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decided: January 28, 1977.



David A. Scholl, Philadelphia, for appellants.

Jack Weinrauch, Harrisburg, for appellees, Kline and Nolan.

Robert P. Kane, Atty. Gen., Lawrence Silver, Chief, Civil Litigation, Howard M. Levinson, Deputy Attys. Gen., Harrisburg, for appellee, Shapp.

Barnett Satinsky, 1st Asst. Counsel, Harrisburg, for appellee, Kelly.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Pomeroy, J., is of the view the issue is moot and hence would grant the motion to dismiss the appeal.

Author: Eagen

[ 470 Pa. Page 378]


This action in equity was originally brought in the Commonwealth Court to obtain declaratory and injunctive relief for an alleged violation of the "Sunshine Law," Act of July 19, 1974, P.L. 486, No. 175, § 1 et seq., 65 P.S. § 261 et seq. (Supp.1976-77). After refusing to grant the requested preliminary injunctions, the Commonwealth Court sustained defendants' preliminary objections on the ground that plaintiffs had failed to state a cause of action. Consumers Education and Protective Association, International, Inc. v. Nolan, 21 Pa. Commw. 566, 346 A.2d 871 (1975). Plaintiffs then

[ 470 Pa. Page 379]

    brought this direct appeal.*fn1 For the reasons that follow, we will affirm.

Since the case was decided below on preliminary objections in the nature of a demurrer, we must for the purposes of this appeal accept as true all material and relevant facts which are well-pleaded in the complaint and all inferences which are reasonably deducible from them, but we are not bound by the conclusions of law there advanced. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). The complaint as amended alleges in substance the following relevant facts.

On April 8, 1975, Dr. Herbert Denenberg, having been appointed to fill a vacancy on the Pennsylvania Public Utility Commission [PUC] at a time when the Senate of Pennsylvania was not in session, was serving as a commissioner on an interim basis without Senate confirmation. On that date the Rules and Executive Nominations Committee of the Senate convened and, at a meeting during which two bills were also considered, voted to refer the appointment of Dr. Denenberg to the Senate floor for a confirmation vote. Max Weiner, the executive director of the corporate plaintiff in this action [CEPA], attended this meeting and protested orally to the chairman of the committee, Senator Thomas M. Nolan, that the committee had failed to provide the public notice of a public meeting required by the Sunshine Law. The chairman responded that he had complied with the Sunshine Law's requirements, and he proceeded with the meeting and the aforementioned vote. The next day, April 9, 1975, Lieutenant Governor Ernest P. Kline, in his capacity as President of the Senate, placed the matter on the Senate agenda, and Dr. Denenberg failed to receive the two-thirds

[ 470 Pa. Page 380]

    vote necessary for confirmation. Subsequently, James M. Kelly, then acting chairman of the PUC, refused to recognize Dr. Denenberg as a commissioner.

On April 14, 1975, CEPA together with James Royal, its president, and Garland Dempsey, a member of its board of directors, filed a complaint in equity in the Commonwealth Court against Senator Nolan, individually and in his capacity as chairman of the committee, Lieutenant Governor Kline, individually and in his capacity as Senate President, and Mr. Kelly, individually and in his capacity as acting chairman of the PUC. Plaintiffs moved for an ex parte injunction to restrain Mr. Kelly and his agents from taking any action to remove Dr. Denenberg while their motion for a preliminary injunction was pending. This motion was denied on the same day. On April 30, plaintiffs filed an amended complaint naming as an additional defendant the Honorable Milton J. Shapp, individually and in his capacity as Governor of Pennsylvania.

The amended complaint alleged that CEPA is "an organization of several hundred low-income residents and taxpayers of the Commonwealth of Pennsylvania having branches in Philadelphia and Delaware Counties," that the individual plaintiffs and CEPA had wished to oppose the committee's proceeding to bring the Denenberg appointment to the Senate floor at that time because it was believed he then lacked the votes necessary for confirmation, that the committee vote was illegal and invalid under the Sunshine Law because no public notice of the meeting had been given and no minutes of the meeting were taken and that the subsequent confirmation vote by the Senate was thus also invalid, that "the individual plaintiffs are suffering immediate and irreparable harm by the refusal of the PUC to recognize Dr. Denenberg's right to remain as a Commissioner of the PUC, and will be permanently harmed if a replacement to the fifth Commissioner position is confirmed because there is no

[ 470 Pa. Page 381]

    other individual who has indicated and demonstrated as much concern to the interests of consumers as has Dr. Denenberg," and that "as a party having a complaint before the PUC regarding a proposed increase in telephone rates, the corporate plaintiff will suffer immediate and irreparable harm if its complaint comes before the PUC in the absence of a strong consumer advocate such as Dr. Denenberg." The plaintiffs prayed for specified injunctive and declaratory relief.*fn2 On July 25, 1975, the plaintiffs' request for preliminary relief was denied; after an argument ...

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