Zontek v. Brown

CRAIG, President Judge. The named petitioners in this case, members or former members of the Western Westmoreland Municipal Authority (officials), have filed a motion for summary judgment, and the respondents, the State Ethics Commission and its members (commission) have filed a cross-motion for summary judgment. The petition for review includes a quo warranto claim, through which the petitioners challenge the right of the commission’s members to hold office (Count I). The petition also contains a request for equitable relief (Count II) and a declaratory judgment claim (Count III). The relevant facts revealed by the pleadings are as follows. The commission sent letters dated May 7, 1987, to all of the petitioners except Chrzan, informing them that the commis — 630 — sion was investigating them for alleged violations of section 3(a) of the Public Official and Employee Ethics Law (Ethics Act), Act of October 4, 1978, P.L. 883, 65 P.S. § 403. In a letter dated May 19, 1987, counsel for the petitioners, except Chrzan, requested the commission to forward to him all documents relating to the alleged violations. With the exception of petitioners Zontek and Manee, who received letters from the commission dated March 2, 1989 informing them again of the alleged violations, the petitioners received no communications from the commission between May 7, 1987 and October 6, 1989. The petitioners aver that the commission “resumed” its investigation on October 9, 1989, and that between May 7, 1987, and October 6, 1989, “no known investigation or activity occurred” with regard to the alleged violations. The petitioners also allege that they (not including Chrzan) sent a letter to the commission on November 6,1989, challenging the commission’s jurisdiction over the petitioners and contending that the commission had failed to comply with statutory and other legal procedural requirements. a. Standing to bring a quo warranto action The Attorney General argues that the petitioners have no standing to bring this quo warranto action. As the Attorney General points out, “a private person may not bring a quo warranto action to redress a public wrong when he has no individual grievance.” Spykerman v. Levy, 491 Pa. 470, 485, 421 A.2d 641, 649 (1980). The Spykerman court also stated that If a private person has a special right or interest, as distinguished from the right or interest of the public generally, or he has been specially damaged, he may have standing to bring a quo warranto action. Brinton v. Kerr, supra; Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933). 491 Pa. at 485-6, 421 A.2d at 649. Pennsylvania courts, in addressing the question of whether an individual has standing to bring a quo warranto action, — 631 — have not specifically limited the rule quoted above to individuals who sought the position of the official they seek to oust. The Attorney General argues that this court should not apply our holding in Gwinn v. Kane, 19 Pa.Commonwealth Ct. 243, 339 A.2d 838, affirmed, 465 Pa. 269, 348 A.2d 900 (1975), to the petitioners in this case. In Gwinn, this court concluded that a plaintiff, who had been indicted by a special prosecutor the Attorney General appointed to investigate bribery and corruption in the awarding of public contracts, had standing to bring a quo warranto action to challenge the appointment. First the Attorney General asserts that Gwinn is factually distinguishable. Second, he argues that, if this court agrees that Gwinn is applicable, then any target of a commission investigation could impede an investigation by bringing a quo warranto action. The interest the petitioners — except Chrzan, who is not being investigated — have in the commission’s investigation of them, is significant and distinct from the interest of the general public, and similar to the interest the court recognized in Gwinn as giving that petitioner standing to bring a quo warranto action. Furthermore, with regard to the Attorney General’s second argument, in this case, once this court determines the merits of the petitioners’ argument, the holding would resolve the issue and be dispositive of the issue if other parties raise it in the future. In this case, the petitioners have a special interest in the appointed members of the commission, because those members are involved in or will ultimately be involved in the commission’s investigations of the petitioners’ alleged violations of the Ethics Act. This court’s decision in Gwinn clearly supports the petitioners’ position and our conclusion is that they have standing to bring a quo warranto action. b. Applicability of Blackwell II In M.P. v. State Ethics Commission, 144 Pa.Commonwealth Ct. 429, 601 A.2d 902 (1992), appeal pending, No. 004 M.D. 1992 Pa. Supreme Court, this court held that a commis — 632 — sion investigation started before the Sunset Act, Act of December 22, 1981, P.L. 508, as amended, 71 P.S. § 1795.6(c), caused the commission to be a legal nonentity after June 30, 1988, could not be revived and pursued further after June 26, 1989, the date upon which the commission was reinstituted by valid reenactment. In Blackwell v. State Ethics Commission, 523 Pa. 347, 567 A.2d 630 (1989) (Blackwell II), dated December 13, 1989, the Supreme Court had invalidated the commission’s reinstitution by legislative committee under the Sunset Act. In Blackwell v. State Ethics Commission, 527 Pa. 172, 589 A.2d 1094 (1991) (Blackwell V), the Supreme Court explained how the court’s decision in Blackwell II should be applied to proceedings within differing time frames, i.e. prospectively, retrospectively, or retroactively. Specifically, the Supreme Court stated as follows: We find no compelling reason to limit our holding in Blackwell II to wholly prospective application. Our decision in Blackwell II did not specifically declare it to be prospective only. Therefore, we hold that our ruling in Blackwell II shall apply to the instant appeal [citation omitted] the instant consolidated appeals, and to all proceedings pending at the time of our decision in Blackwell II December 13, 1989), wherein the issue of the constitutionality of the Leadership Committee postponement provision in Section 1(1) of the Sunset Act was timely raised and properly preserved at all stages of adjudication. (Emphasis added.) Blackwell V, 527 Pa. at 188, 589 A.2d at 1102. The clear language of that opinion indicates that the holding in Blackwell II applies only to cases involving “proceedings” before the commission or the courts that were “pending” on December 13, 1989, where the leadership committee issue had been raised. Blackwell II was applicable to M.P. because M.P. had raised the leadership committee issue before the Supreme Court’s December 13, 1989 decision. — 633 — Thus, the application of Blackwell II to this case hinges on whether or not the actions of the Ethics Commission regarding the petitioners constituted a “pending proceeding” and whether or not the petitioners had raised the issue before the Supreme Court’s December 13, 1989 decision in Blackwell II. The petitioners argue that there was no pending proceeding at the time of the Blackwell II decision and that therefore they timely raised the issue at the earliest possible time— when the SEC issued an investigative complaint against the petitioners. The Supreme Court’s reference in Blackwell V to pending proceedings encompasses cases such as this which were in the administrative process once the commission notified the petitioners that it was investigating them. The procedural history in Blackwell is similar to the history of this case. In Blackwell, the petitioner objected after being notified by the commission that it was investigating him. The commission rejected the petitioner’s objection and continued its investigation. The petitioner then initiated an action in equity and a declaratory judgment action in this court. During the course of proceedings in this court, a judge of this court conducted a hearing on the petitioner’s motion for a preliminary injunction seeking to stay a commission issued subpoena. The court granted the injunction, and the commission appealed to the Supreme Court. In the meantime, this court considered the commission’s preliminary objections to the petitioner’s complaint in this court. In a concurring opinion Judge Colins first suggested that there was a question of whether the commission was lawfully in existence. The Supreme Court agreed with Judge Colins, and concluded that the issue was a non-waivable issue of jurisdiction, and declared the leadership committee provision of the Sunset Act unconstitutional. In this case, the petitioners’ November 1989 letters to the commission challenged the commission’s “jurisdiction”. However, rather than take the course that the petitioners in — 634 — Blackwell took, i.e., initiate a declaratory judgment action when first notified of the investigations, they waited until the commission took additional affirmative action. The letters asserting a jurisdictional challenge to the commission do not indicate that the challenge is based on the Sunset Act issue. The Supreme Court in Blackwell V indicated that only parties that raised the specific issue of the Sunset Act could benefit by its holding in Blackwell II. Thus, at least with regard to the petitioners’ claim for equitable relief and their declaratory judgment action, they did not properly or timely raise the Sunset Act issue, in accordance with Blackwell V, so as to bring their case within Blackwell II. c. Applicability of Blackwell II to a quo warranto action The petitioners have brought an action in quo warranto, and hence, this court is faced with the question of whether the Blackwell II decision can apply to this action to oust members of the commission, even though, as discussed above, the petitioners cannot rely upon that decision with regard to their equity and declaratory judgment action to terminate the commission’s proceedings. Although the quo warranto remedy has not arisen in the context of the leadership committee issue before, the Supreme Court’s limitation of its decision in Blackwell II is clear. Hence, the Supreme Court’s holding in that case, that the Ethics Commission went out of existence in 1988, has no application to actions brought after the date of the decision, including this quo warranto action, unless the issue was properly raised. The petitioners’ failure to bring the quo warranto action raising the constitutional revival issue before December 13, 1989, precludes the application of the Blackwell II holding to this quo. warranto action. In summary, because the commission commenced this proceeding in 1987 by notifying the petitioners that it was investigating them, the proceeding was in existence before Blackwell II, so that the only way that decision could affect the outcome in this case is if it fitted within the condition of retrospective — 635 — application the Supreme Court set out in Blackwell V — that is, by having raised the constitutional revival issue on or before December 13, 1989. Because this case clearly does not fall within the conditions set out in Blackwell V for retroactive application, this court concludes that the respondents are entitled to summary judgment. FRIEDMAN, J., dissents. ORDER NOW, August 10,1992, the petitioners’ motion for summary judgment is denied and the motion for summary judgment filed by the respondents is granted.