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HONORABLE JOHN M. WAJERT v. STATE ETHICS COMMISSION (10/30/79)

decided: October 30, 1979.

THE HONORABLE JOHN M. WAJERT, JUDGE OF THE COURT OF COMMON PLEAS IN AND FOR CHESTER COUNTY, 15TH JUDICIAL DISTRICT, PETITIONER
v.
STATE ETHICS COMMISSION, RESPONDENT



Original Jurisdiction in case of the Honorable John M. Wajert, Judge of the Court of Common Pleas in and for Chester County, 15th Judicial District v. State Ethics Commission.

COUNSEL

John M. Wajert, petitioner, for himself.

David R. Morrison, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Rogers, Blatt and MacPhail. Judges Mencer, DiSalle and Craig did not participate. Opinion by President Judge Bowman.

Author: Bowman

[ 47 Pa. Commw. Page 99]

By petition for declaratory judgment,*fn1 the Honorable John M. Wajert, a Judge of the Court of Common Pleas of Chester County, seeks a judicial declaration that an opinion rendered to him at his request by respondent, State Ethics Commission, is of "no force and effect" as being contrary to the statute under which it was rendered and as being issued in violation of petitioner's due process rights. He further seeks a judicial declaration that Section 3(e) of the Act of October 4, 1978 (Ethics Act), P.L. 883, 65 P.S. § 403, is unconstitutional as violative of the doctrine of separation of powers, as impermissibly invading the constitutional powers of the Supreme Court of Pennsylvania, as vague and as subjecting him to involuntary servitude.

Respondent filed preliminary objections to the petition (a) in the nature of a motion for a more specific

[ 47 Pa. Commw. Page 100]

    pleading and (b) in the nature of a demurrer countering each of petitioner's legal assertions as applied to his factual averments.*fn2

Subsequent "pleadings" in the form of an answer to respondent's preliminary objections and preliminary objections to respondent's preliminary objections neither materially alter the issues nor clarify them.

It is axiomatic that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material factual averments and all inferences fairly deducible therefrom but conclusions of law are not so admitted. Sinn v. Burd, Pa. , 404 A.2d 672 (1979). From this vantage point the petition for review must be considered to determine if it pleads a cause of action, which, if proven, would entitle petitioner to the relief sought.

However, before undertaking this inquiry another obstruction to judicial resolution by way of declaratory judgment has injected itself into this proceedings which we shall dispose of first.

At oral argument counsel for respondent announced that at a meeting of the Commission on October 1, 1979,*fn3 it had withdrawn the opinion previously rendered to petitioner. Written notice of such withdrawal was then filed in this proceedings as was a letter addressed to petitioner inviting him to appear at a meeting of the Commission on October 17, 1979, and to file a brief and orally argue incident to the Commission reconsidering the issue at said meeting.

[ 47 Pa. Commw. Page 101]

To the extent that the petition for review seeks to have this opinion of the Commission judicially declared of no force and effect as contrary to the statute or as in violation of petitioner's due process rights, we are of the view that there no longer exists a case or controversy within the scope of the Declaratory Judgments Act, 42 Pa. C.S. § 7531 et seq. The action by the Commission in withdrawing said opinion moots the governmental determination upon which this count of the petition for review is predicated. We would also observe that if the now withdrawn opinion of the Commission is, as petitioner argues with respect to the asserted violation of his due process rights, an order of a tribunal,*fn4 declaratory judgment proceedings are unavailable. 42 Pa. C.S. § 7541(c)(3).

To the extent that the petition for review under its well-pleaded factual averments puts in issue the proper construction to be placed upon Section 3(e) of the Ethics Act, we deem this issue to remain within the ambit of the Declaratory Judgments ...


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