No. 343 E.D. Misc. Dkt. 1981., Application for Assumption of Plenary Jurisdiction seeking relief from the Decrees of the Court of Common Pleas of Philadelphia at No. 2437 February Term, 1971, dated June 8, 1981, and March 17, 1981, as modified June 22, 1981.
Eric B. Henson, Deputy Dist. Atty., Kenneth S. Gallant, Asst. Dist. Atty., for petitioner.
John A. Beck, David Rudovsky, Donald S. Bronstein, Philadelphia, for plaintiffs.
John M. Myers, Asst. City Sol., Philadelphia, for defendants.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., joins in this opinion and files a concurring opinion. Nix, J., files a dissenting opinion in which McDermott and Hutchinson, JJ., join. McDermott, J., files a dissenting opinion.
Petitioner Edward G. Rendell, District Attorney of Philadelphia, seeks extraordinary relief from a decree of the Court of Common Pleas of Philadelphia denying him leave to intervene in the matter of Jackson v. Hendrick, No. 2437 February Term, 1971, a decade-old controversy over the conditions of confinement at Philadelphia's prisons. We are satisfied that the court of common pleas did not abuse its discretion in holding that petitioner was dilatory in applying for intervention. Hence we deny the petition for extraordinary relief.*fn*
Over ten years ago, in its initial adjudication declaring conditions of confinement at Philadelphia prisons unconstitutional, the court of common pleas observed:
"There can be no doubt that many of the difficulties in the prisons would be alleviated were the prisons not so overcrowded. The shortage of guards would become less critical; as the cells would not be so crowded, it might be possible by classification procedures to segregate dangerous prisoners, and to keep detentioners and sentenced prisoners apart; the doctors could spend more time on physical examinations, and could see more prisoners on sick call; the social workers could provide more counseling."
Opinion of April 7, 1972.*fn1 Since then the court of common pleas has entered three remedial decrees designed to alleviate overcrowding, including its most recent decree of March 17, 1981. Like the previous decrees, the decree of March 17, 1981, established a mechanism for the review of the need for the continuing confinement of those persons awaiting trial (approximately 25% of the prison population) who were being held on the lowest amounts of bail.*fn2
The decree establishing the bail review mechanism specifically authorizes petitioner to object to the "projected release" of any pre-trial detainee by filing written objections. para. 7(d). Where necessary, the court is to hold a hearing to resolve petitioner's objections. para. 7(f). "Where the Court shall find that release of an individual after a hearing pursuant to paragraph 7(f) . . . would create an immediate threat or danger of injury to the person, or bodily harm to
himself or others, such individual shall not be released pursuant to this Order." para. 7(h).*fn3
Nothing in the decree affects the right of petitioner to obtain appellate review of the trial court's determination. Furthermore, as the court of common pleas has made clear, the review mechanism is a flexible device designed to complement other remedies such as the construction of additional detention facilities.*fn4
Petitioner sought leave to intervene on March 27, 1981, ten days after the entry of the court's remedial decree. His stated purpose was to seek "vacation and reconsideration" of the decree of March 17, 1981. Accompanying the application for intervention were the exceptions to the decree which petitioner had planned to file if granted his request. Petitioner appealed the denial of his application for intervention to the Commonwealth Court.*fn5
While his appeal to the Commonwealth Court was pending, petitioner filed an application with this Court for a stay of the decree of March 17, 1981, and for the assumption of plenary jurisdiction. By order dated July 7, 1981 (per Nix & Kauffman, JJ.), the March 17 decree was stayed in part, as follows:
"The following detentioners shall not be released absent the posting of bail previously set:
(a) any detentioner charged with the commission of, or attempted commission of, the following offenses: murder, rape, robbery, burglary, aggravated assault, arson, kidnapping, or any crime committed with a deadly weapon;
(b) any other detentioner, the release of whom has been found, in accordance with the procedure provided in paragraph (7) of the . . . order of March 17, 1981 [(see supra
text)], to create an imminent threat or danger of injury to the person, or bodily harm to himself or others, or presents a clear risk of failure to appear at scheduled court hearings."*fn6
This order was modified on December 16, 1981 (per Nix & Kauffman, JJ.), to exclude from the prohibition against release "[a]ny detentioner charged with the commission of, or attempted commission of, burglary committed without a deadly weapon . . . ." Petitioner's request for the assumption of plenary jurisdiction was heard by this Court on January 19, 1982.
Pa.R.Civ.Proc. 2329(3) permits a court to refuse an application for intervention if "the petitioner has unduly delayed in making application for intervention . . . ." Whether an application for intervention is timely is a question "singularly within the periphery of the trial judge's discretionary domain." Templeton Appeal, 399 Pa. 10, 17, 159 A.2d 725, 730 (1960). See 8 Goodrich-Amram 2d § 2329:4 at p. 408 (1977) ("wide" discretion in trial court). "[U]nless there is a manifest abuse of such discretion, [the court's] exercise will not be interfered with on review." Darlington v. Reilly, 363 Pa. 72, 76, 69 A.2d 84, 86 (1949). Here, as there is no evidence of an abuse of discretion, the trial court's discretion may not be disturbed.
Petitioner asserts that his petition for intervention was timely because the court's remedial decree of March 17, 1981, worked a significant increase in the number of persons subject to possible release over the number subject to possible release under previous remedial decrees. However, the dispositive issue is not whether the March 17 decree worked an increase in the number of persons subject to possible release, but whether petitioner knew or should have known before entry of the decree of the possible remedies that the present litigation was likely to produce. If petitioner knew or should have known of the possible remedies at a time
sufficiently prior to the entry of the decree to have provided petitioner an opportunity to intervene, then petitioner must provide a valid explanation for his having taken no action until March 27, 1981, after entry of the decree. Where, as here, there is no explanation for such delay, the application for intervention is properly denied. See Delaware Valley Citizens' Council for Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 970, 975 (3d Cir., 1982); Commonwealth of Pennsylvania v. Rizzo, 530 F.2d 501, 507 (3d Cir. 1976).
Throughout the ten-year history of the controversy over the conditions of confinement at Philadelphia's prisons, the scope of the court's remedial decrees aimed at correcting the overcrowding of Philadelphia's prisons has been directly proportional to the level of overcrowding. In June of 1976, when the court issued its first remedial decree specifically designed to maintain ...