Received 3/28/2019 1:56:48 PM Commonwealth Court of Pennsylvania

Filed 3/28/2019 1:56:00 PM Commonwealth Court of Pennsylvania

146 MD 2019

CRAIG STEDMAN, IN HIS OFFICIAL : IN THE COMMONWEALTH COURT OF

CAPACITY AS LANCASTER COUNTY : PENNSYLVANIA
DISTRICT ATTORNEY, :
: No. 146 MD 2019
Petitioner :
:
v. :
:
LANCASTER COUNTY BOARD OF :
COMMISSIONERS; JOSHUA PARSONS, IN :
HIS OFFICIAL CAPACITY AS CHAIRMAN :
OF THE LANCASTER COUNTY BOARD :
OF COMMISSIONERS; DENNIS :
STUCKEY, IN HIS OFFICIAL CAPACITY :
AS VICE-CHAIRMAN OF THE :
LANCASTER COUNTY BOARD OF :
COMMISSIONERS; CRAIG LEHMAN, IN :
HIS OFFICIAL CAPACITY AS :
LANCASTER COUNTY COMMISSIONER, :
:
Respondents, :
:
JOSHUA SHAPIRO, IN HIS OFFICIAL :
CAPACITY AS PENNSYLVANIA :
ATTORNEY GENERAL; AND BRIAN :
HURTER, IN HIS OFFICIAL CAPACITY AS :
LANCASTER COUNTY CONTROLLER, :
:
Nominal/Non-Adverse Respondents :

PRELIMINARY OBJECTIONS OF RESPONDENTS LANCASTER COUNTY

BOARD OF COMMISSIONERS, PARSONS, STUCKEY AND LEHMAN
RAISING LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO
STATE A CLAIM, PURSUANT TO PA. R. APP. P. RULE 1516(B)
AND PA. R. CIV P. RULES 1028(A)(1) AND 1028(A)(4)

AND NOW come Respondents Lancaster County Board of Commissioners, Parsons,

Stuckey and Lehman, by and through their counsel, Stevens & Lee, and assert the following

Preliminary Objections to Petitioner’s Petition for Review, stating in support thereof as follows:

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 INTRODUCTION

The Lancaster County Board of Commissioners learned only recently that Petitioner

Lancaster County District Attorney Stedman used funds from a drug forfeiture account to lease

an SUV vehicle three years ago. Because Stedman bypassed the ordinary county procurement

process, the Board became aware of this only through recently published news accounts that

reported that this vehicle was for Stedman’s own use. The Board also recently became aware

that the District Attorney has been reimbursed improperly from the county general fund for

mileage that is not permitted when using a county-leased vehicle.

After the Board publicly raised its concerns about these issues, as well as certain

personnel actions taken by the District Attorney and personnel matters within the District

Attorney’s Office involving County employees (the suspension of one member of his staff and

the actions of another staff member, both related to outside political activities), Stedman hired

his own personal lawyers from a Philadelphia law firm, who promptly threatened the Board with

a defamation lawsuit unless the Commissioners immediately stopped discussing their concerns

publicly. See Pet. Exs. B, C, D, G. Furthermore, the District Attorney’s personal lawyers

informed the Board that Stedman could pay his personal lawyers from either drug forfeiture

funds or taxpayer dollars, as he saw fit, to compensate his private counsel for bringing such an

action. Pet. Ex. D (“As such, if DA Stedman chooses to use taxpayer or drug forfeiture funds to

pay for my representation that is his prerogative and not yours.”)

The District Attorney apparently wishes to silence all his critics at any cost. (This action

was filed shortly after the Board of Commissioners petitioned to intervene in Stedman’s Right to

Know Appeal currently pending in the Lancaster County Court of Common Pleas, Lancaster

County District Attorney’s Office v Carter Walker and LNP/Lancaster Online, No. 19-01185, a

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dispute over disclosure of records pertaining to drug forfeiture funds.) This lawsuit is just

another effort to stop all public discussion of these important issues.

Respondents believe this Court lacks subject matter jurisdiction, and also that this dispute

does not present a justiciable controversy under the Declaratory Judgments Act, for the reasons

which follow:

I. LACK OF SUBJECT MATTER JURISDICTION

Summary of Reasons Why the Court Lacks Original Subject Matter Jurisdiction

1. The Petition should be dismissed because the Court lacks original subject matter

jurisdiction over both Counts I and II of Petitioner’s Petition.

(a) Count I:

(i) The Court has no jurisdiction in this action against the Respondents (Lancaster

County Board of Commissioners and each of the Commissioners individually) because the

Court’s jurisdiction is restricted to actions against the “Commonwealth government.” None of

the Respondents qualifies as the Commonwealth government; they are instead a political

subdivision and officers of such subdivision.

(ii) Petitioner’s addition of the Pennsylvania Attorney General as a

“Nominal/Non-Adverse Respondent” is nothing more than a transparent contrivance to

manufacture the Court’s original jurisdiction when none exists.

(b) Count II:

(i) Because the Court has no jurisdiction over Count I, it has no “ancillary”

jurisdiction over Count II, the sole basis for jurisdiction asserted by Petitioner. See Pet. ¶ 7.

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 (ii) In any event, Count II, which involves personnel and political issues and

which is unrelated in any way to Count I’s drug forfeiture issues, does not qualify for ancillary

jurisdiction.

Petitioner’s Assertions of Jurisdiction for Counts I and II

2. Petitioner, Craig Stedman, in his official capacity as District Attorney, chose to file

this action by invoking “Section 761(a)(1) of the Judicial Code” as the jurisdictional basis for

Count I. Pet. ¶ 6.

3. This is the only paragraph in Stedman’s Petition identifying any statutory basis for

the jurisdiction of this Court over Count I.

4. More specifically, Stedman’s Petition asserts that this Court has “original jurisdiction

over the claims in Count I pursuant to Section 761(a)(1) of the Judicial Code” (Pet. ¶ 6), and then

claims that “this Court has ancillary jurisdiction over the claims in Count II because they are

related to the claims within the Court’s original jurisdiction set forth in Count I.” (Pet. ¶ 7)

5. Thus, according to Stedman’s Petition, the Court only has jurisdiction over Count II

to the extent that it has jurisdiction over Count I. (And then, only to the extent that Count II is

sufficiently “related” to Count I to qualify for the exercise of the Court’s “ancillary

jurisdiction.”)

6. There is thus no independent basis pleaded for this Court’s jurisdiction over Count II:

any such jurisdiction is derivative at best, and would be based entirely upon the propriety of the

Court’s jurisdiction over Count I. And only then, as Petitioner admits, if the Count II claims are

“related” to his Court I claims. Pet. ¶ 7.

7. However, this Court lacks jurisdiction over both counts of Stedman’s Petition because

Section 761(a)(1), on its face, is plainly inapplicable to the Petition.

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 Section 761(a)(1) Does Not Confer Jurisdiction

8. The Judicial Code, at Section 761(a)(1), confers original jurisdiction upon this Court

in limited circumstances, relating to actions “against the Commonwealth Government, including

any officer thereof.” 42 Pa. C.S. 761(a)(1).

9. The “Commonwealth” is a defined term in Section 102 of the Judicial Code, defined

as follows:

“Commonwealth government.” The government of the Commonwealth,

including the courts and other officers or agencies of the unified judicial
system, the General Assembly and its officers and agencies, the Governor,
and the departments, boards, commissions, authorities and officers and
agencies of the Commonwealth, but the term does not include any political
subdivision, municipal or other local authority, or any officer or agency of
any such political subdivision or local authority.

42 Pa. C.S. 102 (emphasis added).

10. “Political subdivisions” in turn are defined in the Statutory Construction Act as:

“Any county, city, borough, incorporated town, township, school district, vocational school

district and county institution.” 1 Pa. C.S. 1991 (emphasis added).

11. Thus, with regard to the definition of “Commonwealth government,” as noted in the

treatise Pennsylvania Appellate Practice: “All three branches of state government are

encompassed within this definition and local governments are excluded.” See R. Darlington,

K. McKeon, D. Shuckers, K. Brown, P. Cawley (2018 update) at Section 40:304 (emphasis

added).

12. Respondents are elected representatives of a political subdivision (Lancaster County,

as Petitioner admits, is a county of the third class (Pet. ¶ 9)) and are not “the Commonwealth” as

that term is defined in the Judicial Code.

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 13. As a result, this action is not, and cannot be, an action “against the Commonwealth”

as required by § 761(a)(1) and must be dismissed for lack of jurisdiction.

Including the Attorney General as a Party Does

Not Rescue Petitioner From His Deficient Jurisdiction

14. Stedman’s inclusion of the Attorney General as a “nominal/non-adverse” respondent

to Count I does not change this conclusion. Pet. ¶ 13.

15. Stedman takes pains in his Petition (including the caption) to assert that the Attorney

General has been named only as a “nominal/non-adverse” party. Pet. ¶ 13 (emphasis added).

16. Also, labeling the nominal/non-adverse Attorney General as an “indispensable party

to Count I” because “the declaration of rights sought by District Attorney Stedman in Count I

would impact his [the Attorney General’s] authority under Act 13” also does not help Petitioner

achieve jurisdiction. Pet. ¶ 13.

17. More specifically, Paragraph 13 of the Stedman Petition reads as follows:

Attorney General Shapiro is named as a nominal/non-adverse Respondent

only because he is an indispensable party to Count I of this action in that
the declaration of rights sought by District Attorney Stedman in Count I
would impact his authority under Act 13.

18. Count I cannot be seen as being brought “against the Commonwealth” and the

Attorney General cannot be “indispensable” where Stedman pleads that the Attorney General is

“non-adverse.”

19. Also, according to the Petition, Respondents’ intention to “audit” Stedman’s use of

drug forfeiture funds (Pet. ¶¶ 35, 43) usurps the Attorney General’s, along with the Controller’s,

“sole audit authority over the use of such funds . . . .” Pet. ¶ 32. See also Pet. ¶ 44.

20. From any review of the subject matter of Stedman’s claims, his requested declaration,

and Act 13 itself, it is clear that the declaratory judgment Stedman seeks is in no sense “adverse”

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to the interests of the Attorney General, and thus does not “impact” his authority. The

participation by the Attorney General as a Respondent in this case is not necessary to the relief

Stedman requests in this case.

21. Notwithstanding Stedman’s legally deficient allegations (Pet. ¶¶ 25, 32, 44, 68, 69),

Act 13 does not authorize, much less require, the Attorney General to “audit” a district attorney’s

use of drug forfeiture funds. 42 Pa. C.S. § 5803(j). The law instead requires Lancaster County

itself, “through the controller … and the district attorney” to provide “an annual audit of all

forfeited property and proceeds . . .” Id. And it requires “the county” . . . “to report . . . the

disposition of the property . . . to the Attorney General.” Id. By this clear language, the

Attorney General is merely the recipient – and not the auditor – of the “county’s” audit of drug

forfeiture funds.

22. Thus, even if Respondents had asserted a right to audit Stedman’s use of drug

forfeiture funds – which they have not – this does not “impact” the authority of the Attorney

General to “audit” because the Attorney General has no power to audit under this law. (See, for

example, Pet. ¶ 68, where Stedman incorrectly pleads: Respondents insist “they have … the

power to audit and review Act 13 expenditures in addition to … Attorney General Shapiro.”)

23. Accordingly, Respondents’ actions as pleaded, even if true ― and they are

not ― present no challenge to the authority of the Attorney General in any sense, and the

Attorney General is not an indispensable party.

24. As a result, Stedman’s designation of the Attorney General as an “indispensable”

party is wrong as a matter of law, and his “nominal” joinder in this action is insufficient to

establish this Court’s jurisdiction.

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 25. In summary, the Court lacks subject matter jurisdiction under § 761(a)(1), because:

• the action is not “against the Commonwealth”, in that the County and its
Commissioners are not “the Commonwealth” as a matter of definition;

• the action is also not “against the Commonwealth” because it is not “against” the
Attorney General in any sense, by the applicable statute’s own terms; and

• contrary to Stedman’s attempt to manufacture jurisdiction where none exists, the

Attorney General is not an “indispensable” party.

Ancillary Jurisdiction Does Not Provide Petitioner with Jurisdiction over Count II

26. Count II involves, by Petitioner’s own description, “Employment disputes.” Pet.

p. 14.

27. From the Petitioner’s own allegations, two conclusions are clear:

(a) This disagreement over Petitioner’s employment decisions has absolutely nothing

to do with – and so is not “related to” – Petitioner’s complaints in Count I about the drug

forfeiture laws.

(i) The Attorney General is not even included as a party to this Count, so

Petitioner cannot claim jurisdiction based on the Attorney General’s role.

(b) Petitioner’s allegations describe a purely local – and in Petitioner’s case

political – dispute within his own office. See Pet. Ex. H.

28. Petitioner makes no attempt in his Petition’s allegations to plead or demonstrate that

Counts I and II are “related.”

29. In the absence of subject matter jurisdiction over Count I, this Court necessarily also

lacks jurisdiction over Count II, because, as pleaded, “ancillary jurisdiction” over Count II is

logically dependent upon the existence of jurisdiction over Count I, which is lacking, and, in any

event, Counts I and II are not related.

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 II. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

1. Counts I and II request this Court to issue declaratory relief as to two discrete

questions, neither of which have yet to ripen into actual controversies requiring judicial

resolution. Because neither can be classified as actual, justiciable controversies, neither count is

legally sufficient for declaratory relief, and both counts should be dismissed.

(a) For Count I, Petitioner’s attempts to manufacture a controversy qualifying for a

declaratory judgment claim by accusing Respondents of threatening to “audit” the District

Attorney’s use of drug forfeiture funds are not supported by any of Petitioner’s factual

allegations.

(b) For Count II, as is clear from Exhibit H to the Petition, there is no controversy to

qualify for a declaratory judgment claim. Respondent’s Human Resources Department simply

reviewed two employment complaints relating to two employees of the District Attorney’s office

and made recommendations to the District Attorney.

COUNT I

2. In Count I of his Petition, Stedman alleges (without any supporting factual

averments) that Respondents intend to “audit” his expenditures of drug forfeiture money.

Pet. ¶ 35.

3. Not only is this allegation unsupported, it is contradicted by the Lancaster County

Solicitor’s correspondence to Stedman’s lawyer. Pet. Ex. E. Exhibit E, a letter from the

Lancaster County Solicitor, never mentions the term “audit.” This letter responds to the many

previous threats by Petitioner’s lawyers to sue the Respondents for defamation and advises the

Petitioner that the Commissioners intend to continue to “speak out” on matters of public concern,

including the Petitioner’s use of drug forfeiture funds to lease a vehicle for his exclusive use.

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 4. Additionally, the term “audit” is defined by Act 13, 42 Pa. C.S.A. § 5803(j), and there

are no factual allegations - because none exist - that Respondents intend to “audit” Petitioner as

the statute defines “audit.”

5. Petitioner’s allegation that Respondents’ intent to “investigate” Petitioner’s use of

drug forfeiture funds to lease a vehicle for his exclusive use is “nothing more than a differently

named ‘audit’ by the County Commissioners” (Pet. ¶ 43) is both legally and factually

unsupportable.

(a) Act 13 never mentions the term “investigate” as a function reserved solely for the

County Controller or the Attorney General. 42 Pa. C.S.A. 5803.

(b) Act 13’s definition of the term “audit” does not use the word “investigate.”

42 Pa. C.S.A. 5803(j).

(c) Thus, it is legally wrong to claim that an “investigation” is the same as an “audit”

under Act 13.

(d) Other than Petitioner’s broad conclusory allegation that Respondents intend to

investigate Petitioner’s leasing of a vehicle for his exclusive use, the Petition presents no factual

averments to support this. And Exhibit E – the County Solicitor’s letter – belies this contention.

Respondents intended to discuss this topic, and when Petitioner’s threats of defamation lawsuits

did not intimidate Respondents, he has now resorted to attempting to manufacture a controversy

where none exists.

COUNT II

6. In Count II of his Petition, Stedman alleges that Respondents have somehow acted

improperly by commenting upon personnel actions occurring within his office, although, again,

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there is no direct allegation (nor could there be) that Respondents have taken any specific action

that harms Stedman. Exhibit H to the Petition makes this clear.

7. Instead, Count II appears to be merely something else Stedman wishes the County

Respondents would not comment upon publicly.

Petitioner’s Attempt to Silence His Critics

8. Both the issue relating to the expenditure of drug forfeiture funds and the issue

relating to the employment matters set forth in Stedman’s Petition reflect, at most, public

discussion of matters of public concern: the expenditure of public money and the conduct of

public employees.

9. The parties before the Court are thus engaged in a public dialogue, and are presenting

disparate viewpoints on to the subject matters of the Petition.

10. The Petition does not, and cannot, plead that Respondents have taken any affirmative

action regarding either of the subjects of the Petition.

11. For example, Respondents have taken no affirmative action regarding the leased SUV

that is the subject of Count I, and none is pleaded.

12. Neither have Respondents taken any affirmative action regarding the employment

issue that is the subject of Count II, and none is pleaded.

13. Otherwise stated, Respondents have neither attempted to seize or restrict Stedman’s

access to the SUV, nor have they purported to mandate any particular disciplinary action as to

any employee.

14. Rather, the most Respondents could be said to have done, to date, is to express their

concerns over Stedman’s handling of these issues.

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 15. To properly invoke the Declaratory Judgments Act, a party must plead the existence

of an actual, justiciable controversy that a court declaration could resolve. See, e.g., Pacific

Palisades Park, LLC v. Commw., 888 A.2d 655, 659 (Pa. 2005).

16. The mere verbal disagreements between these parties reflect only a nascent

disagreement that has yet to ripen into a dispute justifying, much less mandating, the intervention

of this (or any) Court.

17. Declaratory relief is also discretionary by nature, and a court may decline to grant

same, where, for example, doing so “would not terminate the uncertainty or controversy giving

rise to the proceeding . . . .” 42 Pa. C. S. 7357.

18. Respondents (no less than any other citizen) have a constitutional right to speak their

minds about issues of public concern, and no declaration could be properly issued which would

abridge that right.

19. As a result, any declaration issued by the Court would not “terminate the [public]

controversy” surrounding the activities occurring with the District Attorney.

20. Through the filing of the Petition, the Court has been invited to participate in District

Attorney Stedman’s attempts to harass and intimidate Respondents for having the temerity to

raise their concerns about his recent activities.

21. Particularly in light of the absence of subject matter jurisdiction and in the absence of

a justiciable controversy, this is an invitation the Court can, and should, decline.

22. Any further consideration of, or attention to, Stedman’s filing would, for the reasons

set forth herein, only exacerbate the waste of resources this action involves, and elevate this local

dispute to an unwarranted level.

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 23. Although Stedman attempts to suggest that there is tremendous “exigency”

underlying his Petition (in his accompanying motion for Summary Relief and motion for

expedited resolution of same), he does not even attempt to demonstrate any genuine urgency.

(And, in fact, there is none).

WHEREFORE, Respondents request that these Preliminary Objections be sustained, and

the Petition for Review be dismissed, in its entirety without need for further proceedings.

STEVENS & LEE

Dated: March 28, 2019 By: s/Mark D. Bradshaw

Daniel B. Huyett
Attorney I.D. No. 21385
Mark D. Bradshaw
Attorney I.D. No. 61975

17 North Second Street

16th Floor
Harrisburg, PA 17101
(717) 234-1090
mdb@stevenslee.com
dbh@stevenslee.com

Attorneys for Respondents Lancaster County Board

of Commissioners, and Dennis Stuckey and Craig
Lehman, in their official capacity

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 CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the provisions of the Public Access Policy of the

Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that

require filing confidential information and documents differently than non-confidential

information and documents.

STEVENS & LEE

Dated: March 28, 2019 By: s/Mark D. Bradshaw

Daniel B. Huyett
Attorney I.D. No. 21385
Mark D. Bradshaw
Attorney I.D. No. 61975

17 North Second Street

16th Floor
Harrisburg, PA 17101
(717) 234-1090
mdb@stevenslee.com
dbh@stevenslee.com

Attorneys for Respondents Lancaster County Board

of Commissioners, and Dennis Stuckey and Craig
Lehman, in their official capacity
 CERTIFICATE OF SERVICE

I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I served a certified true

and correct copy of the foregoing Preliminary Objections of Respondents, Lancaster County

Board of Commissioners, Raising Lack of Subject Matter Jurisdiction and Failure to State a

Claim, Pursuant to Pa. R. App. P. Rule 1516(b) and Pa. R. Civ. P. Rules 1028(a)(1) and

1028(a)(4).upon the following counsel of record, by electronic mail:

Mark E. Seiberling, Esquire

Kleinbard, LLC
3 Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
mseiberling@kleinbard.com

Attorney General Joshua Shapiro

Nicole Boland, Esquire
Pennsylvania Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
nboland@attorneygeneral.gov

George D. Alspach, Esquire

Alspach & Ryder, LLC
232 N. Duke Street
Lancaster, PA 17602
galspach232@aol.com

s/Mark D. Bradshaw
Mark D. Bradshaw

Dated: March 28, 2019