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COMMONWEALTH PENNSYLVANIA v. MARTIN I. SCHAB (01/31/78)

decided: January 31, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MARTIN I. SCHAB, APPELLEE



COUNSEL

Robert P. Kane, Atty. Gen., Peter B. Foster, Vincent X. Yakowicz, Sols. Gen., for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Division, for appellee.

Liebert, Short, Fitzpatrick & Lavin, Stephen J. McEwen, Jr., Upper Darby, for Pennsylvania Dist. Attorneys Association.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., and O'Brien, J., join in this opinion. Pomeroy, J., filed a separate opinion in which Nix, J., joined. Roberts, J., filed a dissenting opinion in support of reversal. Jones, former C. J., did not participate in the decision of this case.

Author: Manderino

[ 477 Pa. Page 58]

OPINION

This case raises the issue of if and under what circumstances the Attorney General of Pennsylvania may supersede a district attorney and proceed to conduct a criminal prosecution in the county of the superseded district attorney.

On August 31, 1975, Martin I. Schab, a Philadelphia policeman, shot and killed Anthony Frank Majewski in the Sip'N Steak Bar and Restaurant in Philadelphia. The District Attorney's office investigated the killing and concluded that Schab had not violated the penal law because the killing was an excusable homicide.

Subsequently, the Attorney General's office conducted its own investigation. The facts uncovered by this investigation, in which the District Attorney cooperated, were substantially the same as those uncovered by the District Attorney's office. Nevertheless, the Attorney General decided that Schab should be prosecuted. The Attorney General then submitted a request to the Honorable Edward J. Bradley, President Judge of the Court of Common Pleas of Philadelphia County, seeking a written request from Judge Bradley asking the Attorney General to intervene pursuant to Section 907 of the Administrative Code, Act of April 9, 1929, P.L. 177, art. IX, § 907, 71 P.S. § 297. Judge Bradley refused.

The Attorney General then informed the District Attorney that he was superseding him for the purpose of prosecuting Martin I. Schab pursuant to Section 904 of the Administrative Code, 71 P.S. § 294.

Schab was arrested on the same day and a preliminary hearing was scheduled before Judge Cavanaugh on December 31, 1975. Judge Cavanaugh was informed that the District Attorney was contesting the Attorney General's right to conduct the prosecution and he ordered both parties to appear before him on December 31, 1975 to present arguments and briefs on the issue. In an opinion and order dated January 14, 1976, Judge Cavanaugh ruled that the

[ 477 Pa. Page 59]

Attorney General could not supersede the District Attorney in this instance and that the district attorney had control of the prosecution. On January 16, 1976, Judge Cavanaugh discharged Schab after being informed that the District Attorney would present no evidence at the preliminary hearing. The Attorney General then asked this Court to assume jurisdiction of the matter. On January 23, 1976, the Court entered an order accepting jurisdiction and tolling the 180-day provision of Pa.R.Crim.P. 1100.

In this appeal, the Attorney General contends that he has both the common law and statutory power to supersede the District Attorney. He further contends that the only question at issue once he exercises this power is whether or not he [the Attorney General] abused his discretion. In essence, the Attorney General's contention is that he may supersede the District Attorney in the conduct of a criminal investigation or criminal prosecution at any time so long as his act is not an abuse of discretion.

We turn first to the Attorney General's contention that he has the common law power to supersede the District Attorney. This contention finds strong support in a series of Pennsylvania cases. In Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, 188 A. 524, 531 (1936), this Court stated:

"We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to . . . supersede and set aside the district attorney when in the attorney general's judgment such action may be necessary." (Emphasis added.)

This statement was repeated by the Court in In Re Investigation by Dauphin County Grand Jury, 332 Pa. 289, 2 A.2d 783 (1939), Appeal of Margiotti, 365 Pa. 330, 75 A.2d 465 (1950), Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952) and Commonwealth v. Fudeman, 396 Pa. 236, 152 A.2d 428 (1959).

[ 477 Pa. Page 60]

    the county for which he is elected, and perform all duties which now by law are to be performed by deputy attorney generals . . . ."

In 1874, the district attorney was made a constitutional officer. Pa.Const. Art. XIV, § 1 (1874), now in Pa.Const. Art. IX, § 4.

Despite the fundamental change in the method of selecting a local prosecutor, and despite the district attorney's status as a constitutional officer, our Court reasoned: Pennsylvania adopted the office of Attorney General as it existed in England; in the 18th Century England's Attorney General had the power to supersede prosecuting attorneys; therefore, Pennsylvania's Attorney General has the same power. See, e. g., Commonwealth ex rel. Minerd v. Margiotti, supra, 325 Pa. at 22-31, 188 A. at 526-30.

We no longer adhere to this view. Simply because the Attorney General had the common law power to replace his own deputies does not justify the conclusion that he now has the right to supersede an elected District Attorney, an officer unknown to the common law. It would be incongruous to place the district attorney in the position of being responsible to the electorate for the performance of his duties while actual control over his performance was, in effect, in the Attorney General. To countenance such a separation of accountability and control undermines self-government and promotes centralization, see Commonwealth v. Fudeman, 396 Pa. 236, 152 A.2d 428, 438-40 (1959) (Musmanno, J., dissenting), of law enforcement -- precisely the approach rejected in Pennsylvania by statute in 1850 and constitutionally in 1874.

On the basis of the foregoing, it is our opinion that the Attorney General of Pennsylvania has no common law power to supersede at his discretion a District Attorney of this Commonwealth.

Having determined that the Attorney General has no common law powers to supersede, at his sole discretion, the office of district attorney, we turn to the relevant statutory provisions to determine if and under what circumstances the

[ 477 Pa. Page 62]

Attorney General can supersede a district attorney's office. Our task is to reconcile and give effect to two sections of the Administrative Code, § 904 [71 P.S. § 294] and § 907 [71 P.S. § 297]. Section 904 provides in full:

"The Department of Justice shall have the power, and its duty shall be, with the approval of the Governor:

(a) To investigate any violations, or alleged violations, of the laws of the Commonwealth which may come to its notice;

(b) To take such steps, and adopt such means, as may be reasonably necessary to enforce the laws of the Commonwealth."

Section 907 provides in relevant part:

"When the president judge, in the district having jurisdiction of any criminal proceedings, before any court of oyer and terminer, general jail delivery, or quarter sessions, in this Commonwealth, shall request the Attorney General to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth's intervention, the Attorney General is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate charges, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, 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."

In construing these two sections of the Administrative Code, we must do so in a manner that gives effect to both provisions, for we are to presume the Legislature intended the entire statute to be effective. 1 Pa.C.S.A. §§ 1921(a), 1922(2).

We note first that § 907 is the only provision in which the General Assembly gave the Attorney General the explicit authorization to supersede a district attorney. One possible reading of these two sections, therefore, is that § 907 delineates

[ 477 Pa. Page 63]

    the only method by which the Attorney General can ever supersede a district attorney. This interpretation arguably finds support in the Act of March 20, 1939, P.L. 8, where the General Assembly "repealed absolutely" the Act of July 30, 1938, P.L. 17, which had conferred on the Attorney General the power to supersede, at his discretion, the District Attorney of a county at any stage of an investigation or proceeding pending in that county's criminal courts. This action indicated, at the least, a legislative disapproval of a system in which the Attorney General could, at his pleasure, displace an elected official in the execution of his governmental responsibility. We could reasonably conclude that the Legislature believed that the elective process, as well as § 907's authorization of a president judge to intervene in appropriate cases, were sufficient checks on the office of District Attorney.

Another possible construction of §§ 904 and 907, one urged upon us by the Attorney General, is to hold § 907 is but one prescribed avenue of supersession, and the Attorney General can supersede a district attorney at will providing his decision to do so is not an abuse of discretion. Under this view, the appellant argues, the Attorney General's legislative mandate to enforce the laws of the ...


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