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HomeMy WebLinkAbout02-1916 CivilSOUTH NEWTON TOWNSHIP ELECTORS V. SOUTH NEWTON TOWNSHIP SUPERVISOR RONALD BOUCH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-1916 CIVIL TERM CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTION TO AMENDED COMPLAINT AND DEMURRER BEFORE HOFFER, P.J., OLER, GUIDO, JJ. OPINION AND ORDER OF COURT Petitioners are residents of South Newton Township, Cumberland County, Pennsylvania. They are seeking to remove respondent Ronald Bouch from his position as township supervisor for the alleged failure to properly perform his duties. The action is premised upon Section 503 of the Second Class Township Code which provides: Removal for failure to perform duties If any township officer fails to perform the duties of the office, the court of common pleas upon complaint in writing by five percent of the electors of the township may issue a rule upon the officer to show cause why the office should not be declared vacant. The officer shall respond to the rule within thirty days from its date of issue. Upon hearing, the court may declare the office vacant and require the vacancy to be filled under section 407. 53 P.S. § 65503. Respondent has filed preliminary objections in the nature of a demurrer. He argues that Article VI Section 7 of the Pennsylvania Constitution provides the exclusive NO. 2002-1916 CIVIL method for the removal of township officials. ~ He further contends that Section 503 of the Second Class Township Code, being in conflict with Article VI Section 7, is unconstitutional. We are constrained to agree. Our Supreme Court faced this identical issue in the case of In re: Petition to Reca//Reese, 542 Pa. 114, 665 A.2d 1162 (1995). It held that Article VI Section 7 of the Pennsylvania Constitution "indisputably applies to all elected officers, and sets forth in unambiguous language the exclusive method.., of removing such elected officers." (emphasis in original), quoting from Citizens Committee to Recall Rizzo v. Board of Elections, 470 Pa. at, 38, 367 A.2d at 250-51 (1976); 665 A.2d at 1167. Petitioners argue that the above language in Reese was dicta and is, therefore, not binding upon this Court. They contend that Reese and Rizzo both involved recall provisions enacted by local municipalities under their Home Rule Charters while the instant case involves an act of the legislature. They further argue that no court has ever held the recall provisions of Section 503 to be unconstitutional. The fatal flaw in petitioners' argument stems from the Reese Court's reference to the case of In re: Supervisors of Milford Township, 291 Pa. 46, 139 A. 623 (1927). The Milford Court was asked to decide whether Section 192 of the General Township Act of July 14, 1917, conflicted with Article VI Section 4 of the Pennsylvania Constitution of Article VI Section 7 of the Pennsylvania Constitution provides: Removal of civil officers All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate. NO. 2002-1916 CIVIL 1874.2 The lower court had ruled that it did, thus declaring Section 192 to be unconstitutional. The Supreme Court reversed. In the Reese case the Pennsylvania Supreme Court unanimously held that "Milford... was wrongly decided, and it is hereby overruled." Reese, supra at 1167. We are bound by the principles of stare decisis to follow the pronouncement of our Supreme Court that Article VI Section 7 of the Pennsylvania Constitution sets forth the exclusive method for removing elected officials. Any act of the legislature, including the act at issue in this case, which is contrary to this proposition, is unconstitutional. Therefore, petitioners' action must be dismissed. ORDER OF COURT AND NOW, this 6TM day of SEPTEMBER, 2002, for the reasons set forth in the accompanying opinion Respondent's preliminary objections are sustained and this action is dismissed with prejudice. By the Court, /s/George E. Hoffer George E. Hoffer, P.J. Jason Kutulakis, Esquire Matthew J. Eshelman, Esquire :sld : Section 192 of the General Township Act of 1914 set forth the procedure for removal of township officers and is the predecessor to Section 503 of the Second Class Township Code. Article VI § 4 of the Pennsylvania Constitution of 1874 was renumbered in 1966 as Article VI § 7.