DiGiacinto v. City of Allentown

• Decision Date: 01 October 1979
• Citation: 486 Pa. 436,406 A.2d 520
• Parties: R. Henry DiGIACINTO, Appellant, v. CITY OF ALLENTOWN, Pennsylvania, and Alton W. Frey, Jr., Appellees.
• Court: Pennsylvania Supreme Court

Page 520

406 A.2d 520

486 Pa. 436

R. Henry DiGIACINTO, Appellant, v. CITY OF ALLENTOWN, Pennsylvania, and Alton W. Frey, Jr., Appellees.

Supreme Court of Pennsylvania.

Argued April 17, 1979.

Decided Oct. 1, 1979.

[486 Pa. 438] James C. Lanshe, Jr., Allentown, for appellant.

Daniel K. McCarthy, Asst. City Sol., William C. Wickkiser, Allentown, for appellees.

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

OPINION

MANDERINO, Justice.

The question in this appeal is whether the appellant, R. Henry DiGiacinto, is entitled to be certified as an elected member of the City Council of the City of Allentown.

The underlying facts are not in dispute. On September 30, 1978, a vacancy was created on the Allentown City Council when one of its members resigned. Two weeks later, on October 16, 1978, the remaining six members of the seven member council convened to elect a person to the vacancy. Appellant was nominated for the vacancy. A resolution proposing appellant as a member of city council was voted upon with three votes for appellant, two against him, and one abstention. One of the appellees, Alton W. Frey, as the president of city council, refused to certify that appellant had been elected. Frey ruled that, four affirmative votes, a majority of the total membership of city council, were necessary for election not three votes.

On October 25, 1978, appellant filed a mandamus action against appellee Frey and appellee, the City of Allentown, in the Court of Common Pleas, Lehigh County, seeking certification of the election results. Preliminary objections were filed by appellees in the form of a demurrer. The trial court sustained appellees' preliminary objections and dismissed appellant's complaint for mandamus. This direct appeal followed. Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(2).

In determining the number of votes necessary for a deliberative body to take official action, Pennsylvania follows the common law rule. Stoltz v. McConnon, 473 Pa. 157, 373 A.2d 1096 (1977); Munce v. O'Hara, 340 Pa. 209, 16 A.2d 532 (1940); See also Commonwealth of Pennsylvania ex rel. Zimmerman v. Kleiman, --- Pa. ---, 402 A.2d 1343 (1979); Federal Trade Commission v. Flotill Products, 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (1967).

Under the common law rule so long as a quorum is present at a meeting, all that is required is that the highest vote be equal to a majority of the quorum number, even though the highest vote constitutes only a plurality of all the legal votes cast. This is true even if more than the quorum number is present at the meeting. For example, if there are seven members of a body and four of those members constitute a quorum and attend a meeting, a majority of the four, which would be three, is necessary to take official action of any kind. Even if all seven members, more than the necessary quorum of four, attend the meeting, the same number of votes, namely three, is all that is necessary to take official action if that is the highest number of votes cast (plurality) in a given matter. Thus, if the minimum quorum of four is present, and the vote on a particular proposal is 3 in favor and 1 against, the proposal is adopted. If all seven members of the body attend and the vote on a particular proposal is 3 in favor, 1 against and 3 abstentions, the proposal is likewise adopted by the plurality vote. Cf. United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892) (statute lawfully enacted where vote in House of Representatives was 138 yeas, 0 nays, and 189 not voting). Under this common law rule, in a seven-person body, the highest number of votes necessary to take official action is not dependent upon the fortuity of whether 4, 5, 6, or 7 members choose to attend the meeting so long as the minimum quorum number is present. If the rule were otherwise, a member could attend the meeting and abstain from voting and have a different effect than if that person were absent from the meeting. The common law rule does not permit a member to attend and abstain from voting and yet demand that the highest number of votes required to take official action be more than if that member had been absent. This Court has previously observed that a member who attends a meeting and abstains can have the same paralytic effect as one who is absent:

"(O)ne or a relatively few persons could, by their intentional absence from, or by their presence at a meeting and their failure to vote, or their casting a blank or illegal ballot, block indefinitely an important election or important legislation and thus paralyze government with obviously great harm to the public interest."

Meixell v. Borough Council of Borough of Hellertown, 370 Pa. 420, 425, 88 A.2d 594, 596.

The regular quorum requirement which has been established by the legislature is four of the seven members, a majority of the whole number of members of council. See 53 P.S. § 41607(a). Since six members were present at the meeting more than the quorum number attended. Three voted for the appellant, two voted against the appellant, and one member abstained. Appellant received the highest number of votes cast (plurality) and the number he received was equal to the majority vote of the quorum number which is three since the quorum is four. Thus, under the common law rule appellant was duly elected as a member of city council.

Appellees point out, however, that the common law rule can be altered by statute and contend that the legislature has abrogated the common law rule as to the matter before us by its enactment of 53 P.S. § 41406(a) (Supp.1978-1979) of the Optional Third Class City Law. Although we agree with the appellees that the common law rule can be abrogated by statute, Stoltz v. McConnon, 473 Pa. 157, 373 A.2d 1096 (1977), we do not agree with the appellees that that was done in the section of the law relied on. 53 P.S. § 41406(a) (Supp.1978-1979) of the Optional Third Class City Charter Law provides as follows:

" § 41406. Vacancies

(a) If a vacancy exists in the city council, the city council shall, by a majority of its remaining members, fill such vacancy, within thirty days thereafter, by electing a qualified person to serve until that first Monday of January when his successor who shall have been elected by the qualified electors at the next municipal election, occurring at least thirty days after such vacancy exists, is duly sworn into office for the remainder of the term of the person originally elected to said office.

In case vacancies should exist whereby the offices of a majority or more members of the city council become vacant, the remaining members shall fill such vacancies, one at a time, giving each new appointee such reasonable notice of his appointment as will enable him to meet and act with the then qualified member or members of the city council in making further appointments until a bare majority of members of city council have been qualified, whereupon the said members shall fill the remaining...