A state appeals court overturned a lower court decision and continues
to allow Pennsbury Township Supervisor Wendell Fenton to take part in
discussions and votes regarding Pennsbury Village.
The ruling, in an opinion by Senior Judge Jim Flaherty, overturned
a decision by Common Pleas Court Judge Thomas Gavin in a Writ of Prohibition
filed by Pennsbury Village Associates, the project developer.
Under state law, Gavin’s decision had no impact and was set
aside as soon as the township appealed, Fenton said.
Fenton called the decision “a victory for the democratic
process. Supervisors are free to express themselves and vote how they believe.”
Part of Gavin’s ruling was based on Fenton’s 2005 campaign
for supervisor when he declared his opposition to the village project.
"His campaign rhetoric accurately predicted how he
would conduct himself as a supervisor vis-à-vis (the Pennsbury Village)
proposal," Gavin wrote in his decision last year.
This, Gavin said, made Fenton ineligible to continue in an
Judge Flaherty, in his 17-page opinion issued Aug. 20, said
such was not the case.
board member is not precluded from voting on a matter solely because a board
member expressed an opinion on a matter either in the official or unofficial
status,” Flaherty wrote.
also said PVA by-passed the voting proceedings by filing suit to “prohibit
Fenton not only from voting, but also from expressing his opinion in Board
proceedings involving PVA.”
The judge noted, too, that Fenton had spoken in opposition
to the plan during board discussions on the development’s sewer plans, but
recused himself from voting.
Former township solicitor Larry Wood said in November that
Gavin’s decision was appealed because it was the first time a supervisor was
disqualified before any vote was ever taken and that the decision was too broad
because it disqualified Fenton from taking part in discussions.
Fenton said the PVA action was also premature since there
had been no decision that was adverse to PVA.
The full decision may be found at www.aopc.org/OpPosting/Cwealth/out/2221CD08_8-20-09.pdf.