Musmanno v. Eldredge , 382 Pa. 167 ( 1955 )

Opinion

Per Curiam,

The question of law raised in this proceeding was correctly answered by the learned court below on whose opinion, reported in 1 D. & C. 2d 535, the judgment will be affirmed.

Nothing more would have been required for the disposition of this appeal had not the appellant, during the course of his oral argument, publicly voiced a grave charge against the other members of this court which cannot be permitted to go unanswered. The appellant asserted that we have discriminated against him in the matter of the filing and publication of dissenting opinions, — that there is one rule for him and a different rule for the other members of the court. Never once have we withheld, nor have we any intention of ever withholding, from publication in the official State Reports a dissenting opinion of any member of the court if in accord with established rules and practices. In the little more than three years that the appellant has been a member of this court he has filed and has had published in the official State Reports, with this court’s full approval, more dissenting opinions than all the other members of the court combined.

The appellant’s opinion in the Tribune Review Publishing Company Case, the non-publication whereof in the official State Reports constitutes the gravamen of his present complaint, was never circulated among the members of the court nor even shown to any one of them prior to its being lodged by appellant with the Prothonotary for the Western District after this court had entered an order dismissing the Tribune’s petition for a writ of prohibition on the ground that the petition did not present a justiciable question.

It should at once be evident that the opinion which appellant sought by mandamus to have published in the official State Reports was not, in reality, a proper dissent. The order of this court in the Tribune case did not discuss, much less decide, the merits of the very important legal question involved. It merely held that there was nothing justiciable before us for decision, dismissed the petition without prejudice, and suggested that a proper test case might be presented. The appellant’s opinion, instead of confining itself to the subject-matter of the order, went on to discuss and decide the merits of the controversy which the petitioner had endeavored to litigate prematurely and as to which this court had expressed no views whatever. It is, to say the least, unfortunate that appellant saw fit to write and hand out for publication an opinion prejudging a question which has yet to come before this court.^*

Not only, as already stated, did appellant file Ms opinion in the Tribune ease without circulating it among the other members of the court, but he filed it after the court had adjourned its sessions for the summer and its members were scattered. Thus we were effectually denied the opportunity, indeed the fundamental right, of seeing, reading, or considering the dissent before the appellant made it public. It need hardly be said that if such a breach of the basic rules of appellate court practice were to be permitted a court could not properly perform its functions.

For the reasons stated, the court instructed the Reporter, the present defendant, not to publish in the official State Reports the appellant’s opinion on the Tribune Review Publishing Company’s petition.

Judgment affirmed.

* A test case has since been instituted and decided in tbe Court of Common Pleas of Westmoreland County, bas been appealed to our court, and will'be argued at the Pall Session of tbe court in Pittsburgh,