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RICHARD H. GWINN v. ROBERT P. KANE ET AL. (07/07/75)

SUPREME COURT OF PENNSYLVANIA


decided: July 7, 1975.

RICHARD H. GWINN, APPELLANT,
v.
ROBERT P. KANE ET AL.

COUNSEL

Jerome R. Richter, Blank, Rome, Klaus & Comisky, Philadelphia, for appellant.

Michael L. Levy, Asst. Atty. Gen., Philadelphia, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., took no part in the consideration or decision of this case. Nix and Manderino, JJ., dissent.

Author: Per Curiam; Roberts

[ 465 Pa. Page 273]

The order of the Commonwealth Court is affirmed. 339 A.2d 838. Opinion to follow.

Opinion OF THE COURT

ROBERTS, Justice.

Appellant Richard H. Gwinn brought this action in quo warrantor in the Commonwealth Court against then Attorney General Israel Packel*fn1 and Walter Phillips, a deputy attorney general in charge of the "Office of the Special Prosecutor, Department of Justice." It challenges the appointment of Phillips as a special attorney superseding the District Attorney of Philadelphia in certain matters.*fn2 On cross-motions for summary judgment, the Commonwealth Court concluded that there was no disputed issue of material fact and that Phillips had been validly appointed as a special attorney. This appeal ensued.*fn3 We affirm.*fn4

[ 465 Pa. Page 274]

Some of the background facts in this case are well summarized in this Court's opinion in In Re Investigation of January 1974 Philadelphia Grand Jury, 458 Pa. 586, 587, 328 A.2d 485, 486-87 (1974):*fn5

"In June of 1972 Judge Harry A. Takiff convened and charged a grand jury, upon the petition of the District Attorney, to investigate various aspects of official corruption in the City of Philadelphia. . . . During the term of that grand jury twenty-one presentments were made identifying pervasive and systematic corruption and other criminal acts among other public officials and employees, and numerous indictments were recommended. In addition, the June 1972 grand jury issued a final report in January of 1974 wherein it recommended that a new investigating grand jury be convened 'very promptly' to inquire further into the distribution of narcotics and related payoffs to policemen, and kickbacks required of architects, engineers, milk company executives and other businessmen in exchange for procuring public contracts.

"Judge Takiff was also assigned to supervise the January 1974 grand jury. Although the new District Attorney who took office in the beginning of January 1974 had taken no action in response to the recommendations of the June 1972 grand jury, two citizens' groups had petitioned Judge Takiff requesting such an investigation. These petitions . . . were rendered moot on January 31, 1974, however, when Judge Takiff charged the grand jury on his own action to conduct an investigation into nine specified areas [of official corruption]. In order to effectuate this charge, the term of the grand jury was extended indefinitely and the grand jury was directed to reconvene, following completion of business, on February 11, 1974. Additionally,

[ 465 Pa. Page 275]

Judge Takiff requested the District Attorney to assign members of his staff to handle the investigation being conducted by the grand jury. The District Attorney, however, declined to comply with Judge Takiff's request and subsequent order to assign members of his staff to conduct these investigations.

"Following the District Attorney's refusal to comply with Judge Takiff's order, President Judge Jamieson advised the Attorney General of the Commonwealth by letter that in his judgment the matter was appropriate for intervention by the Commonwealth and requested him, pursuant to the [Administrative Code of 1929,] Act of April 9, 1929, P.L. 177, art. IX, § 907, 71 P.S. § 297, to assign a special attorney or attorneys to represent the Commonwealth, attend the January 1974 grand jury and perform all the duties and responsibilities in connection therewith." (footnote omitted)

On March 11, 1974, shortly after President Judge Jamieson made this request, the Pennsylvania Crime Commission issued a Report on Police Corruption and the Quality of Law Enforcement in Philadelphia asserting that there was pervasive police corruption in that city. It recommended appointment of a statewide special prosecutor to investigate and prosecute corrupt practices by government officials throughout the Commonwealth.

On March 26, 1974, the Attorney General appointed Phillips as a deputy attorney general,*fn6 and directed him to organize the "Office of the Special Prosecutor"*fn7 to continue the investigation of official corruption

[ 465 Pa. Page 276]

    in Philadelphia begun by the Pennsylvania Crime Commission.*fn8 On March 28, 1974, the District Attorney of Philadelphia was notified that he was being superseded by the Attorney General in the task of investigating and prosecuting police corruption in Philadelphia and that all allegations of such corruption should be referred to Phillips. On May 1, 1974, the Attorney General informed President Judge Jamieson that, pursuant

[ 465 Pa. Page 277]

    to his request, Phillips and his staff were being directed to "man" the January 1974 Philadelphia Grand Jury (hereafter, the Grand Jury).

The Grand Jury, with the assistance of Phillips and his staff, proceeded with its investigation. On September 11, 1974, it issued a presentment alleging that appellant, the president of a milk company, had committed perjury and false swearing in his testimony before the June 1972 Philadelphia Grand Jury regarding his company's contracts with the city. On September 26, 1974, another grand jury indicted appellant on these charges. Trial on this indictment was scheduled to begin on March 3, 1975, when this action was brought on December 24, 1974.

On December 27, the Commonwealth Court transferred the case here because it concluded that original exclusive jurisdiction to entertain actions in quo warrantor involving officers of statewide jurisdiction was in this Court. On January 24, 1975, we retransferred the case to the Commonwealth Court for disposition.*fn9 After further

[ 465 Pa. Page 278]

    proceedings, the Commonwealth Court entered a summary judgment in favor of the defendants and this appeal ensued.

The primary issue presented in this appeal is the validity of Phillips' appointment as special attorney superseding the District Attorney of Philadelphia. Appellees assert here, as they did in the Commonwealth Court, that (1) this question is not properly cognizable in quo warrantor*fn10 and (2) appellant lacks standing to raise it.*fn11

[ 465 Pa. Page 279]

While the Commonwealth Court rejected these contentions, their resolution is not free of difficulty. However, because we agree with the Commonwealth Court that the appointment was proper, appellant is not entitled to relief even if the issue is cognizable in quo warrantor and he has standing to raise it. Consequently, we need not resolve those questions.*fn12

Appellees maintain that Phillips' appointment as special attorney can be sustained on two independent bases: (1) the common law power of the Attorney General recognized in Margiotti Appeal, 365 Pa. 330, 75 A.2d 465 (1950) and Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1936) (alternate holding), and (2) section 907 of the Administrative Code of 1929.*fn13 As did the Commonwealth Court, we conclude that the statutory basis relied upon by appellees is sufficient and therefore need not decide whether the common law power

[ 465 Pa. Page 280]

    of the Attorney General would also sustain the appointment.

Pursuant to section 907, the President Judge of the Court of Common Pleas of Philadelphia informed the Attorney General that he believed that the investigation being undertaken by the grand jury was a proper case "for the Commonwealth's intervention," and requested that he appoint a special attorney. On May 1, 1974, the Attorney General agreed to this request and appointed Phillips as special attorney. The prosecution of appellant is a product of the activities of Phillips in that capacity. Thus, if the statutory appointment is valid, it is of no consequence here whether the purported supersession on March 28, 1974, under the common law powers of the Attorney General is also valid.

Appellant's first attack, based in part on his erroneous belief that Phillips purports to hold the office of "Special Prosecutor of the Commonwealth of Pennsylvania,"*fn14 relies upon dicta in Smith v. Gallagher, 408 Pa. 551, 580-81, 185 A.2d 135, 149-50 (1962), which appear to indicate that no such office could constitutionally be created.*fn15 Smith involved an attempt by a single judge of a court of common pleas to appoint a "special prosecutor" to supersede the district attorney in the conduct of a grand jury investigation. The opinion in Smith explicitly recognized that the question involved

[ 465 Pa. Page 281]

    there was entirely unrelated to the issue presented in this case:*fn16

"What powers the Attorney General may have over district attorneys . . . is a subject for discussion . . . but that discussion has no place here since our issue is whether a judge on his own initiative may oust a district attorney from the performance of his duties. In any event, the powers of a single judge cannot be equated with those of the Attorney General where supersession is involved since the judge lacks any statute, common law or decisional authority to act in a supersessional capacity."

Id. at 605, 185 A.2d at 162 (emphasis added). Appellant's attempt to base his attack on these dicta from Smith must therefore fail both because he misconceives the office held by Phillips and because Smith is totally inapposite on this point.

Appellant next argues, relying on certain other dicta in Smith,*fn17 that section 907 requires that a president

[ 465 Pa. Page 282]

    judge consult with the other judges of his court before he requests the intervention of the Attorney General under section 907.*fn18 Because there was no such consultation here, appellant contends that the request for appointment of a special attorney was defective and the Attorney General was not authorized to act under section 907.

The statute makes no mention of any requirement of consultation, vesting the authority to request intervention solely in the president judge.*fn19 We can find no basis in law or policy for adding such a requirement to those set forth in the statute. Consequently, appellant's contention that the request was void for want of consultation with the Board of Judges must fail.

[ 465 Pa. Page 283]

Appellant next urges an argument based on the nature of the powers which a special attorney may exercise. Section 907 provides that a special attorney "shall supersede the district attorney of the county in which the case or cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned."*fn20 Appellant urges that the requirement that a special attorney be assigned to "a case or cases" precludes an assignment including the entire work of "an investigating grand jury and all indictments flowing therefrom."*fn21 We can not agree.

The purpose of section 907 is to provide for the enforcement of the law when the district attorney, for any reason, is unable or unwilling to conduct prosecutions. The statute authorizes a special attorney to "investigate" the cases to which he is assigned. Nothing in its language limits the number of cases which may be included in the assignment or requires that an exhaustive list of criminal episodes to be investigated be provided in advance. Under appellant's proposed construction the statutory procedure would be usable only in isolated cases of prosecutorial inability or unwillingness. It would be useless in the far more pernicious situation created by failure to take action against a pervasive system of official corruption such as that which the June 1972 Grand Jury and the Pennsylvania Crime Commission found to exist in Philadelphia. We cannot accept such a construction. See Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1) (Supp.1975).

Moreover a similar supersession of a district attorney based solely on the common law powers of the Attorney General was approved in Margiotti Appeal, 365 Pa. 330, 75 A.2d 465 (1950.) There the Attorney General took control of a grand jury investigation into a widespread

[ 465 Pa. Page 284]

    pattern of acts by employees and elected officials designed to defraud the City of Pittsburgh without any request by the president judge for the Commonwealth's intervention. We can see no reason why the powers of the Attorney General should be more restricted when, pursuant to section 907, the president judge of the judicial district specifically requests that he intervene. See Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 32, 188 A. 524, 530-31 (1936).

Appellant's final argument directed to the propriety of the supersession is that it was unnecessary and therefore improper under the facts existing at the time. We have held that where the Attorney General, upon his own motion, supersedes a district attorney, his action is reviewable for abuse of discretion. Margiotti Appeal, 365 Pa. 330, 331-33, 337-39, 75 A.2d 465, 466-67, 468-69 (1950); Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 364-65, 2 A.2d 809, 812-13 (1938). While it is not clear whether this rule also applies to the action of the Attorney General pursuant to section 907, we need not decide that question because it is clear that there was ample basis for his action in this instance.

The June 1972 Grand Jury, on the basis of its investigation, found pervasive and systematic corruption among public officials and employees in Philadelphia. It recommended the convening of a new grand jury to investigate apparently widespread corruption of police officers and officials responsible for letting public contracts. The January 1974 Grand Jury was charged with this task and the district attorney was requested to furnish the staff necessary to assist it in its investigation. The district attorney repeatedly and publicly refused to furnish the necessary staff. These facts alone suffice to justify intervention by the Attorney General at the request of President Judge Jamieson, for in the absence of such intervention,

[ 465 Pa. Page 285]

    the Grand Jury's investigation would be frustrated at the outset.

Much of appellant's argument is directed to alleged improprieties in the funding of the Office of the Special Prosecutor by grants from the Law Enforcement Assistance Agency (LEAA), a federal agency. Specifically, he contends that misrepresentations were made in the application for LEAA funding; that no proposal was submitted to the Regional Planning Council; that the grant illegally provided 100% funding for the Office of the Special Prosecutor; and that the Office of the Special Prosecutor has violated certain conditions attached to the grants. These allegations need not concern us, for, as appellant himself concedes, it is not the province of this Court to supervise the proper allocation of federal funds by a federal agency.*fn22 Appellant's complaints in this regard would be more properly addressed to the LEAA, as the agency primarily concerned, and, perhaps, the federal courts.*fn23

Moreover, even assuming that the funding for the Office of the Special Prosecutor has been improperly obtained, it would not follow that the actions taken by that office would be stripped of their validity. While the funding may be necessary to the operation of the Office as a practical matter, it is in no way necessary to its legal authority to act.*fn24

[ 465 Pa. Page 286]

Finally, appellant seeks to show that the establishment and continuation of the Office of the Special Prosecutor have been specifically disapproved by the General Assembly. In support of this contention, he relies upon the failure of the General Assembly to enact a bill*fn25 which would have established such an office on a permanent basis and the deletion from the state budget of any appropriation for the support of the Office of the Special Prosecutor. This contention is entirely without merit.

The mere failure of the General Assembly to adopt a particular bill is entirely without significance. First, such failure implies nothing about the will of the General Assembly for it may result from any number of causes -- attention to other, more pressing business; disagreement over particular details of the proposal; or simple inertia. Second, and more importantly, when the Attorney General is empowered by existing law to take a particular action, his authority, can only be revoked by new legislation, requiring affirmative action by both

[ 465 Pa. Page 287]

    houses of the General Assembly and either the approval of the Governor or repassage over his veto as prescribed in article IV, section 15 of the Pennsylvania Constitution. Failure to enact a bill may result from simple inaction by a single house of the General Assembly and is therefore totally ineffective to withdraw powers conferred by existing law.

Similarly, failure to provide appropriations to support a particular activity does not withdraw authority to engage in that activity if it may validly be pursued in the absence of a specific appropriation. For example, if the action involves no expenditures, if the necessary funds are supplied from sources other than the state treasury, or if public officers may properly use funds whose specific allocation is entrusted to their discretion, no specific appropriation is necessary. To allow an impairment of the powers of a public officer by such a device would permit the General Assembly to circumvent the constitutional requirement of gubernatorial approval of all legislation except that passed over his veto. Moreover, as we have previously observed, even if the public funds supporting his activities were improperly obtained, the power of a special attorney to prosecute would be affected.

Inasmuch as appellant has presented no valid objection to the appointment of Phillips as special attorney or to his authority to conduct prosecutions arising out of the investigation of the January 1974 Grand Jury, the order of the Commonwealth Court granting summary judgment for the defendants must be affirmed.

Order affirmed.*fn26


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