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THOMAS A. LEONARD ET AL. v. RICHARD L. THORNBURGH (11/04/83)

decided: November 4, 1983.

THOMAS A. LEONARD ET AL., PETITIONERS
v.
RICHARD L. THORNBURGH, GOVERNOR, COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in the case of Thomas A. Leonard and Kathleen Leonard and Graveley Roofing Corporation v. Richard L. Thornburgh, Governor, Commonwealth of Pennsylvania, and James L. Scheiner, Secretary of Revenue, Commonwealth of Pennsylvania, and William J. Green, Mayor, City of Philadelphia, and Joseph W. Brown, Director of Finance, City of Philadelphia, and Eugene L. Cliett, Jr., Revenue Commissioner, City of Philadelphia.

COUNSEL

Thomas A. Leonard, for petitioners.

Jill A. Douthett, Divisional Deputy City Solicitor, with her John M. Myers, Divisional Deputy City Solicitor, Pamela L. Perry, Chief Assistant City Solicitor, and Janet S. Holcombe, Assistant City Solicitor.

William S. Rawls, Executive Deputy Attorney General, with him Maura A. Johnston, Robert Coyne and Allen C. Warshaw, Deputy Attorneys General, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail and Barry. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., concurs in the result only. Judge Doyle did not participate in this decision. Concurring and Dissenting Opinion by Judge Barry.

Author: Crumlish

[ 78 Pa. Commw. Page 217]

Governor Richard L. Thornburgh and Secretary of Revenue James Scheiner have filed preliminary objections to the petition for review of Kathleen Leonard. We sustain the preliminary objection which would remove Governor Thornburgh as a party to this action. The remaining preliminary objections are overruled.

The facts are recited extensively in Leonard v. Thornburgh, 75 Pa. Commonwealth Ct. 553, 463 A.2d 77 (1983), and will not be repeated here.

The Commonwealth contends first, by way of demurrer, that as a matter of law Governor Thornburgh and Secretary Scheiner are not proper parties to the action. We address the status of the two officials separately.

As to the Governor, the Pennsylvania Constitution provides that the "supreme executive power shall be

[ 78 Pa. Commw. Page 218]

    vested in the Governor, who shall take care that the laws be faithfully executed. . . ." Pa. Const. Art. IV ยง 2. This duty is reiterated in Section 701(a) of the Administrative Code of 1927.*fn1 The Governor is indeed the paramount executive authority in this Commonwealth. There can be no question that the Governor cannot, and indeed would not wish to, "faithfully execute" a statute which is by judicial fiat determined to be unconstitutional.*fn2 However, for the reasons that follow, we will permit the removal of the Governor as a party to this action.

The executive interest is adequately represented by its duly-appointed agency head, Department of Revenue Secretary Scheiner. We consider it to be both more efficient and expeditious to avoid the unnecessary duplication by the presence of the Chief Executive and his authorized delegate who present mutually identifiable positions. This is not to say that the Governor is precluded from maintaining himself as a party. We hold, however, that ...


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