Samuel S. Scott, Scott & Neely, Pittsburgh, for appellant.
Robert H. Ireland, Aspinwall, Solicitor for Township of O'Hara, Re: Commonwealth of Pennsylvania, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 224]
This is an appeal from a summary conviction of a violation of Section 1016(a) of the Vehicle Code of May 1, 1929, P.L. 905, as amended, 75 P.S. § 591(a). The violation, which is admitted, occurred in O'Hara Township, Allegheny County. The information was filed before a justice of the peace of and for the Borough of Blawnox, which adjoins O'Hara Township. The defendant appeared before the justice of the peace, waived a summary hearing and posted bond for an appearance before the County Court of Allegheny County. In the county court it was stipulated that the justice of the peace before whom the information was filed was the nearest justice of the peace or magistrate to the place of the offense. It was further stipulated 'that there are two elected justices of the peace for the Township of O'Hara and the commissions have been issued to both individuals
[ 166 Pa. Super. Page 225]
and that neither of them is active in the conduct of the business of their office of justice of the peace'.
The gravamen of the defendant's argument in the court below was, and is now, that the justice of the peace in the Borough of Blawnox had no jurisdiction. Defendant's contention is that Section 1201(a) of the Vehicle Code, 75 P.S. § 731(a), permits the filing of an information before a justice of the peace of an adjoining municipality only where there is no person commissioned as a justice of the peace in the municipality in which the violation occurred. For the Commonwealth two contentions are stressed: (1) That a defendant charged with a summary offense under the Vehicle Code, who voluntarily appears before a magistrate or justice of the peace and waives hearing cannot raise the question of jurisdiction for the first time before the county court or court of quarter sessions; and (2) that Section 1201(a) permits the filing of an information before a justice of the peace of an adjoining municipality where the Commonwealth shows that such justice of the peace was the nearest such officer to the situs of the alleged offense and that no justice of the peace was available within the municipality where the alleged violation occurred.
(1) May defendant raise the question of the jurisdiction of the justice of the peace for the first time in the court of quarter sessions? Section 1204 of the Vehicle Code, 75 P.S. § 734, provides: '(a) Any person convicted in any summary proceeding under this act shall have the right of appeal as in other cases of summary conviction. (b) Any person charged with violating any of the summary provisions of this act may waive summary hearing, and give bond in a sum equal to double the amount of the fine and costs that might be imposed, for appearance for trial before a judge of the court of quarter sessions, or in the county court, or in the municipal
[ 166 Pa. Super. Page 226]
court, in counties wherein such court exists, and thereupon the magistrate shall, within fifteen (15) days, return the information to the said court.' In Com. v. Burall, 146 Pa. Super. 525, 22 A.2d 619, a defendant charged with the violation of a summary provision of the Vehicle Code appeared before the justice of the peace before whom the information was lodged, waived a hearing, posted bond and 'took an appeal' to the court of quarter sessions where a hearing de novo was had. Defendant moved the court to dismiss the case on the grounds that (1) the information and record of the justice of the peace failed to show that he was the nearest available justice within the municipal subdivision in which the alleged violation occurred; and (2) the record of the justice of the peace failed to show that a notice to appear within ten days and a copy of the information had been mailed to him. The court of quarter sessions refused to grant the motion and the defendant was convicted. On appeal from such conviction we held that the alleged omissions were merely procedural irregularities and that the right to attack the record on technical deficiencies had been waived by the defendant. The Burall case lends no support to the proposition contended for by the Commonwealth in the instant appeal. The contention there was not that the justice of the peace before whom the information was filed was not in fact the nearest available justice of the peace; the contention was that the record of such justice failed to disclose this fact. Moreover, certain language in that case indicates that an attack upon the ...