Pilchesky v. Lackawanna Cnty.
| Decision Date | 26 March 2014 |
| Docket Number | No. 40 MAP 2013.,40 MAP 2013. |
| Citation | 88 A.3d 954 |
| Parties | Joseph PILCHESKY, Appellant v. LACKAWANNA COUNTY, Lackawanna County Commissioners, Corey O'Brien, James Wansacz and Patrick O'Malley, Appellees. |
| Court | Pennsylvania Supreme Court |
OPINION TEXT STARTS HERE
Kathleen Marie Kotula, Esq., PA Department of State, for Bureau of Elections, Participants.
John Ralph Williams, Jr., Esq., Minora, Minora, Colbassani, Krowiak & Mattioli, Scranton, for Lackawanna County Election Bureau, Participants.
Joseph Pilchesky, pro se.
Donald J. Frederickson, Jr., Esq., for Lackawanna County, Appellee.
Joseph A. O'Brien, Esq., Oliver Price & Rhodes, Clarks Summit, for Corey O'Brien, James Wansacz and Patrick O'Malley, Appellees.
OPINION
This appeal questions whether county commissioners may place an ordinance-generated referendum question on the primary election ballot seeking to amend a home rule charter pursuant to 53 Pa.C.S. § 2941 without first seeking election of a government study commission under 53 Pa.C.S. § 2911 when the question adopted by the ordinance attempts to abolish certain elected row offices.
Lackawanna County is a third class county originally organized under the Commonwealth of Pennsylvania's “The County Code.” 16 P.S. § 101, et seq. The Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2901 et seq. (hereinafter “the Home Rule Law”) authorizes counties to utilize home rule charters 1 to establish a local government framework. Article 9, Section 2 of the Pennsylvania constitution provides that municipalities shall have the right and power to frame and adopt home rule charters, and a municipality which has a home rule charter may exercise any power or perform any function not denied by the constitution, by its home rule charter, or by the General Assembly. PA. CONST. art. 9, § 2.
On January 3, 1977, Lackawanna County enacted the Lackawanna County Home Rule Charter (hereinafter “the Charter”). See335 PA. CODE § 1.17–1702 (1977) (). Section 1.2–201 of the Charter identifies elected officers of the County as including the Sheriff, Clerk of Judicial Records, Recorder of Deeds, and Register of Wills. 335 PA. CODE § 1.2–201(e)–(h) (1977). Sections 1.7–702–1.10–1002 enumerate the powers and responsibilities of these four positions respectively. 335 PA. CODE §§ 1.7–702(a)–(f), 1.8–802, 1.9–902, and 1.10–1002 (1977). Section 1.6 of the Charter directs that it may be amended in conformity with the provisions of the Home Rule Law. 335 PA. CODE § 1.16–1609 (1977).
On January 23, 2013, the Lackawanna County Board of Commissioners (hereinafter “the Commissioners”) held the first reading of Ordinance 13–0019 (hereinafter “Ordinance 224”) whereby they sought to direct that a referendum question be placed on the May 21, 2013, municipal primary election ballot proposing to abolish the elected offices of Sheriff, Clerk of Judicial Records, Recorder of Deeds and Register of Wills, and to redefine the duties that had been assigned to those positions as legislative powers under § 1.3–302 of the Charter.2 The revised Charter also would contain a new Section 1.2–201 which would eliminate the four officers from the list of elected officers of the County and repeal Sections 1.7–701, 1.7–702, 1.8–801, 1.8–802, 1.9–901, 1.9–902, 1.10–1001, and 1.10–1002 which together regulate the election, powers and duties of those officers. Under the Commissioners' proposal, the office of Sheriff would become an appointed position, and Ordinance 224 also sought to change Section 1.3–302 of the Charter entitled “Powers and Duties” of the Commissioners, to include additional subparagraphs (v) and (w) which would read:
(v) to appoint a sheriff, who shall retain and exercise those powers granted by the General Laws of the Commonwealth of Pennsylvania for those counties whose population is most equal to that of Lackawanna County. The sheriff shall have the power to collect all fines and penalties for violation of county ordinances and the transmittal of those monies to the County Treasurer, provide security for County property and personnel and to perform all other duties as may be directed by the Board of Commissioners from time to time; and
(w) to exercise all powers, functions and duties previously assigned by law to the Clerk of Judicial Records, Recorder of Deeds and Register of Wills under this Charter and the General Laws of the Commonwealth of Pennsylvania for those counties whose population is most equal of that of Lackawanna County.
On February 5, 2013, at a regular public meeting, the Commissioners adopted Ordinance 224.3 In light of the fact that the ballot question related to proposed amendments to the Charter, on February 7, 2013, President Judge Thomas J. Munley of the Lackawanna County Court of Common Pleas appointed himself along with two other judges of the same court, Judges Terrence R. Nealon and Vito P. Geroulo, to serve as the Lackawanna County Board of Elections.
Thereafter, on February 11, 2013, Appellant Joseph Pilchesky (hereinafter “Pilchesky”) filed a pro se petition requesting that the trial court strike the ballot question or, in the alternative, that the Board of Elections separate the single ballot question into four queries, one for each of the offices to be abolished. In his petition, Pilchesky also asserted that Ordinance 224 directs a ballot question that proposes a change in the form of government rather than an amendment to the Charter and that such a change can be effected only by petition or ordinance seeking election of a government study commission 4 under 53 Pa.C.S. § 2911.5
Following a hearing and argument held on March 15, 2013, the trial court denied the challenge seeking to bar Ordinance 224 from appearing on the primary ballot. Notwithstanding, after finding that in its proposed “all or nothing form” the referendum question authorized by Ordinance 224 did not permit voters to accept or reject individually the elimination of the row officers and the transfer of their powers and duties to the Commissioners, especially in light of the fact that the offices had been elected for over 134 years, the trial court, exercising its discretion in its capacity as the Board of Elections, granted Pilchesky's petition to the extent it sought to have the referendum question submitted to the electorate as four, separate inquiries. See Memorandum and Order, filed 3/15/13 at 61–62. In doing so, the trial court found authority exists to support a finding that an amendment to a home rule charter to eliminate the office of Register of Wills and to appoint the formerly elected Sheriff constitutes a change in the form of government. Memorandum and Order, filed 3/15/13 at 29–30. Nevertheless, the trial court rejected Pilchesky's argument that the changes to the existing form of government proffered by Ordinance 224 can be accomplished only following an analysis by a government study commission in light of 53 Pa.C.S. § 2911(a).
The trial court reasoned that 53 Pa.C.S. § 2911 is contained in Subchapter B of the Home Rule Law which is entitled “Procedure for Adoption of Home Rule Charter or Optional Plan of Government.” It explained that Section 2911 provides for the submission of a referendum question for the election of a government study commission to review the existing form of municipal government and thereafter recommend or not recommend the adoption of a home rule charter or an optional plan of government. See53 Pa.C.S. § 2911(a). Once the government study commission has conducted hearings and completed its review, it is required to issue a report expounding upon its recommendation as to whether the existing form of government should remain unchanged or whether a referendum question should be submitted to the electorate to adopt a home rule charter or one of the optional plans of government. See53 Pa.C.S. §§ 2921–2925. The trial court stressed that, to the contrary, Subchapter C of the Home Rule Law entitled “Amendment of Existing Charter or Optional Plan” governs amendments to an existing home rule charter and authorizes an amendment thereto by way of a referendum question pursuant to either an ordinance of the governing body or by the initiative procedure based upon a petition of the electors. 53 Pa.C.S. §§ 2941–2942.6 The trial court concluded that as §§ 2943 and 2944 7 of Subchapter C prescribe the time and manner of effecting the aforementioned process, and neither section refers to a government study commission, a home rule charter municipality may amend its existing form of government via an ordinance-generated referendum question without the necessity of first seeking the election of a government study commission. Memorandum and Order, filed 3/15/13 at 33–34 citing In re Petition for Agenda Initiative, 821 A.2d 203, 207 (Pa.Cmwlth.2003), abrogated on other grounds by, In re Stevenson, 615 Pa. 50, 40 A.3d 1212 (2012). The trial court further reasoned as follows:
‘The maxim expressio unius est exclusio alterius provides that the inclusion of a specific matter in a statutory provision implies the exclusion of others.’ Sawink, Inc. v. Philadelphia Parking Authority, 34 A.3d 926, 930 (Pa.Cmwlth.2012), aff'd 57 A.3d 644 (Pa.2012). The inclusion of certain matters, to wit, the study of and recommendation to adopt a home rule charter or an optional plan of government, in 53 Pa.C.S. § 2911 implies the exclusion of other governmental actions, such as the amendment of a home rule charter to abolish particular municipal offices and to alter the procedure for selecting a municipal officer. As a result of the exclusion of home rule charter amendments from Section 2911 and Subchapter B of the HRC & OPL, the Board of Commissioners may secure the changes proposed by Ordinance # 224 without the need for a government study commission.12
12. By expressly stating that the County Commissioners do not have the...
To continue reading
Request your trial
-
Selective Way Ins. Co. v. Hospitality Grp. Servs., Inc.
...Action. The mootness doctrine requires that there is an actual case or controversy at all stages of review. Pilchesky v. Lackawanna Cnty., 624 Pa. 633, 88 A.3d 954, 964 (2014). “[A]n issue may become moot during the pendency of an appeal due to an intervening change in the facts of the case......
-
Seaman v. Colvin, CIVIL ACTION NO. 13–6479
...419 Pa. 52, 213 A.2d 277, 282 (1965) ). Rather, courts must “listen attentively to what it does not say.” Pilchesky v. Lackawanna Cnty. , 624 Pa. 633, 88 A.3d 954, 965 (2014) (citations omitted). In attempting to predict how the highest state court would rule, “decisions of state intermedia......
-
Bensinger v. Univ. of Pittsburgh Med. Ctr. T/A/
...and constitutionalinterpretation, our standard of review is de novo and our scope of review is plenary. Pilchesky v. Lackawanna Cnty., ––– Pa. ––––, 88 A.3d 954, 965 (2014); see Buckwalter v. Borough of Phoenixville, 603 Pa. 534, 985 A.2d 728, 730 (2009). As we attempt to avoid ruling on co......
-
In re Mlinarich
...it is important to consider both what the General Assembly says and does not say. Pilchesky v. Lackawanna County , 624 Pa. 633, 88 A.3d 954, 965 (2014). Considering this principle, we are mindful that when the General Assembly changed the time period in Section 1231(b) to 15 days, it did no......