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CITY COUNCIL CITY BETHLEHEM AND JACK LAWRENCE v. PAUL M. MARCINCIN (10/03/86)

decided: October 3, 1986.

CITY COUNCIL OF THE CITY OF BETHLEHEM AND JACK LAWRENCE, CITY COUNCILMAN, APPELLANTS,
v.
PAUL M. MARCINCIN, APPELLEE



Appeal from the Judgment of the Northampton County Court of Common Pleas date February 19, 1986, at No. 1986-C-536. Appeal of the City Council of the City of Bethlehem and Jack Lawrence.

COUNSEL

Daniel E. Cohen, Easton, for appellants.

Frank S. Poswistilo, Easton, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Nix

[ 512 Pa. Page 4]

OPINION

The point of dispute in this appeal is the compatibility of the Third Class City Code ("the Code")*fn1 and Third Class City Charter Law ("the Charter Law") (Act of July 15, 1957, P.L. 901, § 101, 53 P.S. § 41101 et seq. (Supp. 1986)) with City of Bethlehem Ordinance 2389 (Bethlehem, Pennsylvania, Ordinance 2389 (Oct. 18, 1973)). Pursuant to that ordinance, an incumbent mayor can seek only one term of re-election. We conclude, for the reasons that follow, that a reasonable limitation on the mayoral term of office is in harmony with the scope of authority granted to third class cities by the Code and the Charter Law. To limit the mayoralty to two terms in no way denies the right of re-election to an incumbent mayor, rather it provides, prospectively, a reasonable limit to the number of consecutive terms he can serve as mayor of a third class municipality. Therefore, we reverse the Order of the Common Pleas Court.

The facts as determined by the court below are not disputed. On October 18, 1973, the Council of the City of Bethlehem ("the Council") passed an ordinance which required that "[t]he Mayor shall hold his office during four years from the first Monday of January next ensuing his election. He shall be eligible to succeed himself for only one additional term." City of Bethlehem, Ordinance 2389 (Oct. 18, 1973) (emphasis added). Paul M. Marcincin, appellee herein, was first elected to the office of mayor in November of 1977 and took the oath of office in January,

[ 512 Pa. Page 51978]

.*fn2 He was successful in his re-election bid and began his second term in 1982. Marcincin was reelected to his third consecutive term on November 5, 1985.

Preceding his bid for a third term, appellee brought suit, in the Court of Common Pleas of Northampton County, for declaratory judgment challenging the validity of Ordinance 2389. The court issued a decree on March 6, 1984 invalidating the provision in the ordinance restricting the terms of office for which a mayor may seek re-election.*fn3 On January 21, 1986 the City Council of the City of Bethlehem instituted the instant action, the first count seeking a declaratory judgment and the second count in quo warrantor.*fn4 City Council of the City of Bethlehem v. Paul M. Marcincin, No. 1986-C-536. The court below after determining that council had standing to request declaratory relief reaffirmed its earlier finding that the ordinance in question was invalid. In view of this finding, the count in quo warrantor seeking the invalidation of the November, 1985 mayoral election and the barring of Marcincin from office was dismissed. Since the issues raised herein implicate the right to public office a direct appeal was taken to this Court pursuant to 42 Pa.C.S. 722(2).

The City of Bethlehem operates pursuant to the Code and the Charter Law, Mayor-Council Plan A (53 P.S. § 41401 et seq., (Supp. 1986)) whereby third class municipalities enjoy express authority of self-government. Power to organize city governments flows from section 303 of the Charter Law. 53 P.S. § 41303 (Supp. 1986).

[ 512 Pa. Page 6]

Section 301 (53 P.S. § 41301 (Supp. 1986)) provides that a third class city whose voters have chosen some form of optional scheme of government, as prescribed by the Charter, shall be governed by that scheme and ". . . by the provisions of this act (the Charter Law) common to optional plans and by all applicable provisions of general law, . . ."*fn5 Under section 303(1) of the Charter Law, the municipality clearly has the power to define the function, powers and duties of their officers and to fix the term, tenure and compensation for those positions.*fn6

The instant municipality elected the Mayor-Council Plan A as set forth under section 401 et seq.; section 403 which provides:

The mayor, the treasurer and the controller shall be elected by the voters of the city at a regular municipal election, and shall serve ...


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