Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Committee of Seventy, et al. v. City Commissioners, et al., No. 1560 August Term, 1979.
Pamela P. Cohen, with her, Isadore A. Shrager, for appellant.
Thomas A. Allen, White and Williams, for appellee, Committee of Seventy, et al.
Ralph J. Teti, Chief Deputy City Solicitor, for appellee, City Commissioners of the City of Philadelphia, et al.
President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge MacPhail.
[ 111 Pa. Commw. Page 207]
The Democratic City Committee (Appellant) of Philadelphia appeals here from an order of the Court of Common Pleas of Philadelphia County which overruled, in part, post-trial exceptions filed by Appellant to the trial court's order of November 28, 1986. We affirm.*fn1
In its order of November 28, 1986, the court directed the City Commissioners of the City of Philadelphia (Commissioners) to realign the election districts, called divisions, in the City of Philadelphia. That order was entered in response to a Complaint in Equity filed in 1979 by the Committee of Seventy and others against the Commissioners and others.
Since 1984, the Commissioners have undertaken a city-wide division realignment plan and, from the Commissioners' brief and from information elicited by the Court from counsel at oral argument, we have ascertained that a substantial part of the realignment is already complete. The Commissioners filed no exceptions to the trial court's order of November 28, 1986. At oral argument before this Court on the matter now under consideration, the Commissioners appeared as Appellees and advised the Court that they have completed nearly half of the realignment of the divisions within the City and do not oppose the implementation of the court-ordered realignment as that order was subsequently modified by this Court. They point out that they have devoted "substantial resources" to carrying out the terms of the trial court's order.
In 1985, Appellant was granted leave to intervene in the proceedings whereupon it filed preliminary objections which, inter alia, challenged the jurisdiction of the
[ 111 Pa. Commw. Page 208]
trial court. A similar challenge to jurisdiction was made by the Commissioners in 1979. Both the Commissioners' and Appellant's challenge to the trial court's jurisdiction was based upon the provisions of Sections 503 and 504 of the Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2703 and 2704, which state that redistricting is to be initiated either by a petition of twenty registered electors within the district or by the County Board of Elections, in this instance, the Commissioners. In the matter now before us, the trial court acted on a Complaint in Equity filed principally by the Committee of Seventy. As the trial court has observed, however, whatever defect may have existed in the proceedings initially has been cured by the Commissioners' withdrawal of their previous opposition to the proceedings and their subsequent voluntary implementation of the court's order. In its brief, the Appellant concludes its argument on this point by stating, "In sum, there is simply no basis in the Code for realignment to occur in a manner which does not require the concurrence of the City Commissioners." The easy response to that argument is that the Commissioners have concurred in the realignment since 1984.
While not mentioned by the trial court in its opinion, we would note that the Appellant's jurisdictional challenge also would be barred by the doctrine of collateral estoppel, inasmuch as the court had previously ruled on the same issue. See McCarthy v. ...