milnes, Rea and Wagner, for appellant.

John D. O'Brien, Thorp, Reed & Armstrong, for appellee.

Judges Williams, Jr., Doyle and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 84 Pa. Commw. Page 508]

The Board of Commissioners of the Township of Ross (Commissioners) appeals here an order of the Court of Common Pleas of Allegheny County which set aside a reapportionment plan developed by the Commissioners. The Court also decreed that a "Reapportionment Committee" consisting of three members*fn1 be established to act "pursuant to further Order of [that] Court." See Section 6 of the Municipal Reapportionment Act (Act), Act of December 13, 1974, P.L. 947, as amended, 53 P.S. § 11606.

[ 84 Pa. Commw. Page 509]

On December 27, 1982, the Commissioners had adopted a reapportionment plan in Ordinance No. 1427 pursuant to Section 3 of the Act, 53 P.S. § 11603 which reads that:

Within the year following that in which the Federal census, decennial or special, is officially and finally reported, and at such times as the governing body of any municipality shall deem necessary, each municipality having a governing body not entirely elected at large shall be reapportioned into districts by its governing body. The governing body shall number the districts.

Districts shall be composed of compact and contiguous territory as nearly equal in population as practicable as officially and finally reported in the most recent Federal census, decennial or special.

Twelve resident electors of the township filed a Petition to Contest the Reapportionment Plan on January 21, 1983, Section 6 of the Act.*fn2 The trial court reviewed the plan in light of the criteria set forth in the above-cited Section 3 of the Act, and held that, although the districts were compact, contiguous and nearly equal in population, it appeared that some constitutionally impermissible considerations "tainted" the composition of the ninth ward. Pursuant to Section 6 of the Act, the trial court then rejected the plan and ordered that a "Reapportionment Committee" be formed. Subsequently, the Commissioners filed the present appeal. The residents answered with a motion to dismiss.

[ 84 Pa. Commw. Page 510]

In their motion to dismiss, the residents argue that the Commissioners' appeal is interlocutory in that it was not taken from a final order and does not fall within the scope of Pa. R.A.P. 311, Interlocutory Appeals as of Right. The Commissioners contend, however, that their appeal is not interlocutory, because the trial court's decision to establish a "Reapportionment Committee" has effectively thrown them out of court and that, therefore, the order was final as it relates to them.

In determining whether or not the trial court's order is final, we will "follow the reasoning of the United States Supreme Court that a finding of finality must be the result of a practical rather than a technical construction." Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975) (citation omitted). Here, the practical effect of the order was to create a "Reapportionment Committee" which would redraft the original plan and then, pursuant to Section 6 of the Act, submit the revised plan to the trial court for review and final approval. Clearly, therefore, the order anticipates continuing involvement by the trial court in the development of a legally sound reapportionment plan. It does not grant final approval of a redrafted reapportionment plan. In fact, it indicates that the final composition of the "Reapportionment Committee" has yet to be determined, so there is not yet even a plan to review.

As to the Commissioners' contention that the order is at least final as to them because it has effectively thrown them out of court, we note that the Commissioners were never named as a "party" in the proceedings below. And while they did testify in support of the original reapportionment plan at a hearing held by the trial court, this would not entitle them

[ 84 Pa. Commw. Page 511]

    to "party" status. Essentially, we do not believe that the Commissioners were ever "in court" and, therefore, we do not believe that the order of the trial court "put them out of court".

We must hold that the present appeal is interlocutory, and, we will further find that the Commissioners do not have an interlocutory appeal as of right under Pa. R.A.P. 311. Accordingly, we will grant the residents' motion to dismiss.

Order

And Now, this 13th day of August, 1984, we hereby quash the appeal in the above-captioned matter.

Disposition

Appeal quashed.


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