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COMMONWEALTH PENNSYLVANIA AND TOWNSHIP UNION v. JAMES FEE (12/21/89)

decided: December 21, 1989.

COMMONWEALTH OF PENNSYLVANIA AND THE TOWNSHIP OF UNION, APPELLEES,
v.
JAMES FEE, APPELLANT



Appeal from the Order of the Commonwealth Court dated December 1, 1987 at No. 1932 C.D. 1987, Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., joins this opinion and files a separate concurring opinion.

Author: Flaherty

[ 523 Pa. Page 378]

OPINION OF THE COURT

This is an appeal from an order of Commonwealth Court, 116 Pa. Commw. 183, 540 A.2d 1385, enforcing an opinion letter of the State Ethics Commission which directed the appellant, James Fee, a township supervisor of Union Township, to repay to the township the sum of $3,156.34 in insurance premiums paid on his behalf in violation of the State Ethics Act. The issues presented are whether the enforcement proceeding under the original jurisdiction of the Commonwealth Court was proper, and whether the amnesty provisions of Act 41 of 1988 bar collection of the improperly paid insurance premiums.

The controversy arose as follows. Mr. Fee was a longtime supervisor of Union Township who was directed, in January, 1982, to complete a form for hospitalization insurance coverage to be paid for by the township. After he did so, the township paid the premiums on the policy from January, 1982 through January, 1985, in the amount of $3,156.34. Acting on a complaint by an undisclosed informant, the State Ethics Commission investigated the payments. On May 2, 1986, in a letter styled "Order No. 476," the commission informed Mr. Fee that the payments violated the State Ethics Act and that he was obligated to repay $3,156.34 to the township. The commission expressed the opinion that there was no intentional violation of the law, so the commission merely sought repayment of the benefit received in good faith but would not seek criminal prosecution under § 409(a) of the State Ethics Act nor treble damages under § 409(c), 65 P.S. § 409(a) and (c). The letter informed Mr. Fee that he could request reconsideration or challenge factual findings of the commission. Mr. Fee requested reconsideration, and on November 25, 1986, the

[ 523 Pa. Page 379]

    commission wrote another letter, called "Order No. R-476," which essentially repeated its prior communication. Mr. Fee did not appeal the commission's order, nor did he repay the insurance premiums.

On August 17, 1987, the Deputy Attorney General commenced an enforcement proceeding in Commonwealth Court, seeking, inter alia, a money judgment against Mr. Fee in favor of Union Township. On September 29, 1987, a senior judge of Commonwealth Court held an informal discussion at which the Deputy Attorney General appeared and appellant, unrepresented by counsel, appeared with two relatives. No witnesses were sworn and no testimony was offered. The court granted Mr. Fee an extension of time to enable him to obtain counsel to file pleadings in opposition to the Commonwealth's complaint, which he did on November 13, 1987.

On December 1, 1987, Commonwealth Court entered judgment against Mr. Fee in the amount of $3,156.34 in favor of Union Township, and rejected the claim for treble damages. The judgment was entered before the pleadings were closed and despite the fact that no trial or evidentiary hearing had been held by the Ethics Commission or Commonwealth Court, and no factual record on such matters had been made in or certified to Commonwealth Court. Mr. Fee filed a timely application to open or vacate the judgment as well as an appeal to this Court.

While appellant's petition for allowance of appeal was pending in this Court, a panel of Commonwealth Court heard oral argument on appellant's application to open or vacate judgment. On the same day, March 21, 1988, the general assembly passed Act No. 41 of 1988, 53 P.S. § 65515, granting amnesty to second-class township supervisors who received insurance benefits between January 1, 1959 and March 31, 1985. The enactment of Act 41 was called to the attention of the Commonwealth Court panel in a post-submission communication. On May 13, 1988, the Commonwealth Court panel denied appellant's application to open or vacate judgment, and this Court subsequently granted allowance of this appeal.

[ 523 Pa. Page 380]

Without addressing the procedure in Commonwealth Court, we must vacate the judgment, for it contravenes Act 41 of 1988. The Act provides:

(2) Any life, health, hospitalization, medical service or accident insurance coverage contract entered into by a township between January 1, 1959, and March 31, 1985, that includes or provides coverage for non-employe supervisors shall not be void or unlawful solely because such inclusion of non-employe supervisors was subsequently found to be without lawful authority. No penalty, assessment, surcharge, forfeiture or disciplinary action of any kind may occur as a result of participation by non-employe supervisors. Insurance benefits payable to insureds or their beneficiaries arising out of or on account of deaths, injuries, accidents or illnesses occurring prior to the effective date of this amendatory act shall remain the property of the insureds or their beneficiaries.

(3) All payments made by a township on any group life, health, hospitalization, medical service or accident insurance coverage contracts on behalf of non-employe supervisors between January 1, 1959, and March 31, 1985, which would have been proper but for the absence of auditor approval, are hereby deemed ratified and approved. Any benefits payable to any such non-employe supervisor or his ...


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