PHOENIXVILLE -- The civil complaint brought by Council member Kendrick Buckwalter (R-West) against the Borough over Council's pay ordinance...

By G.E. Lawrence

By G.E. Lawrence

The Phoenix Correspondent

PHOENIXVILLE -- The civil complaint brought by Council member Kendrick Buckwalter (R-West) against the Borough over Council's pay ordinance will now go to the State Supreme Court for review.

Buckwalter's petition for appeal was granted by the Supreme Court September 3 and entered on the Court's docket Saturday.

"I am pleased that the Supreme Court of Pennsylvania agreed [that] the case raised an important question on a serious issue that could only be decided by them, and agreed to hear the case," Buckwalter said in a written statement.

The issue is pay. Council's pay.

In December of 2006, Council approved -- over Buckwalter's objection -- a ordinance providing that Council members would henceforth receive no compensation. Before the passage of the ordinance, Council members had been receiving $200 per month. Richard Mark Kirkner (D-North) had first recommended the action, citing Borough budget constraints.

A month later, Buckwalter sued the Borough, arguing that the ordinance was unconstitutional. "I certainly didn't do this because I personally have something at stake here," he said then. "Obviously, it puts me in an awkward position. But I thought that this was bad public policy in the first place. I filed the complaint because it's a constitutional issue," he said.

Phoenixville attorney Richard Breuer, representing Buckwalter, argued in the complaint that the Pennsylvania Constitution expressly forbids any change -- either increases or decreases -- to Council members' pay for the term in which they sit. Breuer wrote, "[T]he Pay Ordinance is repugnant to Article 3, ˆ§27 of the Pennsylvania Constitution, which states [']No law shall extend the term

of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.'"

The Court of Common Pleas of Chester County disagreed in June, 2007, following the counter argument of Anthony Verwey of the Borough's solicitor firm Unruh, Turner, Burke & Frees, that an 1881 case, Baldwin v. City of Philadelphia, was the ruling precedent. In Baldwin, the Supreme Court then had characterized a municipal ordinance -- the one in question having to do with a municipal officer's pay increase -- as distinct from a law, and hence Buckwalter's complaint did not rise to the level of a constitutional challenge.

Buckwalter, arguing through Breuer that Baldwin was incorrect, appealed the decision to the Commonwealth Court. That Court agreed with the Court of Common Pleas, affirming its ruling in January, 2008 -- but it left a door open:

"[I]f, as Buckwalter maintains," the Commonwealth Court wrote, "Baldwin always was, or has become, incorrect, our supreme court will have to make that determination. We invite their consideration of the issue."

Last week, the Supreme Court accepted the invitation.

Acceptance was not usual, as a matter of statistics. According to the Administrative Office of Pennsylvania Courts, only 106 of 2,434 appeals in this form were accepted by the Court in 2007 - and there were another 1,106 still pending as of December 31.

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