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In re Petition to Submit Ballot Question to Concord Township Voters

Commonwealth Court of Pennsylvania

September 26, 2014

In Re: Petition to Submit Ballot Question to Concord Township Voters; Appeal of: Concord First and Colette Brown

Submitted September 8, 2014

Francis J. Catania, Solicitor, Media, for appellee The Delaware County Bureau/Board of Elections.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge.

OPINION

Page 766

BONNIE BRIGANCE LEADBETTER, Judge

On July 28, 2014, Appellants, Colette Brown, and a citizens group named Concord First, filed a petition with the Court of Common Pleas of Delaware County requesting that the ballot question " Should Concord Township become a Township of the First Class?" be placed on the November 2014 ballot. The petition contained 994 signatures out of 11,640 registered voters, approximately 8.5% of the registered electors. The petition asserted that the 2010 Census showed that Concord Township encompassed 13.7 square miles and had a population of 17,231 inhabitants, which equals approximately 1,258 inhabitants per square mile.

Appellees, who are various qualified electors, filed objections to the petition asserting that the petition was procedurally and substantively defective. The Delaware County Bureau of Elections filed a petition to intervene and a request for declaratory relief. The Bureau asserted that Appellants had not complied with the relevant statutory sections, a home rule study commission referendum question is already on the ballot and that, if Appellants' question is successful, the reorganization of the township government may result in a violation of the Pennsylvania Constitution.

After holding a hearing, common pleas issued an order denying the petition. In an opinion in support of its order, common pleas concluded that the petition was not timely filed under the requirements of Section 207 of the First Class Township Code of 1949 (Code), Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 55207.[1] This appeal followed.

Appellants filed their petition pursuant to Section 207 of the Code, which provides:

At the first general or municipal election occurring, at least ninety days after the ascertainment, by special enrollment or from the last preceding United States census, that any township of the second class has a population of at least three hundred inhabitants to the square mile, and after a petition signed by at least five per centum of the registered voters of the township has been filed in the quarter sessions court, the question whether such township of the second class shall become a township of the first class shall be submitted to the voters of the township, and the county board of elections shall cause to be printed on separate ballots, to be used in such township at such election, a proper question framed in accordance with the Pennsylvania Election Code.

53 P.S. § 55207.[2] A township of the first class has a population density of at least 300 inhabitants per square mile. Section

Page 767

201 of the Code, 53 P.S. § 55201. A second class township may become a first class township only as provided by the Code. Id.

Appellants dispute common pleas' conclusion that the petition was not timely filed because the first general election occurring at least 90 days after ascertainment of the Township's population density by the 2010 United States census was in calendar year 2012, and the first municipal election occurring at least 90 days after the ascertainment of the population by census occurred in calendar year 2013. (It is undisputed that the procedures for ascertainment by special enrollment were never undertaken.) Appellants argue that the phrase " first ... election occurring at least ninety days after" applies to the completion of both prerequisites, ascertainment of the population density by census and the filing of a petition with the court. They thus assert that this time limitation was not satisfied until they filed their petition with the court 97 days prior to the 2014 general election.

We disagree with Appellants' construction of the statute, and agree with the trial court that " first election" relates only to the phrase with which it is immediately juxtaposed, " ascertainment [of population]... from the last preceding United States census." The phrase " first election 90 days after [ascertainment of population]" operates as a clear time limitation which serves the necessary purpose of ensuring that the population density upon which the ballot question is based remains accurate when the matter is put to the voters. This time limitation would be entirely eviscerated if the petitioners could extend it by waiting several years to file their petition with the court.

Page 768

In this regard, we note that the Code was promulgated to reenact, amend and revise the Act of June 24, 1931, P. L. 1206, 53 P.S. § 55207, amended by the Act of July 24, 1941, P. L. 502. The 1931 Act contained no provision for the filing of a petition by registered voters of the township in order for the question of a change in township status to be voted upon, but did contain the " first election after" limitation with respect to the population ascertainment.[3] We do not believe that when the Act of 1941 added the requirement of a petition signed by at least five percent of the registered voters, the General Assembly intended to abrogate the longstanding time limitation, and frustrate the salutary purpose it serves.

Accordingly, we affirm.

ORDER

AND NOW, this 26th day of September, 2014, the order of the Court of Common Pleas of Delaware County is hereby AFFIRMED.


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