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decided: August 2, 1971.


Appeals from orders of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, No. 1567 and May T., 1970, Nos. 353 and 354, in case of Commonwealth ex rel. Cephus Bryant v. Edward J. Hendrick; Commonwealth ex rel. James Goldstein v. Edward J. Hendrick.


James D. Crawford, Deputy District Attorney, with him Paul R. Michel, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, Arlen Specter, District Attorney, for appellant.

David Rudovsky, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellee.

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

Author: Eagen

[ 444 Pa. Page 86]

These appeals are by one Hendrick, Superintendent of the Philadelphia county prisons, from an order entered below granting habeas corpus relief to petitioners, Cephus Bryant [Bryant] and James Goldstein [Goldstein].

Both petitioners alleged that they were confined in Holmesburg Prison under conditions constituting cruel and unusual treatment, prohibited by the Eighth Amendment of the United States Constitution. At the time, Bryant was confined in Holmesburg in lieu of $3,500 bail while awaiting trial on an indictment charging him with burglary, larceny and receiving stolen goods. In addition, he was subject to a military detainer filed by the United States Marine Corps, charging him with being absent without leave from that organization. Goldstein was confined in lieu of $7,500 bail following his arrest for illegal possession of dangerous drugs.

Supporting their allegations that confinement in Holmesburg constituted cruel and unusual punishment, Bryant and Goldstein asserted that they were in grave danger of serious physical harm; that the conditions of the cells and other areas of the prison were substandard; and that their confinement resulted from the fact that they were too impoverished to post bail.

After an extended hearing, a three-judge court below made exhaustive findings of fact and based on these findings concluded that "the prison [Holmesburg] was a cruel, degrading and disgusting place, likely to bring out the worst in a man" and that after the riot which occurred therein on July 4, 1970, the prison "became a place ruled by cold-blooded terror".

[ 444 Pa. Page 87]

The court ordered that Bryant and Goldstein be transferred within 48 hours to "some other prison" or failing that, to be discharged from custody. It tailored its order by additionally directing that no further petitions would be entertained for thirty (30) days to give the authorities an opportunity to begin to remedy conditions which led to the issuance of these writs.

Subsequently, Bryant was turned over to the custody of the military authorities. Goldstein was released from custody after posting bail in the reduced amount of $500, the reduction being ordered by the court. In the event he ever returned to the Philadelphia prison system, Goldstein was listed on the records of Holmesburg as having been transferred to the House of Correction.

While no one involved has raised the issue, in view of the fact that neither Bryant nor Goldstein are now confined in Holmesburg, the question of mootness looms on the horizon. However, we have ruled that an order entered in a habeas corpus proceeding discharging a prisoner from custody is reviewable on appeal. Doyle v. Commonwealth ex rel. Davis, 107 Pa. 20 (1884). Moreover, the public interest is so involved in the instant case that resolution of the merits is called for.

Appellant first contends that, even if the conditions at Holmesburg were as deplorable as the lower court found, relief through habeas corpus was improper. Admittedly, there is support for this position, but the lower court rejected it, and we conclude that under under the circumstances its ruling was wise and correct.

Traditionally in Pennsylvania and in many other jurisdictions, the writ of habeas corpus has functioned only to test the legality of the petitioner's commitment and detention. It was long held that the manner of his treatment and disciplining during confinement was not reviewable in habeas corpus proceedings. For example,

[ 444 Pa. Page 88]

    see Commonwealth ex rel. Milewski v. Ashe, 362 Pa. 48, 66 A.2d 281 (1949), and Commonwealth ex rel. Wright v. Banmiller, 195 Pa. Superior Ct. 124, 168 A.2d 925 (1961). On the other hand, some states adopted a more liberal view and permitted the use of habeas corpus to secure relief from conditions constituting cruel and unusual punishment, even though the detention was legal. For example, see In Re Riddle, 57 C. 2d 848, 22 Cal. Rptr. 472, 372 P. 2d 304, cert. denied, 371 U.S. 914, 83 S. Ct. 261 (1962); Mahaffey v. State, 87 Idaho 228, 392 P. 2d 279 (1964); State ex rel. Cole v. Tahash, 269 Minn. 1, 129 N.W. 2d 903 (1964); and Cf. Hughes v. Turner, 14 Utah 2d 128, 378 P. 2d 888 (1963). See also, People ex rel. Brown v. Johnston, 9 N.Y. 2d 482, 174 N.E. 2d 725 (1961), and People ex rel. Rockey v. Krueger, 306 N.Y.S. 2d 359 (1969).

The United States Supreme Court has also indicated in several instances that the use of the writ should not be restricted to a determination of the legality of the detention, and ruled that the writ may be utilized to secure relief from any restraint which violates freedoms considered basic and fundamental. Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549 (1968), and Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822 (1963).

In Fay v. Noia, supra, Mr. Justice Brennan, speaking for the Court, outlined in scholarly fashion the development and history of "the great writ" and said [at 402] that "in a civilized society, government must always be accountable to the judiciary for a man's imprisonment" and [at 405] that "there was respectable common law authority for the proposition that habeas was available to remedy any kind of governmental restraint contrary to fundamental law."

And in Harris v. Nelson, 394 U.S. 286, 89 S. Ct. 1082 (1969), Mr. Justice Fortas, speaking for the Court, aptly said at pages 290, 291:

[ 444 Pa. Page 89]

"The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that 'The Privilege of the Writ of Habeas Corpus shall not be suspended. . . .' U. S. Const., Art. I, ยง 9, cl. 2. The scope and flexibility of the writ -- its capacity to reach all manner of illegal detention -- its ability to cut through barriers of form and procedural mazes -- have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

As Blackstone phrased it, habeas corpus is 'the great and efficacious writ, in all manner of illegal confinement.' As this Court said in Fay v. Noia, 372 U.S. 391, 401-402 (1963), the office of the writ is 'to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.'" [Footnote omitted.]

Again in Peyton v. Rowe, supra, at p. 66, the Court appropriately said: "'[The writ] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose -- the protection of individuals against erosion of ...

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