
    Thomas A. Leonard et al., Petitioners v. Richard L. Thornburgh, Governor, Commonwealth of Pennsylvania et al., Respondents.
    Argued September 13, 1983,
    before President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail and Barry.
    
      
      Thomas A. Leonard, for petitioners.
    
      Jill A. Douthett, Divisional Deputy City Solicitor, with her John M. Myers, Divisional Deputy City Solicitor, Pamela L. Perry, Chief Assistant City Solicitor, and Janet S. Holcombe, Assistant City Solicitor.
    
      William S. Rawls, Executive Deputy Attorney General, with him Maura A. Johnston, Robert Coyne and Allen C. Warshaw, Deputy Attorneys General, and LeRoy S. Zimmerman, Attorney General, for respondents.
    November 4, 1983:
   Opinion by

President Judge Crumlish, Jr.,

Governor Eichard L. Thornburgh and Secretary of Eevenue James Scheiner have filed preliminary objections to the petition for review of Kathleen Leonard. We sustain the preliminary .objection which would remove Governor Thornburgh as a party to this action. The remaining preliminary objections are overruled.

The facts are recited extensively in Leonard v. Thornburgh, 75 Pa. Commonwealth Ct. 553, 463 A.2d 77 (1983), and will not be repeated here.

The Common-wealth contends first, by way of demurrer, that as a matter of law Governor Thornburgh and Secretary Scheiner are not proper parties to the action. We address the status of the two officials separately.

As to the Governor, the Pennsylvania Constitution provides that the “supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed. ...” Pa. Const. Art. IV §2. This duty is reiterated in Section 701(a) of the Administrative Code of 1927. The Governor is indeed the paramount executive authority in this Commonwealth. There can be no question that the Governor cannot, and indeed would not wish to, “faithfully execute” a statute which is by judicial fiat determined to be unconstitutional. However, for the reasons that follow, we will permit the removal of the Governor as a party to this action.

The executive interest is adequately represented by its duly-appointed agency head, Department of Revenue Secretary Scheiner. We consider it to be both more efficient and expeditious to avoid the unnecessary duplication by the presence of the Chief Executive and his authorized delegate who present mutually identifiable positions. This is not to say that the Governor is precluded from maintaining himself as a party. We hold, however, that his presence in this litigation is not necessary for a just disposition of the merits of this petition for review.

Department of Revenue Secretary Schemer’s duties under Article III of the Tax Reform Code of 1971 are delineated in Section 354 of the act.

§7354 Rules and Regulations
The department is hereby charged with enforcement of the provisions of this article, and
is hereby authorized aud empowered to prescribe, adopt, promulgate, aud enforce rules and regulations relating to any matter or thing pertaining to the administration and enforcement of the provisions of this article and the collecting of taxes imposed by this article. (Emphasis added.)

“Administer” is commonly defined as: “to manage or supervise the execution, use or conduct of.” It is beyond question that the Secretary is empowered to defend and enforce the provisions of a taxing statute when a constitutional attack is mounted. He has a clear and undisputed interest in defending its constitutionality. Secretary Scheiner is, therefore, a proper party to this action.

The Commonwealth next argues that equity is an improper forum for resolution of the petitioner’s cause. Its preliminary objections aver that there is an adequate remedy at law and Leonard has failed to exhaust her administrative remedy. Our Supreme Court, in Borough of Green Tree v. The Board of Property Assessments, Appeals and Review of Allegheny County, 459 Pa. 268, 328 A.2d 819 (1975), held that a court of equity had jurisdiction in an action, alleging that a taxing statute violated the uniformity clause of the Pennsylvania Constitution. Further, the Court held that the regular statutory administrative appeal procedure is unable to resolve the constitutionality issue. As in Green Tree, the Commonwealth here fails to aver the existence or efficacy of an adequate administrative appeal procedure to determine the ultimate constitutional issue. Here, following the Green Tree instruction, we conclude that this Court enjoys equitable jurisdiction.

Finally, the Commonwealth attempts, at this time, to pnt before us for resolution the constitutionality of the nonresident cap and at the same time contends that Leonard has failed to establish irreparable harm. We cannot resolve these issues on preliminary objections. See Pa. E.C.P. No. 1017 (expressly limiting the scope of preliminary objections).

Thus, for the foregoing reasons, the preliminary objection removing Governor Thornburgh is sustained. All other preliminary objections are overruled.

Order

The preliminary objection of Governor Eichard L. Thornburgh and Secretary of Eevenue James Scheiner which seeks to remove Governor Thornburgh as a party to this action is sustained.

All other preliminary objections of Secretary of Eevenue James Scheiner are overruled. The Secretary of Eevenue shall file his answer within thirty (30) days of this Order.

Judge Williams, Jr., concurs in the result only.

Judge Doyle did not participate in this decision.

Concurring and Dissenting Opinion by

Judge Barry:

I concur in that portion of the opinion of President Judge Crumlish, Jr., which sustains the preliminary objection of Governor Eichard L. Thornburgh and removes Governor Thornburgh as a party to this action. I dissent from that portion of the opinion which overrules the preliminary objection of Secretary of Eevenue James Scheiner.

In my opinion, the right of the Attorney General to participate in any case in which the constitutionality of a state statute is involved (Pa. E.C.P. No. 235) adequately represents the “executive interest” of the Commonwealth of Pennsylvania discussed in President Judge Crumlish’s opinion. I would dismiss both Commonwealth officers from the case and transfer it to the Court of Common Pleas of Philadelphia County for further action. 
      
       The Governor shall have the power an it shall be his duty:
      (a) To take eare that the laws of the Commonwealth shall be faithfully executed. . . .
     
      
       We perceive the instant action to be a constitutional challenge to a state taxing statute. See Section 359(b) of the Act of March 4, 1971, P.D. 6, as amended, added by Section 2 of the Act of December 21,1977, P.D. 330, 72 P.S. §7359(b).
     
      
       72 P.S. §7301.
     
      
       72 P.S. §7354.
     
      
       Webster’s Third New International Dictionary 27 (1976).
     