Kline v. Fawkes

51 Pa. D. & C.2d 467, 1970 Pa. Dist. & Cnty. Dec. LEXIS 310
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedNovember 12, 1970
Docketno. 1115
StatusPublished

This text of 51 Pa. D. & C.2d 467 (Kline v. Fawkes) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kline v. Fawkes, 51 Pa. D. & C.2d 467, 1970 Pa. Dist. & Cnty. Dec. LEXIS 310 (Pa. Super. Ct. 1970).

Opinion

GARB, J.,

This is an action in quo warranto which is but a sequel to Fawkes v. Kline, 20 Bucks 87 (1970). Both cases arise out of the allegedly abortive attempts of the Board of Township Commissioners, Bristol Township, Bucks County, Pa., a first class township, to reorganize as man[468]*468dated by the First Class Township Code of May 29, 1968, (Act no. 69) sec. 1, 53 PS §55701, which organization was to occur on the first Monday of January 1970. As indicated in the foregoing opinion of this court, the said reorganization failed to materialize on the said first Monday of January 1970, although attempt was apparently made thereof, as the result of which the incumbent president, Harry W. Fawkes, and the incumbent vice president, Aurelio L. Cerasoli, having continued in office as township commissioners, continued to hold their respective offices. As indicated in the former opinion of this court, five of the 10 members of the said board of commissioners convened the following night and purported to reorganize which, as we held, was not effective. Notwithstanding the failure of the board to reorganize on the first Monday, they did not adjourn their meeting from day to day. Following the purported reorganization by the five members of the board on the day following the first Monday of January 1970, defendants herein instituted an action in equity to restrain the allegedly newly elected officers from acting in their purported capacities. A hearing was held on the action in equity, resulting in an agreement on both sides that the allegedly elected officers at the so-called reorganization meeting refrain from assuming to exercise the prerogatives of such offices, without prejudice, for a period of 60 days while the incumbents continue to act and while the parties attempt to reconcile their differences so that the board could be effectually reorganized. As the result of our foregoing opinion in the first action in quo warranto, the action in equity has been rendered moot.

On March 18, 1970, the regular meeting of the board was convened in the meeting hall of the Bristol [469]*469Township Municipal Building, at which time all 10 members of the board were present. This was the first meeting of the said board after the termination of the 60-day period agreed upon by stipulation of the parties at the equity hearing heretofore mentioned. The meeting was convened, as was the usual practice for this board, with a prepared agenda. During the course of the meeting and while still disposing of the business specifically set forth on the prepared agenda, one of the members of the board either moved by motion or requested that the board proceed to reorganize. Defendant Fawkes, who was then the presiding officer, ruled that this motion was out of order and the board proceeded with the rest of the business specifically enumerated on the agenda.1 Pursuant to the usual procedure of the board, the last item of business at the meeting was that portion generally called “good and welfare” or “good of the township.” During this portion of the meeting, each member of the board in the order in which he is seated has the opportunity to bring before the board any matters of interest to the township which were not specifically placed upon the agenda. During this portion of the meeting, at least two or perhaps three of the commissioners moved by motion or requested that the board reorganize. In each instance, defendant Fawkes declared the motion or suggestion out of order and refused to consider same. After each commissioner had stated his business or passed, defendant Fawkes declared the meeting adjourned without any motion to do so or vote taken. Plaintiff Kline objected thereto, but upon [470]*470a ruling by the solicitor, acting as parliamentarian, was overruled. Thereupon, Kline declared that the meeting was not adjourned and that the board would then proceed to reorganize. Kline declared nominations open for the office of president and he was nominated and duly seconded. There being no other nominations, each member of the board was polled and five members voted for Kline2 and the other five did not vote.3 Kline then declared nominations open for vice president, at which time Kehoe was nominated and seconded. There being no other nominations forthcoming, the same procedure followed, there being five votes for and none against Kehoe. The same procedure followed for the purpose of election of secretary and solicitor with Commissioner Reinholt being thereupon elected secretary and Leonard Sokolove, Esq., thereupon being elected solicitor. During the entire foregoing portion of the proceedings, all 10 members of the board remained in their seats with defendant Fawkes objecting by stating that it was not a meeting because the meeting had been adjourned.

Based upon the foregoing alleged election, plaintiffs herein, being those persons allegedly elected to the offices of president, vice president and secretary, respectively, assert that the board has been reorganized and they have been elected to their offices. Defendants, being incumbent officers from the immediately preceding board, assert that it was not a valid reorganization inasmuch as the meeting had been adjourned. As stated in our preceding opinion and the cases cited therein, this being a dispute concerned with the question of the right to hold office, quo warranto is the correct procedural remedy.

[471]*471We are, in effect, asked to assume the position of parliamentarian ex post facto for the Bristol Township Board of Commissioners. While we do not relish this task, we recognize that it is our duty to construe the actions taken to determine whether the mandate of the First Class Township Code has been complied with in order to determine whether the duly elected township commissioners have properly discharged their public function. If at the time the foregoing alleged election was held the board was in the process of a judicially recognizable meeting, then we have no difficulty in determining that plaintiffs herein have been duly elected. While admittedly each received only five votes from the 10 members then present, each received all of the votes cast by the members then present and voting. If a quorum of the membership of the board is present4 then a majority of the votes cast carries the motion on the floor. See Commonwealth ex rel. v. Fleming, 23 Pa. Superior Ct. 404 (1903). Admittedly, Meixell v. Hellertown Borough Council, 370 Pa. 420 (1952), seemingly creates some confusion. There, the court stated the question before it as being that where those present and validly voting are sufficient to constitute a quorum, does the vote of a majority of those ballots which have been validly cast, legally bind the council? All nine of the borough councilmen were present when the election for a burgess was held. Two of the votes were disqualified by the court and, therefore, seven valid votes were cast. Four were cast for Meixell and three for other candidates. The court declared that Meixell was validly elected, although he did not garner a majority of those present. Admittedly, he received a majority of the valid votes cast. However, [472]*472the court cited with approval in support of its holding Commonwealth v. Fleming, supra. In the latter case, the Borough Council of Rochester was composed of 12 members, a majority constituting a quorum. At an adjourned meeting at which 10 of the 12 council members were present, a motion was made to elect a member to fill a vacancy.

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Bluebook (online)
51 Pa. D. & C.2d 467, 1970 Pa. Dist. & Cnty. Dec. LEXIS 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kline-v-fawkes-pactcomplbucks-1970.