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decided: January 30, 1970.


Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1969, No. 412, in case of Commonwealth ex rel. Arlen Specter, District Attorney, v. Edward G. Bauer, Jr., City Solicitor.


James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, in propria persona, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, in propria persona, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.

Author: Roberts

[ 437 Pa. Page 39]

On July 30, 1969, the District Attorney of Philadelphia was served with a complaint in the case of Marvin Burak v. Commonwealth of Pennsylvania; City of Philadelphia; Frank Rizzo, Police Commissioner; and Arlen Specter, District Attorney. That suit was commenced in United States District Court for the Eastern District of Pennsylvania, the plaintiff requesting that certain penal statutes of the Commonwealth, under which he was to be prosecuted in Philadelphia, be declared unconstitutional. On July 31, at a hearing in federal court to determine whether a three-judge court should be convened, a Deputy City Solicitor of Philadelphia and an Assistant District Attorney of Philadelphia entered appearances on behalf of the District Attorney. Each attorney made motions to strike the other's appearance. The City Solicitor's office was of the view that it was the only proper representative of the District Attorney's office; the District Attorney's office was of the view that it must represent itself in the litigation. After taking the matter under advisement, the district court dismissed both motions.

Following this, the District Attorney initiated equitable proceedings in the Court of Common Pleas of Philadelphia County, seeking to enjoin the City Solicitor from representing him in the federal court litigation.*fn1 Preliminary objections were filed, alleging, inter

[ 437 Pa. Page 40]

    alia, that the City Solicitor's office, under the Philadelphia Home Rule Charter, had the duty to represent the District Attorney in the federal litigation. This objection was sustained*fn2 and the complaint was dismissed. We reverse.

This is not the first time we have been asked to consider what effect Philadelphia's Home Rule Charter has on the office of the District Attorney. See Chalfin v. Specter, 426 Pa. 464, 233 A.2d 562 (1967); Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 232 A.2d 729 (1967); Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 228 A.2d 382 (1967). While this problem may not have proved easy to resolve in other contexts, it is easy here, for we are today faced with a direct challenge to the District Attorney's basic function -- enforcement of the Commonwealth's penal statutes.

[ 437 Pa. Page 41]

Prior to 1850, investigation and prosecution of criminal offenses in Pennsylvania were exclusively the duty of the Attorney General of the Commonwealth, although in practice he delegated this duty by appointing deputy attorneys general for the several counties. See Commonwealth Page 41} ex rel. Specter v. Freed, 424 Pa. at 512, 228 A.2d at 383-84. In 1850 the General Assembly enacted legislation which provided for the election of these deputy attorneys general. The successor to that statute presently provides, in relevant part, that "[t]he district attorney shall . . . conduct in court all criminal and other prosecutions, in the name of the Commonwealth . . . and perform all the duties which, prior to May 3, 1850, were performed by deputy attorneys general." Act of July 5, 1957, P. L. 484, § 1, 16 P.S. § 1402(a) (Supp. 1969). If this statute means anything at all, it means that district attorneys in this Commonwealth have the power -- and the duty -- to represent the Commonwealth's interests in the enforcement of its criminal laws.

Clearly encompassed within this law enforcement responsibility is a district attorney's duty to counter, in the course of prosecution, a defense that a state penal statute is unconstitutional. Surely the City Solicitor would not contend that he must represent the District Attorney when an individual who has suffered a criminal conviction brings a suit challenging the constitutionality of the statute under which he was convicted. Such suits occur all the time in the federal forum -- they are called habeas corpus actions. In those proceedings in the federal judicial system, the District Attorney is engaged in preserving the integrity of the conviction and sentence imposed by the state trial court and affirmed by the state appellate courts. In this case in the federal system, the District Attorney is similarly seeking to preserve the Commonwealth's criminal process by defending a litigant's attack on the constitutionality of the state ...

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