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In re Petition to Submit Ballot Question to Concord Twp. Voters

Supreme Court of Pennsylvania

July 20, 2015

IN RE: PETITION TO SUBMIT BALLOT QUESTION TO CONCORD TOWNSHIP VOTERS, DELAWARE COUNTY BOARD OF ELECTIONS, Intervenor, APPEAL OF: COLETTE BROWN

Submitted: November 21, 2014.

Appeal from the order of Commonwealth Court at No. 1426 CD 2014 dated September 26, 2014 Affirming the order of the Delaware County Court of Common Pleas, Civil Division, at No. 2014-06512 dated August 14, 2014. Appeal allowed October 17, 2014 at 724 MAL 2014. Trial Court Judge: James F. Proud, Judge. Intermediate Court Judges: Dan Pellegrini, President Judge, Bonnie Brigance Leadbetter, Robert E. Simpson, JJ.

For Delaware County Board of Elections, INTERVENOR: Francis John Catania, Esq., Delaware County Solicitor's Office.

For Bureau of Elections, Department of State, PARTICIPANTS: Kathleen Marie Kotula, Esq., Pennsylvania Department of State.

For Concord First, PARTICIPANTS: Concord First, Pro Se.

For Collette Brown, APPELLANT: Collette Brown, Pro Se.

For Concord Township, APPELLEE: Hugh Augustine Donaghue, Esq., Delaware County Solicitor's Office; Hugh A. Donahue, Esq.

For Josephine Albino, Augustine Albino, Patricia Ausman, Christina Lambert, APPELLEES: Raymond J. Falzone Jr., Esq., Falzone Law Offices.

For Concord Twp Gov Study Commission & Commissioners-Elect, et al., APPELLEE AMICUS CURIAE: John Michael Sheridan, Esq.

BEFORE: MR. JUSTICE STEVENS. SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ. Messrs. Justice Eakin and Baer join the opinion. Mr. Chief Justice Saylor files a dissenting opinion in which Madame Justice Todd joined.

OPINION

Page 336

MR. STEVENS, JUSTICE

Collette Brown,[1] a Concord Township, Delaware County resident (" Appellant" ), appeals the Commonwealth Court's order affirming the trial court's dismissal of her petition to place, on the November 2014 ballot, a referendum question seeking to change the Township's governmental status from second-class to first-class. For the following reasons, we reverse the order of the Commonwealth Court and remand to the trial court for further proceedings, consistent with this opinion.

The following issue of first impression has been presented before this Court:

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Does 53 P.S. § 55207 restrict granting of a registered voter petition to submit to voters of the subject township, a ballot question for reclassification to First Class, to the first municipal or general election at least ninety days after only the ascertainment of the minimum population density specified in the statute of three hundred inhabitants per square mile, or does 53 P.S. § 55207 require submission of the ballot question to voters of the subject township at the first municipal or general election at least ninety days after both the ascertainment of minimum population density and after a petition signed by five per centum of the registered voter of the township is filed with the court?

I. Background

On July 28, 2014, pursuant to 53 P.S. § 55207, Appellant filed a petition with the Delaware County Court of Common Pleas, seeking to place the referendum question " Should Concord Township become a Township of the First Class?" on the November 2014 ballot. The petition contained 994 signatures (8.5%) out of the Township's 11,640 registered voters and claimed that as of the 2010 census, the Township had a population density of around 1,258 inhabitants per square mile (" IPSM" ). As stated, both figures easily exceeded the statutory thresholds of 300 IPSM and 5% registered voter signatures, which Appellant believed operated as conjunctive preconditions.[2]

On August 6, 2014, seven named qualified electors (" Appellees" ) filed objections and claimed the petition was substantively and procedurally defective under the statute, which they argued was time-limited to the first municipal or general election occurring at least ninety days after the 2010 census. That same day, the Delaware County Bureau of Elections (" Intervenor" ) filed a petition to intervene and a request for declaratory relief, claiming that in addition to not satisfying the statutory requirements, the petition should be dismissed because a home rule study referendum question was already on the ballot (which voters later approved), and that if Appellant's referendum question were successful, the subsequent change in Township government could violate the Pennsylvania Constitution.

The Delaware County Court of Common Pleas denied the petition on August 14, 2014. The trial court read 53 P.S. § 55207 to restrict second- to first-class township referendum questions to the first municipal or general election occurring at least ninety days after the township's population density has been formally ascertained at 300 or more IPSM,[3] as long as a petition has been signed by at least 5% of the

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township's registered voters. Noting that the last United States census was tallied in 2010 and presented to the Commonwealth in 2011, and that the first municipal and general elections occurring at least ninety days after respectively took place in 2012 and 2013, the trial court concluded that the petition failed to meet the statutory requirements.

A Commonwealth Court panel affirmed in a unanimous published opinion on September 26, 2014. See In re Petition to Submit Ballot Question to Concord Tp. Voters, 100 A.3d 765 (Pa.Cmwlth. 2014) (hereinafter " In re Petition" ). Contrary to Appellant's argument that the " first . . . election occurring at least ninety days after" language applies to both the population density and petition signature filing requirements as simultaneous prerequisites, the Commonwealth Court found that:

" [F]irst 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. The time limitation would be entirely eviscerated if the [appellants] could extend it by waiting several years to file their petition with the court.

In re Petition, 100 A.3d at 767.

The Commonwealth Court also noted that the original statute, enacted in 1931, did not require (or even allow for) petition signatures. Instead, the referendum question was automatically added to the next ballot occurring at least ninety days after the formal ascertainment of a second-class township's population density at 300 or more IPSM.[4] The Commonwealth Court accordingly found that the petition signature filing requirement, added to the statute in 1941, was not intended to change the ninety-day time limitation, which would otherwise frustrate its purpose.[5]

Appellant filed a timely petition for allowance of appeal, and on October 17, 2014, we granted allocatur to address the issue as stated supra. On November 17, 2014, the Concord Township Government Study Commission (" Commission" ), composed of seven named commissioners-elect

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(" Commissioners-Elect" ) who, pursuant to the Home Rule Charter and Optional Plans Law, 53 P.S. § 2911 et seq., were elected in November 2014 to form the Commission (together " Amici" ), filed an amicus brief, sought intervenor status, and requested an enlargement in the briefing schedule. We denied Amici's application to intervene and for enlargement of briefing schedule on December 31, 2014.

II. Discussion

A. Arguments of the Parties


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