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Pilchesky v. Lackawanna County

Supreme Court of Pennsylvania

March 26, 2014

JOSEPH PILCHESKY, Appellant
v.
LACKAWANNA COUNTY, LACKAWANNA COUNTY COMMISSIONERS, COREY O'BRIEN, JAMES WANSACZ AND PATRICK O'MALLEY, Appellees

Submitted September 27, 2013.

Appeal from the order of the Commonwealth Court at No. 452 CD 2013 dated April 15, 2013, affirming the order of the Lackawanna County Court of Common Pleas, Civil Division, at No. 2013-CV-604 dated March 15, 2013.

For Bureau of Elections, Participants: Kathleen Marie Kotula, Esq., PA Department of State.

For Lackawanna County Election Bureau, Participants: John Ralph Williams Jr., Esq., Minora, Minora, Colbassani, Krowiak & Mattioli.

Joseph Pilchesky, Appellant, Pro se.

For Lackawanna County, Appellee: Donald J. Frederickson, Jr., Esq.

For Corey O' Brien, James Wansacz, Patrick O'Malley, Appellee: Joseph A. O'Brien, Esq., Oliver Price & Rhodes.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE STEVENS. Mr. Chief Justice Castille, Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice McCaffery join the opinion.

OPINION

Page 955

MR. JUSTICE STEVENS

This appeal questions whether county commissioners may place an ordinance-generated referendum question on the primary election ballot seeking to amend a home rule charter pursuant to 53 Pa.C.S. § 2941

Page 956

without first seeking election of a government study commission under 53 Pa.C.S. § 2911 when the question adopted by the ordinance attempts to abolish certain elected row offices.

Facts

Lackawanna County is a third class county originally organized under the Commonwealth of Pennsylvania's " The County Code." 16 P.S. § 101, et seq. The Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2901 et seq. (hereinafter " the Home Rule Law" ) authorizes counties to utilize home rule charters[1] to establish a local government framework. Article 9, Section 2 of the Pennsylvania constitution provides that municipalities shall have the right and power to frame and adopt home rule charters, and a municipality which has a home rule charter may exercise any power or perform any function not denied by the constitution, by its home rule charter, or by the General Assembly. PA. CONST. art. 9, § 2.

On January 3, 1977, Lackawanna County enacted the Lackawanna County Home Rule Charter (hereinafter " the Charter" ). See 335 PA. CODE § 1.17-1702 (1977) (establishing the effective date). Section 1.2-201 of the Charter identifies elected officers of the County as including the Sheriff, Clerk of Judicial Records, Recorder of Deeds, and Register of Wills. 335 PA. CODE § 1.2-201(e)-(h) (1977). Sections 1.7-702-1.10-1002 enumerate the powers and responsibilities of these four positions respectively. 335 PA. CODE § § 1.7-702(a)-(f), 1.8-802, 1.9-902, and 1.10-1002 (1977). Section 1.6 of the Charter directs that it may be amended in conformity with the provisions of the Home Rule Law. 335 PA. CODE § 1.16-1609 (1977).

On January 23, 2013, the Lackawanna County Board of Commissioners (hereinafter " the Commissioners" ) held the first reading of Ordinance 13-0019 (hereinafter " Ordinance 224" ) whereby they sought to direct that a referendum question be placed on the May 21, 2013, municipal primary election ballot proposing to abolish the elected offices of Sheriff, Clerk of Judicial Records, Recorder of Deeds and Register of Wills, and to redefine the duties that had been assigned to those positions as legislative powers under § 1.3-302 of the Charter.[2] The revised Charter also would contain a new Section 1.2-201 which would eliminate the four officers from the list of elected officers of the County and repeal Sections 1.7-701, 1.7-702, 1.8-801, 1.8-802, 1.9-901, 1.9-902, 1.10-1001, and 1.10-1002 which together regulate the election, powers and duties of

Page 957

those officers. Under the Commissioners' proposal, the office of Sheriff would become an appointed position, and Ordinance 224 also sought to change Section 1.3-302 of the Charter entitled " Powers and Duties" of the Commissioners, to include additional subparagraphs (v) and (w) which would read:

(v) to appoint a sheriff, who shall retain and exercise those powers granted by the General Laws of the Commonwealth of Pennsylvania for those counties whose population is most equal to that of Lackawanna County. The sheriff shall have the power to collect all fines and penalties for violation of county ordinances and the transmittal of those monies to the County Treasurer, provide security for County property and personnel and to perform all other duties as may be directed by the Board of Commissioners from time to time; and
(w) to exercise all powers, functions and duties previously assigned by law to the Clerk of Judicial Records, Recorder of Deeds and Register of Wills under this Charter and the General Laws of the Commonwealth of Pennsylvania for those counties whose population is most equal of that of Lackawanna County.

On February 5, 2013, at a regular public meeting, the Commissioners adopted Ordinance 224.[3] In light of the fact that the ballot question related to proposed amendments to the Charter, on February 7, 2013, President Judge Thomas J. Munley of the Lackawanna County Court of Common Pleas appointed himself along with two other judges of the same court, Judges Terrence R. Nealon and Vito P. Geroulo, to serve as the Lackawanna County Board of Elections.

Thereafter, on February 11, 2013, Appellant Joseph Pilchesky (hereinafter " Pilchesky" ) filed a pro se petition requesting that the trial court strike the ballot question or, in the alternative, that the Board of Elections separate the single ballot question into four queries, one for each of the offices to be abolished. In his petition, Pilchesky also asserted that Ordinance 224 directs a ballot question that proposes a change in the form of government rather than an amendment to the Charter and that such a change can be ...


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