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. 202 1 Richard Fidler, and Tammi Iams : Argu ed: 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

R ichard 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’ s tipulation (Stipulation)

, s ee 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 re garding 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 pre sent one issue for th is Court ’s review : whether t he trial court erred by
sustaining A p pellees’ 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 . Iam s 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
expire s in January 2026. Croft’s office term expires in January 2022 . Croft wa s 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 a rticle VI,

s ection 7 of the Pennsylvania Constitution

, P A

. C ONST

. 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 superviso rs was a change in the Township’s form of government; (3) whether the trial court erred by holding that the binding preceden t 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 tri al 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 O n April 8, 2021, Appellants filed an Action for
Declaratory Judgment and Injunctive Relief (Complaint) against the County Board
of Elections (Board of Electi ons), the Township, Shingle

, and Croft

, seeking that the

trial c ourt: declar e Section 402(e) of the Code 5 unconstitutional as applied here in ;

3 Act of May 1, 1933, P.L. 103, as amended

, 53 P.S. § 65402(d ). Section 4 02(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 superviso rs, 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 townsh ip 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 qu estion 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 candidate s 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 t erm of four years. The candidate receiving the third highest number of votes shall serve for a term of4

enjoin the enforcement of S ection 402(e) of the Code ; enjoin the B oard 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 term s ; and declar e 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 C ourt affirmed the trial court’s April 16, 2021

order denying the Peti tion

. 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

P rimary E lection. 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 susta ined 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. § 6540 3 ]

. 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 tru e all well

- pleaded material facts alleged in the complaint and all reasonable inferences deducible therefrom. A preliminary objection5 On November 2, 2021, Shingle

, Polan

, and Bauer appeared on the ballot
for Township Supervisor for the November 2, 2021 General E lection , 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 refl ect ed 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.

Pr eliminarily, 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 addit ion, 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 P olan and Bauer are indispensible parties because they were candid ates 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 pleade d 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 the ir right s would be detrimentally affected if this
Court negates that election. Appellees declare that

, because Polan and Bau er 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.

App ellants assert that

, despite having fil ed, 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, Appell ants declare that this issue is not befor e this Court;
Appellees have waived the issue; and Appellees’ arguments are inappropriate and
should be disregarded by th is 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. o f

P A

, LLC

, 252 A.3d 628, 636 (Pa. 2021) (quoting Heath v. W orkers’ C omp. A

ppeal

B d. (Pa. Bd. of Prob

. & Parole) , 860 A.2d 25, 29 ( Pa. 2004 ))

. “ Whether a court has
subject matter jurisdiction over an action is a fun damental 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 [ (P a. 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 collateral7 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 cour t to dismiss. Pa.R.C [iv] .P. [] 1032(b).

Church of the Lord Jesus Christ of the Apostolic Faith, Inc. v. S h elton

, 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 h eard. . . .
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 appropri ate.

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 of8

th e 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 R eferendum.” 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

ex pand 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 w on the May 18, 2021 P rimary E lection and, thus, are
indispensa ble parties , Appellants did not join them when they filed the Amended

C omplaint 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 , Appella nts waited until November 16, 2021, to file an Application for Leave to F ile a Second Amended Complaint (Application) with this

Court

. 8 Therein

, Appellants state d , 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 wit h 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 appl ication for leave to file a n amended complaint , the above

- quoted paragraphs reveal that Appellants are
requesting this Court to grant the m leave to amend the ir Amended Complaint to join

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

Polan and Bauer file their answers

. However, b ecause granting an application for
leave to file an amended complaint only permits Appellants to fil e an amended
complaint and the other parties to answer it in the trial court

, this Cour t 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

vacate s the trial court’s order and remand s the matter to the trial court to dismiss the
Amended Complaint for lack of jurisdiction.

___________________________ ______ ANNE E. COVEY, JudgeIN 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 17 th day of December , 20 2 1

, 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 F ile a Second Amended Action
for Declaratory Judgment and Injunctive Relief is DENIED.

Jurisdiction is relinquished.

___________________________ ______ ANNE E. COVEY, Judge