IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Martin, Jr., Richard Fidler, :

and Tammi Iams, :

Appellants :

:

v. :

:

Donegal Township, Edward Shingle, :

Jr., and Kathleen Croft, as candidate :

for Supervisor of Donegal Township :

:

Appeal of: Richard Martin, Jr., : No. 1062 C.D. 2021

Richard Fidler, and Tammi Iams : Argued: November 15, 2021

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 17, 2021

Richard Martin, Jr. (Martin), Richard Fidler (Fidler), and Tammi Iams

(Iams) (collectively, Appellants) appeal from the Washington County (County) 

Common Pleas Court’s (trial court) September 17, 2021 order that sustained the 

preliminary objections (Preliminary Objections) of Donegal Township (Township),

1

Edward Shingle, Jr. (Shingle), and Kathleen Croft (Croft) (collectively, Appellees)

1 By May 13, 2021 Order, this Court approved the parties’ stipulation (Stipulation), see 

Martin v. Wash. Cnty. Bd. of Elections (Pa. Cmwlth. No. 486 C.D. 2021, filed May 13, 2021) 

(affirming denial of the Petition for Preliminary Injunction), wherein the parties stipulated that the 

Township is a necessary party, the Township’s Board of Supervisors voted that the Township 

“Solicitor [is] to remain neutral . . . and take no official position regarding the outcome of this 

appeal or such other litigation that might follow the outcome of this matter,” and the “Township’s 

involvement . . . will be limited to monitoring and listening to all legal proceedings.” Stipulation 

at 1-3. 
2

to Appellants’ first amended complaint for declaratory judgment and injunctive 

relief (Amended Complaint), and dismissed the Amended Complaint. Essentially, 

Appellants present one issue for this Court’s review: whether the trial court erred by

sustaining Appellees’ Preliminary Objections.

2

Appellants are elected members of the Township Board of Supervisors 

(Board of Supervisors), which, prior to the November 2020 General Election, 

consisted of five members. Iams’ office term expires in January 2022. Iams was a 

candidate for Township Supervisor in the May 2021 Primary Election, and the 

November 2021 General Election. Martin’s and Shingle’s office terms expire in 

January 2024. Shingle was a candidate for Township Supervisor in the May 2021 

Primary Election and the November 2021 General Election. Fidler’s office term 

expires in January 2026. Croft’s office term expires in January 2022. Croft was a 

candidate for Township Supervisor in the May 2021 Primary Election, and the 

November 2021 General Election. 

In the November 2020 General Election, 64% of the Township electors

voted to pass a referendum (Referendum) to reduce the Board’s composition from 

five to three members, in accordance with Section 402(d) of The Second Class 

2 Appellants set forth four issues in their Statement of the Questions Involved: (1) whether 

the trial court erred by holding that the removal of Appellants from their elected positions as 

Township Supervisors prior to the expiration of their elected terms did not violate article VI, 

section 7 of the Pennsylvania Constitution, PA. CONST. art. VI, § 7; (2) whether the trial court 

erred by holding that the Township’s referendum reducing the Township Board of Supervisors 

from five supervisors to three supervisors was a change in the Township’s form of government; 

(3) whether the trial court erred by holding that the binding precedent set forth in South Newton 

Township Electors v. South Newton Township Supervisor Bouch, 838 A.2d 643 (Pa. 2003), and In 

re Petition to Recall Reese, 665 A.2d 1162 (Pa. 2009), was not applicable to the present dispute 

regarding the constitutionality of Section 402(e) of The Second Class Township Code, Act of May 

1, 1933, P.L. 103, as amended, 53 P.S. § 65402(e); and (4) whether the trial court erred in 

sustaining Appellees’ Preliminary Objections. See Appellants’ Br. at 4. Because the first three 

issues are subsumed in the last issue, this Court has combined them herein.
3

Township Code (Code).

3, 4 On April 8, 2021, Appellants filed an Action for 

Declaratory Judgment and Injunctive Relief (Complaint) against the County Board 

of Elections (Board of Elections), the Township, Shingle, and Croft, seeking that the 

trial court: declare Section 402(e) of the Code5 unconstitutional as applied herein; 

3 Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65402(d). Section 402(d) of the 

Code provides:

In townships in which the electorate has opted for a five-member 

board, the township shall return to a three-member board of 

supervisors upon petition of at least five percent of the electors of 

the township, or under a resolution of the board of supervisors, and 

upon approval by a majority of electors voting at the next municipal 

or general election. The referendum petition shall be filed with the 

county board of elections not later than the thirteenth Tuesday 

before the next municipal or general election. The county board of 

elections shall place the question before the electors as provided 

under the “Pennsylvania Election Code[, Act of June 3, 1937, P.L. 

1333, as amended, §§ 2600-3591].” The form of the question shall 

be as follows: 

Should this township return to a Yes 

three-member board of supervisors? No 

The county board of elections shall tabulate and publish the results 

of the referendum within thirty days of the election. In no event 

shall the question of reducing the five-member board of supervisors 

be voted on more than once in any five-year period. 

53 P.S. § 65402(d).

4

In the November 2016 General Election, the Township voters passed a referendum to 

expand the Board from three members to five members.

5

53 P.S. § 65402(e). Section 402(e) of the Code provides:

At the first municipal election following approval of the question 

providing for a return to a three-member board, three supervisors 

shall be elected to serve from the first Monday of January after the 

election, when the terms of the officers of the five-member board of 

supervisors shall cease. The three candidates receiving the highest 

number of votes for the office of supervisor shall be elected. The 

candidate receiving the highest number of votes shall serve for a 

term of six years. The candidate receiving the second highest 

number of votes shall serve for a term of four years. The candidate 

receiving the third highest number of votes shall serve for a term of 
4

enjoin the enforcement of Section 402(e) of the Code; enjoin the Board of Elections 

from conducting an election for Township Supervisor in the 2021 Primary Election 

or, alternatively, from counting the votes for such offices and thereafter certifying 

the election; enjoin the removal of Martin, Fidler, and Shingle before the expiration 

of their office terms; and declare that those Supervisors can remain in office until 

their terms expire. On April 15, 2021, Appellants filed a Petition for Preliminary 

Injunction (Petition). The trial court held a hearing on that same day. On April 16, 

2021, the trial court denied Appellants’ Petition. On April 21, 2021, Appellants 

appealed to this Court. 

On April 30, 2021, Appellees filed preliminary objections to the 

Complaint. On May 13, 2021, this Court affirmed the trial court’s April 16, 2021 

order denying the Petition. See Martin v. Wash. Cnty. Bd. of Elections (Pa. Cmwlth. 

No. 486 C.D. 2021, filed May 13, 2021). On May 18, 2021, Randy Polan (Polan), 

Shingle, James Bauer (Bauer), Croft, and Iams won the Township Supervisor

Primary Election. On May 20, 2021, Appellants filed the Amended Complaint, 

wherein the Board of Elections was no longer a party. On June 1, 2021, Appellees

filed the Preliminary Objections. The trial court held a hearing on September 14, 

2021. On September 17, 2021, the trial court sustained the Preliminary Objections 

and dismissed the Amended Complaint. On September 29, 2021, Appellants 

appealed to this Court.6 

two years. After that, supervisors shall be elected under [S]ection 

403 [of the Code, 53 P.S. § 65403]. 

53 P.S. § 65402(e).

6

 ‘Where a [trial court] dismisses a complaint based on preliminary

objections, this Court’s review is limited to determining whether the

trial court committed an error of law or an abuse of discretion.’

When considering preliminary objections, we must accept as true all 

well-pleaded material facts alleged in the complaint and all 

reasonable inferences deducible therefrom. A preliminary objection 
5

On November 2, 2021, Shingle, Polan, and Bauer appeared on the ballot 

for Township Supervisor for the November 2, 2021 General Election, and ultimately 

prevailed in the election. Polan received the highest number of votes, while Bauer 

received the next highest, and Shingle received the lowest number of votes of the 

three. The Township ballot reflected that the candidate with the highest number of 

votes shall serve a six-year term, the candidate with the next highest number of votes 

shall serve a four-year term and the candidate with the next highest number of votes 

shall serve a two-year term.

Preliminarily, Appellees argue that Appellants failed to join 

indispensable parties. Specifically, Appellees contend that, because Appellants did 

not join the Board of Elections, Polan, and Bauer, the Amended Complaint should 

have been dismissed. Appellees assert that Appellants did not retain the Board of 

Elections as a party despite Appellants’ objective of cancelling the November 2, 

2021 Board of Supervisors election. Appellees aver that none of the current parties 

could implement such relief. In addition, Appellees contend that Appellants failed 

to include two of their opponents in the Board of Supervisors race, Polan and Bauer. 

Appellees claim that Appellants’ failure to join Polan and Bauer as parties to the 

instant action deprived them of the opportunity to stand against Appellants’ request 

to cancel the November 2, 2021 Board of Supervisors election. Appellees maintain 

that Polan and Bauer are indispensible parties because they were candidates on the 

ballot for that election, and, in fact, the Township voters elected them to the Board 

should be sustained only in cases when, based on the facts pleaded, 

it is clear and free from doubt that the facts pleaded are legally 

insufficient to establish a right to relief. Because a preliminary

objection in the nature of a demurrer presents a question of law, this 

Court’s standard of review of a [trial court’s] decision to sustain a 

demurrer is de novo and the scope of review is plenary.

Brown v. Wetzel, 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018) (emphasis added) (quoting Minor 

v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) (citations omitted)).
6

of Supervisors, and therefore their rights would be detrimentally affected if this 

Court negates that election. Appellees declare that, because Polan and Bauer are 

indispensible parties to the instant action and Appellants’ failure to join them as 

parties deprives this Court of the authority to affect their interests, the Court lacks 

jurisdiction to decide this case.

Appellants assert that, despite having filed, briefed, and argued 

Preliminary Objections to Appellants’ Amended Complaint, Appellees failed to 

raise any issues regarding indispensable parties until after Appellants filed the 

present appeal. As such, Appellants declare that this issue is not before this Court; 

Appellees have waived the issue; and Appellees’ arguments are inappropriate and 

should be disregarded by this Court.

Initially, “[s]ubject matter jurisdiction is a question that is not waivable 

and may be raised by a court on its own motion.” Domus, Inc. v. Signature Sys. of

PA, LLC, 252 A.3d 628, 636 (Pa. 2021) (quoting Heath v. Workers’ Comp. Appeal 

Bd. (Pa. Bd. of Prob. & Parole), 860 A.2d 25, 29 (Pa. 2004)). “Whether a court has 

subject matter jurisdiction over an action is a fundamental issue of law which may 

be raised at any time in the course of the proceedings, including by a reviewing court 

sua sponte.” Off. of Att’y Gen. ex rel. Corbett v. Locust Twp., 968 A.2d 1263, 1269

(Pa. 2009) (quoting Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008)).

Moreover,

“[i]f all necessary and indispensable parties are not parties

to an action in equity, the court is powerless to grant 

relief.” Huston [v. Campinini,] . . . 346 A.2d [258,] 259

[(Pa. 1975)]; Biernacki v. Redevelopment Auth[.] of the 

City of Wilkes-Barre, . . . 379 A.2d 1366 ([Pa. Cmwlth.] 

1977). An order of the court rendered in the absence of an

indispensable party is null and void. Columbia Gas

[Transmission Corp. v. Diamond Fuel Co., 346 A.2d 788 

(Pa. 1975)]. “Such a judgment is entitled to no authority 

or respect, and is subject to impeachment in collateral 
7

proceedings at any time by one whose rights it purports to 

affect.” [In re] Moskowitz[], . . . 196 A. [498,] 502 [(Pa. 

1938)]. When the absence of an indispensable party is 

determined, it is incumbent upon the court to dismiss.

Pa.R.C[iv].P. [] 1032(b).

Church of the Lord Jesus Christ of the Apostolic Faith, Inc. v. Shelton, 740 A.2d

751, 756 (Pa. Cmwlth. 1999).

This Court has explained:

[P]ursuant to Section 7540(a) of the Declaratory 

Judgments Act [(DJA)], 42 Pa.C.S. § 7540(a), 

[w]hen declaratory relief is sought, all persons 

shall be made parties who have or claim any 

interest which would be affected by the 

declaration, and no declaration shall prejudice the 

rights of persons not parties to the proceeding. In 

any proceeding which involves the validity of a 

municipal ordinance or franchise, such 

municipality shall be made a party and shall be 

entitled to be heard. . . . 

Section 7540(a) [of the DJA]’s requirement that all who 

have an interest in the declaration be made parties to the 

action is mandatory. A party is indispensable when his 

rights are so connected with the claims of the litigants that 

no decree can be made without impairing those rights. 

Failure to join or serve parties as required by the statute is 

a jurisdictional defect, and may be raised by a court on its 

own motion at any time, even on appeal. Where the defect 

exists, dismissal is appropriate.

Pilchesky v. Doherty, 941 A.2d 95, 101 (Pa. Cmwlth. 2008) (emphasis omitted; 

citations omitted).

In the Amended Complaint, Appellants seek an injunction to enjoin the 

election and a declaration that Section 402(e) of the Code is unconstitutional, and

that Martin, Fidler, and Shingle can carry out their terms. Appellees contend that 

the Board of Elections is an indispensable party to this action. However, now that 

the election has occurred, there is no relationship between the powers and duties of 
8

the Board of Elections, see Section 302 of the Pennsylvania Election Code,7 25 P.S. 

§ 2642 (powers and duties of county boards of election), and the dispute before this 

Court. As previously stated by this Court, “[Appellants] do not challenge the 

validity of the Referendum.” Martin, slip op. at 2-3. Accordingly, the Board of 

Elections is not an indispensable party.

However, if Appellants prevail on the merits of this case, Polan and 

Bauer will lose the positions for which the Township voters elected them. Under 

such circumstances, they “have . . . an[] interest which would be affected by the 

declaration.” Pilchesky, 941 A.2d at 101 (emphasis omitted); but see Sprague v. 

Casey, 550 A.2d 184, 190 (Pa. 1988) (“[T]he relief sought by the petitioner would 

expand the terms of [the potential parties’] appointments, and thus could not be 

adverse to their interests.” Thus, the potential parties were not indispensable.). 

Despite that Polan and Bauer won the May 18, 2021 Primary Election and, thus, are 

indispensable parties, Appellants did not join them when they filed the Amended 

Complaint on May 20, 2021, amend their Amended Complaint, or seek leave of 

court to further amend their Amended Complaint at any time prior to filing their 

appeal. 

Rather, Appellants waited until November 16, 2021, to file an 

Application for Leave to File a Second Amended Complaint (Application) with this 

Court.

8

 Therein, Appellants stated, in relevant part:

11. Should this Court grant Appellants’ [A]pplication, [] 

Polan and [] Bauer will be served with Appellants’ Second 

Amended Action for Declaratory Judgment and Injunctive 

Relief immediately and [sic] given an opportunity to 

respond.

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

8 Once Appellants filed their appeal from the trial court’s order sustaining Appellees’ 

preliminary objections and dismissing their Amended Complaint, Appellants lost their right to file 

an application for leave to file an amended complaint with the trial court. See Pa.R.A.P. 1701(a).
9

12. Additionally, should this Court grant Appellants’ 

[A]pplication, this Court will still have the requisite time 

to issue a decision on the merits of Appellants’ [a]ction 

prior to the candidates for Township Supervisor . . . being 

administered the oath of office in January of 2022.

Application ¶¶ 11-12.

Here, although Appellants filed an application for leave to file an

amended complaint, the above-quoted paragraphs reveal that Appellants are 

requesting this Court to grant them leave to amend their Amended Complaint to join 

the indispensible parties so Appellants can continue with the instant appeal after 

Polan and Bauer file their answers. However, because granting an application for 

leave to file an amended complaint only permits Appellants to file an amended 

complaint and the other parties to answer it in the trial court, this Court cannot grant 

the relief requested. Accordingly, the Application is denied.

Because Appellants’ failure to join Polan and Bauer as parties to the 

instant action “is a fatal defect depriving courts of jurisdiction to entertain an action 

for declaratory relief under the [DJA,]” Pilchesky, 941 A.2d at 102, this Court 

vacates the trial court’s order and remands the matter to the trial court to dismiss the 

Amended Complaint for lack of jurisdiction.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Martin, Jr., Richard Fidler, :

and Tammi Iams, :

Appellants :

:

v. :

:

Donegal Township, Edward Shingle, :

Jr., and Kathleen Croft, as candidate :

for Supervisor of Donegal Township :

:

Appeal of: Richard Martin, Jr., : No. 1062 C.D. 2021

Richard Fidler, and Tammi Iams :

O R D E R

AND NOW, this 17th day of December, 2021, the Washington County 

Common Pleas Court’s September 17, 2021 order is VACATED, and the matter is 

REMANDED to the trial court to dismiss Richard Martin, Jr., Richard Fidler, and 

Tammi Iams’ (Appellants) first amended complaint for declaratory judgment and 

injunctive relief for lack of jurisdiction.

Appellants’ Application for Leave to File a Second Amended Action 

for Declaratory Judgment and Injunctive Relief is DENIED.

Jurisdiction is relinquished.

_________________________________

ANNE E. COVEY, Judge