Petition of Dwyer

NIX, Justice,

dissenting.

I must register my dissent to the majority’s decision in this matter, first because it is procedurally unsound, and second, because it establishes precedent in a difficult area *600with only a superficial consideration of the problems involved therein.

The inappropriateness of a Writ of Prohibition in the instant case is obvious. A Writ of Prohibition is not a proceeding between private litigants, but rather, it is a vehicle by which a superior tribunal may restrain an inferior tribunal, over which it has superintendence, from exceeding its desegregated jurisdiction. Carpentertown Coal and Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948). See also In re Reyes, 476 Pa. 59, 381 A.2d 865 (1977); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975); McNair's Petition, 324 Pa. 48, 187 A. 498 (1936).1 Moreover, it has long been recognized that the “writ of prohibition is one which, like all other prerogative writs, is to be used only with great caution and forebearance and as an extraordinary remedy in cases of extreme necessity, to secure order and regularity in judicial proceedings if none of the ordinary remedies provided by law is applicable or adequate to afford relief.” Carpentertown Coal and Coke Co. v. Laird, 360 Pa. at 102, 61 A.2d at 430.

The power and the duty of the coroner to investigate any death suspected of being caused by a criminal agency, and to inquire into who might be culpable for the death, has existed in our law from 4 Edward 1 Stat. 2. A.D. 1276. Commonwealth v. Guy, 41 D. & C.2d 151 (1966).2 It is clear that the coroner is this case was acting pursuant to the responsibility entrusted to that office. Thus there was no showing of an absence of jurisdiction that would provide a basis for the issuance of the requested writ, even if it is determined that *601the coroner was in error in the exercise of his discretion in the matter. The traditional review procedures are designed to correct such an error, if it in fact occurred.

In the alternative, the petitioners have requested this Court to invoke its extraordinary jurisdiction because of the asserted importance of the question raised. 42 Pa.C.S.A. § 726. There is no concern in this case that the issue would escape review if the regular process is followed or that an immediate review by this Court is required to avoid irreparable injury or injustice to the petitioners. Moreover, while the question presented the applicability of the doctrine of quasi-judicial immunity to the instant facts may well be of public interest, I fail to perceive the immediate need for our consideration which would justify the assumption of jurisdiction under this section. Wilson v. Blake, 475 Pa. 627, 381 A.2d 450 (1977); Citizens Committee v. Board of Elections, 470 Pa. 1, 367 A.2d 232 (1976); Commonwealth v. Ryan, 459 Pa. 148, 327 A.2d 351 (1974). Even if I were to accept, for the sake of argument, that the concern was one of immediate public importance, this Court has previously recognized:

The presence of an issue of immediate public importance is not alone sufficient to justify extraordinary relief. As in requests for writs of prohibition and mandamus, we will not invoke extraordinary jurisdiction unless the record clearly demonstrates a petitioner’s rights. Even a clear showing that a petitioner is aggrieved does not assure that this Court will exercise its discretion to grant the requested relief. (Citation omitted.) Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 494 n. 11, 387 A.2d 425, 430 n. 11 (1978).

Finally, I cannot agree that the petitioners’ right to immunity is as clear as the opinion of the majority suggests. Philadelphia Newspapers, Inc. v. Jerome, supra. I find it difficult to understand the majority’s hasty acceptance of an unprecedented status immunity for criminal conduct of quasi-judicial bodies, particularly in light of this Court’s most *602recent general condemnation of status immunities. Dubree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978).3

Where, but for the defendant’s status, a right of action would lie under analogous rules of law and no public policy would be promoted in shielding a defendant from liability, and the plaintiff has not failed to pursue existing remedies, denial of the possibility of recovery is unjustified. (Citations omitted.) Dubree v. Commonwealth, 481 Pa. at 546, 393 A.2d at 296.

If this argument is valid as to civil liability, it must of necessity have even greater impact where criminal responsibility is in question. The only public policy argument offered by the majority in support of immunity is the need for these officers to have an unfettered discretion in the performance of their duties. Yet, the teaching of Dubree is that immunity should not flow automatically from the status, but rather, as a consequence of a case by case analysis. No such analysis was employed by the majority in reaching their , conclusion that petitioners were entitled to immunity.

The majority seeks support for its finding of immunity from criminal prosecution from the United States Supreme Court's decision in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). This reliance completely ignores that Butz was concerned with civil and not criminal liability. Further, it ignores the U. S. Supreme Court’s express rejection of immunity from criminal conduct. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); U. S. v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882); Ex parte Virginia, 100 U.S. 399, 25 L.Ed. 676 (1879).

Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U.S. 547, [87 S.Ct. 1213, 18 L.Ed.2d 288] (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U.S. 106, 110-111, [34 S.Ct. 27, 28, 58 L.Ed. 142] (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354, [20 L.Ed. 646] (1872), we have never *603held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339, [25 L.Ed. 676] (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .” Gravel v. United States, 408 U.S. 606, 627, [92 S.Ct. 2614, 2628, 33 L.Ed.2d 583] (1972). O’Shea v. Littleton, supra at 503, 94 S.Ct. at 680.4

While I do not intend to explore the question at length, the preceding discussion is sufficient to illustrate the majority’s superficial treatment of a difficult issue which should not have been considered in this procedural posture. Unquestionably, the right of the petitioners was not so obvious as to justify the invocation of our king’s bench powers to intercede in the proceedings at this point.

In conclusion, I perceive the threshold question as being whether there are any pressing reasons for prematurely interrupting the trial level proceedings and subjecting this issue to appellate consideration at this juncture. At the trial level, the instant objections and any others that may arise can be fully litigated, and possibly resolved in favor of these petitioners.5 I wish to emphasize that I do not intend *604to suggest approval of the action taken by the coroner in this case. To the contrary, I have difficulty in accepting that the coroner’s findings establish the requisite causal relationship for criminal responsibility for the unfortunate deaths in this case. See 18 Pa.C.S.A. § 303; Commonwealth v. Stafford, 451 Pa. 95, 97, 301 A.2d 600 (1973); Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961) (the act of the culprits must constitute a direct and substantial factor in causing the deaths). Nevertheless, it is abundantly clear that there is an absence of any exceptional circumstances demanding our intervention at this stage. The petition should have been dismissed.

. “Its functions is to restrain or prohibit an offending court from continuing its unwarranted conduct when continuation threatens imminent harm to the individual on whose behalf the writ is issued.” Comment, “The Writ of Prohibition in Pennsylvania, 80 Dick L.Rev. 472, 472-73 (1976). (footnotes omitted.)

. In this opinion, Judge Aldisert, who is now a member of the Court of Appeals for the Third Circuit, provided a scholarly review of the power of the coroner from early English Law. In conclusion, he observed: “It, therefore, appears that the coroner has had the power and duty of a committing magistrate for at least 689 years, and probably longer.” Commonwealth v. Guy, supra at 160.

. This writer dissented in Dubree v. Commonwealth, 481 Pa. 540, 551, 393 A.2d 293, 296 (1978).

. I concede that this Court’s decision in McNair’s Petition, 324 Pa. 48, 187 A. 496 (1936), does give some support to the view that judicial immunity in this jurisdiction may immunize the judicial officer from criminal conduct, so long as the officer was acting in good faith. However, this decision offers no authority for extending that protection to quasi-judicial officers. Further, the validity of the McNair holding is in question in light of our recent decision in Dubree v. Commonwealth, supra.

. It should be noted that petitioners at this point have not had a preliminary hearing, or an indictment or information issued against them. Remedies such as habeas corpus and motions to quash or dismiss were clearly available to allow this objection to be raised and considered before the petitioners would have been exposed to trial. Following the normal proceeding would have insured that if the question was ultimately brought to this Court for resolution, then we would have had the benefit of the thinking of the court below and the *604refinement of the issues that the traditional appellate process is designed to provide.