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COMMONWEALTH EX REL. FRANK LUZZI v. WALTER TEES (11/09/54)

November 9, 1954

COMMONWEALTH EX REL. FRANK LUZZI
v.
WALTER TEES, WARDEN, EASTERN STATE PENITENTIARY. APPEAL OF FRANK LUZZI



COUNSEL

Frank Luzzi, in pro. per.

Edward Youngerman, Asst. Dist. Atty., Henry M. Koch, Dist. Atty., Reading, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Woodside and Ervin, JJ.

Author: Ervin

[ 176 Pa. Super. Page 529]

ERVIN, Judge.

This is an appeal from an order of the Court of Common Pleas of Berks County discharging the rule and dismissing the petition for a writ of habeas corpus. Oral argument was heard by the court but no hearing was held for the presentation of evidence. Relator was convicted of burglary, larceny and carrying firearms without a license. He was sentenced on the burglary and larceny charge to pay a fine of $100, costs of prosecution and to undergo imprisonment in the Eastern State Penitentiary for a period of not less than seven and one-half nor more than twenty years. Relator was represented at the trial by former President

[ 176 Pa. Super. Page 530]

Judge Paul N. Schaeffer. No motion for a new trial was filed nor appeal taken. He complains of the action of the lower court in disposing of this petition without granting an opportunity to prove his allegations. His petition raised no factual issues requiring determination by the court and failed to establish any ground entitling relator to relief by habeas corpus and therefore a hearing was unnecessary. Com. ex rel. Wolcott v. Burke, 173 Pa. Super. 473, 475, 476, 98 A.2d 206.

Where the petition or application itself or where the record upon which it is based or both together fail to clearly make out a case entitling a relator to the relief afforded by a habeas corpus, a hearing is not necessary. Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 494, 495, 96 A.2d 122. The following footnote is contained 373 Pa. on page 495, 96 A.2d 125 of that opinion: 'By way of caution we may add that when a petition for a writ of habeas corpus has been presented and the Court directs the writ to issue or allows a rule to show cause why the writ should not be issued, a hearing is necessary. Act of May 25, 1951, P.L. 415, §§ 4, 5 [12 P.S. §§ 1904, 1905].' Soon thereafter the Supreme Court stated that no hearing was necessary even though a rule to show cause had been allowed. Commonwealth ex rel. Bishop v. Claudy, 373 Pa. 523, 527, 97 A.2d 54, 56, wherein it is stated: 'It is clear therefore that no hearing would have been necessary to dispose of this petition prior to the Habeas Corpus Act of 1951, supra. Has the Act effected such a change in procedure that a hearing is necessary in every case where a rule to show cause is allowed? The language of the Act in this regard appears to be mandatory, and we clearly so regarded it in Commonwealth ex rel. Elliott v. Baldi [373 Pa. 489], 96 A.2d 122, 125, when we said: 'By way of caution we may add that when a petition for a writ of habeas

[ 176 Pa. Super. Page 531]

    corpus has been presented and the Court directs the writ to issue or allows a rule to show cause why the writ should not be issued, a hearing is necessary. Act of May 25, 1951, P.L. 415, §§ 4, 5 [12 P.S. §§ 1904, 1905].'

'But it would be absurd to suppose that the Legislature intended to direct the taking of testimony when there is no issue of fact to be decided or when the facts averred by relator, even if believed, are insufficient to warrant granting the writ of habeas corpus. When the petition, answer, and original record disclose only questions of law, then, in this as in any other civil proceeding, the only hearing necessary is oral argument to hear relator's views on the legal issues involved. That requirement has been satisfied here.' To the same effect see the recent case of Hoffman v. Burke, 378 Pa. 651, 107 A.2d 866.

It has also been decided by this Court that no hearing is necessary even though a rule to show cause has been granted. Com. ex rel. Wolcott v. Burke, supra [173 Pa. Super. 473, 98 A.2d 207], where President Judge Rhodes said: 'The granting of a rule to show cause on relator's petition was perfunctory and did not necessitate a hearing on averments which were not prima facie sufficient to show a violation of due process or ground for relief. Com. ex rel. Bishop v. Claudy, 373 Pa. 523, 97 A.2d 54. Moreover, the answers and the trial or court records, which may relevantly be considered in habeas corpus proceedings, disclosed nothing that would require a hearing or afford a basis for the issuance of a writ of ...


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