Jannetta v. Knoll

PALLADINO, Judge,

dissenting.

I respectfully dissent.

I believe that the Secretary neither has standing nor brings a justiciable controversy to this court. Further, I cannot agree that the Constitution of Pennsylvania or the statutes of the legislature bar the Auditor General from performing mandated duties of her office.

“To have standing, one must plead facts which establish a direct, immediate and substantial injury.” Paratransit Association of Delaware Valley, Inc. v. Yerusalim, 114 Pa. Commonwealth Ct. 279, 282, 538 A.2d 651, 653 (1988). Furthermore, there must be a causal link between the injury and the conduct of which the party complains. Id. Where a plaintiff fails to allege an injury which he has *468suffered as a result of the defendant’s conduct, the plaintiff lacks standing to maintain the suit. Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983).

The Secretary seeks this declaratory relief for two reasons: (1) there is or will be uncertainty regarding the effect of Board decisions; and (2) to avoid potential future litigation. However, the Secretary has not alleged a past or present injury which he has suffered or will suffer as a result of the Auditor General’s participation as a member of this panel. Nor does the Auditor General’s participation hinder the Secretary in the performance of his duties. The Secretary, being bound by the Attorney General’s opinion,1 has refused to record or give effect to the Auditor General’s votes. The Secretary may not be held liable for acting in accordance with the Attorney General’s opinion.2 Because the Secretary is not injured by the Auditor General’s conduct, the Secretary lacks standing.

The majority finds that the potential for future litigation resulting from tainted Board transactions is sufficient to permit a declaratory judgment. Declaratory judgment is appropriate only when there are antagonistic claims in which litigation is both imminent and inevitable. Chester Upland School District v. Commonwealth of Pennsylvania, 90 Pa.Commonwealth Ct. 464, 495 A.2d 981 (1985). Furthermore, declaratory relief is available only when there is an actual controversy; it is not available to determine rights in anticipation of an event which may never occur. Colonial School District v. Romano's School Bus Service, Inc., 115 Pa.Commonwealth Ct. 87, 539 A.2d 910 (1988). The Secretary has not alleged that litigation is imminent and inevitable, only that a resolution by this court could avoid potential future litigation. Amended Petition for Review paragraph 28. Clearly the possibility of a suit sometime in the future is not a claim appropriate for declaratory relief. Chester Upland School District.

*469Additionally, “a declaratory judgment action will not lie unless all interested parties who could be affected by the judgment are joined.” Chester Upland School District, 90 Pa.Commonwealth Ct. at 469, 495 A.2d at 984. We note that any actual controversy which would arise over a ‘tainted’ transaction would involve parties to a contract or a contract rejected because of the failure to record the Auditor General’s vote. These parties are not present.

Finally, on the merits, the approval of leases, automobile sales and sole source contracts are not financial transactions. Clearly, there would be a financial transaction in the future as a result of the award of contracts. However, the Auditor General is not involved in that part of the transaction which she subsequently audits. The statutory and constitutional prohibitions exist to prevent the Auditor General from auditing her own work. The Board’s general approval or disapproval of contracts and leases is not a financial transaction which is later audited.

Therefore, I would dismiss the petition for review or alternatively deny summary judgment.

. Section 204(a)(1) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. § 732-204(a)(l).

. Id.