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decided: February 16, 1971.


Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, No. 3084, in case of Commonwealth of Pennsylvania ex rel. Honorable Vincent A. Carroll, individually and on behalf of the Judges of the Court of Common Pleas of Philadelphia v. James H. J. Tate, Mayor of Philadelphia et al.


Henry T. Reath, with him Duane, Morris & Heckscher, for petitioners.

Levy Anderson, City Solicitor, with him John B. Day, Assistant City Solicitor, Joseph Ominsky, Deputy City Solicitor, and Matthew W. Bullock, Jr., First Deputy City Solicitor, for respondents.

Thomas N. O'Neill, Jr., and Montgomery, McCracken, Walker & Rhoads, for Board of Governors of Philadelphia Bar Association.

Andrew Hourigan, Jr., with him Richard M. Goldberg, and Hourigan, Kluger & Spohrer, for Pennsylvania Bar Ass'n, amicus curiae.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the decision of this case. Concurring Opinion by Mr. Justice Jones. Mr. Justice Eagen joins in this concurring opinion. Concurring and Dissenting Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Pomeroy.

Author: Bell

[ 442 Pa. Page 47]

On June 16, 1970, President Judge Vincent A. Carroll, individually and on behalf of all of the Judges of the Court of Common Pleas of Philadelphia, instituted this suit by a Complaint in Mandamus to compel the Mayor and City Council of Philadelphia to appropriate the additional funds requested by them for the important and necessary administration of the Court of Common Pleas of Philadelphia for the fiscal year commencing July 1, 1970 and ending July 1, 1971.*fn1

We shall hereinafter set forth the intricate facts involved in this suit, but, initially, we deem it important to focus on the fundamental questions involved: (1) whether the Judicial Branch of our Government has the inherent power to determine what funds are reasonably necessary for its efficient and effective operation; and (2) if the Judiciary has the power to determine what funds are reasonably necessary, does it then have the power to compel the Executive and Legislative Branches to provide such funds after the requested amount has been reduced in, or wholly or partially eliminated from, the budget proposed by the Executive Branch and approved by the Legislative Branch.

The Court of Common Pleas, pursuant to the Philadelphia Home Rule Charter of April 17, 1951, Section 8-103, on December 3, 1969, submitted to the City's Finance Director (on the necessary forms) its operating budget estimates of the financial needs of the Court of Common Pleas and the Municipal Court.*fn2 The total

[ 442 Pa. Page 48]

    amount of requests submitted was $19,706,278. After several meetings between the Finance Director and representatives of the said Court, the sum was reduced to $16,488,263, and, on April 1, 1970, this amount was finally sent to City Council by the Mayor in his proposed annual operating budget message. On May 4, 1970, President Judge Carroll, Judge D. Donald Jamieson (now President Judge), and Administrative Judge Frank J. Montemuro, together with several members of their administrative staffs, gave extensive testimony before City Council, seeking to document their requests. The Court at this time also requested an increase of $5,230,817 over the amount proposed in the Mayor's aforesaid budget of April 1st. Of this sum of $5,230,817, $2,012,801 had not previously been requested of either the Finance Director or the Mayor prior to the time the Mayor submitted his budget. City Council denied this additional request and approved by ordinance, on May 28, 1970, the amount recommended by the Mayor, i.e., $16,488,263. This total was divided and allocated as follows:

Municipal Court Judicial Staff $451,532

Common Pleas Court Judicial Staff 2,126,839

Common Pleas Court Administration 13,909,892

Total $16,488,263

This present mandamus action was instituted on June 16, 1970 to compel the appropriation and payment of the Court's additional request of $5,230,817.

[ 442 Pa. Page 49]

Proceedings Before Judge Montgomery

On June 23, 1970, Judge Harry M. Montgomery, of the Superior Court of Pennsylvania, was specially designated by this Court to hear and decide this case. Judge Montgomery promptly held a pretrial conference, at which time the legal issues were delineated and an agreement was worked out by the parties that defendants would hold and keep available sufficient funds to pay any sums ultimately awarded to the Court. On July 27, 1970, Judge Montgomery issued a Pretrial Order, ordering the parties to argue and brief certain issues and temporarily enjoining the defendants from enforcing a "job freeze" ordered by the Mayor against the Court, and also from reducing the Court's budget. Oral argument was held on August 4, 1970, and Judge Montgomery filed a "Supplemental Pretrial Order" on August 12, 1970. In this Order, Judge Montgomery ruled, inter alia: (1) the Court had the burden of proof to establish the reasonable necessity of its financial requests and none of the parties could take advantage of the usual presumption of reasonableness by virtue of their public office; (2) defendants, as a defense to plaintiff's demand for additional funds in this action of mandamus, could not "reopen" the earlier budget figures, which had been approved by the Mayor and for which appropriations had been made by the City Council, in order to prove that the present appropriation was being used inefficiently or that a more efficient use of present appropriations would cover some or all of the additional requested items; and (3) defendants had a right to a jury trial.*fn3 The record was closed on August 21, 1970, after extensive testimony had been taken and exhibits produced. At this time, the Court

[ 442 Pa. Page 50]

    amended its request for funds by reducing the sum of $5,230,817 it had requested in the complaint to $3,962,532, mainly because of the delay in time from the start of the fiscal year (July 1, 1970).

On September 30, 1970, Judge Montgomery issued a mandamus Order against defendants to appropriate and pay the amount of $2,458,000, and made final his injunctive Order of July 27, 1970. A complete tabulation of the original request in the complaint, the amended request, and the final award of September 30, 1970, is as follows:


Original Amended Order

Request Request 9/30/70

Adult Probation $1,782,216 $1,071,937 $800,000

Juvenile Probation 539,922 345,032 250,000

Data Processing 453,934 434,175 250,000

Apprehension of Fugitives 335,910 284,322 285,000

Courtroom Personnel 224,452 152,420 100,000

Attorney Fees 300,000 300,000 300,000

Arbitration Fees 390,000 390,000 200,000

Writ Service 100,000 100,000 75,000

Gibson Building Personnel 227,036 113,518 Disallowed

Probation Relocation 24,500 24,500 Disallowed

Repairs -- 1801 Vine Street 40,000 ...

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