Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MCGINLEY v. SCOTT (10/11/60)

October 11, 1960


Appeals, Nos. 392 and 393, Jan. T., 1960, from decree of Court of Common Pleas No. 6 of Philadelphia County, June T., 1960, No. 3718, in case of John P. McGinley v. William Z. Scott et al. Decree vacated and complaint dismissed.


Anne X. Alpern, Attorney General, for appellants.

Drew J. T. O'Keefe, with him John Ryan, and O'Keefe, Knecht and Ryan, for appellee.

Before Jones, C. J., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 401 Pa. Page 313]


These appeals involve a question as to the power of the Pennsylvania State Senate to adopt a resolution at a regular session in an even-numbered year creating a committee of its members for the purpose of making certain specified investigations unrelated to either revenue or appropriations. The 1960 Session of the Pennsylvania Legislature has not yet adjourned sine die but is in recess and is scheduled to reconvene on October 12, 1960.

After the House of Representatives had recessed on June 17, 1960, the Senate adopted a resolution providing for the appointment of a committee of five of its members for the purpose of conducting an investigation into alleged election law frauds in Philadelphia and the conduct of the district attorney of Philadelphia County in respect of such putative offenses.*fn1 The

[ 401 Pa. Page 314]

    resolution empowered the committee to hold hearings, take testimony and subpoena witnesses and records; it also required the committee to report its findings and recommendations to the Senate as soon as possible for remedial legislation or other appropriate action. The members of the committee were duly appointed by the president pro tempore of the Senate, as contemplated by the resolution, and are the defendants in the present suit.

The same day that the members of the committee convened in Philadelphia for the purpose of their appointment and began examining witnesses (viz., August 23, 1960), the plaintiff, a taxpayer and resident of Philadelphia, filed his complaint in this case in a court of common pleas of Philadelphia County seeking to restrain the members of the committee from taking any action, as authorized by the resolution, and to enjoin the members of the committee from making any expenditures of funds of the Commonwealth of Pennsylvania. The court granted a rule on the defendant committee members to show cause why a preliminary injunction should not issue, returnable August 29, 1960.

On August 26, 1960, the defendants, represented by the Attorney General, filed preliminary objections

[ 401 Pa. Page 315]

    to the complaint, asserting that the Court of Common Pleas of Philadelphia County was without jurisdiction to restrain the defendants from performing any official act, either in their capacity as State officers or as the representatives of an instrumentality of the State, and that jurisdiction of the complaint was exclusively in the Court of Common Pleas of Dauphin County. The defendants also demurred to the complaint on the ground that it did not allege a cause of action cognizable in equity; that the resolution constituting the committee was in accordance with and under the authority of the Pennsylvania Constitution; and that the committee has full constitutional authority to hold hearings and perform all the duties and functions prescribed by the resolution.

Argument was had in the matter on August 31, 1960, before the court below which, on September 12, 1960, filed an opinion and accompanying order overruling defendants' preliminary objections and enjoining the defendants preliminarily from performing the duties imposed upon them by the resolution. The order gave the defendants twenty days within which to answer the complaint on the merits. The Attorney General forthwith appealed the order to this court on September 13, 1960, and contemporaneously petitioned for advancement of the argument. With notice to counsel for the plaintiff, we entered an order on the same day listing the appeal for argument in Pittsburgh on September 26, 1960, which has been had.

The defendants' preliminary objection that the suit could be brought only in the Court of Common Pleas of Dauphin County is well taken and must be sustained, not, however, because the Court of Common Pleas of Philadelphia lacked jurisdiction, either of subject matter or person, but because the venue of the controversy is exclusively in Dauphin County.

[ 401 Pa. Page 316]

Jurisdiction of subject matter relates to the competency of a court to hear and determine controversies of the general nature of the matter involved, which, in this instance, is a suit in equity for an injunction to enjoin and restrain acts allegedly contrary to law. Jurisdiction of the person is ordinarily acquired by service upon him of the court's process within the territorial limits of its authority. Venue is the right of a party sued to have the action brought and heard in a particular judicial district. Jurisdiction of subject matter can never attach nor be acquired by consent or waiver of the parties, while venue may always be waived.

Section 13 of the Act of June 16, 1836, P.L. 784, 17 PS § 281, conferred general equity jurisdiction on all of the courts of common pleas of the Commonwealth, as follows: "The several courts of common pleas shall have the jurisdiction and powers of a court of chancery ... in such ... cases as the said courts have heretofore possessed such jurisdiction and powers under the Constitution and laws of this commonwealth." This jurisdiction unquestionably embraces the power of every court of common pleas of the Commonwealth to prevent or restrain "the commission or continuance of acts contrary to law, and prejudicial to the interest of the community, or the rights of individuals." See Zerbe Township School District v. Thomas, 353 Pa. 162, 168, 44 A.2d 566, and cases there cited.

However, Equity Rule 1503(c) of the Pennsylvania Rules of Civil Procedure prescribes that "An action against the head of an executive or administrative department, a departmental administrative board or commission or an independent administrative board or commission, or an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin

[ 401 Pa. Page 317]

County." This Rule was adopted and promulgated by virtue of the authority conferred upon this Court by Section 1 of the Act of June 21, 1937, P. L. 1982, as amended, 17 P.S § 61, which, in presently material part, provides that, "... the Supreme Court of Pennsylvania shall have the power to prescribe by general rule the forms of actions, process, writs, pleadings, and motions, and the practice and procedure in civil actions at law and in equity for the courts of common pleas ... Provided, That such rules ... shall neither abridge, enlarge, nor modify the substantive rights of any litigant nor the jurisdiction of any of the said courts..." (Emphasis supplied).

It is plain enough, therefore, that what Rule 1503(c) prescribes is the venue of actions of the type therein referred to, and is not a limitation or a restriction upon the equity jurisdiction of the courts of the commonwealth outside of Dauphin County. Manifestly, if the holding were to be otherwise, the rule would automatically be invalidated as an excessive exercise of our rule-making power under the Act of 1937, supra.

Thus, venue, unlike jurisdiction, being a matter of procedure, and not substance, is within the competency of the Procedural Rule's prescription. "Essentially venue is an incidence of procedure. It is part of that body of law which bounds and delineates the forum and the manner and mode of enforcing a litigant's rights. It is distinguishable from and is not within the field of law, known as substantive, which recognizes, creates and defines rights and liabilities and causes of action.": Hadlich v. American Mail Line, 82 F.Supp. 562, 563 (1949).

The Act of May 26, 1931, P.L. 191, 12 PS §§ 104-105, upon which the plaintiff relies, was suspended absolutely by the Rules of Civil Procedure and is without out

[ 401 Pa. Page 318]

    bearing upon the meaning and intent of Rule 1503(c).*fn2 The Act of 1931 was made applicable to a "State officer" which the Act defined, in Section 1, as "the head of any administrative department or the chief executive officer of any independent administrative board or commission of the Commonwealth." Rule 1503(c) contains no such limitation and provides that "An action against ... an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin County." There appears to be no rational ground for differentiating between members of the legislative, executive and judicial branches of government in order to determine who is included in the definition of "officers ... of the Commonwealth." A State Senator has been held to be such an officer (see Commonwealth v. Clark, 123 Pa. Superior Ct. 277, 294, 187 Atl. 237) and legislative committees are instrumentalities of the Commonwealth, within the meaning of Rule 1503(c).

A court's determination that the venue of an action lies within its judicial district, being interlocutory, is not of itself appealable. However, the question of venue is present here on the defendants' appeal from the preliminary injunction entered against them. Section 1 of the Act of February 14, 1866, P. L. 28, 12 PS § 1101, expressly makes the granting of a preliminary injunction appealable. On such an appeal, we look only to see if there were any apparently reasonable grounds for the action of the court ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.