# Commonwealth v. Lutz

> Supreme Court of Pennsylvania · June 26, 1985 · 508 Pa. 297

URL: https://www.frixlaw.com/law-library/cases/9757239

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Petitioner, v. Edward E. LUTZ, Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. Ronald NESTOR, Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. Paul D. CLINE, Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. John Shand FRICK, Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. Joseph P. CONWAY, Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. James GIAMP, Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. Donald Ray FAUST, Jr., Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. Michael Barron EMERT, Respondent; COMMONWEALTH of Pennsylvania, Petitioner, v. George MACALLISTER, Respondent
- **Court:** Supreme Court of Pennsylvania
- **Decided:** June 26, 1985
- **Citations:** 508 Pa. 297; 495 A.2d 928
- **Precedential status:** Published
- **Opinion:** Concurring in part by Nix
- **Judges:** Nix, Larsen, Flaherty, McDermott, Hutchinson, Zappala, Papadakos
- **Cited by:** 117 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/9757239

## How later opinions describe it (automated extraction)

- explaining that ARD is appropriate only when society’s representative in the case, the district attorney, acting with the court and within the applicable rules, determines that ARD is preferable to conviction because of the strong likelihood that a given criminal defendant wil…
- recognizing that the Commonwealth abuses its discretion only where it utilizes “some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation”
- holding that the decision to submit a case for ARD consideration rests with the district attorney who should exercise his discretion “based on his view of what is most beneficial for society and the offender”
- stating that rules promulgated by Courts of Common Pleas which determine the eligibility of offenders into the ARD program would be invalid as they would violate the Rules promulgated by the Supreme Court
- stating that “rules or practices voluntarily established by courts of common pleas in contravention of the rules of this Court, are per se invalid.”

## Opinion text

NIX, Chief Justice,
concurring and dissenting.
I concur in part and dissent in part. While I agree with the majority’s conclusion that an attorney for the Commonwealth has sole discretion in determining which cases should be submitted for Accelerated Rehabilitative Disposition (ARD), I am troubled by the conclusion that we must rely on the openness of the exercise of that discretion and an extremely narrow scope of review to restrain abuse.
*314 Initially the majority emphasizes the importance of the openness of the exercise of the prosecutor’s discretion. In so doing Mr. Justice Flaherty points out that the prosecutors in each of these consolidated cases gave specific reasons for refusing to submit the case for ARD. There is no indication, however, of whether there is a requirement that prosecutors in all ARD cases specifically articulate their reasons for withholding a case from ARD consideration. To insure the openness necessary for a useful restraint against abuse of discretion, such an articulation is clearly required.
Moreover, the majority’s conclusion that there is an abuse of discretion only when “some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society ...” is used accords wider discretion to the prosecutor than any official has ever been or should be allowed. Abuse of discretion should be found upon a showing of fraud or arbitrariness. In so concluding I note that even the extraordinary remedy of mandamus will lie where official discretion has been arbitrarily or fraudulently exercised. See County of Allegheny v. Commonwealth, Board of Probation and Parole, 507 Pa. 360 , 490 A.2d 402 (1985); Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292 , 297 A.2d 823 (1972).
ZAPPALA, J., joins in this concurring and dissenting opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757239. Public record. Not legal advice.