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April 24, 1962


Appeal, No. 442, Jan. T., 1961, from order of Court of Quarter Sessions of Philadelphia County, June T., 1961, in re appeal of Wilbur H. Hamilton and Virginia H. Knauer requesting the convening of a special grand jury. Appeal quashed; reargument refused May 21, 1962.


Stanley M. Greenberg and Edward R. Becker, with them William A. Meehan, and John J. Poserina, Jr., for appellants.

David Berger, City Solicitor, with him Murray C. Goldman, Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and Levy Anderson, First Deputy City Solicitor, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Eagen

[ 407 Pa. Page 367]


The appellants, as residents and taxpayers of the City of Philadelphia, petitioned the Court of Quarter Sessions of Philadelphia County to convene a special grand jury to investigate alleged corruption in the city government. The court refused the request and dismissed the petitions. From that order, this appeal is prosecuted.

Following the entry of the appeal, a motion to quash was filed. Because of the nature of the proceedings and its serious public connotations, the Court decided to deny the motion to quash and hear the matter out. Counsel for all parties were granted the right to appear and argue thoroughly all of the issues involved. Now, after a more studied consideration of the matter, we are convinced that the appeal does not lie and that the motion to quash must prevail.

This is not an adversary proceeding. The appellants appeared before the court below to inform it of facts which, in their opinion, indicated the necessity for the investigation requested. The only function of the appellants was one of presenting facts and suggesting to the court that an investigation be ordered - nothing more. They claim and have no more than a public interest in the proceeding. The investigation they suggest would result in no direct benefit to them as individuals. Hence, no appealable interest is present. They are not "parties aggrieved" in the legal

[ 407 Pa. Page 368]

    sense. While members of the public may appear and express their convictions or objections in judicial hearings directed at matters of public concern, the right to so appear and be heard does not, in itself, confer the right to appeal an adverse order. In the absence of statutory authority, no one has the right to appeal in proceedings of such a character, unless he is authorized to act in matters relating to "the public welfare," or has some personal right, necessary to be specially protected. This personal right, or beneficial interest, must be distinct from that of the general public and differ therefrom in kind and substance. See, Easton Transit Company's Petition, 270 Pa. 136, 112 A. 917 (1921); Elliot Estate, 388 Pa. 321, 131 A.2d 357 (1957); Ritter Finance Co., Inc. v. Myers, 401 Pa. 467, 165 A.2d 246 (1960); Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 173 A.2d 97 (1961); Kensington Club Liquor License, 164 Pa. Superior Ct. 401, 65 A.2d 428 (1949); Arsenal Board of Trade v. Pa. P.U.C., 166 Pa. Superior Ct. 548, 72 A.2d 612 (1950).


Appeal quashed.


On occasion a judge encounters a situation wherein he must yield his belief and opinion on the merits of a controversy in deference to a long settled and well established rule of procedure, a rule to which adherence is requisite if the administration of justice is to be orderly and certain. The case at bar presents such a situation.

A careful scrutiny of the instant record convinces me that the court below should have directed an investigation by a grand jury of the matters set forth in the petition presented to it. Had I been a member of the court below to which this petition was presented,

[ 407 Pa. Page 369]

    an appeal when their requests to the court have been denied.

In taking this appeal, appellants have misconceived both the nature of a special charge to a grand jury and the function of a memorial wherein a court is requested to embark upon such a special grand jury investigation.

A grand jury is an arm of the criminal court. It is not an independent governmental body. Shenker v. Harr, Treasurer, et al., 332 Pa. 382, 2 A.2d 298 (1938). See also Special Grand Jury Case, 397 Pa. 254, 154 A.2d 592 (1959). As declared in Commonwealth v. Hubbs (No. 1), 137 Pa. Superior Ct. 229, 241, 8 A.2d 611 (1939): "Under our conception of proper criminal procedure, no grand jury is ever considered an independent body; whether engaged in the exercise of its ordinary functions and powers in considering formal indictments laid before it by a district attorney, or in the performance of the special and occasional duty of investigating matters given it in charge by the court, it is still merely an arm of the court and under its control."

In essence, the purpose of a memorial is to invoke the machinery of the court itself to engage, through the medium of the grand jury, in an investigation of the matters alleged. In that undertaking the court does not act as a judicial arbiter to adjudicate issues between contending parties. The proceeding is not an adversary one in the traditional sense of parties litigant seeking judgment of the court. Whether the court should undertake such an investigation is purely within the ambit of judicial discretion.

A memorial is not a pleading. Its presentation neither institutes a legal proceeding, nor does it bring any "parties" before the court. Merely because the court determines specially to charge a grand jury to undertake an investigation gives no right to the memorialists

[ 407 Pa. Page 371]

    to control the investigation or even participate in it.

It follows that individuals filing a memorial with a court have no standing as litigants. Rather, they are in the position of informers who undertake to bring to the attention of the court matters upon which the court is requested to act, not as a judicial arbiter but as a coordinate branch of government. It is clear beyond doubt that the court's determination specially to charge or not to charge the grand jury is not subject to appeal since there is no litigable controversy. In fact, there is no judicial controversy of any kind. The parties against whom the investigation may be directed cannot appeal therefrom; nor can the memorialists appeal from the determination of the court not to embark upon the investigation.

That this conclusion is inescapable is revealed by an examination of the grand jury cases considered by this court since the establishment of the Commonwealth. In no case has it come before us by way of appeal. Our jurisdiction has always been invoked by an application for writ of prohibition, to prevent an alleged improper exercise of power or an abuse of jurisdiction by the court below. McNair's Petition, 324 Pa. 48, 187 Atl. 498 (1936), is illustrative. The invariable purpose of these proceedings in our court has been to prohibit the court below from proceeding specially to charge the grand jury to embark upon an investigation. And it is significant that almost invariably, the one requisite for special grand jury investigation has been a request by a duly constituted law enforcing official. Despite this, we have repeatedly issued the writ of prohibition to enjoin the special grand jury investigation. Never in the history of the Commonwealth have we permitted a special grand jury investigation upon a memorial of a non-official group of citizens. See Appendix

[ 407 Pa. Page 372]

A, a collection of cases compiled by the city solicitor, counsel for appellees.

The writ of prohibition is original process. It is not an appeal to this court.

The counterpart of prohibition is mandamus. Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 100, 61 A.2d 426 (1948). What appellants are really seeking by this appeal is for this court to direct the court of quarter sessions to undertake the investigation through its arm, the grand jury. Therefore, this appeal is in the nature of a mandamus directed to Judge ALEXANDER. But a private party only has a standing to obtain a writ of mandamus if he has a beneficial interest in the outcome of the proceedings distinct from that of the general public. Mellinger v. Kuhn, 388 Pa. 83, 130 A.2d 154 (1957).Appellants herein make no pretense of suffering any injury which is special or peculiar to themselves. On the contrary, they presume to act on behalf of the general public. Hence, appellants cannot qualify for mandamus.

A final and insurmountable obstacle facing appellants is the very nature of a mandamus proceeding. As we held in Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 520, 55 A.2d 534 (1947), "... a writ of mandamus ... may be used only to compel the performance of a purely ministerial or mandatory duty, as, for example, in Hotel Casey Co. v. Ross, 343 Pa. 573, 23 A.2d 737 ... It is elementary that it cannot be used to control the exercise of discretion or judgment on the part of a public official or an administrative or judicial tribunal; nor to review or compel the undoing of action taken by such an official or tribunal in good faith and in the exercise of legitimate jurisdiction, even though, in fact, the decision rendered may have been wrong; nor to influence or coerce a particular determination of the issue involved; nor to perform the junction of

[ 407 Pa. Page 373]

    an appeal or writ of error even though no appeal or writ of error be permitted by law."

Accordingly, the appeal must be dismissed because appellants are not parties to a legal controversy; they are not parties aggrieved; and mandamus cannot be used to control the determination or judgment of a judicial tribunal.

Even if we were to hold improperly that appellants do have standing to prosecute an appeal from the denial of their request for a grand jury investigation, appellants could not prevail.

Appellants presented a memorial to Judge RAYMOND PACE ALEXANDER sitting in the Miscellaneous Division of the Court of Quarter Sessions of Philadelphia County on June 8, 1961. Following conferences with Judge ALEXANDER, counsel for appellants and counsel for appellees joined in a stipulation providing that if the court should decide specially to charge the grand jury in the matters presented by the memorial, such charge should be presented by Judge ALEXANDER. Thereafter, upon consideration of the stipulation and motion of counsel, the court, acting through the assignment judge, The Honorable FRANCIS SHUNK BROWN, JR., assigned Judge ALEXANDER with authority specially to charge the grand jury in these matters if a decision to so charge should be made by the court. The judges in charge of the June and July, 1961 Grand Juries agreed and consented to the assignment of Judge ALEXANDER in this manner in order that the petitions or memorials might be expeditiously presented with no assignment or administrative conflicts within the court.

A supplemental memorial or petition was presented to Judge ALEXANDER on June 12, 1961. An answer, coupled with a motion to dismiss, was filed by counsel for appellees. A hearing was held by Judge ALEXANDER beginning June 15, 1961 and extending through June 26, 1961. On July 25, 1961, Judge ALEXANDER handed

[ 407 Pa. Page 374]

    down his decision in an opinion concluding that a sufficient showing had not been made to warrant the special charging of the grand jury, and denying the request and dismissing the petition or memorial. Thereafter, appellants took an appeal to our court returnable the second Monday of November, 1961.

Counsel for appellants did not request either the court below or this court to hold over the June or July 1961 grand juries pending disposition by our court. Neither did they request that either panel should not be discharged. The terms of both panels have long since expired and both panels have in fact been discharged.*fn1

A grand jury may be held in session to continue its investigation after the close of the term for which it was convened. Shenker v. Haar, supra. However, here the grand juries of June and July, 1961, have completed their terms and have been discharged. Likewise, the June and July, 1961 terms of the court of quarter sessions have been completed. With the end of the terms, and the discharge of these grand juries, the jurisdiction of Judge ALEXANDER and indeed of the court itself over their deliberations have terminated. Nor is there any authority or precedent, after the expiration of the term of the court, for the reconvening of a grand jury once it has been discharged.*fn2 It is obvious, therefore, that the appeal is moot and must be dismissed.

The reasons already stated are dispositive of this matter. Unfortunately, the minority opinion does not

[ 407 Pa. Page 375]

    deal with the legal controversy involved, but indulges in a discussion of the facts of the petition which impels further comment.

The prime analytical fallacy in the minority opinion is the contention that, not only was the court below compelled to accept as fact the statements in the memorial, but also that out-of-context excerpts taken from newspaper editorials and articles must likewise be accepted as verity, and this, without reference either to any of the supporting exhibits or to the entire exhibit from which a particular excerpt is quoted. With but one exception, newspaper articles and editorials are attached as the sole support for the averments contained therein. The lone exception is Exhibit 24 of the memorial sub judice - correspondence from former Justice, then Attorney General, ALPERN. This Exhibit 24 definitely sets forth the clear substantive ground mandating refusal of that which the instant proponents deemed it to support.

That the court below was not required to accept as verity any and all material contained in the memorial is clear beyond doubt. When a memorial is presented to a judge requesting him specifically to charge a grand jury, the material thus proffered may be considered but obviously is not required to be accepted as fact. Even more clearly beyond dispute, the judge to whom the memorial has been presented need not accept the opinions or conclusory statements contained therein. Our court most recently held, and indeed declared, such to be the law. Special Grand Jury Case, 397 Pa. 254, 154 A.2d 592 (1959).

Thus, under both the law and the facts, the lower court's action in denying the memorial was proper.

[ 407 Pa. Page 376]


[ 407 Pa. Page 377]


[ 407 Pa. Page 378]


[ 407 Pa. Page 379]


[ 407 Pa. Page 380]


[ 407 Pa. Page 381]


[ 407 Pa. Page 382]


The questions involved in this appeal are of tremendous importance not only to the citizens of Philadelphia, but likewise to the citizens of each county and municipal subdivision throughout Pennsylvania. A special grand jury proceeding is at times vitally essential for the preservation of law and order and for the protection and the welfare of a community, and sometimes of the entire State. A special grand jury must be pro bono publico. It should not be used as an instrument to further political ambitions or to harass or oppress political foes; on the other hand even if the primary motives of the petitioners be political, that will not suffice to defeat a special grand jury proceeding which is necessary to protect the public interest.

Certain principles of law are well established and these principles must be applied in every case, no matter whose ox is gored. The present case has become so infected with and inflamed by politics as to befog the issues, with a resultant misconception and misapplication of the pertinent principles of law. It is therefore necessary to review, and attempt to state with clarity, the principles which are applicable ...

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