In Re the Franklin Township Board of Supervisors

65 We have often said that moot will questions be considered on in rare appeal instances where circum- “only exceptional stances where exist or questions great public importance are involved.” Conti v. of Labor and Department Industry, 309, 310-311, 56, 405 Pa. 175 A.2d 57 (1961). Accord: Man- ganese Forge Commonwealth, Steel Co. v. 67, 421 Pa. 218 A.2d 307 (1966); Co., 353, Schuster v. Gilberton Coal 412 Pa. 194 A.2d 346 (1963); Center, Park Ridley Inc. v. Shopping Co., Ray 230, Sun 407 Pa. 180 1 Drug (1962); A.2d Wortex Mills v. Textile Workers of America, 359, Union Pa. 369 85 A.2d 851 also (1952). Iowa, 393, See Sosna v. 419 U.S. 553, 42 S.Ct. L.Ed.2d 532 I am (1975). satisfied that such is here, the case and that on this record no there is occasion for the court to determine whether or not receiver improperly appointed. A.2d

In the Matter of FRANKLIN TOWNSHIP BOARD OF (two cases).

SUPERVISORS Appeal Term, of Allen B. McNEELY. No. 104 March 1977.

Appeal of Charles S. WOOD Norma W. Schultz. Term,

No. 107 1977. March Supreme Court Pennsylvania.

Argued 7, March 1977.

Decided Oct.

Rehearing Denied Nov. 104. Mcllvaine, Uniontown, at No. appellant W. for John Wood), J. Terputac, Washington (for Thomas Charles S. for (for Shultz), Norma W. Siegel, Washington H. Sherman No. 107. at appellants Washington, H. Terputac, Siegel,

Thomas J. Sherman 104. Davis, appellee for at No. Waynesburg, William R. Davis, Mcllvaine, Uniontown, W. R. John William at Waynesburg, appellee No. Kane, Gen., Blewitt, Jr.,

Robert P. Justin J. Atty. Deputy Gen., Chief, Kramer, Atty. Litigation, Civ. G. Alan Deputy Gen., (Com. Pa.). for intervenor Atty. Harrisburg, EAGEN, J., O’BRIEN, ROBERTS, Before C. POM- EROY, NIX and JJ. MANDERINO,

OPINION OF THE COURT ROBERTS, Justice. is an

This from an Common appeal order Court of Pleas of Greene from office the County removing three supervisors of Franklin Township.1 19, 1976,

On March Allen one B. three McNeely, filed a supervisors, to section 503 of the complaint pursuant Second Class Code2 for the removal of the other two supervisors, Charles Wood and Norma Shultz. electors,3 signed by alleged duties, failed to perform their official and had appeal pursuant Appellate 1. We hear this Court Jurisdiction 31, 1970, II, July 202(2), Act of Act of P.L. art. 17 P.S. § 211.202(2) (Supp.1977). 103, 503, May amended, ofAct as P.L. 53 P.S. § 65503 (1957). provides: This section duties, neglects perform “If officer refuses or his quarter sessions, upon complaint writing by court of the percentum five registered township, may electors of the issue a upon why rule such officer to show his office cause should not be appointed declared vacant and another in his stead. Such rule be shall made returnable not less than two weeks from its date of Upon hearing, proof alleged issue. that the facts in the true, complaint may are the court declare the vacant office stead, appoint during another his to hold office the term of the deposed, officer seem or to make other such order to the court just proper.” complaint signed by individuals, 3. The eleven of whom were registered later Township. shown not to be voters of Franklin registered signatures had 2010 voters. Therefore the satisfy requirement 101 electors would section township supervisors signed by for the removal of be 5% registered of voters. Code, re- several Township Class violated Second to rule upon The court issued a Shultz spects.4 vacant. offices should not be declared show cause their why who then the electors began contacting Wood and Shultz 12, 1976, the hearing signed complaint. By April cause, date on the rule to show Wood and Shultz had com- 109 of those who had persons signed contacted of 100 of those plaint, signatures and had obtained to have their names withdrawn persons petition on counter from At the 12 hearing Wood original complaint. April and objections filed preliminary Shultz and Also at that Wood Shultz hearing McNeely alleged had been the electors who had threatening harassing removal. On the basis of signed issued a decree “enjoining McNeely’s allegations, other contacting any signatores either of the parties [sic] on the filed for their removal original except by petition leave of the .” Court complaint alleged, inter alia: McNeely, objections Supervisor, Allen “5. Over the third comply with the said Charles Wood and Norma Shultz refused to Township during Section 802 of the Second Class Code properly reporting bids of items in excess of One Thousand Five ($1,500.00). Dollars .Hundred Shultz, Secretary, keep proper 6. The Norma has failed Township Supervisors regular meetings. minutes of Treasurer, Shultz, keep report a 7. The Norma has failed to report regular meetings, treasurer’s has at the Woods Charles [sic] approved practice. this Treasurer, Shultz, Norma in direct violation of Section Township illegally withdrawn 533 of Fifty Hydrant Second Class Code has Fund, ($50,000.00) Machinery Fire Thousand Dollars from the Fund, and Bonar Franklin Sewer District Fund West Fund, repay Fifty Dollar Addition Sewer District Thousand ($50,000.00) anticipation tax loan. Treasurer, Shultz, again in 9. The Norma direct violation (cid:127) illegally has Section 533 of the Second Class Code ($23,000.00) Twenty-Three withdrawn Dollars from Thousand pay township. payroll This aforesaid Funds to particular for the of said repaid by Fund. withdrawal General Shultz, in direct 10. Charles Woods and Norma violation [sic] Code, Sinking of the Second Class failed to create a Fifty pay anticipation Fund in order off the tax and loan [sic] ($50,000.00), Thousand Dollars which was borrowed in March 1975.” 19, 1976, Wood filed a motion to On April vacate the A on this motion was set for injunction. hearing 21, to be heard at the time of the on their April hearing objections preliminary 21,

At the 1976 seven of the hearing, witnesses April called Wood and asked the court to allow them to by Shultz from the the withdraw names for removal of complaint Wood and One of the witnesses testified Shultz.5 that he did not understand it for the was removal Wood and Shultz. The other witnesses that indicated wanted they their names thought withdrawn because the they complaint that, was the removal of all for three or al- supervisors, though understood that the for the they complaint was Shultz, removal of believed remov- now they District, Mercersburg Independent In 5. School 237 Pa. 85 A. 467, (1912) (dicta), this stated: Court jurisdiction “The of a court in a sense attaches as soon as the filed, but, petition anything prior hearing, presented, to a is or and before involving parties, rights has done the reasona- been petitioners ble be in favor of who in discretion exercised should good proper faith and for reasons desire to withdraw.” Pennsylvania following stated the Court cases established general rules: petitioner per “2. A not right have se to withdraw his does the attached, jurisdiction name after has in such never and cases has right the to withdraw without leave of court. petitioner sign misrepresentations, 3. a has been to If induced he his name . withdraw . but must be done with this leave of court .... [I]f, withdraw, a sufficient number desire to the court only dismissing petition, would be warranted the but in many cases should so do . .” 371, Id. 237 Pa. at 85 A. at These dicta were followed in Lerten Appeal, Pa.Super. (1951). Appeal, 79 A.2d In Lerten the Superior procedure Court further elaborated on the to be followed signatures petition when individuals to withdraw their from a desire complaint Superior or after it has been filed. The Court stated that signers give testimony” desiring “appear withdraw should and the to they acting good so that the court can “determine whether were faith, proper and for sufficient to warrant their reasons withdrawal.” Pa.Super. Id. 168 at 79 A.2d at 676. enough signatures Because there were on the filed in bring proceedings request- this case to the removal even if those who signatures so, leave to ed withdraw their were allowed do sufficiency court did not rule on offered. reasons be to all three supervisors.6 should held as al proceedings statements made and offered about testify Wood Shultz signed electors who had to them other an to this petition, objection counter but signed later testified, their witnesses evidence sustained. After during continuance thirty day requested Wood to contact the rest of which would be allowed At their removal. signed petition electors who this court stated that it was this point, treating proceed- At the supervisors. as an for removal of all three action ing conclusion the court denied Wood’s hearing, continuance, motion to motion for denied their Shultz’ objec- vacate the their preliminary overruled injunction, No was taken from order appeal denying tions.7 from the injunction, granting motion vacate or decree the injunction. was

A on the merits of the removal complaint hearing 28, the McNeely held on 27 and was principal May in witness favor of removal. The of the certified report Franklin for the accountants who public audited 31, into December was also admitted year ending the evidence. The evidence revealed that of presented many financial of the of Township, including payment transactions bills, of on town- the bids borrowing money, reporting at regu- were undertaken without ship purchases, approval the lar the were not in supervisors, of or meetings reported minutes of meetings. those

The transac- evidence also disclosed series of presented tions special general which involved transfers between circulated, McNeely promised to complaint being 6. While the was widely resign if It was and Shultz from office. Wood were removed resign. community McNeely offer to known made this the complaint. hearing, April McNeely 7. Also at filed an amended the original wording was identical wording to elimi- In an effort as was attached affidavit. affidavit, any signing uncertainty nate however, as to the manner of the again, nota- before a different the affidavit was executed ry Prothonotary county. the amend- for the The court admitted —the ed funds,8 and a tax loan taken without creation of anticipation 1975, $23,000 In transferred January, fund.9 was sinking costs. from funds funds meet general payroll special the Board was these passed by authorizing No resolution transferring transfers. Each of the checks funds Shultz, and treasurer for the who was signed by secretary either Wood or At the Township, McNeely. January Board, a resolu- meeting supervisors adopted $40,000 for six months. time before tion to borrow Some 1975,10 $50,- 10, March decided to borrow $40,000. 000, instead of the authorized previously They $50,000 loan due at the end of obtained a tax anticipation was created the loan was sinking No fund when year. $23,000 taken. Part of the loan was used to repay due, transferred from funds. When the loan became special $50,000 was transferred from funds to special repay loan, without resolution the transfer. again authorizing three had failed supervisors

The trial court found that all In an and order perform opinion official duties. 5,1976, offices of filed November the court ordered all three be declared vacant.11 were supervisors Exceptions Fund, special the West Franklin Sewer District funds include Fund, Fund, Machinery the Bonar Addition Sewer District the Fire Hydrant kept separate Fund. These funds must be accounts, prohibits applica- and the Second Code Class special any purpose tion of funds for other than that for which (1957). were collected. 53 P.S. 65533 anticipation anticipation receipt 9. A tax a loan taken in loan is current taxes and current revenues. Local Government Unit Debt Act, amended, July ofAct P.L. 53 P.S. (Supp.1977). sinking special 6780-201 A fund is a fund created to § money repay accumulate to the loan. Id. 6780-2. The creation of § sinking required anticipation a fund is when a tax loan is taken. Id. 6780-205. § meeting 10. The minutes for the March of the Board state: signed “Mr. Charles S. Wood and Mrs. Norma W. Shultz have necessary papers $50,000.” to borrow found, The court inter alia: 11. They supervisors] keep “1. full and accurate three failed to [the township meetings minutes of their and the conduct of official (1957)]. business in violation of Section 513 P.S. § [72 filed, and the court issued an and order on opinion January dismissing exceptions final its making November 5 order the three removing supervisors from office. All three supervisors appeal.

I. Appeal McNeely McNeely argues the trial court erred in asserting over him in the absence jurisdiction complaint calling for his removal. We agree. 503 of the Township provides

Section Second Class Code12 that a officer be removed for refusal or township official duties neglect perform “upon complaint writing five of the percentum registered electors of the township

. .” Without such a the court does have the power order the removal of a official township to section pursuant 503.

The court concluded that it has a “of its duty own initiative ... to assess the fault and find the respon- sibility violations . .” While it is the duty court to assess fault once removal proceedings instituted, are the court is not empowered to.decide if such should be instituted. proceedings Because no was filed for the removal of the trial court’s McNeely, order his office is re vacating versed. They keep complete 2. failed to and accurate financial records monies, township regular reports made thereof all and to have regular meetings to the Board at its in violation of Section 532 65532], [id. § They illegally special 3. transferred funds from accounts in viola- tion of Section 533 of the Code [id. 65533]. They provide sinking upon borrowing failed to fund $50,000.00 arrange repayment, required provide for its by law. They keep complete having failed to a full and record of adver- required, provisions tised for bids when under the of Section 802 payment of bills of Code and made [id. § 65802] without official on the board action reflected minutes.”

12. Id. 65503.

II. Wood Shultz Appeal 12,1976 A. Wood and contend that the April injunc- Shultz tion, which them from enjoined contacting more of the removal, electors who had for their is signed petition injunction invalid. claim the was issued violation of They 1531, and that it on their infringed Pa.R.Civ.P. rights freedom of expression. issue, however,

We need not reach this as Wood failed to take from the issuance timely appeal Shultz injunction. injunction special injunction. was A relief which grants is special injunction auxiliary relief main in the v. requested complaint. Rosenzweig See Factor, 492, Goodrich-Amram, 457 Pa. 327 A.2d 36 (1974); Procedural Rules 1531(a):1(2d 1977). Service ed. Here the § which injunction, was Wood and from prevent Shultz contacting possibly harassing the electors who signed was entirely separate from and collateral to the relief in the requested complaint, removal of Wood and Shultz failure to their duties. An perform from appeal the issuance injunction of a is authorized special statute. Act 28, 1, P.L. February P.S. 1101(1953); § Factor, Rosenzweig v. supra.13 Having failed to avail them selves of the right order, appeal injunctive Wood and Shultz cannot now attack it as a collaterally basis for invalidating the removal which proceedings, were not con cluded until nine months after the injunction was issued.14 interpreted appeals prelimi- 13. 12 P.S. 1101 has been to allow from nary injunctions. g., Authority E. Chester School v. Aberthaw Con- Co., 343, clear, (1975). struction 460 Pa. 333 A.2d 758 It should be however, appeal preliminary injunction that failure to take an from a party may injunction does not limit the issues a raise when a final granting case, the same or similar relief is decreed. In such a appellant attacking validity preliminary injunction, is not appealing injunction but is errors in the issuance of the final which preliminary injunction also have been made when the issued. granted injunction, injury The relief in the and the nature of the Shultz, asserted injunction lead us to conclude that the order,” appealable constituted a “final under Pa.R.A.P. at least April on days 1976 when the court denied the motion made two B. Wood and raise several additional claims which relate to removal arguably validity Wood and Shultz that the court argue erred admit an ting amended which was filed at the April 1976 nine after hearing, days objections were preliminary filed.15 See generally, 1028(c)(“A Pa.R.Civ.P. file party may an amended as of course within ten pleading (10) after days service of a copy preliminary objections.”). They argue that the complaint amended should not have been admitted because it was recirculated. argument This is without merit. The amended complaint was verbatim the copy original The complaint. was that only change a new affida vit, with the same as wording affidavit, the first exe was cuted before a different effort an to eliminate notary, possible in the irregularities manner in which the affidavit was executed. We see no basis for the requiring electors the sign new complaint again before a affidavit be executed.

Wood and Shultz also claim that two of the affiants are not voters registered of Franklin 503 Township. Section of the Second Class Code makes no requirement voters, the be Therefore, affiants however. registered we find no basis the holding affidavits are invalid.16 April

earlier injunction. generally to set aside the See Bell v. Co., (1975); Beneficial Consumer Discount 348 A.2d Pa. 1531(f)(1) (“When special injunction Pa.R.Civ.P. a . . . involv- ing expression freedom of is issued court shall hold a hearing (3) days final within three A after demand defendant. twenty-four (24) final decree shall be filed . . within hours hearing.”) added). after (emphasis Accordingly, the close of the we appeal are not here concerned with a take an an failure to from interlocutory order. 7, supra. 15. See note appeared Wood and Shultz also assert that none the affiants notary. supported by before the This claim is not the record. only testify appeared affiant called he stated that before notary signed both he original when the affidavit attached to the signed he when the affidavit attached to the amended complaint. challenge

Wood and Shultz also forpa affidavit,17 claim that invalid original complaint had because the who the affidavit also notarized person were not raised in signed complaint. These claims or in the answer to the amended objections preliminary complaint, and therefore are waived. Pa.R.Civ.P. 1032. Wood and the court erred

Finally, argue Shultz when it sustained an offered at objection to testimony they on their Wood hearing preliminary objections. Shultz offered to as to what some of the electors who testify counter signed petition claimed were told at they the time signed original excluded this properly testimony hearsay. present signed were not when these electors could as to

complaint, and out of court declara testify only tions later by made these electors.18

C. Wood and court argue Shultz next that did not have to order their removal to section grounds pursuant 503 of the Class Code. 503 Second Section pro vides for the removal of township officer who “refuses argue signed Wood and Shultz that four have affiants should affidavits, separate They separate argue four before notaries. also that person properly affidavit should have stated that “the complaint actually containing allegations, circulated the signatures its that the correct, correct, were that the residences were they registered (emphasis original). were electors.’’ in argue testimony they Wood and Shultz offered was prove admissible to the state of of mind these electors at the time they signed complaint. argument This reflects a misunderstand- ing hearsay objection objection evidence offered. The to the they signed was not that what these electors were told when hearsay. constituted If the electors them- inadmissible they appeared selves were and testified to what told they signed testimony when this would have been Indeed, prove admissible to their electors state of mind. those who appear testify did in court were allowed as to were told what However, they signed when want- testify by toed to them about statements made the electors some signed original complaint. time after the electors These state- declarations, ments were of court truth out offered for the asserted, hearsay exception matter for which there is no rule.

or his neglects perform duties.”19 Pursuant to this provi-

sion, be township supervisor removed for failure to perform duties of him the required Second Class Town- Code or other ship applicable statutes. Foltz Appeal, Pa. (1952)(dictum); A.2d 871 Crane's 344 Pa. Appeal, 624, 26 A.2d 457 (1942). We conclude the trial court’s of fact findings supported are record, and demon- strate that Wood and Shultz have failed to perform their duties in several significant respects.

The court found that the supervisors failed to keep proper of records township proceedings, failed to follow proper procedures in performing official acts. The court found:

“1. supervisors] failed to keep full and accurate [The

minutes of and the of meetings conduct official 513.[20] township business violation of Section 2. They failed keep and accurate complete financial

records of all monies, and to have regular reports made thereof to the Board at its regular 532.[21] in violation meetings of Section 5. They failed to a full and keep record complete

having advertised for when bids under required, Code[22] of Section provisions the Township and made payment bills the township without official action board reflected in the minutes.” Section 513 of the Second Class Township Code imposes a on the duty to supervisors minutes keep of their proceed- ings:

“The board of township shall supervisors keep minutes of its . .. All such proceedings books shall be open for the of inspection or any elector taxpayer ..” 19. 53 P.S. 65503. §

20. Id. 65513. §

21. Id. 65532. §

22. Id. 65802. § The (emphasis added).23 importance of records adequate be stressed, for these enable the should records Township Auditors, as well as electors and to taxpayers, determine what actions have been approved by Board of legally Supervisors, whether the supervisors have lived to up their public trust. See State Association Pennsylvania of Township Supervisors, Handbook for Township Officials 34- 35.24

The record supports determination the trial court’s failed to supervisors perform this The account- duty. ants who audited the Township criticized minutes for failure record the advertisement for pursuant bids section 802 Code,25 of the Second Class Township for failure to indicate when the opinion solicitor was requested.26 The supervisors also paid township bills (Supp.1977); 23. Id. Appeal, see Crane’s 344 Pa. at (“The ordinary signification A.2d at 459 the unless the latter ‘shall’ verb as used in Township imperative permissive [Second Class is and not Act] meaning required by context.”). is rely Taylor District, Borough on Price v. 157 Pa.Super. School (1945), proposition duty A.2d 99 keep for the that the “directory minutes in mandatory.” question presented is and not Price, however, whether failure to take minutes was invalidated a by Although vote taken the Board. the court vote could be held a given though recorded, clearly effect recognized even it was not it duty permissive discretionary, to take minutes was not or comply duty. and does not excuse the failure to with this Referring “gross informality” with which the Franklin Supervisors affairs, Board of conducted its financial in- cluding payment such actions approval, of bills without board $10,000 borrowing and the anticipation more on the tax loan than approved Board, the court stated: point fact, minutes, “In adequate it is the absence of as well as a complete similar absence of full being kept by business records the board . scope which has so well hidden the full disdain the regularity board has shown for in the lawful conduct affairs.” (Supp.1977). 25. 53 requires P.S. 65802 This section advertisement bids for townships, certain second class contracts entered into by public and that the at accepted bids be meeting at announcement received, subsequent meeting. which are ator report accountants’ stated: only “The Board minutes are the official record of what tran- spires meetings completeness in the is essential so that all the they happened. facts are shown as without official board action reflected in the minutes.27 that McNeely testified the minutes for 1974 and 1975 were not even typed, and thus were not available to the public required by section 503 of the Second Class Code, Township until 1976.28 As the January, observed, the minutes “are so crude and patently incomplete it is almost impossible to tell what township business was lawfully transacted . with respect purchase equipment supplies.”

Closely related to the failure to keep proper minutes is the failure to accurate keep records, financial and to make reports at regular meetings Board. Again duties imposed by Second Class Township Code are clear:

“The treasurer township shall keep distinct and accurate accounts of all sums received from taxes and appears It complying that the Board is not with Section 802 of ‘The concerning Second Class reporting Code’ $1,500. First, bids of items in excess clearly the minutes do not state when the Secondly, Board wishes to receive on bids an item. clearly once the items are bid the minutes do not state when the opened, sealed bids prices were who submitted bids or the sub- Finally, mitted. always awarded, when the bids are awarded the minutes do not bid, price state who received the at what the item was bid, whether it was the lowest or whether the bid met all specifications. appears It also signed by that the official minutes were not secretary they opinion nor do indicate if the solicitors had been requested before certain Board actions were taken.” regard Wood and Shultz concede that the minutes are deficient in reporting bids, to the does of advertisement for but claim that the record required not indicate that failed to advertise for bids when by to do so section id. keep This does not excuse their failure to adequate records, however. 27. Wood and Shultz that the minutes were concede deficient in this regard, proof but contend that money there is no misappropriated. Again, proof improper expendi- the absence of records, tures does not keep adequate excuse the failure especially provide since these records means which the Audi- public tors and the scrutinize these transactions. See note supra. McNeely’s testimony was contradicted Wood and Shultz. admit, however, Shultz did inadequate, that the minutes were copies previous meetings always minutes of were not supervisors made meeting. available to other before each inspec- shall be sources, open which account other township.”29 taxpayers and supervisors tion of the same reasons that must be the kept accounts Accurate are See required. Board proceedings minutes of adequate Township Supervisors, of Association State Pennsylvania Yet, the Officials 34-35. trial Township Handbook for court found: kept the were township of of books accounts

“[T]he regular at any that the Board such careless fashion way had no of actually and know, could meeting given stood any finances at township where the knowing regular- no Treasurer’s report time . there being . record existed that apparent The kept. only made and ly of Treasur- book the in the check was the record contained 30 er.” He testi- by McNeely’s testimony. This is finding supported the he was unable to obtain fied that at many meetings No official treasur- balances of the accounts.31 Township’s of Board in meeting er’s was submitted at the report failed to supervisors either or have 1974 1975. Clearly, by supervisors as (1957). 53 65532 was chosen P.S. Shultz no that the township appeal, claim treasurer. In this Wood makes Shultz, only he imposed by apply has duties to this section complied duty provision no is with. to make sure that this Township overspent its 1975 The record indicates that Franklin $90,962. $122,587, by budget by overspent In its 1975 revenues $18,000. surplus conclud- The trial court had a of kept might if the avoided Board ed that the deficit proper have been law, records, required by procedures which and followed the Township. apprised would it of the financial condition have testimony point. conflicting Wood and Shultz on this 31. There was concerning espite information the lack of detailed claim that “[d] finances, apprised supervisors of township were meeting.” trial each financial condition of the at however, supports finding. contrary, its the record found to the testimony given required to credit the trial court was not g., Kay Kay, v. Pa. witness called Wood and Shultz. See e. (1975). 334 A.2d perform duty maintain adequate records of the of accounts the Township.32 In summary, the record supports findings fact conclusions of law Wood and Shultz have failed perform their duties within the meaning of the Second Class Code.33 As the trial court stated: business of the township involving handling

“[T]he funds in the amount of approximately one quarter dollars, million has been conducted with gross informality, inattention to official duties and indifference that demon- strate a cupable peverseness and indicates on the [sic] [sic] part officers, an insensitivity trust.” public D. Finally, challenge constitu of section 503 of the tionality Second Class Township Code. that the They argue statute fails to them due provide with process, and that VI, section 503 article violates section of the Pennsylvania Constitution. These issues were not raised in in preliminary objections, or the answers filed Wood and Shultz, and therefore have been waived. Pa.R.C.P. 1032.

The order of the court pleas of common is reversed as to and McNeely, affirmed as to Wood and Shultz. J.,

NIX, filed a and concurring dissenting in which opinion MANDERINO, J., joins.

NIX, Justice, concurring dissenting. The action seeking the removal of two supervisors of Franklin Mr. Township, Charles Wood and Ms. Norma Shultz, was commenced under Section 503 of the Second Code, Class 103, 503, Act May P.L. § amended, 53 65503 (1957). P.S. Section 503 provides: § 32. misappropriation Wood and Shultz claim that no of funds has proven, keep been adequate but this cannot excuse the failure to records. 33. perform Because we find Wood and Shultz failed to keep adequate township proceedings, duties to minutes and accu- finances, township rate accounts of we need not address the other reasons for removal relied on the trial court. Penalty perform failure to duties § to perform or neglects officer refuses If any sessions, complaint upon duties, quarter his the court of the of the electors registered five writing by percentum to show cause such officer upon issue a rule may township, vacant and another not be declared his office should why made returna- rule be in his stead. Such shall appointed Upon its date of issue. than two weeks from ble not less in the alleged complaint that the facts hearing, proof true, the the office vacant are declare stead, during office in his hold appoint another make other order term of the officer or to deposed, such 1933, 1, as to seem just proper. May the court may 503; 1947, 10, P.L. V, P.L. July art. the court under this

It is clear that is vested in jurisdiction percentum five writing “by after a only Section filed has been township” electors registered necessarily with due would process that court. Minimum the com- that the or towards whom require person persons is must be with some plaint provided opportunity directed Such challenge legitimacy purported signatures. would extend not as to whether or not the challenge only were in persons document fact electors qualified signing but also would objections signatures include were forgeries or that the were not aware or were persons signing misinformed as to the complaint. My reading the content of of the record appellants, convinces me that the Shultz, were denied this fundamental For reason right. I believe the below were a and the order proceedings nullity of the I concur in the result should be reversed. below the of Allen appeal reached with to by majority regard B. McNeely. notified of the

As recited by majority upon being to proceeded of the said Wood and Shultz filing petition, By contact the of the alleged signatories successfully for had hearing, time of date set and of the 109 signers 109 of the purported contacted reached, persons who been 100 of those individuals indicated a defect in their endorsement to the petition and their requested be signatures withdrawn. The information by Shultz, obtained Wood and result a contact with the alleged various signatories, indicated that misinfor- mation had been given an effort to to induce voters sign the petition; that others were not a sufficient given oppor- tunity circulators to by fully read the contents of the complaint; and still others were never the com- presented to plaint be read.

Rather than make some effort to inquire further into the legal sufficiency hearing court saw fit to Shultz, restrain appellants, Wood and from further con- tact with the The purported signatories. justification this action was the assertion by the of the com- proponent plaint that Wood and Shultz were “harassing” the electors. No given opportunity Wood or Shultz to answer that allegation. Nor did court seek an alternative method to ascertain the legitimacy in view of the a questions that should have been raised as result submitted Wood and findings by Shultz.

The chose not to address the majority issue the validity order it as a restraining classifying special injunction which should have been a pursued in A separate appeal. separate would be the appeal proper procedural tack in the case of a special injunction pursuant Pennsylvania Rule of Civil Procedure 1531. Act 28, of February P.L. See, 12 P.S. 1101. Factor, v. Rosenzweig 457 Pa. (1974). However, A.2d 36 the challenged order was clearly a special injunction pursuant to Rule 1531but merely an ancillary ruling during course of the action in underlying As this case.1 a ruling during the course of the proceedings provides special Pa.R.C.Pro. 1531 equity. this relief in actions in Further, requires instant case was an at action law. the rule hearing showing written notice absent of immediate irreparable injury. Even where there is an averment of immediate irreparable injury, supported such a claim be must raised petition provides appro- or other affidavits. rule also that an priate required. Clearly must bond be there was no intent either party seeking granting acting relief or the court in it have been pursuant to Rule 1531. of error assign ground did it as properly appellants appeal. review in this direct merits, in the actions of my judgment,

With regard of the most funda- court were violative hearing clearly understanda- quite While it is process concepts. mental due harassment of a court would condone ble that basis which upon here an insufficient there was signatories, Fur- in fact occurred. harassment had conclude at least 100 of the ther, it remained uncontradicted that which, if circumstances reported contacted individuals It clear that believed, is signatures. would invalidate make some further it incumbent the court to upon signa- of the other purported as to inquiry legitimacy juris- which were the court with necessary provide tures in The court’s failure diction to further this action. proceed was fatal. regard, judgment, this my MANDERINO, J., in this joins opinion. A.2d Pennsylvania

COMMONWEALTH of v. KOSTKA, Appellant. L.

Rose of Pennsylvania. Court Supreme March Argued

Decided Oct.

Case Details

Case Name: In Re the Franklin Township Board of Supervisors

Court Name: Supreme Court of Pennsylvania

Date Published: Oct 28, 1977

Citation: 379 A.2d 874

Docket Number: 104; 107

Court Abbreviation: Pa.