             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Honorable Vaughn D. Spencer,      :
Mayor of the City of Reading          :
                                      :
             v.                       :   No. 1865 C.D. 2013
                                      :   Argued: May 13, 2014
City of Reading Charter Board,        :
                  Appellant           :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION
BY JUDGE LEAVITT                                          FILED: August 8, 2014

             The City of Reading Charter Board (Charter Board) appeals an order
of the Court of Common Pleas of Berks County (trial court) that set aside the
Charter Board’s imposition of sanctions upon The Honorable Vaughn D. Spencer,
Mayor of the City of Reading, for performing the duties of the City’s Managing
Director at a time that position was vacant. The Charter Board claims the trial
court did not apply the proper standard of review; erred by substituting its own
judgment for that of the Charter Board; and misconstrued an advisory opinion of
the Charter Board. Mayor Spencer has filed a motion to quash, asserting the
Charter Board lacks standing to appeal. We deny Mayor Spencer’s motion to
quash and affirm the trial court.

                                    Background

             The City of Reading is governed by a Home Rule Charter. The chief
executive is the Mayor, who is vested with the “executive, administrative, and law
enforcement powers of the City … [and] shall control and be accountable for the
executive branch of City government[.]” CHARTER FOR THE CITY OF READING,
COMMONWEALTH OF PENNSYLVANIA (2010) §301 (Charter); Reproduced Record at
119a (R.R. ___). The Charter also established the position of Managing Director,
who serves as the City’s chief administrative officer. CHARTER §406; R.R. 125a.
The Managing Director reports to the Mayor and “may be removed from office by
the Mayor at any time, without cause.” CHARTER §404(a); R.R. 124a.
             On January 2, 2012, Mayor Spencer took office. At that time, Carl
Geffken served as Managing Director. Geffken tendered his resignation effective
March 15, 2012. At a City Council meeting on March 12th, the Council inquired of
the Mayor who would be performing Geffken’s Managing Director duties until the
position was filled. The Mayor responded that he would assume responsibility for
those duties in the interim. None of the Council members objected to the Mayor’s
response.
             Thereafter, Mayor Spencer nominated Scott Hoh to be Managing
Director. On April 2, 2012, City Council rejected Hoh’s appointment. From
March 15th through July 4th, when the City did not have a Managing Director,
Mayor Spencer performed the Managing Director’s job duties. The Mayor did not
seek compensation for performing the Managing Director duties; he was paid only
the compensation to which he was entitled as Mayor. On May 29, 2012, City
Council confirmed Carole Snyder as the new Managing Director. Her effective
date of hire was July 5, 2012.
             On June 18, 2012, the Charter Board received a complaint from
Randy Corcoran, a City taxpayer and member of City Council, challenging the
actions taken by Mayor Spencer while acting as Managing Director. The Charter


                                       2
Board’s investigative officer, David Brennen, investigated the complaint and
concluded that the Mayor had violated the Charter and the City’s Administrative
Code by doing the work of both positions simultaneously. The Mayor requested
an evidentiary hearing, which was held before the Charter Board.
                 The essential facts were not in dispute. Mayor Spencer admitted that
he acted as Mayor and Managing Director from March 15th through July 4, 2012.
As such, he performed certain administrative tasks of a Managing Director, such as
issuing directives relating to non-exempt employees, the purchase of professional
services and the transfer of City funds. Under the Charter, the Mayor supervises
the Managing Director, but the Charter does not extend this supervisory authority
to the point that the Mayor can actually serve as Managing Director. Mayor
Spencer asserted that doing the work of both positions simultaneously was not
prohibited by the Charter or the City’s Administrative Code. Further, he had to do
the duties of the Managing Director position because the Charter did not authorize
the appointment of a Temporary Managing Director during the time period that he
acted as Managing Director. He based this conclusion on the Charter Board’s
Advisory Opinion No. 22, issued on November 18, 2010.
                 Following the hearing, the Charter Board concluded that the Charter
and the Administrative Code require that the offices of Mayor and Managing
Director be separate and that the Mayor “impermissibly took the power, mantel
[sic] and authority of the Managing Director.” Charter Board Final Opinion and
Order at 27; R.R. 590a. Specifically, the Charter Board concluded that Mayor
Spencer violated Section 308(a), (f), (g), (h), and (i) of the Charter1 by combining

1
    Section 308 provides, in relevant part:
          The Mayor shall have the following powers and duties:
(Footnote continued on the next page . . .)
                                                3
the power, person, and the offices of Mayor and Managing Director; Section
406(3) of the Charter2 by exercising the duties conferred on the Managing
Director; and Section 401 of the Charter by not appointing a Temporary Managing
Director after City Council refused to confirm Hoh. Section 401 of the Charter
provides, in relevant part:

              (a) Within ninety (90) days of taking office, the Mayor, with
                  the approval of City Council, shall appoint a Managing
                  Director for an indefinite term, subject to at least a biennial
                  review, and fix the Managing Director’s compensation.
                  The Managing Director need not be a resident of the City
                  at the time of appointment, but after appointment shall

(continued . . .)
       (a)   Execute, enforce, and obey the ordinances of the City and laws of the
             Commonwealth of Pennsylvania and the United States of America.
                                             ***
       (f)   Be responsible for the hiring, with the approval of Council, of the City
             Managing Director.
       (g)   Direct and supervise the administration of all departments, offices and
             agencies of the City, except as otherwise provided by the Charter or by law.
        (h) Ensure that all laws, provisions of this Charter and acts of City Council,
             subject to enforcement by the Managing Director, are faithfully executed by
             the Managing Director.
        (i) Be responsible for the establishment and development of administrative
             policy to be implemented by the Managing Director.
CHARTER §308(a), (f), (g), (h) and (i); R.R. 121a-122a.
2
  Section 406(3) provides, in relevant part:
        The Managing Director shall be the chief administrative officer of the City,
        responsible to the Mayor for the administration of all City affairs placed in the
        Managing Director’s charge pursuant to this Charter. In addition to other powers
        and duties prescribed by this Charter, the Managing Director shall:
                                                 ***
               (3) Appoint, suspend, or remove any City employee, except as
                     otherwise provided by this Charter or by law[.]
CHARTER §406(3); R.R. 125a.


                                               4
                 reside in the City. The Managing Director shall establish
                 such City residency within twelve (12) months of being
                 appointed.
                                            ***
            (d) In the event that the position of Managing Director cannot
                be filled by the Mayor, the Mayor may appoint a
                Temporary Managing Director for a period of time not to
                exceed ninety (90) days. During this period of time, the
                Mayor shall continue to use all available means to fill the
                position.
            (e) In the event that Mayor has not filled the position of
                Managing Director within one hundred eighty (180) days
                of taking office, City Council shall, within ninety (90) days
                thereafter, hire a Managing Director. Any person hired by
                City Council shall hold the qualifications for said position
                prescribed by this Charter. The Mayor shall not have the
                power of veto over any candidate hired by City Council in
                accordance with the provisions of this Charter.

CHARTER §401(a), (d) and (e); R.R. 123a-124a. In short, the Charter Board held
that because the Charter authorized the appointment of a Temporary Managing
Director, it was improper for Mayor Spencer to have performed those duties
himself.
            The Charter Board also cited Section 301 of the Charter, which
establishes the office of Mayor, and Section 401 of the Charter, which establishes
the office of Managing Director. The Charter Board reasoned that because the
Charter establishes two separate offices, they must be occupied by two different
persons. See also Section 311 of the Charter (the Mayor “shall appoint a full-time
officer of the City who shall have the title of Managing Director….”); R.R. 123a.
            Finally, the Charter Board considered the Administrative Code of the
City of Reading.     Section 1-141 of the Administrative Code authorizes the
Managing Director to issue employee “memoranda” or to reassign an employee to
                                        5
another position. Likewise, Section 1-181 of the Administrative Code makes the
Managing Director the administrator of the department of finance. The Charter
does not authorize the Mayor to reassign employees or to transfer funds. The
Charter Board concluded that Mayor Spencer violated these provisions by taking
these actions in the name of the Managing Director.
             Based on the above findings, the Charter Board imposed a public
censure on Mayor Spencer; an administrative fine of $1,000 to defray the cost of
the investigation; and a $4,000 fine for violating the above provisions of the
Charter and the Administrative Code. The $4,000 fine was based on the number of
violations, the seriousness of the violations, and the willful and intentional conduct
of the Mayor.
             Mayor Spencer appealed to the trial court, arguing that the Charter
Board erred in finding that he violated the Charter and Administrative Code and in
failing to consider the Mayor’s defense that he justifiably relied on the Charter
Board’s Advisory Opinion No. 22 when he performed the duties of Managing
Director.3 The trial court agreed, holding that the Charter Board capriciously



3
 Article VI of the City of Reading Charter Board Ordinance, which is Appendix A of the
Charter, provides as follows:
       Upon written request of any public official or city employee, or without such
       request should a majority of the Board deem it in the public interest, the Board
       may render advisory opinions concerning matters of home rule or enforcement of
       the City Charter. All advisory opinions shall be issued in writing and may include
       any redactions necessary to prevent disclosure of the identity of the person who is
       a subject of the opinion.
       An advisory opinion may be used as a defense in any subsequent investigation or
       prosecution, provided that the official or employee who sought the opinion did so
       in good faith and only to the extent material facts were not misrepresented in the
       request for the opinion.
(Footnote continued on the next page . . .)
                                            6
disregarded the defense provided by Advisory Opinion No. 22. The trial court held
that

             Advisory Opinion No. 22 makes clear the Charter is being
             interpreted by the Board to mean the appointment of a
             Temporary Managing Director is permissive, but can only
             occur after the first 90 days if there is not a filling of that
             vacancy.

Trial Court opinion at 5. In this case, Geffken resigned on March 15, 2012.
According to the terms of Advisory Opinion No. 22, the Mayor could not appoint a
Temporary Managing Director before June 15, 2012. All of the actions found by
the Charter Board to have violated the Charter and the Administrative Code
occurred during this initial 90-day period.4 Therefore, the trial court refused “to
adhere to the notion that [the Mayor] violated the Charter when the actions he
undertook were in direct reliance upon a clear Advisory Opinion approved by the
Charter Board.” Trial Court opinion at 6. Accordingly, the trial court reversed and
vacated the final opinion and order of the Charter Board. The Charter Board now
appeals.
             On appeal, the Charter Board argues that: (1) the trial court did not
apply the proper standard of review; (2) the trial court erred by substituting its own
judgment for the Board’s and relying upon an incorrect interpretation of Advisory
Opinion No. 22; (3) the Board’s adjudication was supported by substantial
evidence; (4) the trial court erred in considering matters outside the record; and (5)



(continued . . .)
CHARTER, APPENDIX A; R.R. 176a. The Charter Board agrees that an advisory opinion may be
used as a defense.
4
  The Charter Board does not challenge this conclusion.


                                           7
the trial court erred in concluding that the Board could not assess a fine against
Mayor Spencer.
             Mayor Spencer has filed a motion to quash the instant appeal, arguing
that the Charter Board, an adjudicatory tribunal, lacks standing to appeal a reversal
of its adjudication.
                             Motion to Quash Appeal

             We begin with the motion to quash. Mayor Spencer argues that the
Charter Board lacks standing to appeal for two reasons. First, as an adjudicatory
tribunal, the Charter Board could not be aggrieved by the trial court’s order
reversing its adjudication, any more than a court of law can be aggrieved by an
appellate court reversal of its decision. Second, any standing conferred upon the
Charter Board by reason of its prosecutorial function is destroyed because this
appeal is being pursued by the adjudicative side of the Board, which, in turn,
improperly commingles the Board’s prosecutorial and adjudicative functions. We
consider these two standing arguments seriatim.
             In support of his first standing argument, Mayor Spencer cites to
Appeal of Board of Adjustment, Lansdowne Borough, 170 A. 867 (Pa. 1934). In
Lansdowne, the board of adjustment denied an application for a special exception.
The landowners appealed to the trial court, and it reversed the decision of the board
of adjustment. The board of adjustment appealed the trial court’s order. The
Pennsylvania Supreme Court held that the board of adjustment was an adjudicatory
tribunal, not an agency, and, thus, could not be aggrieved by the trial court’s order.
Accordingly, it lacked standing to appeal.
             The Charter Board counters that Lansdowne is not applicable because
the Charter Board has been assigned functions that give it a stake in the outcome of

                                          8
its decisions. The Charter Board claims to have been modeled after the State
Ethics Commission, which was created to administer, prosecute, enforce, and
adjudicate cases under the Public Official and Employee Ethics Act, 65 Pa. C.S.
§§1101-1113. Specifically, pursuant to the Charter Board Ordinance, the Charter
Board has the power and duty to “[h]ear and decide all complaints alleging
violations of the Charter and Administrative Code.” CHARTER BOARD ORDINANCE
§III.A.(1); R.R. 163a. Further, the Charter Board may impose penalties, initiate
preliminary investigations, issue subpoenas, adopt rules and regulations, issue
advisory opinions, enforce and interpret the City’s Home Rule Charter and “have
all other powers necessary” to effectuate the Charter.               CHARTER BOARD
ORDINANCE §§II and III.A.(1)-(7); R.R. 160a-163a. As such, the Charter Board’s
interest in appeals from its decisions is direct and substantial.
             The basic principle of standing is that a person is not adversely
affected or aggrieved by a judicial determination unless he has a direct and
substantial interest in the matter. William Penn Parking Garage, Inc. v. City of
Pittsburgh, 346 A.2d 269, 280 (Pa. 1975). In the context of an agency, “when the
legislature statutorily invests an agency with certain functions, duties and
responsibilities, the agency has a legislatively conferred interest in such matters.”
Pennsylvania Game Commission v. Department of Environmental Resources, 555
A.2d 812, 815 (Pa. 1989). Here, the Charter Board argues that its interest is direct
and substantial because the trial court’s ruling directly conflicts with its ability to
enforce and interpret the Charter. If the Charter Board is unable to appeal a
reversal, its authority as guardian of the Charter is compromised.
             We agree with the Charter Board that its functions are different from
those of a zoning board, i.e., the tribunal held to have lacked standing in


                                           9
Lansdowne. The Charter was adopted pursuant to the Home Rule Charter and
Optional Plans Law, 53 Pa. C.S. §2941. A home rule charter has the force and
status of an enactment of the legislature. In re Addison, 122 A.2d 272 (Pa. 1956).
Where an agency has been given “certain functions, duties and responsibilities” it
is deemed to have been “conferred” an interest, absent statutory language to the
contrary. Pennsylvania Game Commission, 555 A.2d at 815. Through direct
democracy, the citizens of the City enacted the Charter Board’s enabling
legislation, i.e., Amendment I of the Charter.               The Charter confers upon the
Charter Board the power and duty to enforce and interpret the Charter, adopt
necessary rules and regulations, and conduct investigations. The Charter does not
limit the Charter Board’s function to that of adjudicating disputes. Thus, the
Charter Board has a direct and substantial interest in this appeal.5

5
  In his brief to this Court, Mayor Spencer argues that the Charter Board lacks authority to hear
any cases and, thus, lacked jurisdiction to adjudicate this case. The Mayor admits that he did not
raise this issue to the trial court, but argues it is not waived because it involves subject matter
jurisdiction.
        The Charter Board counters that Amendment I, Section 2(b) of the Charter gives it
jurisdiction to
        hear and decide all cases alleging violations of the Charter or Administrative
        Code, except that its jurisdiction shall not extend to any case arising under the
        Ethics Code or the Personnel Code. Insofar as permitted by state law the Board
        shall issue binding opinions, impose penalties and administrative fines, refer cases
        for prosecution, and conduct investigations on its own initiative and on referral or
        complaint. City Council shall appropriate sufficient funds to enable the Board to
        perform the duties assigned to it, including expenses for independent counsel and
        other necessary staff.
CHARTER, AMENDMENT I, §2(b); R.R. 107a-08a. Accordingly, the Charter Board argues that it
has authority to hear this case and if the Mayor wanted to challenge this authority he needed to
raise that issue before the trial court. We agree.
      A home rule charter has the force and status of an enactment of the legislature. In re
Addison, 122 A.2d 272 (Pa. 1956). As such, it is presumed constitutional and the burden of
proving otherwise rests on the party alleging unconstitutionality. Cali v. City of Philadelphia,
(Footnote continued on the next page . . .)
                                                10
               In his second standing argument, Mayor Spencer cites our Supreme
Court’s seminal decision in Lyness v. State Board of Medicine, 605 A.2d 1204 (Pa.
1992), which held that the right to a fair and impartial tribunal prohibits the
commingling of prosecutorial and adjudicatory functions. Mayor Spencer argues
that the appeal to this Court is being prosecuted by the Charter Board’s solicitor,
who advised the Charter Board in the instant adjudication. The solicitor appeared
at the evidentiary hearing, giving advice to the Charter Board outside the presence
of counsel for both parties. Mayor Spencer contends that the Charter Board’s
appeal violates Lyness because it impermissibly commingles adjudicatory and
prosecutorial functions of the Charter Board.
               In Lyness, the agency in question was a professional licensing board
whose members determined there was sufficient evidence to initiate a disciplinary
action against a physician and, then, later adjudicated the merits of the action
brought against the physician. The Lyness court was concerned with the licensee’s
right to a fair and impartial tribunal, and its focus was on the hearing before the
administrative agency. Here, Mayor Spencer does not claim that the Charter



(continued . . .)
177 A.2d 824 (Pa. 1962). Constitutional challenges do not need to be raised at the administrative
agency level, as agencies do not decide constitutional questions. See 2 Pa. C.S. §753. However,
constitutional challenges must be made to the first court to hear the appeal. Lehman v.
Pennsylvania State Police, 839 A.2d 265, 276 (Pa. 2003).
        Although Mayor Spencer attempts to categorize this issue as one of subject matter
jurisdiction in order to avoid waiver, it is really a challenge to the constitutionality of the Charter
provision giving the Board the authority to decide, inter alia, the complaint against Mayor
Spencer. The Mayor needed to challenge the constitutionality of the Charter before the trial
court. Because he failed to do so, it is waived. Newcomer v. Civil Service Commission of
Fairchance Borough, 515 A.2d 108, 110 (Pa. Cmwlth. 1986) (constitutional challenge not raised
before the trial court is waived on appeal to this Court).


                                                 11
Board’s prosecutorial and adjudicatory functions were not properly separated
during the investigation and hearing phase of the proceeding. Lyness is inapposite.
               Accordingly, we deny Mayor Spencer’s motion to quash the appeal.

                                    Charter Board Appeal

               The Charter Board’s first issue on appeal is whether the trial court
applied the proper standard of review. The Charter Board argues that the trial
court recited the correct standard of review under Section 754(b) of the Local
Agency Law,6 but then erred by concluding that the Charter Board capriciously
disregarded the evidence. The Charter Board contends that the latter occurs where
“the fact-finder deliberately ignores relevant, competent evidence.” Capasso v.
Workers’ Compensation Appeal Board (RACS Associates, Inc.), 851 A.2d 997,
1002 (Pa. Cmwlth. 2004), and that did not occur in this case. We disagree.
               The Charter Board’s finding that Mayor Spencer violated the Charter
by taking on “the power, mantel [sic] and authority of the Managing Director,”
Charter Board Final Opinion and Order at 27, hinged on the Charter Board’s
determination that “[t]he Mayor had an option, which he did not exercise” to
“appoint a Temporary Managing Director” pursuant to the Charter. Id. at 28. The
trial court found that the Mayor properly relied upon the Charter Board’s Advisory


6
  Section 754(b) states that where a complete record was developed before the local agency and
the trial court does not take additional evidence,
       the [trial] court shall affirm the adjudication unless it shall find that the
       adjudication is in violation of the constitutional rights of the appellant, or is not in
       accordance with the law, or that the provisions of [local agency practice and
       procedure have been violated], or that any finding of fact made by the agency and
       necessary to support its adjudication is not supported by substantial evidence.
2 Pa. C.S. §754(b) (emphasis added).


                                                 12
Opinion No. 22, which stated, explicitly, that the Mayor could not exercise this
appointment power until 90 days had passed following the first day of vacancy in
the Managing Director position. There is no dispute that an advisory opinion is a
valid “defense” to prosecutions brought by the Charter Board. CHARTER BOARD
ORDINANCE ARTICLE VI, APPENDIX A OF THE CHARTER. We agree with the trial
court that the Charter Board capriciously disregarded the Advisory Opinion by
simply stating in a footnote that it was irrelevant, with no analysis.
              In its second issue, the Charter Board argues that the trial court erred
by substituting its own judgment for that of the Board in rejecting the Charter
Board’s interpretation of its own Advisory Opinion No. 22.7 Advisory Board
Opinion No. 22 states, in relevant part, as follows:

              The time limitations and appointment powers of Section 401(a)
              and 401(d) [of the Charter] must be read in pari materia.
              Importantly, the clear language of Section 401(d) does not
              empower the Mayor to appoint a Temporary Managing Director
              until the Mayor cannot fill the position of Managing Director
              under Section 401(a) and Section 401(a) provides that during
              the first 90 days of taking office the Mayor “shall appoint a
              Managing Director.” Section 401(a) is silent regarding an
              appointment of a Temporary Managing Director during the first
              90 days of a Mayor’s term.
              Therefore, without any hesitation, the Charter clearly provides
              that the appointment of the Temporary Managing Director shall
              not exceed 90 days. Charter § 401(d). The time line mandated
              by the Charter is strict. Within 90 days of taking office the
              Mayor shall appoint a Managing Director. Charter § 401(a).


7
 The Charter Board argues that the trial court could not rely upon the Advisory Opinion at all
because it is not law. However, neither the trial court nor the Mayor has suggested that the
Advisory Opinion has the force of law or that the Charter Board is bound by it. In any event, the
Charter Board itself concedes that the Mayor could invoke an Advisory Opinion as a defense
pursuant to Charter Board Ordinance Article VI, Appendix A of the Charter.


                                               13
             After that first 90 day period, if the Mayor is unsuccessful in
             making that appointment, the Mayor may then appoint a
             Temporary Managing Director “for a period of time not to
             exceed ninety (90) days.” Charter § 401(d). In the event that
             the position of Managing Director is not filled by the Mayor
             within 180 days, City Council must hire a Managing Director
             within 90 days thereafter. Charter § 401(e). Thus, the Charter
             mandates a maximum period of time of 270 days until a
             Managing Director must be hired or a vacancy in the position of
             Managing Director must be filled under Section 403 [which
             provides that Section 401 applies when a vacancy occurs].

Advisory       Opinion        No.       22       at      4,       available       at
http://www.readingpa.gov/sites/default/files/boards/charter_board/advisory_opinio
ns/Adv_Op_22_Signed.pdf.
             The Charter Board asserts that the trial court misconstrued this
sentence in the second paragraph of the Advisory Opinion: “After that first 90 day
period, if the Mayor is unsuccessful in making that appointment, the Mayor may
then appoint a Temporary Managing Director.” The Charter Board contends that,
when read in context, the purpose of this sentence is to establish the maximum
term of service for a Temporary Managing Director. It does not mean, as the trial
court reasoned, that the Mayor may not appoint a Managing Director in the first 90
days following a vacancy.
             The Advisory Opinion was issued to address the maximum period of
time a Temporary Managing Director may serve and how such an appointment
impacts City Council’s ability to fill the position. In addressing these issues, the
Charter Board examined Section 401 of the Charter and identified three 90-day
periods.   In the initial 90-day period, the Mayor has the power to appoint a
Managing Director with the approval of City Council. In the second 90-day
period, the Mayor has the power to appoint a Temporary Managing Director


                                        14
without the need for City Council approval. In the final 90-day period, City
Council will hire the Managing Director without the need for the Mayor’s
approval. It is irrelevant whether the Charter Board’s analysis of Section 401 in
the Advisory Opinion was correct.              Mayor Spencer reasonably relied on the
Advisory Opinion, and the trial court’s interpretation of the Advisory Opinion to
support Mayor Spencer’s position was also reasonable. Thus, the trial court did
not err in holding that the Advisory Opinion provided a valid defense to the
charges against Mayor Spencer.
               In its third issue, the Charter Board argues that its adjudication was
supported by substantial evidence. It found that the Charter created the offices of
Mayor and Managing Director to be separate positions. Therefore, Mayor Spencer
violated numerous sections of the Charter and the Administrative Code by
performing the duties of both positions. We disagree.
               To begin, none of the provisions cited by the Charter Board
specifically prohibit the Mayor from performing both jobs during a vacancy in the
Managing Director position.            They are general provisions setting forth the
respective duties of a Mayor and a Managing Director. The Charter Board’s
argument is premised on its conclusion that Mayor Spencer had the authority to
appoint a Temporary Managing Director during the first 90 days of the vacancy
and its argument that his reliance on Advisory Opinion No. 22 was misplaced. As
noted above, these claims lack merit.8 It also bears noting that no member of City


8
  In its brief, the Charter Board asserts that the Mayor did not possess the “qualifications” to be
the Temporary Managing Director. This was not raised as a specific allegation of error. Section
401(b) of the Charter requires the Managing Director to have a college degree in public or
business administration and several years of executive or administrative experience. However,
this requirement is specifically set forth in the Charter for “candidates” for the office of
(Footnote continued on the next page . . .)
                                               15
Council objected to Mayor Spencer performing both positions during the period of
time he was doing so.
              In its final issue, the Charter Board contends that the trial court erred
in considering matters outside the record. During the hearing, the trial court
observed that it was inappropriate to expend City funds on this litigation because
no harm was alleged to have occurred. Further, given that the Managing Director
serves at the Mayor’s pleasure and reports to the Mayor, the trial court perceived
no reason why Mayor Spencer could not temporarily perform the duties of
Managing Director himself. The trial court opined that the Charter Board was
politically motivated in filing its complaint against the Mayor and imposing
sanctions. Mayor Spencer points out that this was the second time the Charter
Board had come before the trial court attempting to sanction him. In both cases the
complaints were filed by a City Council member who was a political opponent of
Mayor Spencer.
              In its appeal to this Court, the Charter Board does not cite any
authority for reversing the trial court’s order based upon the above-referenced
comments. The Charter Board also did not object to the trial court’s statements at
the hearing or request recusal. In any event, the trial court did not decide the
matter based on its comments, which were obiter dicta. The trial court decided the
case on the facts and law presented. Thus, no error has been established.9

(continued . . .)
Managing Director and the “hiring of a replacement” by City Council. CHARTER §§401(b) and
(e), 402; R.R.124a. The Charter is silent regarding whether a Temporary Managing Director
appointed by the Mayor is also subject to these qualifications. CHARTER §401(d); R.R. 124a.
9
  The Charter Board’s fifth claim is that the monetary amounts of the fines imposed were within
the guidelines of the Charter. Because we agree with the trial court that Mayor Spencer
established a proper defense to his actions, we need not address this issue.


                                              16
                                     Conclusion

             For all of the foregoing reasons, Mayor Spencer’s motion to quash is
denied and the order of the trial court is affirmed.

                                               ______________________________
                                               MARY HANNAH LEAVITT, Judge

Judge Leadbetter did not participate in the decision in this case.




                                          17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Honorable Vaughn D. Spencer,    :
Mayor of the City of Reading        :
                                    :
            v.                      :   No. 1865 C.D. 2013
                                    :
City of Reading Charter Board,      :
                  Appellant         :


                                   ORDER

            AND NOW, this 8th day of August, 2014, the Motion to Quash filed
by The Honorable Vaughn D. Spencer is DENIED and the order of the Court of
Common Pleas of Berks County, dated September 17, 2013, is AFFIRMED.


                                          ______________________________
                                          MARY HANNAH LEAVITT, Judge
