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decided: November 20, 1987.


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


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 of the Pennsylvania Constitution and is therefore void.*fn2

Section 5726 provides:

§ 5726. Action for Removal from office or employment

(a) Cause of action. -- Any aggrieved person shall have the right to bring an action in Commonwealth

[ 111 Pa. Commw. Page 218]

Court against any investigative or law enforcement officer, public official or public employee seeking the officer's, official's or employee's removal from office or employment on the grounds that the officer, official or employee has intentionally violated the provisions of this chapter. If the court shall conclude that such officer, official or employee has in fact intentionally violated the provisions of this chapter, the court shall order the dismissal or removal from office of said officer, official or employee.

Hence, a person aggrieved may seek the removal of "any investigative or law enforcement officer, public officer or public employee" on the grounds that that person has intentionally violated the provisions of the Wiretap Act. This would appear to be an express legislative enactment demonstrating a consent to suit and a grant of jurisdiction to this Court*fn3 to hear applications on the removal of the District Attorney and his assistants.

However, Article VI, Section 7 of our Constitution provides that as an elected constitutional officer, PA. Const. art. IX, § 4, McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960), a district attorney may be removed from office only upon conviction of misbehavior in office, of an infamous crime, or by the Governor, for reasonable cause after notice and hearing on the address by two-thirds of the Senate, PA. Const. art. VI, § 7; Commonwealth ex rel. Specter v. Martin, 426 Pa. 102,

[ 111 Pa. Commw. Page 219232]

A.2d 729 (1967). Moreover, this constitutional directive has been held to be "exclusive and prohibitory of any other method which the legislature may deem better or more convenient." Id. at 117, 232 A.2d at 737. Therefore, because Section 5726 conflicts with our Commonwealth's Constitution in providing an alternative method of removing district attorneys from office, it must fail. We are without jurisdiction to entertain suits seeking the removal of district attorneys.

The position of assistant district attorney, by contrast, has been created by the legislature.*fn4 Unlike the district attorney, who is an elected constitutional officer, an assistant's removal will not be exclusively controlled by the Constitution, if the legislature, when creating the office, provided for a different method of removal. Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59 (1943); Reiter v. Department of Justice, 43 Pa. Commonwealth Ct. 61, 401 A.2d 854 (1979).

Section 1420 of the County Code provides that "[t]he district attorney may appoint such number of assistants . . . to assist him in the discharge of his duties." This particular section is silent as to the method of their removal. However, Section 450(b) of the Code provides for removal of appointed county officers:

(b) Appointees to county offices or positions other than to elected office shall be subject to removal at the pleasure of the appointing power, except as otherwise provided by law, and they shall also be removed on conviction of misbehavior in office or of any infamous crime.

16 P.S. § 450(b) (emphasis added).

Thus, assistant district attorneys are subject to removal by the appointing power or upon conviction of

[ 111 Pa. Commw. Page 220]

    official malfeasance or infamous crime, and "as otherwise provided by law," which appears to permit in futuro, the creation of additional causes of action whereby appointed county officers may be removed, such as Section 5726 of the Wiretap Act.

Likewise, Section 5726 appears to vest this Court with jurisdiction over the action brought against Officer Gentile. Officer Gentile contends that summary judgment should be granted in his favor because if there was a disclosure at all, it was done pursuant to his duties as a law enforcement officer. 18 Pa. C.S. § 5717. Consequently, we shall address the question of whether the respondent assistant district attorneys and Officer Gentile are entitled to summary judgment.

Summary judgment, will be granted only if there is no genuine issue of material fact and the moving parties are entitled to judgment as a matter of law.*fn5 Scheetz v. Borough of Lansdale, 64 Pa. Commonwealth Ct. 24, 438 A.2d 1048 (1982).

Here, Officer Gentile's affidavit of probable cause, stated that a pen register and a wiretap had been previously authorized. However, documents unsealed by the common pleas court prior to the submission of Gentile's affidavit refer to the same wiretap.*fn6 Indeed, the Birdseyes

[ 111 Pa. Commw. Page 221]

    themselves submitted a "Motion to Suppress Wire Interceptions and All Evidence Derived Therefrom" approximately a month before the stay application and affidavit were filed. We cannot conclude in this context that Officer Gentile's statement revealed anything not previously revealed. Thus, there cannot have been a disclosure, which is defined as the act or an instance of opening up to view, knowledge or comprehension. Webster's Third New International Dictionary 1645 (1966). Unless they are technical or have acquired a peculiar and appropriate meaning, words are to be given their common and approved usage. 1 Pa. C.S. § 1903. Here, the existence of the wiretap had been made part of the public record.

Moreover, neither Officer Gentile nor the assistant district attorney's actions in affixing the affidavit to the petition was improper under the Act. Section 5717 provides:

§ 5717. Disclosure or use of contents of wire or oral communications or derivative evidence

(a) Investigative activities. -- Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence to another investigative or law enforcement officer or make use of such contents or evidence to the extent that such disclosure or use is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

18 Pa. C.S. § 5717 (emphasis added).

Gentile's affidavit, sworn to and subscribed, was offered in cooperation with the district attorney's office in support of its application for a stay of the order requiring

[ 111 Pa. Commw. Page 222]

    the return of seized property. This property, it was asserted, was necessary to continue the ongoing investigation of alleged criminal acts. We conclude that, under these circumstances, the statement made in Gentile's affidavit and offered by the assistant district attorneys in support of their position was "appropriate to the proper performance of official duties," as allowed by the Act.*fn7

Accordingly, we will dismiss the Birdseyes' complaint as to Respondent Driscoll and grant Respondents McClelland, Picking and Gentile's motion for summary judgment.


1. Petitioners' complaint as to Respondent Driscoll is dismissed.

2. Summary judgment is granted in favor of Respondents McClelland, Picking and Gentile.

3. Petitioners' application for costs and attorneys' fees is denied.


Complaint dismissed as to respondent District Attorney. Summary judgment granted other respondents.

Concurring & Dissenting Opinion by Judge MacPhail:

I concur with that part of the majority opinion which holds that we are without jurisdiction to entertain suits seeking the removal of district attorneys, as well as that part of the opinion which would grant summary judgment to Officer Gentile.

Because I respectfully disagree with the majority's interpretation of Section 1420 of the County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 450(b), I would hold that we also lack jurisdiction of

[ 111 Pa. Commw. Page 223]

    suits seeking the removal of assistant district attorneys. I am of the opinion that such action may be taken only by the appointing power, in this instance, the district attorney.

I, therefore, would dismiss for lack of jurisdiction the within action against McClelland and Picking.

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