Smith v. Gallagher

Decision Date26 October 1962
Citation185 A.2d 135,408 Pa. 551
PartiesBeatrice M. SMITH v. John A. GALLAGHER, Finance Officer of the Administrative Office of the Court of Common Pleas and of the Quarter Sessions Court of Philadelphia County, Francis A. Lalley, Finance Director of the City of Philadelphia, Alexander Hemphill, Controller of the City of Philadelphia and Philip P. Poorman, Treasurer of the City of Philadelphia, Appellants. Petition of Robert L. LEONARD, Raymond W. Fluhrer, John Oresic, Alexander Osinoff, Minerva Buss, Gloria R. Sabatini, Robin F. McNeill, Matthew Patterson, Harry Gersovitz, Max Kaplan, Joseph McNamara, Henry J. Wyszynaki, Emma L. Robinson. Appeal of Paul D'ORTONA, Thomas McIntosh, Harry Norwitch, George X. Schwartz, Thomas M. Foglietta and Abraham E. Freedman. W. Wilson WHITE, Petitioner, v. Honorable Joseph E. GOLD, Honorable Victor H. Blanc, and Honorable Bernard J. Kelley. Petition of James C. CRUMLISH, Jr., District Attorney of Philadelphia County for a Writ of Prohibition, Directed to the Honorable Eugene V. Alessandroni, President Judge of the Court of Common Pleas No. 5 of Philadelphia County, Pennsylvania, and W. Wilson White, Esq., Special Prosecutor Designate.
CourtPennsylvania Supreme Court

[Copyrighted Material Omitted]

David Berger, City Sol., Philadelphia, Louis Lipschitz, Philadelphia, for appellant.

Herbert S. Levin, Thomas D. McBride, Philadelphia for Democratic County Executive Committee of Philadelphia.

David O. Maxwell, Philadelphia, for Republican Alliance.

W Wilson White, Philadelphia, for W. Wilson White and F. Hastings Griffin, intervening appellants.

No. 425:

David Berger, Esq., City Sol. Philadelphia, for appellant.

Robert M. Landis, Philadelphia, F. Hastings Griffin, Jr., appellee.

No. 327:

W. Wilson White, Philadelphia, for appellant.

No appearance for appellee.

No. 328:

James C. Crumlish, Jr., Dist. Atty., Edwin P. Rome, Special Counsel, Philadelphia, for petitioner.

W. Wilson White, Philadelphia, for appellee.



Four cases are involved in this appeal and they all will be disposed of in one opinion. One has to do with an appeal from the Court of Common Pleas No. 6 of Philadelphia County, another is an appeal from an Interlocutory Rule and Order of the Court of Quarter Sessions of Philadelphia County, a third is an application by W. Wilson White, Esq., to this Court for a writ of prohibition and mandamus directed to Common Pleas Court No. 6, and the fourth is another application to this Court's original jurisdiction presented by James C. Crumlish, Jr., District Attorney of Philadelphia County, seeking a writ of prohibition directed to Judge Eugene V. Alessandroni and W. Wilson White, Esq.

All these proceedings are predicated on certain actions taken in the Court of Quarter Sessions of Philadelphia County beginning in March, 1962 and running into September, 1962. Those actions lack legality and cannot be allowed to stand. An asserted 'Special Grand Jury' was ordered, for which there is no warrant in law; an attorney was appointed as 'Special Prosecutor,' an office which does not exist; an investigation was directed without limitation as to subject matter or time, contrary to the most fundamental precepts of precision in the administration of the law; a constitutional officer, duly elected by the people of Philadelphia County, was displaced from office, without due process; additional personnel was employed, supplemental quarters were rented, new facilities were obtained, all at the expense of the taxpayers when personnel, quarters and facilities for the contemplated action were already in existence.

The facts follow. On March 22, 1962, a petition addressed to the Judges of the Court of Quarter Sessions of the Peace of the City and County of Philadelphia, signed by Robert L. Leonard and other 'citizens, taxpayers and residents' of Philadelphia, was filed with the Clerk of Quarter Sessions, averring widespread violations of law in the government of the City of Philadelphia and that the District Attorney, James C. Crumlish, Jr., was unable or unwilling to cope with the situation. The petition prayed that the grand jury be instructed to investigate into the matters therein described.

The petition came into the hands of Judge Guerin, assigned to Quarter Sessions Court No. 4 (Bail Arraignment Court), which court was charged with conducting all miscellaneous business coming before the Criminal Courts [1] of Philadelphia County for the month of March, 1962.

It is to be noted at the outset that pursuant to Article V, Section 8 of the Pennsylvania Constitution, the Board of Judges of Philadelphia County, made up of 21 judges, details for each succeeding month a Court of Common Pleas (consisting of three judges) to the Criminal Court to conduct, supervise, direct and handle all matters pertaining to the grand jury which convenes in Room 653, City Hall, known as Quarter Sessions Court No. 1. Court of Common Pleas No. 7 was designated to that duty for the month of March. Within No. 7 itself, it was decided that President Judge Sloane would preside in Room 653 for the weeks beginning March 5th and March 12th and that Judge Gleeson would preside for the weeks beginning March 19th and March 26th. Thus Judge Gleeson was presiding in Room 653 from March 19th until the termination of the March term.

For a reason never explained, the petition of Robert Leonard, et al. (hereinafter to be referred to as the Leonard petition), was not presented to Judge Gleeson but went to Judge Guerin in Quarter Sessions Court No. 4, that division of the court, as above stated, which administers all miscellaneous business of the court. It is obvious that by no liberal construction of language can the summoning of a grand jury be regarded as a miscellaneous item. 'Miscellaneous' connotes odds and ends of affairs: remnants and scraps, heterogeneous and promiscuous. In the classification of what is important, a grand jury investigation is not to be found in the heterogeneous and promiscuous scraps of a court's activities.

On March 30, 1962, Judge Guerin ordered a hearing on the petition in Courtroom 646 for April 27, 1962. The record does not disclose how it came about that as Judge Guerin [2] finished his term of service in Criminal Court the Leonard petition did not revert to Quarter Sessions Court No. 1, its logical depository, but instead came into the hands of Judge Alessandroni, President Judge of Common Pleas No. 5 who now succeeded Judge Guerin in the Miscellaneous Division (Court No. 4) for the month of April. Among the incongruities in the history of this case, no light is shed on the inevitable query as to why Judge Alessandroni, once he perused the Leonard petition, and, being thoroughly conversant with the division of duties and responsibilities in the Criminal Court, did not himself immediately refer the petition to Judge Griffiths, who was ready to instruct the grand jury in Court No. 1 during the entire month of April.

On April 13, 1962, the District Attorney of Philadelphia County, filed an Answer to the Leonard petition in which he denied that he was unable or unwilling to meet the situation outlined in the petition. He also made factual averments in support of his assertion that he had been and was fully capable of performing properly the duties of his office.

On April 27, 1962, when the Leonard petition was argued before Judge Alessandroni, Attorney Fogel, representing the Republican Alliance which had initiated the Leonard petition, stated that Judge Alessandroni would not have jurisdiction over the petition in the event his term in the Court of Quarter Sessions expired before it was acted upon, and he recommended that Judge Alessandroni enter into a concord with other judges to obtain authority to charge any grand jury which might be convened for the purpose of conducting an investigation. Judge Alessandroni stated that that could not be done. The colloquy was as follows:

'MR. FOGEL: The point, sir, is that Your Honor may come to a determination in the matter when Your Honor might not then be sitting in the Court of Quarter Sessions, and not being in the Court that has jurisdiction over the Grand Jury, I would like to make sure that there would be no objections interposed if Your Honor should determine that special instructions should be given and that Your Honor have jurisdiction and the power to convene a special Grand Jury so instructed.

'THE COURT: Mr. Fogel, I admire you for raising a question of that kind. However, I don't see how that can be waived.' [3]

Mr. Fogel commented: 'I think it was done before Judge Alexander as to that point.' And then Judge Alessandroni, in the following language, definitively took himself out of the possibility of convening a grand jury:

'THE COURT: Even if they agreed maybe on some other constitutional basis--in other words a Grand Jury summoned by this Court, would have to be summoned within the jurisdiction of my term. I would still have to be a Quarter Sessions Judge. However, my term ends the first Monday in May. I don't think I can extend my jurisdiction beyond that.'

Judge Alessandroni's term as Quarter Sessions judge ended, as he himself stated it would, on the first Monday of May, and he returned to the Court of Common Pleas. Before quitting the Criminal Court he had made no definitive decision on the Leonard petition and he did not pass it on to his successor in the Miscellaneous Branch of the Court, as Judge Guerin had bequeathed it to him. Nor did he make any effort to call it to the attention of Judge Doty who was now presiding in Criminal Court No. 1 and who stood ready to charge the grand jury on all matters which required...

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