John A. LAWLESS, State Representative 150th Legislative District, Charles A. Pascal, Jr., and Joseph H. Wiedemer, Petitioners, v. Robert C. JUBELIRER, Lt. Governor of Pennsylvania, State Senator, 30th Senatorial District and President Pro Tempore of the Pennsylvania Senate, Respondent.
Commonwealth Court of Pennsylvania.
Decided Jan. 4, 2002.
789 A.2d 820
Argued Dec. 5, 2001.
Reproduced Record (R.) 175a. The letter from psychologist, Dr. Larry D. Walker stated:
I have seen Mr. Chittister on two occasions (February 21, 1997 and February 27, 1997) for psychological evaluation and therapy. It appears quite evident to me that Mr. Chittister is experiencing major depression resulting from significant stressors related to employment. I would recommend that he not return to work until his symptoms are better controlled, specially in light of his previous and current medical conditions, which are exacerbated by stress.
R. 176a. DCED did not challenge the sufficiency of the doctor‘s letters. DCED approved sick leave through to and including May 2, 1997. Although DCED granted sick leave upon the condition that Chittister was applying for disability retirement and Chittister withdrew his application, the fact remains that DCED had approved sick leave until May 2, 1997. Therefore, Chittister was entitled to utilize this sick leave and should not have been penalized for using an earned benefit in a lawful manner. DCED has made no showing that Chittister was utilizing this benefit in an unlawful manner. We, therefore, conclude that DCED did not have “just cause” to terminate Chittister for failing to return to work while he was on approved sick leave.
Accordingly, the order of the Commission is reversed.
ORDER
AND NOW, this 4th day of January 2002, upon reconsideration, the order of the Civil Service Commission, at Appeal No. 19926, dated October 24, 2000, is reversed. This case is remanded to the Civil Service Commission to calculate back pay for the period of April 21, 1997 through May 2, 1997 and to determine whether Chittister was available to return to work following the expiration of his sick leave and whether reinstatement is an appropriate remedy.
Linda J. Shorey and John P. Krill, Jr., Harrisburg and Robert L. Byer, Pittsburgh, for respondent.
Before DOYLE, President Judge, COLINS, J., MCGINLEY, J., SMITH, J., FRIEDMAN, J., KELLEY, J., and LEADBETTER, J.
PER CURIAM.
AND NOW, this 4th day of January 2002, the majority and dissenting opinions filed on Friday, December 28, 2001, in the above-captioned matter are hereby withdrawn and vacated.
In their stead, the attached majority and dissenting opinions and orders are filed as of this date.
DOYLE, President Judge.1
Before this Court2 in our original jurisdiction are preliminary objections filed by Robert C. Jubelirer, the Lieutenant Governor of the Commonwealth of Pennsylvania and a State Senator elected from Pennsylvania‘s 30th Senatorial District, who is as well the President pro tempore of the Pennsylvania Senate (Respondent), to a petition for review in the nature of a request for declaratory judgment filed by State Representative John A. Lawless, Charles A. Pascal Jr., and Joseph H. Wiedemer (collectively Petitioners). Petitioners Lawless, Pascal and Wiedemer are residents of Pennsylvania (Wiedemer in Pennsylvania‘s 30th Senatorial District) as well as electors, voters and taxpayers.3
In their petition, Petitioners allege that Respondent has been a member of the Senate since 1974 and has been its President pro tempore for approximately fifteen years.4 They further aver that on October 5, 2001, former Governor Tom Ridge resigned his position to assume the federal post of Director of the Office of Homeland Security in Washington, D.C. On that same date, then Lieutenant Governor Mark Schweiker was sworn in as Governor
§ 14. Vacancy in office of Lieutenant Governor
In case of the death, conviction on impeachment, failure to qualify or resignation of the Lieutenant Governor, or in case he should become Governor under the preceding section, the President pro tempore of the Senate shall become Lieutenant Governor for the remainder of the term. In case of the disability of the Lieutenant Governor, the powers, duties and emoluments of the office shall devolve upon the President pro tempore of the Senate until the disability is removed. Should there be no Lieutenant Governor, the President pro tempore of the Senate shall become Governor if a vacancy shall occur in the office of Governor and in case of the disability of the Governor, the powers, duties and emoluments of the office shall devolve upon the President pro tempore of the Senate until the disability is removed. His seat as Senator shall become vacant whenever he shall become Governor and shall be filled by election as any other vacancy in the Senate.
In count one of the four-count petition, petitioners recognize that
No member of Congress or person holding any office ... under the United States or this Commonwealth shall exercise the office of Governor, Lieutenant Governor or Attorney General.
(emphasis added). Petitioners argue, succinctly, that Respondent is prohibited from holding the office of Senator while he is at the same time the Lieutenant Governor. Petitioners assert further that, under
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.
Finally, Petitioners maintain that the Constitution does not authorize a Lieutenant Governor, who is a member of the Executive branch, to exercise the duties and powers of the President pro tempore of the Senate, who is a member of the Legislative branch. Petitioners contend that the “people of Pennsylvania have a right to a Lt. Governor without loyalties divided between the Executive and Legislative branches.” (Petition for Review ¶ 24).
Petitioners, in a prayer for relief repeated for each count, ask the Court to declare (1) that Respondent may not continue to hold the office of Senator and
Count two of the petition is based on the concept of separation of powers. Petitioners aver that under
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under this Commonwealth to which a salary, fee or perquisite is attached. No member of Congress or other person holding any office (except of attorney-at-law or in the national guard or in a reserve component of the armed forces of the United States) under the United States or this Commonwealth to which a salary, fee or perquisite is attached shall be a member of either House during his continuance in office.
Count three of the petition is based on
Finally, in count four of the petition, Petitioners aver that, as Lieutenant Governor, Respondent is responsible for Pennsylvania‘s Emergency Management Program and that his senatorial duties, which take time from his duties as the Lieutenant Governor, prevent him from being able to give his maximum time and attention to the emergency management duties.
Respondent has raised three preliminary objections to the petition, which we will address seriatim.
STANDING
Respondent first asserts that the named Petitioners lack standing to bring this action.
In order to meet the standing requirement, those bringing an action generally must demonstrate a substantial, direct and immediate interest in the controversy. William Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). An interest is substantial if there is a discernable adverse effect to an interest other than that of the general citizenry. Id. at 195, 346 A.2d at 282. It is direct if the petitioner can show a harm to his interest. Id. It is immediate if it is not a remote consequence of the judgment. Id. at 197, 346 A.2d at 283.
There is, however, a narrow exception to the general requirements of standing where a citizen may challenge an action that would otherwise go unchallenged in the courts. This legal precept is often applied where persons also assert standing on the basis that they are taxpayers and, thus, have an interest in the public fisc. In such a case, to be granted standing,
Examining the five-part test enunciated in Consumer Party, we conclude that Petitioners do have standing. First, we believe that there is a real possibility that the issue called into question might otherwise go unchallenged. Respondent‘s colleagues in the Senate may not wish to raise the issue since those of his own party may benefit from his increased responsibilities and those of the other major party will have need to work with him in both of his capacities. For similar reasons, those legislators directly and immediately affected by his concurrent occupation of the three positions may benefit more, both personally and politically, by not challenging his authority.
Next, we believe that judicial relief is appropriate to challenge the constitutionality of this issue of first impression, challenging an individual‘s right to occupy the positions of Lieutenant Governor, President pro tempore of the Senate, and Senator simultaneously, and, if warranted, declare that a need for a special election is present. Additionally, redress is not available elsewhere, and no persons who are better situated to commence this lawsuit have even been suggested.
We also conclude that Petitioners Lawless and Pascal have an additional basis to assert standing under our holding in Bergdoll v. Kane, 694 A.2d 1155, (Pa. Cmwlth. 1997), aff‘d, 557 Pa. 72, 731 A.2d 1261 (1999), wherein we granted standing to individuals who had taken an oath pledging to defend Pennsylvania‘s Constitution. Representative Lawless, as a member of the General Assembly, and Mr. Pascal, as a member of the Board of Directors of the Leechburg Area School District, have asserted that they have each taken an oath of office requiring them to do so. Thus, we find an additional reason to conclude that they have standing. Accordingly, the preliminary objection to standing is overruled.5
SEPARATION OF POWERS DOCTRINE/THE POLITICAL QUESTION DOCTRINE
Respondent asserts that the central issue before the Court is not justiciable because it is a political question.
The political question doctrine is a discretionary form of judicial abstention derived from the separation of powers doctrine. It should only be invoked by a court when considering matters that are textually committed to a co-equal branch of government and which do not involve another branch of government acting outside its scope of constitutional authority. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977). Most important, the political question doctrine of abstention is a matter of judicial discretion and its use is controlled by the circumstances and facts presented in a particular case. Jubelirer v. Singel, 162 Pa. Cmwlth. 55, 638 A.2d 352 (1994) (particularly relevant to this case was this Court‘s prior decision to reject
Our state Supreme Court and this Court have adopted the standards enunciated in the seminal case of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), in order to determine whether an issue is justiciable. See, e.g., Jubelirer; Sweeney. In Jubelirer, we quoted Baker as follows:
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question.... Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of a court‘s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Jubelirer, 638 A.2d at 358 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691) (emphasis in original). Further, however, Sweeney recognized that, in situations where there is an allegation that another branch of government is acting beyond the scope of its constitutionally circumscribed authority, judicial review of the matter is especially appropriate.
While the argument of nonjusticiability has a certain appeal, we conclude that it does not apply to this case, which does not contemplate a “garden variety” political question, but rather concerns vital issues with unique constitutional underpinnings. Here, the Court is presented with two issues of basic constitutional law, viz., whether a person who becomes Lieutenant Governor pursuant to
DEMURRER
Respondent‘s final preliminary objection is a demurrer.
A demurrer may only be sustained when on the face of the complaint the law will not permit recovery, Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 151 Pa. Cmwlth. 266, 616 A.2d 1060 (1992), aff‘d, 538 Pa. 276, 648 A.2d 304 (1994), and all well-pled allegations must be accepted as true. Id. Regarding the merits, we further note that constitutional provisions relating to the same subject matter must be construed together and because the Constitution is
With regard to count one, concerning the possible disqualification from office under
In case ... the Lieutenant Governor ... should become Governor ... the President pro tempore of the Senate shall become Lieutenant Governor for the remainder of the term. .... Should there be no Lieutenant Governor, the President pro tempore of the Senate shall become Governor if a vacancy shall occur in the office of Governor and in case of the disability of the Governor, the powers, duties and emoluments of the office shall devolve upon the President pro tempore of the Senate until the disability is removed. His seat as Senator shall become vacant whenever he shall become Governor and shall be filled by election as any other vacancy in the Senate.
(emphasis added). Arguing the principle of expressio unius, exclusio alterius, Respondent asserts that because the specific constitutional language states only that the President pro tempore must give up his seat as a Senator upon becoming Governor, he need not do so upon becoming Lieutenant Governor, and that if such a result had been intended, the Constitution would have explicitly so stated.
Petitioners counter that Respondent has failed to distinguish between the concept of filling the role of Lieutenant Governor temporarily and permanently. They maintain that, if the office of Lieutenant Governor were only temporarily vacant because of the disability of the Lieutenant Governor, or if the Lieutenant Governor needed to assume the role of Governor temporarily due to the Governor‘s temporary disability, there would be no constitutional violation in Respondent Jubelirer keeping his Senate seat, since
Nonetheless, we agree with Respondent that the constitutional provision is clear and unambiguous and compels the President pro tempore to resign his senatorial seat only if he becomes Governor. In so holding, we are cognizant not only of the rule that the mention of a specific matter in a statute or constitutional provision implies the exclusion of other matters not mentioned, but also of the fact that the last sentence in Section 14 was also contained in the Pennsylvania Constitution of 1874, and that the inclusion or exclusion of the words “Lieutenant Governor” were the subject of specific debate.
During the debates concerning
ask[ed] unanimous consent to make that change. Then a Senator will not vacate his office if he is acting as Lieutenant Governor merely, but in case both the Governor and Lieutenant Governor should die or resign, and he assumes the gubernatorial functions, then, only, will his office of Senator become vacated.
Id. (emphasis added). The President of the Convention asked for unanimous consent to make the amendment. The Convention responded: “Aye!” “Aye!” Then, the President stated: “It is agreed to.” Id.
Thus it is historically relevant that the framers of Section 14 expressly and unanimously made their intent clear by deleting language that would have required the President pro tempore to vacate his seat in the Senate once he assumed the Office of Lieutenant Governor. Instead, they adopted the language still in use today, which specifically provides that the President pro tempore of the Senate vacates his seat only upon assuming the Governor‘s Office.
Petitioners’ interpretation of
While we acknowledge that Petitioners are correct in recognizing that a distinction is made in various constitutional provisions between a temporary vacancy and a permanent vacancy, this dichotomy is not relevant to the precise issue before the Court because the language in
There are also reasons why the provisions of
We turn now to an examination of
Next, Respondent demurs to the claim that by holding both offices he violates the principle of separation of powers. The separation of powers doctrine recognizes that each branch of our tripartite system of government has duties upon which the others may not intrude. Sweeney. However, some degree of interdependence will exist. Lloyd v. Fishinger, 529 Pa. 513, 605 A.2d 1193 (1992). To this end, it serves to prevent the concentration of absolute power in a single branch of government, as well as to preclude one branch from usurping another‘s power. Our Pennsylvania Supreme Court has stated that “[t]he crucial function of the separation of powers principle ... is not separation per se, but the ‘checking’ power each branch has over the others.” Beckert v. Warren, 497 Pa. 137, 145, 439 A.2d 638, 642 (1981).
Having concluded that
Finally, Respondent demurs to the count that he cannot competently fulfill his role as a member of the Commonwealth‘s Emergency Management Program, see what is commonly referred to as the
Accordingly, we conclude, based upon the foregoing explanation, that the demurrer must be sustained as to all counts.
Judge KELLEY concurs in the result only.
ORDER
NOW, January 4, 2002, Respondent‘s preliminary objections to standing and justiciability are overruled. Respondent‘s demurrer is sustained as to all counts and the petition for review is dismissed.
SMITH, Judge, concurring and dissenting.
I concur with the Majority‘s reasoning and disposition of the standing and separation of powers/political question issues. I respectfully dissent, however, from the Majority‘s ruling that the Pennsylvania Constitution, in particular
Petitioners John A. Lawless, Charles A. Pascal, Jr. and Joseph H. Wiedemer seek a declaratory judgment from this Court determining whether Respondent may occupy simultaneously the three positions that he now holds.1 They assert that the fundamental issue in this case is whether
It is well settled that courts must interpret constitutional language in its popular sense as the voters must have understood it when they voted on it. Zemprelli v. Thornburg, 47 Pa. Cmwlth. 43, 407 A.2d 102 (1979). In cases where the courts of this Commonwealth have not had occasion to consider and to rule upon an issue, decisions of other state courts may be relied upon for their persuasive value. In Commonwealth v. Cleckley, 558 Pa. 517, 522 n. 5, 738 A.2d 427, 430 n. 5 (1999), the Pennsylvania Supreme Court stated that it “created a four-part methodology to aid in the analysis of state constitutional claims” in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Specifically, the court will look at the text of the Pennsylvania constitutional provision; the history of the provision, including Pennsylvania case law; related case law from other states; and policy considerations unique to Pennsylvania. Id. The court must look not only to the letter of the words but to the spirit behind them as well in determining the meaning of a constitutional provision. Pennsylvania Prison Society v. Commonwealth, 565 Pa. 526, 776 A.2d 971 (2001).
Petitioners invoke the following constitutional provisions. They govern, inter alia, the prohibition against the appointment of legislators to any other salaried office, the duties of the President pro tempore in the absence of the Lieutenant Governor, the disqualification from service as Lieutenant Governor or Governor and temporary and permanent vacancies occurring in those offices.
Art. 2, § 6 Disqualification to hold other office
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under this Commonwealth to which a salary, fee or perquisite is attached. No member of Congress or other person holding any office (except of attorney-at-law or in the national guard or in a reserve component of the armed forces of the United States) under the United States or this Commonwealth to which a salary, fee or perquisite is attached shall be a member of either House during his continuance in office.
Art. 2, § 9 Election of officers; judge of election and qualifications of members
The Senate shall, at the beginning and close of each regular session and at such other times as may be necessary, elect one of its members President pro tem-
pore, who shall perform the duties of the Lieutenant Governor, in any case of absence or disability of that officer, and whenever the said office of Lieutenant Governor shall be vacant. The House of Representatives shall elect one of its members as Speaker. Each House shall choose its other officers, and shall judge of the election and qualifications of its members. Art. 4, § 6 Disqualification for offices of Governor, Lieutenant Governor and Attorney General
No member of Congress or person holding any office (except of attorney-at-law or in the National Guard or in a reserve component of the armed forces of the United States) under the United States or this Commonwealth shall exercise the office of Governor, Lieutenant Governor or Attorney General.
Art. 4, § 14 Vacancy in office of Lieutenant Governor
In case of the death, conviction on impeachment, failure to qualify or resignation of the Lieutenant Governor, or in case he should become Governor under the preceding section, the President pro tempore of the Senate shall become Lieutenant Governor for the remainder of the term. In case of the disability of the Lieutenant Governor, the powers, duties and emoluments of the office shall devolve upon the President pro tempore of the Senate until the disability is removed. Should there be no Lieutenant Governor, the President pro tempore of the Senate shall become Governor if a vacancy shall occur in the office of Governor and in case of the disability of the Governor, the powers, duties and emoluments of the office shall devolve upon the President pro tempore of the Senate until the disability is removed. His seat as Senator shall become vacant whenever he shall become Governor and shall be filled by election as any other vacancy in the Senate. (Emphasis added.)
Respondent succeeded to the office of Lieutenant Governor by virtue of the Lieutenant Governor becoming Governor pursuant to the resignation of the Governor, which makes the first sentence of
Petitioners argue that
The reasoning suggests the opposite result here because of the significant distinctions that exist between Stearns and this case. One distinction is the Minnesota court‘s determination that the duties of its lieutenant governor and president pro tempore were identical, both belonging strictly to the legislative department of government—neither of them had any power or duty belonging to the executive department. However, the Pennsylvania Lieutenant Governor is a member of the executive department whereas the President pro tempore‘s duties are solely legislative.4 Further, the Minnesota court noted that its constitution only implied that vacancies may either be permanent or temporary. The court reasoned that “if the Constitution recognizes both permanent and temporary vacancies in the offices of governor and lieutenant governor, such fact has an important bearing on the question whether the president pro tempore ceases to be a senator when he becomes a lieutenant governor.” Id., 72 Minn. at 211-212, 75 N.W. at 212.
The Majority reasons that the fourth sentence of
Both briefs here have offered for consideration some of this constitutional amendment‘s legislative history, which we may consider even where a statute is unambiguous. United States ex rel. Tillery v. Cavell, 294 F.2d 12, 15 (3d Cir.1961). Although committee and legislative commission reports may be considered, the remarks of individual legislators in debate are not relevant for the obvious reason that they represent only one person‘s view and not that of a proposing body or an enacting body. Martin[‘s] Estate, 365 Pa. 280, 283, 74 A.2d 120, 122 (1950); National Transit Co. v. Boardman, 328 Pa. 450, 197 A. 239 (1938); Tarlo‘s Estate, 315 Pa. 321, 172 A. 139 (1934). See also
1 Pa.C.S. § 1939 .
Id., 407 A.2d at 109. The Pennsylvania Supreme Court did not equivocate on this subject in Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 532, 193 A. 46, 48-49 (1937):
The constitutional debates of 1873 were quoted to sustain that case [Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924)]. See No. 5 Debates of the Constitutional Convention of 1873, pp. 9-14. Such statements must be understood to be merely the personal opinion of individual members of the Convention. What the Convention adopted, and what the electors of the commonwealth accepted, is the Constitution as it is written, and its clear meaning cannot be distorted to fit the views of those particular delegates. It must be assumed that the people who voted upon the Constitution gave to the words employed their common and ordinary significance. Justice Paxson in Commonwealth v. Balph, 111 Pa. 365
at page 380, 3 A. 220, 229 pointed this out forcefully:
‘In the consideration and discussion of this section of the constitution we throw out of view the copious citations which have been furnished us from the debates in the convention. They are of value as showing the views of individuals members, and as indicating the reasons for their votes; but they give us no light as to the views of the large majority who did not talk; much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face.’
Even if the Court were permitted to consider the delegates’ statements, as the Majority presumes, they merely represent isolated and conflicting expressions which do not resolve the issue in this case. Specifically, the Majority latches onto one delegate‘s reference to “then only” shall the President pro tempore vacate his Senate seat, when discussing his accession to the office of governor. This language was not included nor otherwise incorporated into the final version of the amendment voted upon by the people. In addition, one delegate questioned whether a senator would not vacate his office if he is “acting as Lieutenant Governor merely,” after which unanimous consent was made. This statement supports the view that a temporary devolution of the Lieutenant Governor‘s powers and duties upon the President pro tempore does not and should not require him to vacate his Senate seat. Nonetheless, the fourth sentence pertains in the event no Lieutenant Governor exists and the President pro tempore is required to become Governor as specified in the third sentence. When that event occurs the President pro tempore must then vacate his Senate seat. This case, however, does not involve the President pro tempore becoming Governor.
The framers of the Constitution intended for the President pro tempore to permanently become the Lieutenant Governor under specified circumstances, and they provided for this to occur by the language that they used. Compare People ex rel. Parks v. Cornforth, 34 Colo. 107, 81 P. 871 (1905) (constitutional provision used the same language [“duties and powers shall devolve on“] to require president pro tempore to act as lieutenant governor in case of temporary or permanent vacancy in the lieutenant governor‘s office, and if framers had intended for president pro tempore to “become” lieutenant governor de jure upon resignation of the governor, then framers would have said so). Thus, under the standard enunciated in Cleckley, if the President pro tempore becomes the permanent or de jure Lieutenant Governor the President pro tempore should vacate his senatorial offices.
The Majority‘s ruling, for the first time in Pennsylvania history, permits a person to hold permanently more than one high public office in separate branches of government in direct contravention of the Constitution. Moreover, even the Senate recognized the improbability of one Senator holding the offices of President and President pro tempore when the Senate determined the procedures it would follow in the absence of both of these officers. See n.4 supra. Notwithstanding its own rules, it is highly conceivable that the Senate, under the Majority‘s view, could allow a Senator serving simultaneously as President pro tempore, Lieutenant Governor and President of the Senate to cast a vote as Senator and President pro tempore on the one hand and in the event of a tie vote to cast a second vote as Lieutenant Governor and President of the Senate to break that tie. The Majority does not fully ap-
In its response to this dissent, the Majority adds more text from the 1873 constitutional debates on Article IV, § 6. It then proclaims: “[I]t is clear from these debates that, the delegates were concerned with the problem of certain individuals using predominately federal office to be nominated as candidates and ‘elect themselves‘.... Slip op. at 15, n6. Aside from the Supreme Court‘s admonition that debates from the 1873 constitutional convention hold no value or relevancy when construing provisions of the Constitution, Margiotti, the Majority‘s conclusion is wholly unsupported.
The Majority takes further liberty with the Constitution in responding to the dissent by injecting the rule that the Lieutenant Governor as President of the Senate may vote to break a tie only on procedural rather than substantive matters. Thus the potential for dual voting is of no moment. Nowhere in the text of
This Court recognized the possibility that the President of the Senate could have broken a tie vote that would have occurred in the event a newly elected Senator had not voted on his own seating. Jubelirer v. Singel, 162 Pa. Cmwlth. 55, 61 n. 4, 638 A.2d 352, 355 n. 4 (1994). It is beyond debate that a vote to break a tie on the seating of a Senator represents a substantive as opposed to a procedural question. Thus the Majority‘s declaration that the Lieutenant Governor as President of the Senate may only break a tie in procedural matters is once again wholly unsupported by the Constitution and represents yet another example of the Majority‘s attempt to rewrite the Constitution.
Commonwealth Court of Pennsylvania.
Decided Jan. 7, 2002.
Argued Dec. 4, 2001.