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PENNSYLVANIA PUBLIC UTILITY COMMISSION BAR ASSOCIATION BY ITS PRESIDENT v. RICHARD THORNBURGH (09/28/81)

decided: September 28, 1981.

PENNSYLVANIA PUBLIC UTILITY COMMISSION BAR ASSOCIATION BY ITS PRESIDENT, MICHAEL C. SCHNIERLE AND VICE PRESIDENT, DANIEL P. DELANEY, PETITIONER
v.
RICHARD THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in case of The Pennsylvania Public Utility Bar Association, by its President, Michael C. Schnierle and Vice-President, Daniel P. DeLaney v. Richard Thornburgh, Governor of the Commonwealth of Pennsylvania; State Ethics Commission; Leroy S. Zimmerman, Attorney General of the Commonwealth of Pennsylvania, and Richard A. Lewis, District Attorney of Dauphin County.

COUNSEL

John F. Povilaitis, Assistant Attorney General, with him Louise Russell Knight, Assistant Attorney General, for petitioner.

William S. Rawls, Deputy Attorney General, with him Gregg H. S. Golden, Deputy Attorney General, Allen C. Warshaw, Counsel, and Sandra S. Christianson, General Counsel, for respondents.

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

Author: Macphail

[ 62 Pa. Commw. Page 90]

The Pennsylvania Public Utility Commission Bar Association (Association) filed a petition for review in our original jurisdiction in the nature of a petition for a declaratory judgment seeking to hold Section 3(e) of the Act of October 4, 1978 (Ethics Act), P.L. 883, 65 P.S. § 403(e), unconstitutional as applied to the Association's members. Simultaneously, the Association filed an application for summary relief under the provisions of Pa. R.A.P. 1532(b). We denied that motion on March 12, 1981. Thereafter, Respondents*fn1 filed answers to the petition*fn2 whereupon the Association filed a motion for summary judgment. Affidavits were submitted by the Association and Respondents in support of their respective positions. It is the disposition of the Association's motion for summary judgment that is before us now.

Factual Background

The Association is composed of persons who are employed as assistant counsel to the Pennsylvania Public Utility Commission. Each member of the Association

[ 62 Pa. Commw. Page 91]

    is also a member of the Bar of the Commonwealth of Pennsylvania and subject to the Code of Professional Responsibility and the Pennsylvania Rules of Disciplinary Enforcement adopted by the Supreme Court of Pennsylvania. Affidavits of individual members of the Association indicate that at the termination of their employment with the Public Utility Commission (P.U.C.) it is their desire to perform services for clients involving proceedings before the P.U.C. Two former employees of the P.U.C. who served as assistant counsel requested legal opinions from the State Ethics Commission (Commission) regarding the application of Section 3(e) of the Ethics Act to services they desired to perform for clients, which services are similar in nature to those described by members of the Association in the instant proceedings. Counsel for the Commission advised the former employees that only those professional services which may involve the use of personal influence with former associates were barred by the Ethics Act and that other professional services such as the preparation of briefs and background services to clients would not be barred.

The Association contends that as applied to its members, Section 3(e) of the Ethics Act is 1) an impermissible invasion of the legislature into the exclusive power and authority of the Supreme Court of Pennsylvania and 2) a violation of the due process clause of Article I, Section 1 of the Pennsylvania Constitution and the 14th Amendment of the United States Constitution.

Procedural Issues

This Court has previously stated that a motion for summary judgment was unavailable as a procedural device in declaratory judgment actions because there was no provision for summary judgment in the Uniform

[ 62 Pa. Commw. Page 92]

Declaratory Judgments Act.*fn3 Laspino v. Rizzo, 40 Pa. Commonwealth Ct. 625, 398 A.2d 1069 (1979). With the subsequent repeal of the Uniform Act, however, and the adoption of the Declaratory Judgments Act*fn4 and the promulgation of Pa. R.C.P. Nos. 1601-1604, it is necessary for us to review our prior case law on this matter. The legislature took the opportunity in the new Declaratory Judgments Act to express its intention that henceforth, declaratory judgments were additional and cumulative to all other available remedies and that the purpose of the new legislation was remedial. 42 Pa. C.S. § 7541. The fair implication from such statutory language is ...


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