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decided: February 14, 1983.


Appeals from the Orders of the Court of Common Pleas of Philadelphia County in case of Gerald Jackson et al. v. Edward J. Hendrick et al., No. 2437 February Term, 1971.


Kenneth S. Gallant, Assistant District Attorney, with him Eric B. Henson, Deputy District Attorney for appellant/intervening appellant, Edward G. Rendell, District Attorney of Philadelphia County.

David Rudovsky, Kairys, Rudovsky & Maguigan, with him Donald Bronstein and John A. Beck, for appellees, Gerald Jackson et al.

John M. Myers, Divisional Deputy City Solicitor, with him Jonathan K. Stubbs, Assistant City Solicitor, Richard J. Gold, Chief Assistant City Solicitor, Alan J. Davis, City Solicitor, and Tama Clark, for appellants, Edward J. Hendrick et al., and the City of Philadelphia.

Edward A. Aguilar, Special Master for Prisons.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and Doyle. Opinion by Judge Doyle. Judge Williams, Jr. did not participate in the decision in this case.

Author: Doyle

[ 72 Pa. Commw. Page 65]

The District Attorney and the City of Philadelphia appeal from the orders of the Court of Common Pleas of Philadelphia County denying the City's Exceptions to the Decrees Nisi entered and denying the District Attorney's Petition to Intervene in this case.

This litigation began in 1971 when five prisoners (Plaintiffs) in the Philadelphia Prison System filed a class action in equity seeking injunctive relief from conditions of confinement which allegedly violated their constitutional and statutory rights. The case was assigned to a three judge panel of the court of common pleas which, on April 7, 1972, after a lengthy hearing,*fn1 issued a 264 page opinion and decree nisi. The court found that various conditions in the City prisons violated both statutory and constitutional rights and constituted cruel and unusual punishment. The decree ordered the city officials named as defendants*fn2 to take such immediate action to improve conditions as was feasible and ordered appointment of a Special Master to oversee long-term improvements in prison conditions.

Exceptions to the decree were dismissed and the City appealed to this Court. We affirmed the findings and conclusions of the court of common pleas and affirmed the grant of relief except as to the appointment of a Special Master. Hendrick v. Jackson, 10 Pa. Commonwealth Ct. 392, 309 A.2d 187 (1973). Plaintiffs sought allocatur on the issue of relief and the Supreme

[ 72 Pa. Commw. Page 66]

Court reinstated the order for the appointment of the master. Jackson v. Hendrick, 457 Pa. 405, 321 A.2d 603 (1974).

In 1976, the court of common pleas issued a remedial decree which ordered that a maximum capacity be established for the prison system not to exceed the number of usuable cells and dormitory areas, and ordered the release of persons held in default of $1,500 bail or less in order to maintain population levels at no greater than the maximum capacity established. On appeal, we affirmed the order per curiam. Jackson v. Hendrick, (No. 1385 C.D. 1976, filed October 17, 1977).

Thereafter, Plaintiffs and the City entered into a series of consent decrees establishing a population capacity for the City's prison system and providing for maintenance of the prison population by release of inmates in a certain classification.*fn3 The consent agreements also provided that prior to the release of any person the District Attorney be afforded the opportunity to be heard on whether the release would be harmful to the public safety or pose an undue risk that the person released would fail to subsequently appear for scheduled court appearances.

In October, 1980, an additional hearing was held before the court of common pleas on the issue of overcrowding in the City's prisons. On March 17, 1981, the court issued an order establishing a prison population cap consistent with one person/one cell occupancy. Modified on June 22, 1981, the order (1) established a maximum capacity of 2,190 at the three

[ 72 Pa. Commw. Page 67]

Philadelphia prisons, (2) prohibited triple celling, (3) prohibited double celling after August 1, 1981, and (4) established procedures for the release of inmates held on bail until the prison population was not in excess of capacity. The City filed exceptions to the March 17 and June 22, 1981 orders which, after argument, were dismissed with prejudice on June 29, 1981.

On March 27, 1981, after the court had already issued the March 17 order, the District Attorney petitioned the court to intervene pursuant to Pa. R.C.P. No. 2328.*fn4 On June 8, 1981, the court of common pleas denied the petition to intervene.*fn5 The District Attorney now appeals that denial to this Court.

On July 1, 1981, the District Attorney filed, in the Supreme Court of Pennsylvania, an application for stay of the March 17, 1981 order as modified June 22, 1981 and petitioned the Court to assume plenary jurisdiction over the case. By order dated July 7, 1981, the March 17 decree was stayed in part.*fn6 However, on May 25, 1982, the Supreme Court, in a plurality decision*fn7 denied the extraordinary relief sought by the

[ 72 Pa. Commw. Page 68]

District Attorney and vacated the stay previously granted. Jackson v. Hendrick, Pa. , 446 A.2d 226 (1982).

The District Attorney's Appeal of the Denial of Intervention

Initially, we must determine the status of the District Attorney's petition to intervene. Plaintiffs urge that the plurality opinion of the Supreme Court affirming the court of common pleas' denial of intervention renders the appeal to this Court moot. Plaintiffs note that three Supreme Court Justices found the denial of intervention proper and another joined in the opinion of the plurality and filed a separate concurrence. Plaintiffs urge that even if the fourth joining Justice is not considered to form a majority of the Court, affirmance of the court of common pleas ruling by a divided court is determinative. See Commonwealth v. James, 493 Pa. 545, 427 A.2d 148 (1981). We are inclined to agree and hold the issue of the District Attorney's right to intervene to have been decided in the Supreme Court's opinion. In James, the Supreme Court was equally divided and the ruling of the court of common pleas was expressly held to be affirmed.*fn8 Here, Justice Flaherty joined in the opinion of the Court authored by Justice Roberts. We think the issue was thus clearly decided by four members of the Supreme Court and we need not consider it here.

Joinder of the District Attorney*fn9

The city then urges that the court of common pleas abused its discretion in refusing to allow joinder of the

[ 72 Pa. Commw. Page 69]

District Attorney as an additional defendant. We do not agree. Pa. R.C.P. No. 2252 provides in pertinent part:

[ 72 Pa. Commw. Page 70]

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based.

We do not think the District Attorney is a proper party under the rule. The City urges that the District Attorney is the one official who has an interest in enforcing bail requirements with respect to detainees affected by the order of the court of common pleas and should be joined to represent that interest. The equity action sub judice, however, is not about the setting of bail or the conduct of the District Attorney in carrying out his prosecutorial function. It seeks, rather, a remedy from unconstitutional prison conditions for which the District Attorney has no responsibility. The District Attorney is not therefore, "alone liable" or "liable over" to the City; there is no injunctive relief against the District Attorney which Plaintiffs seek or could seek in this action. We recognize, of course, that the remedy ordered in this case affects the prosecutorial interests of the District Attorney. But while his involvement may have justified intervention had his application

[ 72 Pa. Commw. Page 71]

    been timely, it does not fall within the purview of Pa. R.C.P. No. 2252. Justice Roberts, in his opinion denying intervention, noted that the court of common pleas has amply provided for participation and objection by the District Attorney in the release program. The court of common pleas did not err or abuse its discretion in refusing to allow the District Attorney to be joined.*fn10

Dismissal of the City's Exceptions

The scope of review by the Commonwealth Court of a court of common pleas sitting in equity is severely restricted. Ross v. Philadelphia Federation of Teachers, 8 Pa. Commonwealth Ct. 204, 301 A.2d 405 (1973). We will not reverse if apparently reasonable grounds exist for the relief ordered and no erroneous or inapplicable rules of law were relied on. Bethel Park School District v. Bethel Park Federation of Teachers, 54 Pa. Commonwealth Ct. 49, 420 A.2d 18 (1980);

[ 72 Pa. Commw. Page 72]

    these circumstances, the court of common pleas must be viewed as having allowed an extension for the filing of a brief under the local rule.

2. Substantive Dismissal

The court of common pleas made it "abundantly clear" that the City's failure to comply with the local procedural rule was not the sole basis for dismissal of the City's exceptions. The court of common pleas addressed each of the City's representations of fact and found each exception lacking in substantive merit. The City urges, however, that the court's order was not factually supported in the record and constitutes an abuse of discretion. We disagree.

At the heart of the City's argument is the contention that the March 17 and June 22 orders greatly changed the focus of the litigation and implemented relief based on facts which were never adduced in an adversarial setting. The contention is without merit. The court's orders followed a continuing series of hearings, arguments, stipulations and agreements overseen by the court and its Special Master, all of which built upon and developed further the facts litigated and appealed early in this litigation, i.e., the overcrowded conditions in the prison system which were found to be unconstitutional. The relief granted in the March 17 and June 22 orders represents no significant departure from that already implemented in this case;*fn11 it only slightly expands the scope of a release program which is already operating, but which is inadequate to

[ 72 Pa. Commw. Page 74]

    eliminate the declared constitutionally infirm overcrowded conditions. The court of common pleas clearly had discretion to implement this change without a special hearing on the new elements of relief.

The discretion enjoyed by the court sitting in equity is broad. On earlier review of this case, our Supreme Court stated:

Once conditions of confinement have been found unconstitutional, a court of equity has broad discretion to decide what relief should be granted. It may direct the prison authorities to prepare a plan to eliminate the constitutionally-objectionable conditions. . . . Alternatively, the court may itself, without submission of any plan or comments, grant mandatory or injunctive relief.

Jackson v. Hendrick, 457 Pa. at 411, 321 A.2d at 606 (1974) (citations and footnote omitted). Guided by this language, we can find no error of law or abuse of discretion in the action by the court of common pleas.


Now, February 14, 1983, the orders of the Court of Common Pleas of the County of Philadelphia denying the District Attorney the right to intervene and dismissing exceptions by the City of Philadelphia and other defendants to its March 17 and June 22, 1981 relief orders are hereby affirmed.

Judge Williams, Jr. did not participate in the decision in this case.


Orders affirmed.

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