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CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION v. GEORGE X. SCHWARTZ (07/08/81)

decided: July 8, 1981.

CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION, ET AL.,
v.
GEORGE X. SCHWARTZ, ET AL.



No. 81-3-400, Appeal from the Order of the Commonwealth Court, No. 1329 CD 1980

COUNSEL

David Kairys, Peter Goldberger, Philadelphia, for appellants.

Alan Davis, Arlan Spector, Philadelphia, for appellees.

Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., filed a dissenting opinion. O'Brien, C.j., did not participate in the consideration or decision of this case.

Author: Kauffman

[ 495 Pa. Page 12]

OPINION

Appellants challenge the order of the Commonwealth Court upholding the validity of salary increases for members of the Philadelphia City Council ("Council") and other elected officials authorized by a 12-0 vote of Council on December 20, 1979.*fn1 Eight Council members voting on Bill No. 2357 ("the Salary Bill") had been re-elected approximately six weeks earlier in the November, 1979 election for the term in which the pay raise would be effective.*fn2 At issue is the legality of a Salary Bill adopted after the election of the officials whose pay would be increased thereunder during the term for which they were elected. We hold that the Act of 1927, which remains in full force and effect as to Philadelphia, clearly and unambiguously prohibits any such salary increase and thus renders the Salary Bill null and void.*fn3

[ 495 Pa. Page 13]

Accordingly, we reverse the order of the Commonwealth Court, City Council Members v. Consumers Education and Protective Assn., 58 Pa. Commw. 444, 428 A.2d 711 and reinstate the final decree of the Court of Common Pleas enjoining appellees from paying out or receiving the salary increases.*fn4

The Salary Bill became effective at the beginning of Council's new term of office on January 7, 1980, and, inter alia, provided a salary increase of $10,000 per year for all Council members.*fn5 On January 9, 1980, appellants filed a complaint in equity in the Philadelphia Court of Common Pleas seeking preliminary and permanent injunctions against the salary increases on the grounds (1) that the Salary Bill violated the common law and public policy of the Commonwealth because eight of the voting Council members had a direct, personal, and pecuniary interest in its passage; (2) that the Salary Bill was in violation of the Act

[ 495 Pa. Page 14]

    of 1927; and (3) that the Salary Bill was in violation of Article III, Section 27 of the Pennsylvania Constitution.*fn6

In support of the Salary Bill, appellees asserted (1) that the public policy of this Commonwealth does not forbid salary determinations by public officials with personal pecuniary interest therein; (2) that the Act of 1927 has been superseded by various provisions of the Philadelphia Home Rule Charter ("Charter"), adopted in 1951 pursuant to the First Class Cities Home Rule Act of April 21, 1949, P.L. 665, 53 P.S. § 13101 et seq. ("Home Rule Act"); and (3) that a municipal pay raise ordinance is not a "law" within the meaning of Article III, Section 27 of the Pennsylvania Constitution.

Argument was limited to the legal issues raised on a stipulated factual record which, by agreement, excluded all questions concerning the social or economic wisdom of the challenged pay raises.*fn7 The lower court, basing its decision on common law conflict of interest principles and on the Act of 1927, entered a decree nisi invalidating the Salary Bill and enjoining appellees from paying out or receiving the salary increases.

Exceptions were heard by a three-judge panel of the common pleas court which, although divided with respect to grounds and reasoning, upheld the decree nisi. On appeal, the Commonwealth Court en banc, two judges dissenting, reversed as to members of Council and several city officials, and affirmed as to the remaining city officials.*fn8

[ 495 Pa. Page 15]

Appellants filed an emergency petition for allowance of appeal and motion for stay in this Court on April 27, 1981, both of which were granted, and expedited oral argument was heard on May, 18, 1981.*fn9 Appellants here challenge the Commonwealth Court's reversal on statutory and common law grounds and continue to press the constitutional challenge which was rejected both by the Commonwealth Court and by a majority of the common pleas panel.*fn10 Because our holding is supported by the clear and unambiguous prohibition of the Act of 1927, we do not reach the other legal issues raised in this appeal.

I

Despite its express recognition that the "time phrases" in the Charter could be reconciled with the limitation of the Act of 1927 forbidding salary increases after election,*fn11, the Commonwealth Court concluded that the Act of 1927 is in "irreconcilable conflict" with the following Charter provisions:

"Each councilman shall receive a salary at the rate of . . . such . . . sum as the Council shall from time to time ordain . . . ." (Charter, § 2-100) (551 Pa. Code § 2.2-100) (emphasis supplied).

" Until the Council shall otherwise ordain, annual salaries shall be payable (to the Mayor, Controller, Director of Finance, Treasurer, and ...


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