dissenting.
I respectfully dissent.
I believe that the failure of the trial court to address the preliminary objections of Dale King, Michael D. Juliana, and *97Michael J. McHugh (Appellants) does affect substantial rights of the Appellants, because disposition of the first preliminary objection brings this controversy to a conclusion.
The first preliminary objection of the Appellants, in the nature of a motion to strike, stated that a “Petition to Certify a Vacancy is not a pleading allowed under Pennsylvania Rules of Civil Procedure 1017____” This preliminary objection raises the issue of whether there is a lack of conformity to law, or in other words the unavailability of any cause of action to the Petitioners.
The legal basis cited by Petitioners for the relief they sought was Section 420 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65420, which reads as follows:
§ 65420. Vacancies in general
If the electors of any township shall fail to choose a supervisor, tax collector, auditor or assessor, or if any person elected to such office shall neglect or refuse to serve therein, or if a vacancy shall occur in the office by death, resignation, removal from the township, or otherwise, a majority of the remaining supervisors may appoint a successor who is a registered voter and upon their failure to make such appointment within thirty days after the vacancy occurs, the vacancy shall be filled within fifteen additional days by the vacancy board. Such board shall consist of the board of supervisors and one registered elector of the township, who shall be appointed by the board of supervisors at the board’s first meeting each calendar year or as soon thereafter as practical and who shall act as chairman of the vacancy board. If the vacancy board fails to fill the position within the time prescribed, the chairman shall, or in the case of a vacancy in the chairmanship the remaining members of the vacancy board shall, petition the court of common pleas to fill the vacancy. In the case where two or more vacancies in the office of supervisor occur on a three member board, or three or more vacancies on a *98five member board, the court of common pleas shall fill such vacancies upon presentation of petition signed by not less than fifteen registered electors of the township. In all cases, the successor so appointed shall hold the office until the first Monday in January after the first municipal election occurring more than sixty days after the vacancy occurs, at which election an eligible person shall be elected for the unexpired term. (Emphasis added.)
The court of common pleas has no authority under this statute to certify a vacancy, the “relief” sought by Petitioners. The court only has the authority to appoint a member when a vacancy exists, a fact not alleged in the petition. Furthermore, the statute limits who can seek such an appointment to members of the vacancy board, or a minimum of fifteen registered electors. The Petitioners meet neither of these requirements. Accordingly, there was no basis in law to support the trial court’s action on the petition.
Furthermore, it is obvious from reading the petition, that the sole purpose of the petition was to challenge McHugh’s right to continue to hold office for his full term. The substance of the complaint and the relief sought is in the nature of removal of an elected official. Our supreme court has clearly stated that “the quo warranto action is the sole and exclusive method to try title or right to public office.” Spykerman v. Levy, 491 Pa. 470, 484, 421 A.2d 641, 648 (1980). I do not agree with the distinction made by the majority that a challenge to the length of an individual’s term is not a challenge to the right of the individual to hold office. I believe both are actions sounding in quo warranto.
Quo warranto may be instituted only by the attorney general or the district attorney, not a private citizen, unless the private citizen has a special right or interest, as distinguished from the public interest generally, or he has been specially damaged. Id., 491 Pa. at 485-486, 421 A.2d at 649. Petitioners have not alleged any special right, interest, or damage so as to permit a private quo warranto action. *99Accordingly, the trial court erred by failing to address, and grant, the preliminary objection in the nature of a motion to strike on this ground.
The trial court also erred in concluding that a vacancy existed on the board of supervisors, and that the board of supervisors had “appointed” McHugh to this vacancy. If we were to accept these findings of the trial court, we would, in effect, be eliminating the ability of elected officials to perform their duty. There can be no question that ordinances, rules and regulations can be amended or repealed. By analogy, that is what the board of supervisors did in the present case; it repealed a prior action, i.e. accepting the resignation of McHugh, as a consequence the resignation was a nullity.
Elected officials must have the ability to repeal, rescind, or amend their prior actions. If this ability is lost, our elected officials would be unable to address new or changed circumstances, because some law was enacted in the past which can not now be changed. I believe that the board of supervisors had the authority to rescind its acceptance of McHugh’s resignation, thereby voiding any vacancy that was created by its original acceptance of McHugh’s resignation. As a result, McHugh has the right to complete his full term of office.
Accordingly, for the reasons stated above, I would reverse the order of the trial court.