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HONORABLE LUCIEN BLACKWELL v. COMMONWEALTH PENNSYLVANIA (04/07/89)

decided: April 7, 1989.

HONORABLE LUCIEN BLACKWELL, MEMBER CITY COUNCIL OF PHILADELPHIA, HONORABLE DAVID COHEN, MEMBER CITY COUNCIL OF PHILADELPHIA, HONORABLE FRANCIS RAFFERTY, MEMBER CITY COUNCIL OF PHILADELPHIA, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, STATE ETHICS COMMISSION, RESPONDENT



Original Jurisdiction in the case of Honorable Lucien Blackwell, Member City Council of Philadelphia, Honorable David Cohen, Member City Council of Philadelphia, Honorable Francis Rafferty, Member City Council of Philadelphia v. Commonwealth of Pennsylvania, State Ethics Commission.

COUNSEL

Charles W. Bowser, with him, James P. Cousounis, Baskin, Flaherty, Elliott & Mannino, P.C., for petitioners.

Vincent J. Dopko, for respondent.

Jules S. Henshell, Deputy Attorney General, with him, John G. Knorr, III, Chief Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for intervenor, Office of Attorney General.

John E. McKeever, for Amicus Curiae, Committee of Seventy.

President Judge Crumlish, Jr., and Judges Craig, Barry, Colins, Palladino, McGinley and Smith. Opinion by President Judge Crumlish, Jr. Concurring Opinion by Judge Colins. Judge Barry joins in this Concurring Opinion.

Author: Crumlish

[ 125 Pa. Commw. Page 44]

The State Ethics Commission*fn1 (Commission) has filed preliminary objections to a petition for review in which petitioners, three Philadelphia City Councilmen, ask this Court to enjoin the Commission's investigation of the petitioners, and to declare the investigation unlawful and unconstitutional.

In support of its preliminary objections, the Commission contends that (1) petitioners have failed to exhaust administrative remedies; (2) declaratory judgment is not an available remedy when a matter is pending before the Commission; and (3) petitioners failed to serve the Attorney General with the petition for review. We overrule the

[ 125 Pa. Commw. Page 45]

Commission's preliminary objections for the reasons that follow.

The Commission initiated an investigation of the petitioners after receiving a sworn complaint alleging that the petitioners had hired their spouses for positions in their offices, in violation of the Public Officials Ethics Act, Act of October 4, 1978, P.L. 883, as amended, 65 P.S. §§ 401-413 (Ethics Act). The Commission notified the petitioners on June 19, 1987, that an investigation concerning a possible violation of Section 3(a) of the Ethics Act, 65 P.S. § 403(a), had begun. Petitioners filed the petition for review in the nature of an action for declaratory judgment and action in equity in this Court on September 13, 1988. On September 15, petitioners asked the Commission to stay the investigation and proceedings pending the outcome of the declaratory judgment action. The Commission denied that request on September 28.

On October 7, after the Commission issued a subpoena for the purpose of the ongoing investigation, the petitioners filed an application for special relief by way of a restraining order and protective order, asking this Court to quash the subpoena and to enjoin the Commission from continuing the investigation until this Court could act on the motion for preliminary injunction. On October 11, Senior Judge Narick stayed the subpoena until the preliminary injunction hearing and denied petitioners' request to enjoin the investigation.

This Court held a hearing on the petitioners' application for a preliminary injunction on October 20. Judge Smith issued an order on October 25 denying the preliminary injunction and granting a stay of the subpoena pending the outcome of our decision on the preliminary objections now before us.

We shall consider whether we are precluded from granting declaratory judgment when a matter is pending before the Commission.

[ 125 Pa. Commw. Page 46]

The Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541, provides as its remedial purpose "relief from uncertainty and insecurity with respect to rights, status, and other legal relations . . . ." 42 Pa. C.S. § 7541(a). Subsection (b) of Section 7541 states that "the remedy provided by this subchapter shall be additional and cumulative to all other available ...


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