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07/03/97 KEVIN G. SASINOSKI v. GLENN CANNON

July 3, 1997

KEVIN G. SASINOSKI, ESQUIRE, PUBLIC DEFENDER OF ALLEGHENY COUNTY
v.
GLENN CANNON, ALLEGHENY COUNTY MANAGER, APPELLANT; KEVIN G. SASINOSKI, ESQUIRE, PUBLIC DEFENDER OF ALLEGHENY COUNTY V. GLENN CANNON, ALLEGHENY COUNTY MANAGER, APPELLANT



Appealed From No. 59 Misc. 1997. Common Pleas Court of the County of Allegheny. Judge DAUER, President Judge.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge. Judge McGinley did not participate in the decision in this case. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: July 3, 1997

Glenn Cannon, the County Manager of Allegheny County, appeals from two orders of the Court of Common Pleas of Allegheny County. The first order was a preliminary injunction issued on January 24, 1997 that restored Kevin G. Sasinoski to the Office of Public Defender with full power to discharge his responsibilities; restored two other employees of the office to their positions; enjoined Cannon or any other officer or employee of the County from interfering with the Public Defender in the discharge of his duties; appointed the Sheriff of Allegheny County to conduct an investigation into allegations of political and criminal activities within the Public Defender's Office; and scheduled a hearing on the matter. The second order on February 4, 1997 made permanent the previous preliminary injunction order and ruled that the Public Defender is a constitutional officer of the County who may be removed only by impeachment, although the other two employees could be dismissed for good cause, but not for discriminatory or political reasons.

Cannon raises both procedural and substantive challenges to the trial court's rulings. Procedurally, Cannon questions whether the trial court erred in granting injunctive relief based solely upon the Public Defender's petition for ex parte injunction and whether the trial court erred in granting the ex parte injunction in a hearing held without notice to opposing parties and of which no record was made. Substantively, Cannon questions whether the trial court erred in holding that the Public Defender must be removed from office through impeachment rather than by the power that appointed him.

I.

On January 23, 1997, Glenn Cannon, without prior notice, placed the Public Defender on paid administrative leave, along with the First Assistant Public Defender, the Office Manager and the Deputy Chief Investigator. The next morning, January 24, 1997, the Public Defender filed a petition in the Common Pleas Court for an ex parte injunction, which was assigned a miscellaneous docket number. He alleged imminent and irreparable harm and deprivation of constitutional rights of indigent criminal defendants represented by the Public Defender's Office, including defendants for whom sentencing hearings were scheduled that same day, if Cannon's actions were not overturned and further interference enjoined. After an emergency ex parte proceeding, the trial court issued the order described above, scheduling a hearing on the matter for January 29, 1997. Cannon filed a notice of appeal from that order on January 27, 1997, which was docketed at No. 287 C.D. 1997.

On January 28, 1997, the Public Defender filed a Complaint in Equity in the Common Pleas Court, stating essentially identical allegations and claims as those in the petition for ex parte injunction. The trial court held the hearing as scheduled on January 29 and continued it for further testimony on February 4, 1997, including testimony from some witnesses called by the court. Although the validity of Cannon's action was the ultimate question posed by the proceeding, Cannon did not testify. At the close of the hearing, following argument, the trial court made the previous order permanent. Cannon filed a motion for post-trial relief as to the second order on February 14, 1997; he filed a notice of appeal on March 7, 1997, docketed with this Court at No. 640 C.D. 1997, along with the statement of matters complained of on appeal as directed by the trial court, which issued an opinion in support of its order on March 27, 1997. By order of April 10, 1997, this Court granted Cannon's applications for consolidation and expedited consideration of the two appeals.

II.

Cannon's first procedural argument is that the trial court erred and abused its discretion in concluding that it had jurisdiction to grant the ex parte injunction based solely on a petition. He relies upon Hartmann v. Peterson, 438 Pa. 291, 265 A.2d 127 (1970), where a party attempted to commence an action in equity to enjoin an elected county official from taking her office by filing a petition for a rule to show cause. The trial court dismissed the defendant's preliminary objections and denied her motion to dismiss. The Supreme Court reversed, holding that the action had not been commenced in accordance with Pa. R.C.P. No. 1007, which at that time required commencement of an action by filing with the prothonotary a praecipe for writ of summons, a complaint or an agreement for an amicable action.

The Supreme Court stated that the petitioner's apparent reliance upon Pa. R.C.P. No. 1531(a) was misplaced. That Rule permits a court to issue a preliminary or special injunction without notice or a hearing if it appears to the court "on the basis of the averments of the pleadings or petition" that immediate and irreparable injury will be sustained before notice can be given or a hearing held. The Supreme Court adopted an interpretation of the reference to a "petition" as meaning a petition for preliminary or special injunction filed after or supplemental to the complaint. With no complaint, summons or amicable agreement before the trial court, it lacked the power to make any order at all. Cannon stresses that the trial court's reliance here upon the reference to a "petition" in Pa. R.C.P. No. 1531(a) as authority for its procedure is contrary to Hartmann ; he argues that the court lacked jurisdiction to enter the preliminary or permanent injunction.

Next Cannon asserts that the trial court erred in granting the ex parte injunction in a proceeding as to which Cannon received no notice and of which no record was made. He relies principally upon Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968), where a district attorney requested and received an injunction against the screening of an allegedly obscene film in a proceeding conducted without notice to the theater owner and without the making of a record. Referring to Pa. R.C.P. No. 1531(a), the Supreme Court noted that no effort to provide notice was made, and it concluded that, in any event, further screening of the film until a proper adversarial hearing could be held did not constitute the irreparable injury required under the Rule. Cannon asserts that no effort was made to provide notice to him, despite the close proximity of the courtroom and the offices involved. He contends further that the trial court's opinion does not address the question of lack of recording, and he asserts that the proceeding was similar to the Star Chamber proceedings alluded to in Guild Theatre, Inc.

In response, the Public Defender first asserts that Cannon's challenge to the petition procedure is waived because of his failure to make a timely objection before the trial court's consideration of the injunctions on their merits. The Public Defender also refers to the admonishment of Pa. R.C.P. No. 126, relating to liberal construction and application of the Rules of Civil Procedure, that a court at every stage of an action or proceeding may disregard any error or defect of procedure that does not affect substantial rights of the parties. Despite Hartmann, the Public Defender argues that Pa. R.C.P. No. 1531(a) contemplates the commencement of an action by means of a petition. He refers also to Rule 1531*(g) of the Rules of the Civil and Family Divisions of the Court of Common ...


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