Deer Creek Drainage Basin Authority v. County Bd. of Elections of Allegheny County

• Decision Date: 21 December 1977
• Citation: 475 Pa. 491,381 A.2d 103
• Parties: DEER CREEK DRAINAGE BASIN AUTHORITY, a Municipal Corporation, Township of West Deer, Pennsylvania, a Home Rule Municipal Corporation, and Township of Indiana, Pennsylvania, a Municipal Corporation, Petitioners, v. COUNTY BOARD OF ELECTIONS OF the COUNTY OF ALLEGHENY, James J. Flaherty, Thomas J. Foerster, and Robert N. Pierce, Jr., in their official capacity as Commissioners of the County of Allegheny and Ex-Officio members of the Board of Elections of Allegheny County, Respondents.
• Court: Pennsylvania Supreme Court

Page 103

381 A.2d 103

475 Pa. 491

DEER CREEK DRAINAGE BASIN AUTHORITY, a Municipal Corporation, Township of West Deer, Pennsylvania, a Home Rule Municipal Corporation, and Township of Indiana Pennsylvania, a Municipal Corporation, Petitioners, v. COUNTY BOARD OF ELECTIONS OF the COUNTY OF ALLEGHENY, James J. Flaherty, Thomas J. Foerster, and Robert N. Pierce, Jr. in their official capacity as Commissioners of the County of Allegheny and Ex-Officio members of the Board of Elections of Allegheny County, Respondents.

Supreme Court of Pennsylvania.

Argued Sept. 26, 1977.

Decided Nov. 1, 1977.

Dissenting Opinion Dec. 21, 1977.

[475 Pa. 493] Louis M. Tarasi, Solicitor for Deer Creek Drainage Basin Authority and Special

Counsel for the Townships of West Deer and Indiana, Pittsburgh, for petitioner

James H. McLean, Asst. County Sol., Martin W. Sheerer, Dillman, Sheerer & Schuchert, Pittsburgh, for respondents.

Maxine Woelfling, Asst. Atty. Gen., Harrisburg, David T. Buente, Pittsburgh, for amicus curiae.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

The voters of West Deer Township adopted a home rule charter in May, 1974. This charter, effective January, 1976, authorizes the voters of West Deer to reconsider by way of referendum election any enacted ordinance of the township. Under the charter, upon the filing with the Board of Elections of Allegheny County of a proper referendum petition, any ordinance which is the subject of such an election is suspended. The charter further provides that any ordinance rejected by the voters is automatically repealed.

On July 5, 1977, pursuant to the home rule charter, over 900 voters of West Deer filed with the County Board of Elections a petition calling for a referendum on whether Ordinance No. 100, ¹ which initiated the formation of the Deer Creek Drainage Basin Authority, should be repealed. In view of this petition, the Board of Elections plans to place the following question on the November 8, 1977 ballot:

"Shall Ordinance No. 100 of the Township of West Deer enacted October 10, 1974, providing for the establishment with the Township of Indiana of a joint authority known as the Deer Creek Drainage Basin Authority be repealed?"

On July 11, petitioners Deer Creek Drainage Basin Authority, West Deer Township, and Indiana Township petitioned this Court to prohibit respondents Board of Elections and the Allegheny County Commissioners from placing this question on the November ballot. ²

This case presents the issue of whether a municipality which is a member of a joint Authority can withdraw from that joint Authority by repealing the ordinance through which the municipality initiated the incorporation of that joint Authority. We hold that it cannot. We hold that the suspension and repeal of Ordinance No. 100 has no legal effect on the township's membership in the joint Authority, and therefore is not a proper subject for referendum. We therefore direct respondent Board of Elections to take all steps necessary to ensure that the question pertaining to the repeal of Ordinance No. 100 is not presented on the November 8, 1977 ballot. ³

I

Neither West Deer Township nor Indiana Township has a comprehensive sewage disposal system. Instead, sewage generated at various public buildings in these communities is conveyed to and treated at several sewage treatment plants; sewage generated at private residences is channeled into individual on-site facilities.

For the past several years, the Department of Environmental Resources and the Allegheny County Department of Health have been examining the manner in which West Deer and Indiana Townships process sewage. The agencies have concluded that at least fifteen of the small sewage treatment plants are poorly maintained and are discharging sewage into surface waters in violation of state and federal law. Additionally, the agencies have found that malfunctions at many of the on-site facilities are causing unlawful pollution of groundwater and unlawful discharge of raw sewage onto the surface of the ground throughout the area. The Department of Environmental Resources deems these deficiencies in sewage facilities a threat to the health and safety of the citizens of the affected areas, and by order dated August 29, 1977, has ordered both townships to correct these deficiencies.

In 1972, West Deer and Indiana Townships hired two consulting firms to study the sewage disposal needs of the townships. The firms concluded that the townships would benefit greatly if they worked together in dealing with their sewage problems. Accordingly, on October 21, 1974, West Deer Township and Indiana Township formed the Deer Creek Drainage Basin Authority, to which the Secretary of the Commonwealth has issued a certificate of incorporation. ⁴ The Authority is authorized to plan, construct, and operate facilities which will collect, transport, and treat sewage generated within the townships.

The sewage disposal plan developed by the Authority was submitted and approved by the Department of Environmental Resources in February, 1976. In March, 1976, the Department of Environmental Resources issued the Authority permits authorizing the construction and operation of the proposed facilities. To finance the project, the Authority obtained in May, 1976, a grant in excess of $12,000,000 from the Environmental Protection Agency.

II

The Municipal Authorities Act of 1945, Act of May 2, 1945, P.L. 382, §§ 1 et seq., as amended, 53 P.S. §§ 301-322 (1974 and Supp.1977), grants municipalities the power to organize joint municipal Authorities. Section 3 of the Act, 53 P.S. § 303, provides that the process begins when interested municipalities enact ordinances signifying their intention to organize an Authority. Official notices must then be published in both the legal periodical and a newspaper of general circulation in the county or counties in which the Authority is to be organized. Id.

Following this publication, the municipalities must file with the Secretary of the Commonwealth articles of incorporation and proof of publication of the required notices. Id. Section 3 provides that if the Secretary finds that the articles conform to the requirements set forth in the Act, the Secretary shall approve the articles and issue a certificate of incorporation. The statute provides that the corporate existence of the Authority begins only upon the issuance of such a certificate, and the certificate is conclusive evidence of the Authority's existence. ⁵

Section 3.1 of the Act, 53 P.S. § 304, provides that an incorporating municipality may withdraw from the incorporated Authority, but only with the Authority's consent. In no event, however, may a municipality withdraw after the Authority has incurred any obligation. Id. ⁶ Section 3.1 sets forth the method by which a municipality may withdraw:

"Any municipality wishing to withdraw from . . . an existing Authority shall signify its desire by resolution or ordinance. If the Authority shall by resolution express its consent to such withdrawal, . . . the municipal authorities of the withdrawing . . . municipality shall cause a notice of its resolution or ordinance to be published at least one time in the legal periodical of the county or counties in which the Authority is organized and at least one time in a newspaper published and of general circulation in such county or counties."

The statute further provides that the municipal authorities are to file with the Secretary of the Commonwealth an application to withdraw. If the Secretary finds that the application conforms to the terms of the Act, the Secretary is to issue a certificate of withdrawal. Withdrawal becomes effective upon the issuance of this certificate.

Both West Deer and Indiana Townships have, by enacting proper ordinances, initiated the incorporation process as prescribed by the Act. Official notices have been published, and the Secretary has issued a proper certificate of incorporation. The issuance of this certificate has completed the incorporation process, and has allowed the joint Authority to begin its work. Despite this compliance with the Municipal Authorities Act by West Deer Township and Indiana Township, and despite the willingness of petitioners, including Indiana Township, to proceed with this sewage project, a portion of the voters of West Deer, through a home rule charter provision, seek a referendum election on whether the ordinance authorizing the participation of West Deer in the Deer Creek Drainage Basin Authority should be repealed.

Such a referendum has no legal effect, however. Ordinance No. 100 was only the first step in the incorporation process. West Deer Creek Ordinance No. 100 by itself does not give the joint Authority the power to carry out the sewage disposal objectives of both townships; the capacity to carry out these functions derives from the certificate of incorporation. See Whitemarsh Twp. Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964); Simon Appeal, 408 Pa. 464, 184 A.2d 695 (1962); Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289 (1934). Once the joint Authority has been incorporated and West Deer Township has become a member, Ordinance No. 100 has served its initiating function and has no further legal significance. An attempted repeal of Ordinance No. 100 does not alter the township's membership in the joint Authority. Withdrawal proceedings may be initiated only under the procedure set forth in Section 3.1 of the Municipal Authorities Act of 1945, 53 P.S. § 304.

Nor can the attempted repeal and suspension of Ordinance No. 100 be viewed as compliance with the statutorily prescribed procedures for withdrawing from the joint Authority. Those proceedings, by the terms of Section 3.1 of the Municipal Authorities Act, may only begin when a municipality "signif(ies) its desire (to withdraw) by resolution or...