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CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION v. THOMAS M. NOLAN (11/10/75)

decided: November 10, 1975.

CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION, INTERNATIONAL, INC., JAMES ROYAL AND GARLAND DEMPSEY, PLAINTIFFS,
v.
THOMAS M. NOLAN, INDIVIDUALLY AND AS CHAIRMAN OF THE RULES AND EXECUTIVE NOMINATIONS COMMITTEE OF THE PENNSYLVANIA SENATE; MILTON J. SHAPP, INDIVIDUALLY AND AS GOVERNOR OF PENNSYLVANIA; ERNEST P. KLINE, INDIVIDUALLY AND AS PRESIDENT OF THE PENNSYLVANIA SENATE; AND JAMES M. KELLY, INDIVIDUALLY AND AS ACTING CHAIRMAN OF THE PENNSYLVANIA PUBLIC UTILITY COMMISSION, DEFENDANTS



Original jurisdiction in case of Consumers Education and Protective Association, International, Inc.; James Royal; and Garland Dempsey v. Thomas M. Nolan, individually and as Chairman of the Rules and Executive Nominations Committee of the Pennsylvania Senate; Milton J. Shapp, individually and as Governor of Pennsylvania; Ernest P. Kline, individually and as President of the Pennsylvania Senate; and James M. Kelly, individually and as Acting Chairman of the Pennsylvania Public Utility Commission.

COUNSEL

David A. Scholl, for plaintiffs.

Norma P. D'Apolito, Deputy Attorney General, with her, Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Milton J. Shapp.

Jack Weinrauch, with him, A. Richard Gerber, for defendants, Ernest P. Kline and Thomas M. Nolan.

Barnett Satinsky, Assistant Counsel, with him, Edward J. Morris, Counsel, and Peter W. Brown, Chief Counsel, for defendant, James M. Kelly.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 21 Pa. Commw. Page 568]

For a period prior to April 15, 1975, Herbert S. Denenberg sat on the Public Utility Commission (PUC) by interim appointment, pursuant to the authority then vested in the Governor by Article IV, Section 8, of the Pennsylvania Constitution. On that date, the Acting Chairman of the PUC affirmatively denied Dr. Denenberg any continued official recognition of his interim role, and his seat on the PUC was thereafter treated as vacant. The legality of the events which precipitated the vacation of Dr. Denenberg's interim appointment is questioned by the litigation now before us.

On April 8, 1975, the Rules and Executive Nominations Committee of the Senate of Pennsylvania met and voted to refer Dr. Denenberg's appointment to the floor of the Senate for a confirmation vote. In attendance at the Committee meeting was the Executive Director of the Consumers Education and Protective Association, International, Inc. (CEPA), who objected to the Committee taking action on Dr. Denenberg's nomination, contending it had not complied with the prior public notice requirements of the Act of July 19, 1974, P.L. 486, 65 P.S. ยง 261 et seq., (commonly known as the "Sunshine

[ 21 Pa. Commw. Page 569]

Law"). On April 9, 1975, the full Senate voted not to confirm Dr. Denenberg's appointment, thereby insuring his removal from the PUC.

On April 14, 1975, CEPA, joined by two individual taxpayers,*fn1 filed a complaint, captioned "in equity," in this Court. Named therein as defendants were the Chairman of the Committee, the Lieutenant Governor as President of the Senate, and the Acting Chairman of the PUC. That same day, this Court denied CEPA's prayer for an ex parte preliminary injunction. An amended complaint was filed on April 30, 1975, naming the Governor as an added defendant. The four defendants responded with preliminary objections, and, having disposed of certain collateral matters, we must now determine the legal efficacy of defendants' objections.

Although waged with a variety of weapons, we are persuaded to narrow defendants' attack on the amended complaint to a single consideration, namely, whether CEPA has failed to state a cause of action upon which relief may be granted. CEPA contends that the Committee Chairman's failure to have provided prior public notice of the April 8th Committee meeting*fn2 invalidated the Committee's decision to refer the Denenberg nomination to the Senate floor. Then, proffering a legalistic "domino theory," CEPA argues that all subsequent actions performed in consequence of the "invalid" Committee meeting, namely, the Senate vote and the refusal to allow Dr. Denenberg's continued participation ...


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