L. Krasner, in his official capacity as the D.A. of Philadelphia v. M.A. Henry, in her official capacity as A.G. of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Larry Krasner, in his official capacity :

as the District Attorney of Philadelphia; :

Office of the District Attorney, City of :

Philadelphia, :

Petitioners :

:

v. :

:

Michelle A. Henry, in her :

official capacity as Attorney :

General of Pennsylvania, : No. 8 M.D. 2024

Respondent : Argued: April 10, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION

BY JUDGE COVEY1 FILED: June 14, 2024

Before this Court are: (1) the Applications for Summary Relief filed by

Larry Krasner (DA Krasner) in his official capacity as the District Attorney of

Philadelphia and the Office of the District Attorney, City of Philadelphia (collectively,

DA) (DA Application), and Michelle A. Henry, in her official capacity as Attorney

General (Attorney General) of Pennsylvania (Attorney General Application)

(collectively, Cross-Applications); (2) the DA’s Petition for Preliminary Injunction (PI

Petition) and Emergency Supplemental Application for Preliminary Injunction

(Supplemental PI); and (3) the Southeastern Pennsylvania Transportation Authority’s

(SEPTA) amended petition to intervene (Intervention Petition) with accompanying

Proposed Application for Summary Relief (SEPTA Application).

1

This matter was reassigned to the authoring Judge on June 3, 2024.

I. Background

At the outset,

[i]n 1963, the General Assembly established SEPTA

pursuant to the Metropolitan Transportation Authorities Act

[(MTAA)], 74 Pa.C.S. §§ 1701-1785.[FN]2 Th[e MTAA]

provides:

There is hereby authorized the creation of a

separate body corporate and politic in each

metropolitan area, to be known as the

transportation authority of that metropolitan

area, extending to and including all of the

territory in the metropolitan area.

74 Pa.C.S. § 1711(a). A “metropolitan area” is defined as

“[a]ll of the territory within the boundaries of any county of

the first class and all other counties located in whole or in

part within 20 miles of the first class county.” 74 Pa.C.S. §

1701. Philadelphia is a “county of the first class.” Id.

Consistent with Section 1701, SEPTA operates a mass-

transit system in Philadelphia and the four contiguous

counties of Bucks, Chester, Delaware, and Montgomery.[2]

As a transportation authority, SEPTA exercises the powers

of a Commonwealth agency.

[FN]2

The original [MTAA] has been replaced by

the current [MTAA, Act of February 10, 1994,

P.L. 20 (1994 Act),3] . . . . All transportation

authorities are deemed to have been created

under the current act. 74 Pa.C.S. § 1711(c)(1).

Se. Pa. Transp. Auth. v. City of Phila., 122 A.3d 1163, 1164-65 (Pa. Cmwlth. 2015),

aff’d, 159 A.3d 443 (Pa. 2017).

In the 1994 Act, the General Assembly found and declared, inter alia:

(a) Findings.--

2

“Additionally, [SEPTA] furnishes interstate transportation service between Pennsylvania

and the states of Delaware and New Jersey through its Regional Rail Division which operates

commuter rail lines traversing all three states.” Goldman v. Se. Pa. Transp. Auth., 57 A.3d 1154,

1160 (Pa. 2012).

3

All references to the MTAA hereafter reflect the current MTAA.

2

....

(4) The sound planning and development of metropolitan

mass transportation facilities in accordance with sound and

approved plans for their promotion, development and growth

will promote the public health, safety, convenience and

welfare, and the public acquisition of existing mass

transportation facilities in accordance with the sound plans

for their redevelopment and promotion will promote the

public health, safety, convenience and welfare.

....

(7) The establishment of metropolitan transportation

authorities as authorities of the Commonwealth and the

continuance of the existing metropolitan transportation

authorities will promote the public safety, convenience and

welfare.

....

(b) Declaration.--Therefore, it is hereby declared to be the

policy of the Commonwealth to promote the safety and

welfare of its inhabitants by authorizing the creation or

continuation of a body corporate and politic for each

metropolitan area, to be known as the transportation

authority of such area, which shall exist and operate for the

purposes contained in this chapter as an authority of the

Commonwealth. These purposes are hereby declared to be

public uses for which public money may be spent and private

property may be acquired by the exercise of the power of

eminent domain.

Id. Thus, the Commonwealth’s purpose, in part, in establishing SEPTA was to promote

the safety and welfare of Commonwealth citizens.

Section 1741(a) of the MTAA states, in relevant part:

(a) Powers enumerated.--[SEPTA] shall have and may

exercise all powers necessary or convenient for the carrying

out of the purposes of this chapter, including the following

rights, powers and duties:

(1) To have perpetual existence.

3

74 Pa.C.S. § 1741(a). The MTAA provides for the appointment of SEPTA’s board of

directors, granting various entities appointment power. See Section 1713(a) of the

MTAA, 74 Pa.C.S. § 1713(a). Specifically, the Governor may appoint one board

member; the Majority Leader and the Minority Leader of the Senate and the Majority

Leader and the Minority Leader of the House of Representatives may each appoint one

board member; and the county commissioners or the county council in each county

and, in Philadelphia, the mayor, with the approval of the city council, may appoint two

board members. See 74 Pa.C.S. § 1713(a)(1)-(3).

Moreover,

[u]nder its enabling statute, SEPTA has[, inter alia,] (1) a

separate corporate existence, [see] 74 Pa.[C.S.] § 1711(a); (2)

the power to sue and be sued, [see] id. § 1741(a)(2); and (3)

the power to enter into contracts and make purchases on its

own behalf, [see] id. § 1741(a)(8), (9), (12), (18), (20), (21),

(22), (24), (25). Other attributes support immunity: (1) its

enabling statute provides that SEPTA “shall in no way be

deemed to be an instrumentality of any city or county or

other municipality or engaged in the performance of a

municipal function, but shall exercise the public powers

of the Commonwealth as an agency and instrumentality

thereof,” id. § 1711(a), and “shall continue to enjoy

sovereign and official immunity, as provided [by the

statutory provisions that comprise and pertain to what is

commonly referred to as the Pennsylvania Sovereign

Immunity Act],”[4] id. § 1711(c)(3); (2) SEPTA has the

power of eminent domain, [see] id. § 1741(a)(13); and (3)

SEPTA is immune from state taxation.

Cooper v. Se. Pa. Transp. Auth., 548 F.3d 296, 307 (3d Cir. 2008) (footnotes omitted)

(emphasis added); see also Se. Pa. Transp. Auth.

On May 9, 2022, the Senate Transportation Committee conducted a public

hearing on the Safety and Sustainability of Public Transportation in Pennsylvania.

Testimony was presented at the hearing relating to the homelessness, mental illness,

4

42 Pa.C.S. §§ 8521-8522.

4

and substance abuse issues that contribute significantly to the number of incidents that

SEPTA personnel and riders encounter.5

In October 2022, the General Assembly found that, during DA Krasner’s

time as DA, violent crime and violence in Philadelphia increased, and residents and the

economy suffered due to his policies. See Select Committee on Restoring Law and

Order, Second Interim Report, October 24, 2022 (Select Committee Report). On

October 25, 2022, House Bill 140 (Printer No. 3601) was amended to include

provisions for the appointment of a special prosecutor authorized to prosecute all

crimes within SEPTA. Governor Josh Shapiro (Governor Shapiro) vetoed that bill.

Thereafter, Senator Wayne Langerholc, Jr., Senate Transportation Chair,

introduced Senate Bill 140, which included the same provisions as House Bill 140 for

the appointment of a special prosecutor authorized to prosecute all crimes within

SEPTA. Senate Bill 140 passed the Senate and the House. On December 14, 2023,

Governor Shapiro signed Act 40 into law. See DA Appl. Ex. 1, Act 40.

Act 40 mandates, in pertinent part:

Within 30 days of the effective date of this section, the

Attorney General shall appoint a special prosecutor to

investigate and institute criminal proceedings for a violation

of the laws of this Commonwealth occurring within a public

transportation authority that serves as the primary provider

of public passenger transportation in the county of the first

class in accordance with this section.

74 Pa.C.S. § 1786(a).

“Philadelphia presently is the only city of the first class in [this

Commonwealth].” Spahn v. Zoning Bd. of Adjustment, 977 A.2d 1132, 1143 (Pa.

2009). “There is only one first class county, Philadelphia[.]” Petition of Berg, 712

A.2d 340, 344 n.5 (Pa. Cmwlth.), aff’d, 713 A.2d 1106 (Pa. 1998); see Se. Pa. Transp.

5

See https://transportation.pasenategop.com/trans-050922/ (last visited June 14, 2024).

5

Auth., 122 A.3d at 1165 (“Philadelphia is a first class city that is governed under

authority of the First Class City Home Rule Act.”6). The “public transportation

authority that serves as the primary provider of public passenger transportation in the

county of the first class” referred to in Act 40 is SEPTA. See SEPTA Br. at 9 (“There

is no dispute that this ‘public transportation authority’ is SEPTA.”);7 see also DA Appl.

Ex. 3, 2023 Pa. Leg. J. Sen. 357 (May 2, 2023) (wherein the discussion focuses solely

on SEPTA).

Act 40 provides that, effective immediately and until December 31, 2026:

Notwithstanding any other provision of law or regulation, a

special prosecutor shall have the authority to investigate and

prosecute, and has jurisdiction over, any criminal matter

involving an alleged violation of the laws of this

Commonwealth occurring within [SEPTA]. The special

prosecutor’s prosecutorial jurisdiction shall include the

power and independent authority to exercise all investigative

and prosecutorial functions and powers of the [DA] in the

county of the first class.

74 Pa.C.S. § 1786(a)(2); see also 74 Pa.C.S. § 1786(a)(8) (“No new action or

proceeding may be initiated by a special prosecutor under this section after December

31, 2026.”); (13) (Act 40 expires as provided in subsection (8)); (14) (The DA and

SEPTA “must comply with this section until [it] expires under paragraph (13).”).

On or about December 29, 2023, the Attorney General posted a public

notice soliciting applications for the Act 40 special prosecutor.8 On January 8, 2024,

the DA’s counsel submitted a letter to the Attorney General setting forth reasons why

Act 40 was unconstitutional, requesting the opportunity to discuss the law with the

6

Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13157.

7

“Other mass transit systems operate in Philadelphia and in the counties surrounding

Philadelphia County, e.g., New Jersey Transit or [Port Authority Transit Corporation].” DA’s Ans.

to Intervention Appl. at 3.

8

See Job Bulletin, Pennsylvania Office of Attorney General, Special Prosecutor,

https://www.governmentjobs.com/careers/paoag/jobs/newprint/4323346 (last visited June 14, 2024).

6

Attorney General, and asking that the Attorney General provide assurances by noon on

January 10, 2024, that she would not proceed to implement Act 40. See Pet. for Rev.

Ex. 5. The Attorney General responded that, given the statutory mandate, she is

continuing to review potential candidates and does not know when the appointment

will occur or when any appointee might begin serving.

On January 11, 2024, the DA filed a petition for review (Petition for

Review) in this Court seeking declaratory and injunctive relief on the basis that the

special prosecutor’s investigative and prosecutorial functions are extensive and

encompass the DA’s traditional roles and functions. Specifically, the DA alleges: Act

40 unconstitutionally divests the DA of territorial jurisdiction (Claim I); Act 40

unconstitutionally nullifies the DA’s core prosecutorial functions (Claim II); Act 40 is

an unconstitutional local or special law (Claim III); Act 40 violates the equal protection

guarantees of the Pennsylvania Constitution (Claim IV);9 Act 40 is unconstitutional

because it calls for the appointment of an unaccountable special prosecutor (Claim V);

Act 40 violates the Criminal History Record Information Act (CHRIA) (Claim VI); 10

and Act 40 impairs the effective prosecution of criminal defendants in Philadelphia by

violating their right to raise arguments in their defense (Claim VII). See Pet. for Rev.

at 29-46. The DA requests: a declaration that Act 40 is unconstitutional and violates

CHRIA; permanent and preliminary injunctive relief prohibiting the Attorney General

from performing, implementing, or causing any person to perform or implement Act

40; and such other relief as is just and proper. See id. at 47-48. The DA claims that he

vigorously charges and prosecutes SEPTA crimes, that any decrease in cases is due to

sharply decreased SEPTA police arrests, Act 40 does not provide SEPTA with greater

resources, and Act 40 is a targeted political action by a legislator who represents a

county far from Philadelphia. See id. ¶¶ 23-30.

9

PA. CONST. art. I, §§ 1, 26.

10

18 Pa.C.S. §§ 9101-9183.

7

On January 17, 2024, the DA filed the PI Petition and a memorandum of

law in support thereof. On January 22, 2024, the DA filed an application for an

expedited hearing on the PI Petition on the basis that the Attorney General was taking

steps to implement Act 40, including soliciting special prosecutor applications.11 On

January 26, 2024, the Attorney General filed an answer opposing the expedited hearing

application. On January 31, 2024, the Attorney General filed an answer opposing the

PI Petition.

This Court conducted a scheduling conference on February 2, 2024, and

that same day issued an Order stating:

As the parties have agreed that the [PI Petition] filed January

17, 2024, . . . and [the DA’s Petition for Review] filed

January 11, 2024[,] concern only legal issues and that

hearings thereon are not necessary to dispose of the [PI

Petition] or the Petition for Review, the parties shall file

[Cross-Applications] . . . on or before February 12, 2024.

The parties shall file answers to the Cross[-]Applications . . .

on or before February 20, 2024.

Feb. 2, 2024 Order at 1. The February 2, 2024 Order further directed the Attorney

General to file a response to the Petition for Review and to notify the Court and the DA

at least three business days before making any firm offer to a prospective special

prosecutor.12 In addition, this Court scheduled oral argument before the Court en banc

on the PI Petition and the Cross-Applications for April 10, 2024.

11

By January 24, 2024 letter, the Attorney General notified the DA that, although it intends

to uphold its obligation to defend Act 40’s constitutionality, the Attorney General was “interested in

avoiding the misdirection of resources from the critical law enforcement obligations of both the Office

of Attorney General and the [DA’s] Office” and “believe[d] it may be beneficial for the Office of

Attorney General, the [DA], and SEPTA to schedule a meeting solely to discuss how Act 40 will be

implemented and applied.” DA Br. Ex. A.

12

By June 11, 2024 letter, the Attorney General notified this Court that it would be extending

a firm employment offer to a special prosecutor candidate on June 14, 2024. Thereafter, on June 12,

2024, the DA filed the Supplemental PI.

8

The DA and the Attorney General filed the Cross-Applications on

February 12, 2024, and, later, briefs in support thereof. On February 20, 2024, SEPTA

filed an application to intervene as a party to this matter. Also on February 20, 2024,

the DA filed an answer opposing the Attorney General’s Application and a reply to the

Attorney General’s new matter. In addition, the Attorney General filed her answer

opposing the DA’s Application.

On February 27, 2024, the DA and the Attorney General filed answers

opposing SEPTA’s intervention application; the DA adding that SEPTA erred by not

attaching its proposed pleading. On February 28, 2024, SEPTA filed an application to

amend its intervention application to include its proposed pleading, which this Court

granted on February 29, 2024. That same day, SEPTA filed its Intervention Petition,

attaching the SEPTA Application, therein asking this Court to dismiss the DA’s

Petition for Review on the bases that: (1) the DA lacks standing; (2) there is no actual

controversy, and the DA’s claims are not ripe; and (3) the law does not permit recovery

on the DA’s claims. By March 1, 2024 Order, this Court granted SEPTA leave to

participate in oral argument, subject to the Court’s disposition of its Intervention

Petition.13

On March 8, 2024, SEPTA filed a brief in support of its Intervention

Petition and Application. The DA’s PI Petition and Supplemental PI, the Cross-

13

Also on March 1, 2024, the members of the Pennsylvania Democratic Caucus (Democratic

Senators) filed a statement of interest of amici curiae supporting the DA’s Application, arguing: Act

40 violates article III, section 32 of the Pennsylvania Constitution, PA. CONST. art. III, § 32,

prohibiting local or special laws; Act 40 suppresses Philadelphia citizens’ votes; and Act 40 falls

outside of the Pennsylvania Constitution’s exclusive DA removal methods. In addition, on March 1,

2024, the Pennsylvania Senate Republican Caucus and the Pennsylvania House Republican Caucus

filed an amici curiae brief supporting the Attorney General’s Application.

That same day, POWER Interfaith, Pennsylvania Policy Center, Abolitionist Law Center,

Common Cause Pennsylvania, Pennsylvania State Conference of the NAACP, NAACP Philadelphia

Branch, League of Women Voters of Philadelphia, Make the Road Pennsylvania, and Urban League

of Philadelphia filed an application for leave to file an attached amicus brief in support of the DA’s

Application, which this Court granted on March 4, 2024.

9

Applications, and SEPTA’s Intervention Petition and Application are now ready for

this Court’s disposition.

II. Discussion

A. SEPTA

1. SEPTA Intervention

Initially, Pennsylvania Rule of Civil Procedure (Rule) 2327 states:

At any time during the pendency of an action, a person not a

party thereto shall be permitted to intervene therein, subject

to these rules if

....

(3) such person could have joined as an original party in the

action or could have been joined therein; or

(4) the determination of such action may affect any legally

enforceable interest of such person[,] whether or not such

person may be bound by a judgment in the action.

Pa.R.Civ.P. 2327. Rule 2329 provides:

[A]n application for intervention may be refused, if

(1) the claim or defense of the petitioner is not in

subordination to and in recognition of the propriety of the

action; or

(2) the interest of the petitioner is already adequately

represented; or

(3) the petitioner has unduly delayed in making application

for intervention or the intervention will unduly delay,

embarrass[,] or prejudice the trial or the adjudication of the

rights of the parties.

Pa.R.Civ.P. 2329.

This Court has ruled:

[C]onsidering Rules 2327 and 2329 together, the effect of

Rule 2329 is that if the petitioner is a person within one of

10

the classes described in Rule 2327, the allowance of

intervention is mandatory, not discretionary, unless one of

the grounds for refusal under Rule 2329 is present. Equally,

if the petitioner does not show himself to be within one of the

four classes described in Rule 2327, intervention must be

denied, irrespective of whether any of the grounds for refusal

in Rule 2329 exist.

In re Phila. Health Care Tr., 872 A.2d 258, 261 (Pa. Cmwlth. 2005) (emphasis omitted)

(quoting Larock v. Sugarloaf Twp. Zoning Hearing Bd., 740 A.2d 308, 313 (Pa.

Cmwlth. 1999)).

Moreover,

[t]o intervene, the prospective intervenor must first establish

that [it] has standing. Markham [v. Wolf], 136 A.3d [134,]

140 [(Pa. 2016)]. . . . [F]or a party to a legal action to have

standing, they must be aggrieved or “negatively impacted in

some real and direct fashion.” Pittsburgh Palisades Park,

LLC v. Commonwealth, . . . 888 A.2d 655, 660 ([Pa.] 2005).

Allegheny Reprod. Health Ctr. v. Pa. Dep’t of Hum. Servs., 309 A.3d 808, 843-44 (Pa.

2024) (footnote omitted).

In support of its Intervention Petition, SEPTA avers:

SEPTA “could have joined as an original party in this suit, or

could have been joined therein[,]” because Act 40 directly

pertains to SEPTA. Pa.R.Civ.P. 2327(3). As the “public

transportation authority that serves as the primary provider

of public passenger transportation in the county of the first

class,” SEPTA is directly contemplated by Act 40. 74 P.S. §

1786(a).

....

Second, any determination in this action will affect SEPTA’s

legally enforceable interests. [The DA] seek[s] [] declaratory

and injunctive relief that, if granted, will entirely stop

enforcement of Act 40. . . . Act 40 directly speaks to the

investigation, prosecution, and enforcement of crimes

committed occurring within SEPTA. Any relief granted

related to Act 40 will necessarily implicate SEPTA.

11

Intervention Petition at 5-6.

This Court agrees with SEPTA. Importantly, Act 40 applies directly to

“violation[s] of the laws of this Commonwealth occurring within a public

transportation authority that serves as the primary provider of public passenger

transportation in the county of the first class.” 74 Pa.C.S. § 1786(a) (emphasis added).

It further provides, in relevant part: “The Attorney General, the county of the first class,

the [DA] of the first class[,] and the public transportation authority that serves as

the primary provider of public passenger transportation in the county of the first class

must comply with this section until this section expires . . . .” 74 Pa.C.S. §

1786(a)(14) (emphasis added). Thus, a decision in this matter will impact SEPTA in

“some real and direct fashion.” Pittsburgh Palisades, 888 A.2d at 660. Accordingly,

this Court grants SEPTA’s Intervention Petition, and considers the SEPTA

Application.

2. SEPTA Application – DA’s Standing

SEPTA argues that the DA is not aggrieved by Act 40 to the extent that

the special prosecutor lacks accountability to the electorate or that he may violate rights

of future unidentified criminal defendants. Specifically, it contends that the DA’s

interest is not substantial because it does not surpass the common interest of all citizens,

and alleged unequal treatment of Philadelphia voters and potential criminal defendants

is not a direct harm to the DA. Further, according to SEPTA, the DA’s interest is not

immediate because the Attorney General has not yet appointed a special prosecutor, so

no investigations or prosecutions under Act 40 are imminent. Finally, SEPTA asserts

that the DA lacks standing to assert a claim that the electorate’s right to select or remove

a prosecutor is infringed because that right belongs solely to the electorate.

12

“Standing is [also] a justiciability concern, implicating a court’s ability to

adjudicate a matter.”14 Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467,

481 (Pa. 2021) (FOAC II). “In seeking judicial resolution of a controversy, a party

must establish as a threshold matter that he has standing to maintain the action.” Stilp

v. Gen. Assembly, 940 A.2d 1227, 1233 (Pa. 2007). “[T]he core concept of standing is

that a person who is not adversely affected in any way by the matter he seeks to

challenge is not aggrieved thereby and has no standing to obtain a judicial resolution

of his challenge.” Fumo v. City of Phila., 972 A.2d 487, 496 (Pa. 2009). “An

individual can demonstrate that he has been aggrieved if he can establish that he has a

substantial, direct[,] and immediate interest in the outcome of the litigation.” Id.

A substantial interest in the outcome of litigation is one that

surpasses the common interest of all citizens in procuring

obedience to the law. A direct interest requires a causal

connection between the asserted violation and the harm

complained of. An interest is immediate when the causal

connection is not remote or speculative.

Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1215 (Pa. Cmwlth.

2018) (citations omitted). “Under Pennsylvania law, the doctrine of standing is ‘a

prudential, judicially-created tool,’ affording discretion to courts.” FOAC II, 261 A.3d

at 481 (quoting In re Hickson, 821 A.2d 1238 (Pa. 2003)).

In the Petition for Review, the DA asserts that he is being stripped of his

statutory responsibilities for SEPTA-related crimes. He further maintains that as

Philadelphia County’s elected chief law enforcement officer, his interest surpasses the

14

[T]his Court has noted that the justiciability doctrines of standing and

ripeness are closely related because both may encompass allegations

that the plaintiff’s harm is speculative or hypothetical and resolving the

matter would constitute an advisory opinion. However, ripeness is

distinct from standing as it addresses whether the factual development

is sufficient to facilitate a judicial decision.

Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467, 482 (Pa. 2021) (citations omitted).

13

common interest of all citizens in procuring obedience to the law. It cannot be disputed

that the DA has a duty and, thus, a substantial interest in investigating and prosecuting

crimes in Philadelphia County, including within SEPTA. Such interest is clearly

affected by Act 40. The causal connection is also clear. The impact upon the DA’s

duties results directly from Act 40’s mandates and the effect on his interest was

immediate with Act 40’s passing. Thus, the DA has standing on his own behalf.15

See Krasner v. Ward (Pa. Cmwlth. No. 563 M.D. 2022, filed Jan. 12, 2023) (Krasner

I) (“It is entirely unreasonable under the circumstances for Impeachment Managers to

15

In the Petition for Review, the DA appears to assert claims on the Philadelphia electorate’s

behalf by asserting that Act 40 undermines the electorate’s choice of prosecutor (who does not even

take an oath) and the special prosecutor is insulated from accountability to the electorate, see Petition

for Rev. ¶¶ 147, 151-153. However, those statements are made as part of the DA’s equal protection

(Claim IV) and unconstitutional unaccountability claims (Claim V) as examples of how Act 40 strips

him of his prosecutorial authority. Accordingly, the DA does not purport to have standing to bring

this action on behalf of Philadelphia voters. However, to the extent the Petition for Review may

reflect that the DA is bringing the action on that basis, he lacks standing.

Regarding the DA’s CHRIA violation claims asserted in Claim VI of the Petition for Review,

see ¶¶ 160-161, although CHRIA authorizes individuals aggrieved by CHRIA violations to seek

damages, costs, and fees, see Hunt v. Pa. State Police, 983 A.2d 627 (Pa. 2009), the DA’s claims are

limited to Act 40’s requirement that the DA disseminate investigative information to the special

prosecutor without regard for CHRIA’s specific disclosure requirements. Accordingly, the DA does

not purport to have standing to bring a CHRIA violation action on potential criminal defendants’

behalf. To the extent the Petition for Review may reflect that the DA is bringing the action on that

basis, he lacks standing.

Relative to the DA’s claim that Act 40 impairs criminal defendants’ rights to raise the special

prosecutor’s jurisdiction in their defense, Act 40 provides:

No person charged with a violation of the law by a special prosecutor

shall have standing to challenge the authority of the special prosecutor

to prosecute the case. If a challenge is made, the challenge shall be

dismissed and no relief shall be available in the courts of this

Commonwealth to the individual making the challenge.

74 Pa.C.S. § 1786(a)(5). In the Petition for Review, while the DA discusses the unconstitutional

infringing of criminal defendants’ rights, see ¶ 165, he does so in terms of the effect of complicating

criminal prosecutions, possible dismissals, and potential increase in crimes. Accordingly, the DA

does not purport to have standing to bring potential criminal defendants’ rights violation claims on

their behalf. However, to the extent the Petition for Review may reflect that the DA is bringing the

action on that basis, he lacks standing.

14

assert that [the DA] lacks standing. The [government action is] targeted squarely at

him and [is] part of the broader, continuing effort by the General Assembly to

potentially remove him from office.” Slip op. at 15).

3. SEPTA Application – Actual Controversy/Ripeness

SEPTA contends that the matter is not ripe for this Court’s intervention

because the Attorney General has not yet appointed a special prosecutor, and therefore,

no one is exercising authority under Act 40. Thus, according to SEPTA, there is not

yet an actual controversy.

“Declaratory judgments are . . . judicial searchlights, switched on at the

behest of a litigant to illuminate an existing legal right, status or other relation.”

Selective Way Ins. Co. v. Hosp. Grp. Servs., Inc., 119 A.3d 1035, 1046 (Pa. Super.

2015) (quoting Wagner v. Apollo Gas Co., 582 A.2d 364, 365 (Pa. Super. 1990)

(citation omitted)). They are governed by the provisions of the Declaratory Judgments

Act, 42 Pa.C.S. §§ 7531-7541.

The purpose of the Declaratory Judgments Act “is to settle

and to afford relief from uncertainty and insecurity with

respect to rights, status, and other legal relations, and [it] is

to be liberally construed and administered.”[16] 42 Pa.C.S. §

7541. Declaratory judgment as to the rights, status or legal

relationships is appropriate only where an actual controversy

exists. McCord v. Pennsylvanians for Union Reform, 136

A.3d 1055 (Pa. Cmwlth. 2016). “An actual controversy

exists when litigation is both imminent and inevitable and the

declaration sought will practically help to end the

controversy between the parties.” Id. at 1061 (quotation

omitted).

Eleven Eleven Pa., LLC v. State Bd. of Cosmetology, 169 A.3d 141, 145 (Pa. Cmwlth.

2017); see also Off. of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014) (“[T]he

16

“The declaration may be either affirmative or negative in form and effect, and . . . shall have

the force and effect of a final judgment or decree.” 42 Pa.C.S. § 7532.

15

courts of this Commonwealth are generally proscribed from rendering decisions in the

abstract or issuing purely advisory opinions.”).

However, the Declaratory Judgments Act is to be liberally construed, see

42 Pa.C.S. § 7541(a), and “[t]he subject matter of the dispute giving rise to a request

for declaratory relief need not have erupted into a full-fledged battle . . . .” Pa. Game

Comm’n v. Seneca Res. Corp., 84 A.3d 1098, 1103 (Pa. Cmwlth. 2014) (quoting

Ronald H. Clark, Inc. v. Twp. of Hamilton, 562 A.2d 965, 968 (Pa. Cmwlth. 1989)).

[O]ur Supreme Court has said:

‘If differences between the parties concerned, as to their legal

rights, have reached the state of antagonistic claims, which

are being actively pressed on one side and opposed on the

other, an actual controversy appears; where, however, the

claims of the several parties in interest, while not having

reached the active stage, are nevertheless present, and

indicative of threatened litigation in the immediate future,

which seems unavoidable, the ripening seeds of a

controversy appear.’

Pa. Game Comm’n, 84 A.3d at 1103-04 (quoting Mid-Centre Cnty. Auth. v. Boggs

Twp., 384 A.2d 1008, 1011 (Pa. Cmwlth. 1978)). Therefore, while an issue giving rise

to a request for a declaratory judgment must be justiciable, it need not be in litigation.

See Pa. Game Comm’n. Moreover, the Pennsylvania Supreme Court has concluded

that a question of law, like that presented here, is “particularly well-suited for pre-

enforcement review.” Yocum v. Pa. Gaming Control Bd., 161 A.3d 228, 237 (Pa. 2017)

(quoting Robinson Twp., Wash. Cnty. v. Commonwealth, 83 A.3d 901, 917 (Pa. 2013)).

Act 40 directs that, within 30 days of December 14, 2023, the Attorney

General shall appoint a special prosecutor to investigate and institute criminal

proceedings for a violation of the laws of this Commonwealth occurring within a public

transportation authority that serves as the primary provider of public passenger

transportation (i.e., SEPTA) in the county of the first class (i.e., Philadelphia County)

16

until December 31, 2026. See 74 Pa.C.S. § 1786(a). The Attorney General admitted

to the DA that she is statutorily mandated to find and hire a special prosecutor who will

take the DA’s place in the investigation and prosecution of criminal matters involving

SEPTA. See Pet. for Rev. ¶ 82; see AG Ans. & N.M. ¶ 82. The job listing is still

posted, and the Attorney General’s Office has informed this Court that it has made a

firm employment offer to a candidate subject only to a background check, which the

Attorney General has advised this Court the candidate has passed. Accordingly, this

Court concludes that “[a]n actual controversy exists [that] is both imminent and

inevitable and the declaration sought will practically help to end the controversy

between the parties.” Eleven Eleven Pa., 169 A.3d at 145 (quoting McCord, 136 A.3d

at 1061).

B. Summary Relief

1. Constitutionality in General

The law is well settled that

[t]he standard for granting summary relief turns upon

whether the applicant’s right to relief is clear. Summary

relief on a petition for review is similar to the relief provided

by a grant of summary judgment. [See] Pa.R.A.P. 1532,

Official Note. Summary judgment is appropriate where,

after the close of pleadings, “there is no genuine issue of any

material fact as to a necessary element of the cause of action

or defense which could be established by additional

discovery or expert report.” Pa.R.C[iv].P. 1035.2(a). The

record is to be viewed in the light most favorable to the

nonmoving party, and all doubts as to the existence of a

genuine issue of material fact must be resolved against the

moving party.

Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017) (footnote omitted).

The Pennsylvania Supreme Court has explained:

Acts passed by the General Assembly enjoy a strong

presumption of constitutionality, and a challenging party

17

bears a very heavy burden of persuasion. Stilp v. . . . Gen.

Assembly, . . . 974 A.2d 491, 495 ([Pa.] 2009). A statute must

violate an express or clearly implied prohibition in the

Constitution before it will be held unconstitutional. Russ v.

Commonwealth, . . . 60 A. 169, 172 ([Pa.] 1905); Sharpless

v. Mayor of Phila[.], 21 Pa. 147, 164 (1853) (explaining that

legislation is void “only when it violates the constitution

clearly, palpably, plainly; and in such manner as to leave no

doubt or hesitation on our minds[]”). If any doubt arises, it

is resolved in favor of the constitutionality of the legislation.

Russ, 60 A. at 172.

McLinko v. Commonwealth, 279 A.3d 539, 565 (Pa. 2022). “[This Court] presume[s]

that the General Assembly does not intend to violate the Pennsylvania Constitution,

nor intend an absurd or unreasonable result.” Id. at 563. Thus, “statutes are to be

construed whenever possible to uphold their constitutionality.” Working Families

Party v. Commonwealth, 209 A.3d 270, 279 (Pa. 2019) (quoting DePaul v.

Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009)).

Further,

[t]he judiciary can only arrest the execution of a

statute when it conflicts with the Constitution. It

cannot run a race of opinions upon points of right,

reason, and expediency with the lawmaking

power. . . . If the courts are not at liberty to declare

statutes void because of their apparent injustice or

impolicy, neither can they do so because they appear

to the minds of the judges to violate fundamental

principles of republican government, unless it should

be found that these principles are placed beyond

legislative encroachment by the Constitution.

Russ, 60 A. at 173 (quoting COOLEY ON CONSTITUTIONAL

LIMITATIONS, [cl]. 7, §§ 4, 5 (6th ed. 1890)).

Wolf v. Scarnati, 233 A.3d 679, 706 (Pa. 2020) (superseded by constitutional

amendment on other grounds).

Before addressing the DA’s arguments, it is important to understand the

Commonwealth of Pennsylvania’s (Commonwealth) governmental structure.

18

The Pennsylvania Constitution, since its inception in 1776,

has created a framework of government vesting legislative,

judicial, and executive powers in three separate branches.

This tripartite structure, with its system of checks and

balances among these branches, is designed to prevent a

concentration of power in any one branch and to prevent one

branch from exercising the core functions of another — the

embodiment of the separation of powers doctrine. See

Commonwealth v. Mockaitis, . . . 834 A.2d 488, 499 ([Pa.]

2003). Foundationally, the legislature creates the laws. PA.

CONST. art. II, § 1. The judiciary interprets the laws. PA.

CONST. art. V, § 1. Finally, [a]rticle IV, [s]ection 2 of our

charter provides the Governor “supreme executive power” to

implement the laws of the Commonwealth. PA. CONST. art.

IV, § 2.

Markham v. Wolf, 190 A.3d 1175, 1177 (Pa. 2018).

Within the above-described framework of state government, the

Pennsylvania Constitution expressly authorizes the General Assembly to create local

forms of government, which the Pennsylvania Constitution refers to as municipalities.

The Pennsylvania Constitution explicitly defines “municipality” as “a county, city,

borough, incorporated town, township or any similar general purpose unit of

government which shall hereafter be created by the General Assembly.” PA. CONST.

art. IX, § 14, titled “Local Government” (emphasis added).

The Pennsylvania Supreme Court has described:

Municipalities are creatures of the state and have no inherent

powers of their own, see Naylor v. [Twp.] of Hellam, . . . 773

A.2d 770, 773 ([Pa.] 2001); rather, they “possess only such

powers of government as are expressly granted to [them] and

as are necessary to carry the same into effect.” Appeal of

Gagliardi, . . . 163 A.2d 418, 419 ([Pa.] 1960); see also

Phila[.] v. Fox, 64 Pa. (14 Smith) 169, 180-81 (1870).

Therefore, a municipality ordinarily lacks the power to enact

ordinances except as authorized by statute, and any

ordinance not in conformity with its enabling statute is void.

See Taylor v. Abernathy, . . . 222 A.2d 863, 865 ([Pa.] 1966).

City of Phila. v. Schweiker, 858 A.2d 75, 84 (Pa. 2004).

19

The Pennsylvania Constitution specifically permits a municipality to

govern by a home rule charter and, in doing so, expressly authorizes the General

Assembly to limit a home rule municipality’s power. Article IX, section 2 of the

Pennsylvania Constitution, titled “Home Rule[,]” provides:

Municipalities shall have the right and power to

frame and adopt home rule charters. . . . A

municipality which has a home rule charter may

exercise any power or perform any function not

denied by this Constitution, by its home rule

charter[,] or by the General Assembly at any time.

PA. CONST. art. IX, § 2 (emphasis added).

In discussing this constitutional provision, the Pennsylvania Supreme

Court instructed:

By virtue of this [constitutional] revision, any power that the

General Assembly did not forbid was now extended to any

municipality that - like the City of [Philadelphia] - adopted

home rule. See . . . Schweiker, . . . 858 A.2d [at] 84 . . .

(holding that, “[u]nder the concept of home rule, . . . the

locality in question may legislate concerning municipal

governance without express statutory warrant for each new

ordinance,” provided it does so in a fashion allowed by its

home rule charter and without running afoul of the

Pennsylvania Constitution or state statutory law).

Pa. Rest. & Lodging Ass’n v. City of Pittsburgh, 211 A.3d 810, 816-17 (Pa. 2019)

(emphasis added); see also Schweiker, 858 A.2d at 84 (“Under the concept of home

rule, however, the locality in question may legislate concerning municipal governance

without express statutory warrant for each new ordinance; rather, its ability to exercise

municipal functions is limited only by its home rule charter, the Pennsylvania

Constitution, and the General Assembly.”) (emphasis added).

Article IX, section 4 of the Pennsylvania Constitution, titled “County

Government[,]” specifically distinguishes home rule municipalities from county

20

government, and expressly states that the constitutional provisions for county

government do not apply to a home rule municipality. That provision reads:

County officers shall consist of commissioners, controllers

or auditors, district attorneys, public defenders, treasurers,

sheriffs, registers of wills, recorders of deeds, prothonotaries,

clerks of the courts, and such others as may from time to time

be provided by law.

....

Provisions for county government in this section shall

apply to every county except a county which has adopted

a home rule charter or an optional form of government.

One of the optional forms of county government provided by

law shall include the provisions of this section.

PA. CONST. art. IX, § 4 (emphasis added).

“Philadelphia presently is the only city of the first class in [this

Commonwealth].” Spahn, 977 A.2d at 1143. Philadelphia is governed by a home rule

charter which it adopted in 1951. See Se. Pa. Transp. Auth., 122 A.3d at 1165

(“Philadelphia is a first class city that is governed under authority of the First Class

City Home Rule Act.”).

In further separating Philadelphia’s home rule municipality from county

government, article IX, section 13 of the Pennsylvania Constitution, titled, “Abolition

of county offices in Philadelphia[,]” abolished all county offices in Philadelphia,

directed that all Philadelphia county officers shall be City of Philadelphia officers, and

provided that special laws regulating the affairs of the City of Philadelphia shall be

valid. That constitutional provision states:

(a) In Philadelphia all county offices are hereby abolished,

and the city shall henceforth perform all functions of county

government within its area through officers selected in such

manner as may be provided by law.

(b) Local and special laws, regulating the affairs of the

City of Philadelphia and creating offices or prescribing

21

the powers and duties of officers of the City of

Philadelphia, shall be valid notwithstanding the provisions

of section thirty-two of [a]rticle III of this Constitution.

(c) All laws applicable to the County of Philadelphia shall

apply to the City of Philadelphia.

(d) The City of Philadelphia shall have, assume and take over

all powers, property, obligations and indebtedness of the

County of Philadelphia.

(e) The provisions of section two of this article shall apply

with full force and effect to the functions of the county

government hereafter to be performed by the city

government.

(f) Upon adoption of this amendment all county officers

shall become officers of the City of Philadelphia, and until

the General Assembly shall otherwise provide, shall

continue to perform their duties and be elected, appointed,

compensated and organized in such manner as may be

provided by the provisions of this Constitution and the laws

of the Commonwealth in effect at the time this amendment

becomes effective, but such officers serving when this

amendment becomes effective shall be permitted to complete

their terms.

PA. CONST. art. IX, § 13 (emphasis added).

The Pennsylvania Constitution, in expressly authorizing the General

Assembly to create home rule municipalities, clearly states that a home rule

municipality’s ability to govern is limited by the Pennsylvania Constitution, its home

rule charter, and the General Assembly. In accordance with well-established law,

municipalities do not have free reign over the sovereign which created them.

Accordingly, the General Assembly “retains express constitutional authority to limit

the scope of any municipality’s home rule governance[.]” Schweiker, 858 A.2d at 87.

In addition to the Pennsylvania Constitution establishing this

Commonwealth’s governmental structure, it is also important to note what the

Pennsylvania Constitution does not state. Pertinent to the matter before this Court, the

22

Pennsylvania Constitution does not expressly or by clear implication grant a district

attorney in a home rule municipality any power; rather, it is silent, and it certainly does

not bestow any authority upon that officer greater than the Pennsylvania Constitution

gives to the General Assembly which created the municipality. See Commonwealth v.

McHale, 97 Pa. 397, 406 (1881) (“While the legislature may not abolish the office

[of district attorney], it can control the officer. [The legislature] can regulate the

performance of his duties,[17] and punish him for misconduct, as in the case of other

officers.”) (emphasis added); see also In re Ajaj, 288 A.3d 94, 113 n.3 (Pa. 2023)

(Dougherty, J., concurring) (wherein Justice Dougherty characterized the Court’s

decision in McHale as “arguably consider[ing] a separations of powers claim . . . within

the context of assessing the permissible bounds of legislative, rather than judicial,

encroachment on prosecutorial powers[,]” and describing the McHale Court as

“holding ‘the legislature may not abolish the office’ [of district attorney] but ‘it can

control the officer’ by ‘regulat[ing] the performance of his duties’ and ‘punish[ing] him

for misconduct[.]’”) (quoting McHale, 97 Pa. at 406); In re Shelley, 2 A.2d 809, 812

(Pa. 1938) (“[I]t is well established that since the [Pennsylvania] Constitution does not

prescribe the duties of the district attorney[,] the legislature may regulate the

performance of such duties and provide for cases in which it would be improper for the

elected officer to act.”);18 Commonwealth v. Lehman, 164 A. 526, 527 (Pa. 1932) (“As

17

As indicative of the General Assembly’s ability to regulate a district attorney’s duties, the

General Assembly has previously authorized the Attorney General to supersede the DA in certain

specific instances. See Pa. Rest. & Lodging Ass’n.

18

The Dissent references Shelley and Commonwealth v. Schab, 383 A.2d 819, 821 (Pa. 1978),

as cases involving statutorily permitted supersession subject to judicial approval. The Dissent states:

Act 40 is nothing like the supersession statutes in Shell[e]y and Schab,

or the modern Commonwealth Attorneys Act [(CAA), Act of October

15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 - 732-506]. It

contains no process for reviewing the special prosecutor’s decision to

assert preemptive jurisdiction, let alone any opportunity for [DA]

23

the [Pennsylvania] Constitution does not prescribe the duties of the district attorney, it

has been held that the legislature may regulate the performance of the duties of the

office and provide for cases in which it would be improper for the elected officer to

act.”). Pursuant to its constitutional authority, the General Assembly passed Act 40

and Governor Shapiro signed it into law.

2. DA Application Claim I -

Act 40 Divests the DA of Territorial Jurisdiction

The DA argues that article IX, section 4 of the Pennsylvania Constitution

grants county district attorneys’ jurisdiction coextensive with the boundaries of their

respective counties. Further, the DA asserts that the DA’s territorial jurisdiction is the

entirety of Philadelphia County. He also contends that Act 40’s “vague[]” grant of

jurisdiction to the special prosecutor “‘within’ SEPTA” further evidences Act 40’s

intrusion upon the DA’s territorial jurisdiction.19 DA Br. at 31. Accordingly, the DA

Krasner to be heard on that question, as the Shelley Court

conspicuously required. There is no way to say whether the special

prosecutor’s assertion of jurisdiction is “valid,” Shelley, 2 A.2d at

814, because Act 40 does not care whether it is valid.

Krasner v. Henry, ____ A.3d ___, ___ (Pa. Cmwlth. No. 8 M.D. 2024, filed June 14, 2024) (Wolf,

J., dissenting) (DO), slip op. at 8 (emphasis added). Critically, under Act 40, there is no question

as to whether the special prosecutor’s jurisdiction is valid. Unlike in Shelley and Schab, the

General Assembly, through Act 40, has granted the special prosecutor “jurisdiction over[] any

criminal matter involving an alleged violation of the laws of this Commonwealth occurring within a

public transportation authority that serves as the primary provider of public passenger transportation

in the county of the first class.” 74 Pa.C.S. § 1786(a)(2) (emphasis added). The General Assembly

granted the special prosecutor such jurisdiction regardless of whether the special prosecutor chooses

to exercise it. Accordingly, the Dissent’s reliance on Shelley and Schab is unconvincing.

19

The DA argues: “the vagueness of one of Act 40’s key phrases - ‘within’ SEPTA in

Philadelphia - reinforces the conclusion that the Act impermissibly infringes on [the DA’s] territorial

jurisdiction.” DA Br. at 31. The Pennsylvania Supreme Court has held: “‘[I]t is incumbent . . . to

state, at least in somewhat express terms, the specific constitutional grounds upon which the

challenger is basing its attack on the legislation.’ In re F.C. III, 2 A.3d [1201,] 1212 [(Pa. 2010)].”

HIKO Energy, LLC v. Pa. Pub. Util. Comm’n, 209 A.3d 246, 263 (Pa. 2019). Importantly, the DA

24

maintains that Act 40’s special prosecutor is constitutionally prohibited from intruding

into his territorial jurisdiction.

Further, article IX, section 4 of the Pennsylvania Constitution, by its

explicit terms, does not apply to home rule municipalities. Article IX, section 4 of

the Pennsylvania Constitution states: “Provisions for county government in this section

shall apply to every county except a county which has adopted a home rule charter

or an optional form of government.” PA. CONST. art. IX, § 4 (emphasis added). Thus,

notwithstanding that article IX, section 4 of the Pennsylvania Constitution identifies

district attorneys as county officers, that provision does not apply to a county that has

adopted home rule, i.e., Philadelphia.

Moreover, article IX, section 13(f) of the Pennsylvania Constitution

declared upon adoption of the amendment that “all county officers shall become

officers of the City of Philadelphia . . . .” PA. CONST. art. IX, § 13(f). In fact, in

McMenamin v. Tartaglione, 590 A.2d 802 (Pa. Cmwlth.), aff’d without opinion, 590

A.2d 753 (Pa. 1991), this Court determined “that [the DA] was a City officer . . . .” Id.

at 807-08. The Pennsylvania Constitution does not prescribe the DA’s duties. See

Shelley; see also McHale. Article IX, section 2 of the Pennsylvania Constitution

provides municipalities with the right to frame and adopt home rule charters. That

section further states that municipalities “may exercise any power or perform any

function not denied by . . . the General Assembly at any time.” PA. CONST. art. IX, §

2. The General Assembly “retains express constitutional authority to limit the scope of

any municipality’s home rule governance[.]” Schweiker, 858 A.2d at 87. Contrary to

the DA’s assertion, Act 40 does not violate article IX, section 4 of the Pennsylvania

has not asserted or developed a constitutional void for vagueness challenge or requested this Court to

declare that Act 40 is void for vagueness. Accordingly, this Court does not address a constitutional

vagueness challenge.

25

Constitution, as that section does not contain an express or implied prohibition relating

to the General Assembly affecting the DA’s territorial jurisdiction.20 Accordingly, Act

40 does not clearly, palpably, and plainly violate the Pennsylvania Constitution as it

does not intrude upon the DA’s territorial jurisdiction.21

Significantly, the General Assembly created SEPTA. SEPTA “extend[s]

to and include[s] all of the territory in the metropolitan area.” 74 Pa.C.S. § 1711(a).

20

Section 206(a) of the CAA provides: “The Attorney General shall be the chief law

enforcement officer of the Commonwealth; the district attorney shall be the chief law enforcement

officer for the county in which he is elected.” 71 P.S. § 732-206(a).

21

The Concurrence/Dissent would find Act 40 unconstitutional as an improper delegation of

legislative authority. However, the DA did not argue that Act 40 improperly delegates legislative

authority, did not mention the term “delegation” in its brief, and did not reference the seminal case on

that issue - Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827

(Pa. 2017), or any subsequent case addressing improper delegation of legislative authority. Because

constitutional issues can be waived, the Court may not raise them sua sponte. See Commonwealth v.

Berryman, 649 A.2d 961 (Pa. Super. 1994).

The Concurrence/Dissent nevertheless, sua sponte, observes, with respect to the DA’s

argument that Act 40’s use of the purportedly vague term “within” improperly impacted his territorial

jurisdiction, “[t]hat argument is fairly and properly understood as challenging the General Assembly’s

impermissible delegation of its legislative authority.” Krasner v. Henry, ___ A.3d ___, ___ (Pa.

Cmwlth. No. 8 M.D. 2024, filed June 14, 2024) (Fizzano Cannon, J., concurring/dissenting)

(CO/DO), slip op. at 3. “‘[I]t is incumbent . . . to state, at least in somewhat express terms, the specific

constitutional grounds upon which the challenger is basing its attack on the legislation.’ In re F.C.

III, 2 A.3d at 1212.” HIKO Energy, LLC, 209 A.3d at 263. The Concurrence/Dissent essentially

concludes that the DA meant to argue improper delegation of authority when he asserted that Act 40’s

use of the term “within” improperly impacted his territorial jurisdiction.

“This Court may n[ot] litigate for the parties . . . .” Dice v. Chocha-Pipan, 304 A.3d 41, 44

(Pa. Super. 2023). Further,

[t]his Court declared in Department of Transportation, Bureau of

Traffic Safety v. Malone, 520 A.2d 120 (Pa. Cmwlth. 1987),

while it is among the functions of the trial court to

clarify the issues, that function does not cast it in the role

of advocate. Accordingly, [the Pennsylvania Supreme

Court in Hrivnak v. Perrone, . . . 372 A.2d 730 (Pa.

1977),] held that it [is] error for a trial judge to introduce

theories not raised by the parties.

Malone, 520 A.2d at 122.

Omatick v. Cecil Twp. Zoning Hearing Bd., 286 A.3d 413, 430-431 (Pa. Cmwlth. 2022).

26

“A ‘metropolitan area’ is defined as “[a]ll of the territory within the boundaries of any

county of the first class and all other counties located in whole or in part within 20

miles of the first class county.” 74 Pa.C.S. § 1701 (emphasis added). Moreover,

[t]his transportation system is purposed to operate for the

benefit of citizens of the Commonwealth and ultimately the

Commonwealth itself, as SEPTA is the Commonwealth’s

Authority providing public transportation in and around the

Commonwealth’s largest metropolitan area. . . . SEPTA

plays a substantial role in providing transportation for the

area’s workforce, to and from their various places of

employment, thus contributing substantially to the

generation of the Commonwealth’s revenue.

Davis v. Se. Pa. Transp. Auth., 980 A.2d 709, 713 (Pa. Cmwlth. 2009), rev’d on other

grounds sub nom. Goldman v. Se. Pa. Transp. Auth., 57 A.3d 1154 (Pa. 2012).

The 1994 Act found that the establishment and continuance of

transportation authorities “will promote the public health, safety, convenience and

welfare[.]” Id. The 1994 Act further stated:

[I]t is hereby declared to be the policy of the Commonwealth

to promote the safety and welfare of its inhabitants by

authorizing the creation or continuation of a body corporate

and politic for each metropolitan area, to be known as the

transportation authority of such area, which shall exist and

operate for the purposes contained in this chapter as an

authority of the Commonwealth.

Id. Accordingly, as a Commonwealth-created entity, the General Assembly has

authority to regulate SEPTA, and Act 40, as an amendment to the MTAA, clearly

implements the General Assembly’s stated findings and declarations. See 74 Pa.C.S.

§§ 1711(a); 1701.

27

3. DA Application Claim II -

Act 40 Nullifies the DA’s Core Prosecutorial Functions

The DA asserts that Act 40 impermissibly infringes on the DA’s authority

to prosecute crimes under state law that occur within Philadelphia County. Further, the

DA asserts that the Attorney General’s/special prosecutor’s authority provided in Act

40 does not fall under the narrowly circumscribed supersession circumstances in

Section 205(a) of the CAA.22

“[D]istrict attorneys in this Commonwealth have the power -

and the duty - to represent the Commonwealth’s interests in

the enforcement of its criminal laws.” [Commonwealth ex

rel. Specter v.] Bauer, 261 A.2d [573,] 575 [(Pa. 1970)].

“[T]he [DA] is statutorily and constitutionally responsible

for law enforcement at the local level . . . .” [Commonwealth

v.] Schab, 383 A.2d [819,] 824 [(Pa. 1978)]. Thus, in

criminal matters, the district attorneys are the primary

authority for criminal prosecution.

Commonwealth by & through Krasner v. Att’y Gen., 309 A.3d 265, 276 (Pa. Cmwlth.

2024) (emphasis in original).

22

Until Act 40, “the [CAA] [wa]s the only legislation delineating the powers of the Attorney

General.” Commonwealth. v. Carsia, 491 A.2d 237, 247 (Pa. Super. 1985), aff’d, 517 A.2d 956 (Pa.

1986).

The CAA,

which empowers specific entities to represent the Commonwealth in

legal matters . . . permits the replacement of one prosecutor with

another in at least three circumstances. First, the Attorney General may

petition a court to permit his or her office to supersede [a] district

attorney in any criminal action. [See Section 205(a)(4) of the CAA, 71

P.S. § 732-205(a)(4).] Second, the president judge of a particular

county may request that the Attorney General supersede [a] district

attorney in a criminal proceeding. [See Section 205(a)(5) of the CAA,

71 P.S. § 732-205(a)(5).] Third, a district attorney’s office may refer a

case to the Attorney General for prosecution whenever the office lacks

adequate resources or has a conflict of interest. [See Section 205(a)(3)

of the CAA, 71 P.S. § 732-205(a)(3).]

Commonwealth v. Mayfield, 247 A.3d 1002, 1006 (Pa. 2021) (footnotes omitted).

28

The prosecutor enjoys “tremendous” discretion to wield “the

power to decide whether to initiate formal criminal

proceedings, to select those criminal charges which will be

filed against the accused, to negotiate plea bargains, to

withdraw charges where appropriate, and, ultimately, to

prosecute or dismiss charges at trial.” [Commonwealth v.]

Clancy, 192 A.3d [44,] 53 [(Pa. 2019)]. Unless patently

abused, this vast discretion is exercised generally beyond the

reach of judicial interference. See [Commonwealth v.]

Stipetich, 652 A.2d [1294,] 1295 [(Pa. 1995)] (noting that

“the ultimate discretion to file criminal charges lies in the

district attorney”).

Commonwealth v. Cosby, 252 A.3d 1092, 1134 (Pa. 2021).

Importantly, the DA does not cite any constitutional provision which he

claims Act 40 violates in his argument that Act 40 nullifies his core prosecutorial

functions. “[I]it is incumbent upon one raising the specter that a statute is

unconstitutional to state, at least in somewhat express terms, the specific constitutional

grounds upon which the challenger is basing its attack on the legislation.” In re F.C.

III, 2 A.3d 1201, 1212 (Pa. 2010); see also HIKO Energy, LLC v. Pa. Pa. Pub. Util.

Comm’n, 209 A.3d 246, 263 (Pa. 2019).

Section 205(a) of the CAA, 71 P.S. § 732-205(a), provides the Attorney

General with the authority to prosecute certain cases in county criminal court.23 Section

23

Those cases include:

(1) Criminal charges against [s]tate officials or employees affecting the

performance of their public duties or the maintenance of the public trust

and criminal charges against persons attempting to influence such State

officials or employees or benefit from such influence or attempt to

influence.

(2) Criminal charges involving corrupt organizations as provided for

in [Section 911 of the Crimes Code,] 18 Pa.C.S. § 911 (relating to

corrupt organizations).

(3) Upon the request of a district attorney who lacks the resources to

conduct an adequate investigation or the prosecution of the criminal

case or matter or who represents that there is the potential for an actual

29

205(b) of the CAA also provides that the “[t]he Attorney General shall have the

concurrent prosecutorial jurisdiction with the district attorney” in specific situations.

71 P.S. § 732-205(b). Thus, the Attorney General may intercede under specific

enumerated circumstances provided in the CAA.

Act 40 nevertheless empowers the special prosecutor with authority

“[n]otwithstanding any other provision of law or regulation[.]” 74 Pa.C.S. §

1786(a)(2) (emphasis added). The Pennsylvania Supreme Court ruled that “it is well

or apparent conflict of interest on the part of the district attorney or his

office.

(4) The Attorney General may petition the court having jurisdiction

over any criminal proceeding to permit the Attorney General to

supersede the district attorney in order to prosecute a criminal action or

to institute criminal proceedings. . . . Supersession shall be ordered if

the Attorney General establishes by a preponderance of the evidence

that the district attorney has failed or refused to prosecute and such

failure or refusal constitutes abuse of discretion.

(5) When the president judge in the district having jurisdiction of any

criminal proceeding has reason to believe that the case is a proper one

for the intervention of the Commonwealth, he shall request the

Attorney General to represent the Commonwealth in the proceeding

and to investigate charges and prosecute the defendant. If the Attorney

General agrees that the case is a proper one for intervention, he shall

file a petition with the court and proceed as provided in paragraph (4).

If the Attorney General determines that the case is not a proper case for

intervention, he shall notify the president judge accordingly.

(6) Criminal charges investigated by and referred to him by a

Commonwealth agency arising out of enforcement provisions of the

statute charging the agency with a duty to enforce its provision.

(7) Indictments returned by an investigating grand jury obtained by the

Attorney General.

(8) Criminal charges arising out of activities of the State Medicaid

Fraud Control Unit as authorized by Article XIV (relating to fraud and

abuse control), [A]ct of June 13, 1967 (P.L. 31, No. 21), known as the

“Public Welfare Code,” and the [f]ederal law known as the “Medicare-

Medicaid Antifraud and Abuse Amendments[,]” [see 42 U.S.C. § 1305

note].

71 P.S. § 732-205(a).

30

established that since the [Pennsylvania] Constitution does not prescribe the duties

of the district attorney[,] the legislature may regulate the performance of such

duties and provide for cases in which it would be improper for the elected officer to

act.” Shelley, 2 A.2d at 812 (emphasis added); see also McHale, 97 Pa. at 406 (“[The

General Assembly] can regulate the performance of [the district attorney’s]

duties . . . .”).24 The General Assembly, in Act 40, clearly empowered the special

prosecutor, “notwithstanding any other provision of law[,]” including the CAA. 74

Pa.C.S. § 1786(a)(2).25 “[N]o home rule charter may confer upon a home[ ]rule

municipality ‘power or authority’ that is ‘contrary to or in limitation or enlargement of

powers granted by statutes which are applicable to a class or classes of municipalities.’

53 Pa.C.S. § 2962(a).” Pa. Rest. & Lodging Ass’n, 211 A.3d at 817. Therefore, the

24

Although Shelley and McHale predate the current 1968 Pennsylvania Constitution, like its

predecessor, the current Pennsylvania Constitution similarly does not “prescribe the duties of the

District Attorney.” Shelley, 2 A.2d at 812.

25

Further, to the extent the DA argues that the special prosecutor’s powers under Act 40

conflict with the Attorney General’s limited authority under the CAA, this Court has observed:

[S]ection 1933 of the Statutory Construction Act [of 1972] provides

that:

Whenever a general provision in a statute shall be in

conflict with a special provision in the same or

another statute, the two shall be construed, if possible,

so that effect may be given to both. If the conflict

between the two provisions is irreconcilable, the special

provisions shall prevail and shall be construed as an

exception to the general provision, unless the general

provision shall be enacted later and it shall be the

manifest intention of the General Assembly that such

general provision shall prevail.

1 Pa.C.S. § 1933.

Alpha Fin. Mortg., Inc. v. Redevelopment Auth. of Fayette Cnty., 152 A.3d 375, 381-82 (Pa. Cmwlth.

2016). “Whenever the provisions of two or more statutes enacted finally by different General

Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.” 1 Pa.C.S. §

1936.

31

General Assembly is free to determine district attorney duties not prescribed by the

Pennsylvania Constitution. See Shelley; see also McHale. The DA’s claim must fail

because he did not cite a specific constitutional provision to support his constitutional

challenge.

4. DA Application Claim III -

Act 40 is a Local or Special Law

The DA next contends that Act 40 is a prohibited local or special law,

specifically targeting the City of Philadelphia, the DA, and his office. However, Act

40 does not target the City of Philadelphia, the DA, and the DA’s Office; rather, it is

directed at SEPTA and crimes occurring therein. Article III, section 32 of the

Pennsylvania Constitution provides, in relevant part:

The General Assembly shall pass no local or special law

in any case which has been or can be provided for by general

law and specifically the General Assembly shall not pass any

local or special law:

1. Regulating the affairs of counties, cities, townships, wards,

boroughs[,] or school districts[.]

PA. CONST. art. III, § 32 (emphasis added).

Importantly, Act 40 is not regulating the affairs of Philadelphia, it is

clearly directed at SEPTA. Act 40 protects SEPTA’s employees and the

Commonwealth’s citizenry to whom SEPTA “provid[es] public transportation in and

around the Commonwealth’s largest metropolitan area.” Davis, 980 A.2d at 713. The

Commonwealth controls and operates SEPTA. SEPTA’s enabling statute provides:

“An authority shall in no way be deemed to be an instrumentality of any city or county

or other municipality or engaged in the performance of a municipal function, but shall

exercise the public powers of the Commonwealth as an agency and instrumentality

thereof.” 74 Pa.C.S. §§ 1711(a). Accordingly, Act 40 is not a local or special law.

32

Notwithstanding, even if Act 40 regulated the affairs of Philadelphia or

the DA’s duties, it would be constitutional. Article IX, section 13(b) of the

Pennsylvania Constitution states: “Local and special laws, regulating the affairs of the

City of Philadelphia and creating offices or prescribing the powers and duties of

officers of the City of Philadelphia, shall be valid notwithstanding the provisions of

section thirty-two of [a]rticle III of this Constitution.” PA. CONST. art. IX, § 13(b)

(emphasis added).

Thus,

[s]pecial treatment of the [C]ity of Philadelphia by

legislation, as well as by these constitutional provisions, is

authorized by the constitution, which declares that local and

special laws regulating Philadelphia are valid despite the

general state constitution provision forbidding such

legislation with respect to cities as well as other local units.

23 Summ. Pa. Jur. 2d Municipal and Local Law § 21:27 (2d ed. 2024).

The DA argues that the provisions of article IX, section 13(b) of the

Pennsylvania Constitution do not apply to the instant situation because Act 40 does not

“create offices or prescrib[e] the powers and duties of officers of the City of

Philadelphia[.]” PA. CONST. art. IX, § 13(b). Instead, the DA contends that Act 40

prescribes the special prosecutor’s powers. Merriam-Webster defines “prescribe” as

“to lay down a rule[.]”26 https://www.merriam-webster.com/dictionary/prescribe (last

visited June 14, 2024).

Although Act 40 primarily prescribes the special prosecutor’s powers, it

does address and prescribe the DA’s duties.27 The Pennsylvania Supreme Court has

26

“It is accepted that dictionaries are a source of the common meaning.” Allegheny, 309 A.3d

at 925 n.148.

27

The Dissent essentially ignores this fact by claiming, without any citations to support its

position, that “[e]xisting statutes and the Constitution ‘prescrib[e] the duties and powers’ of the [DA].

Act 40 barely modifies them.” DO, slip op. at 17. To the contrary, it is Act 40’s alleged significant

33

observed: “[D]istrict attorneys in this Commonwealth have the power - and the duty -

to represent the Commonwealth’s interests in the enforcement of its criminal laws.”

Bauer, 261 A.2d at 575 (bold emphasis added). In Act 40, the General Assembly laid

down a rule empowering the special prosecutor to enforce the criminal laws within

SEPTA, and precluding the DA from acting in cases where the special prosecutor acts.

Further, Act 40, inter alia, mandates:

When a special prosecutor asserts preemptive prosecutorial

jurisdiction under this subparagraph, the office of the

district attorney in a county of the first class shall suspend

all investigations and proceedings regarding the matter and

shall turn over to the special prosecutor all materials, files

and other data relating to the matter.

74 Pa.C.S. § 1786 (emphasis added). Accordingly, Act 40 prescribes both the special

prosecutor’s and the DA’s duties. Because Act 40 prescribes the DA’s duties, article

IX, section 13(b) of the Pennsylvania Constitution applies, and exempts Act 40 from

the prohibitions on special legislation.28

modification of the DA’s duties that underlies the DA’s objection to it. These purported

modifications include prescribing the DA’s duties by requiring the DA to cooperate with a special

prosecutor invested with jurisdiction over crimes occurring within SEPTA.

28

The DA also argues that Act 40 violates article III, section 7 of the Pennsylvania

Constitution, which states:

No local or special bill shall be passed unless notice of the intention to

apply therefor shall have been published in the locality where the

matter or the thing to be effected may be situated, which notice shall be

at least thirty days prior to the introduction into the General Assembly

of such bill and in the manner to be provided by law; the evidence of

such notice having been published, shall be exhibited in the General

Assembly, before such act shall be passed.

PA. CONST. art. III, § 7.

This Court’s February 2, 2024 Order reflects that the parties agreed that the instant matter

concerns “only legal issues and that hearings thereon are not necessary . . . .” Feb 2, 2024 Order at

1. Whether the General Assembly issued the required notice is a factual determination that should

have been raised prior to the parties’ agreement. Because the parties have agreed that there are no

disputed facts, the issue is not properly before this Court. Moreover, the DA did not raise this issue

34

5. DA Application Claim IV -

Act 40 Violates Equal Protection Guarantees

The DA next maintains that Act 40 violates equal protection principles

because it gives the special prosecutor greater power over the DA than over other

county district attorneys.

The Pennsylvania Supreme Court has explained:

In Pennsylvania, constitutional equal protection is grounded

in [article III, section 32 of the Pennsylvania Constitution

(Special Legislation),] PA. CONST. [a]rt. III, § 32. We have

repeatedly held that the underlying purpose of this section is

analogous to the equal protection clause of the federal

constitution and that our analysis and interpretation of the

clause should be guided by the same principles that apply in

interpretation of federal equal protection.

DeFazio v. Civ. Serv. Comm’n of Allegheny Cnty., 756 A.2d 1103, 1105 (Pa. 2000); see

also Sheppleman v. City of Chester Aggregated Pension Fund, 271 A.3d 938, 957 (Pa.

Cmwlth. 2021) (“Equal protection under both constitutions are analyzed under the

same standards.”). However, as discussed above, Philadelphia is exempted from the

ban on special legislation.29 See PA. CONST. art. IX, § 13(b).

Article III, section 20 of the Pennsylvania Constitution provides:

The [l]egislature shall have power to classify counties [and]

cities . . . according to population, and all laws passed relating

to each class, and all laws passed relating to, and regulating

procedure and proceedings in court with reference to[] any

in his Petition for Review, or in the DA Application but, rather, raised it for the first time in the

Memorandum of Law in Support of the DA Application.

29

Notwithstanding, the Dissent maintains that “this case is squarely on point with DeFazio[.]”

DO, slip op. at 18. The Dissent supports this claim by merging the DA’s special legislation arguments

with the DA’s equal protections arguments, as well as by looking outside the constitutional

provisions’ text. “[W]hen interpreting constitutional provisions, a court may not disregard the plain

language of [the provision] in favor of ‘a supposed intent.’ League of Women Voters [v.

Commonwealth], 178 A.3d [737,] 802 [(Pa. 2018)]. Nor can a court impose a restraint on legislative

authority that is not contained in the Constitution.” McLinko, 279 A.3d at 578-79. Article IX, section

13(b) of the Pennsylvania Constitution is clear on its face, as is article III, section 20 of the

Pennsylvania Constitution discussed below. Accordingly, DeFazio is inapposite.

35

class[] shall be deemed general legislation within the

meaning of this Constitution.

PA. CONST. art. III, § 20. Thus, a general law is uniform throughout the Commonwealth

or uniform in its application among cities or counties of the same class, while a

special law is not.

Our Supreme Court in Appeal of Torbik[,] . . . 696 A.2d 1141,

1146 ([Pa.] 1997), quoting from Heuchert v. State Harness

Racing Commission, . . . 170 A.2d 332, 336 ([Pa.] 1961),

explained what constituted a special law:

[A] special law is the opposite of a general law.

A special law is not uniform throughout the state

or applied to a class. A general law is. It is well

known that the [l]egislature has classified cities

and counties. A law dealing with all cities or all

counties of the same class is not a special law,

but a general law, uniform in its application.

But a law dealing with but one county of a class

consisting of ten, would be local or special.

Harrisburg Sch. Dist. v. Hickok, 781 A.2d 221, 227 n.7 (Pa. Cmwlth. 2001).

Importantly, the Pennsylvania Supreme Court has declared that

“[l]egislation for a class is not an impermissible special law where the legislative

classification ‘is founded on real distinctions in the subjects classified, and not on

artificial or irrelevant ones.’” Leventhal v. City of Phila., 542 A.2d 1328, 1332 (Pa.

1988) (quoting Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 718 (Pa.

1978)). Here, Act 40 applies uniformly to first class counties, albeit that Pennsylvania

has only one first class county, and addresses a first class countywide concern -

increased criminal activity in the first class county on the countywide transportation

system. As a general law, “a statute may negate a home rule charter when the conflict

involves a matter of statewide magnitude, such as the regulation of firearms.” In re

Appointment of Dist. Att’y, 756 A.2d 711, 714 (Pa. Cmwlth. 2000). Concerns of

criminal activity on SEPTA property both inside and outside of Philadelphia, and its

36

impact on the safety of citizenry and visitors, law enforcement, and the statewide

economy are matters of statewide magnitude.30

Notably,

[e]qual protection principles do not, however, vitiate the

[l]egislature’s power to classify, which necessarily flows

from its general power to enact regulations for the health,

safety, and welfare of the community. Nor do they prohibit

differential treatment of persons having different needs, . . .

provided the classifications at issue bear a reasonable

relationship to a legitimate state purpose. In this regard, a

classification, though discriminatory, will be deemed

reasonable if any state of facts reasonably can be

conceived to sustain it. However, a classification will be

struck down if it is based upon artificial or irrelevant

distinctions used for the purpose of evading the constitutional

prohibition. In undertaking its analysis, a reviewing court is

free to hypothesize reasons the [l]egislature might have had

for the classification.

Harrisburg Sch. Dist. v. Zogby, 828 A.2d 1079, 1088-89 (Pa. 2003) (emphasis added;

citations and footnote omitted).

Moreover, this Court has held:

Where the plaintiff does not allege membership in a protected

class, he may assert an equal protection claim under the

“class of one” theory. Vill[.] of Willowbrook v. Olech, 528

U.S. 562, 564 . . . (2000). A plaintiff bringing a “class of

one” claim must demonstrate that[:] (1) the defendant treated

him differently from others similarly situated; (2) the

defendant did so intentionally; and (3) any differential

treatment was without rational basis. Hill v. Borough of

Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). A “class of one”

claim, like any equal protection claim evaluated under

rational basis review, cannot succeed “if there is any

reasonably conceivable state of facts that could provide a

30

See Schab, 383 A.2d at 830 (“[A] district attorney’s duty to enforce the laws of the

Commonwealth [is] a duty in which all of Pennsylvania’s citizens, no matter where they live, have

an interest.”).

37

rational basis for the classification.” Heller v. Doe, 509 U.S.

312, 320 . . . (1993) (quotation omitted).

Cornell Narberth, LLC v. Borough of Narberth, 167 A.3d 228, 243 (Pa. Cmwlth. 2017).

Unlike in DeFazio, cited by the DA, which involved a second class city,

the law at issue here pertains to Philadelphia, which is exempted from the ban on

special legislation. Further, unlike the law at issue in DeFazio, Act 40 does not treat

the DA differently than other district attorneys merely because he is the Philadelphia

District Attorney. Act 40 creates a special prosecutor because the General Assembly

determined that DA Krasner permitted crime to metastasize within SEPTA, causing a

threat to public safety.31 Act 40, which the General Assembly enacted and Governor

Shapiro signed into law, is the curative response to protect SEPTA’s employees and

patrons. Thus, Act 40 bears a reasonable relationship to a legitimate state interest which

constitutes a rational basis for the classification. Accordingly, Act 40 does not clearly,

palpably, and plainly violate the Pennsylvania Constitution’s equal protection

guarantees.

6. DA Application Claim V -

Special Prosecutor Lack of Accountability

The DA next argues that “[t]he [s]pecial [p]rosecutor is not accountable to

the citizens of Philadelphia or any other county. By its terms, Act 40 does not even

make the [s]pecial [p]rosecutor accountable to the Attorney General or anyone else.

This is an unaccountable, lone ranger [s]pecial [p]rosecutor . . . .”32 DA Br. at 46.

31

See Select Committee on Restoring Law and Order, Second Interim Report, (October 24,

2022),

https://www.pahousegop.com/Display/SiteFiles/1/2022/Select%20Committee%20on%20Restoring

%20Law%20and%20Order%202ndInterim%20Report%20102422.pdf (last visited June 14, 2024).

32

The DA also claims “Act 40’s [s]pecial [p]rosecutor does not even have to take an oath to

uphold the Constitution.” DA Br. at 47. Despite that Act 40 does not state whether the special

prosecutor will be subject to an oath, article VI, section 3 of the Pennsylvania Constitution states:

38

The DA does not cite to a specific constitutional provision to support his

claim that Act 40 is unconstitutional on the grounds that it calls for the appointment of

an unaccountable special prosecutor. Nor does the DA cite any authority that special

prosecutors appointed by the Attorney General must be elected. In addition, article VI,

section 1 of the Pennsylvania Constitution provides: “All officers, whose selection is

not provided for in this Constitution, shall be elected or appointed as may be directed

by law.” PA. CONST. art. VI, § 1. Act 40 directs the Attorney General to appoint the

special prosecutor.

Despite that Act 40 does not declare to whom the special prosecutor is

accountable, article VI, section 7 of the Pennsylvania Constitution specifies, in relevant

part:

All civil officers shall hold their offices on the condition that

they behave themselves well while in office, and shall be

removed on conviction of misbehavior in office or of any

infamous crime. Appointed civil officers . . . may be

removed at the pleasure of the power by which they shall

have been appointed.

Senators, Representatives and all judicial, [s]tate and county officers

shall, before entering on the duties of their respective offices, take and

subscribe the following oath or affirmation before a person authorized

to administer oaths.

“I do solemnly swear (or affirm) that I will support,

obey and defend the Constitution of the United States

and the Constitution of this Commonwealth and that I

will discharge the duties of my office with fidelity.”

The oath or affirmation shall be administered to a member of the Senate

or to a member of the House of Representatives in the hall of the House

to which he shall have been elected.

Any person refusing to take the oath or affirmation shall forfeit his

office.

PA. CONST. art. VI, § 3 (emphasis added).

39

PA. CONST. art. VI, § 7 (emphasis added). The Attorney General’s Act 40 appointment

power is the “power by which [the special prosecutor has] been appointed.” Id. Thus,

the Attorney General, pursuant to article VI, section 7 of the Pennsylvania Constitution,

may remove the special prosecutor. In addition, Act 40 reflects: “If a vacancy in office

arises by reason of the resignation, death[,] or removal for any other reason of a special

prosecutor, the Attorney General shall appoint a replacement within 30 days.” 74

Pa.C.S. § 1786(a)(6). Thus, the special prosecutor is appointed by statute and is

accountable to and may be removed by the Attorney General. The DA’s claim must

fail because he did not cite a specific constitutional provision to support his

constitutional challenge.

7. DA Application Claim VI -

Act 40 Violates CHRIA

The DA additionally asserts that Act 40 is unenforceable because it

violates CHRIA by requiring the DA to disseminate information to the special

prosecutor not based upon a name, fingerprints, modus operandi, genetic typing, voice

print, or other identifying characteristic. See Pet. for Rev. ¶¶ 156-162.

Act 40 declares, in pertinent part:

A special prosecutor may assert preemptive prosecutorial

jurisdiction over any criminal actions or proceedings

involving alleged violations of the laws of this

Commonwealth occurring within [SEPTA] in [Philadelphia

County]. The following shall apply:

....

(iv) When a special prosecutor asserts preemptive

prosecutorial jurisdiction under this subparagraph, the [DA]

shall suspend all investigations and proceedings regarding

the matter and shall turn over to the special prosecutor all

materials, files[,] and other data relating to the matter.

74 Pa.C.S. § 1786(a)(4) (emphasis added).

40

CHRIA “appl[ies] to persons within this Commonwealth and to any

agency of the Commonwealth or its political subdivisions which collects, maintains,

disseminates[,] or receives criminal history record information.” 18 Pa.C.S. § 9103.

“As a matter of law, CHRIA prohibits disseminating ‘investigative information’ to any

persons or entities other than criminal justice agents and agencies. 18 Pa.C.S. §

9106(c)(4).” Cal. Borough v. Rothey, 185 A.3d 456, 467 (Pa. Cmwlth. 2018). Section

9102 of CHRIA defines investigative information as “[i]nformation assembled as a

result of the performance of any inquiry, formal or informal, into a criminal incident or

an allegation of criminal wrongdoing[,] and may include modus operandi information.”

18 Pa.C.S. § 9102.

Specifically, Section 9106(c)(4) of CHRIA states:

Investigative . . . information shall not be disseminated to

any department, agency[,] or individual unless the

department, agency[,] or individual requesting the

information is a criminal justice agency which requests the

information in connection with its duties, and the request is

based upon a name, fingerprints, modus operandi,

genetic typing, voice print[,] or other identifying

characteristic.

18 Pa.C.S. § 9106(c)(4) (bold and underline emphasis added).

CHRIA defines criminal justice agency as

Any court, including the minor judiciary, with criminal

jurisdiction or any other governmental agency, or subunit

thereof, created by statute or by the [s]tate or [f]ederal

constitutions, specifically authorized to perform as its

principal function the administration of criminal justice,

and which allocates a substantial portion of its annual budget

to such function. Criminal justice agencies include, but are

not limited to: . . . district or prosecuting attorneys, . . . and

such agencies or subunits thereof[] as are declared by the

Attorney General to be criminal justice agencies . . . .

18 Pa.C.S. § 9102 (emphasis added).

41

CHRIA further defines administration of criminal justice as “[t]he

activities directly concerned with the prevention, control or reduction of crime, the

apprehension, detention, pretrial release, post-trial release, prosecution, adjudication,

correctional supervision or rehabilitation of accused persons or criminal offenders;

criminal identification activities; or the collection, storage dissemination or usage of

criminal history record information.” Id. (emphasis added). As the special prosecutor

is created by statute (and appointed by the Attorney General33), and specifically

authorized to perform the function of prosecuting accused persons or criminal

offenders, the special prosecutor is by definition a subunit of a criminal justice agency.

Thus, the DA would not violate CHRIA by disseminating investigative information to

the special prosecutor.

However, Section 9106(c)(4) of CHRIA limits the information the DA

may disseminate to another criminal justice agency to “name, fingerprints, modus

operandi, genetic typing, voice print[,] or other identifying characteristic[,]” 18 Pa.C.S.

§ 9106(c)(4), while Act 40 requires the DA to provide “all materials, files[,] and other

data relating to” investigations and proceedings within SEPTA. 74 Pa.C.S. §

1786(a)(4)(iv). While SEPTA asserts that these statutory provisions are not in conflict

and can be read in pari materia, Act 40 clearly specifies that “[n]otwithstanding any

other provision of law or regulation, . . . [t]he special prosecutor’s . . . [i]nvestigative

33

Moreover, under Section 9161 of CHRIA, the Attorney General

shall have the power and authority to: (1) [e]stablish rules and

regulations for criminal history record information with respect to

security, completeness, accuracy, individual access and review, quality

control and audits of repositories. . . . [and] (5) [c]onduct annual audits

of the central repository and of a representative sample of all

repositories within the Commonwealth, collecting, compiling,

maintaining[,] and disseminating criminal history record information.

18 Pa.C.S. § 9161.

42

and prosecutorial functions and powers shall include . . . [r]eviewing all documentary

evidence available from any source.” 74 Pa.C.S. § 1786(a)(2)(i)(D).

[S]ection 1933 of the Statutory Construction Act [of 1972]

provides that:

Whenever a general provision in a statute shall

be in conflict with a special provision in the

same or another statute, the two shall be

construed, if possible, so that effect may be

given to both. If the conflict between the two

provisions is irreconcilable, the special

provisions shall prevail and shall be construed

as an exception to the general provision, unless

the general provision shall be enacted later and

it shall be the manifest intention of the General

Assembly that such general provision shall

prevail.

1 Pa.C.S. § 1933.

Alpha Fin. Mortg., Inc. v. Redevelopment Auth. of Fayette Cnty., 152 A.3d 375, 381-82

(Pa. Cmwlth. 2016). “Whenever the provisions of two or more statutes enacted finally

by different General Assemblies are irreconcilable, the statute latest in date of final

enactment shall prevail.” 1 Pa.C.S. § 1936. Because Act 40 is later in time and more

specific, this Court must presume that the General Assembly intended that Act 40

prevail over the conflicting CHRIA provisions to permit the special prosecutor to

obtain “all documentary evidence available from any source.” 74 Pa.C.S. §

1786(a)(2)(i)(D) (emphasis added). Accordingly, Act 40 is not unenforceable because

it violates CHRIA.

8. DA Application Claim VII -

Act 40 Impairs the Effective Prosecution of Criminal Defendants

Finally, the DA asserts that Act 40’s prohibition on criminal defendants

challenging the special prosecutor’s authority is an unconstitutional violation of their

43

rights to raise arguments in their defense and will thus impair the effective prosecution

of such defendants. See Pet. for Rev. ¶¶ 163-168.

Specifically, Act 40 declares:

No person charged with a violation of the law by a special

prosecutor shall have standing to challenge the authority of

the special prosecutor to prosecute the case. If a challenge is

made, the challenge shall be dismissed[,] and no relief shall

be available in the courts of this Commonwealth to the

individual making the challenge.

74 Pa.C.S. § 1786(a)(5).

The DA claims in the Petition for Review:

165. Act 40 is [] unconstitutional in violating criminal

defendants’ right[s] to raise arguments in their defense. See,

e.g., Holt v. Commonwealth of V[a.], 381 U.S. 131, 136

(1965) (“The right to be heard must necessarily embody a

right to file motions and pleadings essential to present claims

and raise relevant issues.”).

166. As a consequence, prosecutions by an Act 40 [s]pecial

[p]rosecutor would vastly complicate prosecutions of crimes

within SEPTA in Philadelphia and likely lead to the

dismissal of charges or convictions for crimes committed

within SEPTA in Philadelphia.

Pet. for Rev. ¶¶ 165-166.

In his brief, the DA adds that Act 40 violates article I, section 9 of the

Pennsylvania Constitution, which states:

In all criminal prosecutions the accused hath a right to be

heard by himself and his counsel, to demand the nature and

cause of the accusation against him, to be confronted with the

witnesses against him, to have compulsory process for

obtaining witnesses in his favor, and, in prosecutions by

indictment or information, a speedy public trial by an

impartial jury of the vicinage; he cannot be compelled to give

evidence against himself, nor can he be deprived of his life,

liberty or property, unless by the judgment of his peers or the

law of the land. The use of a suppressed voluntary admission

44

or voluntary confession to impeach the credibility of a person

may be permitted and shall not be construed as compelling a

person to give evidence against himself.

PA. CONST. art. I, § 9.

As explained, supra, the DA has no standing to raise arguments for

criminal defendants.34 In addition, the DA’s argument that Act 40’s statutory scheme

34

The Concurrence/Dissent also concludes that the DA has standing to assert criminal

defendants’ due process rights to challenge Act 40. Importantly, Act 40 does not deprive a criminal

defendant of any right to defend against the legal arguments and evidence establishing the elements

of the crime. Nonetheless, relying on Pennsylvania Rule of Professional Conduct (RPC) 3.8, the

Concurrence/Dissent maintains that the DA has an ethical obligation to ensure that defendants are

afforded their rights. However, nowhere in RPC 3.8 does it state that prosecutors are in fact

responsible for asserting a criminal defendant’s rights. Moreover, RPC 3.8, by its express terms,

applies to “[t]he prosecutor in a criminal case[.]” Pa.R.P.C. 3.8 (emphasis added). RPC 3.8

provides:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not

supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised

of the right to, and the procedure for, obtaining counsel and has been

given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of

important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of the accused or

mitigates the offense, and, in connection with sentencing, disclose to

the defense and to the tribunal all unprivileged mitigating information

known to the prosecutor, except when the prosecutor is relieved of this

responsibility by a protective order of the tribunal; and

(e) except for statements that are necessary to inform the public of the

nature and extent of the prosecutor’s action and that serve a legitimate

law enforcement purpose, refrain from making extrajudicial comments

that have a substantial likelihood of heightening public condemnation

of the accused and exercise reasonable care to prevent investigators,

law enforcement personnel, employees or other persons assisting or

associated with the prosecutor in a criminal case from making an

45

will “likely lead to the dismissal of charges or convictions” is entirely speculative. Pet.

for Rev. ¶ 166. “[A] constitutional challenge cannot be sustained on the basis of

supposition and speculation as to future events.” Ramey Borough v. Commonwealth,

Dep’t of Env’t Res., 327 A.2d 647, 650 (Pa. Cmwlth. 1974), aff’d, 351 A.2d 613 (Pa.

1976); see also Hoolick v. Retreat State Hosp., 354 A.2d 609 (Pa. Cmwlth. 1976).

Accordingly, the DA’s constitutional challenge relating to criminal defendants fails.

extrajudicial statement that the prosecutor would be prohibited from

making under [RPC] 3.6 or this Rule.

Pa.R.P.C. 3.8. Nothing in RPC 3.8 or its Explanatory Comment states or in any way implies that

a district attorney has an affirmative duty to proactively protect the rights of potential future

defendants - unindicted persons - from prosecution in a possible criminal action by a prosecutor

appointed by the General Assembly.

Further, to assert standing, a “putative plaintiff [must] demonstrate[] that []he is ‘aggrieved,’

by establishing a substantial, direct and immediate interest in the outcome of the litigation.”

Allegheny, 309 A.3d at 832 (emphasis added). To the extent that some duty under RPC 3.8 exists

with respect to defendants charged “in a criminal case[,]” Pa.R.P.C. 3.8 (emphasis added), and the

DA is aggrieved thereby, and, thus, has standing to assert criminal defendants’ due process rights in

cases in which the DA has jurisdiction, there is no such aggrievement and corresponding standing in

cases in which the DA will lack jurisdiction, such as those the special prosecutor chooses to prosecute.

This Court has explained:

Because the elements of standing “are not mere pleading requirements

but rather an indispensable part of the plaintiff’s case, each element

must be supported in the same way as any other matter on which the

plaintiff bears the burden of proof, i.e., with the manner and degree of

evidence required at the successive stages of the litigation.”

Muth v. Dep’t of Env’t Prot., ___ A.3d ___, ___ (Pa. Cmwlth. No. 1346 C.D. 2922, filed April 16,

2024) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Here, the

Concurrence/Dissent seeks to impose a duty based solely on Pennsylvania’s Rules of Professional

Conduct for the purpose of finding that the DA is aggrieved by a possible future prosecution of an

undetermined criminal defendant in which the DA will not be involved, but does not explain how

the DA’s interest is “substantial, direct[,] and immediate.” Allegheny, 309 A.3d at 808. There is no

such interest. Accordingly, because the DA is not aggrieved, he lacks standing to assert future

criminal defendants’ due process rights to challenge Act 40.

46

C. Preliminary Injunctions

In his PI Petition, the DA seeks a preliminary injunction enjoining the

Attorney General from implementing Act 40. Given this Court’s disposition of the

above arguments, the DA’s PI Petition and Supplemental PI are moot.

III. Conclusion

For all of the above reasons, this Court grants the Intervention Petition and

grants in part and denies in part SEPTA’s Application consistent with this Opinion.

Further, this Court holds that Act 40 does not clearly, palpably, and plainly violate the

Pennsylvania Constitution and therefore denies the DA Application and grants the

Attorney General Application. In addition, this Court denies the PI Petition and

Supplemental PI as moot.35

_________________________________

ANNE E. COVEY, Judge

Judge Wallace did not participate in the decision in this matter.

35

Given this Court’s disposition of the Cross-Applications, it does not reach the remaining

issues in the SEPTA Application.

47

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Larry Krasner, in his official capacity :

as the District Attorney of Philadelphia; :

Office of the District Attorney, City of :

Philadelphia, :

Petitioners :

:

v. :

:

Michelle A. Henry, in her :

official capacity as Attorney :

General of Pennsylvania, : No. 8 M.D. 2024

Respondent :

ORDER

AND NOW, this 14th day of June, 2024, this Court: (1) GRANTS the

Southeastern Pennsylvania Transportation Authority’s (SEPTA) petition to intervene;

(2) GRANTS IN PART and DENIES IN PART SEPTA’s Application for Summary

Relief consistent with this Opinion; (3) DENIES the Application for Summary Relief

filed by Larry Krasner, in his official capacity as the District Attorney of Philadelphia,

and the Office of the District Attorney, City of Philadelphia (collectively, DA); (4)

GRANTS the Application for Summary Relief filed by Michelle A. Henry, in her

official capacity as Attorney General of Pennsylvania; and (5) DENIES the DA’s

Petition for Preliminary Injunction and Emergency Supplemental Application for

Preliminary Injunction as moot.

_________________________________

ANNE E. COVEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Larry Krasner, in his official :

capacity as the District Attorney :

of Philadelphia; Office of the :

District Attorney, City of :

Philadelphia, :

Petitioners :

:

v. :

:

Michelle A. Henry, in her :

official capacity as Attorney :

General of Pennsylvania, : No. 8 M.D. 2024

Respondent : Argued: April 10, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MATTHEW S. WOLF, Judge

CONCURRING AND DISSENTING OPINION

BY JUDGE FIZZANO CANNON FILED: June 14, 2024

I concur with the majority opinion, in part, but respectfully dissent to

the extent that the majority rejects entirely the constitutional challenges asserted by

the current District Attorney of Philadelphia (DA) to the Act of December 14, 2023,

P.L. 369, No. 40, 74 Pa.C.S. § 1786 (Act 40). This dissenting opinion takes no

position on the policies or conduct of the DA or the General Assembly’s interest in

enacting legislation that impacts the DA’s office. Rather, I conclude that Act 40

improperly delegates the General Assembly’s legislative authority, and I would

grant summary relief for the DA on that basis. I further conclude that Act 40’s

deprivation of a criminal defendant’s ability to challenge the jurisdiction of the

Special Prosecutor violates due process.

Improper Delegation of Legislative Authority

The DA challenges, as impermissibly vague, Act 40’s provision

conferring on the Special Prosecutor jurisdiction over crimes occurring “within a

public transportation authority . . . ” in a county of the first class, i.e., “within” the

Southeastern Pennsylvania Transportation Authority (SEPTA). 74 Pa.C.S. § 1786(a)(2).

The DA has not raised a constitutional void-for-vagueness claim as such; indeed,

this Court has explained that “the void-for-vagueness doctrine applies only to penal

statutes.” Melton v. Beard, 981 A.2d 361, 364 (Pa. Cmwlth. 2009); see also Hill v.

Pa. Dep’t of Corr. (Pa. Cmwlth., No. 405 M.D. 2014, filed July 13, 2015), slip op.

at 8, aff’d per curiam, 131 A.3d 986 (Pa. 2016)1 (citing Melton). However, improper

vagueness of the word “within,” as used in Act 40, is asserted and preserved as an

issue in the context of challenging the Special Prosecutor’s unfettered discretion.

The DA aptly describes the vagueness difficulty with Act 40 as follows:

Act 40 sets aside broad territorial jurisdiction for the

appointed Special Prosecutor, who will “investigate and

institute criminal proceedings for a violation of the laws of

this Commonwealth occurring within a public

transportation authority.” [74 Pa.C.S.] § 1786(a) & (a)(2)

(emphasis added). Although Act 40 repeatedly uses the

phrase “occurring within a public transportation

authority,” it does not define that phrase. See, e.g., [74

Pa.C.S.] § 1786(a) & (a)(2). The law’s vagueness on this

central question – the breadth of the Special Prosecutor’s

territorial jurisdiction – is one of many things that dooms

the law. For example, does the Special Prosecutor’s

authority extend only to SEPTA headquarters, stations,

trains and buses? What about at SEPTA’s bus stops, bus

routes, train tracks and countless rights[-]of[-]way[]

throughout Philadelphia and the region?

Pet. for Rev., Ex. 5 at 7 (emphasis added). Indeed, the majority opinion, while

providing a lengthy history of the creation and purpose of SEPTA, provides no

1

This unpublished case is cited for its persuasive value pursuant to Section 414(a) of this

Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).

CFC - 2

explanation of what “within” SEPTA means. The DA argues that the scope of the

power conferred on the Special Prosecutor in Act 40 impermissibly gives the Special

Prosecutor complete discretion to determine the meaning of “within a public transit

authority,” i.e., “within” SEPTA. That argument is fairly and properly understood

as challenging the General Assembly’s impermissible delegation of its legislative

authority.2

“[A] statute must prescribe ‘with reasonable clarity the limits of power

delegated . . .’”; where it fails to do so, it is open to challenge for vagueness as “an

2

I disagree with the majority’s characterization of this point as raising an argument for a

party sua sponte. There are no magic words required to assert a constitutional non-delegation

argument. As the Superior Court has observed,

while constitutional and statutory-based claims can be waived,

courts are not required to view only the specific rules, statutes, or

cases cited by a party. If an assertion raised by a party can fairly be

said to implicate a rule of law or legal precedent known by a court

to be applicable, it is not foreclosed from considering that legal

precept solely because that precise case, rule, or statute was not cited.

In re T.P., 78 A.3d 1166, 1171 (Pa. Super. 2013) (citing Commonwealth v. Hernandez, 935 A.2d

1275, 1290 n. 3 (Pa. 2007) (Castille, J., concurring)). (This case is cited as persuasive authority

pursuant to Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545 (Pa. Cmwlth. 2018).) See

also Heinly v. Com., 621 A.2d 1212, 1217 (Pa. Cmwlth.1993) (finding that complaint sufficiently

alleged a claim under 42 U.S.C. § 1983, although the complaint did not specify the constitutional

rights that were allegedly violated, where the facts as pleaded were sufficient to implicate federal

rights guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution).

The non-delegation doctrine aims as preventing the legislature from abdicating its

constitutional legislative responsibility by conferring upon a person or entity not within the

legislature’s control or oversight unfettered discretion to make unilateral policy or legislative

decisions. See City of Lancaster v. Pa. Pub. Util. Comm’n, 313 A.3d 1020, 1025 (Pa. 2024)

(explaining that a statute violates the non-delegation doctrine when it allows an improper transfer

of legislative power, lacks basic policy direction, or fails to set adequate standards to guide the

delegated authority) (quoting City of Lancaster v. Pa. Pub. Util. Comm’n, 284 A.3d 522, 528 (Pa.

Cmwlth. 2022); Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827, 833-

34 (Pa. 2017)) (additional citations omitted). That is exactly what Act 40 does by allowing the

Special Prosecutor to decide what is “within” SEPTA, and this is the fair import of the DA’s

argument.

CFC - 3

impermissible delegation of legislative power.” Archer v. Rockwood Area Sch.

Dist., 249 A.3d 617, 624 (Pa. Cmwlth. 2021) (quoting In re Weaverland Indep. Sch.

Dist., 106 A.2d 812, 813-14 (Pa. 1954)). Both our Supreme Court and this Court

have reasoned that a statute may survive a vagueness challenge where “the

comprehensive words of the statute . . . convey concrete impressions to the ordinary

person . . . .” Pinnacle Health Sys. v. Dep’t of Pub. Welfare, 942 A.2d 189, 192 (Pa.

Cmwlth. 2008) (quoting Commonwealth v. West, 411 A.2d 537, 540 (Pa. Super.

1979) (additional citation omitted)).

Here, Act 40’s reference to crimes occurring “within” SEPTA is

impermissibly vague in prescribing the extent to which the Special Prosecutor may

preempt the DA’s jurisdiction. SEPTA is an agency. It is an entity. It is not a

specific place or a tangible thing. The meaning of “within” in relation to SEPTA

conveys no concrete impression to the ordinary person; it is simply

incomprehensible. There is no way to determine what property falls “within a public

transportation authority . . . ,” i.e., “within” SEPTA. This undefined scope of

jurisdiction does not set a policy or provide any guidance for when the Special

Prosecutor may act by either geographical location, type of crime committed, or

otherwise. There is no way for the Attorney General (AG), the Special Prosecutor,

SEPTA, or the DA to determine how the legislature intended that term to apply. As

the DA points out, Act 40 does not define whether “within” SEPTA includes any or

all of SEPTA headquarters, stations, trains, buses, bus stops, bus routes, train tracks,

and rights-of-way. Similarly, Act 40 does not specify whether crimes in locations

such as property leased to SEPTA, crimes on property subject to easements in favor

of SEPTA, crimes commenced in one location and completed in another, or crimes

where alleged perpetrators act in one location and flee to another, are crimes

committed “within” SEPTA.

As this Court has explained,

CFC - 4

when the General Assembly assigns any authority or

discretion to execute or administer a law, “the Constitution

imposes two fundamental limitations. First, . . . the

General Assembly must make ‘the basic policy choices,’

and second, the legislation must include ‘adequate

standards which will guide and restrain the exercise of the

delegated administrative functions.’” [Protz v. Workers’

Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827

(Pa. 2017)] (quoting [Pennsylvanians Against Gambling

Expansion Fund, Inc. v. Commonwealth], 877 A.2d [383,]

418 [Pa. 2005]). As the [Pennsylvania Supreme] Court

observed . . . , a permissible delegation of legislative

authority must “include concrete measures to channel the

[delegatee’s] discretion, . . . safeguards to protect against

arbitrary, ad hoc decision making, such as a requirement

that the [delegatee] hold hearings, allow for public notice

and comment, or explain the grounds for its [decisions] in

a reasoned opinion subject to judicial review.” [Protz],

161 A.3d at 835 (citing and discussing W. Phila.

Achievement Charter Elementary Sch. v. Sch. Dist. of

Phila., 132 A.3d 957 (Pa. 2016)).

Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1227 (Pa. Cmwlth.

2018). Here, Act 40 gives the Special Prosecutor unfettered discretion with no

guidance from the legislature, contrary to Phantom Fireworks and Protz.

Accordingly, I would grant summary relief on this claim.3

Criminal Defendants’ Due Process Rights

Contrary to the AG’s argument, the DA has standing in this matter to

assert criminal defendants’ due process rights regarding Act 40. The AG argues,

without citing any authority, that “[i]f the [DA] is doing his job, his interests – as

prosecutor – are directly adverse to the interests of criminal defendants [and his]

only interests would be in prosecuting those same defendants for crimes.” Br. of

AG at 32. This assertion constitutes a serious mischaracterization of a prosecutor’s

role. Rule 3.8 of the Pennsylvania Rules of Professional Conduct imposes special

3

I do not address the other claims made by the DA as I find the improper delegation of

legislative authority to be a fatal defect of Act 40.

CFC - 5

obligations on prosecutors and includes an Explanatory Comment explaining that

“[a] prosecutor has the responsibility of a minister of justice and not simply that of

an advocate. This responsibility carries with it specific obligations to see that the

defendant is accorded procedural justice . . . .” Pa.R.P.C. 3.8, Explanatory

Comment 1 (emphasis added); see also Commonwealth v. Clancy, 192 A.3d 44, 52-

53 (Pa. 2018) (explaining that “[t]he prosecutor must ensure that ‘the defendant is

accorded procedural justice . . .’”) (first quoting Pa.R.P.C. 3.8 cmt. 1; then citing

MODEL RULES OF PRO. CONDUCT 3.8 cmt. 1 (AM. BAR ASS’N 2015)). Similarly, our

Supreme Court has observed that

[b]ecause it is her duty both to respect the rights of the

defendant and to enforce the interests of the public, the

prosecutor “is in a peculiar and very definite sense the

servant of the law, the twofold aim of which is that guilt

shall not escape or innocence suffer . . . .”

Clancy, 192 A.3d at 52 (quoting Berger v. U.S., 295 U.S. 78, 88 (1935)).

Act 40 expressly provides that criminal defendants cannot assert any

challenge to the Special Prosecutor’s exercise of jurisdiction over their cases.

However, improper exercise of jurisdiction over criminal defendants and their cases

would violate their due process rights. Therefore, the DA has standing to challenge

legislation that infringes the procedural constitutional rights of criminal defendants.

Moreover, although “one ordinarily has no standing to vindicate the

constitutional rights of third persons,” the United States Supreme Court in Singleton

v. Wulff, 428 U.S. 106 (1976) isolated two elements that could create an exception:

“(1) the relationship of the litigant to the third party is such that enjoyment of the

right by the third party is inextricably bound up with the activity the litigant seeks to

pursue; and (2) there is some obstacle to the third party’s assertion of his own right.”

Phila. Facilities Mgmt. Corp. v. Biester, 431 A.2d 1123, 1131-32 (Pa. Cmwlth.

1981) (citing Singleton) (additional citation omitted).

CFC - 6

As discussed above, a prosecutor has a responsibility to protect the

constitutional rights of criminal defendants. Therefore, safeguarding defendants’

procedural rights is inextricably bound up with the DA’s professional activities.

Indeed, he arguably has an affirmative duty to challenge the validity of legislation

that infringes the constitutional rights of criminal defendants. Accordingly, the first

Singleton factor is met here.

As for the second factor, the obstacle to criminal defendants’ assertion

of their own constitutional rights is evident on the face of Act 40, in its provision

precluding any criminal defendant from challenging the Special Prosecutor’s

takeover of the prosecution of the defendant’s case. 74 Pa.C.S. § 1786(a)(5). Thus,

the second Singleton factor is also met here. Accordingly, the DA also has standing

under Singleton and Biester.

Regarding the merits of the DA’s argument, he is correct that this

provision facially violates article I, section 9 of the Pennsylvania Constitution, which

provides that “[i]n all criminal prosecutions the accused hath a right to be heard by

himself and his counsel.” PA. CONST. art. I, § 9. It also improperly limits judicial

scrutiny, in violation of article V, section 1, which vests the judicial power of the

Commonwealth in the Unified Judicial System. PA. CONST. art. V, § 1; accord

Robinson Twp., Wash. Cnty. v. Commonwealth, 83 A.3d 901 (Pa. 2013) (upholding

judicial authority to review a statute’s constitutionality and observing, inter alia, that

“the Commonwealth [did] not identify any provision of the Constitution which

grants it authority to adopt non-reviewable statutes . . .”). Act 40 facially and

improperly restricts a defendant’s right to challenge its constitutionality.

Moreover, notwithstanding that the Special Prosecutor’s authority

extends only to crimes committed “within” SEPTA, 74 Pa.C.S. § 1786(a)(2), that

limit is meaningless if no defendant can challenge the Special Prosecutor’s authority

on the basis that the alleged crime was not committed within SEPTA. This is

CFC - 7

particularly so because whether a given crime is “within” SEPTA is

incomprehensibly vague; if no defendant can question its application, the Special

Prosecutor will, practically speaking, have sole discretion as to its meaning and

breadth, without the possibility of judicial review. Accordingly, Act 40 is

unconstitutional.4

For these reasons, I respectfully dissent in part from the majority

opinion.

___________________________________

CHRISTINE FIZZANO CANNON, Judge

President Judge Cohn Jubelirer joins in this concurring and dissenting opinion.

4

If this were Act 40’s only constitutional infirmity, I would agree with the majority that

this provision is severable. However, as I find the statute’s improper delegation of legislative

authority to be a fatal defect, severing this provision cannot save Act 40.

CFC - 8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Larry Krasner, in his official capacity :

as the District Attorney of Philadelphia; :

Office of the District Attorney, City of :

Philadelphia, :

Petitioners :

:

v. : No. 8 M.D. 2024

:

Michelle A. Henry, in her :

official capacity as Attorney :

General of Pennsylvania, :

Respondent : Argued: April 10, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MATTHEW S. WOLF, Judge

DISSENTING OPINION

BY JUDGE WOLF FILED: June 14, 2024

I agree with the learned Majority’s dispositions of standing, ripeness,

and the intervention of the Southeastern Pennsylvania Transportation Authority

(SEPTA). But I must respectfully dissent from the Majority’s conclusion that the

Act of December 14, 2023, P.L. 369, No. 40, 74 Pa.C.S. § 1786 (Act 40), survives

the constitutional challenges presented here. After careful review, I conclude that

Act 40 unconstitutionally divests Philadelphia County District Attorney Larry

Krasner (District Attorney Krasner) of his territorial jurisdiction and his core

function as the official elected by the people of Philadelphia to prosecute crime.

Further, I believe Act 40 violates the equal protection guarantees of the Pennsylvania

Constitution and is an unconstitutional special law, notwithstanding that it applies to

Philadelphia.

I. Territorial Jurisdiction and Prosecutorial Function (Claims I and II)

The Majority correctly notes1 the presumption of constitutionality, and

that we uphold a law unless it “clearly, palpably, and plainly” violates the

Constitution. DeFazio v. Civ. Serv. Comm’n of Allegheny Cnty., 756 A.2d 1103,

1105 (Pa. 2000). The Court’s duty is to assess whether the challenger has overcome

that presumption. Germantown Cab Co. v. Phila. Parking Auth., 206 A.3d 1030,

1041 (Pa. 2019). To do so, courts interpret the Pennsylvania Constitution using its

plain language, which is “the embodiment of the will of the voters who adopted it”

and the best indication of how they understood its meaning, which controls.

Allegheny Reprod. Health Ctr. v. Pa. Dep’t of Hum. Servs., 309 A.3d 808, 849

(Pa. 2024) (quoting Washington v. Dep’t of Pub. Welfare, 188 A.3d 1135, 1144

(Pa. 2018)). Courts also consider history, constitutional structure, and, to some

extent, prior judicial decisions for guidance and context in interpreting the text. See

id. at 869, 881-82; McLinko v. Dep’t of State, 279 A.3d 539, 581 (Pa. 2022), cert.

denied sub nom. Bonner v. Chapman, 143 S. Ct. 573 (2023); McLinko, 279 A.3d

at 583 (Wecht, J., concurring) (“The value of consistency in constitutional

interpretation militates in favor of preserving and faithfully applying this Court’s

past interpretations of our Constitution.”).

Local prosecution of crime is so obvious, so engrained in

Pennsylvania’s (and every other State’s) constitutional text and structure, that our

courts have rarely explained it. Article IX, Section 4 of the Pennsylvania

Constitution requires that “[c]ounty officers shall consist of . . . district attorneys.”

1

Maj. Op. at 17-18.

MSW-2

PA. CONST. art. IX, § 4. “A district attorney is a constitutional officer, elected by the

people of the county which he serves.” McGinley v. Scott, 164 A.2d 424, 431

(Pa. 1960); see also Commonwealth v. Wardlaw, 249 A.3d 937, 954 (Pa. 2021)

(Dougherty, J., concurring) (collecting constitutional and statutory bases for district

attorneys, and explaining that “[t]hese district attorneys and their assistants generally

prosecute criminal cases which arise in the county from which the district attorney

is elected”); Commonwealth ex rel. Krasner v. Att’y Gen., 309 A.3d 265, 276

(Pa. Cmwlth. 2024) (reviewing history of district attorneys in Pennsylvania and

opining that “district attorneys are the primary authority for criminal prosecution”

with only “very specific exceptions”).

This remains true in Philadelphia notwithstanding the City’s

consolidation with the County of Philadelphia and adoption of Philadelphia’s home

rule charter (Charter). Post-consolidation, Article IX (relating to local government)

was amended in the 1968 Convention to “except a county which has adopted a home

rule charter” from provisions regulating the selection and pay of county officers.

PA. CONST. art. IX, § 4. Philadelphia kept the power to select the constitutional

officers it had before, but would now do so by virtue of its Charter. PA. CONST.

art. II, § 2; Pa. Rest. & Lodging Ass’n v. City of Pittsburgh, 211 A.3d 810, 816-17

(Pa. 2019). The way of choosing and regulating those officers may have changed to

be subject to the Charter, but the fundamental constituent offices and their

functions—including locally elected district attorneys prosecuting crime—did not.

See Lennox v. Clark, 93 A.2d 834, 837-41 (Pa. 1953).

The Philadelphia District Attorney has a constitutional role—textually,

structurally, historically—long discussed by our courts, more fundamental than the

Charter. In fact, our Supreme Court has already concluded that “the [Philadelphia

MSW-3

D]istrict [A]ttorney is essentially a state officer whose powers, duties and functions

are not affected by the Charter.” Com. ex rel. Specter v. Freed, 228 A.2d 382, 386

(Pa. 1967); see also Com. ex rel. Specter v. Martin, 232 A.2d 729, 736 (Pa. 1967)

(“[T]he District Attorney of Philadelphia does not perform any municipal functions

and his duties involve only his representation of the Commonwealth.”) (plurality

op.). The Justices in Freed and Martin fractured over a smaller question not at issue

here: whether the City—or only the General Assembly—could modify the duties or

regulate the tenure in office of the Philadelphia District Attorney. But no one, for

all their ink,2 thought the General Assembly could give away the District Attorney’s

prosecutorial role to an out-of-City official unelected by the people of Philadelphia.

The home-rule provisions in Article IX plainly guarantee to the City, equally to

every county in the Commonwealth, a district attorney who can wield prosecutorial

discretion over the polity who elected him free from unelected interlopers. As a

general constitutional matter, crime in this Commonwealth is prosecuted by a locally

elected official.

2

The vociferous separate writings in Martin and Freed agree that the Philadelphia District

Attorney in particular—and no one else—is to prosecute general crime in Philadelphia under our

Constitution. See Freed, 228 A.2d at 398-99 (Bell, C.J., dissenting) (“[I]t is clear as crystal that

the essential . . . powers, functions, [and] duties . . . of (a District Attorney, and especially of) a

District Attorney of Philadelphia, are primarily and principally those of a County officer . . .

prosecuting criminals who commit one or more crimes in Philadelphia” and “[i]t is a matter of

common knowledge that the District Attorney or his assistants, and not the City Solicitor (or his

assistants), tries every criminal case in the trial Courts, and, in the event of appeal, argues such

cases in the appellate Courts.”); Martin, 232 A.2d at 742 (Bell, C.J., dissenting) (“The District

Attorney of Philadelphia (1) is Elected, and (2) is Paid—not by the Commonwealth but—By the

people of Philadelphia, and (3) His essential . . . powers, functions, duties, limitations and

boundaries involve only crimes committed, not throughout the Commonwealth, but only in the

City of Philadelphia.”); see also Martin, 232 A.2d at 747, 755 (Op. of Musmanno, J.) (warning

that, as a constitutional matter, the “District Attorney [has] the whole prosecution machinery at his

command” and that “the unlimited prosecuting powers [are] lodged in the office of District

Attorney” (emphasis added)).

MSW-4

It is not clear to me how much of District Attorney Krasner’s

prosecutorial jurisdiction Act 40 purports to wrest from him. But it is substantial.

The Act addresses crimes “occurring within a public transportation authority,”

obviously referring to SEPTA. 74 Pa.C.S. § 1786(a). An “authority” is a “body

corporate and politic” created by law. Id. § 1701 (definitions). Aside from District

Attorney Krasner’s half-serious observation that Act 40 is best construed as referring

only to white-collar crimes by SEPTA, see Petitioners’ Memo of Law in Support of

Summary Relief at 30 n.5, no one knows how far the statute goes. Does it mean, as

the parties have argued, crime committed on SEPTA property, or within a certain

distance from SEPTA property, to impermissibly insert words into the statute? See

Ursinus Coll. v. Prevailing Wage Appeals Bd., 310 A.3d 154, 171 (Pa. 2024). What

about crime on property leased, licensed, or traversed, but not owned, by SEPTA?

Regardless, accepting that it must mean something, on the undisputed factual record

at this summary stage, Act 40 sweeps broadly, covering at least the 8,700 bus,

trolley, and train stops SEPTA operates. It would shift a substantial portion of

prosecution of Philadelphia’s crime in general from District Attorney Krasner to the

special prosecutor.

This is no more defensible under Article IX than abolishing the office

of district attorney wholesale. Consider a hypothetical statute allowing unilateral

peremptory jurisdiction by the Attorney General over any crime occurring “within a

state highway” of the Commonwealth. This, like Act 40, does not target any

particular type of crime. It would strip county district attorneys of substantial

portions of their jurisdiction over the prosecution of general crime (all or most DUIs

and drug-trafficking crimes, for example) on a purely geographic basis. This would,

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like Act 40, plainly and palpably violate Article IX’s guarantee of locally elected

district attorneys.

Realizing this, the Majority adopts3 the Attorney General’s most

developed response on this issue—that Act 40 does not really displace District

Attorney Krasner’s territorial jurisdiction at all but merely “regulates” him in

exercising it. Our courts have recognized that the General Assembly can regulate

district attorneys, but Act 40 does not fit constitutionally within that supervisory

power. The General Assembly can “control the officer” or “punish . . . misconduct,”

or address neglect of duty or conflict of interest. Commonwealth v. McHale,

97 Pa. 397 (1881). But this is always limited to a particular case and always subject

to judicial review. In re Shelley, 2 A.2d 809, 811-12 (Pa. 1938).

The Attorney General urges us to apply Shelley. There, our Supreme

Court upheld a statute—Act 3 of 19384—allowing the Attorney General to supersede

district attorneys. But as the Court explained, the statute also required judicial

review in the particular matter to ensure that the decision to supersede the district

attorney was not an abuse of discretion. The statute limited displacement of the

district attorney by the Attorney General to “the investigation or proceeding,” i.e., a

particular proceeding already pending before a “court of oyer and terminer” or a

“court of quarter sessions,” and required the tribunal hearing the proceeding to

adjudicate whether the supersession was an abuse of discretion. Shelley, 2 A.2d

at 811-12 (quoting statute) (emphasis added). Thus even though the Shelley Court

upheld the statute, it crafted a procedural remedy to keep the statute on the right side

of the Constitution: on remand, the Attorney General must “present to the court his

reasons for superseding the district attorney, with the right to the latter to be heard

3

Maj. Op. at 23-24, 30-32.

4

Act of July 30, 1938, P.L. 17, repealed by the Act of March 20, 1939, P.L. 8.

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thereon, [and] the court thereupon . . . determine the question whether the district

attorney has been superseded by a valid exercise of the legal discretion vested in the

Attorney General.” Id. at 814 (emphasis added).

Later, our Supreme Court examined another supersession statute, which

was a predecessor to the Commonwealth Attorneys Act. See Commonwealth v.

Schab, 383 A.2d 819, 821 (Pa. 1978). But that statute also limited supersession to

particular cases and required judicial review.5 A plurality of the Court observed that

“[i]t would be incongruous to place the district attorney in the position of being

responsible to the electorate for the performance of his duties while actual control

over his performance was, in effect, in the Attorney General.” Id. at 822. This was

“precisely the approach rejected in Pennsylvania by [the statute creating locally

elected district attorneys in 1850] and constitutionally in 1874.” Id. (emphasis

added). Schab is a plurality decision, but like so many of our Supreme Court’s

supersession cases, reading the minority opinions reveals some radical agreement.

Two Justices joined a separate opinion explaining their view that the basic issue was

“[w]hether the Attorney General has abused his discretion in seeking to supersede

the district attorney” and that “the authoritative application of [that standard] is for

the courts.” Schab, 383 A.2d at 831 (Op. of Pomeroy, J.) (emphasis added) (citing

United States v. Nixon, 418 U.S. 683, 692-98 (1974)). Schab confirms the reasoning

5

Section 205 of the current Commonwealth Attorneys Act, Act of October 15, 1980,

P.L. 950, as amended, 71 P.S. § 732-205, includes similar protections. It directs the Attorney

General to prosecute several discrete, narrow classes of crimes (such as those committed by state

officials in the course of their duty, or involving corrupt organizations). Id. § 732-205(a)(1)-(2).

For supersession of a district attorney for criminal prosecution generally, the Attorney General

must “petition the court having jurisdiction” of the matter, a judge must “hear the matter,” and

supersession must be allowed only when the evidence shows the district attorney “has failed or

refused to prosecute and such failure or refusal constitutes abuse of discretion.” Id.

§ 732-205(a)(4).

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in Shelley: discretion to supersede the district attorney must be judicially reviewable

in order to be constitutional. And it must be limited to particular cases where the

discretion to supersede can be meaningfully reviewed.

Act 40 is nothing like the supersession statutes in Shelley and Schab, or

the modern Commonwealth Attorneys Act. It contains no process for reviewing the

special prosecutor’s decision to assert preemptive jurisdiction, let alone any

opportunity for District Attorney Krasner to be heard on that question, as the Shelley

Court conspicuously required. There is no way to say whether the special

prosecutor’s assertion of jurisdiction is “valid,” Shelley, 2 A.2d at 814, because Act

40 does not care whether it is valid. The removal of jurisdiction from District

Attorney Krasner is categorical and “at the sole discretion of the special prosecutor,”

74 Pa.C.S. § 1786(a)(4)(i). District Attorney Krasner cannot be heard. Id.

§ 1786(a)(4)(v). There is no review during the ensuing criminal proceedings, id.

§ 1786(a)(5), and no judicial review at all. Act 40 abandons the sort of case-by-case,

reviewable “control [of] the officer” upheld in Shelley for an unconstitutional

“replace the officer” framework. And the replacement is unilateral and

nonconcurrent for District Attorney Krasner, but for no one else. Compare

74 Pa.C.S. § 1786(a)(4)(iii) (allowing other county district attorneys to “accept[]”

special prosecutor jurisdiction), with (v) (“[P]rior approval of the district attorney of

[Philadelphia] shall not be required.”).

Because Act 40 allows unilateral displacement of District Attorney

Krasner’s constitutional function by an unelected official, without judicial review in

any particular case, I would hold that Act 40 clearly, plainly, and palpably violates

Article IX of the Pennsylvania Constitution.

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II. Special Law and Equal Protection (Claims III and IV)

Act 40 also violates the equal protection guarantees found in Article III,

Section 326 and Article I, Section 267 of the Pennsylvania Constitution. Article III,

Section 32 is a primary source of Pennsylvania equal protection principles and

requires “that like persons in like circumstances will be treated similarly.” DeFazio

v. Civ. Serv. Comm’n of Allegheny Cnty., 756 A.2d 1103, 1106 (Pa. 2000) (quoting

Curtis v. Kline, 666 A.2d 265, 267-68 (Pa. 1995)). In the context of laws aimed at

a specific local office, our Supreme Court has held that the no-special-laws clause

does not preclude the Commonwealth from resorting to

legislative classifications, provided that those

classifications are reasonable rather than arbitrary and

bear a reasonable relationship to the object of the

legislation. In other words, a classification must rest upon

some ground of difference which justifies the

classification and have a fair and substantial relationship

to the object of the legislation.

Id. (emphasis added). Even if the classification meets that test, the class it creates

“must be open, that is, it must be so defined that other members can come in.” Pa.

Interscholastic Athletic Ass’n, Inc. v. Campbell, 310 A.3d 271, 282 (Pa. 2024)

(hereinafter, PIAA). It is not enough for the class to be nominally or fictitiously

open; if it “is closed or substantially closed to future membership [then it] is per se

unconstitutional.” W. Mifflin Area Sch. Dist. v. Zahorchak, 4 A.3d 1042, 1048

(Pa. 2010). Our Supreme Court rejects “attempt[s] by the General Assembly to

6

This Section initially requires that “[t]he General Assembly shall pass no local or special

law in any case which has been or can be provided for by general law.” PA. CONST. art. III, § 32.

It then specifically enumerates seven types of prohibited special law, including laws “[r]egulating

the affairs of counties, cities, townships, wards, boroughs or school districts . . . .” Id.

7

It provides: “Neither the Commonwealth nor any political subdivision thereof shall deny

to any person the enjoyment of any civil right, nor discriminate against any person in the exercise

of any civil right.” PA. CONST. art. I, § 26.

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evade the constitutional prohibition by cleverly defining a closed class of one or a

handful of entities in seemingly general terms.” PIAA, 310 A.3d at 282-83.

This matter is squarely analogous to DeFazio, 756 A.2d at 1103. There,

the Court also faced the issue whether legislation violated the no-special-laws clause.

In that case, the statute required sheriffs of second class counties (i.e., Allegheny

County) to abide by certain hiring and promotion procedures and limited the political

activities of sheriff’s office employees. The Sheriff of Allegheny County sought to

enjoin enforcement, arguing that the statute was directed specifically at his office.

The trial court declared the legislation unconstitutional and issued a permanent

injunction. The Pennsylvania Attorney General’s Office, as intervenor, brought an

appeal to the Pennsylvania Supreme Court.8

On appeal, the Pennsylvania Supreme Court rejected the Attorney

General’s argument that Allegheny County’s classification as a second class county,

as well as the unique function of its sheriff’s office, justified treating it differently

than other similar sheriffs’ offices throughout the Commonwealth, stating:

[T]he legislation in question goes beyond merely singling

out Allegheny County as a class to be treated differently

and in essence has effectively created a new sub-

classification, that of the sheriffs of second class counties.

Plainly such a sub-classification bears no relationship

either to the distinction of Allegheny County as a county

of the second class or to any unique function of the office

of county sheriff.

....

While the legislature can treat different classes of counties

differently, that is not what has occurred here. One

particular county officer may not be treated differently

from other similar officers throughout the commonwealth

8

See 42 Pa.C.S. § 722(7).

MSW-10

merely because that officer is within a certain class of

county. The distinction created by this legislation bears

no fair or reasonable relationship to the object of the

legislation and bears no relationship to the distinction of

Allegheny County as a county of the second class.

DeFazio, 756 A.2d at 1106.

We face the identical situation here. The Attorney General argues:

Act 40’s focus on “the county of the first class” – currently

only Philadelphia – is reasonably related to ensuring that

crime committed on SEPTA is prosecuted. See DeFazio,

756 A.2d at 1106. The Legislature found that, during

[District Attorney] Krasner’s time as District Attorney,

violent crime in Philadelphia increased and the economy

in Philadelphia decreased due to policies enacted by

Petitioners. See Select Committee on Restoring Law and

Order, Second Interim Report, (October 24, 2022),

https://www.pahousegop.com/Display/SiteFiles/1/2022/S

elect%20Committee%20on%20Restoring%20Law%20an

d%20Order%202ndInterim%20Report%20102422.pdf

[(Second Interim Report)]. Act 40 was enacted in

response to the hike in violent crime in recent years,

endangering the safety and welfare of SEPTA riders in

Philadelphia.

Act 40 treats the county of the first class differently than

other counties because the problem being addressed is

different among the counties. And it treats the Philadelphia

District Attorney differently than other district attorneys

because the General Assembly found that violent crimes

were not being adequately prosecuted on SEPTA. Act

40’s classifications are reasonably related to the health and

safety goals being addressed by the law.

Attorney General’s Brief in Support of Cross Application for Summary Relief at 20.

Thus, the Attorney General concedes that Act 40 singles out the locality

of Philadelphia and then creates a sub-classification—the office of Philadelphia

District Attorney—within that locality, just like the unconstitutional statute in

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DeFazio. But Act 40 heaps on more classifications. It applies only to SEPTA-

related crime. Tellingly, the Act sunsets a year after the end of District Attorney

Krasner’s current term and precludes any person who served in the Philadelphia

District Attorney’s Office since mid-December 2017—essentially since the

beginning of Krasner’s tenure—from becoming the special prosecutor. 74 Pa.C.S.

§ 1786(a)(1)(iii), (8). Thus, Act 40 creates a substantially closed class of one,

limited in time—past and future—so that it substantially applies only to District

Attorney Krasner and no other incumbent of that office. Act 40’s classification is of

a single incumbent of a single public office in a single political subdivision, and

based on, of all things, the geographic location of transportation infrastructure. Its

effects are purposefully walled off in seemingly neutral terms. See PIAA, 310 A.3d

at 282-83.

The Second Interim Report, on which the Attorney General relies,

mentions SEPTA just once. The focus is not at all on SEPTA, which is only

mentioned in passing; rather, the gist of the report is that District Attorney Krasner,

through his policies, is causing an increase in crime in Philadelphia. In fact, the

report explicitly states: “Apparently blinded by the goal of implementing progressive

policies at any cost, [District Attorney] Krasner has contributed to a catastrophic rise

in violent crime at the expense of public safety.” Second Interim Report at 21.

Consistent with this, at oral argument, the sole basis the Attorney General and

SEPTA articulated for Act 40 is “public safety” in general. The Act itself does not

contain any statement of its purpose, which makes it difficult to review whether that

purpose is rationally related to its classifications.

Even though the Court could imagine public safety as a legitimate

public purpose, the problem for Act 40 is that its classifications are “arbitrary” and

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“bear[] no fair or reasonable relationship to” that purpose. DeFazio, 756 A.2d

at 1106. If Act 40 is based on SEPTA crime, its differential treatment of Philadelphia

vis-à-vis the suburban counties is arbitrary—it treats differently other district

attorneys who are exactly similarly situated because SEPTA, an undifferentiated

regional authority, operates in their counties too. If, on the other hand, Act 40 is

based on Philadelphia crime, its restriction to SEPTA is arbitrary. And more

critically, it impermissibly singles out a particular incumbent of a sub-classification

(i.e., a single office) for differential treatment, even though Philadelphia’s crime

problem is not related to any “unique characteristic of that particular office.” See

DeFazio, 756 A.2d at 1106. Either way, Act 40’s singling-out bears no reasonable

relationship to any unique aspect of the singled-out office. There is no “ground of

difference” to support its differential treatment of the Philadelphia District Attorney.

Id.

The Attorney General argues Article IX, Section 13(b)9 allows Act 40,

even though it would otherwise be an unconstitutional special law, because Act 40

applies, in part, to Philadelphia. She claims all that is necessary to allow a special

law is that it “regulate[] the affairs” of the City, citing in support Clark v. Meade,

104 A.2d 465, 467-68 (Pa. 1954). But Meade is neither binding nor supportive of

that proposition. And even if it were, Act 40 does not “regulat[e] the affairs” of the

City of Philadelphia, when that phrase is correctly interpreted.

Take constitutional history first, which the parties and the Majority all

but ignore.10 The current Article IX, Section 13(b) did not originate in the 1968

9

Article IX, Section 13(b) provides that “Local and special laws, regulating the affairs of

the City of Philadelphia and creating offices or prescribing the powers and duties of officers of the

City of Philadelphia, shall be valid notwithstanding the provisions of section 32 of Article III of

this Constitution.” PA. CONST. art. IX, § 13(b).

10

But see Maj. Op. at 31 n.24 (referencing the 1968 Constitution in a single sentence).

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Constitution, and it was addressing a former—and different—no-special-laws

clause. It was this pre-1968 Constitution that Meade discussed. The no-special-

laws clause “was originally added to the Constitution in 1874.” PIAA, 310 A.3d at

282. But the 1874 clause did not forbid special laws generally like our Constitution

does today; rather, it enumerated “28 subjects” in the clause in Article III, Section 7

(later to be substantially amended and renumbered as Article III, Section 32).11

Meade, 104 A.2d at 467 (citing PA. CONST.

This text is long and has been trimmed here. Open the source document for the complete record.