Special Power of State Court Challenged
     The House Judiciary Committee plans to hold hearings next month on a decision by the state Supreme Court to reach down into a lower court and take control of a case involving a waste-processing plant whose permit had been revoked by the state.

    What has provoked the concern of the panel's chairman, Rep. Jeffrey Piccola, R-Dauphin County, is not just that the court exercised its extraordinary power to bypass lower courts and take over cases -- something Piccola and other critics of the Supreme Court have questioned in the past. He also is concerned that one of the high court's justices has family ties to the case.

    In April, attorneys for Thermal Pure Systems Inc., a plant that uses steam and high temperatures to sterilize infectious medical wastes, petitioned the Supreme Court to take jurisdiction of its case, bypassing Commonwealth Court, where the case was pending.

    In the winter, Commonwealth Court had invalidated Thermal Pure Systems' operating permit. Thermal Systems had filed a petition asking Commonwealth Court to review its decision, when, almost simultaneously, it asked the Supreme Court to assume complete control of the case.

    The plant operated by Thermal Pure Systems is on property in Chester owned by Chester Solid Waste Associates, a limited partnership of Russell Rea zappala and Gomulka Holdings Inc. A principal in the Pittsburgh firm is Charles Zappala, brother of Supreme Court Justice Stephen A. Zappala.

    Justice Zappala is not participating in the case, the court announced.

    "It is another example of the exercise of 'King's Bench, authority by the court for no apparent reason and where a member of the court, although he has recused himself, has an apparent familial interest in the case," Piccola said.

    The court's power to reach down and take control of cases pending in lower courts goes back to colonial times. The "King's Bench" authority is based in English Common Law and gives the court the power to stop all proceedings in a lower court while it conducts a review.

    The high court usually exercises its King's Bench powers in cases where time is of the essence to prevent irreparable harm, although the court has no specific deadlines in which it must act.

    Invoking its authority in the Thermal Pure Systems case, the Supreme Court on April 19 stayed all proceedings in the case that were pending before Commonwealth Court. The justices also stopped a cease-and-desist order from the state Department of Environmental Resources, whose regulatory functions have been clustered in a new agency known as the Department of Environmental Protection. The company continues to operate.

    "Mr. Justice Zappala did not participate in the consideration or decision of this matter," the one-page Supreme Court order said.

    "That's right," Zappala said. "In fact, I knew nothing about the case until my law clerk, Dawn O'Brien, brought it to my attention after reviewing the papers in the case."

    Former state Supreme Court Justice Bruce W. Kauffman has represented Thermal Pure Systems in this latest round of litigation. Kauffman was not available for comment. But Kauffman's associate, attorney Brad McIlvain, said lawyers for Thermal Pure Systems wanted the Supreme Court to review the case immediately because they felt that the Commonwealth Court opinion invalidating the company's operating permit was wrong.

    In court papers, an attorney for Thermal Pure Systems contended that if its permit were permanently revoked, the company would lose contracts with more than 2,000 hospitals and medical centers in Pennsylvania and neighboring states. The loss of business would amount to more than $4 million annually.

    During the investigation and subsequent impeachment and removal of former state Supreme Court Justice Rolf Larsen, the court's use of King's Bench power was questioned.

    Larsen accused Zappala of meeting surreptitiously with "representatives" of the cities of Pittsburgh and Philadelphia on pending labor cases, advising them on how to proceed and then guiding the cases through the Supreme Court in a "special" manner.

    In each instance, Larsen claimed that Zappala did so to preserve the financial stability of the municipalities and thereby protect a brother's investment business, which traded in the cities, municipal bonds.

    But a statewide grand jury and a House impeachment panel found no evidence to support his allegations.

    Piccola said he expected that testimony at the House Judiciary committee's Aug. 3 hearing would show that Zappala did nothing wrong in the Thermal Pure Systems case. But as long as the Supreme Court has unfettered authority to reach down and take control of cases pending in the court system, problems involving the appearance of impropriety will arise, the legislator said.

Found on Lxis-Nexis
Copyright 1995 P.G. Publishing Co.
Pittsburgh Post-Gazette
July 23, 1995, Sunday, TWO STAR EDITION
BYLINE: Frank Reeves, Post-Gazette Harrisburg Correspondent
Staff writer Lawrence Walsh contributed to this report.