            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard D. Fegley, Diane E. Teti,      :
Edward F. Beck, and Marvin M.          :
Wheeler,                               :
                  Appellants           :
                                       :
            v.                         :
                                       :
Lehigh County Board of Elections,      :
Matthew T. Croslis, Doris A.           :
Glaessmann, and Jane M. George, In     :
their official capacity only, Chief    :
Clerk, Lehigh County Board of          :
Elections, Timothy A. Benyo, In his    :   No. 1905 C.D. 2014
official capacity only                 :   Argued: May 4, 2015


BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE McGINLEY                          FILED: September 15, 2015

            Richard D. Fegley, Diane E. Teti, Edward F. Beck, and Marvin M.
Wheeler (collectively, Appellants) appeal from an order of the Court of Common
Pleas of Lehigh County (common pleas court) that denied Appellants’ motion for
summary judgment, granted Delta Thermo Energy A, LLC’s (Intervenor/Appellee)
cross-motion for summary judgment, and dismissed Appellants’ action.
                  I. Appellants’ Motion For Summary Judgment.
              On June 2, 2014, Appellants petitioned for summary judgment1 and
alleged:
              1. On January 10, 2013 . . . [Appellants] formed a
              Petitioners’ Committee, signing the Petitioners’
              Committee Affidavit in accordance with Section 1003,
              Initiative and Referendum of the City of Allentown
              Home Rule Charter.

              2. Approximately, 3,500 signatures were gathered and
              submitted by April 15, 2013, within the specified time
              frames in the City of Allentown Home Rule Charter, and
              were filed with the Allentown City Clerk. The petition
              sought a ballot question . . . .

              3. Pursuant to the Pennsylvania Election Code[2], [Section
              977], 25 P.S. § 2937, the petition is deemed valid unless
              ‘within seven days after the last day for filing said
              nomination petition or paper, a petition is presented to
              the court specifically setting forth the objections thereto,
              and praying that the petition or paper be set aside.’
              (Emphasis in original.) [Section 977 of the Election
              Code,] 25 P.S. § 2937.

              4. The last day to file a challenge or objection to the
              petition was April 22, 2013.

              5. No challenge was ever filed against the petition.

              6. On April 22, 2013, Earth Day, Michael Hanlon,
              Allentown City Clerk, notified . . . [Appellants] that the
              City Clerk’s Office has reviewed the petitions and found

       1
         After a status conference call with the parties and the common pleas court, it was
decided that Appellants’ request to place the initiative on the November 2014 ballot would be
decided on Appellants’ motion for summary judgment and Intervenor’s cross-motion for
summary judgment.
       2
         Act of June 3, 1937, P.L. 133, as amended.



                                             2
              them to be sufficient, with 2,175 of the signatures
              confirmed to be valid Allentown City voters currently
              registered under the names and addresses provided.

              7. Per Section 1007 (A) of the Allentown Home Rule
              Charter, Allentown City Council had 60 days in which to
              vote on the proposed Allentown Clean Air Ordinance[3],
              and upon failing to adopt the ordinance, the proposed
              ordinance shall be submitted to the voters of the city.


       3
         The common pleas court succinctly summarized the Allentown Clean Air Ordinance in
its October 2, 2013, opinion and order that denied Appellants’ Petition for Preemptory Writ of
Mandamus:
               Its purpose and intent is set forth as: ‘to insure that accurate and
               complete information is available to the City and the general public
               about pollutants released from new air polluting facilities within
               the City of Allentown . . . and to exercise the authority granted
               under the Pennsylvania Air Pollution Control Act (APCA)’[“Air
               Pollution Control Act”, Act of January 8, 1960, P.L. (1959)]. It
               asserts that ‘the City . . . finds that the Pennsylvania Department of
               Environmental Protection does not possess sufficient staff,
               funding, or resources to continuously verify compliance with
               applicable environmental requirements.’ In its fifteen pages, the
               proposed ordinance is all inclusive in that it establishes standards
               more stringent than required by the state and the administration of
               an entire program of monitoring and controlling air pollution
               produced by new air polluting facilities. New air polluting facility
               is defined within the proposed ordinance as any facility, located in
               the City of Allentown, that commences operations after the
               effective date of this ordinance, which produces energy or disposes
               of waste by combusting a Solid Fuel or Waste or gases produced
               from Solid Fuel or Waste, and which is capable of processing at
               least one ton per day. Pursuant to the proposed ordinance, these
               facilities would be required to install and operate continuous
               emissions monitoring systems.              Furthermore, the proposed
               ordinance establishes the monitoring requirements, data disclosure,
               and emissions limits. Finally, the proposed ordinance includes
               declaration of public nuisance; compliance orders; fees; penalties;
               abatement and injunctions; and citizen enforcement. (Footnotes
               omitted.)

Opinion of the Common Pleas Court, October 2, 2013, at 5-6.



                                              3
8. Allentown City Council chose not to adopt the
Allentown Clean Air Ordinance, or to bring it to a vote at
all, and thus the Home Rule Charter mandates that the
ordinance be submitted to the Allentown voters in the
next municipal or general election occurring at least
ninety days after final Council action, per Section 1007
(B) of the Allentown Home Rule Charter, which would
be the November 2013 general election.

9. On or about August 1, 2013, the City Clerk forwarded
the ordinance to the Lehigh County Board of Elections
for inclusion on the November 2013 Ballot.

10. At the Lehigh County Board of Elections meeting on
August 27, 2013, Delta Thermo Energy [A, LCC]
[Intervenor/Appellee], through their [sic] council,
presented arguments against the ordinance.

11. The Board of Elections then voted unanimously not
to permit the Allentown Clean Air Ordinance to be
submitted to the voters.

12. . . . On August 29, 2013, Timothy A. Benyo, Lehigh
County Board of Elections Chief Clerk, wrote to the
Allentown City Clerk to announce the Board’s decision .
. . stating that the ‘City of Allentown Clean Air
Ordinance, as proposed does not properly recognize and
account for the Department of Environmental
Protection’s mandated approval role.’

13. The Board of Elections never returned the petitions as
required by law. [Section 976 of the Election Code,] 25
P.S. § 2936.

14. On September 19, 2013 . . . [Appellants] herein filed
an Emergency Petition for Review and Complaint in
Mandamus to challenge the decision of the Lehigh
County Board of Elections and moved for a Preemptory
Writ.
....

                            4
               16. An interlocutory order denying . . . [Appellants’]
               Motion for Preemptory Writ of Mandamus was filed on
               September 30, 2013.

               17. An appeal was taken to Commonwealth Court which
               dismissed the appeal since it determined the matter to be
               an appeal of an interlocutory order.

               18. . . . [Appellants] now seek summary judgment as
               there are no disputes as to the material facts and the only
               remaining questions are matters of law involving the
               Pennsylvania Election Code . . . .

Plaintiffs’ Motion for Summary Judgment, June 2, 2014, Paragraphs 1-14 and 16-
18 at 1-3; Reproduced Record (R.R.) at 1a-3a.


               On June 16, 2014, Lehigh County Board of Elections (Board of
Elections) and the Chief Clerk of the Lehigh County Board of Elections
(collectively, Appellees) filed an answer admitting and denying Appellants’
allegations:
               Further, the election for which the petitions sought to be
               placed on the ballot has occurred and the results certified
               so that the matter is now moot. The petitions are now
               stale. Also . . . [Appellants] raise the environmental rights
               amendment, Article I, §27 of the Pennsylvania
               Constitution, for the first time in this Motion. Thus the
               issue and argument regarding the same should be
               considered waived, or at least your Honorable Court
               should exercise your discretion as to applying the
               Supreme         Court’s     Robinson        Township      [v.
               Commonwealth, 83 A.3d 901 (Pa. 2013)] decision due to
               its inapplicability or by finding that its retroactive
               application here would be inappropriate.              . . .
               [Appellants] are guilty of laches by their failure to timely
               prosecute their actions.



                                            5
Answer of the Lehigh County Board of Elections, Its Individual Members, and Its
Chief Clerk to the Plaintiffs’ Motion for Summary Judgment, June 16, 2014,
Paragraph 18 at 2; R.R. at 78a.


       II. Intervenor/Appellee’s Cross-Motion For Summary Judgment.
              On July 1, 2014, Intervenor/Appellee responded to Appellants’
motion for summary judgment and filed its cross-motion for summary judgment
and memorandum of law:
              In contrast, the facts relied upon as the basis for DTE’s
              [Intervenor’s] Cross-Motion, contained in the motion
              record and including exhibits attached hereto, are based
              on undisputed facts and findings by PADEP
              [Pennsylvania Department of Environmental Protection]
              after full development of a record, including public
              comment and response. The law and undisputed facts
              demonstrate that DTE [Intervenor] is entitled to judgment
              as a matter of law. As discussed below, the recent
              decision of the Pennsylvania Supreme Court in Robinson
              Township does not impact this Court’s previous rulings
              against the merits of Plaintiffs [Appellants] claims, but
              creates new precedent which renders unconstitutional the
              relief Plaintiffs [Appellants] seek. Therefore, DTE’s
              [Intervenor’s] Cross-Motion should be granted,
              Plaintiffs’ [Appellants’] claims should be dismissed, and
              final judgment should be entered for Defendants
              [Appellees].

Intervenor Delta Thermo Energy A, LLC’s Response to Plaintiffs’ Motion for
Summary Judgment and Cross-Motion for Summary Judgement and Memorandum
of Law4, July 1, 2014, at 13; R.R. at 332a.

       4
         Intervenor stated in its cross-motion for summary judgment that “[i]n support of this
response and cross-motion, DTE [Intervenor relies on the accompanying memorandum of law.”
Cross-Motion for Summary Relief, Paragraph 33 at 8; R.R. at 327a.



                                              6
                     III. Decision Of The Common Pleas Court.
              The common pleas court denied Appellants’ motion for summary
judgment, and granted Intervenor’s/Appellee’s cross-motion for summary
judgment:
              . . . After evaluation, the Board found that the Ordinance
              was preempted by the Pennsylvania Air Pollution Control
              Act (APCA), 35 P.S.§§4001-4106.[5] Essentially, under
              the law, the Board determined that even if the Ordinance
              were adopted it would be invalid.

              Plaintiffs’ [Appellants’] response is concentrated on
              arguments that this Court has already rejected while their
              factual assertions are not corroborated by affidavits or
              any other evidence in the record that are contrary to the
              evidence submitted by Delta [Intervenor]. Essentially,
              the only issue the Plaintiffs [Appellants] raised in their
              motion, that this Court and the Commonwealth Court
              have not already rejected, is that Defendants [Appellees]
              failed to fulfill their duties as trustee. However, based
              upon Pennsylvania Constitution Article I §27, both
              Courts declined to put the Ordinance on the November
              2013 election ballot. Furthermore, Delta [Intervenor] has
              shown that Plaintiffs [Appellants] have improperly relied
              upon Robinson Township v. Commonwealth, 83 A.2d
              901 (Pa. 2013), in which the Pennsylvania Supreme
              Court ruled that a specific act was unconstitutional under
              Article I §27. Ultimately, this Court agrees with Delta
              [Intervenor/Appellee] that the opinion in Robinson, relied
              upon by Plaintiffs [Appellants], has no bearing on the
              APCA. Robinson does not support the relief the
              Plaintiffs requested and does not alter the provisions of
              the APCA regarding local authority and preemption.
              Robinson makes it clear that the relief Plaintiffs
              [Appellants] seek would unconstitutionally deprive the

       5
         Act of January 8, 1960, P.L. (1959) 2119, as amended. The correct cite of the law is the
“Air Pollution Control Act.”



                                               7
             Pennsylvania Department of Environmental Protection
             and the City of the ability to fulfill their duties as a
             trustee of the environmental resources of the
             Commonwealth, as required under Article I § 27 of the
             PA Constitution.

             Lastly, the proposed Ordinance is moot. The election for
             which the Ordinance was sought to be placed on the
             ballot has occurred and the results certified so that the
             matter is now moot. (Emphasis added.)

Opinion at 3 and 6.


                         IV. Appellants’ Issues On Appeal.
             Appellants raise6 the following issues that: 1) the common pleas court
erred when it failed to liberally construe the Election Code; 2) Appellees’ failure to
comply with Section 977 (Objections to nomination petition and papers) of the
Election Code, 25 P.S. § 2937, barred Appellees’ challenge to the petition; 3)
whether the Board Of Elections had the authority to “override” the initiative


      6
         In Gmerek v. State Ethics Commission, 751 A.2d 1241, 1249 n.17 (Pa. Cmwlth. 2000),
this Court stated:
                A motion for summary judgment may be properly granted only in
                those cases where the record clearly shows that there exists no
                outstanding issues of material fact and the moving party is entitled
                to judgment as a matter of law. L.J.S. v. State Ethics Commission,
                744 A.2d 798 (Pa. Cmwlth. 2000). In disposing of a motion for
                summary judgment, the record must be viewed in a light most
                favorable to the opposing party, and all doubts as to the existence
                of a material fact must be resolved in favor of the nonmoving
                party. Id. Thus a motion for summary judgment requires a
                determination whether there exists a genuine issue of material fact
                and whether the moving party is entitled to judgment as a matter of
                law. Casner v. American Federation of State, County and
                Municipal Employees, 658 A.2d 865 (Pa. Cmwlth. 1995). With
                these standards in mind, we consider the instant cross-motions for
                summary judgment . . . .



                                            8
process of the Allentown Home Rule Charter (Charter)7; and 4) the common pleas
court erred when it determined that the initiative petition was moot.


  V. Board of Elections’/Appellee’s Counter Statement Of Issues On Appeal.
              Board of Elections/Appellee raise the issue that Appellants’ appeal of
an Election Code matter was untimely and deprived this Court of jurisdiction.8


              The Board of Elections/Appellee untimely argument must be initially
addressed because if supported by the record then this Court lacks jurisdiction to
address the merits of Appellants’ appeal.


              Section 762 (Appeals from courts of common pleas) of the Judicial
Code, 42 Pa. C.S. § 762, provides:
              (a) General rule.-Except as provided in subsection (b),
              the Commonwealth Court shall have exclusive
              jurisdiction of appeals from final orders of the courts of
              common pleas in the following cases:
              ....
              (4) Local government civil and criminal matters.
              ....


       7
          Article X of the Charter provides:
                Section 1002 Initiative and Referendum
                A. Initiative. The qualified voters of the City shall have the power
                to propose ordinances to Council. If Council fails to adopt a
                proposed ordinance, the initiative process gives the qualified voters
                of the City the opportunity to adopt or reject the proposed
                ordinance at a primary, municipal or general election. (11/6/01)
                (Emphasis in original.)
        8
          Board of Elections/Appellee also argues, among other things, that Appellants failed to
file a concise statement of errors complained on appeal which resulted in a waiver of all issues
on appeal. See Brief for Appellees/Defendants, Counter-Statement of the Questions Involved at
2.



                                               9
              (B) home rule charter or local ordinances or resolutions
              (Emphasis added.); or

              (C) statutes relating to elections, campaign financing or
              other election procedures. (Emphasis added.)

              Pa. R.A.P. 903 (Time for Appeal) provides:
              (c) Special provisions. Notwithstanding any other
              provision of this rule:

              (1) An appeal from any of the following orders shall be
              taken within ten days after the entry of the order from
              which the appeal is taken: (Emphasis added.) . . . .

              (ii) An order in any matter arising under the Pennsylvania
              Election Code.[9] (Emphasis added.)

              Pa. R.A.P. 108 (Date of Entry of Orders) provides:
              (a) General rule.

              (1) Except as otherwise prescribed in this rule, in
              computing any period of time under these rules involving
              the date of entry of an order by a court or other
              government unit, the day of entry shall be the day the
              clerk of the court or the office of the government unit
              mails or delivers copies of the order to the parties . . . .
              (Emphasis added.)

              In Gomory v. Department of Transportation, Bureau of Motor
Vehicles, 704 A.2d 202, 204 (Pa. Cmwlth. 1998), this Court stated that “[p]ursuant
to Pa. R.A.P. 108, a trial court’s order is not ‘entered’ until that order has been



       9
         Appellants do not dispute that their present appeal falls under the Election Code. In
fact, a number of Appellants’ arguments are based upon the Board of Elections’/Appellee’s
alleged violation of the Election Code.



                                             10
entered by the Prothonotary[10] on the docket and notice of the order’s entry has
been given to the parties as required by Pa. R.C.P. No. 236 ….” (Emphasis in
original and added; citation omitted.)


               A review of the record establishes that on October 3, 2014, the
common pleas court entered an order that denied Appellants’ motion for summary
judgment and granted Appellees’ cross-motion for summary judgment. See
Certified Record (C.R.) at 5, Item No. 39. The common pleas court October 3,
2014, order was mailed on October 6, 2014, by the Clerk of Judicial Records of
Lehigh County. See C.R. at 5. Appellants filed its appeal to the Commonwealth
Court of Pennsylvania on Monday, October 20, 2014, which was four days beyond
the statutory ten-day limit. See C.R. at 5, Item No. 40.                  Because Appellants’
appeal was untimely, this Court lacks jurisdiction to entertain this appeal.11




       10
           Board of Elections/Appellee states in its brief that “[u]nder the Lehigh County Home
Rule Charter, as amended by referendum on November 6, 2006 and effective the first Monday of
January, 2008, the office of Clerk of Judicial Records was created . . . [t]he duties of the office
include, inter alia, the duties of a Prothonotary under the Judicial and County Codes.” Brief for
Appellees/Defendants at 14, n.4.
        11
           This Court notes that Appellants never filed a reply brief to respond to Appellees’
argument that Appellants’ appeal was untimely. This Court also notes that Appellants never
addressed the issue of whether “the Defendants [Board of Elections/Appellee] failed to fulfill
their duties as trustee.” See Opinion of the common pleas court at 6. Importantly, the common
pleas court stated this issue was the only issue before the court.



                                               11
            Accordingly, Appellants’ appeal is quashed.


                                     ____________________________
                                     BERNARD L. McGINLEY, Judge


Judge Covey did not participate in the decision in this case.
Judge McCullough dissents and wishes merely to be so noted.




                                       12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard D. Fegley, Diane E. Teti,        :
Edward F. Beck, and Marvin M.            :
Wheeler,                                 :
                  Appellants             :
                                         :
            v.                           :
                                         :
Lehigh County Board of Elections,        :
Matthew T. Croslis, Doris A.             :
Glaessmann, and Jane M. George, In       :
their official capacity only, Chief      :
Clerk, Lehigh County Board of            :
Elections, Timothy A. Benyo, In his      :   No. 1905 C.D. 2014
official capacity only                   :


                                    ORDER

            AND NOW, this 15th day of September, 2015, the appeal of Richard
D. Fegley, Diane E. Teti, Edward F. Beck, and Marvin M. Wheeler (Appellants) in
the above-captioned matter is quashed.


                                         ____________________________
                                         BERNARD L. McGINLEY, Judge
