            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Committee of Seventy,                            :
Philadelphia 3.0, Jordan Strauss,                :
Brian Krisch, and Katherine Rivera,              :
                                                 :
                               Appellants        :
                                                 :
                       v.                        : No. 611 C.D. 2017
                                                 : Submitted: August 25, 2017
Anthony Clark, in his official capacity          :
as City Commissioner, Al Schmidt,                :
in his official capacity as City                 :
Commissioner, and Lisa M. Deeley,                :
in her official capacity as City                 :
Commissioner                                     :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: September 11, 2017

               The Committee of Seventy (Committee),1 Philadelphia 3.0,2 Jordan
Strauss, Brian Krisch, and Katherine Rivera3 (collectively, Petitioners) appeal the

       1
         The Committee of Seventy is a non-profit, non-partisan organization under Section
501(c)(3) of the Internal Revenue Code, 26 U.S.C. §501(c)(3), that was established in 1904 and
“works to ensure fair and well-run elections in Philadelphia and advocates for efficiency,
transparency, and ethical behavior from public officials and all branches of government.”
Reproduced Record (R.R.) at 13a.

       2
          Philadelphia 3.0 is a Section 501(c)(4) organization, 26 U.S.C. §501(c)(4), that was
established two years ago and “expends time, money, and resources backing candidates for City
Council and recruiting hundreds of citizens to run for local election-board and party office . . . .”
R.R. at 14a-15a.
order of the Philadelphia County (County) Court of Common Pleas (trial court)
denying with prejudice their petition for declaratory judgment. We affirm.
               On January 18, 2017, the principals of the Committee and
Philadelphia 3.0, as the Better Philadelphia Elections Coalition, sent the President
Judge of the trial court a letter asking the President Judge to appoint judges or
electors to “serve in the stead of the City Commissioners [as the County’s Board of
Election] for the duration of the [May 16, 2017 Municipal Primary Election
(Election)]” because there was a proposed amendment to the Philadelphia Home
Rule Charter (Charter)4 on the ballot. R.R. at 45a. While “recogniz[ing] that it has

(continued…)
       3
         Strauss is a qualified elector and was a candidate for nomination to the office of Judge
of Election for Ward 1, Division 4 of the City of Philadelphia (City) in the May 16, 2017
Municipal Primary Election (Election). R.R. at 16a. Krisch is a qualified elector and was a
candidate for nomination to the office of Judge of Election for Ward 15, Division 3 of the City in
the Election. Id. at 17a. Rivera was a candidate for nomination to the office of Inspector of
Election for Ward 31, Division 3 of the City in the Election. Id.

       4
            In 1951, the City’s electorate adopted the Charter pursuant to the First Class City Home
Rule Act (Act), Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§13101-13116; 13131-
13133; 13151-13157. See also Section 2(c) of the Act, added by Act of August 26, 1953, P.L.
1476, as amended, 53 P.S. §13132(c) (“Subject to the provisions of the [Charter] and the [Act],
the Council of the [City] shall have full powers to legislate with respect to the . . . powers,
functions and duties of the . . . City Commissioners . . . .”); Section 1-100 of the Charter
(“Pursuant to Section 1 of Article XV of the Constitution and the [Act], the City of Philadelphia
. . . shall have and may exercise all powers and authority of local self-government and shall have
complete powers of legislation and administration in relation to its municipal functions . . . . The
City shall have the power to enact ordinances and to make rules and regulations necessary and
proper for carrying into execution its powers . . . .”).

          Section 1 of the Act states that “[a]ny city of the first class . . . may amend its charter
. . . .” 53 P.S. §13101. Additionally, Section 6 states, in pertinent part:

                Amendments to the charter for the government of any city may be
               proposed by a resolution of the city council adopted with the
(Footnote continued on next page…)
                                                 2
not been the past practice of the City Commissioners to recuse themselves when a
Charter amendment has been on the ballot, nor has the [] President Judge so
required,” id., they argued that Section 301(c) of the Pennsylvania Election Code
(Election Code)5 compelled such action.

(continued…)

                 concurrence of two-thirds of its elected members. Amendments
                 . . . may also be proposed by a petition presented to the city
                 council of the city. Such petition shall be in the form prescribed by
                 the city council and shall be signed by not less than twenty
                 thousand registered electors of the city . . . . If the city council, by a
                 resolution adopted with the concurrence of a majority of its elected
                 members, shall so determine, such proposed amendments shall be
                 submitted to the qualified electors of the city for their approval or
                 disapproval; otherwise, the petition shall be deemed denied.

53 P.S. §13106. Further, Section 13 states:

                  All elections provided for in this act shall be conducted by the
                 election officers for such city in accordance with the [Pennsylvania
                 Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25
                 P.S. §§2600-3591]. The election officers shall count the votes cast
                 and make return thereof to the county board of elections. The
                 result of any such election shall be computed by the county board
                 of elections in the same manner as is provided by law for the
                 computation of similar returns at any such election. Certificates of
                 the result of any such election shall be filed by the county board of
                 elections with the city council of the city and with the Secretary of
                 the Commonwealth.

53 P.S. §13113. But see footnote 7 infra.

       5
           25 P.S. §2641(c). Section 301(c) states, in relevant part:

                  (c) Whenever a member of the board of county commissioners is
                 a candidate for nomination or election to any public office, the
                 President Judge of the Court of Common Pleas shall appoint a
                 judge or an elector of the county to serve in his stead. Whenever
(Footnote continued on next page…)
                                                     3
                On March 6, 2017, the Deputy Court Administrator responded on the
President Judge’s behalf, explaining that the President Judge “is unable to take any
official act pursuant to [the] letter,” that “[a]ny requests for the exercise of judicial
authority must be raised in an official manner, as provided by law,” and that “[i]n
light of the fact that [the President Judge] may be asked to decide the legal
question you raise, she is not able to respond to your letter.” R.R. at 49a.
                On March 27, 2017, Petitioners filed a Petition for Review in the
Nature of Mandamus with the Pennsylvania Supreme Court asking the Court to
compel the President Judge to appoint, pursuant to Section 301(c) of the Election
Code, judges or electors to serve as the County’s Board of Elections in the stead of
the City Commissioners acting in that capacity for the Election.                            The City
Commissioners were permitted leave to intervene and filed preliminary objections
to the petition. On April 19, 2017, the Supreme Court issued a per curiam order
denying the petition and dismissing the preliminary objections. See Committee of
Seventy v. President Judge of the Court of Common Pleas of Philadelphia, (Pa.,
No. 36 EM 2017, filed April 19, 2017).
                On April 24, 2017, Petitioners filed the instant petition under the
Declaratory Judgments Act6 asking the trial court to declare that Section 301(c) of

(continued…)

                there appears on the ballot a question relating to the adoption of a
                Home Rule Charter for the county or amendments to an existing
                county Home Rule Charter, the President Judge of the Court of
                Common Pleas shall appoint judges or electors of the county to
                serve in the stead of the county commissioners.

       6
         42 Pa. C.S. §§7531-7541. Section 7533 of the Declaratory Judgments Act provides, in
pertinent part, that “[a]ny person . . . whose rights, status or other legal relations are affected by a
statute [or] municipal ordinance . . . may have determined any question of construction or
(Footnote continued on next page…)
                                                   4
the Election Code applies to elections within the City “whenever there appears on
the ballot a question relating to the adoption of amendments to the Philadelphia
Home Rule Charter [(Charter)].”                R.R. at 31a.        Because the Election ballot
contained a proposed amendment to the City’s Charter, Petitioners asked the trial
court “to enter a declaratory judgment that [the named City Commissioner
Respondents (collectively, Respondents)] are statutorily ineligible to carry out the
functions of their offices as City Commissioners” with respect to their oversight of
the Election.7 Id. at 32a. Specifically, Petitioners alleged that the “county Home




(continued…)

validity arising under the . . . statute [or] ordinance . . . and obtain a declaration of rights, status,
or other legal relations thereunder.” 42 Pa. C.S. §7533.

        7
          Section 301(a) of the Election Code states that “[t]here shall be a county board of
elections in and for each county of this Commonwealth, which shall have jurisdiction over the
conduct of primaries and elections in such county, in accordance with the provisions of this act.”
25 P.S. §2641(a). However, Article 9, Section 13 of the Pennsylvania Constitution provides, in
relevant part:

                 (a) In Philadelphia all county offices are hereby abolished, and
                the city shall henceforth perform all functions of county
                government within its area through officers selected in such
                manner as may be provided by law.

                                                 ***

                 (c) All laws applicable to the County of Philadelphia shall apply
                to the City of Philadelphia.

                 (d) The City of Philadelphia shall have, assume and take over all
                powers, property, obligations and indebtedness of the County of
                Philadelphia.

(Footnote continued on next page…)
                                                   5
(continued…)

                 (e) The provisions of section two of this article shall apply with
                full force and effect to the functions of the county government
                hereafter to be performed by the city government.

                 (f) Upon adoption of this amendment all county officers shall
                become officers of the City of Philadelphia . . . .

Pa. Const. art. IX, §13(a), (c)-(f).

        In turn, Article 9, Section 2 states, in pertinent part:

                Adoption, amendment or repeal of a home rule charter shall be by
                referendum. The General Assembly shall provide the procedure by
                which a home rule charter may be framed and its adoption,
                amendment or repeal presented to the electors. . . . A municipality
                which has a home rule charter may exercise any power or perform
                any function not denied by this Constitution, by its home rule
                charter or by the General Assembly at any time.

Pa. Const. art. IX, §2.

        As outlined above, the Act provides the election procedure by which the City’s Charter
may be amended. See footnote 4 supra. However, with respect to the county offices, such as the
board of elections under Section 301(a) of the Election Code, Section 2-112(4) of the
Philadelphia Code states that “[a]ll the powers, duties and functions of the City Commissioners
in their capacity as the County Board of Elections relating to the conduct of primaries and
elections shall continue to be exercised by the City Commissioners.” See also Section 2(c) of the
Act (“Subject to the provisions of the [Charter] and the [Act], the Council of the [City] shall have
full powers to legislate with respect to the . . . powers, functions and duties of the . . . City
Commissioners . . . .”); Lennox v. Clark, 93 A.2d 834, 838 (Pa. 1953) (“It will be further noted
that [upon the adoption of the constitutional provision], all the functions of county government,
that is to say, all the activities or duties theretofore performed by the county officers, are
thenceforth to be performed by the city; the city is to take over then and there, as part of its own
government, the performance of the functions of the county government.”) (emphasis in
original).


                                                    6
Rule Charter” provision in Section 301(c) applies to the City’s Charter because:
(1) Section 301(b) of the Election Code8 expressly singles out Philadelphia County
from all other counties that have a home rule charter so it cannot be implicitly
singled out with respect to subsection (c); (2) the exclusion of “counties of the first
class” in subsection (b) would be rendered meaningless and surplusage in violation
of Section 1921(a) of the Statutory Construction Act9 unless it is construed to
include the County as one of those with a county home rule charter subject to its
provisions; (3) prior to the enactment of Section 301(c), the constitutional
consolidation of the City and the County made both one in the same subject to the
Charter so that subsection (c) applies to the County just as it applies to all other
counties subject to home rule charters; and (4) Section 301(c) applies even though
there is no conflict of interest as the amendments are placed on the ballot by City
Council and not the City Commissioners because there is no such “conflict of


       8
           Section 301(b) states, in relevant part:

                   (b) In each county of the Commonwealth, the county board of
                 elections shall consist of the county commissioners of such county
                 ex officio, or any officials or board who are performing or may
                 perform the duties of the county commissioners, who shall serve
                 without additional compensation as such. Except in counties of the
                 first class, in counties which have adopted home rule charters or
                 optional plans the board of elections shall consist of the members
                 of the county body which performs legislative functions unless the
                 county charter or optional plan provides for the appointment of the
                 board of elections.

25 P.S. §2641(b) (emphasis added).

       9
         1 Pa. C.S. §1921(a). Section 1921(a) states that “[t]he object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the General Assembly.
Every statute shall be construed, if possible, to give effect to all its provisions.”


                                                      7
interest” limitation within that subsection. R.R. at 21a-31a.10 Respondents filed
preliminary objections to the petition, asserting a lack of the trial court’s
jurisdiction due to Petitioners’ failure to join indispensable parties and Petitioners’
failure to state a claim for which relief may be granted. Id. at 78-83.
                On May 15, 2017, following hearing, the trial court issued the instant
order denying with prejudice the petition for declaratory judgment. Outlining the
authority under which the Charter was adopted and is amended, the trial court
rejected Petitioners’ assertion that it is a “county Home Rule Charter” within the
purview of Section 301 of the Election Code. Trial Court 5/15/17 Opinion at 3-4.
The trial court also outlined the legislative history of the various amended forms of
Section 301, concluding that subsection (b) does not refer to the Charter, but to a
charter enacted in other counties pursuant to the Home Rule Charter and Optional
Plans Law,11 and that subsection (c) only requires members of a county election
board to be substituted when they are running for office or an amendment to a
charter that they have enacted as part of the legislative body is on the ballot for
consideration by the electors. Trial Court 5/15/17 Opinion at 4-9. Based on the
foregoing, the trial court concluded that Section 301(c) did not require the
replacement of the City Commissioners as members of the County Election Board
in elections in which there is an amendment to the Charter. Id.12

       10
          Petitioners also pointed out that the present and former President Judges have applied
the other provision of Section 301(c) and appointed substitute members of the County Board of
Elections to sit for those City Commissioners running for reelection. See Brief of Appellants at
Exhibit B.

       11
            53 Pa. C.S. §§2901-2984.

       12
          As alleged in the petition, the trial court acknowledged, “Nonetheless, we do appoint
judges to act in place of Philadelphia’s county board of election whenever a City Commissioner
(Footnote continued on next page…)
                                               8
                 On appeal,13 Petitioners argue that: (1) Section 301(c) of the Election
Code applies to elections in Philadelphia; (2) Section 301(b)’s reference to
“counties of the first class” in conjunction with Section 301(c)’s reference to “an
existing home rule charter” renders the City Commissioners ineligible to oversee
elections involving an amendment to the Charter; and (3) for purposes of Section
301(c), the Charter did not remain a “city Home Rule Charter” but also became a
“county Home Rule Charter” when the City and the County were consolidated.
                 However, after reviewing the record, the parties’ briefs and the law,
we conclude that Petitioners’ appellate issues have been ably resolved in the
thorough and well-reasoned opinion of the Honorable Sheila Woods-Skipper.
Therefore, we affirm on the basis of the trial court’s opinion in the matter of
Committee of Seventy, Philadelphia 3.0, Jordan Strauss, Brian Krisch, and
Katherine Rivera v. Anthony Clark, in his official capacity as City Commissioner,


(continued…)

is a candidate for reelection to that position in order to avoid a conflict of interest.” Trial Court
5/15/17 Opinion at 7 n.2. The trial court also dismissed Respondents’ preliminary objections as
moot. Id. at 9 n.4.

       13
            As this Court has explained:

                  An appellate court’s standard of review in a declaratory judgment
                 action is limited to determining whether the trial court committed a
                 clear abuse of discretion or an error of law. “An appellate court
                 may not substitute its judgment for that of the trial court if the
                 determination of the trial court is supported by competent
                 evidence.” In a case where the issues are questions of law, the
                 standard of review is de novo and the scope of review is plenary.

Pirillo v. Vanco, 74 A.3d 366, 368 n.5 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa.
2014) (citations omitted).


                                                  9
Al Schmidt, in his official capacity as City Commissioner, and Lisa M. Deeley, in
her official capacity as City Commissioner, (C.P. Phila., April Term, 2017 No.
3418, filed May 15, 2017).




                                       MICHAEL H. WOJCIK, Judge




Judge Cosgrove did not participate in the decision of this case.




                                         10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Committee of Seventy,                       :
Philadelphia 3.0, Jordan Strauss,           :
Brian Krisch, and Katherine Rivera,         :
                                            :
                          Appellants        :
                                            :
                   v.                       : No. 611 C.D. 2017
                                            :
Anthony Clark, in his official capacity     :
as City Commissioner, Al Schmidt,           :
in his official capacity as City            :
Commissioner, and Lisa M. Deeley,           :
in her official capacity as City            :
Commissioner                                :

                                    ORDER


             AND NOW, this 11th day of September, 2017, the order of the
Philadelphia County Court of Common Pleas dated May 15, 2017, is AFFIRMED.




                                          __________________________________
                                          MICHAEL H. WOJCIK, Judge
