Marcus v. Diulus
| Decision Date | 27 September 1976 |
| Citation | 242 Pa.Super. 151,363 A.2d 1205 |
| Parties | Joseph MARCUS et al. v. Guy DIULUS et al., Appellants. |
| Court | Pennsylvania Superior Court |
Argued June 21, 1976.
D. R. Pellegrini, Pittsburgh, for appellants.
Ronald C. Weingrad, Robert B. Marcus, Wendell G. Freeland Pittsburgh, for appellees.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
This appeal presents a unique question: Can a court of equity enjoin officers of the Commonwealth from using evidence seized pursuant to a search warrant in criminal proceedings within the Commonwealth of Pennsylvania of from sending such evidence to authorities in other states? For the reasons hereafter stated, we find that the lower court had no jurisdiction to decide this question and reverse the decree entered below.
Prior to discussing the law infolved, a short summation of the facts in this case is necessary. On February 24, 1976, a search warrant was executed for the premises of a company in Pittsburgh known as J. Marcus Wholesalers, Inc. The affiant for the warrant was Robert Swanson, an Assistant District Attorney of Denver County, Colorado, and a defendant in the present action. Guy Diulus, a detective in the Pittsburgh police department and another defendant in this case, was the law enforcement officer who executed the warrant and seized the evidence discovered during the search. The affidavit in the search warrant disclosed that the District Attorney's Office in Denver had conducted an investigation into the sale of imitation perfume in January, 1976; the investigation revealed that certain stores in the Denver area were selling perfume in counterfeit and forged wrappings; and after further investigation, it was discovered that the source of the perfume was J. Marcus Wholesalers Inc., in Pittsburgh, Pennsylvania. On the basis of this and other information a search warrant was issued by a magistrate in Pittsburgh. [1] The warrant charged the owners of the company with the following violations of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 101 Et seq. (1973): Deceptive business practices, 18 Pa.C.S. § 4107 (1973); Theft by deception, 18 Pa.C.S. § 3922(a)(1) and (2) (1973); Conspiracy, 18 Pa.C.S. § 903 (1973); Aiding consummation of crime, 18 Pa.C.S. § 5107 (1973); Complicity, 18 Pa.C.S. § 306 (1973); and Simulating objects 18 Pa.C.S. § 4102 (1973).
A search of the premises revealed various records, documents, and other items including perfume in apparently counterfeit containers and wrappings that connected J. Marcus Wholesalers, Inc., with the illegal transactions in Denver. The evidence was seized and held by the Pittsburgh Police. Seventeen days later, on March 12, 1976, plaintiffs, J. Marcus Wholesalers, Inc., and its owners, Joseph Marcus and Jack Marcus, filed a petition for declaratory judgment and a complaint for an injunction in the equity division of the Court of Common Pleas of Allegheny County. No charges had at that time been formally made against the owners of J. Marcus Wholesalers, Inc. The petition for declaratory jugment and the complaint for injunction were both amended a few days later. The plaintiffs requested the court to find that the search and seizure conducted by the defendants, authorities of the city of Pittsburgh and county of Allegheny as well as the authorities from Denver, was unlawful and plaintiffs prayed that these public officers be enjoined from sending the evidence seized to authorities outside the Commonwealth of Pennsylvania. Subsequently, the defendants filed preliminary objections claiming that a court of equity did not have jurisdiction in this criminal matter and also that the plaintiffs did not state a cause of action in equity because they had a complete and full remedy at law. On March 24, 1976, the lower court held a hearing to consider argument on defendants' preliminary objections and to determine whether a preliminary injunction should be granted. See Printed Record at 72a and 98a. Although no testimony was taken at the hearing, counsel for the parties argued their respective positions on the issues of jurisdiction and the legality of the search and seizure. On May 3, 1976, the lower court made its decision and found that the search and seizure of plaintiffs' building was unlawful and enjoined the defendants not only from permitting the evidence seized to be sent to Colorado but also enjoined the use of such evidence within the Commonwealth of Pennsylvania. [2] This appeal followed. [3]
The lower court's rationale for accepting equity jurisdiction is best explained by the following excerpt from its opinion in support of its decision:
After accepting jurisdiction, the court below went on to hold that the search warrant procedure employed by the defendants was excessively harsh and that instead of a search warrant, the defendants should have used a subpoena duces tecum to obtain the evidence they desired. According to the lower court, the less onerous subpoena duces tecum procedure was available to the authorities from Colorado under the Uniform Act To Secure Attendance of Witnesses, act of June 23, 1941, P.L. 147, 19 P.S. § 622.1 Et seq. (1964).
Because we do not initially agree with the lower court's taking of jurisdiction in this case, we will not address ourselves to the merits of the search warrant versus subpoena duces tecum issue. Nevertheless, we will take this opportunity to express concern over the question of whether the Uniform Act To Secure the Attendance of Witnesses applies to the production of physical evidence. Compare In the Matter of Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581 (1965) With In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (1954). See also United States v. Monjar, 154 F.2d 954 (3d Cir.1946). Even if the Uniform Act To Secure the Attendance of Witnesses pertains to physical evidence, we are skeptical as to its employment where the evidence was in the possession of a suspect of a crime rather than a mere witness. See Stanford Daily v. Zurcher, 353 F.Supp. 124 (N.D.Cal.1972). Of course, the procedure used to secure the attendance of a person charged with a crime is the Uniform Criminal Extradition Act, Act of July 8, 1941, P.L. 288, § 1 Et seq., 19 P.S. § 191.1 Et seq. (1964). And it is apparent from the record that plaintiffs in this case have been indicted for various crimes by the Denver County, Colorado Grand Jury. See Printed Record at 58a.
A court has the inherent power to determine on its own motion whether it has the jurisdiction to decide the cause before it. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966). Therefore, even if a party fails to raise this issue by objection or exception in the court below, it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction. [4] Cathcart v. Crumlish, 410 Pa. 253, 189 A.2d 243 (1963). Accordingly, plaintiffs' argument that appellants waived the issue by failing to file exceptions to the lower court's adjudication, See Pa.R.C.P. 1518, cannot succeed.
Blackstone's definition of equity was 'the correction of that wherein the law (by reason of its universality) is deficient. " Everett v. Harron, 380 Pa. 123, 130, 119 A.2d 383, 387 (1955). Because of the various remedies at law available to one accused of a crime, '(c)ourts of equity traditionally have refused, except in rare instances, to enjoin criminal prosecutions.' Cleary v. Bolger, 371 U.S. 392, 397, 83 S.Ct. 385, 388, 9 L.Ed.2d 390 (1963). Pennsylvania courts in particular have exercised considerable caution over the involvement of a court of equity in the field of law enforcement.
In Cooper v. McDermott, 399 Pa. 160, 159 A.2d 486 (1960) plaintiffs in California brought suit against the District Attorney's Office in Philadelphia to enjoin its attempt to extradite them. The Pennsylvania Supreme Court in holding that the court in equity had no jurisdiction in the criminal matter stated:
Id. at 163, 159 A.2d at 488--9 (citations omitted).
Again in Cathcart v. Crumlish, supra, the Supreme Court held that equity had no jurisdiction to enjoin a district attorney from subpoenaing a witness where the witness could test the validity of the subpoena in the criminal courts. Merrick v. Jennings, 446 Pa. 489, 288 A.2d 523 (1972) and Sexton v. Stine, ...
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