Commonwealth ex rel. Duff v. Keenan

• Decision Date: 13 July 1943
• Docket Number: 1795
• Citation: 347 Pa. 574,33 A.2d 244
• Parties: Commonwealth ex rel. Duff, Attorney General, v. Keenan et al
• Court: Pennsylvania Supreme Court

33 A.2d 244

347 Pa. 574

Commonwealth ex rel. Duff, Attorney General, v. Keenan et al

No. 1795

Supreme Court of Pennsylvania

July 13, 1943

June 30, 1943, Argued

Original jurisdiction, No. 113, Misc. Docket No. 8, upon petition for writ of mandamus in case of Commonwealth ex rel James H. Duff, Attorney General, v. J. Hilary Keenan President Judge, Richard D. Laird and George H. McWherter additional Law Judges of the Court of Common Pleas of Westmoreland County. Judgment entered for plaintiff against defendant, President Judge J. Hilary Keenan; judgment entered in favor of defendants, Judges Richard D. Laird and George H. McWherter; peremptory writ of mandamus ordered to be issued forthwith directed to defendant President Judge J. Hilary Keenan.

James H. Duff, Attorney General, with him William M. Rutter, Deputy Attorney General, for petitioner.

Joseph P. Sheridan, for defendant, President Judge J. Hilary Keenan.

Before MAXEY, C.J.; DREW, LINN, STERN, PATTERSON, PARKER and STEARNE, JJ.

OPINION

MR. CHIEF JUSTICE MAXEY:

This is a case of original jurisdiction in which James H. Duff, Attorney General of Pennsylvania, filed on June 4, 1943, a petition for a writ of mandamus against the judges of the court of common pleas of Westmoreland County to decide certain cases long pending in that court and to file opinions and orders in those cases in the proper office, or to show cause, if any there be, why the same should not be done.

Westmoreland County has a population of 302,355 people, and the court of common pleas of that county consists of three judges, to wit: J. Hilary Keenan, who by virtue of seniority of service is President Judge, and two additional law judges, to wit, Richard D. Laird and George H. McWherter. Of these latter two, Judge Laird took office on the first Monday of January, 1938, and Judge McWherter on January 5, 1942. Judge Keenan took office on February 14, 1936.

In the Attorney General's petition for a mandamus he listed thirty-six cases which had been submitted to that court for determination on the dates set forth in that petition. All of these cases except six were submitted in 1942, the oldest having been submitted March 16, 1942, and the youngest having been submitted March 9 and March 16, 1943, respectively. The petition averred that these cases had remained undecided at the time of the application for the writ of mandamus, thus hindering, delaying and prejudicing the rights of the litigants in those cases. The petition then referred to Rule 93 of the Supreme Court of Pennsylvania, which provides, inter alia, that [Section 4] "If any matter so submitted [to the proper court of common pleas] remains pending and undisposed of at the end of ninety (90) days after its submission, the judge having the matter in hand, or the senior judge of the court en banc to which the matter was submitted, shall forthwith report, in writing, the cause of the delay to the Chief Justice of the Supreme Court." [Section 5] "This rule shall apply to all equity, common law and statutory proceedings requiring decision, whether interlocutory or final."

The petition also contained proper averments as to want of other adequate remedy at law.

On June 24, 1943, Judge Richard D. Laird, filed his answer. He denies that certain cases which were contained in the petition of the Attorney General were at any time submitted to him for determination. Those cases are the ones which in the Attorney General's petition we have numbered 1, 2, 3, 7, 9, 10, 12, 15, 16, 19, 20, 21, 22, 23 and 24. He avers further that since the year 1921 the Prothonotary of Westmoreland County has divided the cases for argument into two groups, (a) the Court in Banc argument list, and (b) the individual Judges' list, and that the last mentioned group is again divided into three parts, each of the judges taking one part, and he alleges that the above mentioned cases numbered 1, 2, 3, 7, 9, 10, 12, 15, 16, 19, 20, 21, 22, 23 and 24 were placed on the individual argument list of Judge Keenan by the Prothonotary and were argued before Judge Keenan sitting alone.

He admits that some of the cases in controversy mentioned in the Attorney General's petition were argued before the Court in Banc of which he is a member, but says that it is impossible for him to dispose of the legal matters which come to him individually and to decide and dispose of all the cases and controversies which are submitted to and argued before the Court in Banc, and alleges that it is impossible for him to dispose of his own work and to decide and dispose of even one-half of the cases which are submitted to and argued before the Court in Banc in Westmoreland County. He then sets forth certain cases which were listed in the Attorney General's petition as having been argued before the Court in Banc and "voluntarily taken and accepted by his Honor, Judge Keenan, for determination and disposition." These cases are those numbered in the Attorney General's petition as 4, 5, 6, 8, 11, 13, 14, 17, 18, 25, 26, 27 and 28, making a total of thirteen cases. He admits that the cases we identify as Nos. 30 and 31 in the petition were assigned to him for decision, but that Judge McWherter being disqualified, he, Judge Laird, wrote the opinion in No. 31 and left the decree and opinion in Judge Keenan's chambers on October 26, 1942, for disposition by Judge Keenan, and to the best of his knowledge the opinion and decree are still in the hands of Judge Keenan. He also alleges that Judge McWherter being disqualified, he, Judge Laird, prepared opinions and decrees in case No. 30 and also in Nevling v. Commercial Credit Company, No. 78 August Term 1937 (not mentioned in the Attorney General's petition), left the same in Judge Keenan's chambers for his judicial action, and that the cases remain undisposed of.

He admits that cases numbered 29 and 32 were argued before the Court in Banc and were assigned to Judge McWherter, that Judge McWherter prepared an opinion and decree which was concurred in by Judge Laird in case No. 29 and submitted the same to Judge Keenan, who has not disposed of it. Case No. 32 is in the hands of Judge McWherter.

He also avers that because of the neglect of court business by Judge Keenan, Judges McWherter and Laird have for the last year refrained from submitting any opinions or decrees in "court en banc" cases to Judge Keenan for approval or disapproval, but have handed such decrees down as "a majority of the Court concurring", in order to expedite the business of said Court.

He admits that cases we numbered 33, 34, 35 and 36 in the Attorney General's petition were assigned to him for determination and disposition, but that in Nos. 33, 34 and 35 no briefs were filed at the time of the argument, and in No. 36 no brief has yet been filed for or on behalf of the plaintiff. He further avers that because of the press of other business, opinions and decrees were not prepared or filed in the cases or causes mentioned in this paragraph before the issuing of the writ, and that opinions and decrees concurred in by Judge McWherter were filed June 12, 1943, in the cases we have numbered 33, 34 and 35, respectively, in the Attorney General's petition. He alleges that it is not physically possible for him to do any more work than he has been doing since January 1, 1938, and that he has at all times endeavored to dispose of his own work with dispatch and assist in the disposition of Judge Keenan's unfinished business. He also avers that in January, February and March, 1942, he sat with Judge Gordon of Philadelphia County, specially assigned by the Supreme Court to Westmoreland County, and with Judge Gordon and Judge McWherter endeavored to dispose of a number of cases which remained undisposed of on Judge Keenan's desk, and he lists other judicial work which he and Judge McWherter and Judge Fetterhoof, specially presiding, disposed of in Westmoreland County. He also states that the argument list of Westmoreland County in December 1942 contained 37 cases and that Judge Keenan was not present at the argument and did not participate in hearing the same. The list was disposed of by Judges Laird and McWherter hearing and deciding 21 cases and continuing 16 cases until such time as Judge Keenan could be present, namely, January 27, 1943, at which time the 16 cases were disposed of as follows: 9 were continued, 1 settled, 3 assigned to Judge Keenan and 3 to Judge Laird, two of which latter were Kennedy v. Zanarini (No. 36) and Fulcomer v. Penna. Railroad Company (No. 35) of the Attorney General's petition.

He also sets forth that the Court in Banc argument list for the May Term 1943 was set for hearing June 16, 1943, and contained 21 cases, that Judge Keenan was not present in court and took no part in hearing the arguments, and that he and Judge McWherter disposed of the list in the following manner: 10 cases continued, 5 cases assigned to Judge McWherter, and 6 cases assigned to Judge Laird. He avers that there is too much legal work in Westmoreland County for two Common Pleas Judges to handle. He says that because of the failure of Judge Keenan to act, decide and dispose of cases and causes presented to him when sitting alone, members of the Bar, Attorneys and Counsel refuse to present matters to Judge Keenan for hearing, holding the same for presentation to Judge McWherter and Judge Laird and thus unduly increasing their work. He concludes by saying that there is nothing on his desk undisposed of except cases argued June 15 and 16, 1943, and he prays that he may be dismissed from these charges.

Judge McWherter in his answers makes statements which are in accord with those made by Judge Laird. He also sets forth that on or about the 15th day of May, 1943, he received a letter...