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DONALD B. MCCOY v. EDNA M. ROTH (08/31/89)

decided: August 31, 1989.

DONALD B. MCCOY, ESQUIRE, HAL SAXTON, JIM MCCULLEN, DAVID HITE, TERESA BRADLEY, AND CARL CINI, APPELLANTS,
v.
EDNA M. ROTH, APPELLEE



Appeal from Common Pleas Court, Bucks County, Honorable Oscar S. Bortner, Judge.

COUNSEL

Lawrence E. Brinkmann and John M. McClure, Doylestown, for appellants.

William J. Carlin, Begley, Carlin & Mandio, Langhorne, for appellee.

Colins and Palladino, JJ., and Barbieri, Senior Judge.

Author: Colins

[ 128 Pa. Commw. Page 376]

Donald McCoy, Esquire (McCoy), formerly Solicitor of Bristol Township, appeals an order of the Court of Common Pleas of Bucks County dated January 24, 1989 by which the trial court decreed that the township executive has the power to discretionarily fire the township solicitor under the ordinances of Bristol Township and under the Constitution and statutes of Pennsylvania. The trial court further decreed that Bristol Township executive, Edna Roth (Roth) had lawfully fired McCoy in the instant matter leaving a vacancy in that office effective February 1, 1989 and directed Roth to nominate and appoint a successor solicitor with the advice and consent of the Bristol Township Council (Council). We affirm.

Shortly after taking office as the township executive in January of 1986, Roth appointed McCoy as the township solicitor. The Council, by resolution dated January 6, 1986, approved the appointment of McCoy. Subsequently, Roth allegedly became unhappy with their deteriorating work relationship and the legal advice McCoy provided the township. By letter dated January 14, 1987, Roth terminated McCoy's employment. A majority of the Council did not believe that Roth had the authority to fire McCoy without

[ 128 Pa. Commw. Page 377]

    their approval and blocked the appointment of a successor solicitor. McCoy ignored the termination notice and continued to serve in his capacity as solicitor and to submit bills for his legal services. As of June 1987, Roth has refused to sign any township checks in payment for McCoy's services.

A number of lawsuits were filed against Roth designed to have McCoy's bills paid. However, she continued to refuse payment. On May 28, 1987, Roth filed an equitable action in the form of a writ of quo warrantor seeking to oust McCoy. In addition, she sought a declaratory judgment of her individual right, as chief executive officer, to fire McCoy. Also named as defendants were each of the five members of the Council.

The trial court declared the action in quo warrantor as improper*fn1 and denied Roth's declaratory judgment which, in effect, denied her request for judgment of ouster.

McCoy filed preliminary objections to the complaint and thereafter, Roth filed an amended complaint to which McCoy filed preliminary objections. After Roth filed an answer to McCoy's preliminary objections to the amended complaint, she also filed a motion for a preliminary injunction. The trial court denied the preliminary injunction, overruled McCoy's preliminary objections and directed the parties to be prepared to proceed with a trial on the merits.

Following a trial on February 29, 1988, the trial court granted McCoy's motion to dismiss the complaint and entered a decree nisi, holding that the township solicitor is immune from discretionary firing by the executive. Both parties filed post-trial motions. Briefs were later submitted by both sides and on September 30, 1988, the case was reargued before the ...


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