Appeals, Nos. 93 and 94, March T., 1951, from order of Court of Common Pleas of Allegheny County, April T., 1951, No. 854, in case of Marjorie Hanson Matson v. Samuel M. Jackson, Deputy Attorney General and Robert L. Kunzig, Deputy Attorney General. Order affirmed; reargument refused August 8, 1951.
Harry F. Stambaugh, Special Counsel, with him Edward Friedman, Deputy Attorney General and Robert E. Woodside, Jr., Attorney General, for appellants.
Thomas D. McBride, with him Marjorie Hanson Matson and Michael von Moschzisker, for appellee.
William J. Woolston, Osmond K. Fraenkel, Arthur Garfield Hays and Herbert Monte Levy, for American Civil Liberties Union, amicus curiae.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
On January 17, 1951 former Attorney General Margiotti wrote to District Attorney Rahauser of Allegheny County that he had appointed Samuel M. Jackson, Deputy Attorney General, to conduct a public hearing "into the alleged communistic leanings, sympathies and utterances of Mrs. Marjorie Hanson Matson, Assistant District Attorney of Allegheny County", and that the hearing would be conducted in a Common Pleas courtroom in Allegheny County on January 22 at ten a.m. He further stated that Mrs. Matson "should be given every opportunity to be heard with counsel and witnesses." Thus it was apparently his intention to "try" Mrs. Matson in regard to her loyalty, with a deputy appointed by him to act as "judge".
Pursuant to his letter the Attorney General issued subpoenas to several witnesses to appear at the hearing, which started on the appointed day with Jackson presiding and Robert L. Kunzig, another Deputy Attorney General, assigned to present testimony to his fellow deputy. At that very same time, however, Mrs. Matson filed in the Court of Common Pleas of Allegheny County a bill in equity, accompanied by injunction affidavits, alleging that the proposed hearing was without warrant in law and in violation of her rights as a citizen, office holder and taxpayer; the affidavits averred that immediate and irreparable loss and damage would result to her if the hearing were held. The court thereupon forthwith granted a preliminary injunction enjoining
and restraining the two deputies from holding any proceeding, hearing or investigation relating to Mrs. Matson's fitness, either as an Assistant District Attorney or as an officer of the court. On January 26 defendants filed preliminary objections to the bill raising, inter alia, the question of the court's jurisdiction. On February 8, having heard argument thereon, the court entered an order dismissing the preliminary objections. Defendant Jackson now appeals from that order, while defendant Kunzig appeals from the decree of January 22 granting the preliminary injunction.
Plaintiff has filed motions to quash both appeals on the ground that an order dismissing preliminary objections to a bill in equity is merely interlocutory, also that the question of lack of jurisdiction should have been raised either under Equity Rule 29 by the filing of a petition praying that the service be set aside, or under the Act of March 5, 1925, P.L. 23, by the filing of a petition and obtaining of a rule to show cause (Commonwealth ex rel. Shumaker v. New York & Pennsylvania Co., Inc., 367 Pa. 40, 45, 79 A.2d 439, 443), neither of which proceedings was here instituted. The motions to quash will be denied. In Kittanning Country Club's Liquor License Case, 124 Pa. Superior Ct. 582, 587, 189 A. 679, 681, it was stated that "The court was not compelled to grant a rule to show cause where there were no issues of fact raised. The act expressly provides that the question raised may be determined on the pleadings." Since, in the present instance, the determination of the question of jurisdiction depended entirely upon a question of law the purely technical objection to the procedure employed to ...