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EDWARD P. ZEMPRELLI v. LEGREE S. DANIELS (10/28/81)

decided: October 28, 1981.

EDWARD P. ZEMPRELLI, J. WILLIAM LINCOLN, ROBERT J. MELLOW, JAMES E. ROSS AND EUGENE F. SCANLON, STATE SENATORS, PETITIONERS,
v.
LEGREE S. DANIELS, ROBERT C. JUBELIRER, F. JOSEPH LOEPER, SENATE OF COMMONWEALTH OF PENNSYLVANIA, INTERVENORS AND FLORENCE J. BAALS, ERNESTA D. BALLARD, H. EDWARD BLACK, JOHN C. GOEBERT, EZRA M. MILLER, MARK NEAL PLATTS, WILLIAM L. POLLARD, JOSEPH V. ZORD, JR., NELSON PAGE ASPEN, M.D., ANTHONY R. COGNETTI, ELIZABETH J. HARPER, EARL HORTON, JOSEPH T. MARCONIS, M.D., DENNIS E. MCMASTER, JOHN H. MOYER, III, M.D., D.SC., JOHN WILSON STEMLER, AND CLIFFORD TINKLEPAUGH, RESPONDENTS



Nos. 4, 30, 31, 32, 33, 34, 35, 36, 37, 44, 45, 46, 47, 48, 49, 50, 51, 52 M.D. Misc. Docket 1981, Petition for Review in the Nature of a Quo Warrantor Action

COUNSEL

Michael T. McCarthy, Senate Democratic Caucus, Harrisburg, for petitioners.

Allen C. Warshaw, Harrisburg, for respondents.

Thomas L. Wenger, Harrisburg, for intervenors.

O'Brien, Chief Justice.

Author: O'brien

[ 496 Pa. Page 249]

OPINION OF THE COURT

Petitioners in the instant action are five state senators who voted against the confirmation of Respondent Daniels as a member of the State Tax Equalization Board. Other respondents include 17 other successful nominees. Two state senators who voted to confirm respondents' appointments and the Senate of the Commonwealth of Pennsylvania have been granted leave to intervene. Invoking our original jurisdiction pursuant to 42 Pa.C.S.A. § 721(3) (Purdon 1981), petitioners filed a Petition for Review in the Nature of Quo Warrantor seeking to oust Respondent Daniels from her seat. Similar actions were filed against the other respondent nominees, and our decision in the initial action will be dispositive as to those as well. Having considered the matter presented in the petition, we uphold the validity of the challenged executive appointments and accordingly deny the relief requested by petitioners.

The events giving rise to this action, which are not in dispute, took place on the Senate floor during the 1981 Session of the 165th General Assembly. Governor Thornburgh nominated Respondent Daniels by a letter to the

[ 496 Pa. Page 250]

Senate dated December 24, 1980. Initially, the nomination was tabled, but it was reconsidered on January 27, 1981, when a vote was taken. The affirmative votes of a majority of the members elected to the Senate were required to confirm her appointment under 71 P.S. § 67.1(d)(4) (Purdon Supp. 1981). The nomination received 25 "yeas" and 22 "nays," and the President of the Senate, finding that the requisite vote of a constitutional majority had been obtained, ruled the appointment confirmed.

Respondent's Zemprelli objected to the Chair's ruling, arguing that the constitutional majority should be computed on the basis of the total number of members "elected" to the Senate, 50, rather than on the number then in office, 48,*fn1 and that consequently the affirmative vote of 25 senators was insufficient to seat Respondent Daniels. The President based his ruling on Senate Rule XXII, subparagraph 8, 104 Pa.Code § 11.22(i), which provides "[a] majority of the Senators elected shall mean a majority of the Senators elected, living, sworn, and seated." Since 25 constituted a majority of the 48 senators then in office, the President ruled that Respondent Daniels' nomination had achieved the majority vote mandated by Article IV, section 8(a) of the Pennsylvania Constitution. That section provides:

"The Governor shall appoint a Secretary of Education and such other offices as he shall be authorized to appoint. The appointment of the Secretary of Education and of such other officers as may be specified by law, shall be subject to the consent of two-thirds or a majority of the members elected to the Senate as is specified by law.

Petitioner Zemprelli appealed the Chair's ruling and, after debate, the Senate sustained it by a vote of 25 to 22. Zemprelli's subsequent motion for reconsideration of the nomination was defeated. This quo warrantor action ensued.

It is evident from the foregoing that the entire controversy before us turns on a single question of constitutional

[ 496 Pa. Page 251]

    interpretation, namely the meaning of the phrase "a majority of the members elected to the Senate" in the context of Article IV, section 8. Before we may engage in such interpretation, however, we must first determine whether petitioners have standing to maintain this action. If we answer in the affirmative, we must then decide whether the dispute before this Court presents a "political question" not amenable to judicial review.

I. Standing

Challenges to petitioner's standing to maintain the instant action, while not clearly articulated, have nonetheless been raised. Respondents allege that petitioners failed to plead the "special interest" required of private parties seeking to maintain a quo warrantor action,*fn2 but in fact have an ...


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