72 Pa. Commw. 210 | Pa. Commw. Ct. | 1983
Opinion by
This is an appeal from ¡an order of the Court of Common Pleas of Allegheny County which dismissed the appeal of Edith Olszewski and John Skanderson (Appellants) of their removal from the Zoning Hearing Board of the Borough of Blawnox (Board) pursuant to Section 905 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31,1968, P.L. 805, as amended, 53 P.S. §10905. For the reasons which follow, we reverse the order of the court of common pleas.
Appellants appealed their removal from the Board to the court of common pleas. Following a hearing, the
The charges against Appellants essentially alleged malfeasance and misfeasance in office. Malfeasance in office “is not merely error in judgment or departure from sound discretion, but the act, omission or neglect must be wilful, corrupt and amount to a breach of duty legally required by one who has accepted public office.” Commonwealth v. McSorley, 189 Pa. Superior Ct. 223, 227-228, 150 A.2d 570, 572 (1959). Misf easance has been construed to mean “either the breach of a positive statutory duty or the performance by a public official of a discretionary act with a corrupt motive. ’ ’ Id. at 227, 150 A.2d at 572. "While Appellants’ appeal of the issuance of the building permit may have been misguided, it certainly did not constitute malfeasant conduct. Similarly, Appellants’ actions to secure independent legal advice for the Board is not misfeasant.
The removal of members of a zoning hearing board is controlled by Section 905 of the Code which provides in pertinent part: “Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause.” Removal pursuant to this statute, which has nevler before been construed, presents a case of first impression. Initially, we note that the statute provides for removal based upon two separate, independent standards. A board member may be removed (1) as a result of certain prescribed misconduct in office, or (2) due to other just cause. We are of the opinion that the distinction between these two standards lies not so much in the degree of misconduct, but rather in the locus or type of misconduct. In other words, if the alleged misconduct pertains to the performance of a member’s duties, the first standard would ordinarily be 'invoked. If, however, the alleged misconduct pertains .to activity outside the scope of the zoning hearing board, removal would be based on a finding of just cause.
Section 905 of the Code does not define the term “just cause.” It is reasonable that the legislature intended “just cause” to be that quantum or degree of misconduct which is consistent with, and parallel to, the degree of wrongdoing set forth in the first stan
The removal of Appellants was due to alleged misconduct in office. As we explained above, the record supports the trial court’s conclusion that Appellants’ conduct did not constitute misfeasance, malfeasance or nonfeasance. Furthermore, following cur Careful review of the record, we conclude that Appellants ’ conduct does not provide a basis for removal for just cause. Thus, we reverse the order of the court of common pleas and direct the reinstatement of the dismissed zoning hearing board members.
Order
Now, February 17, 1983, the order of the Court of Common Pleas of Allegheny County in the above referenced matter, dated May 22,1981 is hereby reversed. Furthermore, the Borough of Blawnox Council is directed to reinstate Edith Olszewski and John Skanderson to membership on the Zoning Hearing Board of the Borough of Blawnox.
At this meeting the Board, Borough Council and the developer were represented.
This request by Crossgates for a hearing was never withdrawn.
The opinion by the trial court criticizes Appellants’ insistence on “the expenditure of public funds to obtain a legal opinion.” Our search of the record, however, reveals no evidence that the Borough was either billed or paid for the independent legal advice which the Board received.
Act of August 5, 1941, PX. 752, as amended, 71 P.S. §741.807.
Pennsylvania Department of Justice, Bureau of Corrections v. Grant, 22 Pa. Commonwealth Ct. 582, 350 A.2d 878 (1976).
Richter; Faust v. Police Civil Service Commission of State College, 22 Pa. Commonwealth Ct. 123, 347 A.2d 765 (1975).
O’Gorman.
Williams v. State Civil Service Commission, 9 Pa. Commonwealth Ct. 437, 306 A.2d 419 (1973), aff'd 457 Pa. 470, 327 A.2d 70 (1974).
Omelchenko v. Housing Authority of the County of Lebanon, 58 Pa. Commonwealth Ct. 494, 428 A.2d 274 (1981).
DeMarinis v. Hazleton Housing Authority, 42 Pa. Commonwealth Ct. 60, 399 A.2d 1197 (1979).