Municipal Publications, Inc. v. Snyder

Decision Date03 February 1984
Docket NumberNo. 46,46
Citation469 A.2d 1084,322 Pa.Super. 464
PartiesMUNICIPAL PUBLICATIONS, INC., D. Herbert Lipson, and Alan Halpern, Petitioners, v. Judge Bernard SNYDER, Court of Common Pleas of Philadelphia County, and Court of Common Pleas of Philadelphia County. Misc. 14.
CourtPennsylvania Superior Court

David H. Marion and Arthur H. Bryant, Philadelphia, for petitioners.

Richard A. Sprague, Philadelphia, for Snyder, respondent.

Jonathan D. Bennett, Philadelphia, for Edghill, respondent.

Before SPAETH, President Judge, and WICKERSHAM and BROSKY, JJ.

SPAETH, President Judge:

Before us is a petition for writ prohibiting the Honorable Bernard SNYDER from continuing to preside over a motion that he recuse himself. We have decided that the writ should issue, with an order directing that another judge be designated to hear and decide the recusal motion.

We shall start by considering our power to issue a writ of prohibition. Then we shall state the legal principles that govern the exercise of that power, and examine the facts of this case in the light of those principles. And finally, we shall consider whether an order filed by the Supreme Court precludes issuance of the writ.


The writ of prohibition "is of very ancient origin, and may be said to be as old as the common law itself." J. High, A Treatise on Extraordinary Legal Remedies 707 (3d ed. 1896). Glanville, writing in 1189, gives a form of the writ. Originally the writ issued from the King's Bench, so called because the King himself used to sit on the court, 3 W. Blackstone Commentaries 42, but later the other courts at Westminster, the Common Pleas and the Exchequer, were given the power to issue the writ, id. at 111. The jurisdiction of the King's Bench was said to be "very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined [by the King's Bench] or prohibit their progress below." Id. at 42.

The Pennsylvania Supreme Court was at its inception given the powers of the three courts at Westminister. Act of May 22, 1722, 1 Sm.L. 131, ch. 255. In Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948), the Supreme Court said: "By the Act of 1722 the Supreme Court of Pennsylvania was placed in the same relation to all inferior jurisdictions that the King's Bench in England occupied, and thus the power of superintendency over inferior tribunals became vested in this Court from the time of its creation .... In the exercise of its supervisory powers over subordinate tribunals the Court of King's Bench employed the writ of prohibition and such right and practice accordingly passed to the Supreme Court ...." Id., at 99-100, 61 A.2d at 428-429 (citations omitted). See also, First Congressional District Election, 295 Pa. 1, 144 A. 735 (1928) (Supreme Court has power to issue common law writ of prohibition). The Court's power to issue the writ is codified in 42 Pa.C.S.A. § 721, which does not enlarge or restrict the office of the common law writ but merely confers the power to issue the writ:

The Supreme Court shall have original but not exclusive jurisdiction of all cases of:

(2) Mandamus or prohibition to courts of inferior jurisdiction.

This court was granted the power to issue the writ of prohibition in 1941. Act of May 21, 1941, P.L. 47. Turtle Creek Borough Audit, 401 Pa. 201, 163 A.2d 876, 879 (1960) ("It was not until 1941 that power to issue the extraordinary common law writs of mandamus and prohibition to courts of inferior jurisdiction was first conferred on the Superior Court ....") We are not, however, vested with the powers of the King's Bench, Bell Appeal, 396 Pa. 592, 152 A.2d 731 (1959), and we may therefore only issue the writ as ancillary relief. Pa. Labor Relations Board v. Butz, 411 Pa. 360, 364, 192 A.2d 707, 710 (1963). This power is codified in 42 Pa.C.S.A. § 741:

The Superior Court shall have no original jurisdiction, except in cases of mandamus and prohibition to courts of inferior jurisdiction where such relief is ancillary to matters within its appellate jurisdiction.....

Here, the writ is requested as relief ancillary to a matter within our appellate jurisdiction. As will later be stated in more detail, the underlying action is an action for libel. Any appeal from the final judgment will have to be taken to this court. 42 Pa.C.S.A. § 742. Therefore, we have the power to issue the writ, and must decide whether to issue it.

[322 Pa.Super. 470] -2-

The writ of prohibition issues from a superior tribunal to an inferior tribunal to prevent the inferior tribunal assuming jurisdiction it does not legally have. 3 W. Blackstone's Commentaries 111. It has been said that under English common law "[t]he appropriate function of the remedy is to restrain the exercise of unauthorized judicial or quasi-judicial power, which is regarded as a contempt of the state or sovereign, and which may result in injury to the state or to its citizens," High, supra at 708, but that under American common law the writ issues primarily to protect the rights of the petitioner seeking the writ, rather than the jurisdiction of the superior tribunal, Hughes & Brown, The Writ of Prohibition, 26 Geo.L.J. 831 (1938). The writ is an extraordinary legal remedy. It is "to secure order and regularity in judicial proceedings, and should be issued only in cases of extreme necessity." 22 R.C.L. 5. See also, Carpentertown Coal & Coke Co. v. Laird, supra 360 Pa. at 102, 61 A.2d at 430. Issuance of the writ is never a matter of right but rests in the discretion of the court. Id. at 102, 61 A.2d at 430.

Generally speaking, at common law two conditions must be satisfied before the writ of prohibition may issue. The first condition is that there has been a usurpation of power by the inferior tribunal. The second condition is that there is no adequate remedy other than the writ. High, supra at 708.

The first condition--a usurpation of power--is satisfied when the inferior tribunal has no jurisdiction over the subject matter from the very beginning of the proceeding. As an example of lack of jurisdiction, the Supreme Court in Akron Borough v. Pennsylvania P.U.C., 453 Pa. 554, 561, 310 A.2d 271, 275 (1973), quoting Gellhorn & Byse, Administrative Law 138 (1970), said: "It is as though a justice of the peace, empowered to hear only petty cases such as those involving traffic law violations, were to summon parties before him in order to decide whether a divorce decree should be granted." The first condition is also satisfied when the inferior tribunal had jurisdiction but has exceeded its jurisdiction. "The province of a writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but it is extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject-matter in controversy, has exceeded its legitimate powers." High, supra at 734 (footnote omitted). As explained in 3 W. Blackstone's Commentaries 111: "[I]f in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them [by law] ... in such cases, also, a prohibition will be awarded." Blackstone illustrates the point by supposing a case "where [the ecclesiastical courts] require two witnesses to prove the payment of a legacy, a release of tithes, or the like .... For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their jurisdiction; it ought, therefore, where the two differ, to be decided, not according to the spiritual, but the temporal law ...." Id. at 111-12.

As a matter of logic, the distinction between a "lack" and an "excess" of jurisdiction may not always be clear. 1 Thus it has been said: "Although want of jurisdiction and excess of jurisdiction are commonly referred to and considered as separate grounds for the issuance of the writ, there is in principle little distinction between them as each means an attempt to take judicial action without judicial power or authority for such action. The subject of inquiry in each case is the extent of power in the court proceeded against." 22 R.C.L. 18-19 (footnote omitted). Whether arising from a "lack" or "excess" of jurisdiction, however, there must be a usurpation of power before a writ of prohibition will issue. The writ is not an appropriate remedy for the correction of errors not going to jurisdiction. High, supra at 714; 22 R.C.L. 15.

The second condition--no other adequate remedy--derives from the nature of the writ: "It follows from the extraordinary nature of the remedy ... that the exercise of the jurisdiction is limited to cases where it is necessary to give a general superintendence and control over inferior tribunals, and it is never allowed except in cases of a usurpation or abuse of power, and not then unless other existing remedies are inadequate to afford relief." High, supra at 712. See also 23 Am. & English Encyclopedia of Law 207 (2d ed) ("It is always a good reason for withholding the writ if the party aggrieved has another and complete remedy at law, by which the desired end can be satisfactorily and fully accomplished.") "The mere fact that an applicant has a remedy by appeal or some other proceeding is not, however, conclusive against his right to the writ. Notwithstanding that fact, it may be granted if, in the judgment of the court, such remedy is not plain, speedy, and adequate." 22 R.C.L. 10. See also 23 Am. & English Encyclopedia of Law, supra at 208 (same). The fact that an appeal involves expense and delay is not by itself sufficient reason to hold that an appeal is not an adequate remedy. 22 R.C.L. 11. Also, it may be that there is no right to appeal, but that does not...

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