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COMMONWEALTH EX REL. WHALEN v. BANMILLER. (04/13/60)

April 13, 1960

COMMONWEALTH EX REL. WHALEN, APPELLANT,
v.
BANMILLER.



No. 295, Miscellaneous Docket No. 6; petition for leave to file appeal without payment of statutory filing fee, in case of Commonwealth ex rel. Edward J. Whalen v. William J. Banmiller, Warden. Petition refused.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

[ 192 Pa. Super. Page 135]

OPINION PER CURIAM

This Court has not permitted the filing of appeals in habeas corpus cases without the payment of the $12 filing fee required by the Act of May 19, 1897, P.L. 67, § 3, 12 PS § 1135. Unless this act is unconstitutional as applied to this case, it is our duty to follow it, and to require the payment of the fee prescribed by the legislature.

Numerous efforts have been made by prisoners to file appeals from the orders of the courts of common pleas in habeas corpus cases without paying the filing fee. In many of these cases the prisoners have asked the Supreme Court of Pennsylvania, and subsequently the Supreme Court of the United States, to require us to accept their appeals without payment of the fees. Both the Supreme Court of Pennsylvania and the Supreme Court of the United States have uniformly refused to require us to accept these appeals without the payment of the fees required by the Act of 1897, supra.

In the matter now before us, the petitioner in a habeas corpus case filed a "Petition for leave to file appeal without payment of the statutory filing fee" with this Court. Following the statutory mandate and the practice of this Court since its establishment, we dismissed the petition. A petition for allocatur labeled "Supplemental Petition for Allowance of an Appeal," was filed with the Supreme Court of Pennsylvania,

[ 192 Pa. Super. Page 136]

    which Court entered the following order thereon: "And Now, February 24, 1960, upon consideration of the Supplemental Petition for Allowance of an Appeal in the above-entitled matter, and in view of the decision of the Supreme Court of the United States in Burns v. Ohio, 360 U.S. 252 it is hereby ordered that the supplemental petition to this court in the above entitled matter be transmitted to the Superior Court for that court's possible reconsideration of the petitioner's application for leave to appeal to that court from the order of the Court of Common Pleas No. 5 of Philadelphia County at No. 633 September Term, 1959, without payment of the statutory filing fee."

In Burns v. Ohio, 360 U.S. 252, decided June 15, 1959, the Supreme Court of the United States held that "once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty." (Emphasis supplied). In the Burns case the defendant was seeking appellate review of his conviction in a criminal case.

The present case is a habeas corpus action brought in the court of common pleas. It is a civil remedy. Commonwealth ex rel. Paylor v. Claudy, 366 Pa. 282, 284, 77 A.2d 350 (1951); Commonwealth ex rel. Ridenour v. McHugh, 179 Pa. Superior Ct. 69, 73, 115 A.2d 808 (1955); 17 P.L.E. Habeas Corpus, § 1, page 264.

As recently as February 23, 1960, the Supreme Court of the United States denied certiorari in a similar habeas corpus case in which this Court and the Supreme Court of Pennsylvania had refused to allow the filing of an appeal without the payment of the statutory filing fee. Commonwealth ex rel. Burge v. Maroney, Superior Court: 325 Miscellaneous Docket; Supreme Court: 2278 Miscellaneous Docket.

We doubt that the Supreme Court of the United States intended Burns v. Ohio, supra, to apply to habeas

[ 192 Pa. Super. Page 137]

    corpus cases. If it intended that case to apply, we believe it would not have denied a certiorari in Commonwealth ex rel. Burge v. Maroney, supra. We recognize that Burge asked the Supreme Court to pass upon his right to a writ, and not merely his right to appeal without paying the filing fee. We also recognize that denial of a certiorari by the Supreme Court of the United States cannot be considered a disposition of the case on its merits. On the other hand, the petition of Burge to the Supreme Court of the United States was for a writ of certiorari to the Supreme Court of Pennsylvania whose order dealt only with the right to appeal without paying the filing fee. The action of this Court and the Supreme Court of Pennsylvania was upon a petition to file an appeal without paying the filing fee. Thus, the order of the Supreme Court of the United States refusing certiorari was an action of that Court on a case which went to it from orders of our appellate courts refusing to allow appeals without the payment of the filing fees. Under these circumstances, it appears to us that the Supreme ...


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