In Re: Petition of G.A. Belushak and at Least Five (5) Electors of the First Ward of the City of Clairton to Appoint G.A. Belushak to Fill the Current Vacancy on Clairton City Council ~ Appeal of: G.A. Belushak
In Re: Petition of G.A. Belushak and at Least Five (5) Electors of the First Ward of the City of Clairton to Appoint G.A. Belushak to Fill the Current Vacancy on Clairton City Council ~ Appeal of: G.A. Belushak - 275 and 310 C.D. 2017
| Pa. Commw. Ct. | May 24, 2017Background
- Clairton City Council seat for First Ward became vacant upon Councilman John A. Lattanzi’s death on October 24, 2016.
- Clairton Home Rule Charter §15.24-2404(a) required Council to fill the vacancy within 45 days; if Council failed, five electors could petition the Court of Common Pleas to appoint a resident for the unexpired term.
- Council deadlocked 2–2 between applicants Gregory Beluschak and Raymond (Tony) Kurta; the 45‑day period expired December 8, 2016.
- On December 9, 2016 Beluschak (with five electors) filed a petition and obtained an unsigned/docketed order the same day; he was sworn in before the order was docketed. Kurta filed his petition later that day.
- Trial court vacated the December 9 appointment after finding Beluschak’s counsel misrepresented the petition as uncontested and that lack of notice violated due process; after a hearing, the court appointed Kurta to fill the vacancy for the unexpired term (through Jan. 2020).
- Commonwealth Court affirmed: trial court properly rescinded the initial order within 30 days, did not abuse discretion in appointing Kurta, and the court’s appointment to serve the unexpired term did not conflict with the Election Code.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in vacating Beluschak’s initial appointment | Beluschak: he was duly appointed and sworn; remedy to challenge is quo warranto | Opposing parties: appointment procured by misrepresentation and without required notice; due process violated | Court: vacatur proper — order obtained by fraud/misrepresentation and was rescindable under 42 Pa.C.S. §5505 within 30 days; quo warranto not required because appointment was not duly made |
| Whether trial court abused discretion by appointing Kurta instead of Beluschak | Beluschak: he is a qualified applicant and should have been selected | Kurta (and Mayor/Council): hearing evidence supports appointment of Kurta based on greater community involvement/qualifications | Court: no abuse of discretion; trial court fairly considered both and chose Kurta as better fit |
| Whether appointee must stand for the next municipal election or may serve unexpired term | Beluschak: Charter language requires successor to be elected at next municipal election; thus appointee should be subject to election in May 2017 | Trial court: Charter’s election language applies where Council appoints within 45 days; where court fills vacancy, successor serves the unexpired term; Election Code governs ballot procedure, not appointment timing | Court: Kurta may serve the remainder of the unexpired term; no conflict/preemption with Election Code because the Election Code addresses ballot procedures rather than appointment authority |
Key Cases Cited
- Matter of One Hundred or More Qualified Electors of Municipality of Clairton, 683 A.2d 283 (Pa. 1996) (allows equitable or alternative remedies where exigent circumstances justify departure from quo warranto)
- Andrezjwski v. Borough of Millvale, 673 A.2d 879 (Pa. 1996) (quo warranto is the general remedy to challenge entitlement to public office)
- Spykerman v. Levy, 421 A.2d 641 (Pa. 1980) (equitable relief may substitute for quo warranto under exigent circumstances)
- Department of Transportation, Bureau of Driver Licensing v. Johns, 621 A.2d 1064 (Pa. Cmwlth. 1993) (court orders are not effective or appealable until entered on the docket)
- Vanleer v. Lerner, 559 A.2d 577 (Pa. Super. 1989) (date an order is entered is the date it is filed with the prothonotary)
- Verholek v. Verholek, 741 A.2d 792 (Pa. Super. 1999) (discusses trial court’s authority to modify or rescind orders within 30 days)
- Stockton v. Stockton, 698 A.2d 1334 (Pa. Super. 1997) (same, evaluating discretion under rescission authority)
- Commonwealth v. Snyder, 977 A.2d 28 (Pa. Cmwlth. 2009) (defines abuse of discretion standard)
- Zauflik v. Pennsbury School District, 72 A.3d 773 (Pa. Cmwlth. 2013) (abuse of discretion requires manifest unreasonableness or lack of support)