*1 Joseph PILCHESKY, Petitioner RENDELL, Governor,
Edward State Mellow, Robert Democratic
Senator Leader, Representative
Caucus Wm.
DeWeese, Majority Leader, House Pa. Tempore,
State Senate President Pro Representa- House of Speaker
tives Dennis City City
O’Brien, Counsel of the
Scranton, Mayor Doherty of Chris Scranton, University Inc., Respondents. Pennsylvania.
Commonwealth Court of July on Briefs 2007.
Submitted Aug.
Decided *2 December, 2002, May-
Complex. In City to the or of Scranton forwarded to request Council a for ordinance of Side approve the transfer the South Authori- Complex Redevelopment to the ty Redevelopment Au- of Scranton. The thority a memorandum of un- prepared derstanding convey Complex University of Scranton. City passed the ordinance and Council Act 52 of the General enacted Joseph Pilchesky, petitioner, pro se. 2003, authorizing the transfer free and Scranton, Tierney, respon- F. James for proper- clear of Act 70 restrictions. The dent, State Senator Robert Mellow. Jona- University ty conveyed finally was to the Bloom, Philadelphia, respon- than F. for November, dents, Representative and Wm. DeWeese 1-2) (Slip. Op., p. of Representatives Speaker House of constitu- petition The amended raises Anthony Dennis O’Brien. R. Holtz- challenges passage tional to the of Act 52 man, Harrisburg, respondent, for Pa. State challenges of and also Tempore. Senate Pro Alan P. President pass of Scranton to the Ordi- Schoen, Scranton, respondent, Mayor for authorizing nance the transfer of the South Hinton, Jr., Doherty. Timothy J. Chris Complex (Complex). petition The in- Side University respondent, for of (1) challenge cludes three counts: Scranton, Inc. constitutionality alleg- Act 52 it of because edly violates Art. Section 27 of the COLINS, Judge, and BEFORE: Pennsylvania pertaining to FRIEDMAN, KELLEY, and Judge, (Count (2) I); rights environmental a chal- Judge. Senior lenge by that Act 52 is ultra vires virtue of unconstitutionality of the Act alleged Judge OPINION BY COLINS. Art.l, the common and Joseph Pilchesky has filed an amended by law doctrine set forth declaratory for petition seeking review in Board Trustees Supreme Court relief, judgment injunctive to which Philadelphia Museums v. Trustees Respondents preliminary have filed ob- Pa. University Pennsylvania, 251 jections which the Court will now address.1 (1915), 96 A. referred to as the Public Judge succinctly As Feudale not- Senior (Count (3) II); and Trust Doctrine of 1915 ed, this matter involves City’s passage ordinance autho- the transfer of a 10-acre rizing the transfer is unconstitutional (Count III). that was known as the “South Side Com- ultra vires pur- plex.” Complex, which was 1. Governor Rendell funds, “Project chased in 1977 with 70” public park and car- Rendell’s ob was dedicated as Governor fails to jections to the use of the assert ried restrictions as Court, Court, pre- by ing on the merits of the single-judge that this 1. This in a decision 9, 2007, objections, likely decide that Judge liminary would Senior Feudale dated March injunctive jurisdiction over the Com- Pilchesky’s request relief the Court lacks denied review, Respondents. after conclud- monwealth in his initial As the may ring during session debates. state a claim for which the Court out, grant point Supreme relief and that the averred facts do our House Parties that Act Pil- legit- not establish 52 has affected activity that all stated unique give in a manner to him legislative sphere is imately falls within standing peti- to assert the claims Thus, *3 subject if the protected. taxpayer standing. agree tion or with We of integral part constitutes “an the deliber- position pleaded the Governor’s that the process process ative and communicative facts are insufficient to state a claim in by participate which members commit- notes, against him. As the Governor Pil- respect to proceedings tee and House with pleaded only has that Ren- Edward rejection passage the consideration and or capacity dell is the Governor and in that he proposed legislation respect of or with signed Senate Bill 850 into without law places constitution other matters which the inquiring Complex first whether the was House,” jurisdiction of either within the protected by public seeking a trust or an Eastland United States Servicemen’s opinion Attorney of the regarding General Fund, 491, 504, 1818, 44 U.S. 95 S.Ct. constitutionality the of Senate Bill 850. (1975), L.Ed.2d 324 will not factual simply These averments are insuffi- subject particular legislative branch or any liability cient to establish part on the to suit. In this its individual members Governor, Pilchesky and has cited to case, lim- petition the amended avers facts legal authority no proposition that legitimate ited to within the activities governor a duty inqui- has a to make such sphere legislative of activities. signing legislation. ries before Because nothing avers more than that the House of Pilchesky has failed to a state claim and Representatives, members O’Brien Rendell, against Governor we will sustain in participated legisla- and DeWeese this preliminary objection and we not need process. petition tive The fact that address remaining objec- the Governor’s provision avers that Act 52 violates a of pertaining standing. tion Accordingly, Pennsylvania does not Constitution we will dismiss the in preclude Speech of and application Pilchesky has brought against the Gover- Debate Clause.2 nor.
Although Pilchesky argues that the indi- 2. The House Representatives, Speaker vidual their oath of of- members violated O’Brien, the House Dennis M. and immunity exception fice—an under the Majority Leader H. William DeWeese Speech and Debate Clause—he has not
(House Parties) any in his facts asserted amended support Although that contention. House Parties’ ob require promise oath does of office jections asserting they include one that are an the Penn- elected official not to violate immune from suit under the and Speech sylvania it be ludicrous Debate would Clause of the Consti tution, to conclude that a member of the General Speech Art. Section 15. The Assembly by violated the protects Debate Clause the House and its Constitution that re- merely engaging legislative process members not from actions occur- of Lack- 2. We note that the inclusion of the House action. in the Court of Common Pleas unnecessary County judicial entity ju- completely for Pilche- awanna that has Parties is —a sky unconstitutionality particular to assert his claim of risdiction to address these constitu- oppor- tionality presence under Art. Section 27. He had the without the issues tunity to raise the exact same issues in his General and its members. open space, historic and Complex of a law that a suits the enactment under the purposes recreational might ultimately conclude violates 22, 1964, of the Act of June P.L. provision. The enactment constitutional 3946.1-3946.22, Project §§ P.S. might be found to violate constitutional Borrowing Act. Acquisition in Land provision, participation but a member’s more, City acquired dispute not There is no that the process, simply without does under the Pro- the land for the constitute a violation of oath office. 20(b) Act, 72 ject 70 Act. Section reject argument legislation We 3946.20(b), provides § limitations on P.S. through is enacted a constitutional property acquired the alienation of by later determined a court process but is by that owners of such directing the Act provision to violate a constitutional renders *4 may dispose not of the land with- process property itself unconstitu- the enactment Assembly. subject approval out the of the General hold otherwise could tional. To provision makes clear that Assembly members of the to We believe General acquired which challenges for countless similar Act, property Project under the could legitimate legislative sphere. within the if property only of the the General dispose Democratic 8. Senate Caucus permit- Assembly legislation first enacted Leader Robert Mellow exactly That what ting the transfer. is Act 52 did. in For the reasons stated above our objections of preliminary discussion of the agree that Art. Section 27 is We also Parties, Senator the House we will sustain First, implicated. not the General Assem- objections raising preliminary Mellow’s bly adopted Project pursuant 70 Act Pennsyl- Speech and Debate of the Clause of our In another Article Constitution. Pilchesky Although vania Constitution. addition, that the averments do we believe misrepre- avers that Senator Mellow made a support finding not that the is during concerning sentations debates Sen- contemplated by “natural resource” as ate Bill he has asserted no facts that Art.l, 27. We see no need Section rule of the provide exception to the of this issue. further discussion immunity providing to members for Clause during statements made the course of de- are cor Finally, respondents bate in the Senate.3 public law trust doc rect that the common legisla in apply light does not trine The Senate
A concerning Complex. tive enactments Assembly pursuant acted Pilchesky’s that The General The Senate asserts VIII, authority Art. Section 15 of cause of action its petition fails to state a in Senate, enacting that Act 52 the Constitution against arguing Act, Project approved and it Art 27. We does not violate under that Act. Assembly acquisition property dedicated agree. The General Senate, respondent. The petition as an individual Tempore of the ed 3. The President Pro rely specifically elected not to on similarly Senate has asserted the defense, objec- in its Speech and Debate Clause Speech and Debate Clause as Accordingly, petition. objec- amended preliminary tions to the will sustain this this Court tion, demurrer, upon grounds which it although we will consider other we included in his preliminary objections naming agree Pilchesky, relies in its while note and Pilchesky’s against that caption in the of his amended dismissal Mr. Scarnati him in his amend- institution. no where includes of Common transferred to the General acted are Because County. of Lackawanna the first instance under its constitutional Pleas (in Project authority adopting
Act), pur- acted the second instance (ap- Act
suant to its under the
proving property), the transfer of the we fails to
conclude that the amended against
state a claim the Senate. will sus- upon foregoing,
Based we preliminary objection
tain the as- Senate’s serting has failed to state a In APPEAL OF the BALDWIN Re: may grant claim for which we relief. Be- FROM the DECISION Dat- SCHOOL cause we have sustained the July 22, ed 2004 OF ZONING objections of the Commonwealth-related BOARD LOWER HEARING OF respondents and dismissed the Counts MERION TOWNSHIP. against respondents, those we must also jurisdiction conclude that we have no Neighbors Appeal for the Re- In Re: preliminary objections address the *5 sponsible Development of Baldwin Ac- respondents.4 non-Commonwealth July from the decision dated cordingly, we must transfer this Zoning Hearing Board of Low-
the Court of Common Pleas of Lackawan- Township. er Merion County. na Appeal Neighbors of: for the Judge KELLEY Senior concurs Development Responsible result. of Baldwin. ORDER Pennsylvania. Commonwealth Court NOW, day August AND this 13th (1) preliminary objections Ed- 11, 2007. Submitted on Briefs June (2) Rendell, Represen- ward the House of Aug. 2007. Decided (3) tatives, O’Brien, Speaker Dennis (4) DeWeese, Majority H. William Representatives, Leader of the House of
(5) (6) Senate, Mellow, Robert Minori- (7)
ty Leader of the Senate and Tempore Pro President
Senate, are sustained. Because the Court jurisdiction over the Petitioner’s
lacks against remaining respondents, hereby remaining claims
we
direct that the
provision in his amend-
opposition to
never mentioned this
In memorandum of law in
his
Therefore,
preliminary objections, Pilchesky
has as-
we
that Pil-
petition.
conclude
ed
regarding the le-
serted an additional claim
claim.
properly raised this
has not
Ill,
gality
32 of the
of Act 52—Art.
Commonwealth,
Stilp