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WILLIAM RICHARD BIRDSEYE v. JOHN DRISCOLL (11/20/87)

decided: November 20, 1987.

WILLIAM RICHARD BIRDSEYE, WILLIAM ROBERT BIRDSEYE, PETITIONERS
v.
JOHN DRISCOLL, LOUIS W. GENTILE, DONNA MCCLELLAND AND MARGARET PICKING, RESPONDENTS



Original Jurisdiction in case of William Richard Birdseye, William Robert Birdseye v. John Driscoll, Louis W. Gentile, Donna McClelland and Margaret Picking.

COUNSEL

Thomas A. Crawford, Jr., for petitioners.

Bruce A. Antkowiak, Mansmann, Cindrich & Titus, for respondents, Driscoll, McClelland and Picking.

Andrew B. Kramer, Deputy Attorney General, for respondent, Louis W. Gentile.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Concurring & Dissenting Opinion by Judge MacPhail.

Author: Crumlish

[ 111 Pa. Commw. Page 215]

William Richard and William Robert Birdseye have filed a complaint in our original jurisdiction, 42 Pa. C.S.

[ 111 Pa. Commw. Page 216]

§ 761, seeking to remove from their respective offices John Driscoll, Westmoreland County District Attorney; Donna McClelland and Margaret Picking, Assistant District Attorneys; and Officer Louis Gentile of the Pennsylvania State Police (Respondents) for violations of the Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. §§ 5701 -- 5727 (Wiretap Act).

Respondents Driscoll, McClelland and Picking seek summary judgment and, in the alternative, dismissal for lack of jurisdiction. Respondent Gentile has also moved for summary judgment.

Acting with search warrants issued by the Westmoreland County Common Pleas Court, the State Police seized property from three locations owned or operated by the Birdseyes. Shortly thereafter, the Birdseyes, pursuant to Pa. R. Crim. P. 234, filed a motion for the return of the seized property which was partially granted by the common pleas court. Contending that the property to be returned was necessary to an ongoing investigation of the Birdseyes' activities, the Westmoreland County District Attorney's Office appealed the court's order to Superior Court. At that time, the District Attorney applied to the common pleas court for a stay pending appeal. Affixed to this application was Trooper Gentile's "Affidavit of Probable Cause" in which the existence of legally authorized wiretaps was referenced.*fn1

[ 111 Pa. Commw. Page 217]

In their complaint, the Birdseyes allege that Assistant District Attorneys Picking and McClelland, with the approval of District Attorney Driscoll, "published the [wiretap] disclosure by appending the affidavit to the application for stay. . . ." Complaint, paragraph 6. This, they assert, was an intentional violation of Section 5719 of the Act, which forbids such disclosures.

The District Attorneys contend that Section 5726 of the Wiretap Act, which creates a cause of action in Commonwealth Court to remove public officials or employees from office for such violations, contravenes Article VI, Section 7 ...


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