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LEONARD E. SWEENEY v. C. DELORES TUCKER (01/14/76)

decided: January 14, 1976.

LEONARD E. SWEENEY, ESQUIRE, VINCENT S. MAZZA AND JAMES P. HEFFLEY, PLAINTIFFS
v.
C. DELORES TUCKER, SECRETARY OF THE COMMONWEALTH; GRACE M. SLOAN, TREASURER OF THE COMMONWEALTH; HERBERT FINEMAN, SPEAKER OF THE HOUSE; K. LEROY IRVIS, MAJORITY LEADER OF THE HOUSE; SAMUEL RAPPAPORT, CHAIRMAN OF THE ETHICS COMMITTEE; JEAN FRANCIS, HOUSE COMPTROLLER, DEFENDANTS



Original jurisdiction in case of Leonard E. Sweeney, Esquire; Vincent S. Mazza and James P. Heffley, Plaintiffs v. C. DeLores Tucker, Secretary of the Commonwealth; Grace M. Sloan, Treasurer of the Commonwealth; Herbert Fineman, Speaker of the House; K. LeRoy Irvis, Majority Leader of the House; Samuel Rappaport, Chairman of the Ethics Committee; Jean Francis, House Comptroller, Defendants.

COUNSEL

Thomas A. Livingston, with him Livingston, Miller & Haywood, for plaintiffs.

Melvin R. Shuster, Deputy Attorney General, for defendants, Tucker and Sloan.

Russell A. Davis, Chief Legal Counsel, for defendants, Fineman, Irvis, Rappaport and Francis.

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

Author: Rogers

[ 22 Pa. Commw. Page 644]

Leonard E. Sweeney, formerly a member of the Pennsylvania House of Representatives, and two of his former constituents of the Seventeenth Legislative District have filed a complaint in equity against the Comptroller of the House of Representatives, two high officers of the Commonwealth and three members of the House. The plaintiffs claim that Mr. Sweeney's expulsion from membership in the House violated his asserted constitutional right to his House seat and to payment of salary and of the plaintiff-constituents' right to be represented in the House. They seek injunctive relief that Mr. Sweeney be reinstated as a member of the House with back pay and declaratory relief in the form of a statement that the action of the House expelling Mr. Sweeney was unlawful. All of the defendants have filed preliminary objections in the nature of demurrers. The House members and the Comptroller of the House have additionally raised a question of our jurisdiction of the subject matters.

We learn from the plaintiffs' complaint, the averments of which we must accept as verity, that Mr. Sweeney was elected to represent the Seventeenth Legislative District on November 5, 1974. He took the oath of office and was seated on January 7, 1975. On January 10, 1975, Mr. Sweeney was indicted by a grand jury of the United States District Court for the Western District of Pennsylvania on one count of conspiracy to commit mail fraud and five counts of mail fraud.*fn1 On July 30, 1975, a trial jury found Mr. Sweeney guilty of three counts of mail fraud. On the same day the District Court Trial Judge entered judgments of sentence against Mr. Sweeney of imprisonment and to pay fines and costs. Before sentencing,

[ 22 Pa. Commw. Page 645]

Mr. Sweeney's counsel told the Judge that Mr. Sweeney would resign his seat in the House and that a letter of resignation was about to be prepared for Mr. Sweeney's signature. Mr. Sweeney filed a timely appeal from the judgments of sentence to the Third Circuit Court of Appeals.

Mr. Sweeney did not resign his seat in the House of Representatives. On August 18, 1975, the House Ethics Committee notified Mr. Sweeney that it would meet and discuss his status as a member of the House on August 25, 1975, inviting him to attend in person or with or by counsel. The Ethics Committee, after its meeting, at which neither Mr. Sweeney nor his counsel appeared, concluded that its jurisdiction was limited to violations of the Legislative Code of Ethics and House Rules and made no recommendation to the House. The House of Representatives met in Special Session to consider action on Mr. Sweeney's status on August 27, 1975. Again, neither Mr. Sweeney nor anyone for him appeared. After entering into its own records Mr. Sweeney's indictments and the judgments of sentence against him, the House by vote of 176 in favor and 1 against, adopted the following resolution:

"WHEREAS, Representative Leonard E. Sweeney was tried and convicted by the court and a jury in the United States District Court for the Western District of Pennsylvania for violation of Title 18, United States Code, Section 1341; and

"WHEREAS, Sentence pursuant to a finding of guilty was imposed by the court on July 30, 1975; and

"WHEREAS, Pursuant to Article II, Section 9 of the Constitution of the Commonwealth of Pennsylvania the House of Representatives has the exclusive power and authority to judge the qualifications of its members; therefore be it

"RESOLVED, That pursuant to the powers granted to the House of Representatives under Article

[ 22 Pa. Commw. Page 646]

II, Section 9 and Section 11 of the Constitution of the Commonwealth of Pennsylvania, the House of Representatives does hereby expel Leonard E. Sweeney as a member of ...


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