Matthew J. Brouillette and Rep. James Christiana and Benjamin Lewis, Petitioners
Thomas Wolf, Governor and Joseph Torsella, Treasurer and Eugene DePasquale, Auditor General and The Commonwealth of Pennsylvania and Michael Turzai, Speaker of the House of Representatives and Dave Reed, House Majority Leader and Joseph B. Scarnati, III, President Pro Tempore of the Senate and Jake Corman, Senate Majority Leader and The Pennsylvania General Assembly, Respondents
Argued: September 13, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE
ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge,
HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge.
MICHAEL H. WOJCIK, JUDGE
the Court are the various preliminary objections (POs) filed
by Respondents to the amended petition for review
(Amended Petition) filed by Matthew J. Brouillette,
Representative James Christiana, and Benjamin Lewis
(collectively, Petitioners) challenging the constitutionality
of some of the actions taken by Respondents with regard to
the state budget for fiscal years (FY) 2016-17 and
FY2017-18. Senate Respondents have also filed an
Application to Dismiss for Mootness (Application). We
overrule the POs in part, sustain the POs in part, grant the
Application, and dismiss the Amended Petition.
filed the three-count Amended Petition alleging that
Respondents have violated various constitutional provisions
by establishing unbalanced budgets and authorizing loans to
cover deficits that extended beyond the relevant fiscal
years. With regard to FY2016-17, Petitioners allege that the
General Operating Fund Budget closed with a $1.55 billion
deficit in violation of Article 8, Section
12(a) and Section 13(a) of the Pennsylvania
Constitution and Section 618(a) of the Administrative
Code. To fulfill the Commonwealth's debt
obligations, Petitioners claim that the Governor, Treasurer,
and Auditor General approved a $750 million line of credit in
August 2017, which was used, in part, to address the $1.55
billion deficit from the prior fiscal year. Because of this
borrowing, Petitioners contend that Respondents violated
Article 8, Section 7(a)(2)(ii) of the Pennsylvania
Constitution. In addition, Petitioners claim that as
revenues failed to materialize, the General Assembly and the
Governor had a duty to cut spending to ensure a fully funded
budget. This resulted in a deficit, which Petitioners refer
to as an "unfunded loan" that "illegally
followed the Commonwealth" into the current fiscal year.
Amended Petition ¶51.
Petitioners assert that this deficit was then compounded by
the enactment of the budget for the FY2017-18 when the
General Assembly passed a $31.38 billion General
Appropriations Bill, which became law when the Governor
failed to act on it. At the time of its passage, there was no
revenue package in place to fund it. Petitioners maintain
that the expenditures exceeded actual and estimated revenues
in violation of the Constitution. Finally, Petitioners argue
that the Governor had the authority and the duty under
Article 4, Sections 15 and 16 of the Pennsylvania
Constitution to veto the budget, in whole or in part,
but failed to do either.
Count I, Petitioners seek declaratory judgment against the
Governor on the grounds that he violated Article 4, Sections
15 and 16 of the Pennsylvania Constitution, and Section 618
of the Administrative Code, by not vetoing all or part of the
$31.38 billion General Appropriations Bill for FY2017-18 that
exceeded estimated revenue thereby "authorizing the
Commonwealth to appropriate and spend funds that exceeded
actual and estimated revenues." Amended Petition at 27.
Count II, Petitioners seek declaratory judgment against the
Governor, Senate Respondents, House Respondents, and the
Commonwealth generally on the grounds that they violated
Article 8, Section 13 of the Pennsylvania Constitution
because "the Commonwealth ended [FY2016-17] with a $1.55
billion deficit," and "the General Appropriations
Bill for [FY2017-18] violates [Article 8, Section 13]
because, at the time of enactment, appropriations contained
therein 'exceed[ed] the actual and estimated revenues and
surplus available in the same fiscal year' by $600
million." Amended Petition at 29.
in Count III, Petitioners seek declaratory relief against the
Governor, the Treasurer, the Auditor General, and the
Commonwealth generally for violating Article 8, Sections 7
and 12 of the Pennsylvania Constitution "by authorizing
lines of credit to fund a $1.55 billion deficit accrued in
[FY2016-17] . . . that spanned across multiple fiscal
years," and "[t]hat the General Appropriations Bill
for [FY2016-17] violated the Pennsylvania Constitution by
appropriating funds in excess of anticipated revenues,
thereby saddling the Commonwealth with a debt of $1.55
billion without the explicit approval of the General
Assembly." Amended Petition at 36.
filed a joint motion to dismiss for mootness alleging that
the subsequent passage of legislation eliminating any deficit
from the past and current fiscal years' budget and
appropriations bills rendered Petitioners' claims moot.
This Court denied the joint motion on the basis that there
are factual matters in dispute, such as whether the General
Operating Fund Budget is currently balanced, and because
Respondents did not explain how the subsequent legislation
mooted the claim that they engaged in long-term borrowing in
violation of Article 8, Section 7 of the Pennsylvania
Constitution. Brouillette v. Wolf (Pa. Cmwlth., No.
410 M.D. 2017, filed December 28, 2017), slip op. at 10.
also filed four sets of POs. Respondents variously object on
the following bases: (1) Petitioners lack capacity to sue
(standing); (2) the Amended Petition is insufficiently
specific; and (3) the Amended Petition fails to conform to
the law or rule of court. In addition, Respondents demur on
the following grounds: that the Amended Petition (1) presents
a non-justiciable political question; (2) fails to meet the
standard for declaratory judgment; (3) fails to state a claim
against the Commonwealth or the Treasurer; (4) is moot; and
(5) is barred by the doctrine of laches. Respondents also
assert that the Senate and House Respondents are protected by
legislative immunity and/or sovereign immunity. Subsequently,
on September 6, 2018, the Senate Respondents filed the
instant Application to dismiss Count II of the Amended
Petition for mootness because no practical relief may be
granted for the legal claim presented therein based on a
change in circumstance and the requested relief is not
precluded by our prior opinion.
preliminary matter, Respondents first claim that Petitioners
Brouillette and Lewis do not possess standing to prosecute
the instant matter. In general, the question of standing
relates to whether a party is entitled to have the court
decide the merits of a dispute or of particular issues.
Warth v. Seldin, 422 U.S. 490, 498 (1975). As the
United States Supreme Court has stated:
A federal court cannot "pronounce any statute, either of
a State or of the United States, void, because irreconcilable
with the Constitution, except as it is called upon to adjudge
the legal rights of litigants in actual controversies."
Have the appellants alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of
difficult constitutional questions? This is the gist of the
question of standing[.]
Baker v. Carr, 369 U.S. 186, 204 (1962) (citation
"in order to have standing, a party must have an
interest in the controversy that is distinguishable from the
interest shared by other citizens. William Penn Parking
Garage, Inc. v. City of Pittsburgh, [346 A.2d 269 (Pa.
1975)]." Sprague v. Casey, 550 A.2d 184, 187
(Pa. 1988). To surpass the common interest shared by other
citizens, the interest of a party must be "substantial,
direct and immediate." Id.
case, with respect to all three counts in the Amended
Petition, Petitioners Brouillette and Lewis allege that they
have standing in this matter based on their status as
taxpayers in this Commonwealth. See Amended Petition
¶¶8-10, 85-88. Regarding taxpayer standing, this
Court has noted:
[T]he parameters of taxpayer standing in this Commonwealth
have been defined by our Supreme Court in the case of
Application of Biester v. Thornburgh, [409 A.2d 848');">409 A.2d 848
(Pa. 1979)]. In that case, our Supreme Court stated that the
"purpose of the requirement of standing is to protect
against improper plaintiffs." Id. [at 851]. In
order to meet this requirement, a plaintiff must allege and
prove an interest in the outcome of the suit, which surpasses
"the common interest of all citizens in procuring
obedience to the law." Id. [(citation
omitted)]. To surpass the common interest of all citizens,
the interest must be substantial, direct, and immediate.
Nevertheless, the Supreme Court recognized that certain cases
exist in which the facts warrant the granting of standing to
taxpayers where their interests arguably are not substantial,
direct and immediate. Biester, [409 A.2d at 852];
Consumer Party of Pennsylvania v. Commonwealth, [507
A.2d 323, 328 (Pa. 1986)]. The relaxing of those interest
requirements in certain cases where there is little causal
connection between the action complained of and the alleged
injury is best explained by the basic policy considerations
underlying taxpayer standing. Consumer Party, [507
A.2d at 328]. Our Supreme Court articulated these policy
considerations in Biester as follows:
"The ultimate basis for granting standing to taxpayers
must … be sought outside the normal language of the
courts. Taxpayers' litigation seems designed to enable a
large body of the citizenry to challenge governmental action,
which would otherwise go unchallenged in the courts because
of the standing requirement. Such litigation allows the
courts, within the framework of traditional notions of
'standing,' to add to the controls over public
officials inherent in the elective process the judicial
scrutiny of the statutory and constitutional validity of
Biester, [409 A.2d at 851 n.5 (citation omitted)].
In Consumer Party, the Supreme Court held that a
taxpayer seeking standing to sue must allege a substantial,
direct and immediate interest in the outcome of the suit
unless the taxpayer can show:
1. the governmental action would otherwise go unchallenged;
2. those directly and immediately affected by the complained
of expenditures are beneficially affected and not inclined to
challenge the action;
3. judicial relief is appropriate;
4. redress through other channels is unavailable; and
5. no other persons are better situated to assert the claim.
Consumer Party, [507 A.2d at 329].
Common Cause/Pennsylvania v. Commonwealth, 710 A.2d
108, 115-16 (Pa. Cmwlth. 1998), aff'd, 757 A.2d
367 (Pa. 2000) (emphasis in original). See also Fumo v.
City of Philadelphia, 972 A.2d 487, 504 (Pa. 2009)
(listing the five factors to be considered in conferring
taxpayer standing); Stilp v. Commonwealth, 940 A.2d
1227, 1233 (Pa. 2007) (same).
Consumer Party, an organization and several
citizen-taxpayers commenced an action in this Court seeking a
declaration that the Public Official Compensation
Law, an act providing for increased
compensation to public officials, was unconstitutionally
enacted and unconstitutional in its substantive provisions.
Id. at 326-27. In considering whether the
organization and the taxpayers possessed standing to present
these claims, the Pennsylvania Supreme Court observed:
We believe the circumstances of the instant case establish
the above five factors and therefore warrant the grant of
standing to appellants under the narrow exception outlined in
Biester. This case presents a prime example of
governmental action, which would otherwise go unchallenged
because the very individuals who enacted the legislation are
directly and beneficially affected and are thus not inclined
to challenge the constitutionality of the legislation.
Furthermore, judicial relief is appropriate since the
determination of the constitutionality of an act is a
function ultimately left to the courts. Moreover, here
redress through other channels is unavailable. There is no
administrative agency which can provide relief and the
legislators themselves are unlikely to provide a meaningful
mechanism for redress. Lastly, there are not other persons
better situated to assert the claim because all those who are
directly and immediately affected by the [Public Official]
Compensation Law are beneficially affected and have not
brought, and will not bring a cause of action. Thus, there
are no possible plaintiffs who can assert a substantial,
direct and immediate interest.
Id. at 329 (citations omitted).
in Common Cause/Pennsylvania, a number of
organizations commenced an action in this Court seeking a
declaration that an act substantially amending the Public
Transportation Law and the Vehicle Codewas
unconstitutionally enacted. Id. at 111. In
considering whether the organizations possessed standing to
challenge the enactment, we noted:
Based upon the above five factors, we conclude that the
circumstances of the present case warrant the granting of
standing to petitioners. We believe that the actions taken by
the General Assembly in passing HB 67 would likely go
unchallenged but for the present proceeding, because the very
individuals who enacted such legislation are not going to be
inclined to challenge the constitutionality of the process by
which [the statute] was enacted. We further believe that
judicial relief may be appropriate since the ultimate
function of the judiciary is to determine the
constitutionality of an act. Moreover, redress through other
channels is unavailable as there is no administrative agency
which can provide relief and the members of the General
Assembly, themselves, are unlikely to provide a meaningful
mechanism for redress. Finally, we believe that there are no
other persons better situated to assert the constitutional
claims which have been raised in the present case than
Id. at 116 (citations omitted).
in Seeton v. Pennsylvania Game Commission, 937 A.2d
1028 (Pa. 2007), a taxpayer initiated a mandamus action
against the State Game Commission (Commission) seeking to
compel the Commission to enforce the Pennsylvania Game and
Wildlife Code and its regulations to prevent a hunting
preserve's "canned hunts" in which customers
pay a fee to shoot and kill animals in an enclosed area. The
taxpayer filed suit after the Commission determined that it
lacked jurisdiction over the preserve's canned hunts.
Both this Court and the Supreme Court rejected the
Commission's preliminary objection that the taxpayer
lacked standing to prosecute the matter. As the Supreme Court
In re Biester spoke principally to the importance of
assuring that a government agency's actions not evade
review for want of an aggrieved party under the limited terms
of traditional standing. As noted, standing under In re
Biester aims to "ensure . . . judicial review which
would otherwise not occur," when "those directly
and immediately affected by the complained of expenditures
are beneficially affected as opposed to adversely
affected." 409 A.2d at 852. There appears to be no one
better situated than [the taxpayer] to challenge the
non-enforcement asserted here. Moreover, we perceive no
alternative means to invoke judicial review of the important
question before us. Thus, we find no error in the
Commonwealth Court's determination that [the taxpayer]
had standing to bring the instant claim.
Seeton, 937 A.2d at 1033.
in Consumer Party, Common
Cause/Pennsylvania, and Seeton, standing was
granted to taxpayers to assert the claims raised therein
because governmental action would likely evade review for
want of an aggrieved party. Likewise, in the instant matter,
the Amended Petition alleges that all of the named
Respondents were involved in the budgetary process and its
oversight and implementation underlying the constitutional
and statutory claims raised by Petitioners Brouillette and
Lewis therein. As a result, none of the Respondents are
inclined to challenge their own actions or inactions in this
regard. Additionally, their actions or inactions would
otherwise go unchallenged; redress through any other channels
is unavailable; and no other persons are better situated to
assert the claim than Petitioners Brouillette and Lewis as
taxpayers. Moreover, as outlined infra,
judicial review of the state budgetary process for FY2016-17
and FY2017-18 is eminently appropriate. Accordingly, we
overrule Respondents' POs with respect to Petitioners
Brouillette's and Lewis's standing to prosecute the
instant Amended Petition. Seeton; Consumer
Party; In re Biester; Lawless.
contrast, Petitioner Christiana is a representative in the
Pennsylvania General Assembly, representing Beaver and
Washington Counties. Amended Petition ¶11. Petitioner
Christiana only joins in Count III of the Amended Petition
alleging that the Governor, the Treasurer, the Auditor
General, and the Commonwealth generally violated Article 8,
Section 7 of the Pennsylvania Constitution, based on the
purportedly illegal long-term borrowing, and Article 8,
Section 12(a), based on the Governor's purported
submission of an unbalanced operating budget to the General
Assembly, with the assistance of the Treasurer and the
Auditor General. Amended Petition ¶¶110-138.
Petitioner Christiana asserts that he did not vote to
authorize the assumption of such debt; the budget deficit
purportedly usurps his authority to vote on whether such debt
should be assumed; and he did not vote to use short-term
borrowing to finance continued deficit spending. Amended
Petition ¶¶131, 132, 135.
Supreme Court has explained:
[L]egislative standing is appropriate only in limited
circumstances. Standing exists only when a legislator's
direct and substantial interest in his or her ability to
participate in the voting process is negatively impacted,
see Wilt [v. Beal, 363 A.2d 876 (Pa.
Cmwlth. 1976)], or when he or she has suffered a concrete
impairment or deprivation of an official power or authority
to act as a legislator, see Fumo (finding standing
due to alleged usurpation of legislators' authority to
vote on licensing). These are injuries personal to the
legislator, as a legislator. By contrast, a legislator lacks
standing where he or she has an indirect and less substantial
interest in conduct outside the legislative forum which is
unrelated to the voting or approval process, and akin to a
general grievance about the correctness of governmental
conduct, resulting in the standing requirement being
unsatisfied. Id. (rejecting standing where
legislators' interest was merely disagreement with way
administrator interpreted or executed her duties, and did not
interfere with legislators' authority as members of the
Markham v. Wolf, 136 A.3d 134, 145 (Pa. 2016).
on the foregoing, and the allegations raised in the Amended
Petition, we hold that Petitioner Christiana has failed to
demonstrate the requisite legislative standing to assert
Count III of the Amended Petition. The crux of Petitioner
Christiana's claims in Count III relate to the purported
invalidity of the actions of the Governor, the Treasurer, the
Auditor General, and the Commonwealth generally, and do not
assert an injury that is personal to him while he was acting
in his representative capacity as a legislator. As noted by
the Supreme Court:
[T]hese claims of injury reflect no impact on [the Senate]
Appellants' right to act as legislators, and are more, in
our view, in the nature of a generalized grievance about the
correctness of governmental conduct. Simply stated, the
assertion that another branch of government-here, the
executive branch through the Governor's Executive
Order-is diluting the substance of a previously enacted
statutory provision is not an injury which legislators, as
legislators, have standing to pursue.
Markham, 136 A.3d at 145.
as outlined above, Petitioners Brouillette and Lewis possess
taxpayer standing to vindicate the purported harms alleged in
Count III of the Amended Petition. See Markham, 136
A.3d at 146 ("[C]hallengers exist who are, from a
standing perspective, sufficiently impacted by the
Governor's issuance of Executive Order 2015-05, as aptly
demonstrated by the parties in this matter . . . .").
Accordingly, we sustain Respondents' POs with respect to
Petitioner Christiana's standing, and dismiss him as a
party to Count III of the Amended Petition. Id.
as a preliminary matter, the Commonwealth has filed a PO that
it was improperly joined as a party in this case. On review,
it is clear that Petitioners Brouillette and Lewis have
erroneously raised claims against the Commonwealth generally
as a party in Counts II and III of the Amended Petition.
Pennsylvania Supreme Court has explained:
The Constitution of Pennsylvania provides that the
commonwealth and its agents may only be sued in the manner,
in the courts, and in cases specified by the General
Assembly. Pa. Const. art. 1[, ] §11. The General
Assembly has specified that the Commonwealth and its agents
remain immune from suit except when immunity is specifically
waived. 42 Pa. C.S. §8522. "When the General
Assembly specifically waives sovereign immunity, a claim
against the Commonwealth and its officials . . . shall be
brought only [as provided by] Title 42 . . . unless otherwise
specifically authorized by statute." 1 Pa. C.S.
§2310. The General Assembly has waived sovereign
immunity for Commonwealth parties in limited cases. 42 Pa.
C.S. §8522. The General Assembly has defined a
Commonwealth party as a "Commonwealth agency and any
employee thereof, but only with respect to an act within the
scope of his office or employment." 42 Pa. C.S.
This Court has further determined that sovereign immunity
does not apply to "governmental entities other than the
commonwealth itself," and that government entities may
not avoid suit simply due to their governmental nature.
Specter v. Commonwealth, [341 A.2d 481');">341 A.2d 481, 482 (Pa.
1975)]. Implicit in this premise is the distinction between
the Commonwealth and its numerous subdivisions. Appellees in
this case have named the Commonwealth, to which the
legislature has not waived sovereign immunity, and have
failed to name an appropriate Commonwealth party as to which
immunity has been waived. Amending their complaint to
substitute a Commonwealth party for the Commonwealth amounts
to the addition of a new party and not merely the correction
of a captioned party name.
Tork-Hiis v. Commonwealth, 735 A.2d 1256, 1258 (Pa.
end, Pa. R.C.P. No. 2102(a)(2) provides that, while
"[a]n action by the Commonwealth" may be brought in
the name of "the Commonwealth of Pennsylvania," an
action against a "Commonwealth agency or party"
generally may not. Citing Article 1, Section 11 of the
Pennsylvania Constitution and 1 Pa. C.S. §2310, the
Official Note to Pa. R.C.P. No. 2102 recognizes that there is
"only" one exception: Where there is a cause of
action against the Commonwealth generally and an express
"right of action [against the Commonwealth generally]
has been authorized by statute." See also Finn v.
Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010) ("The
Court also notes that the Commonwealth government and its
various agencies and officers are separate entities and that
'the Commonwealth of Pennsylvania, itself, which is
clearly not a Commonwealth
agency, still enjoys absolute immunity pursuant to 1
Pa. C.S. §2310.'") (citation omitted and
emphasis in original).
result, Petitioners Brouillette and Lewis improperly joined
the Commonwealth generally as a respondent in the instant
matter. Accordingly, we sustain Respondents'
POs with respect to the improper joinder of the Commonwealth
generally, and dismiss it as a party to Counts II and III of
the Amended Petition.
respect to the purported violations of Article 8, Section
12(a) of the Pennsylvania Constitution and Sections 613(1)
and 701(g) of the Administrative Code as asserted in Counts
I, II, and III of the Amended Petition, the Governor and the
Treasurer demur,  in relevant part, on the basis that
Petitioners Brouillette and Lewis fail to state a valid claim
for declaratory relief. We agree.
for declaratory judgments are governed by the provisions of
the Declaratory Judgments Act, 42 Pa. C.S.
§§7531-7541. Ronald H. Clark, Inc. v. Township
of Hamilton, 562 A.2d 965, 967 (Pa. Cmwlth. 1989).
Although the Declaratory Judgments Act is to be liberally
construed, one limitation on a court's ability to issue a
declaratory judgment is that the issues involved must be ripe
for judicial determination, meaning that there must be the
presence of an actual case or controversy. Ruszin v.
Department of Labor and Industry, 675 A.2d 366, 371 (Pa.
Cmwlth. 1996). Thus, the Declaratory Judgments Act requires a
petition praying for declaratory relief to state an actual
controversy between the petitioner and the named respondent.
Pennsylvania State Lodge v. Department of Labor and
Industry, 692 A.2d 609, 613 (Pa. Cmwlth. 1997),
aff'd, 707 A.2d 1129 (Pa. 1998).
judgments are not obtainable as a matter of right. Ronald
H. Clark, Inc., 562 A.2d at 968-69. Rather, whether a
court should exercise jurisdiction over a declaratory
judgment proceeding is a matter of sound judicial discretion.
Id. Thus, the granting of a petition for a
declaratory judgment is a matter lying within the sound
discretion of a court of original jurisdiction.
Gulnac v. South Butler School District, 587
A.2d 699, 701 (Pa. 1991). As the Pennsylvania Supreme Court
The presence of antagonistic claims indicating imminent and
inevitable litigation coupled with a clear manifestation that
the declaration sought will be of practical help in ending
the controversy are essential to the granting of relief by
way of declaratory judgment. . . .
Only where there is a real controversy may a party obtain a
A declaratory judgment must not be employed to determine
rights in anticipation of events which may never occur or for
consideration of moot cases or as a medium for the rendition
of an advisory opinion which may prove to be purely academic.
Id. at 701 (citations omitted)
Amended Petition summarizes the relevant stages of the budget
process as follows. Preparation for the annual budget
"begins in approximately August of the prior fiscal year
for which the [b]udget will be adopted," and the Office
of the Budget (Budget Office) issues Budget Instructions to
"administrative agencies, which are instructions that
provide the agencies with detailed guidance in constructing
their budget requests." Amended Petition ¶¶23,
24. The Governor also issues Program Policy
Guidelines to administrative agencies to aid in formulating
the proposed budget. Id. ¶25. From October to
January, the Budget Office reviews the agencies' budget
requests to see if they comply with the Program Policy
Guidelines and, following review, the Budget Office makes
recommendations to the Secretary and the Governor.
Id. ¶¶27-29, 33. "[B]y statute and in
accordance with the . . . Constitution's balanced budget
requirement, the combined total of all agency requests
must balance with the estimated total revenues from
existing sources; otherwise, new revenue sources must be
recommended." Id. ¶30 (emphasis in
original). Based on the recommendations and his independent
review, the Governor formulates the Executive Budget in
January and submits the proposed budget to a joint session of
the General Assembly in a budget address in February.
Id. ¶¶34-35. Article 8, Section 12(a) and
Sections 613 ...