Appeal, No. 56, Jan. T., 1960, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1956, No. 1618, in case of Elmer H. Booz v. Howard F. Reed, Jr. Judgment vacated. Mandamus. Order entered denying petition for writ of mandamus and judgment entered for defendant, order by OLMSTED, J. Plaintiff appealed.
Robert B. Ely, III, with him Harold Scott Baile for appellant.
Basil C. Clare, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This action in mandamus was instituted by the plaintiff in an effort to compel the defendant prothonotary of Delaware County to accept for filing in the court of common pleas of that county, without prior court leave sought or obtained as required by the Act of May 17, 1956, P.L. 1626, No. 541, 42 PS § 913a, the plaintiff's transcript on an appeal from a judgment entered against him by a justice of the peace in the sum of $98.12 as damages inflicted by him in an automobile accident.*fn*
In an effort to appeal the judgment entered by the justice of the peace, Booz pursued the procedure prescribed by the Act of March 20, 1810, P.L. 208, 5 Sm. L. 161, § 4, 42 PS § 923, by presenting the transcript of the proceedings before the justice of the peace to the prothonotary of the court of common pleas of Delaware County who refused to accept the transcript because of the plaintiff's failure to apply to the court, as required by the Act of 1956, for leave to appeal the judgment. Upon the prothonotary's refusal to accept the transcript, Booz, without having sought leave of court to appeal, filed his complaint in the instant action of mandamus in the court of common pleas against the prothonotary for the purpose of compelling him to accept the appeal without leave of court. The prothonotary filed preliminary objections to the complaint
in mandamus setting forth that Booz had not complied with the terms of the Act of 1956 in attempting to appeal the judgment entered against him by the justice of the peace for a sum less than $100. The court dismissed the prothonotary's preliminary objections in an opinion which held that the Act of 1956 is unconstitutional. See Booz v. Reed, 13 Pa.D. & C.2d 283 (1957). The prothonotary then filed his answer to the complaint in which he admitted his refusal to accept the transcript and averred, as justification for his action, Booz' failure to comply with the requirements of the Act of 1956. Booz moved for judgment on the pleadings. The court entered judgment on the pleadings for the defendant prothonotary in an opinion holding that the Act of 1956 is constitutional. From the entry of the judgment against him, the complainant has appealed to this court.
The appellant bases his action on the ground that the Act of 1956 is unconstitutional since Article I, Section 6, of the Pennsylvania Constitution guarantees that "Trial by jury shall be as heretofore and the right thereof remain inviolate" and, at the time of the adoption of our present Constitution in 1874, the losing party had the right to appeal to the court of common pleas of the local county from any judgment entered against him by a justice of the peace which exceeded $20 in amount, and thereby secure a jury trial. Act of March 20, 1810, P.L. 208, 5 Sm. L. 161, § 4, 42 PS § 662.
The barrier to the appellant's raising the question of the constitutionality of the Act of 1956 presently is his inability to show that he had been or will be denied a right of trial by jury on his appeal from the judgment entered against him by the justice of the peace; non constat that the court upon his application for leave to appeal ...