Jubelirer v. Rendell
| Decision Date | 10 August 2006 |
| Citation | 904 A.2d 1030 |
| Parties | Robert C. JUBELIRER, Senator and Pres ident pro tempore of the Pennsylvania Senate, and John M. Perzel, Representative and Speaker of the Pennsylvania House of Representatives, Petitioners v. Edward G. RENDELL, Governor of Pennsylvania; Robert P. Casey, Jr., State Treasurer of Pennsylvania; Michael J. Masch, Secretary of Budget and Administration of Pennsylvania; Estelle Richman, Secretary of Public Welfare of Pennsylvania; Pennsylvania Department of Public Welfare; Allen D. Biehler, Secretary of Transportation of Pennsylvania; Pennsylvania Department of Transportation; Colonel Jeffrey B. Miller, Commissioner of the Pennsylvania State Police; Pennsylvania State Police, Respondents. |
| Court | Pennsylvania Commonwealth Court |
John P. Krill, Jr., Harrisburg, for petitioners.
Mark A. Aronchick, Philadelphia, for respondent, Edward G. Rendell.
Sally A. Ulrich, Harrisburg, for respondent, Robert P. Casey, Jr.
Peter H. LeVan, Philadelphia, for respondent, Department of Transportation.
BEFORE: COLINS, President Judge, and McGINLEY, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, and SIMPSON, Judge.
OPINION BY President Judge COLINS.
We consider Respondents' Application for Summary Relief filed in response to Petitioners' Petition for Review seeking a declaratory judgment and injunctive relief that would: 1) declare that Article V, Section 16 of our Constitution does not permit the Governor to disapprove of language in an appropriations bill, as opposed to the amounts appropriated in a bill; 2) declare the Governor Edward G. Rendell's (Rendell) disapproval of language, rather than amounts appropriated, in the General Appropriations Bill of 2005, Act No. 2005-1-A (GAB), to be unconstitutional, null and void; and 3) enjoin all Respondents from complying with Rendell's disapprovals of the Act. We also consider Robert C. Jubelirer's (Jubelirer) preliminary objection and motion to strike filed in response to Respondents' answer to the Petition for Review on the grounds that it is not verified properly, that the answer contains scandalous and impertinent matter and that parts of it are barred by the Speech and Debate Clause of the Pennsylvania Constitution, Article II, Section 15. Robert P. Casey (Casey) has filed a preliminary objection seeking to remove himself as a party on the ground that, as Treasurer, any ruling by this Court will bind him whether or not he remains a party. We overrule Jubelirer's preliminary objection and deny his motion to strike, we deem Casey's preliminary objection moot, and we grant Respondents' Application for Summary Relief.1
Rendell signed the GAB into law on July 7, 2005. In signing the GAB, Rendell disapproved seven distinct items in the bill pursuant to the powers granted by Article IV, Section 16 of our Constitution.2 The four items that Rendell disapproved that are challenged by the Petitioners are: 1) Section 2010, the Motor License Fund Limitation, which would authorize DOT to "make adjustments to construction contracts for highway capital projects involving steel entered into prior to March 1, 2004 where the adjustments are supported by mutual consideration" (Steel Provision); 2) Section 219, Department of Public Welfare provision for outpatient medical assistance that would prohibit the DPW from expending or authorizing the expenditure of funds for family planning services "in excess of the amounts expended for such services in the 2004-2005 fiscal year[]" and would subject such funds "to the same restrictions contained in the appropriations for grants for women's medical services[]" (Family Planning Provision); 3) Section 223, Pennsylvania State Police provision that would prohibit the closure of any State Police Barracks unless a public hearing was held on 30 days' notice (State Police Barracks Provision); and 4) Section 801, Department of Transportation provision that would require the use of at least $1,500,000 of appropriated funds "for a pilot project to expand the width of pavement markings from four to six inches on limited access highways." (Highway Lines Provision).
Petitioners took no legislative steps to override Rendell's disapprovals as authorized by Article IV, Section 15 of our Constitution, but instead, in September of 2005, filed their petition for review.
The questions we are asked to determine are 1) whether the Respondents are entitled to summary relief; 2) whether Respondents' answer should be dismissed or stricken to the extent requested by the Petitioners; and, 3) whether Casey should be removed as a party.3
Jubelirer objects preliminarily to Respondents' answer to the petition for review on the ground that it is not verified properly in that it is verified by Governor Rendell's chief of staff and not by Rendell personally. Respondent's reply that the petition is filed against Rendell in his official capacity as governor and that a verification signed by the governor's chief of staff is thus sufficient. When deciding preliminary objections in the nature of a demurrer we accept as true all well pled facts in the complaint and decide on the basis of those facts whether the law says with certainty that there can be no relief. Stilp v. Commonwealth, 699 A.2d 1353 (Pa. Cmwlth.1997). In the caption of their petition for review the Petitioners name "EDWARD G. RENDELL, Governor of Pennsylvania" and in paragraph 11 of the Petition they plead as fact that "Edward G. Rendell is the Governor of Pennsylvania." The facts, as they are plead indicate that the Petitioners have brought this action against the Governor of Pennsylvania, who is presently Edward G. Rendell, and not against Edward G. Rendell "individually" or "in his capacity as an individual" as we would expect an action against an individual to be pleaded. In addition, we are persuaded by our Superior Court's decision in a case in which that court reinstated an action which had been dismissed by the court below for the defendant's failure to verify an answer.
"`While we do not, of course, condone willful noncompliance with our procedural rules, a hypertechnical reading of each clause, and a blind insistence on precise, formal adherence, benefits neither the judicial system nor those utilizing that system ... [C]ourts should not be astute in enforcing technicalities to defeat apparently meritorious claims; . . .'"
Thus, at a bare minimum, a court confronted by a defective verification should grant leave to amend before dismissing the petition.
Monroe Contract Corporation v. Harrison Square, Inc., 266 Pa.Super. 549, 405 A.2d 954, 958-959 (1979) (citations omitted).4 Jubelirer's preliminary objection to the form of verification contained in the answer to the petition is overruled.
Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Cmwlth.1998) (citation omitted). Petitioners have chosen to move to strike material they consider scandalous and impertinent rather than to object to it preliminarily. We will, however consider their Motion to Strike as a preliminary objection in that form. Petitioners object that the last sentence in paragraph 37 of Respondents' Answer to the Petition for Review and certain parts of Respondents' Memorandum of Law in Support of their Application of Summary Relief are scandalous and impertinent and that the sentence in paragraph 37 violates the Speech and Debate Clause of Article II, Section 15 of the Pennsylvania Constitution.
Paragraph 37 of the Petition for Review alleges that the Governor's power of disapproval extends only to amounts appropriated, not to the "language that defines the appropriation of funds . . . ." Paragraph 37 of Respondents' Answer is a denial of this allegation as a conclusion of law that ends in these two sentences,
By way of further answer, for more than two decades, Governors of this Commonwealth from both major political parties have repeatedly disapproved of similar provisions in general appropriations bills without judicial challenge. Furthermore, senior staff members of Petitioners and of Petitioners' caucuses were informed by administration officials as early as a week before the Governor's disapproval that the Governor intended to disapprove certain provisions in the bill.
It is the second sentence beginning with "Furthermore" that Petitions object to as scandalous and impertinent and a violation of the Speech and Debate Clause. This sentence is, by any stretch of the legal imagination, not a violation of the Speech and Debate clause nor is it scandalous and impertinent. We are simply not convinced that this single sentence, in the context of 10 pages and 52 paragraphs, is inappropriate or immaterial to the extent that is deserves judicial consideration. The Speech and Debate Clause of the Pennsylvania Constitution states,
The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.
Petitioners assert that the last sentence in Respondents' paragraph 37 violates the Speech and Debate Clause because the referenced communication "concerns communications between staff in the Governor's Office and staff in the General Assembly during budget negotiations" that are somehow "protected by the Speech and Debate Clause." The fallacy of this allegation requires no legal analysis and can be established by a...
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