In re the Approval of Special Counsel

866 A.2d 1157, 2004 Pa. Commw. LEXIS 927
CourtCommonwealth Court of Pennsylvania
DecidedDecember 20, 2004
StatusPublished
Cited by3 cases

This text of 866 A.2d 1157 (In re the Approval of Special Counsel) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Approval of Special Counsel, 866 A.2d 1157, 2004 Pa. Commw. LEXIS 927 (Pa. Ct. App. 2004).

Opinion

OPINION BY

Senior Judge FLAHERTY.

The Luzerne County Retirement Board (Retirement Board) appeals from an order of the Court of Common Pleas of Luzerne County (trial court) dated January 23, 2004 which granted the Petition for Approval of Special Counsel filed by the Luzerne County Solicitor on behalf of the Luzerne County Board of Commissioners (Commissioners). We affirm.

The Petition for Approval of- Special Counsel that is currently before this Court is the second such Petition that has been filed by the County Solicitor on behalf of the Commissioners. The first Petition indicated that Luzerne County, through the Commissioners, had been involved in a dispute involving the Merrill Lynch Company and the Retirement Board concerning the management of the Luzerne County Pension Fund. Therefore, the solicitor asked the trial court to approve the appointment of attorney Jones as special counsel to allow him to represent Luzerne County in these matters. On February 3, 2003, the trial court granted the Petition. The Retirement Board appealed to this Court. On appeal, the Retirement Board argued that the Commissioners were prohibited from appointing a special counsel because the Retirement Board has the exclusive power to manage the fund. We rejected the Retirement Board’s argument and stated in a reported opinion that:

... pursuant to Section 9 of the Pension Law, the Retirement Board has the exclusive power to manage the fund. Evidently, it is the view of the Retirement Board that the appointment of a special [1159]*1159counsel in this case is an attempt by a majority of the County Commissioners to interfere with the Retirement Board’s exclusive management of the pension fund. However, appointment of a special counsel in no way interferes with the Retirement Board’s management of the pension fund. Rather, the majority of the County Commissioners are merely exploring their legal options with regard to problems that they perceive to exist with management of the fund. If the special counsel advises the County to bring legal action against the Retirement Board, then at that time the Retirement Board may make the argument that the majority Commissioners are im-permissibly interfering with their management of the pension fund. However, at this point the majority Commissioners are only seeking legal advice, and the Retirement Board may not interfere with their attempts to seek such advice. The only limitation upon the Commissioners’ ability to seek advice from a special counsel is that the appointment of a special counsel must be approved by the common pleas court. That approval has taken place, and this Court can find no abuse of discretion by the trial court in granting this approval. Furthermore, Section 11 of the County Code makes the “maintenance of the necessary reserves for the payment of the county and members’ annuities” an obligation of the county. As such, although the management of the pension fund is the sole responsibility of the Retirement Board, maintenance of the fund is an obligation of the county and the Commissioners cannot be prohibited from obtaining legal advice to assist them in their maintenance of necessary reserves for payment of the pension fund.

In re Approval of Special Counsel, 840 A.2d 532, 535 (Pa.Cmwlth.2004). In addition, we rejected the Retirement Board’s argument that the Petition did not comply with the Rules of Civil Procedure:

At the time the petition was filed, the majority Commissioners were not engaging in an adversarial proceeding against the Retirement Board, but were only following the administrative mandate of the County Code to obtain approval of the court. There are no provisions in either the Rules of Civil Procedure or the County Code for service of the Petition to be made on the Retirement Board or on other possible persons who could object to the approval sought by the Commissioners. The majority Commissioners were merely hiring legal counsel. Thus, the majority Commissioners were not required to provide the Retirement Board with a Notice to Defend, nor were they required to serve the Retirement Board with a copy of the Petition
In summary, the Retirement Board is premature in anticipating litigation where none has yet occurred. This case was not an adversarial proceeding. It was not an “action” against any entity which would require the filing of a complaint or praecipe for writ of summons under Pa. R.C.P. 1007 or other legal matter where service of process or notice of the action is required under the Rules of Civil Procedure. The Retirement Board argues that this matter is an adversarial proceeding requiring notice, but cites scattered references to rules which are inapplicable unless the County Commissioners filed an action against the Retirement Board. Such is not the case. Rather, the filing of the Petition in this case was an administrative matter of the county which only required the filing of a petition for approval by the County without any requirement for notice to the Retirement
[1160]*1160 Board or any other county-related agency ...

Id. at 536 (emphasis added).

Thereafter, on January 23, 2004, the County Solicitor filed a second Petition for Approval of Special Counsel. This is the Petition which is the subject of the current dispute before this Court. The Petition states that:

1. Luzerne County, by and through its Board of Commissioners, is and has been involved in a dispute involving the Luzerne .County Retirement Board concerning the management of the Luzerne County Pension Fund and expenditures for outside legal services paid from the fund.
2. That this dispute involves a number of complex legal issues which face Lu-zerne County and its Board of Commissioners in its effort to maintain fiscal and responsible and professional management of Luzerne County finances and of the Luzerne County Pension Fund for the benefit of its members and contributors.
3. The Luzerne County Solicitor’s Office is ethically conflicted from participating in the action arising as a result of the dispute between the County of Lu-zerne and the Luzerne County Retire-taent Board as the Solicitor’s Office represents parties on both sides of this dispute in services rendered as'Luzerne County Board of Commissioners and Luzerne County Salary Board.
4. By Order of this Court dated February 3, 2003 Attorney Christopher B. Jones ... was appointed special counsel upon request of the Luzerne County Board of Commissioners. It is respectfully submitted that it is the belief of the Board of Commissioners of Luzerne County that additional expertise in the field of litigation was and is required to enhance the possibility of successfully resolving the said dispute and • issues referenced above. The conditions of this matter are unusual and exceptional and a real requirement exists for additional professional skill and knowledge in this matter.
5. On April 2, 2003 Attorney Christopher B. Jones filed an action in equity on behalf of Luzerne County in the Lu-zerne County Court of Common Pleas ... On December 29, 2003 a further filing was made in said action on behalf of Luzerne County.
6. Attorney John P.

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866 A.2d 1157, 2004 Pa. Commw. LEXIS 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-approval-of-special-counsel-pacommwct-2004.