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CRISCONI v. SHAPP (04/17/72)

decided: April 17, 1972.

CRISCONI
v.
SHAPP, ET AL.



Original jurisdiction in case of John P. Crisconi v. The Honorable Milton J. Shapp, Governor of the Commonwealth of Pennsylvania and Ralph Cornell, Chairman of the Delaware River Port Authority and Charles G. Simpson.

COUNSEL

Carter R. Buller, with him David W. Marston and William R. Dimeling, and, of counsel, Montgomery, McCracken, Walker & Rhoads, for plaintiff.

Harold E. Kohn, Special Attorney, with him Lawrence J. Beaser, Deputy Attorney General, David W. Hornbeck, Special Assistant Attorney General, and J. Shane Creamer, Attorney General, for defendants, Shapp and Simpson.

Jon R. Flicker, for defendant, Cornell.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Judge Mencer concurs in the result of this opinion only.

Author: Kramer

[5 Pa. Commw. 275 Page 276]

This case comes within the original jurisdiction of this Court. Suit was commenced by the filing of a Complaint, captioned as an action in both "Quo Warrantor"*fn1 and in equity on November 14, 1971. The

[5 Pa. Commw. 275 Page 277]

Complaint was filed by John P. Crisconi (Crisconi) who averred that on or about January 5, 1960, a former Governor of the Commonwealth appointed him to the position of Commissioner on the Delaware River Port Authority (Authority). His appointment was confirmed on January 25, 1960, for a five year term, ending January 25, 1965, and until his successor was appointed and qualified. From January 25, 1965, until July 9, 1968, Crisconi served as a holdover appointee until the latter date when he was confirmed for reappointment for a term ending January 25, 1970, and until his successor was appointed and qualified. On September 2, 1971, the Honorable Milton J. Shapp (Governor), Governor of the Commonwealth of Pennsylvania, sent to Crisconi a telegram notifying him of the termination of his duties as a Commissioner of the Authority. The telegram also notified Crisconi that his successor was being appointed "immediately." On the same date the Governor appointed Charles G. Simpson (Simpson) as the successor to Crisconi with a term expiring on January 25, 1975. On October 20, 1971, at a regular meeting of the Authority, the Chairman of the Authority refused to recognize Crisconi as a Commissioner, and recognized Simpson as the successor Commissioner. The appointment of Simpson was not submitted to the Senate of the Commonwealth of Pennsylvania for its consent.

Crisconi filed the above mentioned Complaint, naming as defendants, the Governor, Simpson and the Chairman of the Authority. The Complaint demanded that the Governor be enjoined from terminating the

[5 Pa. Commw. 275 Page 278]

    appointment of Crisconi as a Commissioner of the Authority, that the Chairman of the Authority be enjoined from refusing to recognize Crisconi as a Commissioner until Crisconi's successor has been appointed and qualified, and lastly that Simpson be enjoined from attempting to succeed Crisconi as a Commissioner until he had "qualified," i.e., until his appointment has been approved by two-thirds of the members elected to the Pennsylvania Senate. The defendants filed Preliminary Objections in the nature of a demurrer stating that the Complaint failed to set forth a cause of action, first, because Crisconi's appointment had been terminated by the Governor's telegram and therefore Crisconi had no standing to sue and, secondly, because Simpson's appointment was valid under the Pennsylvania Constitution and the Delaware River Port Authority Compact. (See Act of June 12, 1931, P.L. 575, as amended, 36 P.S. 3503 et seq.)

Accepting as true and correct all of the well-pleaded allegations of fact of the Complaint as we must, McIlvaine v. State Police, 3 Pa. Commonwealth Ct. 478, A.2d (1971) and Commonwealth v. Toro Dev. Co., et al., 2 Pa. Commonwealth Ct. 429, A.2d (1971), nevertheless we will hold herein that the appointment of Simpson and the termination of Crisconi were proper under the Constitution of Pennsylvania and the Compact and therefore the Preliminary Objections of the defendants must be sustained.

The provisions of the Compact pertinent to the issues herein "have the force and effect of a statute of the Commonwealth of Pennsylvania" (Act of June 12, 1931, P.L. 575, Section 2, 36 P.S. 3504) and provide:

"Six of the eight commissioners for the Commonwealth of Pennsylvania shall be appointed by the Governor of Pennsylvania for terms of five years. The Auditor General and the State Treasurer of said Commonwealth

[5 Pa. Commw. 275 Page 279]

    shall, ex officio, be commissioners for said Commonwealth, each having the privilege of appointing a representative to serve in his place at any meeting of the commission which he does not attend personally.

"All commissioners shall continue to hold office after the expiration of the terms for which they are appointed or elected until their respective successors are appointed and qualify, but no period during which any commissioner shall hold over shall be deemed to be an extension of his term of office for the purpose of computing the date on which his successor's term expires." (35 P.S. 3503, Article II)

The pertinent provisions of the Pennsylvania Constitution relating to the Governor's power to appoint are found in Article IV, Section 8, which reads as follows:

"(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction*fn2 and such other officers as he shall be authorized by law to appoint. The appointment of the Attorney General, the Superintendent of Public Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate. (Emphasis added)

"(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other judges, he may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session and fill vacancies happening in the office of Auditor General or State Treasurer or in any other elective office he is authorized to fill. If the vacancy happens during the session of the Senate except as otherwise

[5 Pa. Commw. 275 Page 280]

    provided in this Constitution, he shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy. In the case of a vacancy in an elective office, a person shall be elected to the office on the next election day appropriate to the office unless the vacancy happens within two calendar months immediately preceding the election day, in which case the election shall be held on the second succeeding election day appropriate to the office.

"(c) In acting on executive nominations, the Senate shall sit with open doors. The votes shall be taken by yeas and nays and shall be entered on the journal."

In attempting to properly construe Article IV, Section 8, we look to the prior constitutional provisions under the Constitution of 1874, which provided, inter alia, that the Governor: ". . . shall nominate and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint . . . such other officers of the Commonwealth as he is or may be authorized by the Constitution or by law to appoint; . . ." (Article IV, Section 8, 1874 Constitution)

It is clear to us that the adoption of Article IV, Section 8, as it presently reads, was for the purpose of eliminating the previously required senatorial approval of appointments by the Governor to all appointive offices to which the Governor could appoint under the Constitution or by statute. Senatorial approval is now necessary only in those instances where senatorial approval is specifically mandated by the Constitution or by statute.

A reading of the Compact indicates the existence of a distinction between the appointment procedures of the Commissioners utilized by the Commonwealth of Pennsylvania on the one hand and those utilized by the State of New Jersey on the other hand. The Compact indicates specifically the need for consent and approval

[5 Pa. Commw. 275 Page 281]

    of the New Jersey Senate for the seating of the New Jersey Commissioners, but no such requirement is indicated in those portions of the Compact dealing with the appointment of Pennsylvania Commissioners. (35 P.S. 3503, Article II)

In view of the fact that we have ruled that the appointment of Simpson did not require the consent of the Pennsylvania Senate and therefore was a valid appointment it is not necessary for us to rule on the remaining issues, i.e., the standing of Crisconi to sue, and the effectiveness of the notice of termination.

The only remaining point to be touched upon is the argument of Crisconi that the Administrative Code, Act of April 9, 1929, P.L. 177, Section 207, 71 P.S. 67, sets forth a specific requirement for the Governor to submit nominations for appointive offices to independent commissions to the Senate for its consent. That section in pertinent part reads as follows: "The Governor shall nominate and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint: (a) The Secretary of the Commonwealth, the Attorney General, . . .*fn3 and the members of all independent administrative boards and commissions." (Emphasis added.) Crisconi argues that the language of the Administrative Code, supra, includes this Authority as an independent board or commission; and therefore these Commissioners here in question are "such other officers as may be specified by law" as ...


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