# Electors of the City of York v. M. Helfrich, Mayor of the City of York ~ Appeal of: H. Nixon

> Commonwealth Court of Pennsylvania · February 26, 2024

URL: https://www.frixlaw.com/law-library/cases/9943891

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** February 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** McCullough, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Electors of the City of York, :
Appellant :
: No. 750 C.D. 2022
v. :
: Argued: June 6, 2023
Michael Helfrich, Mayor of :
the City of York :
:
Appeal of: Henry Nixon, :
Katherine Young, Steven Young, :
Burton Parry, Elizabeth Culp, :
Judith McKee, Thomas McKee, :
Judy Ritter-Dickson, Darnell :
Bowman, Shilvosky Buffaloe, :
Carla Evette Freeland, Lois :
Garnett, Tim Garnett, Sarai :
Kearse, Wajid DeShields, :
Marcus DeShields, Shareef :
Hameed, Antonietta Smith :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 26, 2024

Appellants, Electors of the City of York (Electors), appeal the June 22,
2022 order of the Court of Common Pleas of York County (trial court), which denied
their “Petition Pursuant to [Section 10801(b) of the Third Class City Code,1] 11 Pa.
C.S. § 10801(b)[,] to Fill Vacancy in the Office of Mayor of York City” (Petition to

1
11 Pa. C.S. §§ 10101 – 14702.
Fill Vacancy). Upon review, we affirm the trial court’s June 22, 2022 order and allow
the Mayor of the City of York (York) to remain in office but for reasons other than
those stated by the trial court.
I. FACTS AND PROCEDURAL BACKGROUND
In the November 2021 General Election, Michael Helfrich (Mayor
Helfrich) was reelected as the Mayor of York for his second term by 80% of the votes
cast. He took his oath of office on Tuesday, January 24, 2022.
On April 11, 2022, Electors filed the Petition to Fill Vacancy. Section
10801 of the Third Class City Code provides:

(a) Appointment.--Within 30 days of a vacancy in the office
of mayor or other member of council or if an elected mayor
or council member has failed to qualify under [S]ection
10701 (relating to elected officers, term, reelection and
vacancy) prior to taking office, council must, by a majority
of council’s remaining members, appoint a qualified
individual to fill the vacant office.

(b) President judge.--If a council does not fill a vacancy
within 30 days under subsection (a) or if a vacancy exists in
the offices of at least a majority of the members of council,
including the position of mayor, the president judge of the
court of common pleas having jurisdiction within the city,
must fill each vacancy upon either the petition of at least 10
qualified electors of the city or the petition of a majority of
the remaining members of council.

11 Pa. C.S. § 10801.
In the Petition to Fill Vacancy, Electors alleged that “there is a vacancy in
the Office of Mayor in [] York.” (Petition to Fill Vacancy, ¶ 2; Reproduced Record
(R.R.) at 9a.) They asserted that there is a vacancy because: (1) Mayor Helfrich did
not attend or otherwise participate in York City Council’s organizational meeting held
on Tuesday, January 4, 2022; (2) he did not hold or otherwise participate in any

2
inauguration or swearing-in ceremony on Tuesday, January 4, 2022, or within 14 days
thereof; and (3) he did not take the oath of office on Tuesday, January 4, 2022, or within
14 days thereof. Id., ¶¶ 5-7, 9; R.R. at 9a. Electors alleged that, as a result, Mayor
Helfrich is “disqualified” to hold the office of Mayor of York, thereby creating a
vacancy therein. Id., ¶ 10; R.R. at 9a. Electors argued that the president judge must,
therefore, fill the vacancy created by Mayor Helfrich’s lack of qualification pursuant
to Section 10801(b) of the Third Class City Code. Id., ¶ 27; R.R. at 13a.
On April 22, 2022, the trial court held a hearing and argument. At the
start of the hearing, counsel for Mayor Helfrich presented an oral motion to dismiss on
the grounds that Electors “lacked standing” to bring the action because it was, in effect,
a quo warranto action. (Hearing Transcript (H.T.) at 4; R.R. at 39a-40a.) He argued
that Electors failed to show that the Pennsylvania Attorney General’s Office and the
York County District Attorney’s Office had declined to file a quo warranto action.
In response, Electors’ counsel argued that the action was not a quo
warranto action. Focusing on the language from Section 10701, he argued that Section
10701 of the Third Class City Code is “self-executing” because if the mayor fails to
timely qualify, “a vacancy shall exist” and upon petition, the president judge may
appoint a successor. He argued:
[Mayor Helfrich] respectfully miscomprehends the
proceeding. We are not here on a quo warranto action where
the [trial c]ourt must first declare judicially that there’s a
vacancy of office. In other words, [Mayor Helfrich is] not
lawfully entitled to the office.

Rather, we [are] proceeding under the statute referenced in
the petition, which is self-operating, that because of
[Mayor Helfrich’s] failure to qualify per the statute, the
referenced section of the [Third Class City Code]
provides that the office is deemed vacant.

3
Id. at 5-6; R.R. at 40a-41a. (emphasis added). The trial court denied Mayor Helfrich’s
motion to dismiss, at the time, and allowed the hearing to continue.
At the hearing, Mayor Helfrich testified that after he was reelected, he
continued to take steps to be actively engaged in his duties and responsibilities of being
Mayor of York. Id. at 15; R.R. at 50a. He testified that he was on vacation from
December 30, 2021, to January 8, 2022. Id. at 9, 15; R.R. at 44a, 50a. On January 8,
2022, he traveled to see his daughter, and from January 17, 2022, to January 21, 2022,
he attended the United States Conference of Mayors in Washington, D.C. (H.T. at 15,
57; R.R. at 50a, 92a.) On January 24, 2022, he took the oath of office administered by
Judge Joel Toluba. Id. at 12; R.R. at 47a.
During closing arguments, Electors’ counsel argued that, in order to
qualify for office under Section 10701 of the Third Class City Code, the Mayor was
required to qualify under Sections 10904(b) and 109052 of the Third Class City Code,
and if he fails to qualify under those sections, he shall be ineligible for office. (H.T. at
21-23; R.R. at 56a-58a.)
Section 10701 of the Third Class City Code, entitled “Elected officers,
term, reelection and vacancy,” provides:

An individual elected to a city office who fails to qualify in
accordance with [S]ection 10904 (relating to offices to be
held until qualification of successors) and 10905 (relating to
oath of office, violation of oath and penalty) . . . shall be

2
Section 10905 of the Third Class City Code, entitled “Oath of office, violation of oath and
penalty,” provides, in pertinent part:

(a) Oath required.--Each officer of the city, whether elected or
appointed, shall, before entering upon the officer’s respective
duties, take and subscribe an oath or affirmation of office pursuant
to 53 Pa. C.S. § 1141 (relating to form of oaths of office).

11 Pa. C.S. § 10905.

4
ineligible to qualify. A vacancy shall exist in the office, and
an individual shall be appointed to fill the vacancy in the
manner provided under this part.
11 Pa. C.S. § 10701.
Section 10904 of the Third Class City Code, entitled “Offices to be held
until qualification of successors,” provides in its entirety:
(a) Successor.--An officer of a city, who has been elected or
appointed and has qualified under this chapter, shall hold
office until the officer’s successor meets all of the following:

(1) Is elected or appointed and takes the oath of
office.

(2) Provides the necessary bond.

(3) Takes other necessary actions required by
law to qualify to assume office.

(b) Failure to appear.--If an elected official fails to appear
at the organizational meeting of council to demonstrate
the official’s qualifications for office and to take the oath
of office either:

(1) the official must fully qualify for office
and take the oath of office within 14 days of
the date of the organizational meeting of
council; or

(2) the office of that elected official shall be
deemed to be vacant and the vacancy shall be
filled in the manner provided by this chapter.

(c) Multiple terms expiring.--Members whose terms have
expired and who are to be replaced shall draw lots to
determine which of the members shall continue to serve on
council until the member’s successor duly qualifies or takes
the oath of office when all of the following apply:

5
(1) The terms of office of more than one council
at-large member expire.

(2) More than one seated council member is to
be replaced as the result of an election.

(3) Only one of the newly elected council
members fails to qualify to assume office.

(d) Continuing to hold office.--An individual continuing to
hold office under this section after the first Monday of
January, which would have marked the end of the
individual’s term, may not participate in:

(1) The deliberations concerning the
individual’s successor.

(2) A vote appointing the individual’s
successor.

11 Pa. C.S. § 10904 (emphasis added).
Electors’ counsel argued that Section 10904(b) of the Third Class City
Code governs, and because Mayor Helfrich did not attend or take office within 14 days
of the date of the organizational meeting of council, he is now disqualified from
taking office and a vacancy therefore exists.
On June 22, 2022, the trial court denied Electors’ Petition to Fill Vacancy
because it found no vacancy existed. According to the trial court, “the question [it]
must decide is whether a vacancy exists in the office of mayor for [] York that must
be filled.” (Trial Court Op. at 16) (emphasis added). First, the trial court addressed
Mayor Helfrich’s argument that Electors lacked standing and held that Electors had
standing because “[t]hey have a substantial, direct, and immediate interest in the
outcome of litigation as they believe a vacancy exists for the office of mayor which
must be filled.” Id. The trial court also made several findings of fact. Apparently

6
accepting Electors’ position that Section 10904(b) applied, the trial court found that
Mayor Helfrich was out of state when the organizational meeting of Council convened
on January 4, 2022. (Finding of Fact (FOF) No. 3.) The trial court concluded that
while Mayor Helfrich was out of state, he was unable to take oath of office and that
this tolled the 14-day statutory provision in Section 10904(b) of the Third Class City
Code. (Conclusions of Law (COL) No. 6.) The trial court noted that there was
“certainly no refusal to take the oath of office, nor did [Mayor Helfrich] ever intend to
ignore his duty to take the oath of office.” (COL No. 7.) The trial court determined
that it was permissible for Mayor Helfrich to be sworn in on January 24, 2022, the next
available business day after his return. (COL No. 6.) In the alternative, the trial court
held that, even if the statutory provision was not tolled, “[it] would not disenfranchise
[Mayor Helfrich] for what is trifling as possibly being three days late.” (COL No. 8.)
The trial court found the three-day difference to be de minimis and disregarded it as a
minor error or defect of procedure which “did not affect the substantial rights of [Mayor
Helfrich] to serve.” Id.
Electors now appeal3 and present a single issue for review, namely,
whether the trial court erred in denying their Petition to Fill Vacancy on the ground
that no vacancy existed in the Office of Mayor. They argue that Mayor Helfrich was
unqualified for office due to his failure to take the oath of office within 14 days of the
York City Council’s organizational meeting as prescribed by the “clear and
unambiguous” language of Section 10904(b) of the Third Class City Code. It is
Electors’ position that Section 10701 is “self-executing,” and Mayor Helfrich’s failure

3
As to questions of law, including questions of statutory interpretation, our standard of review
is de novo, and our scope of review is plenary. Medical Shoppe, Ltd. v. Wayne Memorial
Hospital, 866 A.2d 455, 459 n.10 (Pa. Cmwlth. 2005). The standard of review of a decision of a trial
court is limited to a determination of whether the trial court abused its discretion, committed an error
of law, or violated constitutional rights. Yarmey v. Zoning Hearing Board of Forty Fort Borough,
745 A.2d 1274 (Pa. Cmwlth. 2000).

7
to timely take his oath automatically created a vacancy in the Office of Mayor of York,
which must be filled in the manner provided for in Section 10801(b) of the Third Class
City Code. 11 Pa. C.S. § 10801(b).
II. DISCUSSION
There are several problems with Electors’ argument. First, Electors’
argument is based on the assumption that their Petition to Fill Vacancy was properly
before the trial court. To us, that is the real crux of the controversy. The trial court
took the position that the Petition to Fill Vacancy was properly before it. A Petition to
Fill a Vacancy under Section 10801, however, is only appropriate when a vacancy
indisputably exists. It is not the vehicle by which to determine whether a vacancy
exists.
In In re Vacancy in Board of School Directors of Carroll Township, 180
A.2d 16 (Pa. 1962) (Carroll), 12 taxpayers in Carroll Township filed a petition in the
trial court alleging that a vacancy existed on the Board of School Directors of the
Carroll Township School District (school board) because 1 of the directors, John
Blangger, had moved to New Jersey and had failed to attend 7 consecutive regular
meetings of the school board. The petition asked the trial court to fill the “supposed
vacancy” in accordance with a prior version of Section 315 of the Public School Code
of 1949,4 then in effect, which provided:
if any vacancy shall occur in any board of school directors
by reason of death, resignation, removal from the district, or
otherwise, such vacancy shall be filled by the remaining
members of the board within thirty days. If by reason of tie
vote or otherwise, such vacancy is not filled within thirty
days, the Court of Common Pleas, upon petition of ten or
more resident taxpayers, shall fill the vacancy by the
appointment of a suitable person.

4
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 3-315 (1953 version).

8
Carroll, 180 A.2d at 17. Blangger denied he had changed his residence, that he had
failed to attend seven consecutive meetings, and that a vacancy existed. Blangger filed
a motion to quash the petition to fill the vacancy, averring that the only manner in
which his right to continue to hold office could be tested was by an action of quo
warranto. The trial court accepted Blangger’s position and dismissed the taxpayers’
petition. On appeal, the Supreme Court affirmed, noting that the taxpayers were
attempting “to declare an office vacant through ex parte proceedings, which is inimical
to the whole scheme of democratic government.” Id. The Supreme Court stated, “it
must be obvious that the remedy [of seeking to fill a vacancy] cannot be asserted where
the right to hold the office alleged to be vacant is still being asserted by one admittedly
duly elected to it.” Id.
In Williams Appeal, 167 A. 587 (Pa. 1933), five citizens of the Borough
of Hughestown (petitioners) petitioned the Luzerne County Court of Quarter Sessions
to fill the unexpired term of John Williams, a duly elected councilman of the borough
who had allegedly abandoned his borough residence, thereby causing a vacancy for 30
days, which the borough council had not filled. In his answer, Williams denied that he
had abandoned his residence and that there was a vacancy in the office to which he had
been elected. The trial court rejected his representation and appointed Francis
Mullarkey in his place. On appeal, the Supreme Court reversed, holding that the
question as to whether Williams had forfeited his office by removal from the borough
could not be decided in a petition to fill a vacancy. The Supreme Court explained:
The only real dispute between the parties is whether
appellant forfeited his office by removal from the borough.
The question is not before us, because it has not been raised
in a proper way. It is admitted that [Williams] was duly
elected, and has at all times asserted his right to the office.
Under the circumstances, such as these, [where] a public
officer is de facto exercising the function of his office under
color of right, we have repeatedly held that the proper remedy

9
to test his title is by Writ of Quo Warranto, which is not only
adequate but exclusive. This is an attempt to remove an
elected officer, who continues to assert his right to the office,
in a manner other than that provided by law. It cannot
succeed.

Id. at 587-88 (citations omitted).
Here, Mayor Helfrich was duly elected in November 2021. On January
24, 2022, he took his oath as required by Section 10905 of the Third Class City Code,
11 Pa. C.S. § 10905, and was sworn into office. Since that time, he has been
continuously and actively engaged in his duties and responsibilities of being Mayor of
York. As in Carroll and Williams, he is asserting his right to continue to hold office.
He denies there is a vacancy. Thus, in these circumstances, Section 10701 is not, in
fact, “self-executing” because there exists an outstanding question of whether there is
a vacancy.5 Electors’ Petition to Fill Vacancy was, therefore, not properly before the
trial court and the trial court should not have proceeded to decide whether a vacancy
existed. Rather, it should have denied and dismissed the Petition to Fill Vacancy
outright as premature and procedurally improper.
Because Electors are, in actuality, seeking to disenfranchise Mayor
Helfrich, i.e., remove him from his office because he allegedly did not timely take his
oath, they are challenging, three months after he assumed office, his right to public
office. The proper remedy to test Mayor Helfrich’s title was by writ of quo warranto.
Carroll; Williams; Spykerman v. Township of West Chester, 421 A.2d 641 (Pa. 1980)

5
We can envision instances where Section 10701 may indeed be self-executing where the
vacancy is incontrovertible or stipulated, for example, where the elected official dies before taking
his oath, the elected official does not dispute that there is a vacancy, or the elected official is clearly
under the minimum age required to assume office. However, where the elected official asserts his
right to public office and is de facto exercising the functions of his office under color of right, as here,
a petition to fill a vacancy is not the proper remedy. See Carroll; Williams.

10
(continuity of services of members of township board of supervisors in their positions
as de facto public officers could not be interrupted in any proceeding other than a quo
warranto proceeding); In re Matter of One Hundred or More Qualified Electors, 683
A.2d 283 (Pa. 1996); Andrezjwski v. Borough of Millvale, 673 A.2d 897, 887 (Pa.
1996).
Generally, quo warranto can be instituted only by the Attorney General
or by a district attorney. Mayer v. Hemphill, 190 A.2d 444 (Pa. 1963). A private person
may not bring a quo warranto action to redress a public wrong when he has no
individual grievance. Spykerman, 421 A.2d at 649. The rationale for the exclusive
nature of the quo warranto remedy is that
quo warranto is the Gibraltar of stability in government
tenure. Once a person is duly elected or duly appointed to
public office, the continuity of his services may not be
interrupted and the uniform working of the governmental
machinery disorganized or disturbed by any proceeding less
than a formal challenge to the office by that action which is
now venerable with age, reinforced by countless precedent,
and proved to be protective of all parties involved in a given
controversy, namely quo warranto.
Carroll, 180 A.2d at 17.
In In re One Hundred or More Qualified Electors, in 1986, a sitting
member of the Clairton Municipal Authority, Donald J. Desiderio, pled guilty to a
felony. Notwithstanding this conviction, Desiderio was later elected as a member of
the Municipality of Clairton Council in November 1993. No challenge was raised
during the primary or the general election as to his qualifications to hold this council
position because of his prior conviction. After Desiderio assumed office, a group of
qualified electors in the Municipality of Clairton petitioned the Attorney General to
bring an action in the nature of quo warranto to disqualify Desiderio from office
because of his prior conviction. After the Attorney General declined to bring such an

11
action, the electors filed a Petition “To Declare Forfeited and Vacant the Council Seat
of Donald J. Desiderio,” challenging his qualifications to hold council position and
seeking to remove him from office. 683 A.2d at 285. The trial court dismissed the
petition for want of subject matter jurisdiction and lack of standing. The trial court
explained that the only way to oust an elected official was via a quo warranto action.
Id. It further held that a quo warranto action must be brought by the Attorney General
or the district attorney and since neither had brought the action to remove Desiderio,
the electors lacked standing to seek a quo warranto remedy. The electors appealed to
this Court, which transferred the appeal directly to the Supreme Court pursuant to
Section 722 of the Judicial Code, 42 Pa. C.S. § 722. The Supreme Court held that the
electors “did not show any interest beyond that shared in common by all citizens of the
Municipality of Clairton.” Id. at 286. Rather, their complaint was simply that
Desiderio was not qualified to be a member of the Municipality of Clairton Council as
a result of his felony conviction. The Supreme Court concluded that
[a]s such, the interest asserted is indistinguishable from the
general public interest to which the law should be adhered.
Neither do [the electors] show how they have been specially
damaged by Desiderio holding office. Thus, the trial court
correctly declined to convert [the electors’] equity action to
one in quo warranto since [the electors] lacked standing to
bring a quo warranto action.
Id.
Here, if Electors, who are private parties, wished to remove Mayor
Helfrich from his office, they were required to (1) prove they had standing to file quo
warranto action by demonstrating that both the Attorney General and the York County
District Attorney declined to bring a quo warranto action; and (2) establish they have
a special right or interest in the matter that is beyond just asserting that the law should
be adhered to. In re One Hundred or More Qualified Electors. Electors did not do
this. Instead, they filed a Petition to Fill Vacancy, and based their entire case on trying

12
to demonstrate the reasons why they believe there is a vacancy. As discussed, this was
improper because a quo warranto proceeding was the only proper approach.
III. CONCLUSION
Electors’ Petition to Fill Vacancy was procedurally improper. The trial
court should not have decided the question of whether a vacancy existed in the Office
of Mayor because that determination had to be tried exclusively in a quo warranto
proceeding. Electors did not meet the requirements to bring a quo warranto action.
Nonetheless, because the trial court ultimately arrived at the correct conclusion, i.e.,
that the Petition to Fill Vacancy must be denied, we affirm.

________________________________
PATRICIA A. McCULLOUGH

13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Electors of the City of York, :
Appellant :
: No. 750 C.D. 2022
v. :
:
Michael Helfrich, Mayor of :
the City of York :
:
Appeal of: Henry Nixon, :
Katherine Young, Steven Young, :
Burton Parry, Elizabeth Culp, :
Judith McKee, Thomas McKee, :
Judy Ritter-Dickson, Darnell :
Bowman, Shilvosky Buffaloe, :
Carla Evette Freeland, Lois :
Garnett, Tim Garnett, Sarai :
Kearse, Wajid DeShields, :
Marcus DeShields, Shareef :
Hameed, Antonietta Smith :

ORDER

AND NOW, this 26th day of February, 2024, the June 22, 2022 order of
the Court of Common Pleas of York County is hereby AFFIRMED.

________________________________
PATRICIA A. McCULLOUGH, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9943891. Public record. Not legal advice.