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

COMMONWEALTH COURT OF PENNSYLVANIA


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 § 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 his presence in this litigation is not necessary for a just disposition of the merits of this petition for review.

Department of Revenue Secretary Scheiner's duties under Article III of the Tax Reform Code of 1971*fn3 are delineated in Section 354*fn4 of the act.

§ 7354 Rules and Regulations

The department is hereby charged with enforcement of the provisions of this article, and

[ 78 Pa. Commw. Page 219]

    is hereby authorized and empowered to prescribe, adopt, promulgate, and enforce rules and regulations relating to any matter or thing pertaining to the administration and enforcement of the provisions of this article and the collecting of taxes imposed by this article. (Emphasis added.)

"Administer" is commonly defined as: "to manage or supervise the execution, use or conduct of."*fn5

It is beyond question that the Secretary is empowered to defend and enforce the provisions of a taxing statute when a constitutional attack is mounted. He has a clear and undisputed interest in defending its constitutionality. Secretary Scheiner is, therefore, a proper party to this action.

The Commonwealth next argues that equity is an improper forum for resolution of the petitioner's cause. Its preliminary objections aver that there is an adequate remedy at law and Leonard has failed to exhaust her administrative remedy. Our Supreme Court, in Borough of Green Tree v. The Board of Property Assessments, Appeals and Review of Allegheny County, 459 Pa. 268, 328 A.2d 819 (1975), held that a court of equity had jurisdiction in an action, alleging that a taxing statute violated the uniformity clause of the Pennsylvania Constitution. Further, the Court held that the regular statutory administrative appeal procedure is unable to resolve the constitutionality issue. As in Green Tree, the Commonwealth here fails to aver the existence or efficacy of an adequate administrative appeal procedure to determine the ultimate constitutional issue. Here, following the Green Tree instruction, we conclude that this Court enjoys equitable jurisdiction.

[ 78 Pa. Commw. Page 220]

Finally, the Commonwealth attempts, at this time, to put before us for resolution the constitutionality of the nonresident cap and at the same time contends that Leonard has failed to establish irreparable harm. We cannot resolve these issues on preliminary objections. See Pa. R.C.P. No. 1017 (expressly limiting the scope of preliminary objections).

Thus, for the foregoing reasons, the preliminary objection removing Governor Thornburgh is sustained. All other preliminary objections are overruled.

Order

The preliminary objection of Governor Richard L. Thornburgh and Secretary of Revenue James Scheiner which seeks to remove Governor Thornburgh as a party to this action is sustained.

All other preliminary objections of Secretary of Revenue James Scheiner are overruled. The Secretary of Revenue shall file his answer within thirty (30) days of this Order.

Judge Williams, Jr., concurs in the result only.

Judge Doyle did not participate in this decision.

Disposition

Preliminary objections partially sustained and partially denied.

Concurring and Dissenting Opinion by Judge Barry:

I concur in that portion of the opinion of President Judge Crumlish, Jr., which sustains the preliminary objection of Governor Richard L. Thornburgh and removes Governor Thornburgh as a party to this action. I dissent from that portion of the opinion which overrules the preliminary objection of Secretary of Revenue James Scheiner.

In my opinion, the right of the Attorney General to participate in any case in which the constitutionality of a state statute is involved (Pa. R.C.P. No. 235) adequately represents the "executive interest" of the

[ 78 Pa. Commw. Page 221]

Commonwealth of Pennsylvania discussed in President Judge Crumlish's opinion. I would dismiss both Commonwealth officers from the case and transfer it to the Court of Common Pleas of Philadelphia County for further action.


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