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PAUL SHEERS AND FRANKLIN L. SHOLLENBERGER v. RICHARD F. HIGGINS AND J. DONALD KERNS (10/26/88)

decided: October 26, 1988.

PAUL SHEERS AND FRANKLIN L. SHOLLENBERGER, MAJORITY COMMISSIONERS OF SCHUYLKILL COUNTY, AND HARRY A. RUBRIGHT, CHIEF PUBLIC DEFENDER OF SCHUYLKILL COUNTY
v.
RICHARD F. HIGGINS AND J. DONALD KERNS, MEMBERS OF THE SCHUYLKILL COUNTY SALARY BOARD, AND J. DONALD KERNS, CONTROLLER OF SCHUYLKILL COUNTY. RICHARD F. HIGGINS, APPELLANT. PAUL SHEERS AND FRANKLIN L. SHOLLENBERGER, MAJORITY COMMISSIONERS OF SCHUYLKILL COUNTY, AND HARRY A. RUBRIGHT, CHIEF PUBLIC DEFENDER OF SCHUYLKILL COUNTY V. RICHARD F. HIGGINS AND J. DONALD KERNS, MEMBERS OF THE SCHUYLKILL COUNTY SALARY BOARD, AND J. DONALD KERNS, CONTROLLER OF SCHUYLKILL COUNTY. J. DONALD KERNS, APPELLANT



Appeals from the Order of the Court of Common Pleas of Schuylkill County, in the case of Paul Sheers and Franklin L. Shollenberger, Majority Commissioners of Schuylkill County v. Richard F. Higgins, Paul Sheers, Franklin L. Shollenberger, J. Donald Kerns, Members of the Schuylkill County Salary Board, Harry A. Rubright, Chief Public Defender of Schuylkill County, and J. Donald Kerns, Controller of Schuylkill County, No. S-926-1985.

COUNSEL

Edward M. Brennan, with him, Thomas J. Pellish, for appellants.

Frank Robert Cori, Assistant County Solicitor, for appellees.

Judges Craig, Barry and McGinley, sitting as a panel of three. Opinion by Judge Barry. Judge MacPhail did not participate in the decision in this case.

Author: Barry

[ 120 Pa. Commw. Page 573]

Richard F. Higgins, the minority commissioner of Schuylkill County, and J. Donald Kerns, the controller of Schuylkill County, each appeal an order of the Court of Common Pleas of Schuylkill County which entered a declaratory judgment holding that an assistant public defender had been lawfully appointed and was entitled to a salary as set forth in a collective bargaining agreement between the county and its employees.

The facts are not in dispute, having been stipulated to by the parties. Paul Sheers and Franklin L. Shollenberger are the county's duly elected majority commissioners. Harry A. Rubright is the county's Public Defender. In April of 1985, Paul Domalakes was hired as an assistant public defender. Domalakes was a law partner of Rubright. When the Salary Board met on April 24, 1985, to approve the hiring and the salary of Domalakes, the vote was tied 2-2, Sheers and Shollenberger voting to approve, Higgins and Kerns refusing approval. Domalakes performed the duties of an assistant public defender without pay.

[ 120 Pa. Commw. Page 574]

In June of 1985, the majority commissioners filed a declaratory judgment action, naming as defendant the Salary Board. The complaint asked the trial court to interpret Section 1625 of the County Code, Act of August 9, 1955, P.L. 323, 16 P.S. § 1625 and declare lawful the participation of Rubright on Salary Board matters affecting the Office of the Public Defender. Higgins filed preliminary objections to the complaint, alleging, inter alia, the non-joinder of necessary parties.

The Salary Board met again on July 31, 1985. At this meeting, the majority commissioners instructed Rubright to vote as a Salary Board member. No other Public Defender has ever sat as a Salary Board member. Despite the objections of Higgins and Kerns, Rubright voted with the majority commissioners. At that time, Kerns stated that he would not issue any checks to Domalakes.

On August 16, 1985, the trial court sustained Higgins' preliminary objections and directed the majority commissioners to file an amended complaint. They did so, naming both Higgins and Kerns as individual defendants as members of the Salary Board. Higgins and Kerns filed answers and counterclaims, seeking a declaration that Rubright could not sit on the Salary Board and even if he could, his action violated the State Ethics Act, Act of October 4, 1978, P.L. 883, 65 P.S. §§ 401-13 (Supp. 1988), because Domalakes was his law partner. The majority commissioners filed an answer to the counterclaim.

The parties then filed a stipulation of facts. The trial court entered judgment in favor of the majority commissioners, holding that the existence of a collective bargaining agreement between the County and its employees rendered Salary Board action purely ...


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