J.B. O'Neill, Jr. v. PA Fish and Boat Commission

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph B. O’Neill, Jr., :

Petitioner :

:

v. :

:

Pennsylvania Fish and Boat :

Commission, : No. 550 M.D. 2024

Respondent : Submitted: September 9, 2025

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE FIZZANO CANNON FILED: October 10, 2025

Petitioner, Joseph B. O’Neill, Jr. (O’Neill), pro se, filed a petition for

review and, subsequently, an amended petition for review (Amended Petition for

Review), in this Court’s original and appellate jurisdiction. Respondent,

Pennsylvania Fish and Boat Commission (Commission), has filed preliminary

objections (POs) to the extent O’Neill’s claims in the Amended Petition for Review

lie in our original jurisdiction. The Commission has filed an “Application for Relief

Seeking to Quash Amended Petition for Review: Appeal of final Order of

Government Agency: Request for Declaratory Judg[]ment and Action in

Mandamus” (Application to Quash) to the extent O’Neill’s claims in the Amended

Petition for Review lie in our appellate jurisdiction.1 After thorough review, we

sustain the POs in part and overrule them in part, grant the Application to Quash,

and dismiss the Amended Petition for Review with prejudice.

1

O’Neill filed an application for relief asking this Court to strike the Commission’s brief

as untimely. We denied the application to Strike, by order dated May 22, 2025.

I. Background

The gravamen of O’Neill’s Amended Petition for Review is his demand

that the Commission enact a regulation through which increased salaries will be paid

to Water Conservation Officers and Assistant Regional Supervisors. O’Neill filed

the Amended Petition for Review in this Court’s dual jurisdiction (1) seeking to

appeal the Commission’s rejection of O’Neill’s “Proposed revised new 58 Pa. Code

§ 51.14 to be promulgated under 30 Pa.C.S. § 304” (Second O’Neill Letter Petition);

(2) seeking, in mandamus, to have this Court compel the Commission to take certain

actions related to the Second O’Neill Letter Petition; and (3) alleging violations of

Section 709 of the Pennsylvania Sunshine Act (Sunshine Act),2 65 Pa.C.S.

§ 709(c.1), and certain rights under the Pennsylvania Constitution. O’Neill’s

appellate and original jurisdiction claims all relate to the Commission’s treatment of

the Second O’Neill Letter Petition.

On June 24, 2024, O’Neill submitted a letter to the Commission titled

“Petition for Regulation pursuant to 58 Pa. Code § 58.6” (First O’Neill Letter

Petition) seeking the implementation of a regulation requiring that increased salaries

be paid to Water Conservation Officers and Assistant Regional Supervisors.

Reproduced Record (R.R.) at 2a-6a.3 On July 8, 2024, Commission staff replied,

also by letter (First Commission Response), stating that the First O’Neill Letter

Petition conflicted with applicable Commonwealth law, was not acceptable under

2

65 Pa.C.S. §§ 701-716.

3

In citing the Reproduced Record, we conform to the numbering format prescribed by Rule

2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173, with which O’Neill did

not fully comply.

2

58 Pa. Code § 51.6(b)(2),4 and was being returned to O’Neill. See Id. at 7a. The

First Commission Response further indicated that what O’Neill was requesting

4

Section 51.6 of the Commission’s regulations provides, in pertinent part:

§ 51.6. Petitions or requests for regulations.

(a) Form. Petitions or requests for regulations addressed to the

Commission shall be submitted in the format set forth in 1 Pa. Code

§ 35.18 (relating to petitions for issuance . . . of regulations).

(b) Initial staff review.

(1) The staff will review every petition for regulations to

ensure that:

(i) It is complete as required by 1 Pa. Code § 35.18.

(ii) The petition requests an action within the

authority or jurisdiction of the Commission.

....

(2) If the staff determines the petition is not acceptable for

one of the reasons set forth in paragraph (1), it will return the

petition to the petitioner together with a statement of the

reason why it is not acceptable.

(c) Oral presentation. A petitioner will be given the opportunity to

make a 5-minute oral presentation on a petition that the staff

determines is appropriate for further consideration. The oral

presentation will be scheduled for the next meeting of the

Commission occurring more than 30 days after completion of the

initial staff review.

(d) Commission determination. After the oral presentation, the

Commission will determine whether or not to accept the petition

for further review. The Commission may refuse to accept the

petition when one or more of the following conditions exist:

....

(3) The action is not appropriate for rulemaking by the

Commission.

58 Pa. Code § 51.6 (emphasis added).

3

would not typically qualify as a regulation. Id. The First Commission Response

also posited that the Commission already had authority generally under 30 Pa.C.S.

§ 3045 to take the requested actions in accordance with the Policemen and Firemen

Collective Bargaining Act, commonly known as Act 111.6 Id. The First

Commission Response stated that the Commission was in negotiations with the

Fraternal Order of Police, Conservation Police Officers’ Lodge No. 114 (Lodge

114),7 and shared O’Neill’s concerns about compensation. Id.

O’Neill then filed the Second O’Neill Letter Petition on July 30, 2025.

R.R. at 13a-15a. The Second O’Neill Letter Petition addressed the salaries of

Waterway Conservation Officers and Assistant Regional Supervisors in more detail

and suggested a salary for both of those positions that the Commission should deem

“a fair and decent Step 1 starting annual wage[.]” Id. at 14a. By letter of September

18, 2024 (Second Commission Response), Commission staff indicated that the

Second O’Neill Letter Petition was not acceptable and was being returned to O’Neill.

Id. at 16a-17a. Specifically, the Second Commission Response explained that,

although the Commission is responsible for hiring Waterways Conservation Officers

and fixing their salaries, it does so based on the classification and compensation

plans established by the Executive Board pursuant to 30 Pa.C.S. § 304(a).8 Id.

5

30 Pa.C.S. § 304 relates to the appointment and setting of compensation for waterways

patrolmen and employees.

6

Act of June 24, 1968, P.L. 237, No. 111, as amended, 43 P.S. §§ 217.1-217.12.

7

Lodge 114 filed an Application to Intervene in the action pursuant to Pennsylvania Rule

of Appellate Procedure 1531, Pa.R.A.P. 1531. This Court denied intervention by Order dated July

21, 2025.

8

Section 304(a), governing appointments and compensation, provides:

4

On September 30, 2024, O’Neill filed a “Petition for Review and

Appeal of Actions of Staff” (Board Appeal) with the Commission’s Board of

Commissioners (Board) seeking to appeal the Second Commission Response,

specifically the Commission staff’s statement that the Second O’Neill Letter Petition

was “not acceptable.” R.R. at 22a-32a. O’Neill asked to have the Second O’Neill

Letter Petition placed on the next meeting of the full Board for consideration. Id. at

31a. After receiving the Board Appeal, the Commission reached out to O’Neill

through its attorney in an October 4, 2024 letter (Appeal Response) indicating that,

“to save resources and unnecessary costs related to an appeal,” O’Neill would be

permitted to give a five-minute oral presentation regarding the Second O’Neill Letter

Petition during the Board’s October 21, 2024 meeting. Id. at 56a. The Appeal

Response further indicated that the Second O’Neill Letter Petition would be placed

on the Board’s agenda “for a vote by the Board of whether or not to accept the

[Second O’Neill Letter Petition] for further review as outlined in [58 Pa. Code

§ ]51.6(d).” Id. The Appeal Response referred to an earlier discussion between

O’Neill and the Commission’s attorney and reminded O’Neill to “file the signed

statement stating that [his] complaint ha[d] been satisfied and requesting dismissal

in accordance with 1 Pa. Code § 35.41.”9 Id. O’Neill responded with a letter headed

The executive director, with the approval of the [C]ommission,

shall, in accordance with law and the classification and

compensation plans of the Commonwealth as established by the

Executive Board, appoint and fix the compensation of such number

of waterways patrolmen and other employees as the commission

deems necessary to enforce and carry out the provisions of this title

and perform the functions and work of the [C]ommission.

30 Pa.C.S. § 304(a).

9

Section 35.41, governing satisfaction of complaints, provides: “If the respondent satisfies

a formal complaint either before or after answering, a statement to that effect signed by the

5

“Re: Satisfaction of Complaint / Appeal of Determinations of Staff” (Board Appeal

Dismissal Request) in which O’Neill indicated that, in light of the Commission’s

stated willingness to proceed regarding the Second O’Neill Letter Petition “in

accordance with 58 Pa. Code § 51.6 and 1 Pa. Code § 35.18,” O’Neill was requesting

dismissal of his Board Appeal without prejudice. R.R. at 57a. In essence, the

Commission was agreeing to treat the Second O’Neill Letter Petition as though staff

had forwarded it to the Commission for an oral presentation, following which the

Board would determine whether or not to accept the Second O’Neill Letter Petition

for further review. See 58 Pa. Code § 51.6(b)-(d).

At the Commission meeting on October 21, 2024, the Board members

voted in favor of granting the Board Appeal Dismissal Request and allowed O’Neill

to give his presentation concerning the Second O’Neill Letter Petition. Certified

Record (C.R.) at 191-98 (Notes of Transcript, 10/21/24 Board Meeting). At the

conclusion of the presentation, the Board went into an executive session to discuss

the matter further. Id. at 199-200. When the Board reconvened the public meeting,

the Board president asked whether there was a motion to accept the Second O’Neill

Letter Petition for further review. When no motion was heard, the president

indicated that the motion failed and made the following statement (Board

Statement), a portion of which is the subject of the instant Amended Petition for

Review:

[T]he Board . . . support[s] our Waterway Conservation

Officers and their right to collectively bargain. We

support fair and equitable compensation for all employees,

including Waterway Conservation Officers. And we have,

opposing parties shall be filed, setting forth when and how the complaint has been satisfied and

requesting dismissal.” 1 Pa. Code § 35.41.

6

and we will continue to express that position to the Office

of Administration.

That being said, the [C]ommission has the authority to

create rules and regulations for fishing to aid in the better

protection, preservation and management of fish and

boating and the management and operation of boats. The

[C]ommission does not have the authority to create rules

and regulations regarding [C]ommonwealth employee

compensation.

Id. at 200-01 (emphasis added).

By Notice issued December 3, 2024, this Court recognized the dual

nature of O’Neill’s Petition for Review.

The appellate aspect of the Amended Petition for Review seeks to

appeal the last portion of the Board Statement as a final order. Amended Petition for

Review (1/9/2025) ¶¶ 40-41. In our original jurisdiction, O’Neill seeks declaratory

and mandamus relief and alleges violations of the Sunshine Act and certain

individual rights under the Pennsylvania Constitution.

In Counts 1 through 5, O’Neill alleges that by allowing him to make a

five-minute presentation on the Second O’Neill Letter Petition, the Commission was

stipulating that the Second O’Neill Letter Petition was appropriate and met all

applicable regulatory criteria. O’Neill also avers that the Commission erred in

determining that the Second O’Neill Letter Petition conflicted with Commonwealth

laws and that the Commission failed to perform a legally required duty when the

Board did not vote on the Second O’Neill Letter Petition.

In Count 6, O’Neill alleges that by failing to include copies of the Board

Appeal Dismissal Request and the Second O’Neill Letter Petition in the meeting

7

agenda packet and then holding impromptu executive sessions on both, the

Commission violated Section 709(c.1) of the Sunshine Act, 65 Pa.C.S. § 709(c.1).10

In Counts 7 and 8, O’Neill alleges that the Commission has deprived

O’Neill of certain individual rights under the Pennsylvania Constitution.

Specifically, O’Neill alleges a deprivation of the right to petition under article I,

10

Section 709(c.1), governing notice of agency business to be considered at a public

meeting, provides:

(1) In addition to any public notice required under this section, an

agency shall provide the following notification of agency business

to be considered at a meeting as follows:

(i) If the agency has a publicly accessible Internet website,

the agency shall post the agenda, which includes a listing of

each matter of agency business that will be or may be the

subject of deliberation or official action at the meeting, on

the website no later than 24 hours in advance of the time of

the convening of the meeting.

(ii) The agency shall post the agenda, which includes a

listing of each matter of agency business that will be or may

be the subject of deliberation or official action at the

meeting, at the location of the meeting and at the principal

office of the agency.

(iii) The agency shall make available to individuals in

attendance at the meeting copies of the agenda, which

include a listing of each matter of agency business that will

be or may be the subject of deliberation or official action at

the meeting.

(2) This subsection shall not apply to a conference or a working

session under section 707 (relating to exceptions to open meetings)

or an executive session under section 708 (relating to executive

sessions).

65 Pa.C.S. § 709(c.1).

8

section 2011 and the right to “clean air, pure water, and to the preservation of the

natural, scenic, historic and esthetic values of the environment[]” afforded to him by

article I, section 27.12

II. Issues

The Commission’s POs assert (1) lack of subject matter jurisdiction,

(2) lack of standing, (3) failure to state a cognizable claim in mandamus, (4) failure

to state a cognizable claim for declaratory judgment, and (5) failure to state a

cognizable claim for a violation of the Sunshine Act.

The Commission’s Application to Quash asserts that O’Neill cannot

seek review of the Commission’s failure to entertain the Second O’Neill Letter

Petition, because there was no adjudication or final order by the Commission from

which to seek review. The Commission also argues that O’Neill is not aggrieved by

the Commission’s failure to act on the Second O’Neill Letter Petition – an argument

similar to the PO asserting lack of standing.

11

Article I, section 20 provides: “The citizens have a right in a peaceable manner to

assemble together for their common good, and to apply to those invested with the powers of

government for redress of grievances or other proper purposes, by petition, address or

remonstrance.” Pa. Const. art. I, § 20.

12

Article I, section 27 provides:

The people have a right to clean air, pure water, and to the

preservation of the natural, scenic, historic and esthetic values of the

environment. Pennsylvania’s public natural resources are the

common property of all the people, including generations yet to

come. As trustee of these resources, the Commonwealth shall

conserve and maintain them for the benefit of all the people.

Pa. Const. art. I, § 27.

9

O’Neill, in addition to opposing the Commission’s POs and the

Application to Quash, requests, in his Application to Strike, that this Court strike the

Commission’s brief as untimely filed.

III. Discussion

A. Subject Matter Jurisdiction

1. Appellate Jurisdiction

We first address the Commission’s challenge to our subject matter

jurisdiction. Counts 1 through 5 of the Amended Petition for Review seek appellate

review of the Commission’s disposition of the Second O’Neill Letter Petition. We

agree with the Commission, however, that its mere failure to move forward to

consider the Second O’Neill Letter Petition was not an adjudication and did not

result in the issuance of a final appealable order.

Section 763(a)(1) of the Judicial Code provides that this Court has

jurisdiction over, inter alia, direct appeals from final orders of Commonwealth

agencies. 42 Pa.C.S. § 763(a)(1). Similarly, to be appealable, an agency’s activity

must constitute an “adjudication,” which is defined by Section 101 of the

Administrative Agency Law,13 2 Pa.C.S. § 101, as a “final order, decree, decision,

determination or ruling by an agency affecting personal or property rights,

privileges, immunities, duties, liabilities or obligations of any or all of the parties to

the proceeding in which the adjudication is made.” See Doheny v. Dep’t of Transp.,

Bureau of Driver Licensing, 171 A.3d 930, 935 n.12 (Pa. Cmwlth. 2017), aff’d

without op., 187 A.3d 246 (Pa. 2018) (observing that “[i]t is well-settled that if an

13

2 Pa.C.S. §§ 101, 501-508 & 701-704.

10

agency action is not an ‘adjudication,’ then it is not subject to judicial review by way

of appeal”) (additional quotation marks and citation omitted).

As quoted more fully above, the Commission’s applicable regulation

provides that where, as here, the Commission receives a petition asserting a request

for a regulation, the request is initially reviewed by staff to determine whether, inter

alia, the petition is complete and requests an action within the Commission’s

authority or jurisdiction. 58 Pa. Code § 51.6(b)(1). If not, staff will return the

request after the initial staff review with a statement of why it is not being accepted

for further consideration. 58 Pa. Code § 51.6(b)(2); see also supra at 3 n.3 (quoting

Section 51.6 in pertinent part). The Commission followed that procedure here.

Nothing in the Commission’s governing statute or regulations confers a right to a

hearing or an adjudication relating to a request for a regulation.

Nevertheless, after O’Neill’s submission of the Board Appeal, the

Commission elected to expedite the resolution of the matter by allowing O’Neill to

provide a five-minute oral presentation on the Second O’Neill Letter Petition. The

Commission’s regulation provides for such a presentation where the staff determines

a petition is appropriate for further consideration. 58 Pa. Code § 51.6(c). Here, the

Commission agreed to allow O’Neill to offer an oral presentation despite the staff’s

initial review and rejection of the Second O’Neill Letter Petition, and O’Neill agreed

to withdraw the Board Appeal. In effect, the Commission agreed to treat the Second

O’Neill Letter Petition as though staff had forwarded it for an oral presentation.

Contrary to O’Neill’s position, the Commission was not thereby agreeing to accept

the Second O’Neill Letter Petition for further consideration. The Commission

agreed only to allow an oral presentation under Section 51.6(c) of its regulations.

11

Once an oral presentation has been made, the regulation contemplates

a determination by the Commission whether it will accept the petition for further

review. 58 Pa. Code § 51.6(d). The Commission may refuse to accept the petition

where, inter alia, the requested action is not appropriate for rulemaking by the

Commission. Id. The Commission properly followed that procedure in this case.

When O’Neill’s request for a regulation was presented, the Board discussed it in

executive session, but upon reconvening the public meeting, failed to receive a

motion to accept the Second O’Neill Letter Petition for further consideration.

This Court has held that the actions of the Commission in adopting and

promulgating a regulation is not an appealable adjudication or determination and,

accordingly, is not a proper subject of this Court’s appellate jurisdiction. Laurel

Lake Ass’n, Inc. v. Pa. Fish & Boat Comm’n, 710 A.2d 129, 133 (Pa. Cmwlth. 1998);

see also Ins. Co. of N. Am. v. Ins. Dep’t, 327 A.2d 411, 414 (Pa. Cmwlth. 1974)

(stating, under prior law, that “[n]o right of appeal is provided under the

Administrative Agency Law from the mere promulgation of a regulation”). The

logical corollary to this holding is that the Commission’s failure to adopt a regulation

likewise cannot constitute an appealable adjudication.

In addition, as set forth above, to be a final order and thereby subject to

appeal, an agency’s adjudication must “affect[] personal or property rights,

privileges, immunities, duties, liabilities or obligations of any or all of the parties to

the proceeding in which the adjudication is made.” 2 Pa.C.S. § 101 (emphasis

added). Here, however, the Second O’Neill Letter Petition sought promulgation of

a Commission regulation to increase the minimum starting salaries of certain

Commission employees. O’Neill, who was the only party before the Commission,

is not among those employees, none of whom were parties to the Second O’Neill

12

Letter Petition. Therefore, the outcome O’Neill sought would not have affected the

rights of anyone who was a party. For that additional reason, the Commission’s

refusal to accept the Second O’Neill Letter Petition for further consideration was not

an agency adjudication subject to appellate review by this Court.

Accordingly, there is nothing before this Court that can be subjected to

appellate review. We conclude that we lack appellate subject matter jurisdiction

regarding the Commission’s failure to accept the Second O’Neill Letter Petition for

further consideration after O’Neill’s oral presentation. This Court lacks appellate

subject matter jurisdiction over Counts 1 through 5 of the Amended Petition for

Review, all of which relate to the Commission’s failure to accept the Second O’Neill

Letter Petition. O’Neill’s Application to Quash is granted, and his requests for

appellate review in Counts 1 through 5 are quashed.

2. Original Jurisdiction

The Commission posits that this Court also lacks original subject matter

jurisdiction because O’Neill is seeking review of the Commission’s failure to accept

the Second O’Neill Letter Petition for further consideration after his oral

presentation at a Board meeting. We conclude that we have original jurisdiction

over the subject matter of the Amended Petition for Review.

Section 761(a)(1) of the Judicial Code14 provides that “[t]he

Commonwealth Court shall have original jurisdiction of all civil actions or

proceedings[ a]gainst the Commonwealth government, including any officer

thereof, acting in his official capacity. . . .” 42 Pa.C.S. § 761(a)(1). Here, O’Neill

seeks declaratory and/or mandamus relief regarding the Commission’s alleged duty

14

42 Pa.C.S. §§ 101-9913.

13

to consider the Amended Petition for Review and to act on it in a public meeting.

Both kinds of claims are within this Court’s original jurisdiction. See

Commonwealth v. Donahue, 98 A.3d 1223, 1233 (Pa. 2020) (holding that a

declaratory judgment action against a Commonwealth agency is “squarely within

the scope of the Commonwealth Court's original jurisdiction”); Saunders v. Dep’t of

Corr., 749 A.2d 553, 555 (Pa. Cmwlth. 2000) (observing that the Commonwealth

Court has original jurisdiction over mandamus actions against administrative

agencies). Accordingly, we overrule the Commission’s POs challenging this Court’s

original jurisdiction over O’Neill’s claims.

B. Standing

This Court has explained the requirements for standing as follows:

Under traditional standing, a party must be aggrieved by

the matter he challenges. W[illiam] Penn Parking Garage,

Inc. v. City of Pittsburgh, . . . 346 A.2d 269 ([Pa.] 1975)

(plurality). To establish aggrievement, a party must show

an interest that is substantial, direct and immediate. Id. A

substantial interest means the party suffers a discernible

adverse effect to an interest other than the interest of all

citizens in compliance with the law. Id. A direct interest

means the party shows the matter complained of caused

harm to his interest. Id. Lastly, relating to the causal

connection, the party must show the interest is immediate

and not a remote consequence of the matter complained

of. Id.

Scarnati v. Dep’t of Env’t Prot., 220 A.3d 723, 728 (Pa. Cmwlth. 2019), aff’d, 240

A.3d 536 (Pa. 2020), abrogated in part on other grounds by In re Nomination

Petition of deYoung, 903 A.2d 1164, 1168 n.5 (Pa. 2006).

14

O’Neill is not an employee of the Commission, but a volunteer.15 He

asserts no interest as to which the Commission’s failure to enact the requested

regulation would create “a discernible adverse effect . . . other than the interest of all

citizens . . . .” Scarnati, 220 A.3d at 728. Moreover, he fails to aver facts indicating

an immediate causal connection, rather than a remote relationship, between allegedly

inadequate salaries and the Commission’s allegedly insufficient personnel for

effective enforcement of its regulations. We conclude, therefore, that O’Neill has

failed to plead facts to establish that he has standing to pursue his claims against the

Commission.

C. Demurrer – Salary Regulations

Section 322 of the Commission’s governing statute, the Fish and Boat

Code,16 provides generally that “[t]he [C]ommission may promulgate rules and

regulations concerning: (1) Fishing to aid in the better protection, preservation and

management of fish [and] (2) Boating and the management and operation of boats.”

30 Pa.C.S. § 322. More specifically, Section 2102 authorizes the Commission to

enact various regulations for the protection, preservation, and management of fish

and fish habitat, including, inter alia, fishing seasons, fish sizes, transport and sale

of fish, creel sizes, and traps, seines, and other devices for catching fish. 30 Pa.C.S.

§ 2102.

15

Section 327(d)(1) & (4) of the Fish and Boat Code provides that volunteers are not

employees of the Commonwealth and “shall not be assigned to any full-time or wage position that

is covered by any labor agreement, presently filled, vacant or authorized in the [C]ommission.”

30 Pa.C.S. § 327(d)(1) & (4).

16

30 Pa.C.S. §§ 101-7314.

15

Section 302(a) of the Fish and Boat Code authorizes the Commission,

with the approval of the Governor, to set the compensation of the Commission’s

Executive Director. 30 Pa.C.S. § 302(a). Section 304(a) authorizes the

Commission’s Executive Director, with the approval of the Commission, to set

employee compensation “in accordance with law and the classification and

compensation plans of the Commonwealth . . . .” 30 Pa.C.S. § 304(a).

However, nothing in any of these statutory provisions authorizes the

Commission to set the minimum starting salary of its employees by regulation. To

the contrary, the Commission’s employee salaries are governed by a collective

bargaining agreement, the current version of which is effective through June 30,

2028.17 Thus, we agree with the Commission that it lacks authority to consider the

Second O’Neill Letter Petition.

D. Demurrer – Sunshine Act

O’Neill contends that the Commission violated Section 709(c)(1) of the

Sunshine Act by failing to include copies of the Board Appeal Dismissal Request

and the Second O’Neill Letter Petition in the meeting agenda packet and then

holding impromptu executive sessions on both. We agree with the Commission that

this count of the Amended Petition for Review fails to set forth a claim on which

relief can be granted.

As quoted at length above, Section 709(c)(1) sets forth the public notice

requirements for agency meetings. See 65 Pa.C.S. § 709(c)(1). Nothing in that

section relates to copies of written materials other than providing meeting attendees

17

The Commission’s current collective bargaining agreement can be accessed online at

https://www.pa.gov/content/dam/copapwp-pagov/en/hrmoa/documents/employee-relations/cba-

md/documents/cba-fop-fish-boat-2024-2028.pdf (last visited October 9, 2025).

16

with copies of the meeting agenda. Moreover, O’Neill fails to acknowledge that

Section 709(c)(2) expressly excepts executive sessions from the notice requirements

of Section 709(c)(1). See 65 Pa.C.S. § 709(c)(2). O’Neill does not assert that the

executive session was not held regarding permissible subject matter or that any

decision was improperly made during the executive session. See generally 65

Pa.C.S. § 708 (governing executive sessions). Accordingly, O’Neill has failed to

plead any violation of the Sunshine Act.

E. Demurrer – Constitutional Claims

Article I, section 20 confers a right upon citizens to petition government

for proper purposes. Pa. Const. art. I, § 20. However, nothing in article I, section

20 confers a right to an adjudication where a citizen petitions a government agency

asking that agency to exercise its legislative power in a specific manner. Here,

O’Neill wants the Commission to give further consideration to his request for a

Commission regulation that would increase the minimum starting salary for certain

Commission employees. However, O’Neill does not cite any pertinent authority

conferring on him a right to formal consideration, much less a final adjudication,

under article I, section 20.

Article I, section 27 of the Pennsylvania Constitution, commonly

known as the Environmental Rights Amendment (ERA), declares the right of

Pennsylvanians to clean air and water and to the preservation of the natural, scenic,

historic, and aesthetic resources. Pa. Const. art. I, § 27. This provision makes the

Commonwealth the trustee tasked with the protection and preservation of these

resources. Id. This Court has explained, however:

Because it is the Commonwealth, not individual agencies

or departments, that is the trustee of public natural

17

resources under the ERA, and the Commonwealth is

bound to perform a host of duties beyond implementation

of the ERA, the ERA must be understood in the context of

the structure of government and principles of separation of

powers. In most instances, the balance between

environmental and other societal concerns is primarily

struck by the General Assembly, as the elected

representatives of the people, through legislative action.

See Nat’l Solid Wastes Mgmt. Ass’n v. Casey, . . . 600 A.2d

260, 265 ([Pa. Cmwlth.] 1991), aff’d, . . . 619 A.2d 1063

([Pa.] 1993) (holding that the Governor can only execute

laws and the balance required by the ERA was achieved

through legislative enactments). While executive branch

agencies and departments are, from time to time, put in the

position of striking the balance themselves, they do so

only after the General Assembly makes “basic policy

choices” and imposes upon the agencies or departments

“the duty to carry out the declared legislative policy in

accordance with the general provisions of the statute.”

MCT Transp., Inc., v. Phila. Parking Auth., 60 A.3d 899,

904 (Pa. Cmwlth.), aff’d sub nom. MCT Transp., Inc. v.

Phila. Parking Auth., . . . 81 A.3d 813, and aff’d sub nom.

MCT Transp., Inc. v. Phila. Parking Auth., . . . 83 A.3d 85

([Pa.] 2013) (quotation omitted).

Funk v. Wolf, 144 A.3d 228, 235 (Pa. Cmwlth. 2016), aff’d, 158 A.3d 642 (Pa. 2017).

Stated otherwise, the ERA does not speak in absolute terms, either regarding the

duty imposed on the Commonwealth as trustee or regarding an individual citizen’s

right to relief. Id. The General Assembly must balance the interests to be protected

under the ERA with all the other interests of Pennsylvania’s citizens. Id.

Here, O’Neill fails to point to any constitutional, statutory, or regulatory

provision that would empower him to compel the Commission to undertake the

enactment of a regulation raising employee salaries with the indirect goal of

complying with the ERA. Accordingly, we sustain the Commission’s demurrer to

O’Neill’s constitutional claims.

18

IV. Conclusion

Based on the foregoing discussion, we sustain the Commission’s PO

asserting lack of subject matter jurisdiction for claims asserted in this Court’s

appellate jurisdiction as to Counts 1 through 5. We overrule the Commission’s PO

asserting lack of original jurisdiction. We sustain the Commission’s POs in the form

of demurrers. We grant the Commission’s application for relief seeking quashal of

O’Neill’s claims asserted in this Court’s appellate jurisdiction. We dismiss

O’Neill’s Amended Petition for Review with prejudice.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

19

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph B. O’Neill, Jr., :

Petitioner :

:

v. :

:

Pennsylvania Fish and Boat :

Commission, : No. 550 M.D. 2024

Respondent :

ORDER

AND NOW, this 10th day of October, 2025, the preliminary objection

(PO) of Respondent, Pennsylvania Fish and Boat Commission (Commission)

asserting lack of subject matter jurisdiction over the Amended Petition for Review

by Petitioner, Joseph B. O’Neill, Jr. (O’Neill) regarding claims asserted in this

Court’s appellate jurisdiction are SUSTAINED as to Counts 1 through 5. The

Commission’s PO asserting lack of original jurisdiction is OVERRULED. The

Commission’s POs in the form of demurrers to O’Neill’s statutory and constitutional

claims are SUSTAINED.

The Commission’s application for relief seeking quashal of O’Neill’s

claims asserted in this Court’s appellate jurisdiction is GRANTED.

O’Neill’s Amended Petition for Review is DISMISSED with prejudice.

__________________________________

CHRISTINE FIZZANO CANNON, Judge