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									         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Pilchesky,                               :
          Plaintiff                             :
                                                : No. _____________________
Vs.                                             :
                                                :
                                                : Complaint for Declaratory Judgment
Edward Rendell, Governor                    : and Injunctive Relief
State Senator Robert Mellow, Democratic :
Caucus Leader,                              :
Representative Wm. DeWeese, House         :
Majority Leader,                            :
Pa. State Senate,                           :
Pa. State Legislature,                      :
City Council of the City of Scranton, and   :
Mayor Chris Doherty, City of Scranton       :
          Defendants                            :
________________________________________________________________________


COMPLAINT FOR DECLARATORY JUDGMENT AND REQUEST FOR
                                 INJUNCTIVE RELIEF

 NOW COMES, the Plaintiff, Joseph Pilchesky, with his Complaint for Declaratory
Judgment and Request for Injunctive Relief, and in support thereof, submits as follows:


                                          PARTIES


      1. The Plaintiff is Joseph Pilchesky, a competent adult individual residing in the

         State of Pennsylvania, in the County of Lackawanna, in the City of Scranton at

         819 Sunset St., 18509, and shall hereafter be referred to as Plaintiff.
2. The Defendant is Governor Edward Rendell, chief executive officer of the

   Commonwealth, and a competent adult individual, duly elected governor of the

   state of Pennsylvania, a body politic, with an address situate in the State of

   Pennsylvania, in the County of Dauphin, in the City of Harrisburg at 225 Main

   Capital Building, 17120, and shall hereafter be referred to as Governor Rendell.

3. The Defendant is Pa. State Senator Robert Mellow, Democratic Caucus Leader, a

   competent adult individual, duly elected senator on November 8th, 2006 for a fifth

   consecutive term of the State of Pennsylvania, a body politic, with an address

   situate in the State of Pennsylvania, in the County of Dauphin, in the City of

   Harrisburg, with an office situate at Room 535 Main Capitol Building, Senate

   Box 203022, 17120-3022, and shall hereafter be referred to as Senator Mellow.

4. The Defendant is House representative William DeWeese, House Majority

   Speaker, a competent adult individual, duly elected representative by the

   electorate, a member of the a body politic, with an address situate in the State of

   Pennsylvania, in the County of Dauphin, in the City of Harrisburg at Room 110

   Main Capitol Building, and shall hereafter be referred to as Rep. DeWeese.

5. The Defendant is the Pennsylvania Senate, a body politic, comprised of members

   who are duly elected officials by the electorate, with an office situate in the State

   of Pennsylvania, in the County of Dauphin in the City of Harrisburg at 292 Main

   Capitol building, and shall hereafter be referred to as the “Senate.”

6. The Defendant is the Pennsylvania House of Representatives, a body politic,

   comprised of members who are duly elected officials by the electorate, with an

   office situate in the State of Pennsylvania, in the County of Dauphin, in the City
       of Harrisburg at 139 Main Capitol Building, and shall hereafter be referred to as

       the “Legislature”.

   7. The Defendant is the City of Council of the City of Scranton, a body politic,

       comprised of duly elected members by the electorate, with an office situate in the

       State of Pennsylvania, in the County of Lackawanna, in the City of Scranton at

       340 N. Washington Ave., 18503 and shall hereafter be referred to as City Council

       of Scranton.

   8. The Defendant is Chris Doherty, the mayor elect of the City of Scranton since

       2002, with an office situate in the State of Pennsylvania, in the County of

       Lackawanna, in the City of Scranton, at 340 N. Washington Ave. and shall

       hereafter be referred to as Mayor Doherty.

   9. When necessary, the term Defendants will be used to refer to all Defendants at the

       same time.

                                  INTRODUCTION



 The City of Scranton desired to arbitrarily dispose of eight (8) parcels of Project 70

lands comprising of 10.8 contiguous acres by and through selling the parcels exclusively

to the University of Scranton for private purposes. However, since 1977, the subject

parcels comprised a large, heavily used formally accepted dedicated public park, known

as the South Side Complex, (hereafter SSC) which also generated significant revenue.

The SSC was a public trust, and at all times was a common property of all the people,

with an irrevocable deed forever protected against any inconsistent use by the Public
Trust Doctrine, with its preservation as a natural resource and historic landmark protected

by the Pa. State Constitution, Article 1, § 27.

 Project 70 funding to develop the SSC was authorized by Article VIII, §15 of the

Pennsylvania State Constitution. The obligations to protect and preserve the dedicated

purposes of Project 70 lands, particularly those that were developed into large, well-used

formally accepted dedicated public parks, rests firmly in the provisions of Article 1, §27,

which provides that the Commonwealth, to include its administrative agencies, agents

and municipalities, is at all times the constitutionally assigned trustee with obligations on

behalf of all of the public to preserve public parks. Senator Robert Mellow, an agent of

the Commonwealth, was such a trustee. However, he authored Senate Bill 850 (hereafter

SB 850) designed to expeditiously remove all Project 70 restrictions to clear the way for

disposal of the SSC for a use inconsistent with the dedicated purpose of recreation, which

use was to privatize it, thereby injuring the public at large. After debate relating to

amendments on restrictions, on December 17, 2003 SB 850 was signed by the State

Senate. On December 18, 2003 SB 850 was signed in the House, and then signed by

Governor Edward Rendell on December 23, 2003, with all restrictions removed from

protecting the public‟s investment and best interests. On November 18, 2007 the

University of Scranton purchased the Project 70 parcels.

 With the enactment of SB 850, the people of the community have been forced to

surrender their prized SSC to the University of Scranton, which is a private entity

planning to use the land for private purposes with very limited public access, if any, and

such private use is entirely inconsistent with the sole purpose of the public trust as a

multi-purpose park. The park was in good condition, heavily used and not abandoned by
the public. In fact, there was extensive public outcry over the loss of it, all of which was

ignored by local lame duck legislators. Therefore, SB 850 is unconstitutional because it

caused the surrender of the Plaintiff‟s and resident‟s constitutional right to the

preservation of the natural, historic and recreational dedications vested in the deeds to the

SSC, and in common law doctrines. The passage of SB 850 was Ultra Vires and opened

the door to the illegal disposition of the SSC for inconsistent use. It also violated the

Public Trust Doctrine of 1915, which common law holds that the dedicated purposes of

all formally accepted dedicated public parks are forever irrevocable, and no municipality,

or other government trustee, has any authority to disturb such public trust under any

circumstances.

 This declaratory and injunctive action seeks to have SB 850 invalidated and/or

abrogated as to restore to the Plaintiff and all of the people of the City of Scranton their

constitutional rights to the preservation of the SSC, as well as to the enjoyment of the

dedicated purposes of the multi-purpose public trust held in the SSC.



                                    JURISDICTION

 The Commonwealth Court of Pennsylvania has original jurisdiction on matters relating

to the unconstitutionality of a law pursuant to 42 Pa. C.S.A. § 761.



                                         FACTS



   10. Paragraphs (1) through (9) are hereby incorporated by reference as if set forth in

       full.
11. In 1977, pursuant to the Urban Renewal Plan and Redevelopment Proposal, the

   eight parcels that comprise the SSC were developed into a large recreational park,

   complete with abundant green space; two fenced in, lighted baseball fields, a large

   concession stand, three basketball courts, three tennis courts, walking trails,

   extensive parking, spacious picnic areas and playgrounds, all of which was

   taxpayer funded by and through constitutionally mandated Project 70 funds and

   the Project 70 Land Acquisition and Borrowing Act.

12. At about the same time, the deeds to the SSC were transferred from the State of

   Pennsylvania to the City of Scranton, inclusive of deed language that the Project

   70 land was dedicated for open space, historic and recreational purposes, thereby

   making the City of Scranton among the Commonwealth‟s trustees for the SSC on

   behalf of all the people in the community, and furthermore, obligated as a first

   line trustee to act to forever preserve the purposes of the public trust property.

13. On March 30, 1977 the City Council of Scranton passed a resolution, No. 23 of

   1977, that formally accepted SSC Project 70 parcels as dedicated public parks by

   naming the basketball courts the “Jay Archer Courts”, the hardball field as the

   “Jim Reagen Field” and the softball field as the “Joe Butler Field”. See Exhibit

   “A”, the Resolution.

14. On November 16, 1977 the same legislative body passed Resolution No. 115 of

   1977 that renamed the SSC as the “William T. Schmidt Sports Complex, named

   after the mayor at that time. See Exhibit “B”, the Resolution.
15. Over the years, the formally accepted dedicated public park simply became more

   popularly known by Scranton‟s residents as the SSC, which is how it is

   recognized to this day.

16. On December 9, 2002 Scranton‟s City Council passed an Ordinance, File of

   Council 92 of 2002, which stated purpose was to transfer the deeds of the public

   trust, the SSC, over to the Scranton Redevelopment Authority (hereafter the

   SRA), and that the SRA would, “receive the property to oversee the maintenance

   and operation of the property”; with no stated indication to the Plaintiff or the

   public that the purpose was actually to be able to sell the park exclusively to the

   University of Scranton for private use, absent any public bidding process, since

   the SRA had the authority to sell property in that manner. See Exhibit “C”, the

   Ordinance.

17. On or about June 25, 2003 Senator Robert Mellow introduced SB 850 for

   consideration, which Bill‟s purpose was to remove all Project 70 restrictions from

   the SSC as to clear the way to sell it exclusively to the University of Scranton for

   private use, which university Senator Mellow is a member of its Board of

   Directors.

18. In June of 2003, the SRA hired the lobbying firm of Wolf Block Relations, owned

   by Richard Gmereck, for the purpose of assisting in obtaining passage of SB 850

   at a cost of approximately $25,000.00, paid for by the City of Scranton, even

   though it relinquished its interests in the SSC deeds.
19. In July of 2003, the SRA and the University of Scranton entered into a

   Memorandum of Understanding that carved out terms upon which the university

   would purchase the public trust, the SSC.

20. On December 17, 2003, after several months of negotiating with State

   Representative Gaynor Cawley (hereafter Cawley) over amendments to SB 850,

   which amendments by Cawley sought to keep many of the important restrictions

   in tact, SB 850 was signed by the Senate.

21. On December 18, 2003, after several months of negotiation and debate regarding

   the same demands by Cawley to keep important restrictions in tact, the House

   signed SB 850.

22. Amendments sought by Cawley included the following restrictions; reversion of

   the SSC if the University of Scranton reneged on its promise to allow public use,

   replacement of a like and kind parcel of land with similar amenities and reversion

   if any of the parties to the sale reneged on any terms of sale, to include the

   construction of a $200,000.00 lighted field for softball leagues, and assurance that

   user fees or insurance fees would not prohibit the ability of the public to use the

   public park as it had in the past.

23. On December 23, 2003 Governor Edward Rendell signed into law SB 850. See

   Exhibit “D”, Senate Bill 850 in its final version, having all restrictions removed.

24. On December 30, 2003 two Scranton residents filed an equity action against the

   SRA at 03-01488 in Orphans‟ Court, claiming that the acts of the SRA to sell the

   SSC were Ultra Vires and in violation of the Donated or Dedicated Property Act

   of 1959, which action was dismissed by Orphans‟ Court Judge Walsh because the
   court concluded that the act was statutory in nature and did not apply to public

   trusts that were formally accepted dedicated public parks, which parks are

   protected at common law; under appeal, the Commonwealth Court affirmed lower

   court‟s decision on September 22, 2006, at 1766 C.D. 2005.

25. On December 20th, 2005, this Plaintiff filed an equity action against the SRA at

   05-CV-5205, claiming that the sale of the formally accepted dedicated public

   park was a violation of the common law, the Public Trust Doctrine of 1915,

   which action was dismissed on December 8th, 2006 after Common Pleas Judge

   Robert Mazzoni sustained preliminary objections relating to lack of standing as a

   taxpayer in a public trust matter; a subsequent Motion for Reconsideration was

   denied January 5th, 2007. Appeal filed January 18, 2007.

26. On or about November 18th, 2006 the SRA finalized the sale of the SSC to the

   University of Scranton and transferred all eight deeds.

27. On January 5th, 2007, this Plaintiff filed a Complaint against the University of

   Scranton citing causes of action for Wrongful Taking of a Public Trust Property,

   Fraud and Conspiracy to commit fraud, and Unjust Enrichment, relating to

   acquisition of the SSC docketed at 07-CV-103.

28. On January 11, 2007, this Plaintiff filed a Petition for Emergency Injunctive

   Relief seeking to enjoin the University of Scranton from disposing of any of the

   parcels of the Project 70 lands, and from disturbing any of the physical features of

   the SSC until the merits of the Complaint were heard, at which time Judge Robert

   Mazzoni denied a request for an Emergency Hearing and instead ordered a

   hearing to be held on April 27, 2007.
                                      COUNT ONE




SENATE BILL 850 IS UNCONSTITUTIONAL BECAUSE PLAINTIFF

HAD TO SURRENDER CONSTITUTIONAL RIGHTS PROVIDED BY

ARTICLE 1, § 27 OF THE PA. STATE CONSTITUTION RELATING TO

              THE PRESERVATION AND USE OF THE SSC



  29. Paragraphs (1) through (28) are hereby incorporated by reference as if set forth in

     full.

  30. At all times since the Project 70 lands known as the SSC were sold to the

     University of Scranton after the lifting of Project 70 restrictions by Senate Bill

     850, the Plaintiff and all of the residents of the City of Scranton were forced to

     surrender their constitutional rights to enjoy the recreational and historic

     preservation of the SSC as relates to 24/7 open access to full public use as a green

     space, picnic area, recreational facility and historical landmark.

  31. At all times since the SSC was sold to the University of Scranton after the lifting

     of Project 70 restrictions by Senate Bill 850, the Plaintiff and the residents of the

     City of Scranton were forced to surrender their constitutional rights to forever

     enjoy the recreational benefits of the SSC, which were supposed to be protected

     and preserved by the Commonwealth and its agents, and/or agencies or

     municipalities, which includes all of the Defendants named herein, in that they

     were all trustees.
   32. If not for SB 850 lifting the restrictions of Project 70 and the disposition thereof

       as to permit a use inconsistent to the dedication of the established public trust,

       which is in this instance is private use, the Plaintiff and the residents would not

       have been forced to surrender any of their constitutional rights to protection,

       preservation and use of a public trust, to forever enjoy the open green space,

       recreational elements and the other various public amenities of the SSC.

   33. The Pennsylvania State Constitution under Article 1, § 27, relating to Natural

       Resources and the public estate, states as follows:

     “The people have a right to clean air, pure water, and to the preservation of the

natural, scenic, historic and esthetic values of the environment. Pennsylvania‟s public

natural resources are the common property of all of the people, including generations yet

to come. As trustee of these resources, the Commonwealth shall conserve and maintain

them for the benefit of all the people.”

   34. Under the Pennsylvania State Constitution, Article 1, § 27, subsection 2, relating

       to General, it states as follows:

       “This section is intended to allow normal development of property in the

       Commonwealth while at the same time constitutionally affixing a public trust

       concept to management of public natural resources of Pennsylvania.”

   35. The Commonwealth, by explicit definition, includes all state agencies,

       administrative agencies and municipalities.

   36. Senator Robert Mellow, the Senate, the Legislature, the Governor, Scranton City

       Council and Mayor Doherty were at all times agents and/or agencies of the

       Commonwealth of Pennsylvania constitutionally obligated to the Plaintiff and the
   people, as their trustees, to preserve and maintain all natural resources dedicated

   as public trusts with various public purposes, which includes the subject formally

   accepted dedicated public park.

37. The Defendants‟ passage of SB 850 violated the Constitution of the State of

   Pennsylvania under Article 1, § 27 where their actions failed to observe their

   obligations as trustees to preserve and maintain the public trust as a dedicated

   public park and thereby failed to protect the dedicated use of the SSC to the injury

   of the Plaintiff and the local residents of Scranton.

38. The Defendants‟ passage of SB 850 clearly intended to injure the Plaintiff and

   the people of the City of Scranton where they knowingly breached their trustee

   obligations owed to the Plaintiff and the people of the City of Scranton because

   the SSC was held in trust by the municipality, and in addition to the municipality,

   all agents and agencies of the State of Pennsylvania were equally constitutionally

   obligated to insure the preservation of the SSC forever as a formally accepted

   dedicated public park, an obligation that all of the Defendants failed to fulfill.

39. Senator Robert Mellow, the Senate, the Legislature, the Governor, City Council

   of Scranton and Mayor Doherty knew, or should have known, as trustees, that the

   SSC was a formally accepted dedicated public park and protected from

   disposition and/or any inconsistent use by Article 1, § 27 of the Pa. State

   Constitution and the Public Trust Doctrine of 1915.

40. At all times, the Defendants could have, and should have, investigated the „public

   trust‟ dedication history and trust status of the SSC prior to considering SB 850,

   and their failure to do so has resulted in violating the Constitution of the State of
   Pennsylvania under Article 1, § 27 to the injury of the Plaintiff and the people of

   the City of Scranton where the constitutional right to the protection, preservation

   and use of a public trust was forcefully surrendered.

41. At all times, the Defendants knew, or should have known, that their breach of

   obligations as trustees for the Plaintiff and the people of the City of Scranton to

   the Project 70 parcel known as the SSC would result in forcing the Plaintiff and

   the people of the City of Scranton to suffer by and through forceful surrender of

   their constitutional rights to have the SSC preserved forever for their public use.

42. At all times prior to any legislation passed by the Defendants, they had full access

   to legal counsel to secure a legal opinion as to whether or not the subject public

   trust was constitutionally protected to be preserved as a public park, which

   opinion could have been obtained from of the Attorney General of the State of

   Pennsylvania, as well as in-house counsel and local solicitors, which opinion they

   failed to obtain.

43. Passage of any new state law or bill, such as SB 850, that effectively causes the

   forced surrender of the constitutional rights of any individual of the

   Commonwealth is an unconstitutional act; however, in this instance, the forced

   surrender of constitutional rights relating to the preservation and enjoyment of a

   formally accepted dedicated public park included 70,000 taxpaying residents of

   the City of Scranton.

44. The Plaintiff and the residents of the City of Scranton at all times relied upon the

   Defendants to fulfill their obligations to observe the Constitution of the State of
       Pennsylvania under Article 1, § 27, as relates to the preservation of all natural

       resources and parks.

   45. The Plaintiff and the residents of the City of Scranton at all times relied upon the

       Defendants not to pass any legislation that would be unconstitutional and force

       them to surrender their constitutional rights to the preservation and use of natural

       resources and public parks.

   46. Passage of SB 850, if undisturbed, would set an unhealthy precedent across the

       State of Pennsylvania for passing legislation for the allowance of illegal and

       inconsistent uses of dedicated public parks as public trusts, and the illegal sale of

       the same, much to the suffering of the people of the Commonwealth.



 WHEREFORE, passage of House Bill 850 was unconstitutional because it has

violated the people‟s constitutional rights as provided by the Constitution of the State of

Pennsylvania, Article 1 § 27, and because the Plaintiff and the people of the City of

Scranton were forced to surrender their rights to protection, preservation, use and

enjoyment forever of a formally accepted dedicated public park due to illegal sale of the

SSC to a private entity, the University of Scranton, for the purposes of private use,

regardless how limited or unlimited the private uses are.

   Plaintiff respectfully requests that this Honorable Court direct that SB 850 is nullified

and/or abrogated and that the deeds of transfer for the SSC from the SRA to the

University of Scranton are voided with ownership reverted back to the City of Scranton

and not to the SRA; or in the alternative, that if the University of Scranton is allowed to

maintain ownership of the public trust SSC, that no private use is allowed, and that full
public first choice, and first preference, use is restored to the Plaintiff and the residents of

the City of Scranton as it has existed since 1977 with the City of Scranton charged with

all maintenance and upkeep of insurance as to insure that all user fees, costs and lease

terms stay consistent as previously negotiated, and that the property is not altered in any

physical manner as relates to any of the existing amenities, fields, parking and utilities. In

essence, so that the situation returns to status quo for the people prior to the

unconstitutional passage of SB 850.

                                        COUNT TWO

SB 850‟S INTENT WAS TO UNCONSTITUTIONALLY VIOLATE THE

                       PUBLIC TRUST DOCTRINE OF 1915

    47. Paragraphs (1) through (46) are hereby incorporated by reference as if set forth in

        full.

    48. Article 1, § 27 of the Pennsylvania State Constitution specifically speaks to the

        constitutional right of the Plaintiff and the people of the City of Scranton to have

        their natural resources, in the nature of, inter alia, public trusts and parks,

        preserved at all times by the Defendants, as trustees, by virtue of the Constitution

        of the State of Pennsylvania.

    49. The SSC was at all times since 1977, not just a public park by deed restriction, but

        as evidenced by reviewing exhibits “A” and “B”, it was a formally accepted

        dedicated public park, and was thereby supposed to benefit forever from the

        protection and preservation afforded to it by the Constitution of the State of

        Pennsylvania, and concurrently, from the Pennsylvania common law Public Trust

        Doctrine of 1915 with the Defendants as the trustees.
   50. As a formally accepted dedicated public park, the SSC fits within the description

       of a developed natural resource in the nature of a public trust in the

       Commonwealth subject to Constitutional protections relating to preservation and

       use afforded by Article 1, § 27.

   51. At all times, the Plaintiff and the people of the City of Scranton relied upon the

       Defendants to observe the public trust common laws of the State of Pennsylvania,

       and the passing of SB 850 was unconstitutional because it violated longstanding

       and recognized public trust common law that coexisted with the Constitution that

       intended to forever protect and preserve formally accepted dedicated parks, such

       as the SSC.

   52. If not for the failure of the Defendants to honor and observe the public trust

       common laws of the State of Pennsylvania, SB 850 would not have been

       considered in the first place, and the Plaintiff and the people of the City of

       Scranton would not have been subjected to the disposition related impositions of

       SB 850, and thereafter forced to surrender their constitutional rights to the

       preservation and use of the SSC forever as provided in Article 1, § 27 of the

       Constitution of the State of Pennsylvania.



   WHEREFORE, passage of Senate Bill 850 was unconstitutional because it has

violated longstanding and established Pa. State common laws and resulted in the

surrender of constitutional rights pursuant to the Constitution of the State of

Pennsylvania, Article 1 § 27, where the Plaintiff and the people of the City of Scranton

were forced surrender their rights to preservation, use and enjoyment forever of a
formally accepted dedicated public park due to the illegal sale of the SSC to a private

entity for private use that is inconsistent with the dedicated purpose of the subject public

trust, the University of Scranton.

   Plaintiff respectfully requests that this Honorable Court direct that SB 850 is nullified

and/or abrogated and that the deeds of transfer for the SSC from the SRA to the

University of Scranton are voided with ownership reverting back to the City of Scranton,

and not the SRA; or in the alternative, that if the University of Scranton is allowed to

maintain ownership of the SSC, that no private use is allowed, and that full public first

choice, and first preference, use is restored to the residents of the City of Scranton as it

has existed since 1977 with the City of Scranton charged with maintenance and upkeep of

insurance as to insure that all user fees, costs and lease terms stay as previously

negotiated and that the property is not altered in any physical manner as relates to any of

the existing amenities, parking and utilities. In essence, so that the situation returns to

status quo for the people prior to the passage of SB 850.



                                     COUNT THREE


       THE PASSAGE OF SENATE BILL 850 WAS ULTRA VIRES

   53. Paragraphs (1) through (52) are hereby incorporated by reference as if set forth in

       full.

   54. Senator Robert Mellow, the Senate, the Legislature and the Governor of the State

       of Pennsylvania were at all times without the authority to pass any law that
       violated the Constitution of the State of Pennsylvania to the injury of the Plaintiff

       and the residents of the City of Scranton.

   55. Any law passed by Senator Mellow, the Senate, the Legislature and the Governor

       that violated the Constitution of the State of Pennsylvania that was Ultra Vires

       was unconstitutional.

   56. There are no constitutional provisions under any article that allows the passage of

       any law that permits the forced surrender of any existing constitutional right.

   57. At all times the Defendants abused and exceeded their authority in passing SB

       850.

   58. At all times the Defendants knew, or should have known, that they had no

       authority to pass any law that would be unconstitutional to the injury of the

       Plaintiff and the people of the City of Scranton.

   59. If not for the abuse of authority by the Defendants, the Plaintiff and the residents

       of the City of Scranton would not have had to surrender their constitutional rights

       to the preservation, use and enjoyment of a public trust, the SSC.



 WHEREFORE, passage of Senate Bill 850 was unconstitutional because it was Ultra

Vires because it violated Article 1, § 27 of the Pa. State Constitution. The Defendants had

no authority to dispose of, or participate in the disposition of, the public trust SSC to a

private entity for private purposes, where the Plaintiff and the people of the City of

Scranton were forced surrender their rights to preservation, use and enjoyment forever of

a formally accepted dedicated public park.
 Plaintiff respectfully requests that this Honorable Court direct that SB 850 is nullified

and/or abrogated and that the deeds of transfer for the SSC from the SRA to the

University of Scranton are voided with ownership reverting back to the City of Scranton,

and not the SRA; or in the alternative, that if the University of Scranton is allowed to

maintain ownership of the SSC, that no private use is allowed, and that full public first

choice, and first preference, use is restored to the residents of the City of Scranton as it

has existed since 1977 with the City of Scranton charged with maintenance and upkeep of

insurance as to insure that all user fees, costs and lease terms stay as previously

negotiated and that the property is not altered in any physical manner as relates to any of

the existing amenities, parking and utilities included. In essence, so that the situation

returns to status quo for the people prior to the abuse of authority.



                                    COUNT FOUR

    THE PASSAGE OF FILE OF COUNCIL 92 OF 2002 BY THE CITY

COUNCIL OF THE CITY OF SCRANTON WAS UNCONSTITUTIONAL

                                 AND ULTRA VIRES



   60. Paragraphs (1) through (59) are hereby incorporated by reference as if set forth in

       full.

   61. As a trustee, the Commonwealth is comprised of many governmental elements of

       varying levels of authority to include the governor, the senate, the legislature,

       numerous administrative agencies and many various sized municipalities, all of

       which, by either appointment or the electoral process, constitutionally inherit the
       roles of trustee to insure constitutional compliance with Article 1, § 27 as relates

       to the preservation and use of public trusts in the nature of formally accepted

       dedicated public parks.

   62. Where a public trust, such as the SSC, is situated in a specific or particular

       municipality, such as the City of Scranton, it was incumbent at all times upon the

       City of Scranton to observe constitutional laws by complying with Article 1, § 27

       of the Pa. State Constitution as relates to the preservation and use of public trusts.

   63. When the City Council and Mayor Doherty of the city of Scranton enacted File of

       Council 92 of 2002 to dispose of the SSC, and made it law by ordinance, they

       failed to act to preserve the use of the public trust SSC as constitutionally

       mandated pursuant to Article 1, § 27, which states as follows:

          “The people have a right to clean air, pure water, and to the preservation of the

natural, scenic, historic and esthetic values of the environment. Pennsylvania‟s public

natural resources are the common property of all of the people, including generations yet

to come. As trustee of these resources, the Commonwealth shall conserve and maintain

them for the benefit of all the people.”

   64. As the direct and proximate result of passing Ordinance File of Council 92 of

       2002, the Plaintiff and the residents of the City of Scranton were forced to

       surrender their constitutional rights to the preservation and public use of the

       public trust, the SSC, because the ordinance was specifically passed to sell the

       SSC to the University of Scranton for a use inconsistent with the public trust,

       which was private use.
   65. The Ordinance File of Council 92 of 2002, which transferred the deeds for the

       SSC from the City of Scranton over to the SRA, only reflected that the SRA

       would “receive ownership for the purpose of management and maintenance”, and

       failed to express that the SSC was at all times a public trust with a specific

       dedicated purpose of public recreation, and that no private use was permitted as to

       foreclose upon the constitutional rights of the people relating to the right of

       preservation of natural resources.

   66. The absence of any language in File of Council 92 of 2002 to address the status of

       the SSC as a formally accepted dedicated public park; or, for that matter any

       language directing that any use inconsistent with the dedicated purpose of the

       public trust was not permitted, rendered passage of the legislative document

       unconstitutional because passage of it absent the public trust related caveats

       effectively allowed the SRA to wrongfully sell the public trust absent keeping the

       public trust restrictions in place, and the sale caused the surrender of the

       constitutional rights of the Plaintiff and the residents of the City Scranton relating

       to preservation and use.

    WHEREFORE, passage of Ordinance File of Council 92 of 2002 was

unconstitutional because it was Ultra Vires because it was passed in violation of Article

1, § 27 of the Pa. State Constitution in that the Defendants had no authority to dispose of,

or participate in the disposition of, the public trust SSC to a private entity for private

purposes, where the Plaintiff and the people of the City of Scranton were forced

surrender their rights to preservation, use and enjoyment forever of a formally accepted

dedicated public park.
 Plaintiff respectfully requests that this Honorable Court direct that File of Council 92 of

2002 is nullified and/or abrogated and that the deeds of transfer for the SSC from the

SRA to the University of Scranton are voided with ownership reverting back to the City

of Scranton, and not the SRA; or in the alternative, that if the University of Scranton is

allowed to maintain ownership of the SSC, that no private use is allowed, and that full

public first choice, and first preference, use is restored to the residents of the City of

Scranton as it has existed since 1977 with the City of Scranton charged with maintenance

and upkeep of insurance as to insure that all user fees, costs and lease terms stay as

previously negotiated and that the property is not altered in any physical manner as

relates to any of the existing amenities, parking and utilities included. In essence, so that

the situation returns to status quo prior to the passage of Ordinance File of Council 92 of

2002.



                                     COUNT FIVE

 SENATE BILL 850 WAS AUTHORED, INTRODUCED, CONSIDERED

        AND PASSED BASED UPON MISREPRESENTATIONS OF

 MATERIAL FACTS RELATING TO THE SUBJECT PUBLIC TRUST‟S

    STATUS, CONDITION AND USAGE AND RUSHED THROUGH

                PASSAGE ABSENT A LEGITIMATE EMERGENCY



   67. Paragraphs (1) through (66) are hereby incorporated by reference as if set forth in

        full.
68. The subject public trust, SSC, was at all times since 1977 the largest recreational

   facility in the City of Scranton dedicated for the primary purposes of youth and

   adult sports, organized and otherwise.

69. Beginning in 2002, when Mayor Doherty took office, the Department of Parks

   and Recreation began to slowly allow the condition of the public trust to worsen,

   and simultaneous to that neglect, began to inform organized leagues that they

   would not be permitted use due to the pending sale; and by 2004 half of the

   organized leagues that used the facility had to relocate to other fields out of the

   area, which resulted in them paying very high user fees, among other hardships.

70. It is apparent, in hindsight, all facts known today, that Mayor Doherty had

   initiated a plan to make the subject public trust appear run down, dilapidated and

   blighted, as well as abandoned by those who had been using the facility, all for

   the direct purpose of making the subject public trust appear in need of rescue as to

   make the sale to the University of Scranton more palatable to the public.

71. Even with the forced exodus of many organized leagues, as of the Fall of 2006,

   the subject public trust was still the heaviest used sports facility in the City of

   Scranton with the largest parking area and the only lighted baseball fields and

   basketball courts, and still the heaviest used by the general public for family

   recreation such as pick up games of basketball, baseball, football and soccer,

   picnicking and walking their pets, among other things.

72. In accordance with the Scranton Comprehensive Parks, Recreation, and Open

   Space Plan, the City of Scranton ordered a survey in 2003 of all parks; which

   survey addressed the following:
       a. Quantity and quality of city parks;

       b. Size and use of city parks;

       c. Maintenance management;

       d. Suggestions for updating; and

       e. Financial related data.

73. On page (vi) of the survey under Administration, under A-1, it was advised that

   Scranton meet its recreational needs, rather than disposing of its assets.

74. Table 2.10 on page 2-13 grades the parks on a scale of 1-5, with 5 being the best

   score, and in that chart, the subject public trust was given a grade of 3, with the

   only upkeep recommendations related to weeding and painting.

75. Table 2.13 on page 2-20 is a usage chart, which clearly indicates that the subject

   public trust is the single largest recreational park in the City of Scranton, used by

   more organized leagues than any other facility with five times more participants

   than any other facility in the city.

76. Table 2.18 on page 2-24 indicates that fees generated into the city revenue were

   the highest in the category of baseball field fees, with the subject public trust

   having the most fee payers from organized leagues.

77. At all times it was the intent of Mayor Doherty, City Council of Scranton, and the

   SRA to sell the subject public trust to the University of Scranton in breach of

   trustee obligations and in total disregard of the fact that the subject public trust

   was in good condition and relied upon heavily by the people of the community for

   recreational purposes.
78. The SRA hired the lobbying firm of Wolf Block Government Relations for the

   specific purpose of lobbying to get SB 850 passed for the specific reason that the

   University of Scranton needed to meet its need for increased sports facilities. See

   Exhibit “E”, a copy of Wolf Block‟s claim to success stories involving SB 850.

79. It was the intent of Representative DeWeese to misrepresent the value and

   condition of the public trust, SSC, on the House floor at the podium, as evidenced

   by open statements made during debate and interrogatories with Rep. Gaynor

   Cawley. (Plaintiff is in possession of the December 18, 2003 taping of the House

   debates relating to SB 850. Various citations of House members that appear

   below are taken from those tapes, which include pertinent statements from Rep.

   Cawley, Rep. Veon, Rep. DeWeese, Rep. Vitali; and Rep. Belardi and Rep.

   Cawley.

80. On December 18, 2003 the following dialogue was spoken on the House floor by

   Legislator Fred Belardi (hereafter Belardi):

   “The University of Scranton wants the land so it can compete on an NCAA level.

   There will be an NCAA baseball field, an NCAA softball field and an NCAA

   soccer field, complete with lights and grandstands.”, which statement speaks to

   the fact that it was known the subject public trust was intended for private use.

81. Belardi was then quickly followed by Legislator Waznac, who stated similar

   private use sentiments about the University of Scranton purchasing the public

   trust, when he said:
   “The University will be able to get NCAA teams here. Right now, there are 25

   games on the girls soccer schedule, and only 5 were played here because the field

   they use isn‟t natural turf and the other schools won‟t come here.”

82. Rep. Veon, former Democratic Whip from Beaver County on the western side of

   the state, (hereafter Veon) then followed with these statements to the House

   members:

   “The House has been struggling with issues because we have two Legislators

   (Cawley and Belardi) and one Senator (Mellow) not in line or agreement on how

   these lands should be disposed of. Locally there are controversies on this issue

   and we have to figure out how disposition of the Project 70 lands can be done.”

83. Rep. Veon‟s term “disposition” is hardly an accurate or truthful way of describing

   what was happening to the subject public trust since it was a well used and

   thriving public park that the Mayor of Scranton desired to illegally sell to the

   University of Scranton with the assistance of misrepresentation on both the Senate

   and House floors.

84. Delaware County Rep. Vitali then questioned Veon as to why the legislation was

   being rushed through, when he stated:

   “Why do we have to do this tonight? It‟s obvious that there are a lot of things

   going on beneath the surface. What is the emergency?”

85. Veon responded as follows:

   “I‟d like to make a practical political point that the proponents of allowing this

   property to be disposed of believe that a change in the local government could
   jeopardize the transfer, in essence, when it goes into effect in early January and

   not permit this property to be transferred in this way.”

86. Rep. Vitali responded as follows:

   “Is there any reason why it has to be done this year? Or, perhaps it refers to the

   local government issue?”

87. Rep. Veon responded, “The calendar days are numbered with which we can pass

   this legislation and the proponents would like to see it done by the end of this

   calendar year since a new legislative body will take over immediately thereafter.

   The proponents believe that it will be impossible to pass as described because

   clearly there are two strong sides to this issue. It is a hot political issue. The

   longer it goes on the less likely it will be that it will be transferred as described”

88. Rep. Cawley then interjected:

   “Why the rush on this legislation? The rush is all about the fact that three lame

   duck sitting council members passed the transfer in spite of the fact that the newly

   elected council members have asked that they withhold any decisions until the

   new council takes over. I know what the people want and this bill is a disgrace”

89. House Majority Speaker Rep. DeWeese of Fayette, Green and Washington

   Counties, also from the western part of the state, then walked to the podium and

   made these last minute remarks just before the membership voted:

   “ What we have here is a piece of rough and tumble land that is not worth a

   whole lot. Right now that land the University of Scranton is trying to buy is worth

   X, and the university is offering to pay 3X. I am very confidant that this rough
       and tumble patch of land will be revivified by the University of Scranton. If they

       would create some sort of violation, then there is redress in court.”

102.    Rep. Cawley made these final statements before the vote was taken:

       “This is a terrible precedent we are setting. This is going to come back and bite

        us someday.”

103.   Paragraphs 73, 74 and 75 above speak to the good condition, heavy public use and

       fee generating ability of the subject public trust, SSC.

104.   At no time was the subject public trust, SSC, ripe for disposition due to blight or

       abandonment by the community, to the contrary, it was used heavily right up to

       the end of Fall of 2006 by many organized leagues and was still used by the

       public right up to the day the deeds were transferred to the University of Scranton.

105. The subject public trust was referred to numerous times by House Majority Leader

       Rep. DeWeese as a rough and tumble patch that was not worth a lot, when in

       fact, paragraphs 73, 74 and 75, which represent citations from the Scranton

       Comprehensive Parks, Recreation, and Open Space Plan, tell a vastly different

       story, therefore, the statements made by Rep. DeWeese were misrepresentations of

       material facts that clearly could have influenced the vote.

106. Rep. Belardi and Rep. Waznac both elaborated in depth that the University of

       Scranton needed a facility to convert into an NCAA class sports facility for its

       athletes, which clearly supports that the use would be inconsistent with the

       dedicated purpose of the subject public trust, SSC, and that the disposition was for

       that NCAA related purpose, which violates the Public Trust Doctrine of 1915.
107. If not for the misrepresentations of Rep. Veon and Rep. DeWeese, the vote may

      not have been influenced to the injury of the Plaintiff and the residents of the City

      of Scranton.

108. If, in the place of false and misrepresenting statements by the House Majority

      Speaker DeWeese, there were statements of truth relating to the SSC as a formally

      accepted dedicated public park that is protected by common law from sale, and

      protected by the Pennsylvania State Constitution to be preserved in the name of the

      people, the vote could have been against SB 850 and the Plaintiff and residents of

      the City of Scranton would not be injured.

109. At all times, both the Senate and the House were uninformed of the truthful

      condition and trust status of the SSC, which could have influenced the vote in

      passing SB 850 and subsequently caused injury to the Plaintiff and the residents of

      the City of Scranton.

110. At all times, the Plaintiff and the residents of the City of Scranton relied upon the

      members of the House to act in an ethical and honorable manner relating to

      participating in the influence of passing SB 850, which they failed to so.

111. At no time did any kind or type of legitimate emergency exist that supported the

      need to rush SB 850 through passage.



   WHEREFORE, passage of SB 850 was unconstitutional because it was considered

upon misrepresentations of House Majority Speaker and a non-existing legitimate

emergency. It as it was passed in violation of Article 1, § 27 of the Pa. State Constitution

in that the Defendants relied upon misrepresentations to influence voting to dispose of, or
participate in the disposition of, the public trust SSC, where the Plaintiff and the people

of the City of Scranton were forced surrender their rights to preservation, use and

enjoyment forever of a formally accepted dedicated public park due to the subsequent

illegal sale of the SSC to a private entity, the University of Scranton, for the purposes of

private use.

 Plaintiff respectfully requests that this Honorable Court direct that SB 850 is nullified

and/or abrogated and that the deeds of transfer for the SSC from the SRA to the

University of Scranton are voided with ownership reverting back to the City of Scranton,

and not the SRA; or in the alternative, that if the University of Scranton is allowed to

maintain ownership of the SSC, that no private use is allowed, and that full public first

choice, and first preference, use is restored to the residents of the City of Scranton as it

has existed since 1977 with the City of Scranton charged with maintenance and upkeep of

insurance as to insure that all user fees, costs and lease terms stay as previously

negotiated and that the property is not altered in any physical manner as relates to any of

the existing amenities, parking and utilities included. In essence, so that the situation

returns to status quo for the people prior to the passage of SB 850.




                   REQUEST FOR INJUNCTIVE RELIEF



112. Paragraphs (1) through (111) are hereby incorporated by reference as if set forth in

       full.

113. The wrong is manifest on its face because:
          a. The passing of SB 850 has resulted in the Plaintiff and the residents of the

              City of Scranton being forced to surrender their constitutional rights to the

              protection, preservation and use of an active and healthy formally

              accepted dedicated public park pursuant to Article 1, § 27, where the

              public park was sold to a private entity for private purposes;

          b. The passing of SB 850 resulted in the violation of the public trust common

              laws under the Public Trust Doctrine of 1915;

          c. The passing of SB 850 was brought and considered under illegitimate

              emergency circumstances and presented for vote by the Senate and House

              relying upon intentional misrepresentations of material facts by legislators

              and senators relating to the condition and use of the subject public trust;

          d. The passing of SB 850 was unconstitutional because it was Ultra Vires

              since no agent or agency of any kind in the Commonwealth has the

              authority to pass a law that is unconstitutional; and

          e. The circumventive passing of legislation by the Scranton City Council and

              Mayor Doherty was unconstitutional and Ultra Vires.

114. Plaintiff‟s rights are clear and free from doubt because he is a taxpayer and

      resident in the Commonwealth of Pennsylvania and this matter concerns the loss

      of the preservation, protection and use of a public trust, a formally accepted

      dedicated public park. Common law relating to public trusts holds that any

      resident/taxpayer may contest or challenge the action of any government action by

      any agency that wrongfully disposes of a formally accepted dedicated public park,

      or allows for any use inconsistent with the purpose of the dedication of subject
      public trust. In addition, following Biester 487 Pa. 438, 409 A.2d 848, the

      standards for taxpayer standing are relaxed, and the Plaintiff meets all five

      preconditions set in the Biester matter.

115. Greater injury will result from denying the relief requested than granting it because

      the SB 850 has set a precedent upon which other Project 70 formally accepted

      dedicated public parks may succumb to being sold outright by their respective

      municipalities for uses inconsistent with dedicated purposes. In this instant case,

      the Project 70 restrictions were treated as if they were the only restriction on a

      formally accepted dedicated public park. The Defendants have done little more

      than circumvented longstanding and well-established common law that forecloses

      upon the inconsistent use of public parks. In addition, the Plaintiff and the

      residents of the City of Scranton will stand to lose a large, well-used and cherished

      public park that is irreplaceable, one that holds an irrevocable deed.

116. There is immediate irreparable harm because of the loss of such an expansive,

      centrally situated, public park. The facility is 10.8 acres that includes two lighted

      baseball fields; one is an adult softball field and the other a youth hardball field.

      While parents are participating in an adult league, children are participating in a

      youth league at the same time. They are the only dual lighted fields in the city. The

      SSC is centrally located just outside of central city and walking distance from

      several low-income housing developments. In addition to the baseball fields, there

      is a lighted basketball court with three baskets, two tennis courts and extensive

      green areas for the children to play various other games. The SSC has the largest

      parking area in the City of Scranton and it is located alongside the beautiful and
      scenic Lackawanna River. Families use the facility often for large family

      gatherings or for just walking the family pet. The facility has been highly used for

      state and national softball tournaments because of its parking and lighting. In

      addition, no less than thirty youth soccer leagues use the lighted facility when the

      baseball teams are not using them. The condition of the SSC is fairly good,

      notwithstanding the fact that Mayor Doherty has, since taking office in 2002,

      intentionally allowed it to be neglected to appear blighted. The recent 2003 park

      survey rated the park as better than most in the city, but used the most. The park

      survey also states that the facility only needs weeding and cosmetic repairs. The

      SSC is the recreation sports hub in the City of Scranton, which is why the

      University of Scranton wants it. It has been a fully functional sports facility since

      1977 and has given many generations of Scrantonians someplace to recreate and

      create memories. Its historic value as the centerpiece of the recreation community

      in Scranton is priceless just in the reflection so many generations have of their

      experiences there. All that the SSC has meant to the Plaintiff and residents of the

      City of Scranton will be permanently gone if the University of Scranton is

      permitted to have it for any private use whatsoever. Furthermore, allowing the

      facility to be used for extensive private use sets a horrible precedent that is sure to

      be followed whenever Mayor Doherty or any other mayor in the Commonwealth

      wants to sell off city assets such as a well used and prized public park located in a

      prime location.

117. Granting the relief will return the situation to status quo.

118. Plaintiff has no other remedy at law.
       WHEREFORE, Plaintiff respectfully requests that this Honorable Court direct

that, until final disposition is made on the Declaratory Judgment, no private use is

allowed by any party at the SSC, and that public gets first choice, and first preference,

use to temporarily restore to the residents of the City of Scranton as it has existed since

1977, with the City of Scranton charged with maintenance, and upkeep of insurance, as to

insure that all user fees, costs and lease terms stay as previously negotiated; and, that the

property is not altered or fenced off in any physical manner as relates to any of the

existing amenities, parking and utilities. In essence, so that the situation returns to status

quo prior to the passage of SB 850 so that the public use of the SSC is not interrupted.



                                       Respectfully submitted,



                                       Joseph Pilchesky, Plaintiff
                                       819 Sunset St.
                                       Scranton, Pa. 18509
                                       570-341-8005
                               VERIFICATION



   This is to verify that the statements make herein are true and correct to the best of

my knowledge, information and belief. The undersigned understands that all

statements are subject to the provisions of Title 18, Pa, C.S.A., § 4904, relating to

Unsworn Falsification to Authorities.



_____________________Date



_______________________________

Joseph Pilchesky, Plaintiff

819 Sunset St.

Scranton, Pa. 18509

570-341-8005
                        CERTIFICATE OF SERVICE


   This is to certify that I, Joseph Pilchesky, Plaintiff in the foregoing Complaint for
Declaratory Judgment and Request for Injunctive Relief, did serve a true and correct
copy upon the parties listed below by either hand delivery or certified mail, as
indicated behind the name of each name, on this 2nd day of February, 2007


Governor Edward Rendell (Hand delivered)
225 Main Capitol Building
Harrisburg, Pa. 17120


Senator Robert Mellow (Hand delivered)
Room 535 Main Capitol Building
Harrisburg, Pa. 17120


Representative Wm. DeWeese (Hand delivered)
110 Main Capitol Building
Harrisburg, Pa. 17120

Senate of the State of Pennsylvania (Hand delivered)
292 Capitol Building
Harrisburg, Pa. 17120


State Legislature of the State of Pennsylvania (Hand delivered)
139 Main Capitol Building
Harrisburg, Pa. 17120


Scranton City Council (Certified mail)
Clerk‟s Office
340 N. Washington Ave.
Scranton, Pa. 18503
Office of the Mayor of Scranton (Certified mail)
340 N. Washington Ave.
Scranton, Pa. 18503

Office of the Attorney General (Certified mail)
16th Floor, Strawberry Square
Harrisburg, Pa. 17120
                                         ________________________________
                                         Joseph Pilchesky, Plaintiff
                                         819 Sunset St.
                                         Scranton, Pa. 18509
                                         570-341-8005
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Pilchesky,                            :
       Plaintiff                             :
                                             : No. _____________________
Vs.                                          :
                                             : Complaint for Declaratory Judgment
Edward Rendell, Governor                     : and Injunctive Relief
State Senator Robert Mellow, Democratic      :
Caucas Leader,                               :
Representative Wm. DeWeesee, House           :
Majority Leader,                             :
Pa. State Senate,                            :
Pa. State Legislature,                       :
City Council of the City of Scranton, and    :
Mayor Chris Doherty, City of Scranton        :
        Defendants                           :

                              NOTICE TO DEFEND

   You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and
notice are served, be entering a written appearance personally or by attorney and filing in
writing with the court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further notice for any money
claimed in the complaint or for any other claim or relief requested by the plaintiff. You
may lose money or property or other rights important to you.

  YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.


                         Dauphin County Lawyer Referral Services
                          213 N. Front St., Harrisburg, Pa. 17101
                                      717-232-7536

                                     ___________________________________
                                     Joseph Pilchesky, Plaintiff
                                     819 Sunset St., Scranton, Pa. 18509
                                     570-341-8005

								
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