Sweeney v. Tucker

• Decision Date: 14 January 1976
• Citation: 351 A.2d 308,22 Pa.Cmwlth. 642
• Parties: Leonard E. SWEENEY, Esquire, et al., Plaintiffs, v. C. DeLores TUCKER, Secretary of the Commonwealth, et al., Defendants.
• Court: Pennsylvania Commonwealth Court

Page 308

351 A.2d 308

22 Pa.Cmwlth. 642

Leonard E. SWEENEY, Esquire, et al., Plaintiffs, v. C. DeLores TUCKER, Secretary of the Commonwealth, et al., Defendants.

Commonwealth Court of Pennsylvania.

Argued Oct. 29, 1975.

Decided Jan. 14, 1976.

Thomas A. Livingston, Pittsburgh, for plaintiffs.

Melvin R. Shuster, Deputy Atty. Gen., Harrisburg, for defendants Tucker & Sloan.

Russell A. Davis, Chief Legal Counsel, Harrisburg, for defendants Fineman, Irvis, Rappaport & Francis.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, and BLATT, JJ.

OPINION

ROGERS, Judge.

Leonard E. Sweeney, formerly a member of the Pennsylvania House of Representatives, and two of his former constituents of the Seventeenth Legislative District have filed a complaint in equity against the Comptroller of the House of Representatives, two high officers of the Commonwealth and three members of the House. The plaintiffs claim that Mr. Sweeney's expulsion from membership in the House violated his asserted constitutional right to his House seat and to payment of salary and of the plaintiff-constituents' right to be represented in the House. They seek injunctive relief that Mr. Sweeney be reinstated as a member of the House with back pay and declaratory relief in the form of a statement that the action of the House expelling Mr. Sweeney was unlawful. All of the defendants have filed preliminary objections in the nature of demurrers. The House members and the Comptroller of the House have additionally raised a question of our jurisdiction of the subject matters.

We learn from the plaintiffs' complaint, the averments of which we must accept as verity, that Mr. Sweeney was elected to represent the Seventeenth Legislative District on November 5, 1974. He took the oath of office and was seated on January 7, 1975. On January 10, 1975, Mr. Sweeney was indicted by a grand jury of the United States District Court for the Western District of Pennsylvania on one count of conspiracy to commit mail fraud and five counts of mail fraud. ¹ On July 30, 1975, a trial jury found Mr. Sweeney guilty of three counts of mail fraud. On the same day the District Court Trial Judge entered judgments of sentence against Mr. Sweeney of imprisonment and to pay fines and costs. Before sentencing, Mr. Sweeney's counsel told the Judge that Mr. Sweeney would resign his seat in the House and that a letter of resignation was about to be prepared for Mr. Sweeney's signature. Mr. Sweeney filed a timely appeal from the judgments of sentence to the Third Circuit Court of Appeals.

Mr. Sweeney did not resign his seat in the House of Representatives. On August 18, 1975, the House Ethics Committee notified Mr. Sweeney that it would meet and discuss his status as a member of the House on August 25, 1975, inviting him to attend in person or with or by counsel. The Ethics Committee, after its meeting, at which neither Mr. Sweeney nor his counsel appeared, concluded that its jurisdiction was limited to violations of the Legislative Code of Ethics and House Rules and made no recommendation to the House. The House of Representatives met in Special Session to consider action on Mr. Sweeney's status on August 27, 1975. Again, neither Mr. Sweeney nor anyone for him appeared. After entering into its records Mr. Sweeney's indictments and the judgments of sentence against him, the House by vote of 176 in favor and 1 against, adopted the following resolution:

'WHEREAS, Representative Leonard E. Sweeney was tried and convicted by the court and a jury in the United States District Court for the Western District of Pennsylvania for violation of Title 18, United States Code, Section 1341; and

'WHEREAS, Sentence pursuant to a finding of guilty was imposed by the court on July 30, 1975; and

'WHEREAS, Pursuant to Article II, Section 9 of the Constitution of the Commonwealth of Pennsylvania the House of Representatives has the exclusive power and authority to judge the qualifications of its members; therefore be it

'RESOLVED, That pursuant to the powers granted to the House of Representatives under Article II, Section 9 and Section 11 of the Constitution of the Commonwealth of Pennsylvania, the House of Representatives does hereby expel Leonard E. Sweeney as a member of the House of Representatives of Pennsylvania.'

The Speaker of the House thereupon declared that a vacancy existed in the office of Representative for the Seventeenth Legislative District and issued a writ calling for special election on November 4, 1975. ²

A writ of election was duly forwarded to the Secretary of the Commonwealth and a special election to fill the vacancy was conducted on November 4, 1975.

The plaintiffs filed their complaint in this Court on September 24, 1975, naming as defendants the following persons, holding the indicated State offices or House positions: C. DeLores Tucker, Secretary of the Commonwealth; Grace M. Sloan, Treasurer of the Commonwealth; Herbert Fineman, Speaker of the House; K. LeRoy Irvis, Majority Leader of the House; Samuel Rappaport, Chairman of the House Ethics Committee; and Jean Francis, Comptroller of the House.

Plaintiffs' counsel conceded at argument that the complaint did not state a cause of action against State Treasurer Sloan.

The defendants Fineman, Irvis and Rappaport are members of the House. Article II, Section 15 of the Pennsylvania Constitution provides:

'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.' (Emphasis supplied.)

Neither the defendants Fineman, Irvis and Rappaport, who have filed a vast brief, nor we, were able to find Pennsylvania cases interpreting or declaring the effect of the emphasized portion of Article II, Section 15. However, Article I, Section 6 of the United States Constitution declares that Senators and Representatives of the Congress of the United States 'for any Speech or Debate in either House, . . . shall not be questioned in any other Place.' This clause has been construed by the Supreme Court of the United States not only to provide a defense to members on the merits but protection from the burden of defending themselves against suits questioning their legislative activities. The cases are collected and the principles discussed in Powell v. McCormack, 395 U.S. 486, 501, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), where it was held that the Speech or Debate Clause of the United States Constitution was a bar to a Congressman's action against his colleagues for excluding him from the House of Representatives. Powell v. McCormack, supra, furnishes recent and most persuasive authority for a holding by us that Article II, Section 15 of the Pennsylvania Constitution bars the instant action against Fineman, Irvis and Rappaport and on this authority we will dismiss the complaint against those defendants.

There remain for consideration the plaintiffs' actions against C. DeLores Tucker, the Secretary of the Commonwealth, and Jean Francis, the Comptroller of the House of Representatives. Secretary Tucker has filed preliminary objections in the nature of a demurrer which she supports by saying that her duties upon receipt of a writ of election under the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, As amended, 25 P.S. § 2601 et seq., are ministerial and that the complaint therefore cannot and does not state any wrongdoing on her part. The objection is without merit. The central purpose of the equity action is to obtain an order voiding the writ of election; if the action succeeds and the writ be struck down, the plaintiffs would need relief against the Secretary's continued actions in reliance on the writ. Piccirilli Bros. v. Lewis, 282 Pa. 328, 127 A.2d 832 (1925); Commonwealth ex rel. Bell v. Powell, 249 Pa. 144, 94 A. 746 (1915). However, since we hold hereinafter that the cause against the House for expelling Mr. Sweeney is not justiciable, the writ of election will stand. It follows that the relief sought against Ms. Tucker, which depends entirely on the alleged invalidity of the writ, cannot be granted and that the complaint against her must also be dismissed.

With respect to Jean Francis, Comptroller of the House of Representatives, the complaint seeks our order compelling her to prepare and present to the Pennsylvania Treasurer requisitions for Mr. Sweeney's back pay and to continue forwarding such requisitions until Mr. Sweeney's term expires.

In Powell v. McCormack, supra, it was held that the Speech or Debate clause was not a bar to a review of the merits of the House of Representatives' exclusion of the plaintiff where fiscal employes of Congress were named as defendants and the plaintiff sought pay he would have earned if not excluded. On this authority, the House Comptroller being here a defendant we are required to consider and decide the issues of whether we have jurisdiction and, if so, whether the case is justiciable.

Again following the holding of the United States Supreme Court in Powell v. McCormack, supra, we have concluded that we have jurisdiction. Section 401(a) (i) of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, As amended, 17 P.S. § 211.401(a)(i), confers upon this court original jurisdiction of civil actions against any officer of the Commonwealth, acting in his official capacity. Section 8(h) of The Commonwealth Court Act, Act of January 6, 1970, P.L. (1969) 434, As amended, 17 P.S. § 211.8(h) confers on this Court all powers possessed by common pleas courts, among which are the power and jurisdiction of courts of chancery described in Section 13 of the Act of June 16, 1836, P.L. 784, 17 P.S. § 282 and Section 1 of the Act of...