Original jurisdiction in case of Vincent X. Yakowicz, Secretary of Revenue, Commonwealth of Pennsylvania, v. Robert W. Costigan, Register of Wills, Philadelphia County, Pennsylvania.
Arthur M. Cooper, Assistant Attorney General, with him, Michael Von Moschzisker, Deputy Attorney General, and Israel Packel, Attorney General, for plaintiff.
John P. Quinn, with him Steinberg, Greenstein, Richman & Price, for defendant.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
[ 17 Pa. Commw. Page 289]
This case was intended to be filed within the original jurisdiction of this Court, under section 401(2) of the Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, 17 P.S. § 211.401(2). It was commenced by the filing of a complaint on May 15, 1974, by Vincent X. Yakowicz, Secretary of Revenue of the Commonwealth of Pennsylvania (Secretary), against Robert W. Costigan, Register of Wills of Philadelphia County (Register).
Generally the complaint alleges that in violation of sections 2103(6) and 3155(b)(3) of the Probate, Estates and Fiduciaries Code (Code), 20 Pa. C.S. §§ 2103(6) and 3155(b)(3), the Register had refused to grant letters of administration to named agents nominated by the Secretary, together with named counsel, in the administration of estates in Philadelphia County where a decedent had died without known heirs. The complaint requests that this Court enjoin the Register from engaging in such "illegal and improper practices." On May 28, 1974, the Register filed an answer in which he denied any improper action, and alleged that the Secretary had no authority to appoint persons to administer such estates, but rather that such appointments, under the Code, were within the Register's discretionary power of appointment.
In the spirit of candor, we must note that what is really at issue in this case is patronage. In other words, both parties quite frankly admit that the end result of the administration of any decedent dying without heirs will be exactly the same whether the Secretary or the Register appoints the administrator and counsel, but each of the parties wishes to control who gets the sometimes lucrative appointments.
On May 30, 1974, a hearing was held before the undersigned on the Secretary's Motion for a Preliminary Injunction, after which, based upon the pleadings and evidence produced, the motion was denied. On July 30,
[ 17 Pa. Commw. Page 2901974]
, the Secretary filed a Motion for Judgment on the Pleadings under Pa. RCP 1034;*fn1 and thereafter, on November 6, 1974, the Register filed a Motion for Summary Judgment under Pa. RCP 1035.*fn2
The first question we will consider is the question of our jurisdiction over the subject matter. The complaint alleges that this Court has jurisdiction, and the answer admits this allegation. Both parties have argued that this Court has jurisdiction over the subject matter, but the parties cannot create jurisdiction. The Pennsylvania Constitution of 1968 clearly states that this Court, together with all other courts in the Commonwealth, shall "have such jurisdiction as shall be provided by law."*fn3 We recognize that section 401(2) of ACJA, 17 P.S. § 211.401(2), gives this Court jurisdiction over "[a]ll civil actions or ...