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COMMONWEALTH EX REL. SHUMAKER v. NEW YORK & PENNSYLVANIA COMPANY (06/28/54)

June 28, 1954

COMMONWEALTH EX REL. SHUMAKER, APPELLANT,
v.
NEW YORK & PENNSYLVANIA COMPANY, INC.



Appeal, No. 19, May T., 1954, from order of Court of Common Pleas of Dauphin County of July 27, 1953, Equity Docket No. 1905, Commonwealth Docket No. 312, in case of Commonwealth of Pennsylvania ex rel. Clyde S. Shumaker, District Attorney et al. v. New York & Pennsylvania Company, Inc. et al. Order affirmed. Proceedings upon petition of defendants for rule to show cause why counsel for district attorney should not file warrants of attorney. Order entered striking warrants from record and staying further proceedings, opinion by SOHN, J. Plaintiffs appealed.

COUNSEL

Harry Alan Sherman, with him Clark H. Painter and Merle E. Wiser, District Attorneys, William D. Henning, Francis X. McCulloch and Herbert R. Carroll, for appellants.

Lewis H. Van Dusen, Jr., with him John Ames Ballard, Henry S. Drinker and Robert J. Trace, Deputy Attorney General, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 378 Pa. Page 361]

OPINION BY MR. JUSTICE CHIDSEY

On December 19, 1949 an action in equity was filed in the Common Pleas Court of Dauphin County in the name of the Commonwealth on relation of Clyde S. Shumaker, District Attorney of Butler County, and W. P. Geary, District Attorney of Clarion County, five persons individually and as officers of the Allegheny County Sportsmen's League, Inc., a nonprofit corporation, and by that corporation, against the New York & Pennsylvania Company, Inc., and R. M. Jones, its manager, together with five individuals averred in the bill to be members of the Sanitary Water Board. The complaint sought to restrain as a public nuisance the alleged pollution of the Clarion River by the corporate defendant, and was brought under the provisions of Section 601 of the Pure Streams Act of June 22, 1937, P.L. 1987, 35 PS ยง 691.1 et seq.

Preliminary objections were filed to the bill and the corporate defendant also filed a petition under the Act of March 5, 1925, P.L. 23, challenging the court's jurisdiction of the subject matter. The court held it was without jurisdiction, but on appeal to this Court (367 Pa. 40) we reversed and remitted with procedendo. Argument on the preliminary objections was then heard by the lower court, one of which was that the Allegheny County Sportsmen's League and its officers were improperly joined as parties to the complaint. On October 8, 1951 the court sustained this objection and ordered that the Sportsmen's League and its officers be dismissed as parties plaintiff.

An attempted appeal from the foregoing ruling of the Dauphin County Court was quashed by this Court

[ 378 Pa. Page 362]

    which also dismissed subsequent motions and petitions to reinstate the appeal. Accordingly, the ruling that the Sportsmen's League and its officers had no status in the case became final and binding. Defendants' other preliminary objections having been overruled, they filed answers to the complaint on November 1st and November 7, 1951.

Although the cause could have then proceeded to hearing at the instance of the remaining parties plaintiff, namely, the district attorneys of the two counties, nothing occurred in the matter until July 16, 1952 when Harry Alan Sherman, Esquire, one of the three attorneys of record for the Sportsmen's League, wrote to Judge NEELY of the Dauphin County Court asking that the case be set down for hearing. On July 23, 1952 the defendants filed a petition for a rule to show cause why Mr. Sherman and his two associates, William D. Henning, Esquire and Francis X. McCulloch, Esquire, should not file a warrant of attorney and establish their legal authority to represent the District Attorneys of Clarion and Butler Counties, the only two parties plaintiff remaining in the case. An answer was filed by Messrs. Sherman, Henning and McCulloch with new matter to which defendants filed a reply.

Defendants' petition, after setting forth the ruling dismissing the Sportsmen's League as a party plaintiff and reciting the action of Mr. Sherman in asking that the case be ordered on for trial, alleged that the respondents were attorneys of record for and represented only the Sportsmen's League; that they were not empowered to represent the District Attorneys of Butler or Clarion Counties; that the said District Attorneys had not withdrawn their appearance as attorneys of record for their respective counties; and that no warrant of attorney to represent either of the two existing plaintiffs had been filed by the respondents.

[ 378 Pa. Page 363]

Additional allegations in the petition were to the effect that neither of the two District Attorneys was authorized by law to appoint a private attorney to represent him in litigation on behalf of his respective county; that the applicable statutes of the Commonwealth relating to the appointment of assistant district attorneys had not been complied with in the case of either county; that neither Mr. Sherman nor any of his associates had been, nor could they be, appointed as assistants to the District Attorney of either county and that none of the respondents were attorneys of record authorized to practice law in either Butler or Clarion County.

The answer of Messrs. Sherman, Henning and McCulloch had attached thereto copies of certain papers which purported to be warrants of attorney from the persons who were District Attorneys of Clarion and Butler Counties as of the date of the commencement of the action and also from their successors presently in office. The warrant of attorney given by Clyde S. Shumaker, District Attorney of Butler County, is as follows: "I, Clyde S. Shumaker, duly elected District Attorney of Butler County, Pennsylvania, do hereby constitute and appoint Harry Alan Sherman, William D. Henning and Francis X. McCulloch, attorneys of the City of Pittsburgh, Allegheny County, Pennsylvania, to represent me in the above capacity as attorneys in the above entitled case; the said Francis X. McCulloch, William D. Henning and Harry Alan Sherman shall have and are hereby given complete power to prosecute, negotiate, settle and superintend the above entitled action for me and in my name, place and stead and to represent me in the Court of Common Pleas of Dauphin County or in the appellate courts of this Commonwealth in the said action. It is understood and agreed that all costs or other claims arising from

[ 378 Pa. Page 364]

    the said action will be paid by the Allegheny County Sportsmen's League, Inc., and its officers and not by me or the County of which I am District Attorney. Witness my hand and seal this day of , 19 . (s) Clyde S. Shumaker [Seal]". (Emphasis supplied). The warrant given by W. P. Geary, District Attorney of Clarion County, was identical but bore the date October 5, 1949. The warrants given by Clark H. Painter and Merle E. Wiser who succeeded Messrs. Shumaker and Geary as District Attorneys of Butler and Clarion Counties respectively, were undated, identical and purported to authorize Messrs. Sherman, Henning and McCulloch to continue to perform such duties in the equity proceeding as had been performed in the past for his predecessor "... in like manner, and under the same arrangements.", and granted all powers necessary "... to prosecute, settle and discontinue, compromise and to do any and all things that I am empowered to do by reason of my office as District Attorney...". (Emphasis supplied). The answer of the three attorneys stated that by reason of these warrants they were counsel for the District Attorneys and alleged that the petitioner had been apprised at the argument on the preliminary objections that respondents were authorized to act for the two District Attorneys. The petitioners' allegation that neither of the District Attorneys was authorized to appoint a private attorney to represent him in litigation in which he was acting in an official capacity was denied. All of the other allegations of the petition, including particularly those stating that the respondents had not been and could not be appointed assistants to the District Attorney of Clarion County or Butler County under the applicable laws of this Commonwealth, and that they were not authorized to practice in either county, were admitted.

[ 378 Pa. Page 365]

Under New Matter it was alleged that the defendants' petition had been filed after unreasonable delay and not in good faith. Defendants filed a reply to this New Matter, averring that the petition was filed in the week immediately following the first action taken by Messrs. Sherman, McCulloch and Henning after the Allegheny County Sportsmen's Legaue had been dismissed as a party plaintiff, i.e., the letter to Judge NEELY under date of July 16, 1952 asking that the case be set down for hearing. In this respect the reply admitted that at all times since the filing of the bill, all steps in the prosecution of the case had been taken by and on the initiative of the respondent attorneys, but pointed out that because of the fact that these persons did represent the Allegheny County Sportsmen's League, which at such times was still a party plaintiff in this proceeding, no objection could have been raised by the defendants to this procedure. The defendants' reply also averred that it was not until after July 16, 1952, the date of the first affirmative step ...


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