In re District Attorney

• Decision Date: 17 July 2000
• Citation: 756 A.2d 711
• Parties: In re Appointment of DISTRICT ATTORNEY. Appeal of Board of Elections of Lackawanna County and County Commissioners of Lackawanna County.
• Court: Pennsylvania Commonwealth Court

756 A.2d 711

In re Appointment of DISTRICT ATTORNEY.

Appeal of Board of Elections of Lackawanna County and County Commissioners of Lackawanna County.

Commonwealth Court of Pennsylvania.

Argued March 8, 2000.

Decided July 17, 2000.

As Amended July 20, 2000.

Joseph A. O'Brien, Scranton, for appellants.

Brian J. Cali, Dunmore, for appellee, Lackawanna County Republican Party.

Bradley K. Moss, Philadelphia, for appellee, Andrew Jarbola.

Before DOYLE, President Judge, COLINS, J., McGINLEY, J., SMITH, J., PELLEGRINI, J., FLAHERTY, J., and LEADBETTER, J.

McGINLEY, Judge.

The Lackawanna County Commissioners (Commissioners) and the Lackawanna County Board of Elections (Board of Elections) seek review of the appointment of Andrew J. Jarbola, Esquire (Jarbola) as district attorney by the Court of Common Pleas of Lackawanna County (common pleas court) for the remainder of the term of the former district attorney, Michael J. Barrasse, Esquire (Barrasse), which expires on December 31, 2001.

On November 2, 1999, Barrasse, Lackawanna County's district attorney, was elected to the common pleas court. On January 3, 2000, Barrasse resigned as district attorney and assumed the office of Judge. In accordance with Section 206(b) of the Lackawanna County Home Rule Charter (Lackawanna Charter), the Lackawanna County Republican Party (Republican Party) submitted a list of three individuals to the common pleas court to fill the vacancy in the office of district attorney. 335 Pa.Code § 1.2-206(b). On January 11, 2000, the Commissioners scheduled a special election for April 4, 2000¹ to fill the vacancy.

On January 18, 2000, the common pleas court appointed Jarbola as district attorney for the remainder of Barrasse's term, which expires on December 31, 2001. On January 18, 2000, the Republican Party requested an injunction and declaratory relief against the Commissioners and the Board of Elections. In particular, the Republican Party requested the common pleas court to enjoin the Board of Elections from holding a special election on April 4, 2000, and thereby avoid any violation of the Pennsylvania County Code² and the Pennsylvania Election Code.³

On January 25, 2000, the Commissioners and the Board of Elections appealed to the Commonwealth Court the January 18, 2000, appointment and challenged Jarbola's appointed term. The Commissioners and the Board of Elections received an expedited argument before the Court en banc. On February 14, 2000, the Commissioners and the Board of Elections rescheduled the special election for November 2, 2000,⁴ during the general election.⁵

On appeal,⁶ the Commissioners and the Board of Elections contend that the common pleas court lacked the authority to appoint Jarbola for the remainder of Barrasse's term,⁷ pursuant to Section 1404 of the County Code (Section 1404), 16 P.S. § 1404.

Our analysis begins with the statutory framework set forth at Section 1404:

If any vacancy shall occur in the office of district attorney, either by death, resignation, removal from office or from the county, or otherwise, the judges of the court of common pleas shall supply such vacancy by the appointment of a competent person to fill the office during the balance of the unexpired term. (emphasis added).

16 P.S. § 1404. In addition, Section 602 of the Election Code mandates that county officers⁸ be elected at municipal elections held in odd-numbered years. 25 P.S. § 2752.

These statutory provisions directly conflict with Sections 206(b) and (c) of the Lackawanna Charter which provide:

(b) If a vacancy occurs, the executive committee of the political party of the person elected to the office in question shall submit a list of three persons to the judges of the court and bank [sic] within five (5) days of the vacancy. The court shall appoint one of the three (3) persons recommended to temporarily fill the vacancy.

(c) A special election according to the Laws of the Commonwealth of Pennsylvania shall be held at the next primary municipal or general election to permanently fill the vacancy.

335 Pa.Code § 1.2-206(b) and (c).⁹

The Commissioners and the Board of Elections contend that, despite the conflict, the Lackawanna Charter supersedes state law. The Commissioners and the Board of Elections assert that the General Assembly has not precluded a county from enacting a home rule charter at variance with state law.

However, the Pennsylvania Constitution is of paramount importance and must control. Pursuant to Article IX, Section 1 of the Pennsylvania Constitution, the general law pertaining to local government "shall be uniform as to all classes of local government regarding procedural matters." Article IX, Section 2 of the Pennsylvania Constitution provides that "[a] municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time."

The Home Rule Charter and Optional Plans Law, (HRC & OPL), 53 Pa.C.S. §§ 2901-3171, authorized counties to utilize home rule charters to establish a local government framework. Section 2962 of the HRC & OPL pertains to limitation of municipal powers. Specifically, a municipality is prohibited from exercising "powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth." 53 Pa.C.S. § 2962(c)(2). Additionally, uniform statutes "applicable in every part of this Commonwealth shall remain in effect and shall not be changed.... Statutes shall supersede any municipal ordinance ... on the same subject." 53 Pa.C.S. § 2962(e).

Our Pennsylvania Supreme Court has treated the removal of a city employee as a municipal matter controlled by the charter. In re Addison, 385 Pa. 48, 122 A.2d 272 (1956). The Court reasoned that the administration of Philadelphia's civil service had no bearing upon Pennsylvania residents outside of the Philadelphia area. In re Addison, 385 Pa. at 56, 122 A.2d at 275. On the other hand, a statute may negate a home rule charter when the conflict involves a matter of statewide magnitude, such as the regulation of firearms. Ortiz v. Commonwealth of Pennsylvania, 545 Pa. 279, 681 A.2d 152 (1996).

In the present controversy, the Republican Party argues that the district attorney represents the Commonwealth's interests in criminal cases, and there must be uniformity throughout Pennsylvania regarding guidelines on how vacancies are filled for this elected position.

Our Pennsylvania Supreme Court addressed a similar issue in Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962). Therein, Richardson Dilworth (Dilworth) was elected mayor of Philadelphia in November 1959. Dilworth's four-year term began on the first Monday of January 1960, and was scheduled to end on the first Monday of January 1964. Dilworth resigned on February 12, 1962. Pursuant to the Philadelphia Home Rule Charter (PHRC) a vacancy in a mayor's unexpired term was to be filled during the next municipal or general election. As a result, the city solicitor suggested that a primary election be held in 1962 to nominate a candidate for the vacancy. Anita Cali and James Burns sought to enjoin the City of Philadelphia from conducting the primary and the Court of Common Pleas of Philadelphia County agreed. The question for the Pennsylvania Supreme Court was whether the PHRC or the Election Code¹⁰ controlled.

Our Supreme Court reasoned that the home rule charter must not violate "the Constitution of the United States, or the Constitution of Pennsylvania, or the Enabling Act of 1949, or the Election Code...." Cali, 406 Pa. at 306, 177 A.2d at 832. Additionally, our Supreme Court stated:

It is unnecessary to decide whether the election of a Mayor of Philadelphia is of State-wide [sic] concern or purely a local matter which is of no concern to citizens of Pennsylvania at large. It will suffice to say that the Charter is subordinate to the Enabling Act, and if they conflict the Enabling Act takes precedence and prevails.

Id. at 312, 177 A.2d at 835.

Like in Cali, the County Code and the Election Code are of statewide importance. It is of no concern that the district attorney is a local county office which may or may not have powers of statewide impact.¹¹ The County Code and the Election Code take precedence over the Lackawanna Charter. We must conclude that the common pleas court had the authority to appoint Jarbola as district attorney for Barrasse's unexpired term.¹²

Accordingly, we affirm.

ORDER

AND NOW, this 17th day of July, 2000, the order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is affirmed.

LEADBETTER, Judge, concurring.

I concur in the result reached by the majority and its analysis of the merits in this case. I write separately because I believe that the administrative order entered by the court of common pleas may not be reviewed in our appellate jurisdiction. The order appealed here serves not to adjudicate questions of fact or issues of law, but instead directs the appointment of Andrew Jarbola to fill the vacancy in the office of district attorney. Since there were no adversary proceedings below, the legal issue which appellants seek to raise here cannot have been brought to the attention of the common pleas court, let alone addressed by it.

Even a cursory examination of the rules of appellate procedure reflects numerous provisions inconsistent with the concept of direct review of non-adjudicatory, administrative orders.¹³ More fundamentally, the essence of appellate review is the examination of the record below in order to evaluate claims of error. Where there have been no proceedings of record below, no fact-finding and no opinion in support of the order, it will be impossible in most cases to undertake meaningful review. Indeed, as the majority notes at footnote 6, "This court's review is limited to a determination of whether the trial court...