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A Democrat nominated to the Darby Borough Council after the vacant seat she eventually filled was not placed on a November 2003 ballot was legitimately appointed, the Commonwealth Court has ruled. In Coghlan v. Borough of Darby, a three-judge panel found that a Delaware County trial court erred when it ordered a special March 23 election that had been sought by Theresa Coghlan, a Republican who was appointed by the council in April 2003 to fill the seat of deceased husband, Michael Coghlan, but was replaced by a second appointee, Democrat Marie Howells, in January. The court concluded that Coghlan lacked the standing to pursue both a quo warranto action for Howells’ removal and an equity action for a special election. “The failure to place the council vacancy on the November 2003 ballot is redressible,” Judge Mary Hannah Leavitt wrote, “but not in this type of action, against these named defendants and at this late date. Accordingly, we reverse the trial court.” Leavitt was joined by Judge Bernard L. McGinley and Senior Judge Joseph F. McCloskey. According to the opinion, Michael Coghlan died in March 2003, and Theresa was appointed to fill his seat roughly one month later. The council as constituted at the time intended her to serve through the remainder of Michael’s term, which was due to expire in January 2006, even though Pennsylvania’s borough code calls for a vacancy to be rectified by a ballot vote at the next official municipal election. Howells’ attorney, John F. Innelli of Innelli Robertson in Philadelphia, said that when Theresa was appointed to fill her husband’s seat, Republicans controlled a majority of the council’s seats. In January, when the councilors who were victorious in the November 2003 elections took their seats, the newly constituted council — which, Innelli noted, has a Democrat majority — replaced Coghlan with Howells, the opinion states. Howells is expected to serve until just after the next scheduled municipal election, in November 2005. On Jan. 13, Coghlan filed her equity action against the borough, according to the opinion. The next day, an ex parte injunction proceeding was held with the election board solicitor, the Delaware County district attorney, Coghlan’s attorney and counsel for the borough participating. No one appeared on Howells’ behalf. At the conclusion of the ex parte proceeding, Coghlan was granted a preliminary injunction barring Howells from continuing her service as a councilwoman, the opinion states. Eventually, the trial court ordered that Howells be permanently removed from office and enjoined the council from filling the vacancy by appointment. The trial court also called for a special election to fill the vacancy on the council, according to the opinion. The borough’s financial adviser had testified that doing so would require funds to be moved from other taxpayer expenditures, the opinion states in a footnote. According to the Commonwealth Court’s docket sheet, the trial court was presided over by Delaware Common Pleas Judge Edward J. Zetusky Jr. The borough, the council and Howells appealed the lower court’s rulings. The panel found that while Coghlan enjoyed as a taxpayer the standing to challenge the failure to place the vacancy on the November 2003 ballot, she lacked the authority to challenge Howells’ right to hold the vacant seat on the council. “A quo warranto action can be brought only by the attorney general, a district attorney or a person with a special right or interest as distinguished from the right or interest of the public generally,” Leavitt wrote, citing relevant case law. She later added, “As of Jan. 5, 2004, Mrs. Coghlan was a citizen and voter with no specialized interest in the office at issue.” The opinion next focused on the borough code’s Section 901, which allows a council to fill a vacancy by appointment and mandates that any vacant seat be put on the next available municipal ballot. “The trial court’s decision simply disregarded the plain language of Section 901 of the borough code that council expeditiously appoint a replacement whenever there is a vacancy . . . ” Leavitt wrote. “ The trial court sought to sidestep this statutory scheme by holding that Section 901 did not contemplate successive appointments to the same vacancy. This is not persuasive.” The panel further concluded in a footnote that the trial court had “misconstrued the election code provisions on special elections,” which are not meant to be held by municipalities, except when ordered by the Legislature. Leavitt wrote that a timely mandamus action requesting that the election board put the vacant seat on the next ballot “may have been successful.” The Darby borough solicitor, Raymond J. Santarelli of Elliott Reihner & Siedzikowski in Blue Bell, said that the case had more to do with borough governance than election law. “This is really a case about what a borough’s duties and obligations are,” Santarelli said. Innelli said that Democrats now hold a 6-3 majority on the council, which will statutorily enable them to override any veto by Darby Mayor Paula Brown, who had publicly supported Coghlan’s appointment. “Marie Howells now holds that seat and will continue to hold it” at least until early January 2006, Innelli said. Coghlan was represented by Michael P. Pierce of Pierce & Hughes in Media. He did not immediately respond to calls seeking comment. ( Copies of the 15-page opinion in Coghlan v. Borough of Darby , PICS No. 04-0339, are available from The Legal Intelligencer . Please refer to the order form on Page 6.)

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