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Finn v. Rendell

February 2, 2010


The opinion of the court was delivered by: President Judge Leadbetter


AND NOW, this 9th day of February, 2010, IT IS HEREBY ORDERED that the above-captioned opinion filed February 2, 2010, shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.


The Commonwealth of Pennsylvania and the General Assembly of the Commonwealth of Pennsylvania have filed preliminary objections to the petition for review filed by the Commissioners of Montour County, an eighth-class county, in this Court's original jurisdiction. In the petition for review, the Commissioners seek to compel Governor Edward G. Rendell, the Commonwealth, the General Assembly and State Treasurer Robert McCord (collectively, Respondents) to reimburse Montour County 65% of its full-time district attorney's salary for 2008 and 2009, pursuant to Section 1401(p) of The County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1401(p). The Commonwealth and the General Assembly argue that the Commissioners lack standing to bring the instant action and that their claims have been rendered moot and are barred by sovereign immunity, the doctrine of separation of powers and Article II, Section 15 (the speech or debate clause) and Article III, Section 24 (prohibition of paying out moneys from the treasury without appropriations and warrants) of the Pennsylvania Constitution, Pa. CONST. art. II, § 15 and art. III, § 24.*fn1

In 2005, the General Assembly added Section 1401 to the County Code, effective January 2, 2006. Under Section 1401(g), a part-time district attorney in an eighth-class county must convert to a full-time status if the county commissioners adopt an ordinance fixing the district attorney's services at full time, or if the president judge of the common pleas court in the respective judicial district so orders. A full-time district attorney is compensated $1000 less than the compensation paid to a common pleas court judge in the judicial district. Section 1401(j). Section 1401(p) provides that "[t]he Commonwealth shall annually reimburse each county with a full-time district attorney an amount equal to sixty-five per cent of the district attorney's salary." On July 1, 2006, the status of the Montour County district attorney changed from part time to full time. The Commonwealth subsequently reimbursed Montour County for its district attorney's salary paid in 2006 and 2007 from funds appropriated by the General Assembly in 2006.

In 2007, the General Assembly amended the Judicial Code, adding Section 3575, 42 Pa. C.S. § 3575, effective November 13, 2007. Section 3575(a) established within the State Treasury a restricted account to be known as "the criminal justice enhancement account." The account is funded by prosecution costs of $50 imposed upon certain criminal defendants and fines imposed for designated criminal offenses. Section 3575(a), (b) and (c). Section 3575(d) provides that "[t]he money in the account is appropriated upon approval of the Governor to fulfill the provisions of section 1401(p) of . The County Code." In October 2009, the General Assembly added Section 3733.1 to the Judicial Code, 42 Pa. C.S. § 3733.1, to increase the funds in the criminal justice enhancement account by charging a permanent fee of $2.25 to be collected and deposited into the account, in addition to the costs and fines imposed by Section 3575. No other funds were appropriated to reimburse the counties for district attorneys' salaries paid in 2008 and thereafter.

On October 1, 2009, the Commissioners commenced the instant mandamus action, seeking an order compelling Respondents to reimburse Montour County 65% of its district attorney's salary for 2008 and 2009 in the amount of $101,686.65 and $104,552.50, respectively, and to appropriate sufficient funds to comply with Section 1401(p) of the County Code. The General Assembly and the Commonwealth filed preliminary objections, seeking dismissal of the Commissioners' petition for review.*fn2

The General Assembly argues that the Commissioners lack standing to bring this action on behalf of the County. The Commissioners respond that they are authorized to act on behalf of the County in matters affecting the County's finances and that if the Court determines that they lack standing, they should be permitted to amend the petition for review to name the County as a party.

One seeking judicial resolution of a dispute must satisfy a threshold requirement of standing to bring the action by demonstrating a substantial, direct and immediate interest in the outcome of the litigation. Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655 (2005). A substantial interest is an interest exceeding the interest of all citizens in procuring obedience to the law; an interest is direct if there is a causal connection between the asserted violation and the harm complained of; an interest is immediate if the causal connection is neither remote nor speculative. City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003).

In Stilp v. Commonwealth, 927 A.2d 707 (Pa. Cmwlth. 2007), aff'd, 596 Pa. 493, 946 A.2d 636 (2008), the Court found that a taxpayer lacked standing to challenge the constitutionality of the 2005 amendment to the County Code allowing part-time district attorneys to convert to full-time status. In so finding, the Court stated:

[T]here are others who are better situated than Stilp to assert the challenge. In particular, county commissioners, controllers, auditors or treasurers in any of the 31 counties in which the status of the district attorney changed . would be the best suited to challenge the statute. Those county officers with responsibility for county finances would be detrimentally affected by the county's share of increased compensation to be paid to . the district attorney.

Id. at 711 (emphasis added).

As officers responsible for managing Montour County's finances, therefore, the Commissioners have a substantial, direct and immediate interest in the outcome of this litigation. In seeking relief on behalf of the County, the Commissioners acted in their official capacity, and the General Assembly and the Commonwealth do not allege otherwise.*fn3 Consequently, the Commissioners, as a group, have standing to bring this action. See also County Comm'rs Ass'n of Pa. v. Dinges, 935 A.2d 926 (Pa. Cmwlth. 2007) (the counties and the county commissioners association had standing to bring the declaratory judgment action seeking to establish the proper formula for determining full-time district attorneys' salaries). Compare Szoko v. Twp. of Wilkins, 974 A.2d 1216 (Pa. Cmwlth. 2009) (one township commissioner lacked standing to bring a declaratory judgment action challenging the employment contract between the township and the township manager); Miller v. Bd. of Prop. Assessment, Appeals & Review of Allegheny County, 703 A.2d 733 (Pa. Cmwlth. 1997) (one member of the board of commissioners lacked standing to appeal the trial court's order declaring the county's property tax assessment practice to be unlawful).

The General Assembly next argues that the petition for review should be dismissed for mootness. In support, the General Assembly claims that it provided "a dedicated funding stream" to reimburse the counties for full-time district attorneys' salaries by establishing the criminal justice enhancement account in 2007 and increasing the funds going into the account in 2009. General Assembly's Brief at 6. According to the General Assembly, the Governor has recently approved $6,450,000 in the criminal justice enhancement account to reimburse the counties for the district attorneys' salaries paid since 2008, although the parties agreed at ...

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