Appealed From No. 95-C-1050. Common Pleas Court of the County of Lehigh. Judge DIEFENDERFER, President Judge.
Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge. Opinion BY Judge Friedman. President Judge Colins concurs in the result only. Judge Smith Dissents. Judge Kelley concurs in the result only. Concurring Opinion BY Judge Doyle
The opinion of the court was delivered by: Friedman
OPINION BY JUDGE FRIEDMAN
Thomas Siteman, Jr. (Siteman) *fn1 appeals from an order of the Court of Common Pleas of Lehigh County (trial court) dismissing Siteman's petition to review his discharge from employment as a police officer by the City of Allentown (City) and the City of Allentown City Council (City Council) pursuant to section 4408 of the Third Class City Code (Code). *fn2
In a letter dated October 7, 1993, Wayne T. Stephens, Director of the City's Department of Police, notified Siteman that he was suspended without pay until City Council could adjudicate certain charges against him. *fn3 On October 20, 1993, Siteman's attorney made a formal request for a hearing before City Council and asked for more specific information concerning Siteman's alleged misconduct. (R.R. at 323a.)
On January 26, 1994, Thomas F. Bennis, a police captain, sent a letter to Siteman informing him that, as a result of further investigation, two additional charges had been filed against him. *fn4 On May 17, 1994, the Assistant City Solicitor provided Siteman with details about the specific incidents which gave rise to the charges against him. (R.R. at 323a-29a.)
City Council held a hearing on June 22, 1994, at which time Siteman objected to the police department's failure to provide sufficiently detailed notice of the charges against him until May 17, 1994, seven months after Siteman's request for this information and one month before the hearing. (R.R. at 144a-46a.) Siteman stated that, due to the passage of time, he could not find the individuals named in the two most serious charges. (R.R. at 156a-57a, 159a.) City Council asked the parties to brief whether Siteman received sufficient notice of the charges and, if he did not, whether City Council had authority under the Code to dismiss the charges against Siteman on that basis. *fn5 (R.R. at 160a.)
After the parties submitted their briefs, Siteman objected that the police department's brief contained exhibits which amounted to evidence on the merits of the case which could prejudice members of City Council against Siteman. *fn6 On October 31, 1994, after argument, City Council voted three to two to dismiss all charges against Siteman with prejudice. *fn7 However, on November 2, 1994, considering the same matter as a resolution at a public meeting, City Council voted three to two against Siteman, with the president of City Council changing his vote. (R.R. at 530a-33a.)
The next day, the City Council member who had moved to dismiss the charges against Siteman recused himself because he was convinced that Siteman's due process rights had been violated. (R.R. at 534a-35a.) On December 1, 1994, Siteman's attorney sent a letter to the remaining four City Council members, asking them to recuse themselves. (R.R. at 467a-68a.) The other City Council member who voted to dismiss the charges against Siteman subsequently recused herself, leaving only three members of City Council qualified to vote on the matter. (R.R. at 502-03a.)
On January 25, 1995, at the first evidentiary hearing, Siteman's attorney moved to dismiss the charges against Siteman because three City Council members do not constitute a quorum and because the remaining members of City Council were not an impartial tribunal. (R.R. at 175a-78a.) When City Council failed to rule on the motion and proceeded to take evidence, Siteman and his attorney left the proceedings in protest. (R.R. at 179a.)
After several additional hearings, the remaining three members of City Council upheld the charges against Siteman and adopted a resolution discharging him from employment with the City. (R.R. at 487a-503a.) Siteman appealed to the trial court, which did not disturb City Council's resolution. (R.R. at 506a-18a.)
On appeal to this court, *fn8 Siteman argues that the final City Council vote was not proper because the three City Council members did not constitute a quorum. *fn9 We agree.
City Council's quorum rule is that "[a] quorum shall be four (4) members of Council or all of the members of Council, whichever number is less." *fn10 (R.R. at 668a.) Section 607 of the Code, 53 P.S. § 41607, provides that a majority of the whole number of members of the council shall constitute a quorum. *fn11 Here, the whole number of City Council members, or all of the members of ...