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Shields v. Council of Borough of Braddock

Commonwealth Court of Pennsylvania

March 27, 2015

M. Lawrence Shields III, Appellant
v.
Council of Borough of Braddock

Submitted December 12, 2014.

Appealed from No. GD-13-019519. Common Pleas Court of the County of Allegheny. O'Reilly, J.

M. Lawrence Shields III, Pro se.

Falco A. Muscante, Pittsburgh, for appellee.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION bye JUDGE COHN JUBELIRER.

OPINION

Page 1266

RENÉ E COHN JUBELIRER, Judge

M. Lawrence Shields III, pro se, former solicitor of the Borough of Braddock (Borough), appeals from the Order of the Court of Common Pleas of Allegheny County (trial court) that granted the Preliminary Objections (POs) in the nature of a demurrer filed by the Borough,[1] entered judgment in favor of the Borough and against Mr. Shields, and dismissed with prejudice Mr. Shields's Complaint in Mandamus (Complaint). The trial court held that, pursuant to The Borough Code (Code),[2] the Mayor of the Borough (Mayor) had the authority to vote and break the tie among Borough Council members on a motion removing Mr. Shields as Borough solicitor and appointing a new solicitor. On appeal Mr. Shields argues that, pursuant to Sections 1005(1) and 1116 of the Code,[3] the

Page 1267

authority to appoint or remove a borough solicitor lies solely with a borough's council and, therefore, a borough's mayor may not lawfully vote to break a tie regarding such appointment or removal.

Mr. Shields avers the following facts in his Complaint. Mr. Shields served as the Borough's solicitor until Borough Council's regular meeting on February 14, 2012, when " a [m]otion was made and seconded for Council to terminate the services of [Mr. Shields] . . . and appoint" a new solicitor for the Borough. (Compl. ¶ 3, R.R. at 6a.) Borough Council has six members; three members voted in favor of and three members voted in opposition to removing Mr. Shields as solicitor, resulting in a tie. (Compl. ¶ ¶ 4-5, R.R. at 7a.) Mr. Shields advised Borough Council that the Mayor could not break the tie vote, but, nonetheless, the Mayor voted in favor of the motion removing Mr. Shields as solicitor and appointing the new solicitor. (Compl. ¶ 6, R.R. at 7a.)

Mr. Shields asserts in the Complaint that the Mayor's tie-breaking " vote was illegal and had no legal force and effect" because that vote, essentially, gave him the authority to appoint and remove the Borough's solicitor, which, pursuant to Section 1005(1), formerly 53 P.S. § 46005(1), lies exclusively with Borough Council. (Compl. ¶ 7, R.R. at 7a.) Mr. Shields avers that, because the Mayor's vote was illegal, the " [m]otion did not lawfully pass," he " was not lawfully removed as" Borough solicitor, and the new solicitor was not lawfully appointed. (Compl. ¶ 8, R.R. at 7a.) According to Mr. Shields, despite the illegality of the February 14, 2012 vote, the Borough has employed the new solicitor since that date and Mr. Shields has been " illegally deprived of acting as [s]olicitor of the Borough." (Compl. ¶ 10, R.R. at 8a.) Mr. Shields averred that he " has sustained monetary damages equal to the amount of legal fees, which he would have earned as [s]olicitor . . . during the period from February 15, 2012 through the date [he] is reinstated as [s]olicitor." (Compl. ¶ 10, R.R. at 8a.) Mr. Shields requests an order immediately reinstating him as the Borough's solicitor, directing the Borough to pay him for the amount of legal fees he would have earned as solicitor from February 15, 2012, with interest and costs, and any other relief the trial court deemed appropriate. (Compl., Wherefore Clause, R.R. at 8a.)

The Borough filed POs to the Complaint, asserting four grounds on which to dismiss the Complaint with prejudice. The Borough demurred to the legal sufficiency of the Complaint based upon Section 1003 of the Code, formerly 53 P.S. § 46003, which authorized the Mayor to cast the tie-breaking vote. (POs ¶ ¶ 9-10, R.R. at 12a.) The Borough also challenged the legal sufficiency of the Complaint asserting that Mr. Shields did not aver the necessary requirements for mandamus relief. (POs ¶ ¶ 11-13, R.R. at 12a-13a.) The Borough further asserted that the Complaint was barred by laches because Mr. Shields waited almost twenty months to file the Complaint, thereby failing to exercise due diligence and mitigate his damages. (POs ¶ ¶ 14-18, R.R. at 13a.) Finally, the Borough objected to the legal sufficiency of the Complaint because it " incorrectly designated the 'Council of Borough of Braddock' as the Defendant" rather than the Borough itself. (POs ¶ ¶ 19-21, R.R. at 13a-14a.)

The parties filed briefs supporting their respective positions and, thereafter, the trial court issued its Order granting the Borough's POs in the nature of a demurrer and dismissing the Complaint with ...


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