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08/20/97 GENE STILP v. COMMONWEALTH PENNSYLVANIA

August 20, 1997

GENE STILP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, THOMAS J. RIDGE, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, CATHERINE BAKER KNOLL, TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

ORIGINAL JURISDICTION

OPINION BY JUDGE DOYLE

FILED: August 20, 1997

Before this Court in our original jurisdiction is the preliminary objection of the Commonwealth of Pennsylvania, Governor Thomas J. Ridge, and Treasurer Catherine Baker Knoll *fn1 (Respondents) to the "Complaint in Mandamus and Bill of Equity" filed by Gene Stilp. *fn2

Stilp is a Pennsylvania citizen proceeding pro se, who filed this present action challenging Act 51, *fn3 an act amending the Public Official Compensation Law (Law), *fn4 on constitutional grounds. Act 51 amended the Law to give members of the General Assembly, Judges, as well as executive branch officials a pay increase. With regard to members of the General Assembly, whose pay raise is the subject of this action, Section 3 of Act 51, which amended Section 4 of the Law, increased Legislators' salary through a series of cost of living adjustments (COLAs).

The minimum salary for members of the General Assembly is $47,000 per year plus mileage. Section 4(a) of the Law, 65 P.S. § 366.4(a). Leaders of the House of Representatives and Senate, depending on the specific position, receive additional salary over and above the $47,000 base salary. Section 4(b) of the Law, 65 P.S. § 366.4(b). The Act 51 COLAs would increase the Legislators' base salary by an amount determined by the percentage change in the Consumer Price Index for All Urban Consumers.

The first COLA was scheduled to be paid beginning with the twelve-month period of December 1, 1996, through November 30, 1997. *fn5 Legislators would also receive a COLA for the following twelve-month period and for each twelve-month period thereafter. *fn6 Nothing in Section 3 of Act 51, prohibits a member of the General Assembly who voted for the legislation from receiving a COLA. However, Section 7 of Act 51 *fn7 provides, inter alia, that Section 3 of Act 51 was to take effect "immediately and be applicable as constitutionally permissible. " (Emphasis added.)

In addition to increases in salaries, Act 51 increased Legislators' unvouchered expense allowances as well. Under Section 4(a) of the Law, members of the General Assembly are granted an expense allowance of $7,500 per year for clerical assistance and expenses. Section 4 of Act 51, however, added Section 5.2 of the Law, 65 P.S. § 366.5b, which provides that all members of the General Assembly shall receive an additional unvouchered expense allowance of $733 per month for the year from November 1, 1995 to November 30, 1996. Leaders of the Senate and House of Representatives were given further unvouchered expense account increases. With regard to the Senate only, for the years 1996 and 1997, the unvouchered expense allowance will increase by the same formula used for calculating the COLAs. *fn8

Stilp contends in his complaint that Respondents violated Article II, Section 8 of the Pennsylvania Constitution by approving the General Assembly's pay and unvouchered expense increases in Act 51 and by disbursing monies thereunder. Article II, Section 8 of the Pennsylvania Constitution provides as follows:

The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term. (Emphasis added.)

Stilp alleges that the COLAs established by Act 51 violate the above provision, because the COLAs will allow incumbent members of the Pennsylvania Senate who voted on October 17, 1995, for the salary increase to receive that new salary during their next succeeding four-year term. (Paragraphs 46-50 of the Complaint.) Stilp avers that twenty-five members of the Senate were either elected in 1994 or serve a term until 1998. Furthermore, Stilp asserts that, because Act 51 increases the unvouchered expense allowance in proportion to the COLAs by using the same formula, the unvouchered expenses are a de facto salary increase unconstitutionally granted to Legislators during the term for which they were elected. (Paragraphs 51-55 of the Complaint.) *fn9

Respondents filed preliminary objections in the nature of a demurrer to Stilp's complaint, asserting that Act 51 does not violate any provision of the Pennsylvania or United States Constitutions. Specifically, Respondents contend that the COLAs do not violate Article II, Section 8 of the Pennsylvania Constitution because Act 51 provides that the COLAs are only "applicable as constitutionally permissible." With regard to the unvouchered expense allowances, the Respondents assert that such allowances are not the equivalent of "salary" under our Supreme Court's decision in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986).

A demurrer is an assertion that a complaint does not set forth a cause of action on which relief may be granted. David v. Secretary of Public Welfare, 143 Pa. Commw. 161, 598 A.2d 642 (Pa. Commw. 1991). When deciding a preliminary objection in the nature of a demurrer, we must accept as true all well-pled allegations, Snyder v. City of Philadelphia, 129 Pa. Commw. 89, 564 A.2d 1036 (Pa. Commw. 1989), and a demurrer will only be sustained when it appears that, in accepting the ...


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