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decided: March 27, 1986.


Appeal from Order of Commonwealth Court dated April 19, 1984, entered at No. 2841 C.D. 1983. Nix,*fn* C.j., Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins in this opinion and files a concurring opinion in which Papadakos, J., joins.

Author: Nix

[ 510 Pa. Page 163]


In this action the Consumer Party of Pennsylvania and several citizen-taxpayers ("appellants")*fn1 appeal from a final order of the Commonwealth Court which upheld the constitutionality

[ 510 Pa. Page 164]

    of the Public Official Compensation Law of 1983 ("Compensation Law"), Act of September 30, 1983, P.L. 160, No. 39, § 1 et seq., 65 P.S. § 366.1 et seq. (Supp.1985). The Compensation Law had its genesis in Senate Bill 270 which was first introduced in the Senate on February 15, 1983 bearing the following title:

An act amending the act of August 9, 1955 (P.L. 323, No. 130), entitled 'an act relating to counties of the third, fourth, fifth, sixth, seventh and eighth classes; amending, revising, consolidating and changing the laws relating thereto' further providing for the filling of vacancies in certain circumstances.

After several considerations, Senate Bill 270 was passed by the Senate on April 18, 1983 and presented to the House on April 20, 1983, where, following amendments, it was passed on June 1, 1983. The House's amended version of Senate Bill 270 bore the same title as the original Senate Bill 270.

Upon reconsideration, the Senate refused to agree to the amendments made by the House and consequently, during July, 1983, both bodies sent representatives to a Committee of Conference ("Committee") on Senate Bill 270. The Committee submitted a report and amended version of Senate Bill 270 to the members of the House and the Senate on September 28, 1983. This amended version, however, bore a title substantially different from the original title. The new title read:

An act establishing salaries and compensation of certain public officials including justices and judges of Statewide courts, judges of courts of common pleas, judge of the Philadelphia Municipal Court, judges of the Philadelphia Traffic Court, district justices and the Governor, the Lieutenant Governor, the State Treasurer, the Auditor General, the Attorney General and certain other State officers and the salary and certain expenses of the members of the General Assembly; and repealing certain inconsistent acts.

On that same day, September 28, 1983, the Senate adopted the Committee's bill by a vote of 32 to 18 and the

[ 510 Pa. Page 165]

House adopted it by a vote of 103 to 99. Governor Thornburgh signed the newly entitled Senate Bill 270 into law on September 30, 1983.

Thereafter appellants commenced an action in the Commonwealth Court against appellees*fn2 seeking a declaration that Sections 4*fn3 and 5*fn4 of the Compensation Law are

[ 510 Pa. Page 166]

    unconstitutional, an injunction against any disbursements under the law,*fn5 and an order directing the recoupment of any payments theretofore made to members of the General Assembly pursuant to the law.*fn6 Appellants contended that the challenged sections of the Compensation Law violated various sections of Article III of the Pennsylvania Constitution.

The parties agreed to have the case resolved upon stipulated facts and cross-motions for summary judgment. On April 19, 1984, the Commonwealth Court en banc issued an opinion and order which sustained the General Assembly's preliminary objections in the nature of a demurrer that under Article II, § 15 of the Pennsylvania Constitution the Legislature and its leaders are immune from a suit where the challenge is to legislative activities during the passage of legislation. Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 81 Pa. Commw. 609, 475 A.2d 850 (1984). In addition, the Commonwealth Court granted the motion for summary judgment filed on behalf of the Commonwealth and the State Treasurer, holding that Sections 4 and 5 of the Compensation Law are constitutional.

[ 510 Pa. Page 167]

Appellants appealed to this Court pursuant to 42 Pa.C.S. § 723(a) arguing that it was error for the Commonwealth Court to grant summary judgment in favor of appellees because the Compensation Law was enacted in violation of Article III, § 1 of the Pennsylvania Constitution and because the legislator's increase in their expense allowance, during their term of office, violates the Pennsylvania Constitution. Appellants also contend that the Commonwealth Court erroneously concluded that the Speech and Debate Clause, Article II, § 15, barred the present suit against the General Assembly. Appellees counter that appellants lack standing to maintain this action.


We must first address appellees' contention, not addressed below,*fn7 that appellants, as taxpayers, lack standing to challenge the constitutionality of the Compensation Law. Appellants allege that they will be harmed by the unconstitutional expenditures of millions of dollars as a result of the Compensation Law's increase in the legislator's salary and expense allowances.*fn8 On this point appellants attempt to rely upon a number of our earlier decisions which held that a taxpayer may seek to enjoin the wrongful or unlawful expenditure of public funds even though he is unable to establish any injury other than to his interest as a taxpayer. See, e.g., Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966); Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444 (1963); Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135 (1962); Scudder v. Smith, 331 Pa. 165, 200 A. 601 (1938); Harris v. Philadelphia, 299 Pa. 473, 149 A. 722

[ 510 Pa. Page 168]

(1930); Page v. King, 285 Pa. 153, 131 A. 707 (1926). However, as appellees argue in their brief, this liberal approach to taxpayer standing was overruled by our decision in Application of Biester (" Biester "), 487 Pa. 438, 409 A.2d 848 (1979), which requires, generally, the establishment of an interest that surpasses the common interest of all taxpaying citizens. Nevertheless, because we find that this case falls within a narrow exception recognized in Biester, we hold that appellants, as taxpayers, have standing to maintain the instant action.

We begin our standing analysis by noting that Biester is the seminal case defining the parameters of taxpayer standing in this Commonwealth. In that case we stated as a general rule:

The purpose of the requirement of standing is to protect against improper plaintiffs. K. Davis, Administrative Law Text § 22.04 (3rd ed. 1972). A plaintiff, to meet that requirement, must allege and prove an interest in the outcome of the suit which surpasses "the common interest of all citizens in procuring obedience to the law." Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 281 (1975). To surpass the common interest, the interest is required to be, at least, substantial, direct, and immediate. Wm. Penn, supra.

Id., 487 Pa. at 442-43, 409 A.2d at 851.

See also Upper Bucks County Vocational-Technical School Education v. Upper Bucks County Vocational-Technical School Joint Committee, 504 Pa. 418, 474 A.2d 1120 (1984). As noted above, Biester thus overruled a long line of cases which did not require the taxpayer to allege an injury distinct from that of the general public. In Biester, however, we carved out a narrow exception to the general rule and emphasized that certain cases exist in which the facts warrant the grant of standing to taxpayers where their interest arguably is not substantial, direct, and immediate. Id., 487 Pa. at 444, 409 A.2d at 852. The relaxing of those interest requirements in certain cases where there is little causal connection between the action complained of

[ 510 Pa. Page 169]

    and the injury alleged is best explained by the basic policy considerations underlying taxpayer standing. These policy considerations were articulated in footnote five of Biester:

The ultimate basis for granting standing to taxpayers must be sought outside the normal language of the courts. Taxpayers' litigation seems designed to enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement. Such litigation allows the courts, within the framework of traditional notions of 'standing,' to add to the controls over public officials inherent in the elective process the judicial scrutiny of the statutory and constitutional validity of their acts.

Biester, supra, 487 Pa. at 443 n. 5, 409 A.2d at 851 n. 5, quoting Note, Taxpayers' Suits: A Survey and Summary, 69 Yale L.J. 895, 904 (1960).

See also Faden v. Philadelphia Housing Authority, 424 Pa. 273, 278, 227 A.2d 619, 621-22 (1967) (the fundamental reason for granting taxpayer standing is simply that otherwise a large body of governmental activity would go unchallenged in the courts).

Thus we advocated in Biester a policy for granting standing where, although the degree of causal connection is small, judicial review otherwise would not occur. Id., 487 Pa. at 445, 409 A.2d at 852. We noted that the possibility of the challenged legislation escaping review is most likely "when those directly and immediately affected by the complained of expenditures are beneficially affected as opposed to adversely affected." Id. Further, we stated that "[c]onsideration must be given to other factors such as, for example, the appropriateness of judicial relief, the availability of redress through other channels, or the existence of other persons better situated to assert the claim." Id., 487 Pa. at 446, 409 A.2d at 852, quoting Government of Guam ex rel. Camacho v. Bird, 398 F.2d 314 (9th Cir.1968) (citations omitted).

[ 510 Pa. Page 170]

To summarize, in Biester we held that a taxpayer seeking standing to sue must allege a substantial, direct, and immediate interest in the outcome of the suit unless the taxpayer can show:

1. the governmental action would otherwise go unchallenged;

2. those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action;

3. judicial relief is appropriate;

4. redress through other channels is unavailable; and

5. no other persons are better situated to ...

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