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RICHARD H. GWINN v. ROBERT P. KANE (05/27/75)

decided: May 27, 1975.

RICHARD H. GWINN, PLAINTIFF-PETITIONER,
v.
ROBERT P. KANE, ET AL., DEFENDANTS-RESPONDENTS



Original jurisdiction in case of Richard H. Gwinn v. Robert P. Kane, Walter M. Phillips, Jr., Mark A. Klugheit and Ronald G. Cole.

COUNSEL

Edwin P. Rome, with him Jerome R. Richter, Norman Perlberger and Blank, Rome, Klaus & Comisky, for plaintiff-petitioner.

Michael L. Levy, Assistant Attorney General, and Mark A. Klugheit, Assistant Attorney General, for defendants-respondents.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Crumlish, Jr.

Author: Bowman

[ 19 Pa. Commw. Page 245]

Cross-motions for summary judgment posture the legal issues raised in this action in quo warrantor by which plaintiff, Richard H. Gwinn, seeks to void an indictment charging him with perjury and false swearing. To accomplish this objective, plaintiff, by this action, attacks the office held by Walter M. Phillips, Jr., the role two of his subordinates played in the investigation and presentment leading to plaintiff's indictment and the role they expect to play in the trial of plaintiff under the criminal justice system of our Commonwealth.

As history readily reveals, departures from the traditionally sanctioned and recognized forms and procedures of our criminal justice system and the role particular public officials are to play therein produce complex multiple litigation, and the genesis for such departures is not found in orderly processes to improve the system but rather arises out of political controversy. The departure with which we here deal is no exception.

Supporting their respective motions for summary judgment, affidavits have been filed by the competing parties. Having carefully reviewed them, we observe, as the parties themselves believe to be the case, that they produce no material controverted facts and, therefore, we believe the case to be ripe for disposition on the cross-motions. The background history essential to an understanding of the issues raised dates back to the year 1972, when an investigating grand jury was convened by the then District Attorney of Philadelphia County and charged to look into a wide range of subjects revolving around political and police corruption. On November 20, 1973, plaintiff, as president of a milk company, testified

[ 19 Pa. Commw. Page 246]

    before that grand jury on the subject of contracts between his milk company and the City of Philadelphia over a number of years.

In January 1974, that grand jury issued its final report, which, among other things, recommended a new investigating grand jury be convened to continue in the areas of investigation with which it had been charged. On January 31, 1974, Judge Takiff, who had been assigned to supervise the regular January 1974 Grand Jury, charged it to conduct an investigation in a host of areas, which included "systems of bribery and corruption in the awarding of public contracts" and "a system or systems of official corruption, including and involving payments to influence the discharge of official duties with respect to decisions, recommendations, appointment to official positions, and other governmental functions and activities."*fn1 (Hereafter referred to as 1974 Grand Jury.)

On February 11, 1974, the 1974 Grand Jury was reconvened and the newly elected District Attorney was requested by Judge Takiff to assign personnel to it, which request was refused.

By letter dated February 15, 1974, President Judge Jamieson of the Court of Common Pleas of Philadelphia County requested the then Attorney General of the Commonwealth to assign a "special attorney or attorneys to represent the Commonwealth" in connection with the work of the 1974 Grand Jury. In doing so, he specifically invoked Section 907 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P.S. ยง 297.

In replying on February 26, 1974, the Attorney General suggested that good judgment would dictate a judicial determination of the legality of the 1974 Grand Jury,

[ 19 Pa. Commw. Page 247]

    which he would seek if Judge Takiff or District Attorney Fitzpatrick declined to do so.*fn2

On March 26, 1974, the Attorney General appointed Walter M. Phillips, Jr., as a "deputy attorney general" for the Commonwealth; a commission for said appointment issued April 1, 1974.

On March 26, 1974, having made such appointment, the Attorney General directed Mr. Phillips to "set up the Office of Special Prosecutor" to continue an investigation into corruption within the Philadelphia Police Department which had been started by the Pennsylvania Crime Commission; a report of the Commission on the subject having issued March 11, 1974.

On March 28, 1974, the Attorney General notified the District Attorney that he was superseding the District Attorney in the task of investigating and prosecuting police corruption in Philadelphia and that all such allegations of corruption should be referred to the "Special Prosecutor Walter M. Phillips, Jr."

On May 1, 1974, the Attorney General advised President Judge Jamieson that he was complying with the judge's request of February 15, 1974, and "directing the Special Prosecutor and his staff to man the Takiff Grand Jury and to proceed without delay." Neither in this advice nor in any other manner as disclosed by the record before us did the Attorney General otherwise define the scope and authority of Mr. Phillips.

On September 11, 1974, the 1974 Grand Jury issued a presentment, and on September 26, 1974, the September 1974 Grand Jury approved the indictment of plaintiff for perjury and false swearing. Trial of the charge was scheduled to begin March 3, 1975, before Judge Kubacki,

[ 19 Pa. Commw. Page 248]

    which impending trial precipitated the instant proceedings.

There is a body of averments by plaintiff supported by affidavits and exhibits, and largely uncontradicted by defendants, on the subject of financing the office of the "Special Prosecutor" through Law Enforcement Assistance Administration (LEAA) funds. For reasons hereinafter set forth, we do not deem this body of averments to be material to the issues raised on the cross-motions for summary judgment. To the extent that this body of averments may be material to identify and define the office which Mr. Phillips holds and the role he played in leading to the indictment in question, it may be fairly said that with respect to the Attorney General's application for and in support of attaining LEAA funds, Mr. Phillips was repeatedly identified as a "State Prosecutor" with statewide power and authority to combat public corruption. Similarly, there are averments that two aides of Phillips (Messrs. Klugheit and Cole), each appointed by the Attorney General as an "Assistant Attorney General, Department of Justice," participated in the proceedings leading to the indictment of plaintiff prior to their admission to practice before the bar of the Supreme Court of Pennsylvania.

These averments we likewise consider not to be material to resolution of the issues before us.

As thus postured, it is quite clear that plaintiff is essentially testing the legality of the office which Mr. Phillips holds and his actions under its color rather than Mr. Phillips' entitlement to that office. Although not specifically raised by either party in their cross-motions for summary judgment, it seems equally clear to us that our initial inquiry must be directed to the question of whether an action in quo warrantor lies to test the legality of a public office. Inasmuch as the vast body of law arising out of quo warrantor actions involves issues of a particular person's entitlement to a public office, our research discloses

[ 19 Pa. Commw. Page 249]

    that this question has rarely been raised. However, it does appear to be well settled that where a person has entered upon a public office, which office is allegedly unconstitutional, quo warrantor is the proper proceedings to oust the incumbent because the office he occupies has no legal existence. Commonwealth v. Denworth, 145 Pa. 172, 22 A. 820 (1891); Snyder v. Boyd, 26 Dauph. 375 (1923). If a public office having no legal existence because of the unconstitutionality of the statute creating it is a proper subject of quo warrantor proceedings against the incumbent, we see no valid distinction for denying to quo warrantor the testing of the legality of a public office for alleged want of statutory authority to create it. Cf. Gernert v. Lindsay, 2 Pa. Commonwealth Ct. 576, A.2d (1971). We, therefore, conclude that an action in quo warrantor properly lies in this case. Does plaintiff have standing to sue the defendants in an action in quo warrantor? Defendants vigorously assert that plaintiff as a defendant in a criminal prosecution has no standing to contest the validity of the office prosecuting him.*fn3

In Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444 (1963), a taxpayer's action in equity, an issue raised was whether quo warrantor was not the exclusive remedy to resolve the issues raised by plaintiff's complaint. In concluding that equity would lie, our Supreme Court discussed the roles of these two forms of action. It stated:

"The general rule is well settled that quo warrantor is the sole and exclusive remedy to try title or right to office, whether the right which is challenged is that of a de jure or a de facto officer. It is likewise part of the general rule that quo warrantor can be brought only by an Attorney General, or by a District Attorney, or by a person who has a special right

[ 19 Pa. Commw. Page 250]

    or interest as distinguished from the right or interest of the public generally, or has been specially damaged. And this is particularly true where such a judgment would not place the plaintiff himself in office.

"However, there is likewise a well settled general rule that a taxpayer has a right and a standing to sue to enjoin public officials from wrongfully or unlawfully expending public money, and in such cases the complainant need not have any special interest which is damaged other than his interest as a taxpayer.

"Sometimes these two general rules collide or overlap. Moreover, appellant points out that in recent years exceptions have been wisely recognized by the Courts to the narrow circumscribed limited remedy of quo warrantor for several reasons: (1) quo warrantor does not always furnish an adequate and full remedy; (2) the wisdom of applying a remedy which will avoid a multiplicity of suits; (3) the paramount right of the public to have a surer and more adequate remedy to restrain wrongful acts by a public official, including the unlawful expenditure of public money. Where such circumstances exist, equitable relief has been granted through a taxpayer's bill or other injunctive or equitable remedy." (Emphasis in original.) (Citations omitted.) 411 Pa. at 6-7, 190 A.2d at 446-47.

Also see League of Women Voters v. Lower Merion Township Board of Commissioners, 451 Pa. 26, 301 A.2d 797 (1973); DeFranco v. Belardino, 448 Pa. 234, 292 A.2d 299 (1972).

As particularly pertinent to the issue of the right of an individual to sue in quo warrantor, noted as an exception to the general rule in Mayer, supra, our Supreme Court in Stroup v. Kapleau, 455 Pa. 171, 313 A.2d 237 (1973), affirmed this Court which concluded that several state senators had a right through ...


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