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decided: December 23, 1977.



Burton A. Rose, Philadelphia, for petitioner.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Joseph Murray, Philadelphia, for respondent.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Eagen, C. J., and Nix and Manderino, JJ., concur in the result. Packel, J., files a dissenting opinion.

Author: O'brien

[ 476 Pa. Page 61]


This matter is before us on a petition for a writ of prohibition filed by Philadelphia Police Officers Gerald Salerno, Charles Gubler, Steven Maggiancaldo, Andrew Yaletsko,

[ 476 Pa. Page 62]

Howard Davis, James Dorwart, David Ridgeway, Sid Mullins and Robert Butler.*fn1

On July 2, 1977, Jose Reyes was shot to death in Philadelphia. Police Officer Gerald Salerno was alleged to be the person who shot Reyes. The Philadelphia District Attorney's office, through its homicide division, began an investigation into the circumstances of the Reyes-Salerno shooting.

On August 3, 1977, five of the above-mentioned police officers were requested to appear at the office of the chief of the homicide division. On advice of counsel, the five officers appeared, but refused to make any statements concerning the facts surrounding the Reyes-Salerno shooting.

On August 5, 1977, the district attorney's office filed a petition with Judge Merna B. Marshall of the Court of Common Pleas of Philadelphia. The gravamen of the petition alleged that the Philadelphia District Attorney, pursuant to § 8-409 of the Philadelphia Home Rule Charter, had investigative subpoena power. Pursuant to § 8-409 of the charter, the district attorney asked the court to confirm such subpoena power. On August 18, 1977, the court, per Judge Marshall, issued an order:

". . . [T]hat the District Attorney of Philadelphia may subpoena the following police officers to appear and give testimony and other evidence regarding the fatal shooting of Jose Reyes." (Emphasis added.)

On August 23, 1977, the petitioners filed a petition for a writ of prohibition in this court. On August 29, 1977, a justice of this court issued a stay of the proceeding pending disposition of the petition for writ of prohibition by the full court. On September 14, 1977, this court granted a rule to show cause, returnable on October 17, 1977. On that date, the petition was argued before the full court.

[ 476 Pa. Page 63]

The initial inquiry is whether a writ of prohibition is the proper remedy in the instant case.

In Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 102, 61 A.2d 426, 430 (1948), this court stated:

". . . The writ of prohibition is one which, like all other prerogative writs, is to be used only with great caution and forbearance and as an extraordinary remedy in cases of extreme necessity, to secure order and regularity in judicial proceedings if none of the ordinary remedies provided by law is applicable or adequate to afford relief. It is a writ which is not of absolute right but rests largely in the sound discretion of the court. It will never be granted where there is a complete and effective remedy by appeal, certiorari, writ of error, injunction, or otherwise: see First Congressional District Election, 295 Pa. 1, 13, 144 A. 735, 739, 740, and cases referred to in the dissenting opinion in Philadelphia County Grand Jury Investigation Case, 347 Pa. 316, 330-334, 32 A.2d 199, 206-208; also Roche, U. S. District Judge v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185; United States Alkali Export Association, Inc. v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554. As pointed out in the last cited authority, 325 U.S. at page 203, 65 S.Ct. at page 1125, 'appellate courts are reluctant to interfere with decisions of lower courts, even on jurisdictional questions, which they are competent to decide and which are reviewable in the regular course of appeal. . . . The [extraordinary] writs may not be used as a substitute for an authorized appeal.'"

In Commonwealth v. Mellon Nat. Bk. & Tr. Co., 360 Pa. 103, 107, 108, 61 A.2d 430, 433 (1948), this court further defined the scope and availability of a Writ of Prohibition:

[ 476 Pa. Page 64]

"Ferris in Extraordinary Legal Remedies (p. 439 et seq.) said: 'It is well settled that a writ of prohibition may not be used to usurp or perform the functions of an appeal, writ of error or certiorari, or to correct any mistakes, errors or irregularities in deciding any question of law or fact within its jurisdiction. The office of the writ, as at Page 64} common law, is to prevent an unlawful assumption of jurisdiction, not to correct mere errors and irregularities in matters over which the court has cognizance. Where the general scope and purpose of the action is within the jurisdiction of the court, any error or overstepping of its authority in a portion of its judgment, or any other error in its proceedings, is only ground for a review or appeal, and not prohibition. That is to say, where there is authority to do the act, but the manner of doing it is improper, the writ will not lie. In other words, whatever power is conferred may be exercised, and, if it be exercised injudiciously, erroneously or irregularly, it amounts to error merely and not to a usurpation or excess of jurisdiction. In such a case, however gross the error, irregularity or mistake, the writ does not lie, not because, as is sometimes erroneously or irregularly, it amounts to error merely or such remedies are inhibited, but for the reason that there has been no usurpation or abuse of power.' (Emphasis added.)

"The American and English Encyclopaedia of Law (2d Ed.), Vol. 23 at p. 200 sums up the law applicable to writs of prohibition as follows: 'Where the inferior court has jurisdiction of the matter in controversy, prohibition will not lie. The writ does not lie to prevent a subordinate court from deciding erroneously or from enforcing an erroneous judgment in a case in which it has a right to adjudicate, and it matters not whether the court below has decided correctly or erroneously; its jurisdiction of the matter in controversy being conceded, prohibition will not lie to prevent an erroneous exercise of that jurisdiction. The exercise of power which it is sought to prohibit must be wholly unauthorized by law. Mere errors or irregularities in the proceedings which do not go to the jurisdiction . . . of the inferior court to take the proposed action, and the merits of the action will not be considered.' To the same effect is 50 Corpus Juris, sec. 3, p. 655." (Footnote omitted.)

[ 476 Pa. Page 65]

In Com. ex rel. Specter v. Shiomos, 457 Pa. 104, 107-108, 320 A.2d 134, 136 (1974), this court synthesized the Carpentertown and Mellon Bank rationales by saying:

". . . Thus, under Carpentertown, a two-pronged test was set forth for this Court to follow when considering the granting of a Writ. The first aspect of the test is whether adequate ...

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