# Schaeffer v. Frey > Superior Court of Pennsylvania · April 22, 1991 · 403 Pa. Super. 560 URL: https://www.frixlaw.com/law-library/cases/9750374 ## Case - **Full name:** Forrest SCHAEFFER, President Judge of the Court of Common Pleas of the County of Berks, Appellant, v. Linda Hilgendorf FREY, Recorder of Deeds of the County of Berks - **Court:** Superior Court of Pennsylvania - **Decided:** April 22, 1991 - **Citations:** 403 Pa. Super. 560; 589 A.2d 752; 1991 Pa. Super. LEXIS 997 - **Precedential status:** Published - **Opinion:** Dissent by Popovich - **Judges:** Beck, Kelly, Popovich - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9750374 ## Opinion text POPOVICH, Judge, dissenting: Under ordinary circumstances, the majority would probably be correct when it opines that the issue of standing was not raised and therefore is waived under Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974). However, this case does not present ordinary circumstances. Indeed, it is a rare, if not an exquisitely unique, event when a judge (not as an individual, private citizen) on his own initiative institutes litigation directed toward another public official or entity to redress a perceived public wrong. I am not here concerned, let it be said, with the correctness of Judge Schaeffer’s assessment of the substance of his complaint; rather, what is bothersome is the notion that it is assumed that his sua sponte invocation of the power of the court is condoned simply because the issue was not raised heretofore as though the judge was a common litigant. *577 We are dealing here not with a routine equity case between ordinary citizens of the Commonwealth to whom the laws and rules of our judicial system apply equally. This is a special factual scenario requiring a special analysis not necessary for the resolution of common disputes. We, as judges of the Superior Court, an intermediary appellate step on the way to the Supreme Court, the ultimate, constitutionally ordained supervisor of our unified judicial system, have an inherent responsibility to scrutinize with the utmost care those uncommon cases involving a judge in his public role as a litigant. While this case does not present facts or a controversy that would arouse anyone except the participants, it nevertheless has far-flung implications. Thus, I conclude, that this special case demands special treatment to ensure its correctness. My analysis is that the result is not correct because Judge Schaeffer, without at least the majority approval of his court, had no authority to bring his action. The statute upon which Judge Schaeffer based his request for injunctive relief is 16 P.S. § 9872, which, in pertinent part, provides: At least once in each and every year, * * * it shall be the duty of each of the aforesaid ... recorders of deeds, ... in the several counties of this commonwealth, to submit the books of records belonging to their several offices to the inspection of the judges of the court of common pleas of the proper county; and it shall be the duty of the said court to order and direct such of the said books, as in their opinion may require it, to be bound anew; and also, in all cases where the same may be wanting, to order and direct full and complete indexes of the matters contained in said books to be made and prepared, within such time as the said court may think reasonable, (emphasis added) Nothing in the record indicates that President Judge Forrest Schaeffer was ever authorized by his colleagues in the Court of Common Pleas of Berks County to file this *578 suit. Nor is President Judge Schaeffer granted the power to take such an action on behalf of the Berks County Court of Common Pleas. See 42 Pa.C.S.A. § 325(e)(1). As 16 P.S. § 9872 makes abundantly clear, it is the Court of Common Pleas of Berks County which has the power to take action under this statute, not President Judge Schaeffer acting alone. I would further comment that such authority, under our unified system, could only be derived from the prior advice and consent of our Supreme Court. Accordingly, I would quash this appeal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750374. Public record. Not legal advice.