Stilp v. Com.
| Decision Date | 13 November 2006 |
| Citation | 910 A.2d 775 |
| Parties | Gene STILP, Petitioner v. COMMONWEALTH of Pennsylvania, General Assembly, Robert C. Jubelirer, David Brightbill, Robert Mellow, John M. Perzel, Sam Smith, H.W. DeWeese, Leadership of the General Assembly, Edward G. Rendell, Governor of the Commonwealth of Pennsylvania, Robert P. Casey, Jr., Treasurer of the Commonwealth of Pennsylvania, Respondents. |
| Court | Pennsylvania Commonwealth Court |
Gene Stilp, petitioner, pro se.
Amanda L. Smith, Deputy Attorney General and Thomas W. Corbett, Jr., Attorney General, Harrisburg, for Edward G. Rendell.
John P. Krill, Jr., Harrisburg, for respondents, Robert C. Jubelirer and David Brightbill.
James F. Tierney, IV, Scranton, for respondent, Robert J. Mellow.
Thomas W. Dymek, Philadelphia, for respondents, John M. Perzel, Samuel H. Smith, and William DeWeese.
Sally Ann Ulrich, Chief Counsel, Harrisburg, for respondent, Robert P. Casey, Jr.
BEFORE: COLINS, President Judge, and McGINLEY, Judge, and PELLEGRINI, Judge, and LEADBETTER, Judge, and SIMPSON, Judge.
OPINION BY Judge SIMPSON.
In this original jurisdiction matter, a resident taxpayer challenges on constitutional grounds the availability to state legislators of anything of benefit beyond "salary and mileage." Also, constitutional challenges are raised to local grant monies referred to as "walking around money" or "WAMs," and to leadership accounts. In addition to the General Assembly and the named legislative leaders of both parties, the Governor and the Treasurer are named as Respondents.1
Currently before the Court are Respondents' preliminary objections to the Amended Petition for Review filed by Gene Stilp, who represents himself. The preliminary objections raise in excess of 24 issues. For reasons more fully discussed below, we sustain the preliminary objections to all counts except Count XII (leadership accounts). Stilp is granted leave to timely file a second amended petition containing further averments as to the Treasurer and as to Count XIII(i) (WAMs) only.
I. Amended Petition for Review
The basic premise of this lawsuit is that state legislators have access to things that benefit them beyond that which is expressly permitted by the Pennsylvania Constitution. Most significantly, Article II, Section 8, titled "Compensation," provides:
The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term.
PA. CONST. art. II, § 8. The things of value or benefit specifically challenged pursuant to this provision are as follows:
Count I—Additional Salary, Perks, Benefits and Other Things of Economic Value;
Count II — Legislative Health Care Benefits;
Count III — Long Term Care Benefits;
Count IV — Insurance Benefits;
Count V — Drug and Medication Benefits;
Count VI — Automotive and Transportation Benefits;
Count VII — Taxpayer Financed Television Commercials and Partisan Television Shows;
Count VIII — Taxpayer Financed Mailings;
Count IX — Cost of Living Increase;
Count X — Fixed Salary;
Count XI — Per Diems;
Count XIII(ii) — Hired Lawyer Expenditures for Legislators' Personal Needs;2 and,
Count XIV — Any and All Other Perks that Are Hidden from the Public Because of the Lack of a Publicly Accessible Accounting System.
In addition, Stilp invokes two other state constitutional provisions. First, he quotes Article VIII, Section 14 of the Pennsylvania Constitution, titled "Surplus," which provides:
All surplus of operating funds at the end of the fiscal year shall be appropriated during the ensuing fiscal year by the General Assembly.
PA. CONST. art. VIII, § 14. Pursuant to this provision, Stilp raises the following challenge: Count XII—Legislative Leadership Accounts.
Next, Stilp quotes Article III, Section 29 of the Pennsylvania Constitution, titled "Appropriations for Public Assistance, Military Service, Scholarships," which provides:
No appropriation shall be made for charitable, educational or benevolent purposes to any person or community nor to any denominational and sectarian institution, corporation or association: Provided, That appropriations may be made for pensions or gratuities for military service and to blind persons twenty-one years of age and upwards and for assistance to mothers having dependent children and to aged persons without adequate means of support and in the form of scholarship grants or loans for higher educational purposes to residents of the Commonwealth enrolled in institutions of higher learning except that no scholarship, grants or loans for higher educational purposes shall be given to persons enrolled in a theological seminary or school of theology.
PA. CONST. art. III, § 29. Pursuant to this provision, Stilp raises the following challenge: Count XIII(i)— Walking Around Money (WAMs).
Stilp seeks various forms of relief. Primarily, he prays for declarations that the challenged benefits are unconstitutional and for injunctions restraining the Treasurer from disbursing future monies for the challenged purposes. He also seeks mandatory injunctions compelling the return of unspent monies in leadership accounts and requiring legislative leaders to cooperate with an audit by the Auditor General.3
II. Standard of Review
The rule is well settled that in ruling upon preliminary objections, the courts must accept as true all well-pleaded allegations of material facts as well as all of the inferences reasonably deducible from the facts. Dep't of Gen. Servs. v. Bd. of Claims, 881 A.2d 14 (Pa.Cmwlth.2005). For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party. Id.
There are various statutes which address benefits available to state legislators. Although Stilp does not identify any of these, he essentially challenges those statutes on constitutional grounds. During our review of the Amended Petition we must be mindful of the presumption that the legislature does not intend to violate the Constitution, and the corollary that a party asserting the unconstitutionality of a legislative act bears a heavy burden of proof. Bible v. Dep't of Labor and Indus., 548 Pa. 247, 696 A.2d 1149 (1997). A statute will only be declared unconstitutional if it clearly, palpably and plainly violates the Constitution. Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919 (2004).
III. Preliminary Objections of the Governor
Because Stilp made no averments about the Governor and sought no relief against him, the Governor filed preliminary objections in the nature of a demurrer for failure to state a claim against him.4 We sustain the demurrer.
Stilp requests a statutory remedy under the Declaratory Judgments Act.5 In order to sustain an action under the Declaratory Judgments Act, a plaintiff must demonstrate an "actual controversy" indicating imminent and inevitable litigation, and a direct, substantial and present interest. Wagner v. Apollo Gas Co., 399 Pa.Super. 323, 582 A.2d 364 (1990). Because an action for declaratory judgment cannot be sustained until these elements can be shown to exist, it follows that a cause of action for declaratory judgment does not arise until such "actual controversy" exists. Id.
Here Stilp fails to plead any actual controversy he has with the Governor. Also, he seeks no declaration pertaining to the Governor. Stilp therefore fails to state a claim against the Governor for declaratory relief.
Stilp argues that the Governor is an integral part of the process of appropriating money to the General Assembly. Unfortunately, Stilp does not make such an averment in his Amended Petition. Also, he does not challenge the General Appropriations Act existing at the time of suit6 or any other appropriations act. In the absence of these averments and challenges, he cannot state a claim against the Governor.
Similarly, Stilp seeks injunctive relief. Among other items, he must plead and prove that the wrong of the defendant is manifest. Moscatiello v. Whitehall Borough, 848 A.2d 1071 (Pa.Cmwlth.2004). Because Stilp fails to plead any manifest wrong with respect to the Governor, he fails to state a claim for injunctive relief against the Governor.
IV. Preliminary Objections of Treasurer
Stilp makes no averments regarding the Treasurer; however, he seeks relief involving the Treasurer. In particular, Stilp prays for injunctions restraining future disbursements by the Treasurer for the stated purposes. Stilp also prays for an injunction restraining future disbursements by the Treasurer to the General Assembly until all "excess funds are returned" and an audit is performed.
In the absence of any averment that the Treasurer has made or will make disbursements for the stated purposes, Stilp fails to plead an actual controversy with the Treasurer which might support declaratory relief. Similarly, in the absence of averments that the Treasurer has made or will make disbursements for the stated purposes, Stilp fails to plead a manifest wrong which would support injunctive relief. Accordingly, we sustain the Treasurer's demurrers.
It is unclear whether Stilp's failure to state a claim against the Treasurer can be cured. Under these circumstances, dismissing the action is not appropriate. Walch v. Red Hill Borough, 110 Pa. Cmwlth. 554, 532 A.2d 1238 (1987). Therefore, the Treasurer's demurrer is sustained without prejudice. V. Preliminary Objections of State Legislators7
A. Standing
The state legislators challenge Stilp's standing to bring this action. However, we recently disposed of this...
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