Gwinn v. Kane

Opinion by President Judge Bowman, Cross-motions for summary judgment posture the legal issues raised in this action in quo warranto by which plaintiff, Richard H. Gwinn, seeks to void an indictment charging him with perjury and false swearing. To accomplish this objective, plaintiff, by this action, attacks the office held by Walter M. Phillips, Jr., the role two of his subordinates played in the investigation and presentment leading to plaintiff’s indictment and the role they expect to play in the trial of plaintiff under the criminal justice system of our Commonwealth. As history readily reveals, departures from the traditionally sanctioned and recognized forms and procedures of our criminal justice system and the role particular public officials are to play therein produce complex multiple litigation, and the genesis for such departures is not found in orderly processes to improve the system but rather arises out of political controversy. The departure with which we here deal is no exception. Supporting their respective motions for summary judgment, affidavits have been filed by the competing parties. Having carefully reviewed them, we observe, as the parties themselves believe to be the case, that they produce no material controverted facts and, therefore, we believe the case to be ripe for disposition on the cross-motions. The background history essential to an understanding of the issues raised dates back to the year 1972, when an investigating grand jury was convened by the then District Attorney of Philadelphia County and charged to look into a wide range of subjects revolving around political and police corruption. On November 20, 1973, plaintiff, as president of a milk company, testified — 246 — before that grand jury on the subject of contracts between his milk company and the City of Philadelphia over a number of years. In January 1974, that grand jury issued its final report, which, among other things, recommended a new investigating grand jury be convened to continue in the areas of investigation with which it had been charged. On January 31, 1974, Judge Takiff, who had been assigned to supervise the regular January 1974 Grand Jury, charged it to conduct an investigation in a host of areas, which included “systems of bribery and corruption in the awarding of public contracts” and “a system or systems of official corruption, including and involving payments to influence the discharge of official duties with respect to decisions, recommendations, appointment to official positions, and other governmental functions and activities.”1 (Hereafter referred to as 1974 Grand Jury.) On February 11, 1974, the 1974 Grand Jury was reconvened and the newly elected District Attorney was requested by Judge Takiff to assign personnel to it, which request was refused. By letter dated February 15, 1974, President Judge Jamieson of the Court of Common Pleas of Philadelphia County requested the then Attorney General of the Commonwealth to assign a “special attorney or attorneys to represent the Commonwealth” in connection with the work of the 1974 Grand Jury. In doing so, he specifically invoked Section 907 of The Administrative Code of 1929, Act of April 9, 1929, P. L. 177, 71 P. S. §297. In replying on February 26, 1974, the Attorney General suggested that good judgment would dictate a judicial determination of the legality of the 1974 Grand Jury, — 247 — which he would seek if Judge Takiff or District Attorney Fitzpatrick declined to do so.2 On March 26, 1974, the Attorney General appointed Walter M. Phillips, Jr., as a “deputy attorney general” for the Commonwealth; a commission for said appointment issued April 1,1974. On March 26, 1974, having made such appointment, the Attorney General directed Mr. Phillips to “set up the Office of Special Prosecutor” to continue an investigation into corruption within the Philadelphia Police Department which had been started by the Pennsylvania Crime Commission; a report of the Commission on the subject having issued March 11, 1974. On March 28, 1974, the Attorney General notified the District Attorney that he was superseding the District Attorney in the task of investigating and prosecuting police corruption in Philadelphia and that all such allegations of corruption should be referred to the “Special Prosecutor Walter M. Phillips, Jr.” On May 1, 1974, the Attorney General advised President Judge Jamieson that he was complying with the judge’s request of February 15, 1974, and “directing the Special Prosecutor and his staff to man the Takiff Grand Jury and to proceed without delay.” Neither in this advice nor in any other manner as disclosed by the record before us did the Attorney General otherwise define the scope and authority of Mr. Phillips. On September 11, 1974, the 1974 Grand Jury issued a presentment, and on September 26, 1974, the September 1974 Grand Jury approved the indictment of plaintiff for perjury and false swearing. Trial of the charge was scheduled to begin March 3, 1975, before Judge Kubacki, — 248 — which impending trial precipitated the instant proceedings. There is a body of averments by plaintiff supported by affidavits and exhibits, and largely uncontradicted by defendants, on the subject of financing the office of the “Special Prosecutor” through Law Enforcement Assistance Administration (LEAA) funds. For reasons hereinafter set forth, we do not deem this body of averments to be material to the issues raised on the cross-motions for summary judgment. To the extent that this body of averments may be material to identify and define the office which Mr. Phillips holds and the role he played in leading to the indictment in question, it may be fairly said that with respect to the Attorney General’s application for and in support of attaining LEAA funds, Mr. Phillips was repeatedly identified as a “State Prosecutor” with statewide power and authority to combat public corruption. Similarly, there are averments that two aides of Phillips (Messrs. Klugheit and Cole), each appointed by the Attorney General as an “Assistant Attorney General, Department of Justice,” participated in the proceedings leading to the indictment of plaintiff prior to their admission to practice before the bar of the Supreme Court of Pennsylvania. These averments we likewise consider not to be material to resolution of the issues before us. As thus postured, it is quite clear that plaintiff is essentially testing the legality of the office which Mr. Phillips holds and his actions under its color rather than Mr. Phillips’ entitlement to that office. Although not specifically raised by either party in their cross-motions for summary judgment, it seems equally clear to us that our initial inquiry must be directed to the question of whether an action in quo warranto lies to test the legality of a public office. Inasmuch as the vast body of law arising out of quo warranto actions involves issues of a particular person’s entitlement to a public office, our research dis — 249 — closes that this question has rarely been raised. However, it does appear to be well settled that where a person has entered upon a public office, which office is allegedly unconstitutional, quo warranto is the proper proceedings to oust the incumbent because the office he occupies has no legal existence. Commonwealth v. Denworth, 145 Pa. 172, 22 A. 820 (1891); Snyder v. Boyd, 26 Dauph. 375 (1923). If a public office having no legal existence because of the unconstitutionality of the statute creating it is a proper subject of quo warranto proceedings against the incumbent, we see no valid distinction for denying to quo warranto the testing of the legality of a public office for alleged want of statutory authority to create it. Cf. Gernert v. Lindsay, 2 Pa. Commonwealth Ct. 576, A.2d (1971). We, therefore, conclude that an action in quo warranto properly lies in this case. Does plaintiff have standing to sue the defendants in an action in quo warranto? Defendants vigorously assert that plaintiff as a defendant in a criminal prosecution has no standing to contest the validity of the office prosecuting him.3 In Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444 (1963), a taxpayer’s action in equity, an issue raised was whether quo warranto was not the exclusive remedy to resolve the issues raised by plaintiff’s complaint. In concluding that equity would lie, our Supreme Court discussed the roles of these two forms of action. It stated: “The general rule is well settled that quo warranto is the sole and exclusive remedy to try title or right to office, whether the right which is challenged is that of a de jure or a de facto officer. It is likewise part of the general rule that quo warranto can be brought only by an Attorney General, or by a District Attorney, or by a person who has a special right — 250 — or interest as distinguished from the right or interest of the public generally, or has been specially damaged. And this is particularly true where such a judgment would not place the plaintiff himself in office. “However, there is likewise a well settled general rule that a taxpayer has a right and a standing to sue to enjoin public officials from wrongfully or unlawfully expending public money, and in such cases the complainant need not have any special interest which is damaged other than his interest as a taxpayer. “Sometimes these two general rules collide or overlap. Moreover, appellant points out that in recent years exceptions have been wisely recognized by the Courts to the narrow circumscribed limited remedy of quo warranto for several reasons: (1) quo warranto does not always furnish an adequate and full remedy; (2) the wisdom of applying a remedy which will avoid a multiplicity of suits; (3) the paramount right of the public to have a surer and more adequate remedy to restrain wrongful acts by a public official, including the unlawful expenditure of public money. Where such circumstances exist, equitable relief has been granted through a taxpayer’s bill or other injunctive or equitable remedy.” (Emphasis in original.) (Citations omitted.) 411 Pa. at 6-7, 190 A.2d at 446-47. Also see League of Women Voters v. Lower Merion Township Board of Commissioners, 451 Pa. 26, 301 A.2d 797 (1973); DeFranco v. Belardino, 448 Pa. 234, 292 A.2d 299 (1972). As particularly pertinent to the issue of the right of an individual to sue in quo warranto, noted as an exception to the general rule in Mayer, supra, our Supreme Court in Stroup v. Kapleau, 455 Pa. 171, 313 A.2d 237 (1973), affirmed this Court which concluded that several state senators had a right through quo warranto proceedings to test certain gubernatorial appointments. It said: — 251 — “The first issue raised is whether the appellants had standing to commence this action in quo warranto. The Commonwealth Court held that they did and we agree. An action in ‘[q]uo warranto can be instituted to determine the title to public office only by the Attorney General, the District Attorney or a private individual who has a special interest as distinguished from the interest of the public generally.’ Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 108, 232 A.2d 729, 733 (1967) (emphasis added). In Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933), this Court stated: ‘To invoke the issuance of a writ of quo warranto the relator, therefore, must show in himself an interest in the controversy. . . . He must possess some peculiar, personal interest aside from his general interest as a member of the public.’ Id. at 345, 166 A. at 879 (emphasis added). Article IV, section 8(a), of the Pennsylvania Constitution provides: ‘The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he shall be authorized by law to appoint. The appointment of the Attorney General, the Superintendent of Public Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate.’ (Emphasis added.) “Under the above constitutional provision, each member of the Senate has an individual right to confirm or reject certain gubernatorial appointments. Each Senator has an interest in such appointments aside from that Senator’s interest as a member of the general public. We, therefore, conclude that the appellants in this case, all members of the Senate of the Commonwealth of Pennsylvania, had standing to commence this action in quo warranto.” (Emphasis in original.) 455 Pa. at 174, 313 A.2d at 238-39. On the facts with which we are here confronted, we are of the opinion that plaintiff has standing to bring this — 252 — action in quo warranto as an individual who has a special interest in testing the very legality of the office itself; an interest clearly apart from that of the general public and ont in which he is directly and realistically involved. Standing indicted through the action of and the role played by Mr. Phillips in the criminal justice system producing such a result, plaintiff has a very real and peculiar interest. Furthermore, it is beyond cavil to believe that the Attorney General or, indeed, the District Attorney of Philadelphia County, in light of the roles they have played in this matter, would seek the ouster of Mr. Phillips or question the office to which he has been appointed by the Attorney General himself. We now reach the fundamental issue raised by the parties in their cross-motions for summary judgment— the legality of the office held by Walter M. Phillips, Jr. Plaintiff argues that the office of “Special Prosecutor” is a mythical entity without authority in law for its very existence. It may well be, if we were here confronted solely with the issue of whether an Attorney General under his common law power or that conferred by statute may create such a statewide office. Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135 (1962), may be persuasive authority for concluding that he connot. Contrary to plaintiff’s assertion, however, Smith has little bearing upon the issue before us. In that case, a president judge appointed a special prosecutor without seeking the cooperation or aid of the Attorney General and ordered the district attorney superseded. In an extraordinarily long and wide-ranging opinion, the Court concluded that the action of the president judge was without authority in law, statutory or otherwise. In this case, there is no assertion by the defendants that the Attorney General, in appointing Mr. Phillips, acted under any asserted common law power or authority. Nor can plaintiff so assert on this record. The legality of the office Mr. Phillips occupies and his actions thereunder — 253 — as directed against the plaintiff must be tested within the framework of the statutory law pursuant to which he was appointed. Section 907 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P. S. §297, provides in pertinent part as follows: “When the president judge, in the district having jurisdiction of any criminal proceedings ... in this Commonwealth, shall request the Attorney General to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth’s intervention, the Attorney General is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate charges, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, shall supersede the district attorney of the county in which the case or cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned.” It was pursuant to this statute that President Judge Jamieson sought the intervention of the Attorney General and it was under the authority of this statute that the Attorney General acted in appointing Mr. Phillips as a deputy attorney general and advised the District Attorney that he was being superseded by the appointee for the purposes of the appointment. We then return to the significance which plaintiff appears to attach to the several titles employed in designating the office to which the appointee was named and used by him in performing the duties of said office. As previously noted, whatever representations have been made by the Attorney General to qualify the office of “Special Prosecutor” for LEAA funds, have only tangential significance in this case, and whether, in doing so, the Attorney General properly acted, is certainly not before us. We — 254 — recognize, of course, that the Attorney General in responding to Judge Jamieson’s request also employed the phrase or described the office of Mr. Phillips as “Special Prosecutor” in several instances, but we can attach no controlling significance to such nomenclature so long as Mr. Phillips acted within the scope of his appointment pursuant to the statute authorizing the same. It may well be that attempts by Mr. Phillips to exercise authority as Special Prosecutor on a statewide basis, is beyond the scope of the statutory authority of his appointment. As this record discloses, however, Mr. Phillips in performing the duties of his office directed against the plaintiff here, acted in his capacity as a deputy attorney general. In doing so, was he acting within the scope and authority of his appointment pursuant to the statute under which he was appointed? Our reading of section 907 of The Administrative Code of 1929, 71 P. S. §297, leads us to the conclusion that it was fit and proper for President Judge Jamieson to seek the appointment of a special attorney or attorneys to meet the problem with which he was confronted, notably the refusal of the incumbent district attorney to staff the 1974 Grand Jury, the validity of which has now been judicially determined. In re Investigation of January 1974 Philadelphia County Grand Jury, supra. We further believe that the statutorily permissible scope of authority of the appointee pursuant to section 907 is coextensive with the purposes and responsibilities of the 1974 Grand Jury as charged by Judge Tariff. In the language of the statute, “the case is a proper one for the Commonwealth’s intervention,” in which event the appointee supersedes the district attorney and is authorized to “investigate charges, and prosecute the alleged offenders.” As applied to this case, Mr. Phillips has investigated and is prosecuting charges against plaintiff. The charges in question are clearly within the scope of the purposes and responsibilities of the 1974 Grand Jury as charged by Judge Tariff, either as — 255 — concerned with a “system of bribery and corruption in the awarding of public contracts” or the more broadly worded purpose of investigating “a system or systems of official corruption, including and involving . . . governmental functions and activities.” We recognize, of course, that the indictment against plaintiff is for perjury and false swearing, but the record seems clear that it is directly related to, or an outgrowth of, an investigation within the scope of the 1974 Grand Jury investigation. We thus conclude (a) that Mr. Phillips, appointed under section 907 as a deputy attorney general (special attorney), was appointed to a lawful office for a proper and lawful purpose, (b) that, in exercising the powers and authority of said office as directed against plaintiff, he was acting within the scope of his authority, and (c) that, in his activity leading to a presentment against, and indictment of, plaintiff, he did not exceed either the scope of the authority of his office or his powers thereunder. In so concluding, we do not pass upon either the legality of any office of Special Prosecutor, which Mr. Phillips may assert he holds, or of any actions or activity he may have carried on or performed under its color. Nor, regardless of the asserted title or titles of the office which he enjoys by reason of his appointment under section 907 of The Administrative Code of 1929, 71 P. S. §297, should our opinion in this case be construed to have afforded a carte blanche to Mr. Phillips to supersede the District Attorney of Philadelphia County beyond the confines of the purpose of his appointment. Finally, plaintiff has advanced two arguments which we believe are misplaced for the purpose of this litigation. As previously noted, whether LEAA funds were properly obtained to finance Mr. Phillips’ office for the purposes we here approve or for a broader purpose, is not, in our opinion, relevant to the issues here raised. Nor do we believe that the issue of two of his subordinates allegedly having participated in proceedings leading to plaintiff’s — 256 — indictment prior to their being admitted to practice in Pennsylvania, is material to testing the legality of his office. These matters are properly the subject of other proceedings, not this one. Accordingly, we enter the following Order Now, May 27, 1975, plaintiff’s motion for summary judgment is hereby denied. Defendants’ motion for summary judgment is hereby granted, and judgment is entered in favor of defendants and against the plaintiff. Our prior stay of proceedings is hereby vacated. Footnotes [1] As set forth in the opinion of the Pennsylvania Supreme Court in In re Investigation of January 1974 Philadelphia County Grand Jury, Pa. , 328 A.2d 485 (1974), in which case the legality of said grand jury was sustained. [2] See In re Investigation of January 1974 Philadelphia County Grand Jury, supra. Also see Packel v. Takiff, 457 Pa. 14, 321 A.2d 649 (1974), in which our Supreme Court denied a petition for declaratory judgment by order dated July 1, 1974. [3] In his amended complaint, plaintiff also alleged himself to be a citizen of the Commonwealth, a fact in the context of this case which we believe neither enhances nor detracts from his standing to sue.