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EDWARD P. ZEMPRELLI ET AL. v. DICK THORNBURGH (03/25/83)

decided: March 25, 1983.

EDWARD P. ZEMPRELLI ET AL., PETITIONERS
v.
DICK THORNBURGH, GOVERNOR ET AL., RESPONDENTS



Original jurisdiction in the case of Edward P. Zemprelli, Eugene F. Scanlon, James E. Ross, and Robert J. Mellow, State Senators v. Dick Thornburgh, Governor, Robert K. Bloom, William E. Andrew, Donald L. Smith, and Syed R. Ali-Saidi.

COUNSEL

William G. Dade, Assistant Counsel to the Senate Democratic Floor Leader, with him Michael T. McCarthy, Chief Counsel to the Senate Democratic Floor Leader, for petitioners.

Robert B. Hoffman, Deputy Attorney General, with him David H. Allhouse, Deputy Attorney General, Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge MacPhail.

Author: Crumlish

[ 73 Pa. Commw. Page 102]

State Senators Edward P. Zemprelli, Eugene F. Scanlon, James E. Ross and Robert J. Mellow (petitioners or senators) seek, by an action in the nature of

[ 73 Pa. Commw. Page 103]

    writ soon lost its criminal character and applied to the mere purpose of trying the civil rights involved, it retained the criminal form.

Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 344, 166 A. 878, 879 (1933). In support of this challenge to respondents' right to hold office, petitioners argue that these nominations and ensuing appointments were made in violation of Article IV, § 8(b) of the Pennsylvania Constitution and are thus unlawful.

The respondents have filed a preliminary objection in the nature of a demurrer, challenging these senators' standing to maintain this action. In arguing that the senators lack standing, the respondents contend that the only alleged injury was to their right to vote on the nominations and that, because the senators have exercised this right, they have suffered no injury. The senators reason that they have both a right and a duty to vote despite their belief that these nominations were constitutionally infirm and that they were injured by this compulsion to vote on these submissions.

In ruling on a preliminary objection in the nature of a demurrer, a court must accept all well-pleaded allegations as fact. Independent Association of Pennsylvania Liquor Control Board Employees v. Commonwealth, 35 Pa. Commonwealth Ct. 133, 384 A.2d 1367 (1978). A demurrer will be sustained only when it appears, with certainty, that the law permits no recovery under the allegations pleaded, Adamson v. Commonwealth, 49 Pa. Commonwealth Ct. 54, 410 A.2d 392 (1980), and the objection must be overruled if the allegations state a cause of action under any theory of law. Sinwell v. Pennsylvania Board of Probation and Parole, 46 Pa. Commonwealth Ct. 429, 406 A.2d 597 (1979). Thus, a court must decide any question of law which is determinative as to the proper disposition of a demurrer. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976).

[ 73 Pa. Commw. Page 105]

Article IV, § 8(b), upon which petitioners rely for their assertion that these nominations were unconstitutionally submitted, provides in pertinent part:

The Governor shall fill vacancies in offices to which he appoints by nominating to the Senate a proper person to fill the vacancy within 90 days of the first day of the vacancy and not thereafter. The Senate shall act on each executive nomination within 25 legislative days of its submission. (Emphasis added.)

In Zemprelli v. Thornburgh, 47 Pa. Commonwealth Ct. 43, 407 A.2d 102 (1979) (Zemprelli I), we held that this constitutional provision mandates that the Governor submit nominations within the ninety-day period subsequent to the ...


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