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JOSEPH MARCUS ET AL. v. GUY DIULUS ET AL. (09/27/76)

decided: September 27, 1976.

JOSEPH MARCUS ET AL.
v.
GUY DIULUS ET AL., APPELLANTS



COUNSEL

D. R. Pellegrini, Pittsburgh, for appellants.

Ronald C. Weingard, Robert B. Marcus, Wendell G. Freeland, Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 242 Pa. Super. Page 153]

This appeal presents a unique question: Can a court of equity enjoin officers of the Commonwealth from using evidence seized pursuant to a search warrant in criminal proceedings within the Commonwealth of Pennsylvania or from sending such evidence to authorities in other states? For the reasons hereafter stated, we find that the lower court had no jurisdiction to decide this question and reverse the decree entered below.

Prior to discussing the law involved, a short summation of the facts in this case is necessary. On February 24, 1976, a search warrant was executed for the premises of a company in Pittsburgh known as J. Marcus Wholesalers, Inc. The affiant for the warrant was Robert Swanson, an Assistant District Attorney of Denver County, Colorado, and a defendant in the present action. Guy Diulus, a detective in the Pittsburgh police department and another defendant in this case, was the law enforcement officer who executed the warrant and seized the evidence discovered during the search. The affidavit in the search warrant disclosed that the District Attorney's Office in Denver had conducted an investigation into the sale of imitation perfume in January, 1976; the investigation revealed that certain stores in the Denver area

[ 242 Pa. Super. Page 154]

    were selling perfume in counterfeit and forged wrappings; and after further investigation, it was discovered that the source of the perfume was J. Marcus Wholesalers, Inc., in Pittsburgh, Pennsylvania. On the basis of this and other information a search warrant was issued by a magistrate in Pittsburgh.*fn1 The warrant charged the owners of the company with the following violations of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 101 et seq. (1973); Deceptive business practices, 18 Pa.C.S. § 4107 (1973); Theft by deception, 18 Pa.C.S. § 3922(a)(1) and (2) (1973); Conspiracy, 18 Pa.C.S. § 903 (1973); Aiding consummation of crime, 18 Pa.C.S. § 5107 (1973); Complicity, 18 Pa.C.S. § 306 (1973); and Simulating objects 18 Pa.C.S. § 4102 (1973).

A search of the premises revealed various records, documents, and other items including perfume in apparently counterfeit containers and wrappings that connected J. Marcus Wholesalers, Inc., with the illegal transactions in Denver. The evidence was seized and held by the Pittsburgh Police. Seventeen days later, on March 12, 1976, plaintiffs, J. Marcus Wholesalers, Inc., and its owners, Joseph Marcus and Jack Marcus, filed a petition for declaratory judgment and a complaint for an injunction in the equity division of the Court of Common Pleas of Allegheny County. No charges had at that time been formally made against the owners of J. Marcus Wholesalers, Inc. The petition for declaratory judgment and the complaint for injunction were both amended a few days later. The plaintiffs requested the court to find that the search and seizure conducted by the defendants, authorities of the city of Pittsburgh and county of Allegheny as well as the authorities from Denver, was unlawful and plaintiffs prayed that these public officers be enjoined

[ 242 Pa. Super. Page 155]

    from sending the evidence seized to authorities outside the Commonwealth of Pennsylvania. Subsequently, the defendants filed preliminary objections claiming that a court of equity did not have jurisdiction in this criminal matter and also that the plaintiffs did not state a cause of action in equity because they had a complete and full remedy at law. On March 24, 1976, the lower court held a hearing to consider argument on defendants' preliminary objections and to determine whether a preliminary injunction should be granted. See Printed Record at 72a and 98a. Although no testimony was taken at the hearing, counsel for the parties argued their respective positions on the issues of jurisdiction and the legality of the search and seizure. On May 3, 1976, the lower court made its decision and found that the search and seizure of plaintiffs' building was unlawful and enjoined the defendants not only from permitting the evidence seized to be sent to Colorado but also enjoined the use of such evidence with the Commonwealth of Pennsylvania.*fn2 This appeal followed.*fn3

[ 242 Pa. Super. Page 156]

The lower court's rationale for accepting equity jurisdiction is best explained by the following excerpt from its opinion in support of its decision:

"The plaintiffs have requested this Court to entertain declaratory and equitable relief, and at first blush, it would appear that this request is quite unique. Upon analysis, however, the request is quite proper under these circumstances. The plaintiffs are citizens of our Commonwealth, and, inasmuch as there is no criminal proceeding in our Commonwealth, the plaintiffs are quite proper in seeking the aid of the courts of their domiciliary state rather than subjecting themselves to the jeopardy of foreign jurisdiction. It is argued that the plaintiffs can well utilize the suppression procedures available within the framework of the Criminal Division of our ...


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