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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrence T. Hall
:

:

v.

: No. 1019 C.D. 2004

: Argued: December 7, 2004
Lincoln Borough Council and the
:
Borough of Lincoln,

:

Appellants

:

BEFORE:
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER

FILED: February 1, 2005

The Lincoln Borough Council and the Borough of Lincoln (Borough)
appeal an order of the Allegheny County Court of Common Pleas (common pleas),
which granted a petition to reduce the number of Lincoln Borough council
members from five to three, pursuant to Section 818 of the Borough Code.1 Upon
review, we believe it is necessary to vacate and remand to common pleas for
further findings of fact and conclusions of law.

Section 818 of the Borough Code provides in relevant part:

1 Act of February 1, 1966, P.L. (1965), 1656, as amended, 53 P.S. § 45818.

The court of common pleas may, upon petition of
at least five percent of the registered electors of any
borough, which, according to the latest official census,
had a population of not more than three thousand, reduce
the total number of members of council for such borough
from seven to five or to three. The sufficiency of the
number of signers to any such petition shall be
ascertained as of the date when the petition is presented
to court.
The court shall give notice of the filing of such
petition by advertisement in the legal journal of the
county, if one is published in the county, and in one
newspaper of general circulation in the borough, and in
such notice shall fix a day and time for hearing. After
such hearing, the court may decrease the number of
members of council elected in such borough from seven
to five or three, as requested in the petition.
53 P.S. § 45818 (emphasis added). On December 1, 2003, Lawrence T. Hall,2
along with other citizens of the Borough, submitted a petition pursuant to Section
818 of the Borough Code to reduce the number of Borough council members from
five to three. Reproduced Record (R.R.) at 101a 14a. The petition alleged that the
Borough population, according to the latest census, was approximately 1,187, and
that the number of registered voters was approximately 700. The petition was
signed by 58 Borough residents, which, the petition alleged, was approximately six
percent of the electorate of the Borough.3

A hearing on this matter was held before common pleas on April 13,
2004. Mr. Hall testified that some of the five council members rarely attended

2 Mr. Hall is a resident and registered voter of Lincoln Borough, Allegheny County,
Pennsylvania.
3 The Borough's response to the Petition alleged that the 2000 census reflected a population
of 1,218 residents with 800 registered voters. These disparities were not significant enough to
impact the outcome of the matter.
2

meetings and that when they did, they did not always seem to participate.4 Hearing
Transcript (H.T.) at 15-21 (April 13, 2004). Mr. Robert Bentley, another resident,
confirmed Mr. Hall's testimony and further testified that he had seen copies of
canceled checks, indicating that council members were continuing to be paid,
despite having missed meetings.5 H.T. at 25 (April 13, 2004). According to Mr.
Bentley, the council would run better with only three council members because
"[t]here would be more accountability per person. There would be less fighting.
We wouldn't have Councilpeople [sic] breaking into our Borough building and
breaking into the files like we have now with five."6 H.T. at 25 (April 13, 2004).

The Borough presented testimony of Ronald Rosche, a resident of
Lincoln Borough and prior council member for 18 years. Mr. Rosche testified that
when the council was previously reduced from seven to five members "feuding
and fighting . . . seemed to increase dramatically with five individuals." H.T. at 32
(April 13, 2004). Mr. Rosche further testified that at "the majority of all the
agenda meetings everybody was in attendance." H.T. at 34 (April 13, 2004). Mr.
Rosche opined that, based on his experience, reducing the number of council

4 Specifically, Mr. Hall explained that for a period of over five to six years, although not
within the past two years, he was aware that at least two council members (Mr. Byers and Mr.
Kiger) had missed several meetings because their vehicles were absent from the parking lot
where the meetings were held. Hearing Transcript (H.T.) at 17-18 (April 13, 2004).
5 Mr. Bentley explained that Mr. Hall's testimony regarding meetings missed by council
members is supported by the Borough minutes. According to Mr. Bentley, the Borough minutes,
which are official records, contain information regarding "who is in attendance . . . whether
[each person] gave a report or not, and the content of their report." H.T. at 25 (April 13, 2004).
Of note, however, the Borough minutes were not introduced as evidence during the hearing.
6 No additional testimony was in the record regarding the "break-ins" to which Mr. Bentley
referred.
3

members from five to three would place an extreme burden on current council
members to adequately perform their duties.7

After the hearing, common pleas entered an order reducing the
number of council members from five to three, pursuant to Section 818. The court
explained:

There are less than 3,000 people in the Borough of
Lincoln. The court further finds that the petition is
sufficient. There wasn't a question, but there is [sic]
substantial signatures in the petition. I didn't even count
them all; but there is well over the required five percent
of the registered voters. It looks like 58; and the court
further finds that the advertising was done in accordance
with the law.

I'm finding that the Borough has 1,218 citizens
according to the 2000 census, and according to the
statistics of the attached petition has only 793 registered
voters.

The court finds, also, that the testimony is
convincing that the Borough has functioned with three or
four maximum councilmembers [sic] present at any
meeting. I agree with the petitioners; and I've granted
the petition to reduce council to three.

H.T. at 44-45 (April 13, 2004). The Borough filed a motion for reconsideration,
which common pleas denied. The Borough then appealed to this court.

7 Mr. Rosche explained that with the workload three council members would be required to
handle,
we would have to hire a Borough Manager . . . and that would be
in excess of 25, $35,000. So [the council members] are getting the
work done. [The Borough is] saving money by paying council $45
a month. [The citizens of Lincoln] have come to a point where they
depend on the Borough councilpeople for just about everything.
H.T. at 24 (April 13, 2004).
4

On appeal, the Borough asserts that common pleas committed several
errors of law and abused its discretion in granting Hall's petition to reduce the
number of council members. Specifically, the Borough claims that common pleas
erred: (1) by failing to apply the doctrines of res judicata and collateral estoppel,
since the same parties had already litigated a petition to reduce the number of
council members in 2001; (2) in relying upon external and extraneous criteria,
other than solely Borough population, in determining whether or not to reduce the
number of council members; (3) in failing to make specific findings of fact
regarding the sufficiency of the petition; (4) in drawing comparisons between
Borough and Township forms of government; and (5) by making inappropriate
comments and statements during and after the hearing, which reflected a bias
against the Borough.8 Because we believe that common pleas failed to consider the
relevant factors necessary to determine the Borough's res judicata and collateral
estoppel claims, we vacate and remand to common pleas for more detailed
findings.

The Borough argues that common pleas erred in failing to apply the
principles of res judicata and collateral estoppel because the court had denied an
identical petition, filed by the present appellees, to reduce the number of council
members of Lincoln Borough in 2001. The Borough asserts that since the court
denied the petition to reduce in 2001, the present petitioner was barred from
reasserting the same action in 2003.9

8 We have rearranged the order of the Borough's arguments.
9 The Borough asserts that granting the current petition allows Hall to "have a second bite of
the apple and force[s] the Borough and its citizens to incur the cost to relitigate the same issue
against the same adversaries." Brief of Appellant at 12.
5

After denying the Borough's motion for reconsideration, common
pleas issued an opinion dated July 12, 2004 in which it discussed the Borough's res
judicata and collateral estoppel arguments. The court explained, in pertinent part
that:
[t]he statute at 53 P.S. § 45818 does not contain a
limitation on the number of times that a petition to reduce
the size of council may be presented. The opinion filed
on March 27, 2002 was limited to the exclusion of
evidence of alleged misconduct of Council members. The
court determined that evidence of misconduct was
irrelevant and that the only relevant inquiry was the
current population of the Borough. The decision made in
March of 2002 was based on the record at that time. The
record at the 2004 proceeding is different and a different
result is reached.
Common Pleas' Opinion (March 27, 2002).

In this analysis, common pleas erred. The statute need not contain any
provision limiting the number of petitions which may be filed. The doctrines of
claim and issue preclusion, often referred to as res judicata and collateral estoppel,
are common law doctrines which apply under circumstances recently described in
J.S. v. Bethlehem Area School District, 794 A.2d 936 (Pa. Cmwlth. 2002), as
follows:

Res judicata encompasses two related, yet distinct
principles: technical res judicata and collateral estoppel.
Technical res judicata provides that where a final
judgment on the merits exists, a future lawsuit on the
same cause of action is precluded. Collateral estoppel
acts to foreclose litigation in a subsequent action where
issues of law or fact were actually litigated and necessary
to a previous final judgment.

Technical res judicata requires the coalescence of
four factors: (1) identity of the thing sued upon or for; (2)
identity of the causes of action; (3) identity of the persons
6

or parties to the action; and (4) identity of the quality or
capacity of the parties suing or being sued. Res judicata
applies to claims that were actually litigated as well as
those matters that should have been litigated. Generally,
causes of action are identical when the subject matter and
the ultimate issues are the same in both the old and new
proceedings.
Similarly, collateral estoppel bars a subsequent
lawsuit where (1) an issue decided in a prior action is
identical to one presented in a later action, (2) the prior
action resulted in a final judgment on the merits, (3) the
party against whom collateral estoppel is asserted was a
party to the prior action, or is in privity with a party to
the prior action, and (4), the party against whom
collateral estoppel is asserted had a full and fair
opportunity to litigate the issue in the prior action.

Bethlehem Area School District, 749 A.2d 936 (citations omitted). Thus, for
common pleas to make a determination regarding either technical res judicata or
collateral estoppel, the above elements must have been identified.

The record before us is insufficient to establish these elements. In
neither the April 13, 2004 hearing before common pleas, nor in common pleas'
subsequent opinion are the requisite res judicata and collateral estoppel elements
identified. Specifically, although there is a general discussion regarding the 2001
proceeding during common pleas' hearing in the present matter, we note that the
2001 record was never officially introduced as evidence in the current proceedings,
nor did common pleas officially take judicial notice of the prior court record.
Based upon the record before us, we cannot determine whether the Borough failed
to present sufficient information to common pleas to meet its burden or whether
common pleas had the necessary records but disregarded them because of its view
that they were irrelevant absent a statutory limitation or repetitive claims.
7

Moreover, without sufficient record information regarding the 2001 proceedings, a
merits review of common pleas' ruling of the preclusion claims cannot proceed.10

Accordingly, this matter must be vacated and remanded to common
pleas for further proceedings, consistent with this opinion.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge

10 In support of its preclusion argument, the Borough asserts the following facts: The issue
before the court in 2001 was whether the council should be reduced from five members to three
members based on the 2000 census. After a hearing on July 30, 2001, common pleas determined
that a reduction was not warranted and, therefore, denied Hall's petition. Common pleas based
its decision on the increasing population in the Borough, which it specifically held to be the only
relevant factor. The court explained that in 1995, a petition to reduce the number of council
members from seven to five had been granted by common pleas based on the 1990 census
(according to the 1990 census, the population was 1,187). At the hearing regarding the 2001
petition, however, common pleas noted that based upon the 2000 census, the population had
actually increased and, therefore, pursuant to Section 818 of the borough code, a reduction of the
number of council members was unwarranted. Of course, the instant petition was necessarily
based upon the same census [2000] as would have applied in 2001. While we agree that such
facts would support the Borough's preclusion claim, common pleas did not find any facts, and it
is not clear what records it had before it, regarding the earlier litigation.
We note that the Borough has included in its reproduced record copies of both the 2001
petition to reduce and the transcript from the 2001 hearing before common pleas. However, we
cannot consider these documents because they are not included as part of the official record
certified to this court, nor is it clear that they were ever before common pleas in this matter. See
Rosselli v. Rosselli, 750 A.2d 355, 359 (Pa. Super. 2000) (citations omitted) (explaining that a
document not filed of record does not become part of the certified record by merely making a
reproduction and placing that reproduction in the reproduced record); Frank v. Frank, 587 A.2d
340, 342, n.5 (Pa. Super. 1991) (citations omitted) (explaining that for purposes of appellate
review, what is not of record does not exist).
8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence T. Hall

:

:

v.

: No. 1019 C.D. 2004

:
Lincoln Borough Council and the
:
Borough of Lincoln,

:

Appellants

:

O R D E R

AND NOW, this 1st day of February, 2005, the order of Allegheny
County Court of Common Pleas in the above captioned matter is hereby
VACATED and REMANDED to common pleas in accordance with the foregoing
opinion.

Jurisdiction is relinquished.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge

Document Outline