Gwinn v. Kane

• Decision Date: 07 July 1975
• Citation: 465 Pa. 269,348 A.2d 900
• Parties: Richard H. GWINN, Appellant, v. Robert P. KANE et al.
• Court: Pennsylvania Supreme Court

Page 900

348 A.2d 900

465 Pa. 269

Richard H. GWINN, Appellant, v. Robert P. KANE et al.

Supreme Court of Pennsylvania.

July 7, 1975.

Opinion Nov. 26, 1975.

Decision July 7, 1975.

Jerome R. Richter, Blank, Rome, Klaus & Comisky, Philadelphia, for appellant.

Michael L. Levy, Asst. Atty. Gen., Philadelphia, for appellees.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

PER CURIAM.

The order of the Commonwealth Court is affirmed. 339 A.2d 838. Opinion to follow.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Richard H. Gwinn brought this action in quo warranto in the Commonwealth Court against then Attorney General Israel Packel ¹ and Walter Phillips, a deputy attorney general in charge of the 'Office of the Special Prosecutor, Department of Justice.' It challenges the appointment of Phillips as a special attorney superseding the District Attorney of Philadelphia in certain matters. ² On cross-motions for summary judgment, the Commonwealth Court concluded that there was no disputed issue of material fact and that Phillips had been validly appointed as a special attorney. This appeal ensued. ³ We affirm. ⁴

Some of the background facts in this case are well summarized in this Court's opinion in In Re Investigation of January 1974 Philadelphia Grand Jury, --- Pa. ---, ---, 328 A.2d 485, 486--87 (1974): ⁵

'In June of 1972 Judge Harry A. Takiff convened and charged a grand jury, upon the petition of the District Attorney, to investigate various aspects of official corruption in the City of Philadelphia. . . . During the term of that grand jury twenty-one presentments were made identifying pervasive and systematic corruption and other criminal acts among other public officials and employees, and numerous indictments were recommended. In addition, the June 1972 grand jury issued a final report in January of 1974 wherein it recommended that a new investigating grand jury be convened 'very promptly' to inquire further into the distribution of narcotics and related payoffs to policemen, and kickbacks required of architects, engineers, milk company executives and other businessmen in exchange for procuring public contracts.

'Judge Takiff was also assigned to supervise the January 1974 grand jury. Although the new District Attorney who took office in the beginning of January 1974 had taken no action in response to the recommendations of the June 1972 grand jury, two citizens' groups had petitioned Judge Takiff requesting such an investigation. These petitions . . . were rendered moot on January 31, 1974, however, when Judge Takiff charged the grand jury on his own action to conduct an investigation into nine specified areas (of official corruption). In order to effectuate this charge, the term of the grand jury was extended indefinitely and the grand jury was directed to reconvene, following completion of business, on February 11, 1974. Additionally, Judge Takiff requested the District Attorney to assign members of his staff to handle the investigation being conducted by the grand jury. The District Attorney, however, declined to comply with Judge Takiff's request and subsequent order to assign members of his staff to conduct these investigations.

'Following the District Attorney's refusal to comply with Judge Takiff's order, President Judge Jamieson advised the Attorney General of the Commonwealth by letter that in his judgment the matter was appropriate for intervention by the Commonwealth and requested him, pursuant to the (Administrative Code of 1929,) Act of April 9, 1929, P.L. 177, art. IX, § 907, 71 P.S. § 297, to assign a special attorney or attorneys to represent the Commonwealth, attend the January 1974 grand jury and perform all the duties and responsibilities in connection therewith.' (Footnote omitted.)

On March 11, 1974, shortly after President Judge Jamieson made this request, the Pennsylvania Crime Commission issued a Report on Police Corruption and the Quality of Law Enforcement in Philadelphia asserting that there were pervasive police corruption in that city. It recommended appointment of a statewide special prosecutor to investigate and prosecute corrupt practices by government officials throughout the Commonwealth.

On March 26, 1974, the Attorney General appointed Phillips as a deputy attorney general, ⁶ and directed him to organize the 'Office of the Special Prosecutor' ⁷ to continue the investigation of official corruption in Philadelphia begun by the Pennsylvania Crime Commission. ⁸ On March 28, 1974, the District Attorney of Philadelphia was notified that he was being superseded by the Attorney General in the task of investigating and prosecuting police corruption in Philadelphia and that all allegations of such corruption should be referred to Phillips. On May 1, 1974, the Attorney General informed President Judge Jamieson that, pursuant to his request, Phillips and his staff were being directed to 'man' the January 1974 Philadelphia Grand Jury (hereafter, the Grand Jury).

The Grand Jury, with the assistance of Phillips and his staff, proceeded with its investigation. On September 11, 1974, it issued a presentment alleging that appellant, the president of a milk company, had committed perjury and false swearing in his testimony before the June 1972 Philadelphia Grand Jury regarding his company's contracts with the city. On September 26, 1974, another grand jury indicted appellant on these charges. Trial on this indictment was scheduled to begin on March 3, 1975, when this action was brought on December 24, 1974.

On December 27, the Commonwealth Court transferred the case here because it concluded that original exclusive jurisdiction to entertain actions in quo warranto involving officers of statewide jurisdiction was in this Court. On January 24, 1975, we retransferred the case to the Commonwealth Court for disposition. ⁹ After further proceedings, the Commonwealth Court entered a summary judgment in favor of the defendants and this appeal ensued.

The primary issue presented in this appeal is the validity of Phillips' appointment as special attorney superseding the District Attorney of Philadelphia. Appellees assert here, as they did in the Commonwealth Court, that (1) this question is not properly cognizable in quo warranto ¹⁰ and (2) appellant lacks standing to raise it. ¹¹ While the Commonwealth Court rejected these contentions, their resolution is not free of difficulty. However, because we agree with the Commonwealth Court that the appointment was proper, appellant is not entitled to relief even if the issue is cognizable in quo warranto and he has standing to raise it. Consequently, we need not resolve those questions. ¹²

Appellees maintain that Phillips' appointment as special attorney can be sustained on two independent bases: (1) the common law power of the Attorney General recognized in Margiotti Appeal, 365 Pa. 330, 75 A.2d 465 (1950) and Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1936) (alternate holding), and (2) section 907 of the Administrative Code of 1929. ¹³ As did ithe Commonwealth Court, we conclude that the statutory basis relied upon by appellees is sufficient and therefore need not decide whether the common law power of the Attorney General would also sustain the appointment.

Pursuant to section 907, the President Judge of the Court of Common Pleas of Philadelphia informed the Attorney General that he believed that the investigation being undertaken by the grand jury was a proper case 'for the Commonwealth's intervention,' and requested that he appoint a special attorney. On May 1, 1974, the Attorney General agreed to this request and appointed Phillips as special attorney. The prosecution of appellant is a product of the activities of Phillips in that capacity. Thus, if the statutory appointment is valid, it is of no consequence here whether the purported supersession on March 28, 1974, under the common law powers of the Attorney General is also valid.

Appellant's first attack, based in part on his erroneous belief that Phillips purports to hold the office of 'Special Prosecutor of the Commonwealth of Pennsylvania,' ¹⁴ relies upon dicta in Smith v. Gallagher, 408 Pa. 551, 580--81, 185 A.2d 135, 149--50 (1962), which appear to indicate that no such office could constitutionally be created. ¹⁵ Smith involved an attempt by a single judge of a court of common pleas to appoint a 'special prosecutor' to supersede the district attorney in the conduct of a grand jury investigation. The opinion in Smith explicitly recognized that the question involved there was entirely unrelated to the issue presented in this case: ¹⁶

'What powers the Attorney General may have over district attorneys . . . is a subject for discussion . . . but That discussion has no place here since our issue is whether a judge on his own initiative may oust a district attorney from the performance of his duties. In any event, the powers of a single judge cannot be equated with those of the Attorney General where supersession is involved, since the judge lacks any statute, common law or decisional authority to act in a supersessional capacity.'

Id. at 605, 185 A.2d at 162 (emphasis added). Appellant's attempt to base his attack on these dicta from Smith must therefore fail both because he misconceives the office held by Phillips and because Smith is totally inapposite on this point.

Appellant next argues, relying on certain other dicta in Smith, ¹⁷ that section 907 requires that a president judge consult with the other judges of his court before he requests the intervention of the Attorney General under section 907. ¹⁸ Because there was no such consultation here, appellant contends that the request for appointment of a special attorney was defective and the Attorney General was not authorized to act under section 907.

The statute makes no mention of any requirement of consultation, vesting the authority to request...