          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren,                                 :
                              Petitioner       :
                                               :
               v.                              :    No. 234 M.D. 2018
                                               :    Submitted: October 26, 2018
State Ethics Commission,                       :
                        Respondent             :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: January 7, 2019


               Before this Court in our original jurisdiction are the preliminary
objections filed by the State Ethics Commission (Commission) to Daniel Warren’s
(Warren) amended petition for review. Warren, representing himself, avers that the
Commission violated his constitutional due process rights by not requiring parole
officers to file statements of financial interest pursuant to the Public Official and
Employee Ethics Act (Ethics Act), 65 Pa. C.S. §§1101-1113. The Commission
challenges Warren’s standing and the legal sufficiency of his claims. Upon review,
we sustain the preliminary objections and dismiss the amended petition for review.


                                       I. Background
               Warren, currently an inmate, submitted a Right-to-Know Law1 request
to the Commission seeking statements of financial interest for parole officers.


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
Because they are appointed by the Pennsylvania Board of Probation and Parole,
Warren alleges that parole officers are required to file such statements pursuant to
Section 1104 of the Ethics Act, 65 Pa. C.S. §1104 (relating to financial interest
statement filing requirement). Previously, Warren filed ethics complaints with the
Commission as to parole officers who did not file statements of financial interest.2


              Warren filed a petition for review, to which the Commission filed
preliminary objections. Warren then filed an amended petition for review.


              In his amended petition, Warren seeks a declaration that Section 1104(a)
of the Ethics Act is unconstitutional. His primary allegation is that the failure of the
Commission to enforce the Ethics Act as to parole officers violates his due process
rights guaranteed by the 14th Amendment to the U.S. Constitution. Specifically, he
alleges that, by exempting parole officers from the filing requirement, “[the
Commission] invaded [his] due process rights to be assured that these public officers
have not undermined the honest and impartial discharge of [their] official duties.”
Am. Pet. for Review, ¶16. He claims an interest that surpasses that of all citizens
based on his inmate status as “[t]hese public officer[s] supervise [him] and ha[ve]
restrained [him] of his liberty and property interests.” Id. ¶13. He also avers that
“there exist[s] a credible threat that these public officers are receiving unlawful
compensation which is direct, substantial and presents an interest which is neither
remote nor speculative and invades [his] right pursuant to [Section] 1101.1 [of the
Ethics Act, 65 Pa. C.S. §1101.1 (relating to purpose)].” Id. ¶7 (italics in original).

       2
          This Court quashed Warren’s appeals of the Commission’s decision that declined to
investigate his ethics complaints based on noncompliance with the filing requirement. See Warren
v. State Ethics Comm’n (Pa. Cmwlth., Nos. 1489 C.D. 2017, 1630 C.D. 2017, filed December 28,
2017) (single j. ops.), appeal denied, (Pa., Nos. 112-123 MAL 2018, filed August 1, 2018).

                                               2
               The Commission filed preliminary objections to the amended petition,
challenging this Court’s jurisdiction, Warren’s standing, and the legal sufficiency of
Warren’s claims. Warren filed a response to the preliminary objections, in which he
explained the grounds for his amended petition. After briefing, the preliminary
objections are ready for disposition.3


                                        II. Discussion
               The Commission briefed only its objections as to Warren’s standing
and the legal sufficiency of his claim. As such, we do not address its challenge to
our jurisdiction premised on this Court’s resolution of appeals in the Commission’s
favor.4 Skytop Meadow Cmty. Ass’n, Inc. v. Paige, 177 A.3d 377, 384 (Pa. Cmwlth.
2017) (holding failure to brief issue results in waiver; citing Pa. R.A.P. 2119(a)).


                                           A. Standing
               First, we consider the Commission’s challenge to Warren’s standing to
seek declaratory relief under the Declaratory Judgments Act, 42 Pa. C.S. §7531-7541.
To state a claim under the Declaratory Judgments Act, a petitioner must demonstrate
traditional standing and an actual controversy as to threatened invasion of rights.
GGNSC Clarion LP v. Kane, 131 A.3d 1062 (Pa. Cmwlth. 2016) (en banc).

       3
         “In ruling on preliminary objections, this Court accepts as true all well-pled allegations
of material fact, as well as all inferences reasonably deducible from those facts.” Key v. Dep’t of
Corr., 185 A.3d 421, 427 n.3 (Pa. Cmwlth. 2018). However, we “need not accept unwarranted
inferences, conclusions of law, argumentative allegations, or expressions of opinion. For
preliminary objections to be sustained, it must appear with certainty that the law will permit no
recovery. Any doubt must be resolved in favor of the non-moving party.” Id. (citation omitted).
       4
        Regardless, we discern no merit in the Commission’s jurisdictional challenge because
this Court did not address whether parole officers are subject to the financial interest filing
requirement in Section 1104 of the Ethics Act when we quashed Warren’s prior appeals. Rather,
we concluded the Commission’s letters from which he appealed were not appealable adjudications.

                                                3
             “[A] controversy is worthy of judicial review only if the individual
initiating the legal action has been ‘aggrieved.’” In re Hickson, 821 A.2d 1238, 1243
(Pa. 2003). A petitioner possesses traditional standing or aggrievement when he
shows his interest is substantial, direct and immediate. An interest is “substantial”
if it is an interest in the alleged violation that “surpasses the common interest of all
citizens in procuring obedience to the law.” Id. Likewise, an interest is “direct”
when the matter complained of harmed the party’s interest, i.e., a causal connection
between the harm and the violation of law. Pittsburgh Palisades Park, LLC v.
Commonwealth, 888 A.2d 655 (Pa. 2005). Finally, an interest is “immediate” if the
causal connection is not remote or speculative. Id.


             Warren claims he is aggrieved by the Commission’s non-enforcement
of Section 1104(a) of the Ethics Act as to parole officers. However, Warren merely
expresses the common interest of all citizens to have agencies enforce the laws they
are charged to administer. Am. Pet. for Review, ¶4. Although he claims a greater
interest than the citizenry because he is subject to supervision by parole officers,
Warren does not allege how the lack of filed statements of financial interest causes
him harm. Warren does not aver any immediate interest, alleging only that he presents
an interest “which is neither remote nor speculative.” Id. ¶7. This conclusory
statement does not satisfy the immediacy prong. Atiyeh v. Commonwealth (Pa.
Cmwlth., No. 312 M.D. 2012, filed May 28, 2013), 2013 WL 3156585 (unreported).


             Because he does not allege a substantial, direct or immediate interest,
Warren lacks standing. Hickson. Accordingly, the Commission’s preliminary
objection as to his lack of standing is sustained.



                                           4
                                          B. Demurrer5
               Although it is unnecessary to address the Commission’s demurrer to
the amended petition for review, we note briefly that Warren failed to allege a
violation of his due process rights under the U.S. Constitution.6


               To state a constitutional due process claim, a petitioner must allege a
deprivation of a protected life, liberty or property interest. Shore v. Dep’t of Corr.,
168 A.3d 374 (Pa. Cmwlth. 2017). “If, and only if, the party establishes the
deprivation of a protected interest, will the Court consider what type of procedural
mechanism is required to fulfill due process.” Id. at 383.


               Here, Warren identifies his interest in the Commission’s enforcement
of Section 1104 of the Ethics Act such that parole officers are subjected to the
financial interest statement filing requirement.                However, Warren alleges no
deprivation of a protected interest connected to the parole officers’ non-filing of
statements of financial interest. He further does not allege what process was lacking
under the Ethics Act, or how the Commission’s interpretation of the Ethics Act
denied him due process. Therefore, Warren’s amended petition for review fails to
allege sufficient facts to state a due process claim. Shore.



       5
          As to preliminary objections in the nature of a demurrer, we may sustain preliminary
objections only when, based on the facts pled, it is clear and free from doubt that the complainant
will be unable to prove facts legally sufficient to establish a right to relief. Mazur v. Trinity Area
Sch. Dist., 961 A.2d 96 (Pa. 2008); Baron v. Dep’t of Human Servs., 169 A.3d 1268 (Pa. Cmwlth.
2017) (en banc), aff’d, 194 A.3d 563 (Pa. 2018).
       6
         The due process clause of the U.S. Constitution provides: “Nor shall any State deprive
any person of life, liberty or property, without due process of law.” U.S. CONST. amend. XIV.



                                                  5
                                       III. Conclusion
               For the foregoing reasons, the Commission’s preliminary objections are
sustained. Warren does not establish he possesses standing to seek relief, and he
does not allege the factual predicate for a due process challenge. Therefore, the
amended petition for review is dismissed with prejudice.7




                                             ROBERT SIMPSON, Judge




       7
         Because Warren alleges no interest beyond that of all citizens in compliance with the law
and identifies no deprivation of a due process right, affording him another opportunity to amend
his pleading would be futile. See Funk v. Wolf, 144 A.3d 228 (Pa. Cmwlth. 2016). Accordingly,
our dismissal of the amended petition for review with prejudice is appropriate. See id.

                                                6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren,                         :
                        Petitioner     :
                                       :
            v.                         :   No. 234 M.D. 2018
                                       :
State Ethics Commission,               :
                        Respondent     :



                                     ORDER

            AND NOW, this 7th day of January, 2019, the preliminary objections
filed by Respondent, the State Ethics Commission, are SUSTAINED, and Petitioner
Daniel Warren’s amended petition for review is DISMISSED WITH
PREJUDICE.




                                      ROBERT SIMPSON, Judge
