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BELL APPEAL. (07/02/59)

July 2, 1959

IN RE BELL APPEAL.


Appeals, Nos. 55, 56 and 57, March T., 1959, from orders of Superior Court, April T., 1958, Nos. 109, 110 and 111, reversing orders of County Court of Allegheny County, Nos. A1525, A1526 and A1529 of 1957, in re petitions of Joseph Bell et al. Orders of Superior Court vacated; appeals from orders of County Court dismissed; reargument refused July 22, 1959. Same case in Superior Court: 187 Pa. Super.Ct. 101. Appeal by policemen from decision of the Civil Service Commission dismissing them from service. Before GUFFEY, J. Adjudication filed affirming decision of commission; policemen appealed to Superior Court, which reversed orders, opinion by HIRT, J. Appeal to Supreme Court allowed.

COUNSEL

David Stahl, City Solicitor, with him Charles N. Caputo, Assistant City Solicitor, for City of Pittsburgh, appellant.

T. Robert Brennan and Louis C. Glasso, with them Brennan and Brennan, for appellees.

Alan Miles Ruben, Assistant to the City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, under Rule 46.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Jones

[ 396 Pa. Page 595]

OPINION BY MR. CHIEF JUSTICE JONES

These cases were heard and disposed of together by the Superior Court and were brought here on allocatur for the purpose of considering whether the Superior Court had jurisdiction to review the proceedings in the County Court of Allegheny County which were conducted in that court pursuant to procedure statutorily

[ 396 Pa. Page 596]

    prescribed and which does not provide for an appeal from the County Court's final orders. See Sections 7 and 8 of the Act of August 10, 1951, P.L. 1189, 53 PS §§ 23537 and 23538. The question arises out of the following circumstances and the administrative and judicial proceedings taken in connection therewith.

Joseph Bell, George E. Tarr and William Killeen, the appellants in the Superior Court, were police officers of the City of Pittsburgh. As a result of a certain incident in which they had been participants in some capacity, each of them was charged with conduct unbecoming an officer. They were tried before a Police Trial Board in accordance with the procedure prescribed by the Act of 1951, supra, which is applicable to Second Class Cities. The Police Trial Board found the accused guilty of the charges against them and recommended their dismissal from the City's service. The recommendation was duly approved by the Mayor. The police officers thereupon severally appealed to the Civil Service Commission of the City from the respective orders of dismissal. The Commission, after hearing, affirmed the recommendations of the Police Trial Board, as approved by the Mayor. Each of the police officers then appealed from the action of the Civil Service Commission to the County Court of Allegheny County. See Act of September 29, 1951, P.L. 1654 (Sess. 1951-1952), 53 PS § 604.

The County Court entered upon a hearing de novo, as it was required to do by Section 8 of the Act of 1951, supra. After full hearings, at which extensive testimony was taken, the court entered an order in the case of each of the appellants affirming, at their respective costs, the orders of dismissal recommended by the Police Trial Board as approved by the Mayor and as affirmed by the Civil Service Commission. By stipulation of counsel, all pertinent testimony in the Killeen

[ 396 Pa. Page 597]

    and Bell cases was admitted in evidence in the Tarr case. The court's discussion in its adjudication in the Killeen case of the reasons for its action, was, by express reference, made a part of the adjudication in the Bell and Tarr cases. From the orders so entered by the County Court, the dismissed policemen severally took the appeals to the Superior Court which, after argument thereon, filed an opinion applicable to all three appeals and entered the order (now here on allocatur) reversing the separate orders of the County Court with the same effect as though the charges had been dismissed in the lower court.

No question of a lack of jurisdiction in the Superior Court to entertain the appeals was raised in that court which concluded that the subject matter was before it on broad certiorari and proceeded to a disposition of the appeals on the merits. It is never too late to question a court's jurisdiction of the subject matter: Fowler v. Eddy, 110 Pa. 117, 1 A. 789; and, the lack of the Superior Court's jurisdiction in the premises is now directly before us, having been specifically raised by the City of Philadelphia in the amicus curiae brief which it has filed in this court under our Rule 46. It is settled beyond question that jurisdiction of subject-matter cannot be acquired by a court either through consent, waiver or estoppel of the parties: Patterson's Estate, 341 Pa. 177, 180, 19 A.2d 165; Wolfe v. Lewisburg Trust & Safe Deposit Co., 305 Pa. 583, 588, 158 A. 567; Blumenthal's Estate, 227 Pa. 268, 272, 75 A. 1075.

Where appellate review of the action of a court of first instance or of an administrative tribunal is not provided for by statute or is expressly so denied, no right of appeal exists. But, even in such instance, appellate review of the proceedings below for certain purposes is obtainable in this court through an exercise

[ 396 Pa. Page 598]

    of our King's Bench powers under the Act of May 22, 1722, 1 Sm.L. 131, 140, Section XIII. As stated in Carpentertown Coal & Coke Company v. Laird, 360 Pa. 94, 99, 61 A.2d 426, the Act of 1722, supra, "vested in the Supreme Court all the jurisdictions and powers of the three superior courts at Westminster, namely, the King's Bench, the Common Pleas and the Exchequer. Inherent in the Court of King's Bench was the power of general superintendency over inferior tribunals, a power which was of ancient inception and recognized by the common law from its very beginnings. Blackstone says, Book III, * 42: 'The jurisdiction of this court [of King's Bench] is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below.'"

The Superior Court derives all of its jurisdiction and powers from statute. See Duquesne City v. Fincke, 269 Pa. 112, 115, 112 A. 130; Commonwealth v. Long, 276 Pa. 154, 156, 120 A. 125; Commonwealth ex rel. v. Speer, 267 Pa. 129, 134, 110 A. 268; cf. Pittsburgh v. Pierce, 69 Pa. Superior Ct. 520, 524. Hence, no right of appellate review exists in that court in any instance except it be expressly authorized by statute. Particularly significant is the fact that the Superior Court does not possess the powers of the Court of King's Bench. See Delaware County National Bank v. Campbell, 378 Pa. 311, 316, 106 A.2d 416; cf. also, Martonick v. Beattie, 383 Pa. 168, 171, 117 A.2d 715. No statute confers such powers upon the Superior Court except for the purely incidental right to issue a writ of mandamus or prohibition to a court of inferior jurisdiction ancillary to proceedings pending in the Superior Court under its appellate jurisdiction, i.e., by appeal authorized by statute. See Act of May 21, 1941, P.L. 47, 17

[ 396 Pa. Page 599]

PS § 181, Pkt. Part. Even this restriction on the Superior Court's issuance of writs of mandamus and prohibition for purely ancillary use is further confirmation of the fact that the Superior Court does not possess the powers of King's Bench in general which include the power to issue common law writs of certiorari. It follows, therefore, that the Superior Court is without authority to review the work of an inferior tribunal as on certiorari where no right of appeal to that court is conferred by statute. Walker's Appeal, 294 Pa. 385, 388, 144 A. 288.

The certiorari which the Supreme Court employs to bring up the record of a proceeding in a court of first instance, where no right of appeal is statutorily authorized or is expressly prohibited, is not to be confused with the certiorari utilized by this court and the Superior Court for the purpose of bringing up for review the record in the court below when an authorized appeal has been taken. For uniformity, no doubt, the Superior Court adopted this court's appeal form for directing a lower court to send up for review the record, there pending, in an appealed case. Such form, called a certiorari, is but the means used for initiating appellate review in any instance and is not the common law writ of certiorari issued under the King's Bench powers which this court alone is authorized to exercise in this State. In fact, the Act of June 24, 1895, P.L. 212, which established the Superior Court, expressly provided that "No writ of certiorari shall be needed to remove the record to the Superior Court from the court below, but the perfecting of the appeal shall be treated as equivalent to the issue and execution of said writ."

The historical modes for bringing a matter before the Supreme Court for review, when this court was the only tribunal exercising appellate jurisdiction, were

[ 396 Pa. Page 600]

    writ of error, appeal and certiorari. See, e.g., Lessee of M'Clemmons v. Graham, 3 Binney 88 (1810); Commonwealth v. Beaumont, 4 Rawle 366 (1834); Baker v. Williamson, 2 Pa. 116 (1845).*fn1 These three separate methods for obtaining appellate court review were recognized and carried forward in the Constitution of 1874, by Article V, Section 3, which provided that the judges of the Supreme Court "shall have appellate jurisdiction

[ 396 Pa. Page 601]

    by appeal, certiorari or writ of error in all cases, as is now or may hereafter be provided by law."

The Act of May 9, 1889, P.L. 158, 12 PS § 1131, subsequently prescribed that "All appellate proceedings in the supreme court heretofore taken by writ of error, appeal or certiorari, shall hereafter be taken in a proceeding to be called an appeal." All that that Act did was to apply a single name to the three separate and distinct writs for invoking the Supreme Court's appellate jurisdiction. It did not in any way obliterate the characteristics of the several writs or the scope of appellate review afforded by each. In Rand v. King, 134 Pa. 641, 645-646, 19 A. 806, it was early recognized that "Since the Act of 1889, these modes [of review] remain applicable in the same cases, within the same limits, and with the same effect as before, the only difference being that now they are all called by the same name. ... [The Act] simply provides that dissimilar proceedings shall be called by the same name. An appeal in name may therefore be a writ of error or a certiorari in legal effect, and it is necessary, in every case, to look into the record, and determine at the outset of our examination whether what is 'called an appeal' is such in fact, or is a writ of error or a certiorari." See also Camp Hill Borough, 142 Pa. 511, 516, 21 A. 978, and Gates v. Pennsylvania R.R., 154 Pa. 566, 571, 26 A. 598, where the above quotation from Rand v. King was reiterated with approval. Any suggestion that the Act of 1889, by including the common law writ of certiorari within the term "appeal", had the subsequent effect of conferring upon the Superior Court jurisdiction to entertain an appeal on certiorari, where no appeal has been authorized, is patently fallacious and merits no further consideration.

Nor is appellate jurisdiction to review on certiorari (where no appeal from the action of the court below is

[ 396 Pa. Page 602]

    statutorily authorized) to be ascribed to the Superior Court on the ground that the Act of 1895, which established the Superior Court, provides in Section 7 that "The said court shall have ... appellate jurisdiction ... in the following classes of cases: ... (e) Any case whatever, civil or criminal, at law or in equity or in the orphans' court, except felonious homicide, in which the parties or their attorneys file a stipulation in the proper court below at any stage of the proceedings agreeing that the case may be heard and decided by the Superior Court, although the case would otherwise have been appealable directly to the Supreme Court." (Emphasis supplied). Plainly enough, the provision, by its terms, is made applicable to "appealable" cases, and not to ones where no appeal is authorized. A contention that the above-quoted provision of the Act of 1895 was intended to approve a court's acquiring jurisdiction of subject matter by agreement of the parties is obviously untenable.

Section 7(e) of the Act of 1895 was manifestly designed to authorize the parties in cases where both the Supreme and Superior Courts have coordinate jurisdiction of subject matter, e.g., in assumpsit, trespass, equity, etc., to choose the Superior Court's appellate jurisdiction regardless of any limitation thereon by way of amount in controversy or otherwise. The use in Section 7(e) of the word "criminal", in defining the type of cases to which its provision was to be applicable is superfluous and of no effect. That is plainly evident. The immediately preceding Sections 7(a) and (b) of the Act of 1895, supra, respectively conferred appellate jurisdiction on the Superior Court in proceedings in the court of quarter sessions and in the court of oyer and terminer except cases of felonious homicide. As a consequence, the Superior Court's jurisdiction of criminal appeals is so broad as to make

[ 396 Pa. Page 603]

    resort to Section 7(e), for selecting the appellate forum, useless.

The argument, to similar effect, based on the Act of May 5, 1899, P.L. 248, which amended the Superior Court Act of 1895, is equally without merit. Section 11 of the Act of 1899 provides that "Whenever an appeal is taken to the Superior Court, the appellee shall be held to have waived objection to the jurisdiction of that court, unless he file with the prothonotary thereof an objection on this ground, on or prior to the hearing of the appeal by the Superior Court. If the objection is made, the Superior Court shall hear and decide it speedily, and if it is sustained and the appeal is certified to the Supreme Court the prothonotary of the Superior Court shall, in addition to the appeal costs already paid, be paid by the appellant the sum of three dollars as further costs in the cause." Here, likewise, no additional jurisdiction of subject matter is created. The provision was intended to make available the jurisdiction of the Superior Court, if the parties so desired, only in instances where that court had jurisdiction of the subject matter but not of the particular cause owing to the restriction on its jurisdiction because of the amount in controversy.

The provisions of Section 7(e) of the Act of 1895 and of Section 11 of the Act of 1899 are conversely complimentary and are to be read in pari materia. Section 7(e) of the Act of 1895, as we have seen, confers jurisdiction on the Superior Court to entertain an appeal if the parties file a stipulation to that effect in the court below, while Section 11 of the Act of 1899 authenticates an appeal to the Superior Court if the appellee fails to file with the prothonotary of that court an objection to the jurisdiction. But, as we have already indicated, each of these provisions is applicable only to cases where the appeal is from a judgment, order or decree

[ 396 Pa. Page 604]

    relating to subject matter whereof both the Supreme and Superior Courts have coordinate jurisdiction. The decision in Philadelphia County Election Board v. Rader, 162 Pa. Superior Ct. 499, 505, 58 A.2d 187, to other effect cannot rationally be sustained, as a moment's reflection will reveal.

The Rader case involved an appeal from a judgment of contempt entered by a court of common pleas against the defendant "... for refusing to answer questions propounded by the County Election Board of Philadelphia." The Superior Court expressly recognized that the "... appeal ..., regardless of amount involved, was not within [its] jurisdiction ...". Nevertheless, the court forthwith assumed jurisdiction on the basis of Section 11 of the Act of 1899, supra, saying, in that connection, that "This defect [want of jurisdiction in the Superior Court] was called to the attention of counsel at the bar of this Court, and appellee expressly waived objection to our jurisdiction. Accordingly, we have decided the appeal." In other words, a court, which concededly lacks jurisdiction of the subject matter, can go ahead and adjudicate the merits. The error of such a proposition is self-evident. Under the rationale of the Rader decision, a case involving the right to a public office, which is cognizable in the first instance in the court of quarter sessions and is, by Section 7(a) of the Act of 1895, made appealable to the Supreme Court, could be appealed to the Superior Court if the appellee failed to object to the jurisdiction. Again, a defendant convicted of murder in the first degree could take an appeal to the Superior Court and, unless the district attorney filed with the prothonotary objection to the jurisdiction of the court, the prosecuting attorney would be held to have waived his objection to the jurisdiction and the Superior Court would proceed to hear and decide the matter although Section

[ 396 Pa. Page 6057]

(b) of the Act of 1895 expressly provides that cases of felonious homicide shall be appealed directly to the Supreme Court.

The Act of May 8, 1956, P.L. 1540, furnishes a further illustration of the error of the Rader decision. By that Act, the jurisdiction of the Superior Court to entertain appeals from decrees of the orphans' court, was repealed absolutely and, yet, according to the construction placed on the Act of 1899 by the Rader case, supra, appeals in orphans' court cases could still be taken to the Superior Court if the appellees failed to object to the jurisdiction of that court. The same would be equally true where the parties stipulate, under Section 7(e) of the Act of 1895, as to the appellate jurisdiction to be invoked, unless that provision be held applicable only when the Superior Court has jurisdiction of the subject matter but is prevented from exercising it because of the amount in controversy. The error of the jurisdictional ruling in Philadelphia County Election Board v. Rader, supra, is patent. Henceforth that decision must be considered as overruled.

The only way in which jurisdiction can properly be conferred upon the Superior Court to review the work of an inferior tribunal, where no appeal has been statutorily provided, is for the Legislature to authorize the Superior Court to entertain appeals in such cases. That is precisely what was done when the Legislature authorized an appeal to the Superior Court from an order of a court of common pleas or the County Court of Allegheny County in cases involving the suspension of a driver's license. See Section 1 of the Act of May 29, 1956, P.L. (1955) 1850, 75 PS § 193, Pkt. Part. Theretofore, such cases were reviewed by this court on certiorari. Legislation was also the competent and efficient means whereby appeals to the Superior Court were authorized from orders of the courts of quarter

[ 396 Pa. Page 606]

    sessions or the County Court of Allegheny County refusing the issuance, renewals or transfers of liquor licenses (see Section 464 of the Act of April 12, 1951, P.L. 90, 47 PS § 4-464) or from like court orders revoking or suspending such licenses: Section 471 of the Act of 1951, supra, 47 PS § 4-471.

In most election cases, appeals beyond the common pleas court are not provided for. Hence, appellate review of such proceedings is by this court on certiorari under our King's Bench powers. See Martonick v. Beattie, 383 Pa. 168, 170, 117 A.2d 715. The appeal in the Martonick case had been mistakenly taken to the Superior Court which heard it on the merits and entered an order. We brought the case here on allocatur, vacated the Superior Court's order for lack of jurisdiction and disposed of the appeal on the merits. As pointed out in Martonick v. Beattie, supra, there are but two instances where appeals from purely factual and incidental determinations in election matters by a court of common pleas are made, by statute, promptly appealable to the Superior Court. See Section 1611 of the Election Code of June 3, 1937, P.L. 1333, 25 PS § 3231, and Act of July 28, 1941, P.L. 526, 25 PS § 2936. This necessary legislative authorization of appellate jurisdiction further serves to point up the fact that the Superior Court lacks authority to review the proceedings of inferior tribunals where appeals have not been authorized.

The Act of March 2, 1923, P.L. 3, 17 PS § 187, which conferred on the Superior Court jurisdiction of appeals from orders, judgments, or sentences of the County Court of Allegheny County or the Municipal Court of Philadelphia, did no more than designate the appropriate forum for such appeals. It did not confer the King's Bench power of common law certiorari on the Superior Court. That court continues, therefore, to be

[ 396 Pa. Page 607]

    without authority to review proceedings in the County Court of Allegheny County or the Municipal Court of Philadelphia on certiorari where no appeal is authorized by statute. Cf. Walker's Appeal, supra, at p. 388.

Nor is the fact that instances are to be found where the Superior Court entertained appeals, as if on certiorari, when no appeal was authorized, to be taken as support for a jurisdiction which the Superior Court does not possess. Most of such instances were concerned with orders of courts of quarter sessions on appeals thereto from orders of the Pennsylvania Liquor Control Board in license cases, such, for example, as McGettigan's Liquor License Case, 131 Pa. Superior Ct. 280, 200 A. 213. Assumption of jurisdiction in those cases cannot properly be used to support a jurisdiction in the Superior Court which does not exist. Section 404 of the Pennsylvania Liquor Control Act of November 29, 1933, Sp. Sess., P.L. 15, as amended by the Acts of July 18, 1935, P.L. 1246, and June 16, 1937, P.L. 1762, authorized appeals from the orders of the Liquor Control Board to the courts of quarter sessions of the various counties of the State, but expressly provided that, "There shall be no further appeal." In view of this inhibition, such an order of a court of quarter sessions could be reviewed only by this court on certiorari under our King's Bench powers. The Superior Court, conceding the limitation on its power to review the quarter sessions' orders on certiorari, dismissed the appeals in the McGettigan Case. That case is, therefore, non-decisional as to what the Superior Court's jurisdiction to review would have been had the Liquor Control Act been silent with respect to an appeal from the order of the court of quarter sessions. True enough, there are dicta in the opinion for the Superior Court which imply that, in such circumstances, that court would have reviewed the proceedings on the merits. But that

[ 396 Pa. Page 608]

    does not make for jurisdiction on certiorari. The Superior Court's appellate jurisdiction in liquor license cases has been properly clarified. As already indicated, the Act of April 12, 1951, P.L. 90, supra, made such orders of the courts of quarter sessions and the County Court of Allegheny County in Liquor Control Board cases directly appealable to the Superior Court.

To summarize: Where a right of appeal from the action of a lower court is not authorized by statute, or is expressly denied, or the statute provides that the action of the court below shall be final, appellate review of the proceeding can be had only on a writ of certiorari. Authority to issue such a writ is reposed in the Supreme Court by the Act of May 22, 1722, which conferred upon it the powers of the Court of King's Bench. The Superior Court is not clothed with such powers and is, therefore, without jurisdiction to review the proceedings of a lower court on certiorari. The Superior Court's appellate jurisdiction rests exclusively in direct appeal to it when expressly authorized by statute. It necessarily follows that the Superior Court erred in entertaining the appeals in the instant cases. Its order of reversal must therefore be vacated for want of jurisdiction just as was done in the case of Martonick v. Beattie, supra. That leaves the appeals before us for our disposition on certiorari.

Appellate review of the proceedings of an inferior tribunal by writ of certiorari was originally limited to an inspection of the record for jurisdiction below and correction of errors appearing on the face of the record. Neither the opinion of the court nor the evidence in the case formed any part of the record and the merits could not be inquired into on certiorari. The scope of the writ has since been somewhat enlarged. As recognized in Rimer's Contested Election, 316 Pa. 342, 350, 175 A. 544, "... by the year 1919 this court had considerably

[ 396 Pa. Page 609]

    expanded the original conception of the review to be accorded cases which came before it by writ of certiorari. In that year the General Assembly passed an act which made possible even further departures from the old rule." The Act referred to is the Act of April 18, 1919, P.L. 72, which provides that "in any proceedings heretofore or hereafter had in any court of record of this Commonwealth where the testimony has been or shall be taken by witnesses, depositions, or otherwise, and where an appeal has been or shall hereafter be taken from the order, sentence, decree, or judgment, entered in said proceedings, to the Superior or Supreme Court, such testimony shall be filed in said proceedings, and the effect of said appeal shall be to remove, for the consideration of the appellate court, the testimony taken in the court from which the appeal is taken, and the same shall be reviewed by the appellate court as a part of the record, with like effect as upon an appeal from a judgment entered upon the verdict of a jury in an action at law, and the appeal so taken shall not have the effect only of a certiorari to review the regularity of the proceedings in the court below."

While the Act of 1919, supra, enabled us, by an examination of the testimony on certiorari, to see whether the findings of the court below were supported by evidence, it was indicated in Twenty-First Senatorial District Nomination, 281 Pa. 273, 279, 126 A. 566, that the Act could not operate to expand our jurisdiction in cases where the statute particularly states that no appeal shall be permitted. It was there said that, "Where, in a statutory proceeding, the legislature fails to provide for an appeal ..., a certiorari to inspect the record, in the broadest sense allowed by our cases, may, nevertheless, issue; but where the legislature ... states that no appeal shall be permitted, then review, beyond determining questions of jurisdiction, cannot be had;

[ 396 Pa. Page 610]

    and, under circumstances such as those at bar, a certiorari for the latter purpose cannot be broadened into something more extensive, either by our prior rulings on the general subject in hand, or by operation of the Act of April 18, 1919, P.L. 72."

Thus, there was developed by judicial decision the two classifications of the common law writ of certiorari which this court has ever since recognized. See Kaufman Construction Company v. Holcomb, 357 Pa. 514, 517, 55 A.2d 534, where, after quoting from Twenty-First Senatorial District Nomination, supra, we said, pp. 518-519, "The distinction thus made has been reiterated and reinforced in a multitude of subsequent cases holding that where a statute expressly provides that there shall be no appeal the scope of appellate review is limited to the question of jurisdiction and the regularity of the proceedings; the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the governmental agency or the court below may have been erroneous. [Footnote citing many cases] It is only where the statute is silent on the question of appeal that a review by certiorari may be had 'in the ...


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