          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Petition of Gregory A.             :
Beluschak and at Least Five (5)           :
Electors of the First Ward of the         :
City of Clairton to Appoint Gregory       :
A. Beluschak, a Registered Elector in     :
and Resident of the First Ward of the     :   No. 275 C.D. 2017
City of Clairton, to Fill the Current     :
Vacancy on Clairton City Council for      :
The First Ward of the City of Clairton,   :
Allegheny County, Pennsylvania            :
                                          :
Re: Petition of Richard L. Lattanzi,      :
Raymond A. Kurta and Five (5)             :
Electors of the First Ward of the City    :
of Clairton to Appoint Raymond A.         :   No. 310 C.D. 2017
(“Tony”) Kurta to Fill the Vacancy        :   Submitted: April 21, 2017
on Clairton City Council Due to the       :
Passing of Councilman John A.             :
Lattanzi on October 24, 2016              :
                                          :
Appeal of: Gregory A. Beluschak           :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                              FILED: May 24, 2017


             Gregory A. Beluschak (Beluschak) appeals the orders of the Court of
Common Pleas of Allegheny County (trial court) appointing Raymond A. Kurta
(Kurta) to fill the vacancy on Clairton City Council for the unexpired term which
runs until the first Monday in January 2020. For the reasons that follow, we affirm
the orders of the trial court.


                                           I.
              John A. Lattanzi, Councilman for the First Ward of the City of
Clairton (Clairton), died on October 24, 2016, creating a vacancy on the five-
member1 Clairton City Council (Council). Section 15.24-2404(a) of the Clairton
Home Rule Charter pertaining to filling of vacancies provides:

              If a vacancy shall occur in any elective office in the
              Municipality for any reason set forth in this Charter, the
              remaining members of the Council shall fill such vacancy
              by appointing a person eligible under the Charter to hold
              such office until a successor is elected at the next
              Municipal election. Such successor will serve the
              remainder of the unexpired term. If the Council shall fail
              to fill such vacancy within forty-five (45) days after the
              vacancy occurs, then the Court of Common Pleas of
              Allegheny County shall, upon petition of the Council or
              of any five (5) electors of that ward of the Municipality
              whose Council seat is vacant, fill the vacancy in such
              office by the appointment of an eligible resident of the
              Municipality for the unexpired term of office.


              Several individuals submitted applications for the vacancy, including
Beluschak and Kurta. At a publicly-advertised meeting on November 23, 2016,
Council voted on the vacancy and split, two votes for Beluschak and two votes for


       1
         Pursuant to Clairton’s Home Rule Charter, Council is comprised of four elected
members and the Mayor of Clairton, who serves as Council President. Sections 15.3-301 and
15.3-308 of Clairton Home Rule Charter.




                                           2
Kurta. With Council unable to come to a consensus, the 45-day period provided in
Section 15.24-2404(a) expired on December 8, 2016.


              First thing the next morning, Beluschak and at least five electors filed
a petition with the trial court to appoint Beluschak to fill the vacancy (petition).
Beluschak admittedly did not provide Council, Kurta or anyone else with notice of
the petition.2 At approximately 10:00 a.m. on December 9, 2016, Beluschak and
his counsel presented the petition to Common Pleas Judge Timothy O’Reilly
(Judge O’Reilly). Believing the petition to be uncontested,3 Judge O’Reilly signed
an order (initial order) granting the petition and appointing Beluschak to fill the
vacancy. Even though it had not yet been docketed, Beluschak and his counsel
took a copy of the initial order to Magisterial District Judge Armand Martin, who
administered the oath of office to Beluschak around 12:00 p.m. At approximately
3:12 p.m., Kurta filed his own petition in the trial court to fill the Council vacancy.
Then, at approximately 4:10 p.m., Beluschak and his counsel presented the oath of
office to the City’s Manager along with Beluschak’s signed Statement of Financial
Interests form.




       2
         Counsel for Beluschak called the Department of Elections and alleges that an individual
named Mark Wallace told him that the Department did not need advance notice of the petition
because it was not an election issue.

       3
         Notably, there is no transcript of the December 9, 2016 proceedings before the trial
court. Judge O’Reilly maintains that Beluschak’s counsel represented at the time that the motion
was uncontested, which counsel denies.




                                               3
                On December 12, 2016, Richard Lattanzi, Mayor of Clairton (Mayor
Lattanzi)4 and Council President, filed a motion with the trial court seeking to have
Judge O’Reilly’s December 9, 2016 order vacated. Mayor Lattanzi argued that
Beluschak filed and presented his petition within a single day, without providing
the required ten-day notice under Allegheny County Local Rule 208.3(2)(b).
Mayor Lattanzi also noted that Judge O’Reilly’s initial order still had not been
entered on the docket.5 That same day, December 12, 2016, trial court Judge
Michael DellaVecchia (Judge DellaVecchia) signed an order scheduling a hearing
for December 20, 2016, on the petition to vacate Judge O’Reilly’s initial order.
Judge DellaVecchia also barred Beluschak from voting or attending any executive
sessions of Council pending further order of court. On December 13, 2016, Judge
O’Reilly’s initial order was finally docketed.


                At a hearing before Judge O’Reilly on December 20, 2016,
Beluschak’s counsel claimed that notice of his client’s petition was not required to
be provided to Council, Kurta or anyone else. Kurta and Mayor Lattanzi argued
otherwise, asserting that the lack of notice and swift action only one day after
expiration of the 45-day time period violated due process. The trial court agreed
with Kurta and Mayor Lattanzi, noting that Beluschak and his counsel were aware
of Kurta’s interest and the petition clearly was not uncontested as represented. The
trial court characterized this representation as sharp practice and fraud, and,


       4
           The late Councilman Lattanzi was apparently the uncle of Mayor Lattanzi.

       5
        On December 19, 2016, Mayor Lattanzi also filed a motion for reconsideration of Judge
O’Reilly’s initial order.




                                                4
therefore, vacated its initial order.        The trial court did not find persuasive
Beluschak’s argument that the only way to challenge his appointment was via a
writ of quo warranto since the appointment was made in violation of due process
and was the result of fraud.            Beluschak and Kurta’s petitions were then
consolidated and a hearing was scheduled before Judge O’Reilly on January 17,
2017, to consider any qualified applicants for the vacancy.6


              At the conclusion of the hearing, Judge O’Reilly issued an order
appointing Kurta to fill the Council vacancy. An issue then arose as to what term
Kurta would serve, specifically, whether Kurta would serve the balance of the late
Councilman’s term which runs through the first Monday in January 2020 or
whether the vacancy should be placed on the ballot for the Municipal Election in
May 2017. The trial court gave the parties 20 days to brief this issue, after which it
issued a memorandum order finding that Kurta was to serve the balance of the late
Councilman’s term and need not seek election in May 2017.                       This appeal
followed.7




       6
        At this hearing, Beluschak testified on his own behalf, as did the two Council members
who voted for him. Similarly, Kurta testified on his own behalf, as did Mayor Lattanzi, the
Councilwoman who voted for Kurta, and Kurta’s cousin.

       7
         Our review is limited to whether the trial court committed an error of law and whether
the findings were supported by the evidence. In re Appointment of District Attorney, 756 A.2d
711, 713 n.6 (Pa. Cmwlth. 2000).




                                              5
                                         II.
                                         A.
             Beluschak first argues that the trial court erred in vacating the initial
order appointing him to fill the vacancy because there are no factual disputes in the
record, all of the averments in his petition are true, and he is a qualified applicant
for the position.   Beluschak argues that once he was sworn into office and
delivered the oath and Statement of Financial Interests Form to the City Manager
on December 9, 2016, he formally held the position of Councilman, and that the
only legal remedy to challenge his qualification as a sitting public office holder
was by an action in quo warranto.


             In general, “a quo warranto action constitutes the proper method to
challenge title or right to public office.”     Matter of One Hundred or More
Qualified Electors of Municipality of Clairton, 683 A.2d 283, 286 (Pa. 1996)
(citing Andrezjwski v. Borough of Millvale, 673 A.2d 879, 881 (Pa. 1996)).
However, this assumes that the individual holding office has been duly appointed.
In his Rule 1925(a) opinion, Judge O’Reilly states that he signed the initial order
appointing Beluschak to fill the vacancy because Beluschak’s “[c]ounsel
represented this Motion as ‘uncontested’. . . .” (Trial Court’s March 27, 2017
Opinion at 2.) Judge O’Reilly went on to state that the petition was certainly not
uncontested, that counsel engaged in sharp practice in portraying it as such, and
even went so far as to say that “indeed fraud was committed when the motion was
presented as uncontested.” (Id. at 3.)




                                          6
            Judge O’Reilly also found that the appointment was made in violation
of due process given the fact that Beluschak and his counsel knew of Kurta’s
interest and yet failed to provide him or Council with notice of the petition. There
is ample support in the record for the trial court’s determination that the initial
order was obtained by fraud or at a minimum misrepresentation, and that it was
issued in violation of due process. Our Supreme Court has allowed alternative
actions such as equity or mandamus to raise claims traditionally classified as quo
warranto claims “where the exigencies of the circumstances dictated allowing such
a claim.” Matter of One Hundred or More Qualified Electors, 683 A.2d at 286-87
(collecting cases); see also Andrezjwski, 673 A.2d at 881; Spykerman v. Levy, 421
A.2d 641, 650 (Pa. 1980). Fraud and violation of due process would qualify as
exigent circumstances allowing for an alternative action. Obtaining this vacant
Council seat through a rush to the courthouse and ex parte proceedings is inimical
to the whole scheme of democratic government. Because Beluschak was not duly
appointed, a quo warranto action was not required.


            In addition, the trial court’s initial order appointing Beluschak to fill
the vacancy had not yet been entered on the docket at the time he was purportedly
sworn in by the local magistrate. Judge O’Reilly signed the initial order on
December 9, 2016, and Beluschak was sworn in by noon that same day, but the
initial order was not docketed until December 13, 2016. Until that order was
docketed, it had no legal effect for Beluschak to take the oath of office. See
Department of Transportation, Bureau of Driver Licensing v. Johns, 621 A.2d
1064, 1066 n.8 (Pa. Cmwlth. 1993) (citing Pa. R.A.P. 301(a) and noting court
order not effective and appealable until entered on the appropriate docket); Vanleer



                                         7
v. Lerner, 559 A.2d 577, 578 (Pa. Super. 1989) (indicating date an order is entered
is the date it is filed with the Prothonotary).


              In any event, Beluschak’s argument ignores the trial court’s statutory
authority to vacate an unappealed order within 30 days after entry. Section 5505 of
the Judicial Code states, “[e]xcept as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or rescind any order within 30 days
after its entry, notwithstanding the prior termination of any term of court, if no
appeal from such order has been taken or allowed.” 42 Pa.C.S. § 5505. A trial
court’s authority to rescind or modify an order within 30 days is almost entirely
discretionary, and this power may be exercised sua sponte or upon a request for
reconsideration. See Bradley Center v. North Strabane Township (Pa. Cmwlth.,
Nos. 307 and 360 C.D. 2014, filed March 31, 2015), 2015 WL 5332132 at *3;8
Verholek v. Verholek, 741 A.2d 792, 798 (Pa. Super. 1999) (citing Stockton v.
Stockton, 698 A.2d 1334, 1337 (Pa. Super. 1997)). Because the initial order had
not yet been appealed and it was within 30 days of its entry, Judge O’Reilly had
the authority to vacate his initial order. In addition, Beluschak fails to argue on
appeal that this decision constitutes an abuse of discretion.


              For all of these reasons, we affirm the trial court’s decision to vacate
the initial order appointing Beluschak to fill the vacancy.




       8
          Pursuant to the Court’s Internal Operating Procedures § 414, this unreported opinion is
cited for its persuasive value only and not as binding precedent.




                                               8
                                         B.
              Beluschak also makes the general argument that the trial court erred in
appointing Kurta to fill the vacancy rather than himself. Because Council failed to
appoint a successor within 45 days of Councilman Lattanzi’s passing, the trial
court was tasked with filling the vacancy.       See Section 15.24-2404(a) of the
Clairton Home Rule Charter. Who was going to be appointed was then within the
sole discretion of the trial court.


              Beluschak makes no argument and there is no evidence in the record
that the trial court abused its discretion in appointing Kurta.        “An abuse of
discretion is not merely an error in judgment.” Commonwealth v. Snyder, 977
A.2d 28, 41 (Pa. Cmwlth. 2009) (citation omitted).          Rather, “[i]t requires a
showing of manifest unreasonableness, partiality, ill-will, or such lack of support
as to be clearly erroneous.” Zauflik v. Pennsbury School District, 72 A.3d 773,
797 (Pa. Cmwlth. 2013) (citation omitted). The transcript of the January 17, 2017
hearing reveals that the trial court received extensive evidence and argument from
both applicants, and that it gave Beluschak’s petition full and fair consideration.
The trial court noted that both men evidenced a public spirit and desire to serve
their community.       The trial court determined that Kurta would be a better
appointment for the City given his significant community involvement, education
and life’s work experience. The trial court specifically emphasized that it did not
find Beluschak to be unqualified, but between the two, Kurta was the better choice.
As there is no evidence that the trial court’s decision was based on bias, ill-will or
manifest unreasonableness, we will not disturb the ruling on appeal.




                                          9
                                              C.
               Finally, Beluschak argues that the trial court erred in appointing Kurta
to fill the vacancy for the balance of the late Councilman’s term. Beluschak argues
that there is an internal inconsistency in the text of Section 15.24-2404(a) of the
Clairton Home Rule Charter pertaining to filling of vacancies as the first sentence
states that the individual shall “hold such office until a successor is elected at the
next Municipal election,” and the second sentence provides that the “successor will
serve the remainder of the unexpired term.” Section 15.24-2404(a) of the Clairton
Home Rule Charter. According to Beluschak, these two sentences can only be
reconciled by interpreting the Clairton Home Rule Charter to mean that whether a
vacancy is filled by Council or the trial court, the successor’s term is to be limited
by the results of the next municipal election.


               However, the first two sentences of Section 15.24-2404(a) specifically
refer to when Council acts within 45 days to fill a vacancy. Because that did not
occur in this case, the language Beluschak refers to does not apply. The relevant
portion of Section 15.24-2404(a) provides that when a trial court fills a vacancy on
the Council, the successor serves “for the unexpired term of office.”


               This does not end the inquiry as Beluschak also argues that allowing
Kurta to serve for the balance of the late Councilman’s term is inconsistent with
the Pennsylvania Election Code (Election Code),9 and is, therefore, illegal or pre-
empted by the Election Code. Beluschak cites to Sections 602 and 993 of the
Election Code, 25 P.S. §§ 2752 and 2953, for the proposition that when a vacancy

      9
          Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.



                                              10
occurs in a municipal office at least 50 days prior to a primary municipal election,
that vacancy shall be placed on the ballot for the ensuing election. Section 602 of
the Election Code provides, in pertinent part:

             The municipal election shall be held biennially on the
             Tuesday next following the first Monday of November in
             each odd-numbered year. All judges of courts of record
             of the various judicial districts and counties, and all
             counties, city, borough, township, ward, school district,
             poor district and election officers shall be elected at the
             municipal election.


25 P.S. § 2752. Section 993(b) of the Election Code pertains to filling certain
vacancies in public office by means of nomination certificates and nomination
papers, and provides, in pertinent part, that “[n]omination certificates and
nomination papers for public offices in counties, cities, boroughs, towns,
townships, wards and school districts . . . shall be filed in the office of the county
board of elections at least fifty (50) days prior to a municipal election.” 25 P.S. §
2953(b).


             These provisions do not support Beluschak’s proposition that there is
a conflict between the Election Code and the Clairton Home Rule Charter. The
Election Code provisions deal with how a person gets on the ballot to fill a vacancy
while the Clairton Home Rule Charter deals with when there is a vacancy.




                                         11
            Accordingly, for the foregoing reasons, we affirm the trial court’s
decision.




                                           DAN PELLEGRINI, Senior Judge




                                      12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Petition of Gregory A.             :
Beluschak and at Least Five (5)           :
Electors of the First Ward of the         :
City of Clairton to Appoint Gregory       :
A. Beluschak, a Registered Elector in     :
and Resident of the First Ward of the     :   No. 275 C.D. 2017
City of Clairton, to Fill the Current     :
Vacancy on Clairton City Council for      :
The First Ward of the City of Clairton,   :
Allegheny County, Pennsylvania            :
                                          :
Re: Petition of Richard L. Lattanzi,      :
Raymond A. Kurta and Five (5)             :
Electors of the First Ward of the City    :
of Clairton to Appoint Raymond A.         :   No. 310 C.D. 2017
(“Tony”) Kurta to Fill the Vacancy        :
on Clairton City Council Due to the       :
Passing of Councilman John A.             :
Lattanzi on October 24, 2016              :
                                          :
Appeal of: Gregory A. Beluschak           :




                                     ORDER


             AND NOW, this 24th day of May, 2017, the orders of the Court of
Common Pleas of Allegheny County in the above-captioned matter are affirmed.




                                              DAN PELLEGRINI, Senior Judge
