             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Varner, Lisa Robinson,               :
and Michael Hossler                          :
                                             :
                v.                           : No. 153 C.D. 2017
                                             : Submitted: February 21, 2017
Swatara Township Board                       :
of Commissioners,                            :
                  Appellant                  :


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                              FILED: March 1, 2017


                Before us1 is the appeal of the Board of Commissioners of Swatara
Township (Board) from a decision of the Court of Common Pleas of Dauphin
County (trial court) granting Jeffrey Varner, Lisa Robinson and Michael Hossler’s
(Petitioners) Petition for Declaratory Judgment by finding that under Section 401
of the First Class Township Code,2 court approval is required to change from an at-
large to a by-ward method of selecting commissioners.


       1
          This appeal was heard by a special election panel that proceeded as prescribed by
Internal Operating Procedure § 258. See Internal Operating Procedure §112(b).

       2
           Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 55401.
             Swatara Township (Township) is a First Class Township located in
Dauphin County. Because the Board failed to reapportion its wards within one
year of the decennial census to make the population of those wards as required, an
action was brought before the trial court to reapportion the nine wards from which
one commissioner was selected so that the population of each was as equal as
possible. In February 2015, the Board enacted an ordinance that eliminated the
nine member by-ward system by reducing the number of commissioners which
were to be elected at-large to five. At the 2015 municipal elections, the transition
from a by-ward to an at-large system began when five by-ward commissioners
with expiring terms were replaced by three members elected at-large. At the 2017
municipal elections, the changeover would be complete with the remaining four
by-district members with expiring terms replaced by two at-large positions, making
all five members of the Board elected at-large. However, in 2016, the Board, with
three members who were elected at-large and four members by district, enacted
Ordinance 2016-7, which changed the system back to the nine commissioners
elected by-ward system without petitioning the court.


             Petitioners then filed a declaratory judgment action contending that
Ordinance 2016-7 was void under Section 401 of the First Class Township Code,
53 P.S. § 55401, seeking a declaration that court approval was required before a
change could be made from an at-large to a by-ward system of electing
commissioners.    Section 401 of the First Class Township Code, provides, in
relevant part:




                                         2
            The court of quarter sessions, upon petition, may divide
            or redivide any township, heretofore or hereafter created,
            into wards, erect any wards out of two or more adjoining
            wards, or parts thereof, consolidate two or more wards
            into one ward, divide any wards already erected into two
            or more wards, or alter the lines or boundaries of any two
            or more adjoining wards, and may cause lines or
            boundaries of wards to be fixed and established. No
            township shall be divided or redivided into more than
            fifteen wards.

                                      ****

            Provided, That if, in townships wherein any ward shall be
            abolished as herein provided, the number of wards shall
            be reduced to less than five, then the commissioner in the
            ward or wards abolished shall continue in office for the
            term for which elected, and shall become a commissioner
            or commissioners at large from such township as
            provided in this act, with respect to townships having less
            than five wards.


55 P.S. § 55401.


            The Board opposed the declaratory judgment action, contending that
this provision was superseded by Article IX, Section 11 of the Pennsylvania
Constitution as implemented by the Municipal Reapportionment Act, Act of
December 13, 1974, P.L. 947, No. 31, 53 Pa.C.S. §§ 901-908.


            Article IX, Section 11 of the Pennsylvania Constitution provides that:

            Within the year following that in which the Federal
            decennial census is officially reported as required by
            Federal law, and at such other times as the governing
            body of any municipality shall deem necessary, each
            municipality having a governing body not entirely

                                        3
              elected at large shall be reapportioned, by its governing
              body or as shall otherwise be provided by uniform law,
              into districts which shall be composed of compact and
              contiguous territory as nearly equal in population as
              practicable, for the purpose of describing the districts for
              those not elected at large.


(Emphasis added.)


              The Municipal Reapportionment Act is the uniform law implementing
this provision. There are two operative sections, with the first providing:

              a) General rule.--Within the year following that in which
              the Federal census, decennial or special, is officially and
              finally reported and at such other times as the governing
              body deems necessary, each entity having a governing
              body not entirely elected at large shall be reapportioned
              into districts by its governing body. The governing body
              shall number the districts. (Emphasis added.)


53 Pa.C.S. § 903(a) (emphasis added).


              53 Pa.C.S. § 904 provides a role for the court in reapportionment only
if the local government does not reapportion within one year of the federal census.3
It states:




       3
         In Board of Commissioners v. Kahn, 320 A.2d 372 (Pa. Cmwlth. 1974), we held that
courts have no power to reapportion, but specifically noted that the General Assembly had not
passed implementing legislation, i.e., the Municipal Reapportionment Act.




                                             4
            (a) Petition.--If there has not been a reapportionment by
            the governing body within the year following that in
            which the Federal census, decennial or special, is
            officially and finally reported, a petition signed by one or
            more electors who are residents of the entity may be
            submitted to the court of common pleas which may then
            reapportion in accordance with this chapter.

            (b) Appointment of commissioners.--Upon receiving the
            petition to reapportion, the court may appoint three
            impartial persons as commissioners.

            (c) Report to court.--The commissioners appointed by the
            court or any two of them shall make a report to the court
            within the time the court directs and shall include with it
            a plot showing the boundaries of the present districts and
            a plot showing the districts as proposed by them, along
            with pertinent information relating to population and area
            of the proposed districts.

            (d) Action on report.--Upon presentation, the court shall
            confirm the report nisi and shall direct that notice of the
            filing of the report shall be given by publication once in a
            newspaper of general circulation stating that exceptions
            may be filed to the report within 30 days after the report
            was filed. If no exceptions are filed or if the court
            dismisses the exceptions, the court shall confirm the
            report absolutely and issue a decree. The court in its
            decree shall designate a number for each of the districts.


53 Pa.C.S. § 904.


            There is no dispute that Article IX, Section 11 of the Pennsylvania
Constitution removed from the court under the First Class Township Code the
power to reapportion, placing that duty, in the first instance, with the local
governing body. See In re Redivision of Lower Merion Township into Wards, 257
A.2d 264, 265 (Pa. Super. 1969) (“Article IX, Section 11 of the Constitution


                                         5
clearly indicates that for the first time the primary responsibility for reapportioning
municipalities shall be placed on the governing body of the municipality in which
the governing body is not entirely elected at large. This being apparent, the new
Constitution would of necessity have to supersede that portion of The First Class
Township Code which empowered the courts to reapportion such municipalities. . .
.”)   Moreover, the Municipal Reapportionment Act specifically repeals the
provisions of the First Class Township Code to the extent that they are inconsistent
with its provisions. This led the trial court to the issue of whether Section 401 of
the First Class Township Code is inconsistent with either Article IX, Section 11 of
the Pennsylvania Constitution or the Municipal Reapportionment Act.


             Finding that Section 401 of the First Class Township Code was not
inconsistent with either Article IX, Section 11 or the Municipal Reapportionment
Act, the trial court found that Ordinance 2016-7 was void ab intio. It reasoned that
both those provisions dealt with reapportionment to ensure that elected officials
selected by districts represent a population as equal as possible to other districts so
that each voter can have equal voting weight.               Because the Township
commissioners were “entirely elected at-large” when it enacted Ordinance 2016-7,
it was not to carry out those goals but was attempting to change the form of
governance by going from a five member at-large board to a nine member by-ward
board. The trial court held because that did not deal with reapportionment, Section
403 of the First Class Township Code is not inconsistent with Article IX, Section
11 or the Municipal Reapportionment Act. We agree.




                                          6
              On appeal, the Board’s main argument again is that it had the power
under Article IX, Section 11 of the Pennsylvania Constitution as implemented by
the Municipal Reapportionment Act to enact Ordinance 2016-7 to change from an
at-large to a by-ward system, and that it need not comply with Section 401 of the
First Class Township Code.4


              Shortly after it was adopted in 1968, our Supreme Court in In re
Butler Township, 264 A.2d 676 (Pa. 1970), addressed whether Article IX, Section
11 of the Pennsylvania Constitutional effectively repealed Section 401 of the First
Class Township Code. In that case, residents petitioned the Court under Section
401 of the First Class Township Code to create a new ward. Rather than create a
new ward, it was decided that all wards would be eliminated and all the
commissioners would be elected at-large. One of the arguments raised on appeal,
like here, was that court approval no longer had to be sought under Section 401 of
the First Class Township Code because that provision had been effectively
repealed by Article IX, Section 11 of the Pennsylvania Constitution. In rejecting
that argument, our Supreme Court stated:

              That section [Article IX, Section 11] requires that a
              municipality having a governing body not entirely
              elected at large shall be reapportioned by its governing
              body within the year following the year in which the
              Federal decennial census is officially reported, and at
       4
         The Board argues that it was not an elected at-large Board because it had three members
elected at-large and four by-ward, so it was authorized under the Municipal Reapportionment
Act to reinstate the by-ward system. What this argument ignores is that while there were
remaining members, the Township, when it enacted an Ordinance that changed to a five member
at-large Board, changed the form of government as of the date it was enacted and became
effective.



                                               7
             such other times as the governing body shall deem
             necessary. Whether or not this section is self-executing
             is a question not argued and which we need not now
             consider. Assuming that it is, it does not effect an
             automatic repealer of Section 401 of the First Class
             Township Code, and similar provisions of other statutes
             dealing with governmental subdivisions.               The
             restructuring of wards within a municipality, as provided
             by Section 401, can be desirable and feasible for a
             number of reasons other than to accomplish
             reapportionment.

             Conceding, however, that reapportionment may normally
             be the primary motivation for such changes in wards, we
             see no inherent incompatibility between the
             reapportionment by the governing body of a municipality
             provided by the Constitution and reapportionment
             through court-ordered ward realignments permitted by
             the First Class Township Code. The latter method could
             upon occasion be a useful complement to the former. In
             any event, it is for the General Assembly to provide by
             general law for local government within the
             Commonwealth (Article IX, Section 1 of the
             Constitution), and if it wishes to modify or repeal Section
             401 and similar provisions, it can and presumably will do
             so.


264 A.2d at 678–79 (footnote omitted).


             After this decision, the Municipal Reapportionment Act was enacted
to implement Article IX, Section 11. It did not repeal provisions of the First Class
Township Code outright, but only to the extent that they were inconsistent with its
provisions, leading to the conclusion that there were situations remaining that those
provisions would still apply.




                                         8
               As to whether Section 401 of the First Class Township Code is
inconsistent with the Municipal Reapportionment Act, the later deals with
reapportionment and nothing else, and if Section 401 is not inconsistent with
Article IX, Section 11, it similarly cannot be inconsistent with the Municipal
Reapportionment Act. As our Supreme Court stated in Butler, restructuring of
wards or elimination of wards within a municipality, as provided by Section 401,
can be desirable and feasible for a number of reasons other than to accomplish
reapportionment.


               Accordingly, for the foregoing reasons, we affirm the decision of the
trial court.



                                        ___________________________________
                                        DAN PELLEGRINI, Senior Judge




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Varner, Lisa Robinson,     :
and Michael Hossler                :
                                   :
            v.                     : No. 153 C.D. 2017
                                   :
Swatara Township Board             :
of Commissioners,                  :
                  Appellant        :




                                 ORDER


            AND NOW, this 1st day of March, 2017, the order of the Court of
Common Pleas of Dauphin County is affirmed.



                                   ___________________________________
                                   DAN PELLEGRINI, Senior Judge
