Goldsmith v. CITY COUNCIL OF CITY OF EASTON

OPINION BY

Judge LEADBETTER.

Mayor Thomas F. Goldsmith appeals from an order of the Court of Common Pleas of Northampton County that denied his motion for judgment on the pleadings, granted the motion for judgment on the *566pleadings filed by defendants City Council of Easton, Josephine Smull, Daniel Corpora, John Wagner, Burns Bamford, and Timothy Pickel, and entered judgment in favor of the defendants.1

The City of Easton is a municipal corporation organized- as a Third Class City under the laws of this Commonwealth, and it operates pursuant to the Optional Third Class City Charter Law, Act of July 15, 1957, P.L. 901, as amended, 53 P.S. §§ 41101^41625. Section 304 of the Act, 53 P.S. § 41304, provides that, “[t]he general grant of municipal power contained in this article is intended to confer the greatest power of local self-government consistent with the Constitution of this State.” Under the Act, a city may choose to adopt any of the optional plans of government afforded in the Act and, on November 3, 1970, City of Easton voters approved and adopted the “mayor-council plan A” form of government set forth in Section 401 of the Act, 53 P.S. § 41401.

Under the mayor-council plan A form of government, a city “shall be governed by,” inter alia, “an elected council, an elected mayor, an elected treasurer and an elected controller.... ” Section 402 of the Act, 53 P.S. § 41402. Further, with respect to this form of government, Section 410(a) of the Act, 53 P.S. § 41410(a), provides that, “[t]he council shall appoint a city clerk, who shall serve as clerk of the council ...” and Section 410(b) of the Act provides that, “[t]he council may provide for the manner of appointment of a city solicitor. ...” 53 P.S. § 41410(b) (emphasis added). Also under this optional form of government, the Mayor appoints departmental directors with the advice and consent of the council, and the Mayor has the discretion to remove the department heads after affording them notice and an opportunity to be heard. Section 415(c) and (d) of the Act, 53 P.S. § 41415(c) and (d).

On March 28, 2001, Mayor Goldsmith filed a complaint in the Northampton County Court of Common Pleas pursuant to the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541, for the purpose of determining the legality and validity of a City of Easton ordinance, enacted on February 11, 1976, governing the appointment of both the City Solicitor and the Assistant City Solicitor. This ordinance, Ordinance 2348, which is codified at Article 121 of the City of Easton Ordinances, provides in relevant part:

121.01 APPOINTMENT AND ASSISTANTS.
The City Solicitor shall be appointed by resolution of Council. There may be one or more assistants to the City Solicitor as Council may from time to time deem necessary.
121.03 ASSISTANT CITY SOLICITOR.
The Assistant Solicitor shall be employed by resolution of Council and shall serve at the pleasure of Council. He shall not be required to post bond or take an oath of office. He shall perform work assigned to him by the City Solicitor subject to the control and supervision of the City Solicitor.

Specifically, Mayor Goldsmith requested in his complaint that the common pleas court determine and declare to be invalid exercises of the power of Council that portion of Art. 121.01 providing that “[t]he City Solicitor shall be appointed by resolution of Council” and that portion of Article 121.03 providing that “[t]he Assistant So*567licitor shall be employed by resolution of Council and shall serve at the pleasure of Council.”

In response, on April 25, 2001, the defendants filed an answer expressly denying that the mayor-council plan A form of government divests City Council of the power to appoint a city solicitor and averring that “the grant of power to City Council giving it the right to provide for the position of solicitor includes by implication the right to make provision for an assistant solicitor.” Answer, para. 24. The defendants alleged in new matter that the Mayor had previously acknowledged the validity of the ordinance in question by offering curative amendments for Council's consideration; they also alleged that the Mayor was guilty of laches. On September 12, 2001, Mayor Goldsmith filed a reply to the new matter of the defendants.

Thereafter, on September 25, 2001, the Mayor filed a motion for judgment on the pleadings of plaintiff and, on November 9, 2001, the defendants likewise filed their motion for judgment on the pleadings. In support of his motion, Mayor Goldsmith averred that, due to its lack of clarity, the proper interpretation of 53 P.S. § 41410 is governed by Section 1921(c) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(c),2 and that 53 P.S. § 41410 does not give City Council exclusive authority to appoint the City Solicitor and Assistant Solicitors. In their motion, the defendants averred that there was no genuine issue of material fact and that the only issue before the court was a question of the interpretation of law.

After the common pleas court considered both of these motions, it determined that the language of 53 P.S. § 41410(b) that “[t]he council may provide for the manner of appointment of a city solicitor” was “clear and unambiguous.” Mayor Thomas F. Goldsmith v. City Council of Easton, — Pa. D. & C.4th -, - (2002) (No. C0048CV2001002307, filed April 10, 2002), slip op. at 9. The court also determined that City Council had undertaken “a valid legislative action” in vesting itself with the authority to appoint a city solicitor. Id. In so deciding, the common pleas court noted that Council had “deviated from the customary practice of personnel appointments under the May- or-Council Plan A”, but that the enabling legislation gave it the authority to do so. The court, therefore, denied Mayor Goldsmith’s motion for judgment on the pleadings, granted the defendants’ motion for judgment on the pleadings, and entered judgment in favor of the defendants. Mayor Goldsmith then filed an appeal with this court.

On appeal, the Mayor raises one issue for our review. He asks whether the common pleas court erred in deciding that 53 P.S. § 41410(b) vested the sole and exclusive right to appoint and, confirm a city solicitor (and assistant solicitors) in City *568Council.3 Having reviewed the record and the applicable law, we find that the matter before us has been thoroughly reviewed and addressed in the opinion of the Honorable Jack Anthony Panella. Accordingly, we affirm on the basis of his well-reasoned opinion in the matter of Mayor Thomas F. Goldsmith v. City Council of Easton, — Pa. D. & C.4th - (2002) (No. C0048CV2001002807, filed April 10, 2002).4

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

ORDER

AND NOW, this 11th day of February, 2003, the order of the Court of Common Pleas of Northampton County is AFFIRMED on the basis of the opinion issued by Judge Jack Anthony Panella in Mayor Thomas F. Goldsmith v. City Council of Easton, — Pa. D. & C.4th - (2002) (Court of Common Pleas of Northampton County, No. C0048CV2001002307, filed April 10, 2002).

. Smull, Corpora, Wagner, Bamford, and Pickel are described as “duly elected Members of the City Council of the City of Easton” in the complaint filed by Mayor Goldsmith. Complaint, para. 2.

. Section 1921(c) of the Statutory Construction Act provides:

When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

. In this case involving a motion for judgment on the pleadings, the scope of our review is limited to whether the common pleas court committed an error of law. Ithier v. City of Philadelphia, 137 Pa.Cmwlth. 103, 585 A.2d 564, 565 (1991). A motion .for judgment on the pleadings is in the nature of a demurrer wherein the opposing party's well-pled allegations are viewed as true, but only those facts that are specifically admitted by the objecting party may be weighed against him. Id. A motion for judgment on the pleadings may be granted only where no material facts are in issue and the law is clear. Id.

. We note that the Common Pleas Court of Cambria County in Pfuhl v. Kleinmeyer, 75 Pa. D. & C.2d 337 (1976), reached a contrary result. We are, of course, not bound by Pfuhl, and, as it conflicts with the decision we reach today, we expressly disavow it.