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07/11/97 COMMONWEALTH PENNSYLVANIA EX REL. THOMAS

July 11, 1997

COMMONWEALTH OF PENNSYLVANIA EX REL. THOMAS W. CORBETT, JR., ATTORNEY GENERAL, PLAINTIFF
v.
DONALD J. DESIDERIO, COUNCILMAN, CLAIRTON MUNICIPAL AUTHORITY, DEFENDANT



Appealed From No. similar ORIGINAL JURISDICTION similar.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable James R. Kelley, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Kelley.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: July 11, 1997

Presently before this court for Disposition are the preliminary objections of Donald Desiderio to a complaint in quo warranto filed in our original jurisdiction by the Attorney General for the Commonwealth of Pennsylvania. *fn1 Desiderio is currently a council member of the Clairton Borough Council, Allegheny County, Pennsylvania.

On January 8, 1997, the Attorney General filed with this court a complaint in quo warranto against Desiderio. On April 14, 1997, the Attorney General filed an amended complaint in quo warranto. *fn2 The facts, as alleged in the complaint, are as follows.

Desiderio is a resident of Allegheny County, Pennsylvania. He was elected and continues to serve as a member of the Clairton Borough Council.

On or about October 7, 1985, Desiderio was charged by information with four criminal counts: bribery in official or political matters; conflict of interest; obstructing administration of law or other general function; and criminal conspiracy. These charges were based on Desiderio's acceptance of money and the promise of future payments, while a member of the Clairton Municipal Authority, in exchange for influence in consideration of and voting on a waste disposal request made by William Fiore, d/b/a Municipal Industrial Disposal Company on or about April 22, 1983 through and including May 4, 1983.

Desiderio was convicted in the Court of Common Pleas of Allegheny County (trial court) on March 10, 1986, pursuant to a plea of guilty, on count two of the information, conflict of interest. See section 3 of the State Ethics Act, Act of October 4, 1978, P.L. 883, as amended, 65 P.S. § 403. *fn3 Desiderio was sentenced by the trial court on October 17, 1986, to probation of five years in addition to costs and a fine.

Based on these facts, the Attorney General alleges in the complaint that Desiderio is incapable by virtue of Article II, Section 7 of the Pennsylvania Constitution of holding the office of council member of the Clairton Borough Council and his claim to said office is forfeit. Art. II, § 7 of the Pennsylvania Constitution provides that "no person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth."

The Attorney General alleges that Desiderio's conviction is for bribery or other infamous crime within the meaning of art. II, § 7 and that the office of council member of the Clairton Borough Council is an office of trust or profit within the meaning of art. II, § 7. Therefore, the Attorney General is seeking a judgment of ouster against Desiderio and a declaration of a forfeiture of and vacancy in the office of Council Member of the Clairton Borough Council.

Desiderio has filed preliminary objections to the complaint. The preliminary objections are not endorsed with a notice to plead but do contain a verification.

Desiderio's preliminary objections set forth two main objections to the complaint: (1) lack of specificity; and (2) lack of capacity to bring suit. Desiderio bases his preliminary objection regarding lack of capacity to bring suit on waiver, res judicata/collateral estoppel, and laches. The Attorney General did not file a response to the preliminary objections.

In ruling on preliminary objections, this court must accept as true all well-pleaded material allegations in the complaint, as well as all inferences reasonably deduced therefrom. Pennsylvania Dental Hygienists' Association v. State Board of Dentistry, 672 A.2d 414 (Pa. Commw. 1996). Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). The test is whether it is clear from all of the facts pleaded that the ...


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