Consumers Ed. and Protective Ass'n v. Nolan

• Decision Date: 28 January 1977
• Citation: 470 Pa. 372,368 A.2d 675
• Parties: CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION, et al., Appellants, v. Thomas M. NOLAN, Individually and as Chairman of the Rules and Executive Nominations Committee of the Pennsylvania Senate, et al., Appellees.
• Court: Pennsylvania Supreme Court

Page 675

368 A.2d 675

470 Pa. 372

CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION, et al., Appellants, v. Thomas M. NOLAN, Individually and as Chairman of the Rules and Executive Nominations Committee of the

Pennsylvania Senate, et al., Appellees.

Supreme Court of Pennsylvania.

Argued May 3, 1976.

Decided Jan. 28, 1977.

[470 Pa. 378] David A. Scholl, Philadelphia, for appellants.

Jack Weinrauch, Harrisburg, for appellees, Kline and Nolan.

Robert P. Kane, Atty. Gen., Lawrence Silver, Chief, Civil Litigation, Howard M. Levinson, Deputy Attys. Gen., Harrisburg, for appellee, Shapp.

Barnett Satinsky, 1st Asst. Counsel, Harrisburg, for appellee, Kelly.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN, Justice.

This action in equity was originally brought in the Commonwealth Court to obtain declaratory and injunctive relief for an alleged violation of the 'Sunshine Law,' Act of July 19, 1974, P.L. 486, No. 175, § 1 Et seq., 65 P.S. § 261 Et seq. (Supp.1976--77). After refusing to grant the requested preliminary injunctions, the Commonwealth Court sustained defendants' preliminary objections on the ground that plaintiffs had failed to state a cause of action. Consumers Education and Protective Association, International, Inc. v. Nolan, 21 Pa.Cmwlth. 566, 346 A.2d 871 (1975). Plaintiffs then brought this direct appeal. ¹ For the reasons that follow, we will affirm.

Since the case was decided below on preliminary objections in the nature of a demurrer, we must for the purposes of this appeal accept as true all material and relevant facts which are well-pleaded in the complaint and all inferences which are reasonably deducible from them, but we are not bound by the conclusions of law there advanced. Gekas v. Shapp, --- Pa. ---, 364 A.2d 691 (1976); Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). The complaint as amended alleges in substance the following relevant facts.

On April 8, 1975, Dr. Herbert Denenberg, having been appointed to fill a vacancy on the Pennsylvania Public Utility Commission (PUC) at a time when the Senate of Pennsylvania was not in session, was serving as a commissioner on an interim basis without Senate confirmation. On that date the Rules and Executive Nominations Committee of the Senate convened and, at a meeting during which two bills were also considered, voted to refer the appointment of Dr. Denenberg to the Senate floor for a confirmation vote. Max Weiner, the executive director of the corporate plaintiff in this action (CEPA), attended this meeting and protested orally to the chairman of the committee, Senator Thomas M. Nolan, that the committee had failed to provide the public notice of a public meeting required by the Sunshine Law. The chairman responded that he had complied with the Sunshine Law's requirements, and he proceeded with the meeting and the aforementioned vote. The next day, April 9, 1975, Lieutneant Governor Ernest P. Kline, in his capacity as President of the Senate, placed the matter on the Senate agenda, and Dr. Denenberg failed to receive the two- thirds vote necessary for confirmation. Subsequently, James M. Kelly, then acting chairman of the PUC, refused to recognize Dr. Denenberg as a commissioner.

On April 14, 1975, CEPA together with James Royal, its president, and Garland Dempsey, a member of its board of directors, filed a complaint in equity in the Commonwealth Court against Senator Nolan, individually and in his capacity as chairman of the committee, Lieutenant Governor Kline, individually and in his capacity as Senate President, and Mr. Kelly, individually and in his capacity as acting chairman of the PUC. Plaintiffs moved for an ex parte injunction to restrain Mr. Kelly and his agents from taking any action to remove Dr. Denenberg while their motion for a preliminary injunction was pending. This motion was denied on the same day. On April 30, plaintiffs filed an amended complaint naming as an additional defendant the Honorable Milton J. Shapp, individually and in his capacity as Governor of Pennsylvania.

The amended complaint alleged that CEPA is 'an organization of several hundred low-income residents and taxpayers of the Commonwealth of Pennsylvania having branches in Philadelphia and Delaware Counties,' that the individual plaintiffs and CEPA had wished to oppose the committee's proceeding to bring the Denenberg appointment to the Senate floor at that time because it was believed he then lacked the votes necessary for confirmation, that the committee vote was illegal and invalid under the Sunshine Law because no public notice of the meeting had been given and no minutes of the meeting were taken and that the subsequent confirmation vote by the Senate was thus also invalid, that 'the individual plaintiffs are suffering immediate and irreparable harm by the refusal of the PUC to recognize Dr. Denenberg's right to remain as a Commissioner of the PUC, and will be permanently harmed if a replacement to the fifth Commissioner position is confirmed because there is no other individual who has indicated and demonstrated as much concern to the interests of consumers as has Dr. Denenberg,' and that 'as a party having a complaint before the PUC regarding a proposed increase in telephone rates, the corporate plaintiff will suffer immediate and irreparable harm if its complaint comes before the PUC in the absence of a strong consumer advocate such as Dr. Denenberg.' The plaintiffs prayed for specified injunctive and declaratory relief. ² On July 25, 1975, the plaintiffs' request for preliminary relief was denied; after an argument before the court en banc, the defendants' preliminary objections were sustained and the complaint was dismissed on November 10, 1975. This appeal followed.

The Commonwealth Court sustained the preliminary objections solely on the ground that appellants had failed to state a cause of action because the consideration of executive nominations by a legislative committee is not within the purview of the Sunshine Law; the court in its opinion did not discuss or rule upon additional objections to appellants' alleged lack of standing to bring this action and to the court's jurisdiction to hear it. Although we agree with the Commonwealth Court's conclusion that relief cannot be granted instantly, we do conclude that section 9 of the Act, 65 P.S. § 269, which provides in pertinent part that '(t)he Commonwealth Court shall have original jurisdiction of actions involving State agencies . . . to render declaratory judgments or to enforce this act, by injunction or other remedy deemed appropriate by the court,' and that '(t)he action may be brought by any person' is inclusive enough to give appellants standing to bring the action and equity jurisdiction to hear it. Cf. Wiley v. Woods,393 Pa. 341, 141 A.2d 844 (1958). We agree, however, with the contention of appellees Nolan and Kline, not passed upon by the Commonwealth Court but reiterated on appeal, that the complaint should have been dismissed as to them because of Article II, Section 15 of the Pennsylvania Constitution, which provides in pertinent part that 'for any speech or debate in either House' the members of the General Assembly 'shall not be questioned in any other place.'

Although we have not previously had occasion to address ourselves to this constitutional provision, we observe that it is essentially identical to and obviously derived from the Speech and Debate Clause in Article I, Section 6 of the Federal Constitution, the scope of which in barring legal action against members of Congress has been interpreted in a long line of federal cases. In Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975), the Supreme Court of the United States recently held that the federal Speech and Debate Clause must be interpreted broadly in order to protect legislators from judicial interference with their legitimate legislative activities, and that even where the activity questioned is not literally speech or debate, a court must determine if it falls within the 'legitimate legislative sphere'; if it does, the action against the legislator calling it into question, whether criminal or civil, must be dismissed. See also Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881). Since we find no basis for distinguishing the scope of the Pennsylvania Speech and Debate Clause applicable to members of the General Assembly from that of the federal clause applicable to members of Congress, and since we find that the activities of appellees Nolan and Kline complained of in the instant case were clearly within the 'legitimate legislative sphere,' we conclude that this action should have been dismissed on this ground as to them. Cf. Tenney v. Bradhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Dickey v. C.B.S., Inc., 387 F.Supp. 1332 (E.D.Pa.1975).

Appellees Shapp and Kelly, on the other hand, now ask us to dismiss the appeal as moot on the grounds that the Governor has appointed and the Senate confirmed two new PUC commissioners leaving no vacancies on the commission for Dr. Denenberg to fill, and that the interim period during which Dr. Denenberg would have been entitled to remain on the PUC had the Senate not voted on his confirmation is in any event now past. ³ We decline to do so. When appellants brought this action, there was a genuine controversy between them and appellees Shapp and Kelly over the applicability of the Sunshine Law to the challenged proceedings. Although their primary purpose in bringing the action may have been to compel the reinstatement of Dr. Denenberg, we...