P.J.S. v. Pennsylvania State Ethics Com'n

• Decision Date: 08 January 1996
• Citation: 669 A.2d 1105
• Parties: P.J.S., Petitioner, v. PENNSYLVANIA STATE ETHICS COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1105

669 A.2d 1105

P.J.S., Petitioner, v. PENNSYLVANIA STATE ETHICS COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued Aug. 22, 1995.

Decided Jan. 8, 1996.

Philip B. Friedman, for petitioner.

John Contino, Executive Director, for respondent.

Before DOYLE and PELLEGRINI, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

P.J.S. (Petitioner) is an attorney licensed to practice law in the Commonwealth of Pennsylvania. From 1990 to 1994, Petitioner served as a solicitor for the City of Erie (City). Petitioner alleges that during that period of time he was also employed at a private law firm. In June of 1994, the State Ethics Commission (Commission) began an investigation on a complaint filed against Petitioner alleging that he violated Section 3(a) of the "State Ethics Act" (Act), ¹ which provides that, "[n]o public official or public employee should engage in conduct that creates a conflict of interest," (emphasis added), and Section 3(f) ² which provides that neither a public official nor a public employee shall enter into a contract with the governmental body with which the official or employee is employed, or subcontract with a person who has been awarded a contract by the governmental body with which the official or employee is employed. The complaint alleged that Petitioner agreed to provide legal services for the City's insurance carrier for a claim against the City, Mayor, and Police, but would be paid directly by the insurance carrier for his services and that he used City resources in his private legal work related thereto. Petitioner filed a petition to dismiss and/or to stay the proceeding asserting that the Commission's action represents an unconstitutional legislative intrusion into the exclusive authority of the Supreme Court to regulate the professional and ethical conduct of attorneys who practice before the courts of this Commonwealth.

In February of 1995, the Commission denied Petitioner's petition to dismiss and/or stay the proceeding. On May 16, Petitioner filed a petition for review in this Court's original jurisdiction seeking declaratory judgment to resolve the question of whether the Commission has jurisdiction in this matter, and whether his constitutional rights, under Article V, Section 10 of the Pennsylvania Constitution were violated by application of the Act in this matter. Petitioner also sought a permanent injunction to enjoin the Commission's proceedings.

The Commission filed preliminary objections in the nature of a demurrer claiming: (1) that declaratory relief is not available under the Declaratory Judgments Act (DJA), ³ and (2) that this Court should not grant injunctive relief enjoining the legally mandated and lawfully authorized proceedings of an administrative agency of the Commonwealth of Pennsylvania when the prerequisites for such relief do not exist. We will discuss each issue in the order presented. We also bear in mind the standard of review for determining whether preliminary objections should be sustained.

Preliminary objections should be sustained when the law will not permit a remedy, "and where any doubt exists, that doubt should be resolved by a refusal to sustain the preliminary objections." J.B. Steven, Inc. v. Board of Commissioners of Wilkens Township, 164 Pa.Cmwlth. 315, 643 A.2d 142, 144 (1994), appeal denied, 539 Pa. 671, 652 A.2d 841 (1994). In cases where preliminary objections would result in the dismissal of a cause of action, preliminary objections should only be sustained where it is clear and free from doubt that the pleader has not pleaded facts sufficient to establish his right to relief. Bower v. Bower, 531 Pa. 54, 56, 611 A.2d 181, 182 (1992).

The Commission's first objection is that declaratory relief is unavailable because: (1) there is an alternative avenue of relief that is exclusively provided for by law; and (2) judicial and statutory precedent have made it clear and free from doubt that Petitioner does not have a right to relief.

42 Pa.C.S. § 7537 of the DJA provides in pertinent part that a court may refuse to render or enter a declaratory judgment where such judgment would not terminate the uncertainty or controversy giving rise to the proceeding. However, the existence of an alternative remedy should not be a ground for the refusal to proceed under this subchapter. 42 Pa.C.S. § 7541 states:

(a) General rule. This subchapter [the DJA] is declared to be remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered.

(b) Effect of alternative remedy. The General Assembly finds and determines that the principle rendering declaratory relief unavailable in circumstances where an action at law or in equity or a special statutory remedy is available has unreasonably limited the availability of declaratory relief and such principle is hereby abolished. The availability of declaratory relief shall not be limited by the provisions of 1 Pa.C.S. § 1504 (relating to statutory remedy preferred over common law) and the remedy provided by this subchapter shall be additional and cumulative to all other available remedies except as provided in subsection (c). (Emphasis added.)

(c) Exceptions. Relief shall not be available under this subchapter with respect to any:

(1) Action wherein a divorce or annulment of marriage is sought.

(2) Proceeding within the exclusive jurisdiction of a tribunal other than a court.

(3) Proceeding involving an appeal from an order of a tribunal.

The Commission objects to Petitioner's petition for declaratory judgment on the basis that its investigation is a proceeding within the exclusive jurisdiction of a tribunal other than the court, and thus, pursuant to the exception stated in 42 Pa.C.S. § 7541(c)(2), declaratory relief is not available. We have had occasion to address this argument in Blackwell v. State Ethics Commission, 125 Pa.Cmwlth. 42, 556 A.2d 988 (1989), appeal quashed, 523 Pa. 347, 567 A.2d 630 (1989), where three city councilmen challenged the jurisdiction of the Commission, and claimed that the exercise of the Commission's authority was unconstitutional. The Commission argued in Blackwell, as it does here, that the Commission's investigation fell under exception (c)(2). However, this Court stated:

When, however, challenges--particularly constitutional challenges--are set forth questioning the validity of a statute itself or questioning the scope of a governmental body's action pursuant to statutory authority, then the Declaratory Judgments Act is properly invoked, because "the existence of an alternative remedy shall not be a ground for refusal to proceed...." 42 Pa.C.S. § 7537....

We address petitioners' request for declaratory relief because we are of the opinion that petitioners' preliminary objections to the Commission's exercise of jurisdiction goes, "to the heart of [its] power...." (Citation omitted.)

Id., at 991.

The issue raised in this declaratory judgment action is whether the Commission has jurisdiction over Petitioner, and whether the exercise of its authority is constitutional. These issues go to the heart of the Commission's power, and we therefore hold that exception (c)(2) does not apply, and declaratory relief is not precluded on this basis.

The Commission next argues, citing Cloonan v. Thornburgh, 103 Pa.Cmwlth. 1, 519 A.2d 1040 (1986), appeal dismissed, sub. nom. Liquor Control Board v. Casey, 516 Pa. 52, 531 A.2d 1391 (1987), that declaratory relief is not available because a declaratory judgment petition may not be used to challenge settled law, or to review already tested statutory provisions. The Commission contends that since it is well-established, in both case law and statutes, that Petitioner is among the class of persons to whom the conflict of interest provisions of the Act apply, declaratory relief is unavailable. However, this is a misreading of Cloonan.

We did not hold in Cloonan that the availability of declaratory relief to a petitioner is dependent on whether the law is either settled or unsettled on a particular matter. Rather, this Court held that the legal tool of declaratory judgment, "should only be exercised to illuminate an existing right, status or legal relation. It may not be used to search out new legal doctrine." Id. at 1045. Thus, Cloonan simply admonished the courts to avoid using a declaratory judgment proceeding to make new law, but instead to use it to declare the state of the existing law on a particular issue. Thus, Cloonan does not preclude the invocation of the DJA when one party believes the law is settled in a particular area. Petitioner here is properly invoking this proceeding to determine whether, under the existing state of the law, he is subject to the Commission's jurisdiction. Therefore, we hold that a declaratory judgment proceeding is available to Petitioner in the instant matter.

In Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981), a solicitor to an industrial development authority filed a petition for review seeking injunctive and declaratory relief from the financial disclosure requirements of Section 4 of the Act. The Commonwealth Court had held, prior to the Supreme Court's grant of allocatur, that the solicitor was a "public employee," but that the financial disclosure provisions of the Act, as applied, were an unconstitutional infringement on the Pennsylvania Supreme Court's exclusive jurisdiction to govern the conduct of attorneys. The Supreme Court affirmed that a "municipal solicitor" was not subject to the Act, but for entirely different reasons. First, the Court then held that Mr. Ballou, in his capacity as solicitor, was neither a "public employee" nor a "public official," and hence was not statutorily compelled to comply with the Act. Then, on the basis that it should not decide a constitutional question unless absolutely required...