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decided: December 26, 1979.


No. 91 E. D. Misc. Dkt. 1979, No. 98 E. D. Misc. Dkt. 1979


James J. West, Henry G. Barr, Asst. Attys. Gen., Dauphin County.

William C. Costopoulos, Lemoyne, for petitioner in No. 98 and for intervenor in No. 91.

Richard L. Thornburgh, Governor of Pennsylvania, Robert E. Casey, Treasurer of Pennsylvania, for respondents in No. 98.

Edward G. Biester, Jr., Atty. Gen., for petitioner in No. 91 and respondents in No. 98.

James J. West, Harrisburg, Stephen Goldblatt, Philadelphia, Robert Eberhardt, Pittsburgh, for amicus curiae.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Eagen

[ 487 Pa. Page 440]


Pursuant to the Investigating Grand Jury Act, Act of November 22, 1978, P.L. 1148 No. 271, §§ 1 et seq., 19 P.S. §§ 265 et seq. [Hereinafter: 19 P.S. § 265], the Attorney General of the Commonwealth, Edward G. Biester, Jr., filed with the Prothonotary of this Court at 91 E.D.Misc.Dkt.1979 an "application requesting an order directing that a multicounty investigating grand jury having statewide jurisdiction be summoned." Pursuant to 19 P.S. § 268, the application was presented to me, as Chief Justice of Pennsylvania, and I, on July 2, 1979, entered an order which, inter alia, directed the summonsing and convening of a multi-county investigating grand jury with statewide jurisdiction.

On that same day, William C. Costopoulos, Esquire, filed an "application for leave to intervene," an "amicus curiae brief," and an "application of amicus to present oral argument." Additionally, Costopoulos filed a "petition for review" at 98 E.D.Misc.Dkt.1979 seeking to set aside the application of the Attorney General at 91 E.D.Misc.Dkt.1979.

[ 487 Pa. Page 441]

On July 30, 1979, I entered a rule to show cause on the petition for review returnable on September 18, 1979 at 10:00 a. m., and granted the application of amicus curiae to present oral argument at the same time. Further, on July 30, 1979, this Court granted the application for leave to intervene.

On August 29, 1979, the Pennsylvania District Attorneys Association filed an "application of amicus curiae for leave to present oral argument" at 91 E.D.Misc.Dkt.1979. On August 31, 1979, the District Attorney of Allegheny County filed an "application for leave to present oral argument" at 91 E.D.Misc.Dkt.1979. I granted the former on September 4, 1979 and the Court denied the latter on September 17, 1979.

Costopoulos filed an "application for stay" of the order of July 2, 1979 at 91 E.D.Misc.Dkt.1979 on August 29, 1979. Decision on that application was reserved by this Court on August 30, 1979. Following oral argument in both matters, specifically on September 19, 1979, this Court denied the application for stay.

Oral argument in both matters was presented on September 18, 1979 by Costopoulos, the Attorney General, and the Pennsylvania District Attorneys Association. Briefs were filed by the same parties and by the District Attorney of Allegheny County as amicus curiae.

Essentially, Costopoulos, as amicus curiae and intervenor at 91 E.D.Misc.Dkt.1979 and as petitioner at 98 E.D.Misc.Dkt.1979, seeks reversal of the July 2, 1979 order at 91 E.D.Misc.Dkt.1979 or, stated otherwise, the dismissal or denial of the Attorney General's application at 91 E.D.Misc.Dkt.1979 because 19 P.S. §§ 265 et seq. is unconstitutional or because the application itself is defective on its face or defective when 19 P.S. §§ 265 et seq. is judicially construed so that it is constitutional.

The Attorney General argues Costopoulos is without standing as an intervenor and as a petitioner. Costopoulos in his application to intervene, in his petition for review, and

[ 487 Pa. Page 442]

    in his briefs in both actions argues he has standing as a taxpayer citing Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135 (1962).*fn1

We granted Costopoulos' application to intervene because Smith v. Gallagher, supra, as precedent was apparently dispositive of the standing issue. After careful consideration of the arguments presented, we now vacate our order granting intervention, deny the application to intervene,*fn2 dismiss the petition for review, and hold Costopoulos, as a taxpayer, is without standing to advance the actions. Furthermore, to the extent Smith v. Gallagher, supra, is contrary to today's ruling, it is expressly overruled.

The purpose of the requirement of standing is to protect against improper plaintiffs. K. Davis, Administrative Law Text § 22.04 (3rd ed. 1972) [Hereinafter: Davis ]. A plaintiff, to meet that requirement, must allege and prove an interest in the outcome of the suit which surpasses "the common interest of all citizens in procuring obedience to the law." Wm. Penn Parking Garage v. City of Pittsburgh,*fn3 464 Pa. 168, 192,

[ 487 Pa. Page 443346]

A.2d 269, 281 (1975) [Hereinafter: Wm. Penn ]. To surpass the common interest, the interest is required to be, at least, substantial, direct, and immediate. Wm. Penn, supra.

Instantly, the interest advanced by Costopoulos, as a taxpayer, is the prevention of a waste of tax revenue as a result of expenditures which will occur and are illegal because the empaneling of this investigating grand jury is illegal since 19 P.S. §§ 265 et seq. is unconstitutional or since the application is defective when the statute is judicially construed so as to be constitutional. Costopoulos asserts 19 P.S. §§ 265 et seq. is unconstitutional or must be construed so as to render the application defective because otherwise certain constitutional violations will occur, namely, the Attorney General will be able to usurp the constitutional authority of the judiciary and the rights of the citizens of this Commonwealth to reputation, Pa.Const. art. I, § 1, to freedom from unreasonable search and seizure, Pa.Const. art. I, § 8, to be heard, Pa.Const. art. I, § 9, and to confront witnesses, Pa.Const. art. I, § 9*fn4 will be violated.

Hence, we must examine Costopoulos' interest to determine if it meets the requirements of Wm. Penn, supra.*fn5

[ 487 Pa. Page 444]

In the absence of special circumstances, discussed infra, and in the absence of an effect on the amount of tax paid by the plaintiff-taxpayer, cf. Wm. Penn, supra, the prevention of a waste of tax revenue has been correctly held to be an interest which is not immediate because the detriment to the taxpayer is too remote since he is not directly or specially affected by the loss. Taxpayers, supra. Cf. Wilt, supra. The prevention of a waste of tax revenue, under the circumstances presented, is merely the same interest all citizens have in having others comply with the law or the constitution.*fn6 Wm. Penn, supra; Taxpayers, supra. Cf. Wilt, supra. Accordingly, absent special circumstances, such an interest is not sufficient to confer standing, and, hence, we hold Costopoulos is without standing. Compare Hamilton Appeal, 407 Pa. 366, 180 A.2d 782 (1962) (taxpayers have no standing to appeal an order denying a petition to empanel an investigating grand jury).

Certain cases exist which grant standing to taxpayers where their interest arguably does not meet the requirements of Wm. Penn,, supra. The relaxing of those requirements in those cases or, more appropriately, the granting of standing where the degree of causal connection between the action complained of and the injury alleged is small, can be

[ 487 Pa. Page 445]

    explained by the policy behind granting taxpayers standing. Furthermore, an examination of that policy fortifies us in our holding today that Costopoulos is without standing.

As Mr. Justice Roberts pointed out over ten years ago in Faden v. Phila. Housing Auth., 424 Pa. 273, 278, 227 A.2d 619, 621-22 (1967):

"[A]lthough many reasons have been advanced for granting standing to taxpayers, the fundamental reason for granting standing is simply that otherwise a large body of governmental activity would be unchallenged in the courts."

See Note, Taxpayers' Suits: A Survey and Summary, supra, n. 5. Hence, the policy for granting standing there the degree of causal connection is small is to ensure judicial review which would otherwise not occur. This will most often occur when those directly and immediately affected by the complained of expenditures are beneficially affected as opposed to adversely affected. Cf. Faden v. Phila. Housing Auth., supra.

Instantly, the constitutionality of 19 P.S. §§ 265 et seq., as well as the petition of the Attorney General, can be expected to be challenged by those subject to the grand jury's actions because they will be adversely affected. Indeed, those subject to a county grand jury empaneled under 19 P.S. §§ 265 et seq. have already brought such challenges. Furthermore, such persons can be expected to allege precisely the interests which are within the zones of protection of the constitutional guarantees upon which Costopoulos' claim that 19 P.S. §§ 265 et seq. is unconstitutional is based.*fn7

Finally, our holding is also in accord with Government of Guam ex rel. Carlos G. Camacho v. Bird, 398 F.2d 315 (9th Cir. 1968), wherein, in the context of a possible reduction in taxes, the court said:

[ 487 Pa. Page 446]

"Consideration must be given to other factors such as, for example, the appropriateness of judicial relief, the availability of redress through other channels, or the existence of other persons better situated to assert the claim. See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265 (1961); Note, Taxpayers' Suits: A Survey and Summary, 69 Yale L.J. 895, 904, 924 (1960); cf. School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 266 n. 30, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)." [Emphasis added.]

The order granting intervention is vacated and the application to intervene is denied. The petition for review is dismissed.

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