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

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 ...


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