M.J. Brouillette v. T. Wolf, Governor

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew J. Brouillette and Rep. :

James Christiana and Benjamin :

Lewis, :

:

Petitioners :

:

v. : No. 410 M.D. 2017

: Argued: September 13, 2018

Thomas Wolf, Governor and Joseph :

Torsella, Treasurer and Eugene :

DePasquale, Auditor General and :

The Commonwealth of Pennsylvania :

and Michael Turzai, Speaker of the :

House of Representatives and Dave :

Reed, House Majority Leader and :

Joseph B. Scarnati, III, President Pro :

Tempore of the Senate and Jake :

Corman, Senate Majority Leader and :

The Pennsylvania General Assembly, :

:

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE WOJCIK FILED: July 2, 2019

Before the Court are the various preliminary objections (POs) filed by

Respondents1 to the amended petition for review (Amended Petition) filed by

1

Four sets of POs were filed by the following Respondents: (1) Thomas Wolf, Governor

of Pennsylvania (Governor), and the Commonwealth of Pennsylvania (Commonwealth)

(Footnote continued on next page…)

Matthew J. Brouillette, Representative James Christiana, and Benjamin Lewis

(collectively, Petitioners) challenging the constitutionality of some of the actions

taken by Respondents with regard to the state budget for fiscal years (FY) 2016-17

and FY2017-18.2 Senate Respondents have also filed an Application to Dismiss

for Mootness (Application). We overrule the POs in part, sustain the POs in part,

grant the Application, and dismiss the Amended Petition.

Petitioners filed the three-count Amended Petition alleging that

Respondents have violated various constitutional provisions by establishing

unbalanced budgets and authorizing loans to cover deficits that extended beyond

the relevant fiscal years. With regard to FY2016-17, Petitioners allege that the

General Operating Fund Budget closed with a $1.55 billion deficit in violation of

Article 8, Section 12(a)3 and Section 13(a) of the Pennsylvania Constitution4 and

(continued…)

(collectively, Commonwealth Respondents); (2) Joseph Torsella, Treasurer (Treasurer); (3) Jake

Corman, Senate Majority Leader, and Joseph B. Scarnati, III, President Pro Tempore of the

Senate (Senate Respondents); and (4) Michael Turzai, Speaker of the House of Representatives,

and Dave Reed, House Majority Leader (House Respondents). To a large extent, the POs

overlap. Respondent Eugene DePasquale, Auditor General (Auditor General), did not object, but

instead filed an answer to the Amended Petition and a notice of non-participation in these

proceedings.

2

See Section 617(a) of the Administrative Code of 1929 (Administrative Code), Act of

April 9, 1929, P.L. 177, as amended, added by the Act of September 27, 1978, P.L. 775, 71 P.S.

§237(a) (“The fiscal year shall be the period beginning on July 1 of each calendar year and

ending on June 30 of the calendar year next succeeding.”).

3

Article 8, Section 12(a) provides:

Annually, at the times set by law, the Governor shall submit to

the General Assembly:

(Footnote continued on next page…)

2

(continued…)

(a) A balanced operating budget for the ensuing fiscal year setting

forth in detail (i) proposed expenditures classified by department

or agency and by program and (ii) estimated revenues from all

sources. If estimated revenues and available surplus are less than

proposed expenditures, the Governor shall recommend specific

additional sources of revenue sufficient to pay the deficiency and

the estimated revenue to be derived from each source[.]

Pa. Const. art. VIII, §12(a).

Likewise, Section 613(1) of the Administrative Code states, in pertinent part:

As soon as possible after the organization of the General

Assembly, but not later than the first full week in February of each

year, . . . the Governor shall submit to the General Assembly

copies of original agency budget requests and all subsequent

revised agency budget requests and a State budget and program

and financial plan embracing:

(1) A balanced operating budget for the ensuing fiscal year setting

forth in detail:

(i) The amounts recommended by him to be appropriated to the

General Assembly, the Judicial Department, the Governor, and the

several administrative departments, boards, and commissions of

the State Government, and to institutions within the State, and for

all public purposes, classified by department or agency and by

program.

(ii) The estimated revenues or receipts from any and all sources,

and an estimated amount to be raised by taxation or otherwise,

including proposals for new revenues and receipts.

71 P.S. §233(a)(1). See also Section 701(g) of the Administrative Code, 71 P.S. §241(g) (“The

Governor shall have the power and it shall be his duty . . . [t]o submit to the General Assembly a

State budget[.]”).

3

Section 618(a) of the Administrative Code.5 To fulfill the Commonwealth’s debt

obligations, Petitioners claim that the Governor, Treasurer, and Auditor General

approved a $750 million line of credit in August 2017, which was used, in part, to

address the $1.55 billion deficit from the prior fiscal year. Because of this

borrowing, Petitioners contend that Respondents violated Article 8, Section

7(a)(2)(ii) of the Pennsylvania Constitution.6 In addition, Petitioners claim that as

revenues failed to materialize, the General Assembly and the Governor had a duty

to cut spending to ensure a fully funded budget. This resulted in a deficit, which

Petitioners refer to as an “unfunded loan” that “illegally followed the

Commonwealth” into the current fiscal year. Amended Petition ¶51.

(continued…)

4

Article 8, Section 13(a) provides, “Operating budget appropriations made by the

General Assembly shall not exceed the actual and estimated revenues and surplus available in the

same fiscal year.” Pa. Const. art. VIII, §13(a).

5

71 P.S. §238(a). Section 618(a) states, in pertinent part:

(a) The Department of Revenue in conjunction with the Secretary

of the Budget shall make revenue estimates for the use of the

Governor in preparing the budget with periodic revisions until the

final estimate is signed by the Governor not later than the time he

signs the general appropriations bill. The revenue estimates used

to sign any appropriation bill shall show separately State revenues,

Federal funds, and, if specifically appropriated, funds from other

sources. The Governor shall item veto any part of any

appropriation bill that causes total appropriations to exceed the

official estimate plus any unappropriated surplus.

6

Article 8, Section 7(a)(2)(ii) states, “The Governor, State Treasurer and Auditor

General, acting jointly, may . . . incur debt for the purpose of refunding other debt, if such

refunding debt matures within the term of the original debt.” Pa. Const. art. VIII, §7(a)(2)(ii).

4

Additionally, Petitioners assert that this deficit was then compounded

by the enactment of the budget for the FY2017-18 when the General Assembly

passed a $31.38 billion General Appropriations Bill, which became law when the

Governor failed to act on it. At the time of its passage, there was no revenue

package in place to fund it. Petitioners maintain that the expenditures exceeded

actual and estimated revenues in violation of the Constitution. Finally, Petitioners

argue that the Governor had the authority and the duty under Article 4, Sections

157 and 16 of the Pennsylvania Constitution8 to veto the budget, in whole or in part,

but failed to do either.

7

Article 4, Section 15 provides, in relevant part:

Every bill which shall have passed both Houses shall be presented

to the Governor; if he approves he shall sign it, but if he shall not

approve he shall return it with his objections to the House in which

it shall have originated, which House shall enter the objections at

large upon their journal, and proceed to re-consider it. If after such

re-consideration, two-thirds of all members elected to that House

shall agree to pass the bill, it shall be sent with the objections to the

other House by which likewise it shall be re-considered, and if

approved by two-thirds of all members elected to that House it

shall be a law . . . . If any bill shall not be returned by the Governor

within ten days after it shall have been presented to him, the same

shall be a law in like manner as if he had signed it, unless the

General Assembly, by their adjournment, prevent its return, in

which case it shall be a law, unless he shall file the same, with his

objections, in the office of the Secretary of the Commonwealth,

and give notice thereof by public proclamation within thirty days

after such adjournment.

Pa. Const. art. IV, §15.

8

Article 4, Section 16 states:

The Governor shall have power to disapprove of any item or

items of any bill, making appropriations of money, embracing

(Footnote continued on next page…)

5

In Count I, Petitioners seek declaratory judgment against the

Governor on the grounds that he violated Article 4, Sections 15 and 16 of the

Pennsylvania Constitution, and Section 618 of the Administrative Code, by not

vetoing all or part of the $31.38 billion General Appropriations Bill for FY2017-18

that exceeded estimated revenue thereby “authorizing the Commonwealth to

appropriate and spend funds that exceeded actual and estimated revenues.”

Amended Petition at 27.

In Count II, Petitioners seek declaratory judgment against the

Governor, Senate Respondents, House Respondents, and the Commonwealth

generally on the grounds that they violated Article 8, Section 13 of the

Pennsylvania Constitution because “the Commonwealth ended [FY2016-17] with a

$1.55 billion deficit,” and “the General Appropriations Bill for [FY2017-18]

violates [Article 8, Section 13] because, at the time of enactment, appropriations

contained therein ‘exceed[ed] the actual and estimated revenues and surplus

available in the same fiscal year[]’ by $600 million.” Amended Petition at 29.

Finally, in Count III, Petitioners seek declaratory relief against the

Governor, the Treasurer, the Auditor General, and the Commonwealth generally

for violating Article 8, Sections 7 and 12 of the Pennsylvania Constitution “by

authorizing lines of credit to fund a $1.55 billion deficit accrued in [FY2016-17]

(continued…)

distinct items, and the part or parts of the bill approved shall be the

law, and the item or items of appropriation disapproved shall be

void, unless re-passed according to the rules and limitations

prescribed for the passage of other bills over the Executive veto.

Pa. Const. art. IV, §16. See also Section 618(a) of the Administrative Code, 71 P.S. §238(a),

supra.

6

. . . that spanned across multiple fiscal years,” and “[t]hat the General

Appropriations Bill for [FY2016-17] violated the Pennsylvania Constitution by

appropriating funds in excess of anticipated revenues, thereby saddling the

Commonwealth with a debt of $1.55 billion without the explicit approval of the

General Assembly.” Amended Petition at 36.

Respondents filed a joint motion to dismiss for mootness alleging that

the subsequent passage of legislation eliminating any deficit from the past and

current fiscal years’ budget and appropriations bills rendered Petitioners’ claims

moot. This Court denied the joint motion on the basis that there are factual matters

in dispute, such as whether the General Operating Fund Budget is currently

balanced, and because Respondents did not explain how the subsequent legislation

mooted the claim that they engaged in long-term borrowing in violation of Article

8, Section 7 of the Pennsylvania Constitution. Brouillette v. Wolf (Pa. Cmwlth.,

No. 410 M.D. 2017, filed December 28, 2017), slip op. at 10.

Respondents also filed four sets of POs.9 Respondents variously

object on the following bases: (1) Petitioners lack capacity to sue (standing); (2)

the Amended Petition is insufficiently specific; and (3) the Amended Petition fails

to conform to the law or rule of court. In addition, Respondents demur on the

following grounds: that the Amended Petition (1) presents a non-justiciable

9

“In ruling on preliminary objections, the courts must accept as true all well-pled facts

that are material and all inferences reasonably deducible from the facts.” Pennsylvania

Independent Oil & Gas Association v. Department of Environmental Protection, 135 A.3d 1118,

1123 (Pa. Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017) (quoting Guarrasi v. Scott, 25 A.3d

394, 400 n.5 (Pa. Cmwlth. 2011)). “However, we ‘are not required to accept as true any

unwarranted factual inferences, conclusions of law or expressions of opinion.’” Id. (quoting

Guarrasi, 25 A.3d at 400 n.5). “To sustain preliminary objections, ‘it must appear with certainty

that the law will permit no recovery’ and ‘[a]ny doubt must be resolved in favor of the non-

moving party.’” Id. (quoting Guarrasi, 25 A.3d at 400 n.5).

7

political question; (2) fails to meet the standard for declaratory judgment; (3) fails

to state a claim against the Commonwealth or the Treasurer; (4) is moot; and (5) is

barred by the doctrine of laches. Respondents also assert that the Senate and

House Respondents are protected by legislative immunity and/or sovereign

immunity. Subsequently, on September 6, 2018, the Senate Respondents filed the

instant Application to dismiss Count II of the Amended Petition for mootness

because no practical relief may be granted for the legal claim presented therein

based on a change in circumstance and the requested relief is not precluded by our

prior opinion.10

I.

A.

As a preliminary matter, Respondents first claim that Petitioners

Brouillette and Lewis do not possess standing to prosecute the instant matter. In

general, the question of standing relates to whether a party is entitled to have the

court decide the merits of a dispute or of particular issues. Warth v. Seldin, 422

U.S. 490, 498 (1975). As the United States Supreme Court has stated:

A federal court cannot “pronounce any statute,

either of a State or of the United States, void, because

irreconcilable with the Constitution, except as it is called

upon to adjudge the legal rights of litigants in actual

controversies.” Have the appellants alleged such a

10

Pa. R.A.P. 1972(a)(4) provides that “any party may move . . . [t]o dismiss for

mootness.” “The mootness doctrine requires that an actual case or controversy must be extant at

all stages of review, not merely at the time the complaint is filed.” Pap’s A.M. v. City of Erie,

812 A.2d 591, 600 (Pa. 2002). “Pa. R.A.P. 1972[(a)](4) permits a party to move for dismissal

for mootness during litigation.” Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009),

aff’d, 992 A.2d 121 (Pa. 2010).

8

personal stake in the outcome of the controversy as to

assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely

depends for illumination of difficult constitutional

questions? This is the gist of the question of standing[.]

Baker v. Carr, 369 U.S. 186, 204 (1962) (citation omitted).

Thus, “in order to have standing, a party must have an interest in the

controversy that is distinguishable from the interest shared by other citizens.

William Penn Parking Garage, Inc. v. City of Pittsburgh, [346 A.2d 269 (Pa.

1975)].” Sprague v. Casey, 550 A.2d 184, 187 (Pa. 1988). To surpass the

common interest shared by other citizens, the interest of a party must be

“substantial, direct and immediate.” Id.

In this case, with respect to all three counts in the Amended Petition,

Petitioners Brouillette and Lewis allege that they have standing in this matter based

on their status as taxpayers in this Commonwealth. See Amended Petition ¶¶8-10,

85-88. Regarding taxpayer standing, this Court has noted:

[T]he parameters of taxpayer standing in this

Commonwealth have been defined by our Supreme Court

in the case of Application of Biester v. Thornburgh, [409

A.2d 848 (Pa. 1979)]. In that case, our Supreme Court

stated that the “purpose of the requirement of standing is

to protect against improper plaintiffs.” Id. [at 851]. In

order to meet this requirement, a plaintiff must allege and

prove an interest in the outcome of the suit, which

surpasses “the common interest of all citizens in

procuring obedience to the law.” Id. [(citation omitted)].

To surpass the common interest of all citizens, the

interest must be substantial, direct, and immediate. Id.

Nevertheless, the Supreme Court recognized that

certain cases exist in which the facts warrant the granting

of standing to taxpayers where their interests arguably

are not substantial, direct and immediate. Biester, [409

A.2d at 852]; Consumer Party of Pennsylvania v.

9

Commonwealth, [507 A.2d 323, 328 (Pa. 1986)]. The

relaxing of those interest requirements in certain cases

where there is little causal connection between the action

complained of and the alleged injury is best explained by

the basic policy considerations underlying taxpayer

standing. Consumer Party, [507 A.2d at 328]. Our

Supreme Court articulated these policy considerations in

Biester as follows:

“The ultimate basis for granting standing to

taxpayers must … be sought outside the normal

language of the courts. Taxpayers’ litigation

seems designed to enable a large body of the

citizenry to challenge governmental action, which

would otherwise go unchallenged in the courts

because of the standing requirement. Such

litigation allows the courts, within the framework

of traditional notions of ‘standing,’ to add to the

controls over public officials inherent in the

elective process the judicial scrutiny of the

statutory and constitutional validity of their acts.”

Biester, [409 A.2d at 851 n.5 (citation omitted)].

In Consumer Party, the Supreme Court held that a

taxpayer seeking standing to sue must allege a

substantial, direct and immediate interest in the outcome

of the suit unless the taxpayer can show:

1. the governmental action would otherwise go

unchallenged;

2. those directly and immediately affected by the

complained of expenditures are beneficially

affected and not inclined to challenge the action;

3. judicial relief is appropriate;

4. redress through other channels is unavailable;

and

5. no other persons are better situated to assert the

claim.

10

Consumer Party, [507 A.2d at 329].

Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115-16 (Pa.

Cmwlth. 1998), aff’d, 757 A.2d 367 (Pa. 2000) (emphasis in original). See also

Fumo v. City of Philadelphia, 972 A.2d 487, 504 (Pa. 2009) (listing the five factors

to be considered in conferring taxpayer standing); Stilp v. Commonwealth, 940

A.2d 1227, 1233 (Pa. 2007) (same).

In Consumer Party, an organization and several citizen-taxpayers

commenced an action in this Court seeking a declaration that the Public Official

Compensation Law11, an act providing for increased compensation to public

officials, was unconstitutionally enacted and unconstitutional in its substantive

provisions. Id. at 326-27. In considering whether the organization and the

taxpayers possessed standing to present these claims, the Pennsylvania Supreme

Court observed:

We believe the circumstances of the instant case

establish the above five factors and therefore warrant the

grant of standing to appellants under the narrow

exception outlined in Biester. This case presents a prime

example of governmental action, which would otherwise

go unchallenged because the very individuals who

enacted the legislation are directly and beneficially

affected and are thus not inclined to challenge the

constitutionality of the legislation. Furthermore, judicial

relief is appropriate since the determination of the

constitutionality of an act is a function ultimately left to

the courts. Moreover, here redress through other

channels is unavailable. There is no administrative

agency which can provide relief and the legislators

themselves are unlikely to provide a meaningful

mechanism for redress. Lastly, there are not other

persons better situated to assert the claim because all

those who are directly and immediately affected by the

11

Act of September 30, 1983, P.L. 160, as amended, 65 P.S. §§366.1 – 366.5b.

11

[Public Official] Compensation Law are beneficially

affected and have not brought, and will not bring a cause

of action. Thus, there are no possible plaintiffs who can

assert a substantial, direct and immediate interest.

Id. at 329 (citations omitted).

Additionally, in Common Cause/Pennsylvania, a number of

organizations commenced an action in this Court seeking a declaration that an act

substantially amending the Public Transportation Law12 and the Vehicle Code13

was unconstitutionally enacted. Id. at 111. In considering whether the

organizations possessed standing to challenge the enactment, we noted:

Based upon the above five factors, we conclude

that the circumstances of the present case warrant the

granting of standing to petitioners. We believe that the

actions taken by the General Assembly in passing HB 67

would likely go unchallenged but for the present

proceeding, because the very individuals who enacted

such legislation are not going to be inclined to challenge

the constitutionality of the process by which [the statute]

was enacted. We further believe that judicial relief may

be appropriate since the ultimate function of the judiciary

is to determine the constitutionality of an act. Moreover,

redress through other channels is unavailable as there is

no administrative agency which can provide relief and

the members of the General Assembly, themselves, are

unlikely to provide a meaningful mechanism for redress.

Finally, we believe that there are no other persons better

situated to assert the constitutional claims which have

been raised in the present case than petitioners.

Id. at 116 (citations omitted).

Similarly, in Seeton v. Pennsylvania Game Commission, 937 A.2d

1028 (Pa. 2007), a taxpayer initiated a mandamus action against the State Game

12

74 Pa. C.S. §§1101-1520.

13

75 Pa. C.S. §§101-9805.

12

Commission (Commission) seeking to compel the Commission to enforce the

Pennsylvania Game and Wildlife Code14 and its regulations to prevent a hunting

preserve’s “canned hunts” in which customers pay a fee to shoot and kill animals

in an enclosed area. The taxpayer filed suit after the Commission determined that

it lacked jurisdiction over the preserve’s canned hunts. Both this Court and the

Supreme Court rejected the Commission’s preliminary objection that the taxpayer

lacked standing to prosecute the matter. As the Supreme Court explained:

In re Biester spoke principally to the importance of

assuring that a government agency’s actions not evade

review for want of an aggrieved party under the limited

terms of traditional standing. As noted, standing under In

re Biester aims to “ensure . . . judicial review which

would otherwise not occur,” when “those directly and

immediately affected by the complained of expenditures

are beneficially affected as opposed to adversely

affected.” 409 A.2d at 852. There appears to be no one

better situated than [the taxpayer] to challenge the non-

enforcement asserted here. Moreover, we perceive no

alternative means to invoke judicial review of the

important question before us. Thus, we find no error in

the Commonwealth Court’s determination that [the

taxpayer] had standing to bring the instant claim.

Seeton, 937 A.2d at 1033.

Thus, in Consumer Party, Common Cause/Pennsylvania, and Seeton,

standing was granted to taxpayers to assert the claims raised therein because

governmental action would likely evade review for want of an aggrieved party.

Likewise, in the instant matter, the Amended Petition alleges that all of the named

Respondents were involved in the budgetary process and its oversight and

implementation underlying the constitutional and statutory claims raised by

14

34 Pa. C.S. §§101-2965.

13

Petitioners Brouillette and Lewis therein. As a result, none of the Respondents are

inclined to challenge their own actions or inactions in this regard. Additionally,

their actions or inactions would otherwise go unchallenged; redress through any

other channels is unavailable; and no other persons are better situated to assert the

claim than Petitioners Brouillette and Lewis as taxpayers.15 Moreover, as outlined

infra, judicial review of the state budgetary process for FY2016-17 and FY2017-18

15

See also Lawless v. Jubelirer, 789 A.2d 820, 826-27 (Pa. Cmwlth.), aff’d, 811 A.2d

974 (Pa. 2002), wherein this Court observed:

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. . . .

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 [] his

capacities [as Lieutenant Governor, President pro tempore of the

Senate, and Senator]. 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.

14

is eminently appropriate. Accordingly, we overrule Respondents’ POs with

respect to Petitioners Brouillette’s and Lewis’s standing to prosecute the instant

Amended Petition. Seeton; Consumer Party; In re Biester; Lawless.

B.

In contrast, Petitioner Christiana is a representative in the

Pennsylvania General Assembly, representing Beaver and Washington Counties.

Amended Petition ¶11. Petitioner Christiana only joins in Count III of the

Amended Petition alleging that the Governor, the Treasurer, the Auditor General,

and the Commonwealth generally violated Article 8, Section 7 of the Pennsylvania

Constitution, based on the purportedly illegal long-term borrowing, and Article 8,

Section 12(a), based on the Governor’s purported submission of an unbalanced

operating budget to the General Assembly, with the assistance of the Treasurer and

the Auditor General. Amended Petition ¶¶110-138. Petitioner Christiana asserts

that he did not vote to authorize the assumption of such debt; the budget deficit

purportedly usurps his authority to vote on whether such debt should be assumed;

and he did not vote to use short-term borrowing to finance continued deficit

spending. Amended Petition ¶¶131, 132, 135.

As the Supreme Court has explained:

[L]egislative standing is appropriate only in limited

circumstances. Standing exists only when a legislator’s

direct and substantial interest in his or her ability to

participate in the voting process is negatively impacted,

see Wilt [v. Beal, 363 A.2d 876 (Pa. Cmwlth. 1976)], or

when he or she has suffered a concrete impairment or

deprivation of an official power or authority to act as a

legislator, see Fumo (finding standing due to alleged

usurpation of legislators’ authority to vote on licensing).

These are injuries personal to the legislator, as a

15

legislator. By contrast, a legislator lacks standing where

he or she has an indirect and less substantial interest in

conduct outside the legislative forum which is unrelated

to the voting or approval process, and akin to a general

grievance about the correctness of governmental conduct,

resulting in the standing requirement being unsatisfied.

Id. (rejecting standing where legislators’ interest was

merely disagreement with way administrator interpreted

or executed her duties, and did not interfere with

legislators’ authority as members of the General

Assembly).

Markham v. Wolf, 136 A.3d 134, 145 (Pa. 2016).

Based on the foregoing, and the allegations raised in the Amended

Petition, we hold that Petitioner Christiana has failed to demonstrate the requisite

legislative standing to assert Count III of the Amended Petition. The crux of

Petitioner Christiana’s claims in Count III relate to the purported invalidity of the

actions of the Governor, the Treasurer, the Auditor General, and the

Commonwealth generally, and do not assert an injury that is personal to him while

he was acting in his representative capacity as a legislator. As noted by the

Supreme Court:

[T]hese claims of injury reflect no impact on [the Senate]

Appellants’ right to act as legislators, and are more, in

our view, in the nature of a generalized grievance about

the correctness of governmental conduct. Simply stated,

the assertion that another branch of government—here,

the executive branch through the Governor’s Executive

Order—is diluting the substance of a previously enacted

statutory provision is not an injury which legislators, as

legislators, have standing to pursue.

Markham, 136 A.3d at 145.

Moreover, as outlined above, Petitioners Brouillette and Lewis

possess taxpayer standing to vindicate the purported harms alleged in Count III of

the Amended Petition. See Markham, 136 A.3d at 146 (“[C]hallengers exist who

16

are, from a standing perspective, sufficiently impacted by the Governor’s issuance

of Executive Order 2015-05, as aptly demonstrated by the parties in this

matter . . . .”). Accordingly, we sustain Respondents’ POs with respect to

Petitioner Christiana’s standing, and dismiss him as a party to Count III of the

Amended Petition. Id.

II.

Additionally, as a preliminary matter, the Commonwealth has filed a

PO that it was improperly joined as a party in this case. On review, it is clear that

Petitioners Brouillette and Lewis have erroneously raised claims against the

Commonwealth generally as a party in Counts II and III of the Amended Petition.

As the Pennsylvania Supreme Court has explained:

The Constitution of Pennsylvania provides that the

commonwealth and its agents may only be sued in the

manner, in the courts, and in cases specified by the

General Assembly. Pa. Const. art. 1[,] §11. The General

Assembly has specified that the Commonwealth and its

agents remain immune from suit except when immunity

is specifically waived. 42 Pa. C.S. §8522. “When the

General Assembly specifically waives sovereign

immunity, a claim against the Commonwealth and its

officials . . . shall be brought only [as provided by] Title

42 . . . unless otherwise specifically authorized by

statute.” 1 Pa. C.S. §2310. The General Assembly has

waived sovereign immunity for Commonwealth parties

in limited cases. 42 Pa. C.S. §8522. The General

Assembly has defined a Commonwealth party as a

“Commonwealth agency and any employee thereof, but

only with respect to an act within the scope of his office

or employment.” 42 Pa. C.S. §8501.

This Court has further determined that sovereign

immunity does not apply to “governmental entities other

than the commonwealth itself,” and that government

17

entities may not avoid suit simply due to their

governmental nature. Specter v. Commonwealth, [341

A.2d 481, 482 (Pa. 1975)]. Implicit in this premise is the

distinction between the Commonwealth and its numerous

subdivisions. Appellees in this case have named the

Commonwealth, to which the legislature has not waived

sovereign immunity, and have failed to name an

appropriate Commonwealth party as to which immunity

has been waived. Amending their complaint to substitute

a Commonwealth party for the Commonwealth amounts

to the addition of a new party and not merely the

correction of a captioned party name.

Tork-Hiis v. Commonwealth, 735 A.2d 1256, 1258 (Pa. 1999).

To this end, Pa. R.C.P. No. 2102(a)(2) provides that, while “[a]n

action by the Commonwealth” may be brought in the name of “the Commonwealth

of Pennsylvania,” an action against a “Commonwealth agency or party” generally

may not. Citing Article 1, Section 11 of the Pennsylvania Constitution and 1

Pa. C.S. §2310, the Official Note to Pa. R.C.P. No. 2102 recognizes that there is

“only” one exception: Where there is a cause of action against the Commonwealth

generally and an express “right of action [against the Commonwealth generally]

has been authorized by statute.” See also Finn v. Rendell, 990 A.2d 100, 105 (Pa.

Cmwlth. 2010) (“The Court also notes that the Commonwealth government and its

various agencies and officers are separate entities and that ‘the Commonwealth of

Pennsylvania, itself, which is clearly not a Commonwealth agency, still enjoys

absolute immunity pursuant to 1 Pa. C.S. §2310.’”) (citation omitted and emphasis

in original).

As a result, Petitioners Brouillette and Lewis improperly joined the

Commonwealth generally as a respondent in the instant matter.16 Accordingly, we

16

Petitioners’ reliance on League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.

2018), Pennsylvania State Association of County Commissioners v. Commonwealth, 52 A.3d

(Footnote continued on next page…)

18

sustain Respondents’ POs with respect to the improper joinder of the

Commonwealth generally, and dismiss it as a party to Counts II and III of the

Amended Petition.

(continued…)

1213 (Pa. 2012), and Stilp v. Commonwealth, 974 A.2d 491 (Pa. 2009), to support the

Commonwealth’s status as a party herein is misplaced. None of these cases involved the

consideration or disposition of a preliminary objection alleging the misjoinder of the

Commonwealth generally as a party, its absolute immunity, or the application of Article 1,

Section 11 of the Pennsylvania Constitution, 1 Pa. C.S. §2310, or Pa. R.C.P. No. 2102.

Additionally, in Finn, cited above, the petitioners sought relief in the form of a writ of

mandamus to compel reimbursement for the salary paid to its full-time district attorney during a

two-year period, and did not assert a claim for monetary damages. See id. at 102. As this Court

explained:

Even assuming, arguendo, that in theory sovereign immunity

would not bar mandamus, the nature of the Commonwealth as an

entity separate from its agencies and officers makes any such

action a practical impossibility. The Commonwealth comprises

three branches of government, each divided into many independent

subparts. . . . A request that the Commonwealth be ordered to do

something begs the question which of the many actors comprising

state government is to be held accountable. Since merely naming

the Commonwealth is insufficient to state a claim against a

Commonwealth party, Tork–Hiis, it would seem self-evident that if

a specific state party can be identified as having a mandatory or

ministerial duty, that party must be the named defendant, both in

order to make out a cause of action in mandamus and to effectuate

enforcement of any ensuing order.

Id. at 105-06. Likewise, in the instant matter, any meaningful declaratory relief that this Court

could provide must be directed to the actions of some identifiable Commonwealth party that

violated some identifiable constitutional or statutory provision rather than to the Commonwealth

generally.

19

III.

With respect to the purported violations of Article 8, Section 12(a) of

the Pennsylvania Constitution and Sections 613(1) and 701(g) of the

Administrative Code as asserted in Counts I, II, and III of the Amended Petition,

the Governor and the Treasurer demur,17 in relevant part, on the basis that

Petitioners Brouillette and Lewis fail to state a valid claim for declaratory relief.

We agree.

Petitions for declaratory judgments are governed by the provisions of

the Declaratory Judgments Act, 42 Pa. C.S. §§7531-7541. Ronald H. Clark, Inc. v.

Township of Hamilton, 562 A.2d 965, 967 (Pa. Cmwlth. 1989). Although the

Declaratory Judgments Act is to be liberally construed, one limitation on a court’s

ability to issue a declaratory judgment is that the issues involved must be ripe for

judicial determination, meaning that there must be the presence of an actual case or

controversy. Ruszin v. Department of Labor and Industry, 675 A.2d 366, 371 (Pa.

Cmwlth. 1996). Thus, the Declaratory Judgments Act requires a petition praying

for declaratory relief to state an actual controversy between the petitioner and the

named respondent. Pennsylvania State Lodge v. Department of Labor and

Industry, 692 A.2d 609, 613 (Pa. Cmwlth. 1997), aff’d, 707 A.2d 1129 (Pa. 1998).

Declaratory judgments are not obtainable as a matter of right. Ronald

H. Clark, Inc., 562 A.2d at 968-69. Rather, whether a court should exercise

jurisdiction over a declaratory judgment proceeding is a matter of sound judicial

discretion. Id. Thus, the granting of a petition for a declaratory judgment is a

matter lying within the sound discretion of a court of original jurisdiction. Gulnac

17

As noted above, the Auditor General did not preliminarily object, but instead filed an

answer to the Amended Petition and a notice of non-participation in these proceedings.

20

v. South Butler School District, 587 A.2d 699, 701 (Pa. 1991). As the

Pennsylvania Supreme Court has stated:

The presence of antagonistic claims indicating imminent

and inevitable litigation coupled with a clear

manifestation that the declaration sought will be of

practical help in ending the controversy are essential to

the granting of relief by way of declaratory judgment. . . .

Only where there is a real controversy may a party

obtain a declaratory judgment.

A declaratory judgment must not be employed to

determine rights in anticipation of events which may

never occur or for consideration of moot cases or as a

medium for the rendition of an advisory opinion which

may prove to be purely academic.

Id. at 701 (citations omitted)

The Amended Petition summarizes the relevant stages of the budget

process as follows. Preparation for the annual budget “begins in approximately

August of the prior fiscal year for which the [b]udget will be adopted,” and the

Office of the Budget (Budget Office) issues Budget Instructions to “administrative

agencies, which are instructions that provide the agencies with detailed guidance in

constructing their budget requests.” Amended Petition ¶¶23, 24. 18 The Governor

18

Section 609(a) of the Administrative Code provides, in pertinent part:

(a) The [Budget Office] is hereby established as an administrative

agency within the Governor’s Office[, which] shall continue to

exercise the powers and perform the duties vested in and imposed

upon the Secretary of the Budget [(Secretary)] and shall be

centrally concerned with the development of the budget request of

the Governor and with the decisions necessary to allocate revenues

among the various Commonwealth programs.

71 P.S. §229(a).

(Footnote continued on next page…)

21

(continued…)

In turn, Section 610, states, in relevant part:

(a) The [Secretary] shall, in each year obtain and prepare

financial and program information necessary for the preparation of

a State budget for the budget year beginning July 1 and for the

preparation for financial and program projections for the budget

year and for four succeeding years. He shall, not later than August

15 of such year distribute to the Governor, to the Lieutenant

Governor, to the Auditor General, to the State Treasurer, to the

Attorney General, to each administrative department, to each

independent administrative board and commission, to the Chief

Clerk of the Senate, to the Chief Clerk of the House of

Representatives, to the State court administrator, and to all

institutions or other agencies which desire State appropriations to

be made to them, the proper instructions and blanks necessary to

the preparation of the budget requests with a notice that such

blanks shall be returned with the information desired, not later than

November 1 of the same year. Such blanks shall be in such form

as shall be prescribed by the [S]ecretary, to procure any or all

information pertaining to the purposes of all programs to be funded

in the budget, the revenues, expenditures, program activities and

accomplishments for the preceding fiscal year, for the current

fiscal year, and for the budget year and for four succeeding years,

the appropriations made for the preceding fiscal year, the

expenditures therefrom, encumbrances thereon, the amount

unencumbered and unexpended, an itemized estimate of the

revenues and expenditures of the current fiscal year, for the budget

year and succeeding years, and an estimate of the revenue amounts

needed and program activity and accomplishment levels for the

respective departments, boards, commissions, for expenses of the

General Assembly, for the Judicial Department, and for any and all

institutions, or other agencies to which appropriations are likely to

be made by the General Assembly for the budget year and ensuing

years. . . . It shall be the duty of each administrative department,

and each independent administrative board and commission to

comply, not later than November 1, with any and all requests made

by the [Secretary] in connection with the budget.

(Footnote continued on next page…)

22

also issues Program Policy Guidelines to administrative agencies to aid in

formulating the proposed budget. Id. ¶25. From October to January, the Budget

Office reviews the agencies’ budget requests to see if they comply with the

Program Policy Guidelines and, following review, the Budget Office makes

recommendations to the Secretary and the Governor. Id. ¶¶27-29, 33. “[B]y

statute and in accordance with the . . . Constitution’s balanced budget requirement,

the combined total of all agency requests must balance with the estimated total

revenues from existing sources; otherwise, new revenue sources must be

recommended.” Id. ¶30 (emphasis in original). Based on the recommendations

and his independent review, the Governor formulates the Executive Budget in

January and submits the proposed budget to a joint session of the General

Assembly in a budget address in February. Id. ¶¶34-35. Article 8, Section 12(a)

and Sections 613 and 701(g) require the Governor to submit a balanced budget that

sets forth in detail proposed expenditures by department, agency, or program, and

(continued…)

(b) The [Secretary] may, under the direction of the Governor,

make further inquiries and investigations as to the financial needs,

expenditures, estimates of levels of program activities and

accomplishments, or revenues, of any department, board,

commission, authority, political subdivision, institution or other

agency receiving money from the State Treasury. The Governor

may, after giving to each department, board or commission an

opportunity to be heard, approve, disapprove or alter the budget

requests. The [Secretary] shall, on or before January 1 next

succeeding, submit to the Governor, in writing, the above

information, and any additional requested by the Governor, as the

basis for the Governor’s requests for appropriations for the next

succeeding year.

71 P.S. §230.

23

estimated revenues from all sources, and require the Governor to recommend

additional sources of revenue if estimated revenue and available surplus are less

than the proposed expenditures. Id. ¶31-32.

Once submitted by the Governor, “the appropriations committees in

both the Pennsylvania House and the Pennsylvania Senate conduct hearings to

assess all funding requests made by administrative agencies.” Amended Petition

¶36. The General Assembly must then draft and enact a General Appropriations

Bill, “which contains appropriations for the executive, legislative, and judicial

departments; for public schools; and for public debt.” Id. ¶38. Article 8, Section

13 requires the General Assembly to adopt such a budget, and appropriations for

the operating budget “shall not exceed the actual and estimated revenues and

surplus available in the same fiscal year,” unless revenue measures are enacted if

necessary to balance the budget. Id. ¶¶37, 42, 43.

In attempting to invoke actionable violations of Article 8, Section

12(a) of the Pennsylvania Constitution19 and Sections 613(1) and 701(g) of the

19

Petitioners Brouillette and Lewis implicate the Treasurer and the Auditor General in

the purported constitutional violation, in relevant part, as follows:

[Article 8, Section 12(a)] clearly and unequivocally places

the onus to present a balanced budget on the Governor. The

Governor, however, does not control the public moneys that make

up the treasury. The Treasurer and the Treasury Department are

entrusted with responsibility for the Commonwealth’s funds. See

[Sections 301 through 303 of the Fiscal Code, Act of April 29,

1929, P.L. 343, as amended,] 72 P.S. §§301-03. Without the

assistance of the Treasurer, the Governor is incapable of managing

the treasury to meet his constitutional mandate. Conversely,

absent the Treasurer’s complicity, the Governor would be unable

to borrow the funds that permitted Pennsylvania’s budget to be

unbalanced for two consecutive fiscal years as Article [8], Section

12 only allows the Governor, Auditor General and Treasurer,

(Footnote continued on next page…)

24

Administrative Code, Petitioners Brouillette and Lewis fail to allege or

demonstrate the necessary connection between the Governor’s proposed Executive

Budget that was submitted to the General Assembly pursuant to the foregoing

provisions, and the ultimate General Appropriations Bills that were enacted by that

body for FY2016-17 and FY2017-18 or any purported debt incurred thereunder.

To this end, Petitioners Brouillette and Lewis assert that “[t]he

General Appropriations Bill reflects the priorities mutually established by the

Governor and the General Assembly through the budgeting process.” Amended

Petition ¶39. Petitioners further contend that the Governor “violated Article [8],

Section 12 . . . by allowing a $31.38 billion General Appropriations Bill to become

law without sufficient revenue sources to fund each appropriation included in the

Bill.” Id. ¶95. However, these are incorrect legal conclusions that may not be

drawn from the budget process as outlined in the Amended Petition.

Indeed, as the Pennsylvania Supreme Court has explained:

Under Article II, Section 1 of our Constitution, the

legislative power of the Commonwealth is vested in the

General Assembly. PA. CONST. art. II, §1. The

legislative power is the power “to make, alter and repeal

laws.” Blackwell v. State Ethics Comm’n, [567 A.2d

630, 636 (Pa. 1989)] (quoting Mount Lebanon v. County

Bd. of Elections, [368 A.2d 648 (Pa. 1977)]; In re

Marshall, [69 A.2d 619, 626 (Pa. 1949)]). Article IV,

(continued…)

acting jointly, to incur debt. Accordingly, the violation of Article

[8], Section 12 that gives rise to this action could not have

occurred without the active participation of the Treasurer.

Petitioners’ Omnibus Brief in Opposition to the Preliminary Objections at 47-48 (emphasis in

original).

25

Section 2 vests “[t]he supreme executive power” in the

Governor, who “shall take care that the laws be faithfully

executed.” PA. CONST. art. IV, §2. The Governor’s

powers include his power to veto legislation to the extent

that this power is vested in him by Sections 15 and 16 of

Article IV. The Governor’s exercise of his veto power is

unique in that it is essentially a limited legislative power,

particularly in the appropriations context. Roddey v.

County Council of County of Allegheny, 841 A.2d 1087,

1091 (Pa. Cmwlth. 2004) (en banc). Although the

Constitution directs the Governor each year to “submit” a

budget to the General Assembly, PA. CONST. art. VIII,

§12, appropriations are to be “made by the General

Assembly,” PA. CONST. art. VIII, §13, and “[n]o money

shall be paid out of the treasury, except on appropriations

made by law,” PA. CONST. art. III, §24. So long as the

General Assembly keeps the budget submitted by the

Governor balanced, see PA. CONST. art. VIII, §13(a), the

Constitution allows the General Assembly to deviate as

much as it wishes from the Governor’s proposals.

“[T]he General Assembly enacts the legislation

establishing those programs which the state provides for

its citizens and appropriates the funds necessary for their

operation[] [while] [t]he executive branch implements

the legislation by administering the programs.” Shapp v.

Sloan, [391 A.2d 595, 604 (Pa. 1978)] (plurality

opinion). This process is “fundamental within

Pennsylvania’s tripartite system.” Id.

In administering the programs funded by the

General Assembly, the executive branch must abide by

all requirements and restrictions of the relevant

legislation and may not spend more than the amount

appropriated by the General Assembly. Id. Moreover,

“[t]he executive branch may not of its own initiative use

funds appropriated for one program in carrying out

another and may not spend on a program more than its

designated amount. It is in this way that the doctrine of

separation of powers functions.” Id.

Jubelirer v. Rendell, 953 A.2d 514, 529-30 (Pa. 2008) (emphasis added).

26

The disconnect between the Governor’s exercise of his authority

under Article 8, Section 12(a) of the Pennsylvania Constitution and Sections

613(1) and 701(g) of the Administrative Code, and the General Assembly’s

enactment of General Appropriations Bills for FY2016-17 and FY2017-18, is

evidenced by the declaratory relief sought by Petitioners Brouillette and Lewis in

the Amended Petition. As indicated above, in Count I, these Petitioners seek a

declaration that the Governor violated Article 4, Sections 15 and 16 of the

Pennsylvania Constitution and Section 618 of the Administrative Code “by

authorizing the Commonwealth to appropriate and spend funds that exceeded

actual and estimated revenues.” Amended Petition at 27.

Additionally, in Count II, they seek a declaration that the Governor,

Senate Respondents, House Respondents, and the Commonwealth generally

violated Article 8, Section 13 of the Pennsylvania Constitution because “the

Commonwealth ended [FY2016-17] with a $1.55 billion deficit,” and “the General

Appropriations Bill for [FY2017-18] violates [Article 8, Section 13] because, at the

time of enactment, appropriations contained therein ‘exceed[ed] the actual and

estimated revenues and surplus available in the same fiscal year[]’ by $600

million.” Amended Petition at 29.

Finally, in Count III, they seek a declaration that the Governor, the

Treasurer, the Auditor General, and the Commonwealth generally violated Article

8, Sections 7 and 12 of the Pennsylvania Constitution “by authorizing lines of

credit to fund a $1.55 billion deficit accrued in [FY2016-17] . . . that spanned

across multiple fiscal years,” and “[t]hat the General Appropriations Bill for

[FY2016-17] violated the Pennsylvania Constitution by appropriating funds in

27

excess of anticipated revenues, thereby saddling the Commonwealth with a debt of

$1.55 billion without the explicit approval of the General Assembly.” Id. at 36.

As outlined above, Petitioners Brouillette and Lewis have failed to

allege an actionable claim regarding the Governor’s purported violations of Article

8, Section 12(a) of the Pennsylvania Constitution and Sections 613(1) and 701(g)

of the Administrative Code, as asserted in Counts I, II, and III of the Amended

Petition, or actionable claims against the Treasurer and Auditor General as well,

and have failed to request any declaratory relief based on these purported

violations. The Amended Petition simply fails to allege or demonstrate that the

Governor’s proposed Executive Budget that was submitted to the General

Assembly pursuant to the foregoing provisions for FY2016-17 and FY2017-18 was

the same as the purportedly unbalanced General Appropriations Bills that were

enacted by the General Assembly for those fiscal years, or that the Treasurer or

Auditor General played any role in the actions enumerated in these provisions.

Moreover, these Petitioners do not ask for any relief with respect to

the Governor’s, the Treasurer’s, or the Auditor General’s purported violation of

these provisions. Thus, any order issued by this Court granting declaratory relief

based on the purported violation of Article 8, Section 12(a) of the Pennsylvania

Constitution and Sections 613(1) and 701(g) of the Administrative Code would be

merely advisory. Accordingly, the POs in the nature of a demurrer with respect to

these claims in Counts I, II, and III of the Amended Petition are sustained, and

these claims are dismissed.

28

IV.

With respect to the Governor’s purported violation of Article 4,

Sections 15 and 16 of the Pennsylvania Constitution and Section 618(a) of the

Administrative Code, as alleged in Counts I and II, the Governor demurs, in

relevant part, on the basis that Petitioners Brouillette and Lewis fail to state a valid

claim for declaratory relief. Again, we agree.

The Pennsylvania Supreme Court has summarized the Governor’s

general veto power under Article 4, Section 15, as follows:

By conferring upon the Governor the authority to

nullify legislation that has passed both legislative houses,

Section 15 entrusts him with the obligation both to

examine the provisions of the legislation within the ten

days allotted by Section 15 and to either approve it or

return it, disapproved, for legislative reconsideration.

Disapproval requires the Governor to furnish the

legislature with his specific objections in order to enable

the legislature to fulfill its reciprocal obligations to

record the Governor’s objections upon the legislative

journal and reconsider the bill. This procedure is

enshrined in our organic charter, and ensures that the

legislature and the public receive notice of the

Governor’s veto and the resulting status of the

legislation. The Governor is thereby an “integral part of

the lawmaking power of the state.” No bill may become

law without first being submitted to the Governor for

approval or disapproval. Although legislative power is

vested in the General Assembly pursuant to Article II of

the Constitution, we have described the Governor’s

authority to veto a bill as a form of “limited legislative

power.”

The Pennsylvania colony inherited the Governor’s

veto power from the King of England. Notably, the

monarch’s frequent use of this lawmaking authority,

which was vested in him as a “constituent if not a

controlling third body of the parliament, in which he

29

might and not infrequently did sit in person,” was set

forth as first among the grievances of the colonies in the

Declaration of Independence. From the colonies, the

veto power passed into nearly all of the American

constitutions, state and federal. However, “[u]nlike the

royal prerogative,” the executive veto is “exercised by a

democratically elected leader pursuant to a clearly

defined constitutional procedure.” Moreover, in

Pennsylvania, the Governor’s veto power is more

constrained than that enjoyed by a number of his peers

or by the President of the United States, in that the

Governor does not have the luxury of inaction. That is,

if Pennsylvania's Governor fails to act upon a bill that

has been passed in both houses, the bill becomes law

without his signature. The “pocket veto” enshrined in

some state constitutions and in the United States

Constitution prevents a bill from becoming law if the

legislature “stands adjourned when the President’s

consideration period comes to a close.[20]

20

The process by which a federal bill is enacted into law has been outlined as follows:

The [United States] Constitution contemplates that every

bill shall receive the consideration of three deliberative parties

before it becomes law. After each House of Congress approves a

bill, it must be presented to the President. If the President signs the

bill, it is law. A bill may become law without the President’s

approval, but only under two circumstances. If the President

vetoes the bill, two-thirds of each house may override his objection

and make the bill law. Alternatively, if the President simply does

not act on the measure within ten days after presentment,

excluding Sundays, and Congress does not adjourn before the ten-

day period ends, the bill becomes law without the President’s

approval. [See Clause 2 of Article 1, Section 7 of the United States

Constitution, U.S. Const. art. I, §7, cl. 2 (“If any Bill shall not be

returned by the President within ten Days (Sundays excepted) after

it shall have been presented to him, the Same shall be a Law, in

like Manner as if he had signed it, unless the Congress by their

Adjournment prevent its Return, in which Case it shall not be a

Law.”).]

(Footnote continued on next page…)

30

Scarnati v. Wolf, 173 A.3d 1110, 1120-21 (Pa. 2017) (citations and footnote

omitted and emphasis added). See also Commonwealth ex rel. Attorney General v.

Barnett, 48 A. 976 (Pa. 1901), in which the Supreme Court stated:

“The power to veto legislation which is conferred upon

the president makes him in effect a third branch of the

legislature. The power is legislative, executive and the

questions presented to his mind are precisely the same as

those the two houses of congress must determine in

passing a bill. Whether the proposed law is necessary or

expedient, whether it is constitutional, whether it is so

framed as to accomplish its intent, and so on, are

questions transferred from the two houses to the

president with the bill itself.”

Id. (citation omitted).

Whether the Governor’s veto power is considered to be the exercise of

either a legislative21 or executive power,22 in the instant matter we are confronted

(continued…)

If Congress stands adjourned when the President’s

consideration period comes to a close, the bill “shall not be a

Law.” [See id.] This passive nullification of a legislative act is

called a pocket veto. Unlike its counterpart the return veto, the

pocket veto does not impose a duty on the President to return the

bill to Congress with his objections. Moreover, Congress does not

reconsider a pocket vetoed bill in the same manner as it would a

return vetoed bill. A bill that is pocket vetoed may be reintroduced

and passed by a simple majority, in contrast to the two-thirds

requirement that applies when a return veto is subject to

reconsideration.

John Houston Pope, The Pocket Veto Reconsidered, 72 Iowa L. Rev. 163-64 (1986) (footnotes

omitted).

21

See Article 2, Section 1 of the Pennsylvania Constitution, Pa. Const. art. II, §1 (“The

legislative power of this Commonwealth shall be vested in a General Assembly, which shall

consist of a Senate and a House of Representatives.”).

31

with the situation in which the General Appropriations Bill for the FY2017-18

budget became law pursuant to Article 4, Section 15 of our Constitution based

upon his failure to exercise either power with respect to its enactment. Indeed, as

outlined above, Article 4, Section 15 provides, in relevant part, “If any bill shall

not be returned by the Governor within ten days after it shall have been presented

to him, the same shall be a law in like manner as if he had signed it[.]” Pa. Const.

art. IV, §15.

As a result, we are unable to grant the requested declaratory relief

because the Governor in no way “violated the Pennsylvania Constitution . . . by

authorizing the Commonwealth to appropriate and spend funds that exceeded

actual and estimated revenues.” Amended Petition at 27.23 To the contrary, the

(continued…)

22

See Article 4, Section 2 of the Pennsylvania Constitution, Pa. Const. art. IV, §2 (“The

supreme executive power shall be vested in the Governor, who shall take care that the laws be

faithfully executed[.]”).

23

See Amended Petition ¶76 (“Governor Wolf had the authority and the obligation to

take corrective action before he allowed the $32 billion appropriations package to become law.”)

(emphasis in original); id. ¶77 (“When the $31.38 billion General Appropriations Bill was

presented to him, Governor Wolf had both the authority and the duty to (i) veto the Bill entirely

or (ii) use the item veto to reduce appropriations to a level commensurate with actual and

estimated revenues.”); id. ¶95 (“Specifically, Governor Wolf violated . . . Article IV, Section 16,

by allowing a $31.38 billion General Appropriations Bill to become law without sufficient

revenue sources to fund each appropriation included in the Bill.”); id. ¶98 (“Governor Wolf

allowed the $31.38 billion General Appropriations Bill to become law without adequate revenues

to fund it.”); Petitioners’ Omnibus Brief in Opposition to the Preliminary Objections at 52

(“Despite Governor Wolf’s argument, Petitioners’ claims do not challenge the Governor’s

discretionary authority to use his veto power. The relief sought does not seek to compel

Governor Wolf to take any action. Rather, it merely asks this Court to determine whether the

Governor’s competing constitutional obligations require him to employ his veto power to prevent

the enactment of an unconstitutional balanced budget.”); id. at 53-54 (“The Amended Petition []

does not ask this Court to compel the Governor to take any specific actions, which is a

(Footnote continued on next page…)

32

Governor “authorized” nothing with respect to the General Appropriations Bill for

the FY2017-18 budget; the bill became law by operation of law pursuant to Article

4, Section 15 of the Pennsylvania Constitution based on the Governor’s inaction

within the enumerated period of time. There is no language within this

constitutional provision that requires the Governor to exercise this power in any

particular manner24 including a duty to determine the constitutionality of a bill with

which he is presented that has been duly enacted by the General Assembly or

compelling him to exercise his veto authority due to the purported

unconstitutionality of that bill. This Court has explained:

As the Governor notes, [the petitioner] has pleaded only

that [he] is the Governor and in that capacity he signed

Senate Bill 850 into law without first inquiring whether

the Complex was protected by a public trust or seeking

an opinion of the Attorney General regarding the

constitutionality of Senate Bill 850. These factual

averments are simply insufficient to establish any

liability on the part of the Governor, and [the petitioner]

has cited to no legal authority for the proposition that a

governor has a duty to make such inquiries before

signing legislation.

Pilchesky v. Rendell, 932 A.2d 287, 289 (Pa. Cmwlth. 2007). Thus, the only

limitation within this constitutional provision is the time period within which the

(continued…)

prerequisite for mandamus relief. . . . Petitioners only request this Court to define and interpret

the Governor’s constitutional and statutory obligations in light of the balanced budget mandate.”)

(emphasis in original).

24

See, e.g., Stilp, 974 A.2d at 495 (“[A] constitutional provision is to be interpreted

insofar as possible in terms of its spirit and intention. Furthermore, such a provision is to be

interpreted in its popular sense as understood by the people who adopted it. The ‘ultimate

touchstone, nevertheless, must remain the language of the Constitution itself.’”) (citations

omitted).

33

Governor may exercise the power conferred thereby. Moreover, the same rationale

holds true for Petitioners’ claims with respect to the Governor’s failure to exercise

his item veto power under Article 4, Section 16. See Jubelirer, 953 A.2d at 528

(“[W]here two provisions of our Constitution relate to the same subject matter,

they are to be read in pari materia.”) (citations omitted).

Finally, regarding the purported violation of Section 618(a) of the

Administrative Code, as stated above, that provision states, in relevant part:

(a) The Department of Revenue in conjunction with the

Secretary of the Budget shall make revenue estimates for

the use of the Governor in preparing the budget with

periodic revisions until the final estimate is signed by

the Governor not later than the time he signs the

general appropriations bill. . . . The Governor shall item

veto any part of any appropriation bill that causes total

appropriations to exceed the official estimate plus any

unappropriated surplus.

71 P.S. §238(a) (emphasis added).

However, the Amended Petition fails to allege that the Governor

signed either the final estimate provided by the Department of Revenue and the

Secretary for the FY2017-18 budget, or that he signed the General Appropriations

Bill for that fiscal year. As a result, contrary to Petitioners’ assertion, the express

provisions of Section 618(a) are not implicated in this case and Petitioners’ claim

to the contrary is likewise without merit. Accordingly, the POs in the nature of a

demurrer with respect to the claims in Counts I and II that the Governor violated

Article 4, Sections 15 and 16 of the Pennsylvania Constitution and Section 618(a)

of the Administrative Code are sustained, and these claims are dismissed.

34

V.

With respect to the General Assembly’s and the House and Senate

Respondents’ purported violation of Article 8, Section 13 of the Pennsylvania

Constitution, the Amended Petition alleges, in relevant part, that spending in the

General Appropriations Bill for FY2016-17 enacted by the General Assembly, and

approved by the Governor, exceeded actual revenues resulting in a deficit of $1.55

billion. Amended Petition ¶¶50, 51. During FY2016-17, the Commonwealth

borrowed $2.5 billion on a line of credit from the Treasury, using $400 million in

August of 2016 and $1.2 billion in September of 2016. Id. ¶52. On June 30, 2017,

the General Assembly enacted a $31.38 billion General Appropriations Bill for

FY2017-18. Id. ¶57. Because expenditures exceeded actual and estimated

revenues, subsequent legislation was enacted that purportedly supplied additional

revenue sources to balance the FY2017-18 budget, such as the Act of October 30,

2017, P.L. 419 (Act 42 of 2017); the Act of October 30, 2017, P.L. 672 (Act 43 of

2017); and the Act of October 30, 2017, P.L. 725 (Act 44 of 2017). Id. ¶58. See

also Act of October 30, 2017, P.L. 379 (Act 40 of 2017).25 As a result, for the

period of four months between the enactment of the General Appropriations Bill

for FY2017-18 and the enactment of the subsequent legislation in October of 2017,

expenditures exceeded actual and estimated revenues rendering the

Commonwealth’s budget out of balance in violation of, inter alia, Article 8,

Section 13 of the Pennsylvania Constitution. Id. ¶¶59, 61.

However, as indicated above, Senate Respondents have filed another

Application to Dismiss for Mootness, limiting the relief sought to dismissal of

25

It is well settled that this Court will take judicial notice of public statutes. In re Annual

Controller’s Reports for Years 1932, 1933, 1934, 1935 and 1936, 5 A.2d 201, 204 (Pa. 1939).

35

Count II of the Amended Petition rather than outright dismissal of the entire

Amended Petition as in the earlier joint motion to dismiss. Senate Respondents

note that “the relief Petitioners seek in Count II – as framed in their own Amended

PFR – is directed exclusively at the 2016 Budget and the 2017 Budget, both of

which are now legally and practically inoperative,” so that “‘there is nothing for

the Court to remedy’ and no meaningful relief is possible as to Count II[.]”

Application ¶¶20, 21.

Moreover, Senate Respondents contend, our December 2017

Memorandum Opinion denying the prior joint motion to dismiss is not controlling

because our holding therein “is necessarily limited to Count III of the Amended

[Petition],” and that “Count II and Count III cannot be analyzed coextensively, as

the two claims are substantively distinct.” Application ¶¶28, 29. 26 With respect to

any factual disputes27 as to whether or not the then effective General Operating

26

In our prior Memorandum Opinion, we explained:

[A]lthough Respondents argue the Amended Petition for Review in

its entirety is moot based upon the passage of subsequent

legislation that purports to balance the budget, they do not explain

how this legislation renders moot the claim that they allegedly

have engaged in long-term borrowing in violation of Article [8],

Section 7. While Respondents do argue that any borrowing that

has occurred does not violate the Constitution, and dispute

Petitioners’ interpretation of the constitutional provisions, such is

not a basis for concluding this claim is moot.

Brouillette, slip op. at 10. Moreover, the substantive claims raised in Count III of the Amended

Petition regarding the purported violation of Article 8, Section 7 of the Pennsylvania

Constitution are addressed on the merits infra.

27

See Brouillette, slip op. at 10 (“[T]here are factual matters in dispute, including

whether or not the General Fund Balance is currently balanced. . . . This Court realizes that

(Footnote continued on next page…)

36

Fund Budget was, in fact, balanced, Senate Respondents claim that “since the 2017

Budget no longer has any legal or practical effect, whatever factual dispute may

have arguably existed with regard to it is now of no moment,” and, “[a]ccordingly,

the December [2017] Memorandum [Opinion] does not affect the present

analysis.” Id. ¶¶34, 35. We agree.

As this Court has stated:

Under the mootness doctrine, “an actual case or

controversy must be extant at all stages of review, not

merely at the time the complaint is filed.” The existence

of a case or controversy requires “a real and not a

hypothetical legal controversy and one that affects

another in a concrete manner so as to provide a factual

predicate for reasoned adjudication. . . .” As the

Pennsylvania Supreme Court explained:

The cases presenting mootness problems involve

litigants who clearly had standing to sue at the

outset of the litigation. The problems arise from

events occurring after the lawsuit has gotten under

way—changes in the facts or in the law—which

allegedly deprive the litigant of the necessary stake

in the outcome.

Pa. R.A.P. 1972[(a)](4) permits a party to move for

dismissal for mootness during litigation. It is well settled

that the courts “do not render decisions in the abstract or

offer purely advisory opinions.” Judicial intervention “is

appropriate only where the underlying controversy is real

and concrete, rather than abstract.”

Finally, it must be noted that “[c]onstitutional

questions are not to be dealt with abstractly.” Therefore,

(continued…)

Respondents dispute facts alleged by Petitioners, but those disputes are not properly before this

Court now, and do not provide a basis for concluding that the claims are moot.”).

37

the court should be even more reluctant to decide moot

questions which raise constitutional issues. The court

“prefer[s] to apply the well-settled principles that [it]

should not decide a constitutional question unless

absolutely required to do so.”

Harris, 982 A.2d a 1035 (citations omitted). See also Mistich v. Pennsylvania

Board of Probation and Parole, 863 A.2d 116, 121 (Pa. Cmwlth. 2004)

(“‘[M]ootness, however it may have come about simply deprives us of our power

to act; there is nothing for us to remedy, even if we were disposed to do so. We are

not in the business of pronouncing that past actions which have no demonstrable

continuing effect were right or wrong.’”) (citation omitted).

The Amended Petition in the case sub judice asks this Court to enter

declaratory judgment “That the General Appropriations Bill for FY2016-[17]

violated the requirements set forth in Article [8], Section 13 . . . as the

Commonwealth ended FY2016-[17] with a $1.55 billion deficit,” and “That the

General Appropriations Bill for FY2017-[18] violates the requirements set forth in

Article [8], Section 13 . . . because, at the time of enactment, appropriations

contained therein ‘exceed[ed] the actual and estimated revenues and surplus

available in the same fiscal year[]’ by $600 million.” Amended Petition at 29.

Because the foregoing requested relief would be of no demonstrable

or appreciable effect due to the expiration of the relevant fiscal years; the

subsequent enactment of remedial legislation; the subsequent enactment of a

General Appropriations Bill for FY2018-19; the introduction of General

Appropriation Bills relating to FY2019-20; and the absence of any allegations that

the present or future General Appropriations Bills are affected in any manner by

those at issue or suffer the same purported constitutional infirmities; we conclude

38

that the constitutional claims raised in Count II of the Amended Petition should be

dismissed as moot as an appropriate exercise of judicial restraint.

Indeed, as the Pennsylvania Supreme Court has explained:

[A] legal question can become moot on appeal as a result

of an intervening change in the facts of the case. For

example in Meyer v. Strouse, [221 A.2d 191 (Pa. 1966)]

involving an action in quo warranto, the appellant

appealed from the lower court’s judgment which ordered

his ouster from the office of tax collector. Then the

appeal reached this Court, the appellant’s term of office

had already expired, and this Court held that the

intervening expiration of the appellant’s term of office

rendered the appeal moot. Id. . . .

Similarly, an issue can become moot due to an

intervening change in the applicable law. In Conti v. Pa.

Dep’t. of Labor & Industry, [175 A.2d 56 (Pa. 1961)],

this Court held an appeal to be moot where the question

involved the validity of a minimum wage order executed

by the Secretary of Labor and Industry based upon the

then existing statutory authority and thereafter, during the

pendency of the action, the General Assembly enacted

the Minimum Wage Act of 1961, P.L. 1313. . . .

See [also] Salisbury Twp. v. Sun Oil Co., [179 A.2d 195

(Pa. 1962)] (challenge to ordinance held moot on appeal

due to expiration of ordinance); N. Pa. Pwr. Co. v. Pa.

P.U.C., [5 A.2d 133 (Pa. 1939), overruled on other

grounds, York v. Pa. P.U.C., 295 A.2d 825 (Pa. 1972)]

(constitutional challenge to statute held moot on appeal

due to intervening amendment enacted by legislature)[.]

This Court is even more reluctant to decide moot

questions which raise constitutional issues. Wortex Mills

v. Textile Workers, [85 A.2d 851 (Pa. 1952)]. In Wortex

Mills this Court was asked to decide, as a constitutional

matter, whether peaceful, organizational labor union

picketing was legal; in Wortex Mills the strike which

caused the picketing had ended by the time the appeal

39

reached this Court. In declining to reach the

constitutional question, this Court observed:

“‘Constitutional questions are not to be dealt with

abstractly.’”

Id. at [857], quoting, Bandini Petroleum Co. v. Superior

Ct., 284 U.S. 8, 22 [(1931)]. The United States Supreme

Court has described such judicial reluctance as “the

exercise of judicial restraint from unnecessary decision of

constitutional issues.” Kremens v. Bartley, 431 U.S. 119,

136 [(1977)], quoting, Regional Rail Reorganization Act

Cases, 419 U.S. 102, 138 [(1974)].

The instant appeal presents a situation involving an

intervening change in the factual posture of the case as

well as an intervening change in the applicable law.

In re Gross, 382 A.2d 116, 119-20 (Pa. 1978). See also Mistich, 863 A.2d at 121

(“‘We are not in the business of pronouncing that past actions which have no

demonstrable continuing effect were right or wrong.’”) (citation omitted).

Nevertheless, Petitioners Brouillette and Lewis contend that the

instant matter should not be dismissed because the foregoing claims fall within an

exception to the mootness doctrine, i.e., that the constitutional violations are

capable of repetition, but will likely evade judicial review. See Petitioners’

Memorandum in Opposition to Application to Dismiss for Mootness at 9-18.

However, “[i]t is only in very rare cases where exceptional circumstances exist or

where matters or questions of great public importance are involved, that this court

ever decides moot questions or erects guideposts for future conduct or actions.”

Wortex Mills, 85 A.2d at 857. Moreover, in order for their constitutional claims to

fall within the foregoing exception to the mootness doctrine, Petitioners Brouillette

and Lewis must demonstrate that: “(1) the challenged action was in its duration

too short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a

40

reasonable expectation that the same complaining party w[ill] be subjected to the

same action again.” Mistich, 863 A.2d at 121 n.6 (citing Sosna v. Iowa, 419 U.S.

393 (1975).

In light of the foregoing requirements, it must be noted that Petitioners

filed their initial petition for review in this Court over a year after the General

Assembly’s enactment of the General Appropriations Bill for FY2016-17 and two

and one-half months after the enactment of the General Appropriations Bill for

FY2017-18. Petitioners did not file the instant Amended Petition until nearly two

months later, requested and obtained an extension of time to respond to

Respondents’ preliminary objections to the Amended Petition, ultimately filing

answers more than three months hence. After we scheduled oral argument on

Respondents’ POs for this Court sitting en banc in May of 2018, Petitioners

requested and obtained a continuance of the oral argument to September of 2018.

Petitioners have never sought to expedite the consideration or

disposition of this matter throughout its pendency,28 in fact delaying its

consideration and disposition, while the intervening passage of time and enactment

of legislation rendered moot the foregoing constitutional claims. Like the Superior

Court,

We conclude, therefore, that appellants’ failure to

ask the trial court to stay the proceedings before the order

sought to be reviewed ceased to have any practical effect

rendered any subsequent challenge to the order moot. A

method to seek review of the instant claim before it

became academic existed, and appellants did not avail

See, e.g., Pa. R.A.P. 105(a) (“In the interest of expediting decision, or for other good

28

cause shown, an appellate court may . . . disregard the requirements or provisions of any of these

rules in a particular case on application of a party or on its own motion and may order

proceedings in accordance with its direction.”).

41

themselves of it. Under these circumstances, we find the

instant appeal to be moot and decline to address the

issues belatedly raised herein.

Commonwealth v. Dorler, 588 A.2d 525, 528 (Pa. Super. 1991) (citations omitted).

Further, Petitioners fail to allege or demonstrate that the stated constitutional

infirmity has otherwise occurred in the past, is apparent in the General

Appropriations Bill enacted for FY2018-19 or in the General Appropriation Bills

relating to FY2019-20, or that there is any likelihood of such a constitutional

violation occurring in the future. Under these circumstances, we are not inclined to

apply this rarely invoked exception to the mootness doctrine. Accordingly, the

Application is granted and Count II of the Amended Petition is dismissed as moot.

VI.

Finally, with respect to the Governor’s, Treasurer’s, and Auditor

General’s purported violation of Article 8, Section 7 of the Pennsylvania

Constitution as alleged in Count III, the Governor and the Treasurer demur,29 in

relevant part, on the basis that Petitioners Brouillette and Lewis fail to state a valid

claim for declaratory relief. Again, we agree.

As outlined above, Article 8, Section 7(a)(2)(ii) of the Pennsylvania

Constitution states, “The Governor, State Treasurer and Auditor General, acting

jointly, may . . . incur debt for the purpose of refunding other debt, if such

refunding debt matures within the term of the original debt.” Pa. Const. art. VIII,

§7(a)(2)(ii). In turn, Article 8, Section 7(c) provides, in pertinent part, that “[a]s

used in this section, debt shall mean the issued and outstanding obligations of the

29

Again, the Auditor General did not preliminarily object, but instead filed an answer to

the Amended Petition and a notice of non-participation in these proceedings.

42

Commonwealth and shall include obligations of its agencies or authorities to the

extent they are to be repaid from lease rentals or other charges payable directly

from revenues of the Commonwealth.” Pa. Const. art. VIII, §7(c).

The Amended Petition alleges, in relevant part: (1) “In FY2016-17,

“[the Treasurer, Governor, and Auditor General] authorized the Commonwealth to

borrow $2.5 billion on a line of credit from the State Treasury”; (2) “[the

Treasurer, Governor, and Auditor General] used these funds to address the revenue

shortfall in the Budget for FY2016-17”; (3) “For FY2016-17, because Respondents

authorized the spending set forth in [the] General Appropriations Bill, which

exceed actual and estimated revenues, the Commonwealth ended the fiscal year

with a $1.55 billion deficit”; (4) “[the Treasurer, Governor, and Auditor General]

approved a $750 million line of credit in August 2017, in part to fulfill the

obligations of the prior fiscal year”; (5) “because the $1.55 billion deficit remained

unfunded, [the Treasurer, Governor, and Auditor General] authorized ostensibly

intra-year lines of credit to illegally enable the Commonwealth to spend money

across fiscal years and impermissibly fund spending in FY2016-[17] that exceeded

actual and estimated FY016-[17] revenues”; and (6) “[the Treasurer, Governor,

and Auditor General], therefore, impermissibly authorized the Commonwealth to

incur long-term debt in violation of Article [8], Section 7 of the Pennsylvania

Constitution[.]” Id. ¶¶111-115, 118.

Petitioners argue “that [the Treasurer] has authorized the accrual of

debt that was not repaid during the fiscal year in which the debt was incurred in

direct contravention of Article [8], Section 7(a)(2)(ii),” and that “[t]hese

allegations, in conjunction with the other allegations in the [Amended Petition],

accepted as true, are sufficient to establish a violation of Article [8], Section

43

7(a)(2)(ii).” Petitioners’ Omnibus Brief in Opposition to the Preliminary

Objections at 46-47.

In Johnson v. Pennsylvania Housing Finance Agency, 309 A.2d 528

(Pa. 1973), a taxpayer filed an equity action challenging the constitutionality of the

Housing Finance Agency Law (HFAL).30 The HFAL was enacted to address a

housing shortage with respect to low and moderate income and elderly individuals

and families. To this end, the HFAL created the Housing Finance Agency

(Agency) to administer programs involving housing purchases and rentals under

which the Agency was empowered to lend funds to a mortgagor to construct or

rehabilitate housing units for sale to qualifying individuals or families. After the

unit was sold, the original mortgagor’s obligation to the Agency was released, and

the purchaser assumed the mortgage obligation to the Agency. Accordingly, the

HFAL authorized the Agency to issue loans directly to qualifying individuals.

Additionally, under the rental program, the HFAL authorized the Agency to

provide mortgages for projects supplying housing units to qualifying individuals,

which subject the mortgagors to regulation and limitation in the rents charged and

the permissible profits earned.

To finance the foregoing programs, the HFAL empowered the Agency

to issue bonds and notes to be payable out of the Agency’s revenue, including the

proceeds of the mortgages. However, the HFAL specifically provided the

Agency’s notes and bonds did not constitute a debt of the Commonwealth or any

political subdivision and that it was not a pledge of its credit or taxing power.

Moreover, the Agency was required to establish a fund equal to all the principal

30

Act of December 3, 1959, P.L. 1688, as amended, added by the Act of December 5,

1972, P.L. 1259, 35 P.S. §§1680.101-1680.603a.

44

and interest due on its outstanding bonds and notes from the succeeding calendar

year. In the event of a deficiency in the fund, or a default in the payment of

principal or interest, the Agency was required to submit a request to the Governor

who was then required to request the General Assembly for funds in the executive

budget to cover the shortfall; however, the General Assembly was not required to

approve such an appropriation. The HFAL also provided that the Commonwealth

would not impair the rights and remedies of the holders of Agency obligations.

The taxpayer alleged, inter alia, that the HFAL was “unconstitutional

in that it authorizes a debt to be incurred by or on behalf of the Commonwealth in

violation of Article [8], Section 7 of the Pennsylvania Constitution, and permits an

improper loan or pledge of the Commonwealth’s credit in contravention of Article

[8], Section 8.[31]” Johnson, 309 A.2d at 535. Specifically, the taxpayer claimed

“because the H.F.A.L. provides that the Legislature is ‘enabled to provide

appropriations sufficient to make up any . . . deficiency [in the Agency’s Capital

Reserve Fund] or otherwise to avoid any default,’ the credit of the Commonwealth

is being unconstitutionally ‘pledged or loaned.’” Id. at 536. The Supreme Court

held, “[t]hat argument is flawed in two crucial respects.” Id.

The Supreme Court explained:

Firstly, even if this be viewed as a pledge of the

Commonwealth’s credit, the pledge extends only to the

[Agency], and not to ‘any individual, company,

corporation or association . . . .’ P[a.] Const. [art.] VIII,

[§]8. This activity is not constitutionally proscribed.

This Court [has] made clear . . . that ‘(i)f credit is being

31

Pa. Const. art. VIII, §8. Article 8, Section 8 states, in relevant part, “The credit of the

Commonwealth shall not be pledged or loaned to any individual, company, corporation or

association . . . .”

45

lent to anyone, it is being lent to the (Agency).’ We have

already noted that the [Agency] is not an ‘individual,

company, corporation or association’ within the meaning

of Article [8], Sections 7 or 8.[32]

Moreover, as the permissive language of the

H.F.A.L. indicates, no mandatory obligation is imposed

upon the Legislature to appropriate any funds whatsoever

to cover an Agency default or Capital Reserve Fund

deficiency. The ‘moral makeup’ clause of the H.F.A.L.

merely ‘constitutes . . . an expression of a future intention

or expectation which has no legally binding effect.’

In view of our determination that the

Commonwealth is not a guarantor of the Agency’s

obligations, no purchaser or holder of [Agency] bonds or

notes has any basis ‘for relying to any extent on any

appropriation . . . by the present or any subsequent

Legislature, despite the amorphous legislative declaration

of intention . . .’ that appropriations may be made.

Id. (emphasis added and citations omitted).

Likewise, in the case sub judice, Petitioners’ constitutional claim is

equally flawed. The “debt” referred to in Article 8, Section 7(a)(2)(ii) is defined in

Section 7(c) as “mean[ing] the issued and outstanding obligations of the

Commonwealth . . . .” As explained supra, this “constitutional provision is to be

interpreted insofar as possible in terms of its spirit and intention,” and it “is to be

interpreted in its popular sense as understood by the people who adopted it.” Stilp,

974 A.2d at 495 (citations omitted). This is particularly true with respect to the use

of the term “debt” in Article 8, Section 7(a)(2)(ii) because, as the Supreme Court

explained long ago, “The words ‘debt’ and ‘indebtedness’ [as used in the

Constitution] * * * are not used in any technical way, but in their broad, general

32

As noted supra, “where two provisions of our Constitution relate to the same subject

matter, they are to be read in pari materia.” Jubelirer, 953 A.2d at 528 (citations omitted).

46

meaning, of all contractual obligations to pay in the future for considerations

received in the present.’” Kelley v. Earle, 190 A.140, 146 (Pa. 1937) (citation

omitted). See Black’s Law Dictionary 488 (10th ed. 2014) (defining “debt,” in

relevant part, as “[l]iability on a claim; a specific sum of money due by agreement

or otherwise,” and “[t]he aggregate of all existing claims against a person, entity,

or state[.]”).

There are absolutely no allegations in the Amended Petition that the

“lines of credit” utilizing revenue in the Commonwealth Treasury to fund the

purported budget deficiencies involve the acquisition of any “debt” in the

constitutional sense with a party outside of the Commonwealth government. As a

result, the actions of the Governor, the Treasurer, and the Auditor General with

respect to the use of the lines of credit cannot be deemed to constitute an

unconstitutional “debt” that was an “issued and outstanding obligation[] of the

Commonwealth.”33

33

See also In re Bond Issuance of Greater Enatchee Regional Events Center Public

Facilities District, 287 P.3d 567, 579-80 (Wash. 2012), wherein the Washington Supreme Court,

interpreting similar provisions in the Washington Constitution, stated the following:

Under article VIII, section 1 (state debt), “debt” is

“construed to mean borrowed money represented by bonds, notes,

or other evidences of indebtedness that are secured by the full faith

and credit of the state or are required to be repaid, directly or

indirectly, from general state revenues.” WASH. CONST. art. VIII,

§1(d) (emphasis added). Section 6 (municipal indebtedness)

contains no definition of the term “indebted.” But the definition of

“debt” contained in section 1 should be equally applied to the term

“indebtedness” as used in section 6.

The history of article VIII reveals that “debt” and

“indebtedness” were intended to mean the same thing. See

Theodore L. Stiles, The Constitution of the State and Its Effects

(Footnote continued on next page…)

47

(continued…)

Upon Public Interests, 4 WASH. HIST. Q. 281, 284 (1913) (by

adopting article VIII, the framers were concerned about the misuse

of “borrowed money” by state and local governments). Indeed, the

title of article VIII—“State, County, and Municipal

Indebtedness”—reveals that the drafters used debt and

indebtedness interchangeably. As does the section 6 definition

itself. Wash. Const. art. VIII, §1(d) (debt requires “evidences of

indebtedness”). The terms are also used interchangeably in article

VIII, section 3, which permits the state to incur “[s]pecial

indebtedness” in certain circumstances, notwithstanding the

limitation on “debt” set forth in article VIII, section 1. (Emphasis

added.) Black’s Law Dictionary likewise defines “indebtedness”

as a synonym for debt: “indebtedness” means “[s]omething owed;

a debt.” BLACK’S LAW DICTIONARY 836 (9th ed. 2009) (emphasis

added). We have accordingly concluded that “when the men who

drafted the constitution used the word ‘debt,’ they were thinking

solely in terms of borrowed money.” State ex rel. Troy v. Yelle, 36

Wash.2d 192, 197, 217 P.2d 337 (1950) (emphasis added).

This analysis is confirmed by State ex rel. Wittler v. Yelle,

65 Wash.2d 660, 668–69, 399 P.2d 319 (1965), where we

explained, “This court has many times said what Article 8 means

by the word ‘debt.’ We think that it means borrowed money; it

denotes an obligation created by the loan of money, usually

evidenced by bonds but possibly created by the issuance of paper

bearing a different label.” State debt was at issue in that case, but

our analysis was founded on a “panoramic view of our cases

affecting constitutional debt limitation.” Id. at 669, 399 P.2d 319.

In reaching the conclusion that debt means “borrowed money,

debts created by the issuance of bonds,” we relied in part on two

cases: Winston v. City of Spokane, 12 Wash. 524, 41 P. 888 (1895)

and Comfort v. City of Tacoma, 142 Wash. 249, 252 P. 929 (1927).

The Winston and Comfort cases each interpreted municipal

indebtedness squarely within the context of article VIII, section 6.

In other words, our jurisprudence defining “debt” as borrowed

money encompasses both municipal and state debt. See ROBERT F.

UTTER & HUGH D. SPITZER, THE WASHINGTON STATE

CONSTITUTION: A REFERENCE GUIDE 145 (2002) (“As with state

(Footnote continued on next page…)

48

In the absence of any allegation in this regard, this Court cannot

declare that the Governor, the Treasurer, or the Auditor General unconstitutionally

incurred debt by authorizing the transfer of Commonwealth revenue between

Commonwealth entities within the relevant fiscal years to facilitate the operation of

the Commonwealth government for those fiscal years.34 Accordingly, the POs in

(continued…)

obligations, debt [under article VIII, section 6] is defined as

borrowed money payable from taxes.”).

34

It is in this respect that Petitioners’ reliance on Commonwealth ex rel. Schnader v.

Liveright, 161 A. 697 (Pa. 1932) is misplaced. In that case, the Supreme Court interpreted the

former constitutional provision, Article 9, §4, which provided:

‘No debt shall be created by or on behalf of the State, except to

supply casual deficiencies of revenue, repel invasion, suppress

insurrection, defend the State in war, or to pay existing debt; and

the debt created to supply deficiencies in revenue shall never

exceed in the aggregate, at any one time, one million dollars[.]’

Id. at 706. At issue therein was the enactment by the General Assembly at a Special Session of

an appropriations bill, the “Talbot bill,” totaling $10,000,000.00 for relief to the poor and

unemployed during the Great Depression. The Supreme Court held, in pertinent part:,

Under the Constitution, neither the Legislature, the officers or

agents of the state, nor all combined, can create a debt or incur an

obligation for or on behalf of the state, except to the amount and in

the manner provided for in the fundamental law. This section was

intended to restrict legislative acts which incurred obligations or

permitted engagements on the credit of the state beyond revenue in

hand or anticipated through a biennium, and establishes the

principle that we must keep within current revenue and

$1,000,000.

Id. at 706 (emphasis added). See also Montgomery v. Martin, 143 A. 505, 506-07 (Pa. 1928)

(citations omitted), wherein the Supreme Court explained:

(Footnote continued on next page…)

49

the nature of a demurrer with respect to the claim in Count III that the Governor,

the Treasurer, and the Auditor General violated Article 8, Section 7(a)(ii) of the

Pennsylvania Constitution are sustained, and this claim is dismissed.35

VII.

Accordingly, based on the foregoing, the POs challenging the

standing of Petitioners Brouillette and Lewis as to Counts I, II, and III of the

Amended Petition are overruled; the POs challenging the standing of Petitioner

Christiana are sustained and he is dismissed as a party as to Count III of the

Amended Petition; the PO challenging the joinder of the Commonwealth generally

as a party is sustained and it is dismissed as a party as to Counts II and III of the

Amended Petition; the POs in the nature of a demurrer as to Counts I and III of the

(continued…)

In this country the Legislature of a state represents the sovereign

will of a sovereign people, and, in the absence of constitutional

restrictions, can authorize the state to borrow any amount of

money for any purpose it sees fit; therefore [the former] section 4

of article 9 of our Constitution must be viewed as a restrictive

measure, and the proviso with which we are particularly dealing

must be treated as part of the general provision to which it is

attached. In other words, the main purpose of the section in

question is to limit the inherent right of the state to borrow money,

and the proviso, by qualifying this restriction, becomes part of it.

35

Because Petitioners Brouillette and Lewis limit this claim to Article 8, Section 7(a)(ii),

we need not examine the mechanics of the extension of the lines of credit through the actions of

the Governor, Treasurer or Auditor General, or the Treasurer’s authority to extend them or to

maintain the revenue from which they are derived under the relevant statutory provisions.

50

Amended Petition are sustained; the Application to dismiss Count II is granted;

and the Amended Petition is dismissed.36

MICHAEL H. WOJCIK, Judge

President Judge Leavitt and Judge McCullough concur in the result only.

Judge Covey and Judge Fizzano Cannon did not participate in the decision of this

case.

36

Based on our disposition of the foregoing POs and Application, all of the remaining

POs are overruled as moot.

51

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew J. Brouillette and Rep. :

James Christiana and Benjamin :

Lewis, :

:

Petitioners :

:

v. : No. 410 M.D. 2017

:

Thomas Wolf, Governor and Joseph :

Torsella, Treasurer and Eugene :

DePasquale, Auditor General and :

The Commonwealth of Pennsylvania :

and Michael Turzai, Speaker of the :

House of Representatives and Dave :

Reed, House Majority Leader and :

Joseph B. Scarnati, III, President Pro :

Tempore of the Senate and Jake :

Corman, Senate Majority Leader and :

The Pennsylvania General Assembly, :

:

Respondents :

ORDER

AND NOW, this 2nd day of July, 2019, the preliminary objections of

the above-named Respondents challenging the standing of Petitioners Brouillette

and Lewis as to Counts I, II, and III of the Amended Petition for Review

(Amended Petition) are OVERRULED. Respondents’ preliminary objections

challenging the standing of Petitioner Christiana are SUSTAINED, and he is

DISMISSED as a party to Count III of the Amended Petition. Respondents’

preliminary objection challenging the Commonwealth of Pennsylvania generally as

a party is SUSTAINED, and it is DISMISSED as a party to Counts II and III of the

Amended Petition. The Respondents’ preliminary objections in the nature of a

demurrer as to Counts I and III of the Amended Petition are SUSTAINED; the

Respondents’ Application to Dismiss Count II based on mootness is GRANTED;

and the Amended Petition is DISMISSED.

MICHAEL H. WOJCIK, Judge