The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
ORDER ON CERTAIN DEFENDANTS' EMERGENCY MOTION
Before the Court is an Emergency Motion for Approval of
Invocation of the "Rule of Necessity" by the Board of
Commissioners of the Township of Aleppo (Document No. 139), filed
on behalf of the Township of Aleppo, and two of its
Commissioners, Gloria L. Vish and Richard Starr. Responses were
ordered by September 2, 2005 at noon, but none were filed.
Although this motion is unopposed, it will nevertheless be
The petition alleges that Commissioner Carolyn Smith,
plaintiff, has recused or abstained from voting on any decisions
regarding this litigation, and her non-participation has created
a 2-2 deadlock of the five member Board of Commissioners,
preventing any meaningful settlement discussions. Petitioners
request the Court to issue an order "permitting" plaintiff to
participate in decisions of the Township Commission pertaining to
this litigation pursuant to the "Rule of Necessity" to break the
current 2-2 deadlock.
In Pennsylvania, the Rule of Necessity is a common law
principle that requires members of a tribunal to consider a case,
even if all of them are subject to recusal or have some bias, because otherwise, the public and the litigants would be denied a
decision in the matter. Siteman v. City of Allentown,
695 A.2d 888 (Pa. Cmwlth. 1997), appeal denied, 550 Pa. 674,
703 A.2d 469 (1997); Sherman v. Kaiser, 664 A.2d 221, 227-28 (Pa.
Cmwlth. 1995). It is not at all clear that the Rule of Necessity
applies to legislative or administrative decisionmaking.
Siteman and Sherman and the other cases upon which
petitioners rely, involve application of the Rule of Necessity to
administrative or legislative officials making quasi-judicial
decisions in their adjudicative capacities. To the extent the
Rule might be invoked by a body such as the Board of
Commissioners of the Township of Aleppo acting in its legislative
or administrative capacities, it would not be appropriate for
this Court to issue an advisory opinion in advance addressed to
the validity of such a vote, were it to occur.
It is "axiomatic that the federal courts may not decide an
issue unless it presents a live case or controversy . . . [which]
limitation `derives from the requirement of Art. III of the
Constitution under which the exercise of judicial power depends
upon the existence of a case or controversy.'" Abdul-Akbar v.
Watson, 4 F.3d 195, 206 (3d Cir. 1993), quoting DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974) (additional citations
omitted). There must be actual injury which a court may redress
to supply the requisite live case or controversy to "assure that
the legal questions presented . . . will be resolved, not in the
rarified atmosphere of a debating society, but in a concrete
factual context conducive to realistic appreciation of the
consequences of judicial action." Simon v. Eastern Kentucky
Welfare Rights Org., 426 U.S. 26, 39 (1976). A federal court
must ensure that the justiciability requirements of Article III,
including ripeness, are satisfied regardless of the type of
relief sought. See Nextel Communications of Mid-Atlantic, Inc.
v. City of Margate, 305 F.3d 188, 192 (3d Cir. 2002); Armstrong
World Indus., Inc. v. Adams, 961 F.2d 405, 410 (3d Cir. 1992).
Resolution of the Rule of Necessity would involve consideration
of Pennsylvania's municipal code, judicial precedent about what
constitutes a quorum for purposes of legislative or
administrative decisions, and the Board's own rules and
regulations, if any, regarding what constitutes a quorum, and
context needs to be supplied by what actually transpires at a
vote of the Board of Commissioners wherein the Rule of Necessity
is invoked. There simply are too many variables that might or
might not occur, and the Court declines to address this premature
issue at this time.
Although the Court denies the relief requested, it is
appropriate to comment on what the Court perceives to be movants'
underlying concern, namely, whether invocation of the Rule of
Necessity by some or all of the Commissioners would violate this
Court's Order of May 16, 2005 (Document No. 75) granting the
permanent injunction. Based upon what movants have presented, it
does not appear that use of the Rule of Necessity would, of
itself, violate this Court's order.
The Court has been advised that the parties are now engaged in
serious and ongoing settlement negotiations and/or mediation.
Inasmuch as the efforts to settle or mediate a final resolution
of all disputes appear to be more serious than they have been for
quite some time, and has the potential to end a contentious
litigation impacting the public fisc and interests of the
citizens of the Township of Aleppo in governance of its business
by the Board of Commissioners, this Court will stay all pending
proceedings, and will suspend all pretrial deadlines relating to
the contempt proceedings. Accordingly, AND NOW, this 6th day of September, 2005, IT IS HEREBY
ORDERED that the Emergency Motion for Approval of Invocation of
the "Rule of Necessity" by the Board of Commissioners of the
Township of Aleppo (Document No. 139) is DENIED.
IT IS FURTHER ORDERED that all proceedings relating to the
pending motion for contempt are STAYED until further order of
Court, and all pretrial deadlines are SUSPENDED.
A status conference is scheduled for September 21, 2005, at
4:00 p.m. in Courtroom No. 7C, United States Courthouse,
Pittsburgh, Pennsylvania 15219.
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