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EDWARD A. CLOONAN v. HONORABLE DICK THORNBURGH (12/29/86)

decided: December 29, 1986.

EDWARD A. CLOONAN, PETITIONER
v.
THE HONORABLE DICK THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. PENNSYLVANIA LIQUOR CONTROL BOARD, PETITIONER V. GOVERNOR RICHARD THORNBURGH, RESPONDENT. WENDELL W. YOUNG, INDIVIDUALLY, AS A TAXPAYER ET AL., PETITIONERS V. GOVERNOR DICK THORNBURGH, RESPONDENT. EDWARD P. ZEMPRELLI ET AL., PETITIONERS V. DICK THORNBURGH, RESPONDENT. UNITED FOOD AND COMMERCIAL WORKERS LOCAL 1357 ET AL., PETITIONERS V. GOVERNOR RICHARD THORNBURGH, RESPONDENT



Original Jurisdiction in the case of Edward A. Cloonan v. The Honorable Dick Thornburgh, Governor of the Commonwealth of Pennsylvania; Pennsylvania Liquor Control Board v. Governor Richard Thornburgh; Wendell W. Young, Individually, as a taxpayer et al. v. Governor Dick Thornburgh; Edward P. Zemprelli et al. v. Dick Thornburgh; and United Food and Commercial Workers Local 1357 et al. v. Governor Richard Thornburgh.

COUNSEL

John D. Killian, with him, Robert W. Barton, Killian & Gephart, for petitioner, Edward A. Cloonan.

Ken Skelly, Chief Counsel, with him, Felix Thau, Deputy Chief Counsel, and Eileen S. Maunus, Assistant Counsel, for petitioner, Pennsylvania Liquor Control Board.

Gary F. DiVito, Goldstein, Friedberg, Zaslow & DiVito, P.C., for petitioners, Wendel W. Young and Carl Huber, individually and as Presidents of UFCW Locals Nos. 1357 and 23.

Michael T. McCarthy, Chief Counsel, with him, Sally A. Ulrich, Assistant Counsel, to Senate Democratic Floor Leader, for petitioners, Edward P. Zemprelli, et al.

Bernard N. Katz, with him, Basil L. Merenda, Meranze and Katz, for petitioners, United Food and Commercial Workers Local 1357 et al.

Henry G. Barr, General Counsel, with him, Barry M. Hartman, Administrative Deputy General Counsel, Raymond Pepe, Deputy General Counsel, and Andrew Cline, Associate Deputy General Counsel, for respondent, Governor Richard Thornburgh.

Kathryn Speaker MacNett, Baskin, Flaherty, Elliott, Mannino & Beren, P.C., for amicus curiae, Penn Beer Distributors, Inc. et al.

Fred Speaker, with him, Thomas B. Schmidt, III, Pepper, Hamilton & Scheetz, for amicus curiae, Common Cause.

President Judge Crumlish, Jr. Opinion by president Judge Crumlish, Jr.

Author: Crumlish

[ 103 Pa. Commw. Page 4]

On December 22, 1986, this Chancellor heard argument on seven separate applications for special and preliminary relief involving five actions brought against Dick Thornburgh, Governor of the Commonwealth of Pennsylvania, which arose from the issuance of Executive Order 1986-7 providing for the phase-out of the Pennsylvania Liquor Control Board (PLCB).

I.

Edward A. Cloonan, a state store manager and President of the Independent State Store Union, filed a petition for review (No. 3467 C.D. 1986) in this Court's appellate jurisdiction, 42 Pa. C.S. § 763, and an application for special relief pursuant to Pa. R.A.P. 1532(a) seeking to preliminarily enjoin Executive Order 1986-7.

II.

The PLCB filed a petition for review (No. 3481 C.D. 1986) in the nature of an action for declaratory judgment and permanent injunction in this Court's original jurisdiction, 42 Pa. C.S. § 761, and an application for

[ 103 Pa. Commw. Page 5]

    summary relief*fn1 pursuant to Pa. R.A.P. 1532(b) requesting this Court (1) to declare Executive Order No. 1986-7 null and void, (2) to define the legal status of the PLCB after December 31, 1986, and (3) to declare the Sunset Act*fn2 unconstitutional.

III.

Wendell W. Young, as taxpayer and president of the United Food and Commercial Workers Union, representing approximately 3,500 state store employees, filed a petition for review (No. 3534 C.D. 1986) in the nature of an action for declaratory judgment and permanent injunction in this Court's original and appellate jurisdiction and an application for special relief asking this Court to declare the Sunset Act unconstitutional and Executive Order 1986-7 invalid.

IV.

Seven state Senators*fn3 filed a petition for review (No. 3535 C.D. 1986) in our original jurisdiction and an application for preliminary injunction seeking to enjoin the implementation of Executive Order 1986-7.

[ 103 Pa. Commw. Page 6]

V.

Finally, the United Food and Commercial Workers Local 1357 filed a petition for review (No. 3604 C.D. 1986) in the nature of an action for declaratory judgment and permanent injunction in this Court's original jurisdiction and an application for summary relief requesting this Court to enjoin the implementation of Executive Order 1986-7, to declare the Sunset Act unconstitutional, and to define the legal status of the PLCB after December 31, 1986.

On December 19, 1986, the Pennsylvania AFL-CIO, the American Federation of State, County and Municipal Employees, Council 13, AFL-CIO, the Pennsylvanians for a Responsible End to the State Store System*fn4 (PRESSS) and Common Cause, a non-profit citizen organization promoting accountability in federal, state and local governments, were granted status as intervenors. On December 23, 1986, the President and President Pro Tempore of the State Senate were granted permission to intervene as party-respondents.

Notwithstanding the number of petitions and variety of applications filed, these suits collectively present identical issues: (1) the constitutionality of the Act of December 22, 1981, commonly and hereafter referred to as the Sunset Act; (2) the validity of the sunset procedure as applied to the PLCB, and (3) the constitutionality and/or validity of Executive Order 1986-7.

Sunset Act

The Sunset Act provides a detailed statutory mechanism for legislative review of, inter alia, the conduct, need for, and constitution of existing administrative

[ 103 Pa. Commw. Page 7]

    agencies, boards and commissions in this Commonwealth. Common Cause notes in its amicus brief that thirty-four other states have enacted similar Sunset legislation. The Sunset Act provides for the following: a termination deadline; an evaluation and review process; and a reestablishment or continuance format. Because it is a novel and innovative act, it is subject to wide and varied interpretations in the public and private sectors. This Chancellor believes a step-by-step analysis of the Sunset Act's procedures through a termination of a hypothetical state agency, "XYZ Board," will be illustrative.

XYZ Board

Section 6 of the Act mandates that the XYZ Board together with its corresponding statutory functions shall terminate all activities and shall go out of existence on December 31, 1986.

Sections 3 and 4 of the Act create a Sunset Leadership Committee*fn5 and authorize it to direct and coordinate the implementation of the sunset review procedure. In January of the scheduled termination year, the Committee designates an appropriate ...


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