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filed: November 30, 1983.




David H. Marion and Arthur H. Bryant, Philadelphia, for petitioners.

Richard A. Sprague, Philadelphia, for Snyder, respondent.

Jonathan D. Bennett, Philadelphia, for Edghill, respondent.

Spaeth, President Judge, and Wickersham and Brosky, JJ. Brosky, J., files a concurring opinion.

Author: Spaeth

[ 322 Pa. Super. Page 468]

Before us is a petition for writ prohibiting the Honorable Bernard SNYDER from continuing to preside over a motion that he recuse himself. We have decided that the writ should issue, with an order directing that another judge be designated to hear and decide the recusal motion.

We shall start by considering our power to issue a writ of prohibition. Then we shall state the legal principles that govern the exercise of that power, and examine the facts of this case in the light of those principles. And finally, we shall consider whether an order filed by the Supreme Court precludes issuance of the writ.


The writ of prohibition "is of very ancient origin, and may be said to be as old as the common law itself." J. High, A Treatise on Extraordinary Legal Remedies 707 (3d ed. 1896). Glanville, writing in 1189, gives a form of the writ. Originally the writ issued from the King's Bench, so called because the King himself used to sit on the court, 3 W. Blackstone Commentaries 42, but later the other courts at Westminster, the Common Pleas and the Exchequer, were given the power to issue the writ, id. at 111. The jurisdiction of the King's Bench was said to be "very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined [by the King's Bench] or prohibit their progress below." Id. at 42.

The Pennsylvania Supreme Court was at its inception given the powers of the three courts at Westminister. Act of May 22, 1722, 1 Sm.L. 131, ch. 255. In Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948), the Supreme Court said: "By the Act of 1722 the Supreme Court of Pennsylvania was placed in the same relation to all inferior jurisdictions that the King's Bench in England occupied, and thus the power of superintendency over inferior tribunals became vested in this Court from the time of its creation . . . . In the exercise of its supervisory powers over subordinate tribunals the Court of King's Bench employed

[ 322 Pa. Super. Page 469]

    the writ of prohibition and such right and practice accordingly passed to the Supreme Court . . . ." Id., 360 Pa. at 99-100, 61 A.2d at 428-429 (citations omitted). See also, First Congressional District Election, 295 Pa. 1, 144 A. 735 (1928) (Supreme Court has power to issue common law writ of prohibition). The Court's power to issue the writ is codified in 42 Pa.C.S.A. § 721, which does not enlarge or restrict the office of the common law writ but merely confers the power to issue the writ:

The Supreme Court shall have original but not exclusive jurisdiction of all cases of:

(2) Mandamus or prohibition to courts of inferior jurisdiction.

This court was granted the power to issue the writ of prohibition in 1941. Act of May 21, 1941, P.L. 47. Turtle Creek Borough Audit, 401 Pa. 201, 163 A.2d 876, 879 (1960) ("It was not until 1941 that power to issue the extraordinary common law writs of mandamus and prohibition to courts of inferior jurisdiction was first conferred on the Superior Court . . . .") We are not, however, vested with the powers of the King's Bench, Bell Appeal, 396 Pa. 592, 152 A.2d 731 (1959), and we may therefore only issue the writ as ancillary relief. Pa. Labor Relations Board v. Butz, 411 Pa. 360, 364, 192 A.2d 707, 710 (1963). This power is codified in 42 Pa.C.S.A. § 741:

The Superior Court shall have no original jurisdiction, except in cases of mandamus and prohibition to courts of inferior jurisdiction where such relief is ancillary to matters within its appellate jurisdiction . . . . .

Here, the writ is requested as relief ancillary to a matter within our appellate jurisdiction. As will later be stated in more detail, the underlying action is an action for libel. Any appeal from the final judgment will have to be taken to this court. 42 Pa.C.S.A. § 742. Therefore, we have the power to issue the writ, and must decide whether to issue it.

[ 322 Pa. Super. Page 470]


The writ of prohibition issues from a superior tribunal to an inferior tribunal to prevent the inferior tribunal assuming jurisdiction it does not legally have. 3 W. Blackstone's Commentaries 111. It has been said that under English common law "[t]he appropriate function of the remedy is to restrain the exercise of unauthorized judicial or quasi-judicial power, which is regarded as a contempt of the state or sovereign, and which may result in injury to the state or to its citizens," High, supra at 708, but that under American common law the writ issues primarily to protect the rights of the petitioner seeking the writ, rather than the jurisdiction of the superior tribunal, Hughes & Brown, The Writ of Prohibition, 26 Geo.L.J. 831 (1938). The writ is an extraordinary legal remedy. It is "to secure order and regularity in judicial proceedings, and should be issued only in cases of extreme necessity." 22 R.C.L. 5. See also, Carpentertown Coal & Coke Co. v. Laird, supra 360 Pa. at 102, 61 A.2d at 430. Issuance of the writ is never a matter of right but rests in the discretion of the court. Id., 360 Pa. at 102, 61 A.2d at 430.

Generally speaking, at common law two conditions must be satisfied before the writ of prohibition may issue. The first condition is that there has been a usurpation of power by the inferior tribunal. The second condition is that there is no adequate remedy other than the writ. High, supra at 708.

The first condition -- a usurpation of power -- is satisfied when the inferior tribunal has no jurisdiction over the subject matter from the very beginning of the proceeding. As an example of lack of jurisdiction, the Supreme Court in Akron Borough v. Pennsylvania P.U.C., 453 Pa. 554, 561, 310 A.2d 271, 275 (1973), quoting Gellhorn & Byse, Administrative Law 138 (1970), said: "It is as though a justice of the peace, empowered to hear only petty cases such as those involving traffic law violations, were to summon parties before him in order to decide whether a divorce

[ 322 Pa. Super. Page 471]

    decree should be granted." The first condition is also satisfied when the inferior tribunal had jurisdiction but has exceeded its jurisdiction. "The province of a writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but it is extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject-matter in controversy, has exceeded its legitimate powers." High, supra at 734 (footnote omitted). As explained in 3 W. Blackstone's Commentaries 111: "[I]f in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them [by law] . . . in such cases, also, a prohibition will be awarded." Blackstone illustrates the point by supposing a case "where [the ecclesiastical courts] require two witnesses to prove the payment of a legacy, a release of tithes, or the like . . . . For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their jurisdiction; it ought, therefore, where the two differ, to be decided, not according to the spiritual, but the temporal law . . . ." Id. at 111-12.

As a matter of logic, the distinction between a "lack" and an "excess" of jurisdiction may not always be clear.*fn1 Thus it has been said: "Although want of jurisdiction and excess of jurisdiction are commonly referred to and considered as separate grounds for the issuance of the writ, there is in principle little distinction between them as each means an attempt to take judicial action without judicial power or authority for such action. The subject of inquiry in each case is the extent of power in the court proceeded against." 22 R.C.L. 18-19 (footnote omitted). Whether arising from a "lack" or "excess" of jurisdiction, however, there must be a usurpation of power before a writ of prohibition will issue. The writ is not an appropriate remedy

[ 322 Pa. Super. Page 472]

    for the correction of errors not going to jurisdiction. High, supra at 714; 22 R.C.L. 15.

The second condition -- no other adequate remedy -- derives from the nature of the writ: "It follows from the extraordinary nature of the remedy . . . that the exercise of the jurisdiction is limited to cases where it is necessary to give a general superintendence and control over inferior tribunals, and it is never allowed except in cases of a usurpation or abuse of power, and not then unless other existing remedies are inadequate to afford relief." High, supra at 712. See also 23 Am. & English Encyclopedia of Law 207 (2d ed) ("It is always a good reason for withholding the writ if the party aggrieved has another and complete remedy at law, by which the desired end can be satisfactorily and fully accomplished.") "The mere fact that an applicant has a remedy by appeal or some other proceeding is not, however, conclusive against his right to the writ. Notwithstanding that fact, it may be granted if, in the judgment of the court, such remedy is not plain, speedy, and adequate." 22 R.C.L. 10. See also 23 Am. & English Encyclopedia of Law, supra at 208 (same). The fact that an appeal involves expense and delay is not by itself sufficient reason to hold that an appeal is not an adequate remedy. 22 R.C.L. 11. Also, it may be that there is no right to appeal, but that does not show that there is no adequate remedy other than the writ; there must be a usurpation of power. Thus in Ex Parte Pennsylvania, 109 U.S. 174, 176, 3 S.Ct. 84, 85, 27 L.Ed. 894 (1883), the United States Supreme Court explained: "[Correction of an error on the merits] cannot be done by prohibition, the remedy, if any, is by appeal. If an appeal will not lie, then the parties are concluded by what has been done. Congress alone has the power to determine whether the judgment of a court of the United States, of competent jurisdiction, shall be reviewed or not. If it fails to provide for such a review the judgment stands as the judgment of the court of last resort and settles finally the rights of the parties which are involved."

[ 322 Pa. Super. Page 473]

While these common law principles seem clear, the cases applying them are perhaps not so clear.*fn2

In First Congressional District Election, supra, the Supreme Court found that the judge in question had assumed "powers which he did not possess." Id. 295 Pa. at 13, 144 A. at 739. Thus the first condition for the issuance of the writ -- a usurpation of power -- was satisfied. A petition from a losing candidate had been presented to two judges, sitting as the computation board, asking that certain ballot boxes be opened. Although the petition was dismissed by a divided court, one of the judges proceeded to order the requested relief. In issuing a writ of prohibition against the judge, the Supreme Court found that the writ "is not merely the proper but seems the only adequate remedy to apply." Id., 295 Pa. at 14, 144 A. at 740. The Court did not say explicitly why an appeal was not adequate. Thus one misses the expected discussion of the second condition for the issuance of the writ. It would seem, however, that once a recount had been made, it would have been difficult to ignore its result. It therefore seems fair to read the case as one in which both of the common law conditions were satisfied.

In McNair's Petition, 324 Pa. 48, 187 A. 498 (1936), the Supreme Court issued a writ of prohibition against a grand jury investigation. The Court stated that a writ of prohibition is proper not only wherever a court acts outside of its jurisdiction but also where there is an abuse of jurisdiction. But then it went on to find that "there are no facts in this case to warrant a general investigation." id., 324 Pa. at 62, 187 A. at 505, and concluded that the investigation was "totally unauthorized and an abuse of discretion," id., 324 Pa. at 64, 187 A. at 506. The Court also found that "no other legal procedure than through the grant of a writ of prohibition is open to halt these apparently fruitless and pointless investigations, entailing great expense to the Commonwealth and inconvenience to the public at large." Id.

[ 322 Pa. Super. Page 474]

This decision may be read as relaxing the common law requirements for a writ of prohibition,*fn3 for the Court did not discuss whether the lack of facts warranting the investigation raised a jurisdictional issue, and thus whether the first common law condition had been satisfied. Similarly, in Philadelphia County Grand Jury Investigation Case, 347 Pa. 316, 32 A.2d 199 (1943), the Supreme Court issued a writ of prohibition against a grand jury investigation because "the challenged action of the learned judge [in charging the grand jury without sufficient evidence of widespread criminal acts] was a manifest abuse of discretion . . . ." Id., 347 Pa. at 320, 32 A.2d at 201. The Chief Justice wrote a strong dissent, arguing that there was no lack or abuse of jurisdiction, and distinguishing McNair's Petition on the basis that the grand jury there was investigating matters admittedly non-criminal in nature. Id., 347 Pa. at 327, 32 A.2d at 204.

In Carpentertown Coal & Coke Co. v. Laird, supra, the Supreme Court reverted to a stricter view, citing approvingly the cases referred to in the dissenting opinion in Philadelphia County Grand Jury Investigation Case, supra.*fn4 The State Mining Commission had determined that the Pennsylvania Turnpike Commission had waived its right to

[ 322 Pa. Super. Page 475]

    support. The coal company then proceeded to mine most of the coal. Two years later the Turnpike Commission petitioned the Mining Commission for subsidence damages. When the Mining Commission issued a rule to show cause, the coal company filed a petition for a writ prohibiting the Mining Commission from any further proceedings. The Supreme Court denied the writ on the ground that decisions of the Mining Commission were appealable and the issuance of the rule to show cause did not necessarily indicate that the Mining Commission would not itself ultimately decide that it was without jurisdiction. Thus the Court appeared to reaffirm the two common law conditions for the issuance of a writ of prohibition -- a usurpation of power, and no adequate remedy other than the writ.

However, in Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134 (1974), the Court again seemed to relax the common law requirements.*fn5 The Court granted a writ of prohibition against the enforcement of pretrial discovery by the defense of medical records in two rape cases. After quoting at length from Carpentertown, the Court said:

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 remedies are provided at law to afford relief . . . . The second prong of the test is whether there is extreme necessity for the relief requested to secure order and regularity in judicial proceedings.

Id., 457 Pa. at 107, 320 A.2d at 136.

[ 322 Pa. Super. Page 476]

This statement creates some uncertainty about the importance of the first condition at common law -- a usurpation of power, either as a lack or an excess of jurisdiction -- for nothing is said about the condition. Perhaps the decision can be reconciled with the common law by saying that "extreme necessity" is present when an inferior tribunal lacks or exceeds its jurisdiction. See Philadelphia Newspapers, Page 476} Inc. v. Jerome, 478 Pa. 484, 494 n. 11, 387 A.2d 425, 430 n. 11 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979) ("Prohibition is an extraordinary writ designed to assure regularity in judicial proceedings by preventing unlawful exercise or abuse of jurisdiction").

Other decisions create some uncertainty about the importance of the second condition at common law. Particularly in a case where the lack of jurisdiction is clear, the Supreme Court may not discuss whether there is no other adequate remedy. In Schlesinger Petition, 367 Pa. 476, 81 A.2d 316, (1951), a judge had interrogated a lawyer, who was appearing as plaintiff's counsel in a trespass case, about his affiliation with the Communist Party. When the lawyer refused to answer, the judge held him in contempt and found him unfit to practice law. The Supreme Court issued a writ of prohibition because what the judge had done "constituted an arrogation and exercise of a power beyond the jurisdiction of any judge . . .," id., 367 Pa. at 481, 81 A.2d at 319, in that he had deprived the lawyer of a valuable right without due process. The Court said that while the judge had jurisdiction over the trespass case, he had "no jurisdiction whatsoever," id., over whether the lawyer should be disciplined for his affiliation with the Communist Party. Thus, while making plain that the first condition at common law -- usurpation of power -- was satisfied, the Court did not explain why the second condition -- no adequate remedy -- was also satisfied.*fn6

[ 322 Pa. Super. Page 477]

It is probably not possible to reconcile all of the cases. One way to read the cases is as holding that when a clear lack or excess of jurisdiction is present, a court, in deciding whether to issue a writ of prohibition, need not consider whether another remedy would be adequate. This interpretation would regard the cases as somewhat relaxing the requirements of the common law. Another way to read the cases is as holding that when a clear lack or excess of jurisdiction is present, another remedy, such as an appeal, almost always will be inadequate. This interpretation would regard the cases as conforming to the requirements of the common law, the Supreme Court's failure to discuss other possible remedies being understood as representing a decision, not that the second common law condition need not be satisfied, but that the particular facts make plain without discussion that it has been satisfied. In most situations, we suspect, these somewhat different interpretations of the cases will lead to the same result.*fn7 However, given the extraordinary nature of the writ of prohibition, we have concluded that we should read the cases in the most conservative way,*fn8 that is, as holding that we should not issue the writ unless the traditional common law conditions are

[ 322 Pa. Super. Page 478]

    both satisfied -- a usurpation of power, arising either from a lack or an excess of jurisdiction, and no adequate remedy other than the writ.


The underlying controversy, out of which the petition for writ of prohibition now before us arises, is an action for libel, filed by James Reginald Edghill against Municipal Publications, Inc., D. Herbert Lipson, and Alan Halpern, as of No. 2371 of the May Term, 1972, in the Philadelphia County Court of Common Pleas. The action was tried before the Honorable Bernard SNYDER, sitting without a jury, from April to October 1982. On March 14, 1983, defendants filed a motion that the trial judge recuse himself. The judge had not yet filed any findings of fact, conclusions of law, or decision. Attached to the recusal motion was an affidavit by defendant Lipson, publisher of Philadelphia Magazine, a division of defendant Municipal Publications. On April 21, 1983, plaintiff answered defendants' motion, denying or dismissing as hearsay the allegations made in the recusal motion. Also on April 21 the trial judge directed that the recusal motion be returned to the Motions Court for assignment for hearing.

On April 27, 1983, defendants asked the Honorable Edward J. BRADLEY, President Judge of the Philadelphia County Court of Common Pleas, to assign a judge from outside Philadelphia to hear the recusal motion. This request was also addressed to the Honorable Abraham J. GAFNI, Court Administrator of Pennsylvania, and to the Pennsylvania Supreme Court. It is not clear from the record whether these three requests were made simultaneously, but each was denied.

On May 4, 1983, the trial judge vacated his April 21 order, by which he had sent the recusal motion to the Motions Court, and set the motion down for hearing on May 23 before himself. On May 6 the judge filed a decision in the Edghill case, awarding plaintiff $7 million, of which $5 million were punitive damages. Defendants then -- on a date not disclosed by the record before us but sometime

[ 322 Pa. Super. Page 479]

    before May 23 -- petitioned the Supreme Court for a writ of prohibition seeking to disqualify the trial judge from ruling on the recusal motion, and seeking also an order vacating the judge's orders of May 4 and May 6. On May 27 the Supreme Court denied defendants' petition. Its order stated: "Petitioners having ...

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