Appeal from the Order of Dauphin County Court of Common Pleas, Civil Division, at No. 2007-CV-01761-EQ dated 01-28-2008.
The opinion of the court was delivered by: Mr. Justice Eakin
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
The Harrisburg City Council, seeking control of the Harrisburg Authority, enacted Bill Number 36 of 2006, an ordinance giving it sole power to appoint members to the Harrisburg Authority's Board. Previously, Harrisburg's mayor, with City Council's advice and consent, appointed Board members to the Authority. Appellee Reed, then-mayor of Harrisburg,*fn1 vetoed the ordinance. Council overrode the veto, and on the same day purported to appoint three people to the five-member Authority Board.
Appellees sued, seeking immediate injunctive, declaratory, and quo warrantor relief. Extensive, circuitous litigation regarding the preliminary injunction ensued. See Reed v. Harrisburg City Council, 927 A.2d 698, 706 (Pa. Cmwlth. 2007) (en banc) (appellees not entitled to injunction because they failed to show likelihood of irreparable harm). Meanwhile, the trial court held argument regarding the declaratory judgment and quo warrantor actions. The trial court distinguished this case from City Council of City of Hazleton v. City of Hazleton, 578 A.2d 580 (Pa. Cmwlth. 1990), affirmed by an equally divided court, 600 A.2d 191 (Pa. 1992), which held the Hazleton City Council had the authority to appoint municipal authority boardmembers. The trial court noted Hazleton has an optional Plan B form of government, while Harrisburg's mayor-council Plan A form of government gives the mayor substantially more power. Interpreting the Optional Third Class City Charter Law, 53 P.S. §§ 41101-45000, the trial court found the term governing personnel to include both the mayor and the city council. Trial Court Opinion, 1/10/08, at 8-9 (quoting 53 P.S. § 41402). The trial court concluded Harrisburg's pre-ordinance method of appointment was the appropriate method under the Municipal Authorities Act (MAA), 53 Pa.C.S. §§ 5601-23; it declared the ordinance void, and separately held Council's appointees to the Board "are without warrant to hold membership on the [B]oard of the Harrisburg Authority." Trial Court Opinion, 1/10/08, at 12.
Appellants appealed to the Commonwealth Court. Appellees objected on jurisdictional grounds and moved to transfer the matter to this Court. In a single-judge order, the Commonwealth Court transferred the case to this Court, noting 42 Pa.C.S. § 722(2) grants this Court exclusive appellate jurisdiction over final orders involving the right to public office.*fn2 However, before reaching this case's underlying merits, we must determine if appellees have standing to bring this quo warrantor action. "As this is a purely legal question, our standard of review is de novo and scope of review is plenary." In re Milton Hershey School, 911 A.2d 1258, 1261 (Pa. 2006).
The parties do not dispute that municipal authority boardmembers are subject to quo warrantor actions. Generally, a quo warrantor action is the exclusive means of challenging the title or right to public office, and only the Attorney General or local district attorney may institute a quo warrantor action. In re One Hundred or More Qualified Electors of the Municipality of Clairton, 683 A.2d 283, 286 (Pa. 1996).
[A] private person, with no special right or interest in the public office, must first seek to have either the Attorney General or local district attorney file a quo warrantor action. It is only after both the Attorney General and the local district attorney decline to bring such an action that a private person will have standing to seek the removal of the holder of a public office ..
Id., at 287 n.10 (emphasis in original). "A party will be permitted to bring an alternative action to the remedy of quo warrantor where the Attorney General and the local district attorney refuse to bring such an action or if it would be a futile exercise to seek the approval of these officials." Id., at 286-87.
Appellants contend appellees lack standing to bring a quo warrantor action because they filed this action without first asking both the Attorney General and the local district attorney to bring the action. Appellants rely upon recent Commonwealth Court holdings, which state "'[i]t is when both agencies decline that a private person may have standing but only if he or she has a special interest, or if he or she has been specially damaged as distinguished from a right or interest of the public in general.'" Fraternal Order of Police, Queen City Lodge No. 10 v. City of Allentown, 894 A.2d 224, 227 (Pa. Cmwlth. 2006) (emphasis in original) (quoting Bolus v. Murphy, 823 A.2d 1075, 1079 (Pa. Cmwlth. 2003)).*fn3
Appellees argue, as then-mayor of Harrisburg and as the mayor's appointee to the Authority's Board, they are public officials and "may pursue actions in quo warrantor without first consulting either the attorney general or the district attorney." Appellees' Brief, at 23. Appellees claim Mayor Reed had an interest in protecting his purported power to appoint Board members to the Authority. Appellee Clark, a Board member who lost his position to a Council-appointed purported member, also claims an interest in protecting Mayor Reed's appointment power.
Appellants claim appellees should have notified the Attorney General and Dauphin County District Attorney before bringing this quo warrantor action. A private party with a special interest in the matter, or who has been specially damaged, may institute a quo warrantor action. See, e.g., In re One Hundred or More Qualified Electors of the Municipality of Clairton, at 286 ("A private person will have standing to bring a quo warrantor action only if that person has a special right or interest in the matter, as distinguished from the right or interest of the public generally, or if the private person has been specially damaged."); Zemprelli v. Daniels, 436 A.2d 1165, 1167 (Pa. 1981) (Attorney General, district attorney, or private party with special interest may bring quo warrantor action).
We have never required a private party with a special interest to notify the Attorney General and local district attorney before filing a quo warrantor action. Consistent with our long-standing precedent, we hold a private party with a special interest in the matter may institute a quo warrantor action without first notifying the Attorney General or the local district attorney. We disapprove of the Commonwealth Court's holdings in ...