HomeMy WebLinkAbout2022-01737
KIMBERLY MYERS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
HOPEWELL TOWNSHIP; :
DAVE ELLIOT, in his capacity : CIVIL ACTION
as a member of the Board of :
Supervisors of Hopewell :
Township; VERNE WADEL, in :
his capacity as a member of the :
Board of Supervisors of :
Hopewell Township; and :
TYLER GAMBLE, in his :
capacity as an alleged member :
of the Board of Supervisors of :
Hopewell Township, :
Defendants : NO. 2022-01737 CIVIL TERM
IN RE: DEFENDANTS PRELIMINARY
OBJECTIONS TO PLAINTIFFS COMPLAINT
BEFORE SMITH, HYAMS and SIBERT, JJ.
OPINION and ORDER OF COURT
th
HYAMS, J., July 26, 2022.
In this civil action, a plaintiff who was allegedly improperly dismissed from her
positions as a township secretary and treasurer has sued the township, two of its
1
supervisors, and a third putative supervisor, for declaratory, injunctive, and other relief.
Before the court at this time are preliminary objections to Plaintiffs complaint filed by
2
Defendants.
This matter was argued on June 24, 2022. For the reasons stated in this opinion,
Defendants preliminary objection in the nature of a demurrer will be sustained.
1
See Complaint for Injunctive and Declaratory Relief, filed March 4, 2022 (hereinafter Plaintiffs
Complaint).
2
Defendants Preliminary Objections to Plaintiffs Complaint, filed March 28, 2022 (hereinafter
Defendants Preliminary Objections).
STATEMENT OF FACTS
This action was commenced by the filing of a complaint on March 4, 2022. The
facts alleged in Plaintiffs complaint may be summarized as follows:
Plaintiff is Kimberly Myers, an adult individual residing in Newburg, Cumberland
3
County, Pennsylvania. Defendant Hopewell Township is a second class township
organized and existing under the laws of the Commonwealth of Pennsylvania, and having
4
offices in Newburg, Cumberland County, Pennsylvania. Defendants Dave Elliot and
Verne Wadel are adult individuals with residences in Newburg, Cumberland County,
56
Pennsylvania, and members of the townships board of supervisors. And Defendant
Tyler Gamble is an adult individual residing in Newburg, Cumberland County,
78
Pennsylvania, and a disputed member of the board of supervisors.
12. On the morning of February 7, 2022, \[Plaintiff\] came to work at the township
office as she had regularly for nearly seventeen years.
13. Shortly after arriving at work, \[Plaintiff\] was told that she was being
terminated from her position effective immediately.
14. \[Plaintiff\] was instructed by \[Defendants\] Elliot and Wadel to remove her
items from her desk and leave the premises.
15. \[Plaintiff\] ask\[ed\] for a written termination letter which the Board of
Supervisors refused to provide.
16. \[Plaintiff\] was informed by \[Defendant\] Wadel that due to the missing
funds and other things they had to let her go.
17. The Supervisors refused to provide any information regarding any alleged
missing funds or the other things.
3
Plaintiffs Complaint, ¶1.
4
Plaintiffs Complaint, ¶2.
5
Plaintiffs Complaint, ¶¶3-4.
6
Plaintiffs Complaint, ¶¶9-10.
7
Plaintiffs Complaint, ¶5.
8
Plaintiffs Complaint, ¶11. Plaintiff alleges that the appointment of Defendant Gamble to the position of
township supervisor is being challenged by a previously filed Complaint in the Court of Common Pleas
of Cumberland County. Id.
2
18. The Supervisors claimed to have a written list of five items they had
discussed that formed the basis of their decision to terminate \[Plaintiff\] immediately but
9
the Supervisors refused to provide any such list to \[Plaintiff\].
Defendant Elliot advised that this action was taken under the authority of the
10
townships board of supervisors, that the board had met that morning, held a meeting,
11
and voted to terminate Plaintiff immediately, and that the meeting had not been open to
1213
the public. The meeting had not been advertised.
Defendant Elliot further advised that Plaintiff was being terminated immediately,
1415
as opposed to not being reappointed, and stated, incorrectly, that the issue of
of the secretary/treasurer was not on the board
16
for the public meeting of the supervisors to be held that evening. Plaintiff departed the
1718
township office, but returned to attend the boardevening.
32. \[At the public meeting t\]he Board of Supervisors had an individual in the seat
previously filled by \[Plaintiff\] . . . but that person was not noted on the public record as
having been present or why she was present.
33. Despite the Appointment/Reappointment of the Secretary/Treasurer being the
first action item on the agenda following the Organizational items, the Board of
19
Supervisors simply skipped over that item and moved directly to the next action item.
9
Plaintiffs Complaint, ¶¶12-18.
10
Plaintiffs Complaint, ¶19.
11
Plaintiffs Complaint, ¶20.
12
Plaintiffs Complaint, ¶21. However, it appeared to Plaintiff that other select township officials who
\[were\] political allies of \[Defendant\] Elliot \[had been\] present at the meeting . . . . Id., ¶22.
13
Plaintiffs Complaint, ¶23.
14
Plaintiffs Complaint, ¶27.
15
Plaintiffs Complaint, ¶¶25-26 and Exhibit A.
16
Plaintiffs Complaint, ¶24.
17
Plaintiffs Complaint, ¶30.
18
Plaintiffs Complaint, ¶31.
19
Plaintiffs Complaint, ¶32-33.
3
When a member of the public indicated to the board that it had not addressed the
secretary/treasurer item, Defendant Elliot stated that they were going to get to that
2021
later. However, the item was not revisited and when,
\[n\]ear the end of the public meeting members of the public began to question the inaction
on the Secretary/Treasurer item\[,\] . . . the Supervisors hastily closed the meeting without
22
taking any action or vote of any kind on the Secretary/Treasurer item.
Plaintiffs complaint contains three counts premised upon Pennsylvanias
2324
Sunshine Act. The first count is predicated upon Section 708(a)(1) of the act
25
(Executive sessions), and states as follows:
38. Section 708 of the Sunshine Act authorizes agencies such as the Township to
hold non-public executive sessions for various reasons, including employment and
appointment matters. . . .
39. However, the Sunshine Act explicitly states provided, however, that the
individual employees or appointees whose rights could be adversely effected \[sic\] may
request, in writing, that the matter or matters be discussed at an open meeting. 65 Pa.
C.S. § 708(a)(1).
40. Despite the severe consequences that the Supervisors knew they were about
to bring upon \[Plaintiff\], the Board of Supervisor\[s\] gave her no notice of their meeting
and gave \[Plaintiff\] no opportunity to demand the matter be discussed at an open
meeting, which \[Plaintiff\] certainly would have demanded.
41. \[Under Section 713 of the Sunshine Act (Business transacted at unauthorized
26
meeting void),\] \[b\]usiness transacted or official action taken at an unauthorized and
closed meeting may be found to be void and invalid. . . .
42. The February 7, 2022 morning meeting of the Board of Supervisors without
notice to \[Plaintiff\] did not qualify as a proper executive session under the Sunshine Act.
20
Plaintiffs Complaint, ¶34.
21
Plaintiffs Complaint, ¶35.
22
Plaintiffs Complaint, ¶36.
23
65 Pa. C.S. §§701 et seq.
24
Plaintiffs Complaint, Count 1 Violation of the Sunshine Act Section 708(a)(1), Declaratory and
Injunctive Relief.
25
65 P. C.S. §708(a)(1).
26
65 P.S §713.
4
43. The Board of Supervisors deliberated agency business regarding the
appointment and or reappointment of \[Plaintiff\] at the morning meeting at the exclusion
of discussing the matter as identified on the public agenda.
44. Under Section 713 of the Sunshine Act, business conducted at an
unauthorized meeting is void and the Court lenged action until a
judicial determination of the legality of the meeting at which the action was adopted is
27
reached. . . .
Relief requested by Plaintiff on this count is entry of judgment in \[Plaintiffs\]
favor and against Defendants by:
a. Entering a declaratory judgment that Defendants Hopewell Township, Dave Elliot,
Verne Wadel, and Tyler Gamble violated the Sunshine Act; and
b. Entering a declaratory judgment that \[Plaintiff\] was not properly terminated and is
therefore still employed by the Township; and
c. Directing the Township to reinstate \[Plaintiff\] with all back pay and benefits from
February 7, 2022 through the time of the Order of Court; and
d. Imposing the costs of prosecution plus a fine of $1,000 against Defendants Dave
Elliot, Verne Wadel, and Tyler Gamble; and
e. Awarding reasonable attorneys fees and costs; and
f. Directing the Township to comply with the Sunshine Act; and
28
g. Granting any other relief that this Court deems just and proper.
29
The second count of Plaintiffplaint is predicated upon Section 708(c) of
30
the act (Executive sessions), and states as follows:
49. Section 708(c) of the Sunshine Act states Official action on discussions held
pursuant to subsection (a) shall be taken at an open meeting. Nothing in this section or
section 707 (relating to exceptions to open meetings) shall be construed to require that
any meeting be closed to the public, nor shall any executive session be used as a
subterfuge to defeat the purposes of section 704 (relating to open meetings).
50. The Board of Supervisors intentionally arranged a meeting to discuss and
take action against \[Plaintiff\], on the very morning that the very same item was on the
published agenda for the public monthly meeting.
27
Plaintiffs Complaint, ¶¶38-44.
28
Plaintiffs Complaint, Count 1, prayer for relief.
29
Plaintiffs Complaint, Count 2 Violations of the Sunshine Act Section 708(c), Declaratory and
Injunctive Relief.
30
65 Pa. C.S. §708(c).
5
51. The Board of Supervisors deliberated agency business regarding the
appointment and or reappointment of \[Plaintiff\] at the morning meeting at the exclusion
of discussing the matter as identified on the published agenda.
52. Despite the absolute requirement to do so, the Board of Supervisors failed
take \[sic\] any public action regarding the Secretary/Treasurer position, which was and is
31
\[Plaintiffs\] position, at the public meeting on the evening of February 7, 2022.
Relief requested by Plaintiff on this count is entry of judgment in \[Plaintiffs\]
favor and against Defendants by:
a. Entering a declaratory judgment that Defendants Hopewell Township, Dave Elliot,
Verne Wadel, and Tyler Gamble violated the Sunshine Act; and
b. Entering a declaratory judgment that \[Plaintiff\] was not properly terminated and is
therefore still employed by the Township; and
c. Directing the Township to reinstate \[Plaintiff\] with all back pay and benefits from
February 7, 2022 through the time of the Order of Court; and
d. Imposing the costs of prosecution plus a fine of $1,000 against Defendants Dave
Elliot, Verne Wadel, and Tyler Gamble; and
e. Awarding reasonable attorneys fees and costs; and
f. Directing the Township to comply with the Sunshine Act; and
32
g. Granting any other relief that this Court deems just and proper.
33
The third count of Plaintiffs complaint is predicated upon Section 710.1(a) of
34
the act (Public participation), and states as follows:
53 The Sunshine Act requires agencies to provide a reasonable opportunity for
residents and taxpayers to comment on matters of concern or official action prior to the
agency taking official action. . . .
54. Despite the matter of the Appointment/Reappointment being on the published
agenda for the monthly public township meeting, the matter was skipped by the board of
Supervisors.
55. Despite the public actually asking that the matter be discussed at the public
township meeting on the evening of February 7th, the Board of Supervisors refused to
discuss the matter at the public meeting, instead opting to take the action at the meeting
31
Plaintiff's Complaint, ¶¶49-52.
32
Plaintiffs Complaint, Count 2, prayer for relief.
33
Plaintiffs Complaint, Count 3 Violations of the Sunshine Act Section 710.1(a), Declaratory and
Injunctive Relief.
34
65 Pa. C.S. §710.1(a).
6
held by the Board of Supervisors the morning of February 7th, out of sight of the
35
public.
Relief requested by Plaintiff on this count is entry of judgment in \[Plaintiffs\]
favor and against Defendants by:
56. Entering a declaratory judgment that Defendants Hopewell Township, Dave
Elliott, Verne Wadel, and Tyler Gamble violated the Sunshine Act; and
57. Imposing the costs of prosecution plus a fine of $1,000 against Defendants
Gary Gates, Dave Elliot, and Tyler Gamble; and
58 Awarding reasonable attorneys fees and costs; and
59. Directing the Township to comply with the Sunshine Act; and
36
60. Granting any other relief that this Court deems just and proper.
Defendants preliminary objections to Plaintiffs complaint sub judice were filed
37
on March 28, 2022. They consist of a preliminary objection in the nature of a demurrer
and a preliminary objection requesting dismissal of certain claims for failure to conform
38
to law or rule of court.
Defendants demurrer to Plaintiffs complaint notes that her action is premised
39
upon alleged violations of Pennsylvanias Sunshine Act, which is designed to
vindicate the publics right to be present at meetings, and witness, the deliberation, policy
40
formulation, and decision-making of government agencies, and protects public, not
41
private rights.
35
Plaintiffs Complaint, ¶¶53-55.
36
Plaintiffs Complaint, Count 3, prayer for relief and ¶¶56-60.
37
Defendants Preliminary Objections, Count I Preliminary Objection in the Nature of a Demurer.
38
Defendants Preliminary Objections, Count II Preliminary Objection for Failure to Conform to Law or
Rule of Court.
39
Defendants Preliminary Objections, ¶9.
40
Defendants Objections, ¶15.
41
Defendants20.
7
The act, it is also argued, applies only to \[o\]fficial action and deliberations by a
42
quorum of the members of an agency. According to the demurrer,
17. Deliberations means \[t\]he discussion of agency business held for the
purpose of making a decision. . . .
18. Hiring, appointing, or firing an at-will employee does not constitute official
action. . . .
19. Therefore, the termination of a Township secretary or treasurer does not
constitute official action or deliberations by a quorum of a township board of
43
supervisors.
* * * *
23. Because the Townships decision to fire \[Plaintiff\] does not constitute
official action or deliberations on agency business, Plaintiff cannot state a claim
44
for relief.
In the alternative, Defendants argue, \[i\]f \[Plaintiffs\] termination \[did constitute\]
official action or deliberations on agency business, the Sunshine Act permitted the
45
Township to discuss her termination in a closed meeting.
Finally, Defendants state that
26. \[Plaintiff\] concedes that she failed to exercise any right to have her
termination discussed in an open meeting. . . .
27. Further, to the extent that \[Plaintiff\] claims that the public was denied the
right to comment on her termination, the Sunshine Act expressly prohibits injunctive
46
relief. . . .
Defendants preliminary objection requesting dismissal of certain claims for
failure to conform to law or rule of court seeks dismissal of Plaintiffs claims for back
pay and benefits, costs of prosecution, fines, and attorneys fees:
32. The Sunshine Act limits the court to, in its discretion, entering injunctive
relief. . . .
42
Defendantsreliminary Objections, ¶16.
43
Defendants Preliminary Objections, ¶¶17-19.
44
Defendants Preliminary Objections, ¶23.
45
Defendants Preliminary Objections, ¶25.
46
Defendants Preliminary Objections, ¶¶26-27.
8
33. The Sunshine Act does not permit a court to award backpay.
34. The Sunshine Acts provisions for costs of prosecution and a $1,000 fine
apply to summary criminal proceedings.
47
35. \[Plaintiffs\] lawsuit is a civil action, not a summary criminal proceeding.
48
In a response to Defendants preliminary objections, Plaintiff contends that she
49
is not pursuing a private right but rather a remedy under the Sunshine Act. Such
50
private rights as she may have may be pursued at a later date, according to the response.
51
Plaintiff concedes that her employment is properly characterized as at-will, but
notes her status as an appointee under the Second Class Township Code, and maintains
that any action take\[n\] regarding \[her in that capacity\] must be done at a public
52
meeting, with a termination of her employment being official action for purposes of
53
the Sunshine Act.
Plaintiff also reiterates her position that her right to demand a public discussion of
54
her situation was effectively frustrated by Defendants, and notes that judicial relief
based upon the public participation provision of the Sunshine Act is unavailable only in
55
instances where the provision was complied with.
47
Defendants¶32-35.
48
Plaintiffs Response to Preliminary Objections, filed May 17, 2022 (hereinafter Plaintiffs Response to
Preliminary Objections).
49
Plaintiffs Response to Preliminary Objections, ¶20.
50
Plaintiffs Response to Preliminary Objections, ¶20.
51
Plaintiffs Response to Preliminary Objections, ¶18.
52
Plaintiffs Response to Preliminary Objections, ¶¶18, 22.
53
Plaintiffs Response to Preliminary Objections, ¶18.
54
Plaintiffs Response to Preliminary Objections, ¶¶24, 26.
55
Plaintiffs Response to Preliminary Objections, ¶27.
9
Plaintiff, further, challenges Defendants contention that injunctive relief alone is
available in this case, noting that a provision in the act authorizes a court to invalidate
56
any official action taken at a noncompliant meeting. Thus, according to Plaintiff,
\[i\]f the Court concludes that the outrageous action by the Defendants in direct violence to
the Act is invalid, then the natural conclusion is that \[Plaintiff\] was never legitimately
removed from her position and is entitled to all back pay and benefits. No language in the
57
Act prohibits such discretion by the Court.
Finally, Plaintiff argues that a civil case can be a vehicle for imposition of
58
summary offense penalties pursuant to the act.
STATEMENT OF THE LAW
Preliminary objections. Under Pennsylvania Rule of Civil Procedure 1028
(Preliminary Objections), a preliminary objection may be filed to a pleading based upon
5960
its legal insufficiency (a demurrer) or its failure to conform to law or rule of court.
In ruling upon a preliminary objection in the nature of a demurrer, \[a court\] must
accept as true all well-pleaded allegations of material fact and all inferences reasonably
deducible therefrom. . . . The test is whether it is clear from all of the facts pleaded that
the pleader will be unable to prove facts legally sufficient to establish his or her right to
relief. Luke v. Cataldi, 830 A.2d 655, 657 n.4 (Pa. Cmwlth. 2003) (citation omitted).
Pennsylvanias Sunshine Act. Initially, it may be noted that Pennsylvanias
Sunshine Act is essentially intended to benefit the public, as indicated by the legislatures
findings and declaration in enacting it:
(a) Findings.--The General Assembly finds that the right of the public to be present at all
meetings of agencies and to witness the deliberation, policy formulation and decision
making of agencies is vital to the enhancement and proper functioning of the democratic
56
Plaintiffs Response to Preliminary Objections, ¶32.
57
Plaintiffs Response to Preliminary Objections, ¶32.
58
Plaintiffs Response to Preliminary Objections, ¶34.
59
Pa. R.C.P. 1028(a)(4).
60
Pa. R.C.P. 1028(a)(2).
10
process and that secrecy in public affairs undermines the faith of the public in
government and the public's effectiveness in fulfilling its role in a democratic society.
(b) Declarations.--The General Assembly hereby declares it to be the public policy of
this Commonwealth to insure the right of its citizens to have notice of and the right to
attend all meetings of agencies at which any agency business is discussed or acted upon
61
as provided in this chapter.
For this reason, courts have been reluctant to sanction its use as an instrument to
vindicate private rights. See, e.g., Nearhood v. City of Altoona, 32 Pa. D. & C.4th 97, 99,
1996 WL 932085, at 2 (Blair County 1996) (The Sunshine Law does not exist to
vindicate the private rights of individuals in their employment.; Maloney v.
Lackawanna County Commissioners, 2004 WL 5175141, at ___ (Lackawanna Co. 2004)
(\[T\]he Sunshine Law does not exist to expedite assertions of individual employment
rights., affd, Pa. Cmwlth, No. 633 C.D. 2004, filed October 6, 2004.
As a general rule, under Pennsylvanias Sunshine Act, \[o\]fficial action and
deliberations by a quorum of the members of an agency shall take place at a meeting
open to the public unless closed under \[certain exceptions provided for in the act\]. 65
Pa. C.S. §704.
Official action\[s\] include decisions on agency business. 65 Pa. C.S. §703
(Definitions). However, \[a\]gency business does not include administrative action\[s\].
Id.
An executive session exception to the open meetings requirement is noted in
Section 707(a) of the act (Exceptions to open meetings):
(a) Executive session.--An agency may hold an executive session under section 708 \[of
the act\] (relating to executive sessions).
65 Pa. C.S. §707(a) (Open meetings).
Executive sessions are described in Section 708(a)(1) of the act (Executive
sessions) as follows:
61
65 Pa. C.S. 702 (Legislative findings and purpose).
11
(a) Purpose.--An agency may hold an executive session for one or more of the
following reasons:
(1) To discuss any matter involving the employment, appointment,
termination of employment, terms and conditions of employment,
evaluation of performance, promotion or disciplining of any specific
prospective public officer or employee or current public officer or
employee employed or appointed by the agency, or former public officer
or employee, provided, however, that the individual employees or
appointees whose rights could be adversely affected may request, in
writing, that the matter or matters be discussed at an open meeting. The
agency's decision to discuss such matters in executive session shall not
serve to adversely affect the due process rights granted by law, including
those granted by Title 2 (relating to administrative law and
procedure). . . .
65 Pa. C.S. §708(a)(1).
Pennsylvania courts have not viewed favorably the proposition that, as a general
rule, personnel determinations qualify as official decisions under the act. Thus, in
Maloney v. Lackawanna County Commissioners, 2004 WL 5175141 (Lackawanna Co.
2004), affd, Pa. Cmwlth, No. 633 C.D. 2004, filed October 6, 2004, the court concluded
that terminations of employees did not constitute decisions on agency business, and
denied injunctive relief to several county employees who had been dismissed outside a
public meeting. A contrary conclusion as to the meaning of official action, the court
noted, ntially paralyze essential government functions and monopolize
agendas with matters concerning personnel and administration . . . .Id., at ___; see also
Notarianni v. O2017 WL 1337564, at 5 (Pa. Cmwlth. 2017) (
provision contained in the Sunshine Act that specifies the hiring or appointment of a
county employee constitutes (cited for persuasive value).
Public participation at advertised meetings of the boards of political subdivisions
is provided for in the Sunshine Act as follows:
a) General rule.--Except as provided in subsection (d), the board or council of a political
subdivision or of an authority created by a political subdivision shall provide a reasonable
opportunity at each advertised regular meeting and advertised special meeting for
residents of the political subdivision or of the authority created by a political subdivision
or for taxpayers of the political subdivision or of the authority created by a political
12
subdivision or for both to comment on matters of concern, official action or deliberation
which are or may be before the board or council prior to taking official action. The board
or council has the option to accept all public comment at the beginning of the meeting. If
the board or council determines that there is not sufficient time at a meeting for residents
of the political subdivision or of the authority created by a political subdivision or for
taxpayers of the political subdivision or of the authority created by a political subdivision
or for both to comment, the board or council may defer the comment period to the next
regular meeting or to a special meeting occurring in advance of the next regular meeting.
(b) Limitation on judicial relief.--If a board or council of a political subdivision or an
authority created by a political subdivision has complied with the provisions of
subsection (a), the judicial relief under section 713 (relating to business transacted at
unauthorized meeting void) shall not be available on a specific action solely on the basis
of lack of comment on that action.
(c) Objection.--Any person has the right to raise an objection at any time to a perceived
violation of this chapter at any meeting of a board or council of a political subdivision or
an authority created by a political subdivision.
(d) Exception.--The board or council of a political subdivision or of an authority created
by a political subdivision which had, before January 1, 1993, established a practice or
policy of holding special meetings solely for the purpose of public comment in advance
of advertised regular meetings shall be exempt from the provisions of subsection (a).
65 Pa. C.S. §710.1 (Public participation).
Legal challenges pursuant to the Sunshine Act are provided for in Section 713 of
62
the Act (Business transacted at unauthorized meeting void). In the case of such a
challenge,
\[t\]he court may enjoin any challenged action until a judicial determination of the legality
of the meeting at which the action was adopted is reached. Should the court determine
that the meeting did not meet the requirements of this chapter, it may in its discretion find
that any or all official action taken at the meeting shall be invalid. Should the court
determine that the meeting met the requirements of this chapter, all official action taken
63
at the meeting shall be fully effective.
Finally, with respect to criminal penalties, Section 714 of the Act (Penalty),
provides as follows:
(a) Fines and costs.--Any member of any agency who participates in a meeting with the
intent and purpose by that member of violating this chapter commits a summary offense
and shall, upon conviction, be sentenced to pay:
62
65 Pa. C.S §713.
63
65 Pa. C.S. §713.
13
(1) For a first offense, the costs of prosecution plus a fine of at least $100
and, in the discretion of the sentencing authority, of not more than
$1,000.
(2) For a second or subsequent offense, the costs of prosecution plus a
fine of at least $500 and, in the discretion of the sentencing authority, of
64
not more than $2,000.
Second class township code. With regard to the employment of a secretary and
treasurer by a second class township, Section 602 of the Second Class Township Code
(Organization meeting; appointment of secretary and treasurer) provides as follows:
The board of supervisors shall meet at a convenient time and place on the first
Monday in January of each year. . . . The board of supervisors shall elect one member as
chairman and another as vice-chairman, and it shall appoint a treasurer and a secretary.
The secretary shall be an individual; however, the board of supervisors may select either
a trust company, a banking institution or an individual to serve as treasurer, or the board
65
of supervisors may appoint one individual to serve as both secretary and treasurer. . . .
Statutory construction. It is a basic principle of statutory construction that the
letter of a law is not to be disregarded under the pretext of pursuing its spirit.
Commonwealth v. Fedorek, 596 Pa. 475, 485, 946 A.2d 93, 99 (2008) (citation omitted).
APPLICATION OF LAW TO FACTS
In the present case, in the courts view a number of factors compel a conclusion
that on the facts pled Plaintiff can not prevail on her claim for injunctive and other relief
pursuant to PennsylvaniaFirst, it appears clear that the act is being
utilized to vindicate a private right as opposed to a public one. Second, as a general rule
an agencys personnel decisions are not regarded as official actions for purposes of the
open meetings provision of the act. Third, the Second Class Township Code does not by
its terms confer official action status upon the dismissal of a secretary/treasurer. And,
fourth, events occurring after a proper termination of Plaintiff would not serve to
invalidate the termination.
64
65 Pa. C.S. §714(a).
65
53 P.S. 65602(a).
14
Accordingly, and without expressing anyopinion as to whetherother avenues of
relief maybe available to Plaintiff as alluded toin her response to Defendants
66
preliminary objections, the following order will be entered:
ORDER OF COURT
th
AND NOW, this26day ofJuly, 2022, upon consideration ofDefendants
Preliminary Objections to Plaintiffs Complaint,filedMarch 28,2022,following oral
argument held on June 24, 2022, and for the reasons stated in the accompanying opinion,
Defendantspreliminary objection in thenatureof a demurrer is sustained and Plaintiffs
complaint is dismissed.
BYTHE COURT,
________________
Carrie E. Hyams, J.
DISTRIBUTION:
Chris Sheffield, Esq.
SHEFFIELD LAW, LLC
P.O. Box 218
Shippensburg, PA 17257
Attorney for Plaintiff
66
In view of the courts disposition of Plaintiffs complaint on the basis of Defendantsdemurrer, it is
unnecessaryto consider Defendantsother objections related to certain forms of relief requested by
Plaintiff, suchas the imposition of criminal penaltiesin a civil caseand an award of backpay.
15
Gregory S. Hirtzel, Esq.
Matthew D. Vodzak, Esq.
Benjamin P. Novak, Esq.
FOWLER HIRTZEL McNULTY & SPAULDING, LLP
Suite 201
1860 Charter Lane
Lancaster, PA 17601
Attorneys for Defendants
16